United States

The United States of America (US) has not acceded to the Convention on Cluster Munitions.

The US has acknowledged the “important contributions” of the Convention on Cluster Munitions, but also led unsuccessful efforts to create an alternate international law to regulate and not ban cluster munitions through the Convention on Conventional Weapons (CCW), to which it is party. The US opposed the negotiation of a legally binding instrument in the CCW until June 2007 when the Oslo Process to create the Convention on Cluster Munitions was underway.[1] It subsequently became one of the most ardent supporters of a CCW protocol, working intensively to forge agreement on a draft CCW protocol on cluster munitions.[2] The US said it was “deeply disappointed” at the CCW’s failure in November 2011 to conclude the draft protocol, but the administration of President Barack Obama has not said if it will review its policy on joining the Convention on Cluster Munitions now that it has been affirmed as the sole international law specifically addressing cluster munitions.[3]

The Obama administration has continued to implement a cluster munition policy created under President George W. Bush in July 2008. Under the 2008 Department of Defense (DoD) policy, by the end of 2018 the US will no longer use cluster munitions that result in more than 1% unexploded ordnance (UXO).[4] Until 2018, any use of cluster munitions that exceed the 1% UXO rate must be approved by the Combatant Commander.[5] The 10-year transition period was seen as “necessary to develop the new technology, get it into production, and to substitute, improve, or replace existing stocks.”[6] Under the policy, all cluster munition stocks “that exceed operational planning requirements or for which there are no operational planning requirements” must be removed from active inventories as soon as possible (but not later than 19 June 2009) and demilitarized as soon as practicable.[7] In November 2011, the US stated that it would continue to implement the 2008 DoD policy on cluster munitions.[8]

The US did not directly participate, not even as an observer, in the diplomatic Oslo Process in 2007 and 2008 that resulted in the Convention on Cluster Munitions. However, US Department of State cables made public by Wikileaks from late 2010 through 2011 show how the US attempted to influence its allies, partners, and other states during the Oslo Process to affect the outcome of the negotiations, especially with respect to the issue of “interoperability” (joint military operations between the US and States Parties to the convention).[9] The diplomatic cables also show how the US has worked extensively to influence national implementation legislation and interpretation of the Convention on Cluster Munitions, including on issues of foreign stockpiling and transit[10] (see section on Foreign stockpiling and transit below). In a February 2009 cable, the US commended Norwegian Minister of Foreign Affairs Jonas Gahr Støre for the “successful conclusion” of the Convention on Cluster Munitions.[11] In at least one instance, a US cluster munition manufacturer exerted pressure on a foreign government not to sign the Convention on Cluster Munitions.[12]

The US has never participated in a meeting of the Convention on Cluster Munitions. It was invited to, but did not attend, the convention’s Third Meeting of States Parties in Oslo, Norway in September 2012.

When reports emerged of civilian casualties caused by use of cluster munitions by Syrian forces in October 2012, the then-Permanent Representative of the US to the UN, Ambassador Susan Rice, tweeted that the cluster munition use was an example of “atrocities” by the Syrian regime.[13] The US voted in favor of a UN General Assembly (UNGA) resolution on 15 May 2013 that strongly condemned, “the use by the Syrian authorities of…cluster munitions.”[14] In April 2011, then-Secretary of State Hillary Clinton condemned the use of cluster munitions by Libyan government forces in Misrata.

In a 17 July 2013 letter to President Obama, senior US Senators Dianne Feinstein (D-CA) and Patrick Leahy (D-VT), as well as Representative James McGovern (D-MA), described the US government’s cluster munitions policy as “outdated” and urged that it be “immediately” and “expeditiously” reviewed to put the US “on a path to join the international Convention on Cluster Munitions.” The letter urges a review of the DoD’s policy on cluster munitions and states, “Rather than waiting until 2018, as is current DOD policy, we believe the U.S. military should immediately halt the use of cluster munitions that have an unexploded ordnance rate of greater than one percent.”[15]

On 28 February 2013, Senators Feinstein and Leahy reintroduced the Cluster Munitions Civilian Protection Act, Bill S. 419, to limit the use of cluster munitions to munitions that have a 99% or higher reliability rate, prohibit use of cluster munitions in areas where civilians are known to be present, and require a clearance plan if the US uses cluster munitions.[16] On 28 February 2013, Representative McGovern re-introduced an identical companion bill in the House as H.R. 881.[17]

On 19 June 2013, Representative Darrell Issa (R-CA) introduced the Designating Requirements On Notification of Executive-ordered Strikes Act of 2013 or DRONES Act, which includes provisions requiring that US cluster munitions have a less than 1% dud rate and be used only against military targets and not in areas inhabited by civilians. It contains the same language on cluster munitions as the Cluster Munitions Civilian Protection Act described above. In addition, the bill would prohibit the President from authorizing the use of cluster munitions if they would be “reasonably likely to unintentionally harm any citizen of the United States or citizen of a strategic treaty ally of the United States.”[18]

Handicap International, Human Rights Watch, and other civil society groups in the US have continued to take action in support of the Convention on Cluster Munitions through the US Campaign to Ban Landmines and Cluster Munitions. On 1 August 2013, the US campaign sent a letter to US Secretary of State John Kerry urging a review of US policy on cluster munitions, stating “It’s time for the United States to assume a leadership role, join the conversation, and take significant action” on cluster munitions. It urged that the current 2018 policy date for instituting a ban on nearly all cluster munitions be brought forward and called for the US to “examine the need for the exception in the policy that allows continued use of cluster munitions that have a less than one percent unexploded ordnance rate during military operations.”[19]

The US has not joined the 1997 Mine Ban Treaty, but in late 2009 the Obama administration began a comprehensive review of US policy on banning antipersonnel mines and accession to the treaty. In the nearly four years since the policy review commenced, the US has become a regular observer at Mine Ban Treaty meetings, but the policy review still had not concluded as of July 2013.

Use

The US used cluster munitions in Cambodia, Lao PDR, and Vietnam (1960s and 1970s); Grenada and Lebanon (1983); Libya (1986); Iran (1988); Iraq, Kuwait, and Saudi Arabia (1991); Bosnia and Herzegovina (1995); Serbia, Montenegro, and Kosovo (1999); Afghanistan (2001 and 2002); and Iraq (2003).[20]

In June 2010, Amnesty International (AI) published a series of photographs and stated that it appeared to confirm US use of at least one TLAM-D cruise missile with 166 BLU-97 submunitions to attack an “alleged al-Qa’ida training camp” in al-Ma‘jalah in the al-Mahfad district of Abyan governorate of Yemen on 17 December 2009.[21] A US Department of State cable dated 21 December 2009 acknowledged the US played a role in the 17 December strike.[22] Neither the US nor Yemeni government has publicly responded to the Yemen use allegations.[23]

The July 2013 letter by Senators Feinstein and Leahy refers the Yemen strike and reported civilian casualties. It notes that “current DOD policy requires Combatant Commanders to approve the use of cluster munitions that exceed a one percent unexploded ordnance rate” and requests that DOD provide “detailed information on the use of cluster munitions since the implementation of current DOD policy” issued in June 2008.[24] As noted above, the letter also called for an immediate halt to the use of cluster munitions with a failure rate of more than 1%.

Production

In 2001, then-Secretary of Defense William Cohen issued a policy memorandum stating that all submunitions reaching the “full rate” production decision by fiscal year 2005 and beyond must have a failure rate of less than 1%.[25] The US has not budgeted any money for producing new cluster munitions since 2007.[26] Research and development activities continue at the applied research level for the purposes of improving the reliability of existing submunitions as well as the development of new types of submunitions. These activities are in programs being conducted by the Air Force, Army, and the Office of the Secretary of Defense.[27]

The US has in the past licensed the production of cluster munitions with Japan, South Korea, the Netherlands, Pakistan, and Turkey.

Transfer

While the historical record is incomplete, in the past the US transferred hundreds of thousands of cluster munitions, containing tens of millions of submunitions, to at least 30 countries: Argentina, Australia, Bahrain, Belgium, Canada, Colombia, Denmark, Egypt, France, Germany, Greece, Honduras, India, Indonesia, Israel, Italy, Japan, Jordan, South Korea, Morocco, the Netherlands, Norway, Oman, Pakistan, Saudi Arabia, Spain, Thailand, Turkey, the United Arab Emirates (UAE), and the United Kingdom (UK).[28] In 2012, Chile’s Ministry of National Defense provided the Monitor with information showing an export to the US in 1991 of one 250kg cluster bomb and one 500kg cluster bomb.[29]

The US first instituted a moratorium on the export or transfer of cluster munitions that do not meet the 1% UXO standard in a 2007 appropriations (budget) bill at the initiative of Senator Leahy. The moratorium was extended the following year as the 2008 Consolidated Appropriations Act, but again the restrictions only applied to that fiscal year.[30]

The 2009 Omnibus Appropriations Act contained similar restrictions as the previous appropriations bills; it prohibited the provision of military assistance for cluster munitions, the issuing of defense export licenses for cluster munitions, or the sale or transfer of cluster munitions or cluster munitions technology unless “the submunitions of the cluster munitions, after arming, do not result in more than 1 percent unexploded ordnance across the range of intended operational environments.” In addition, any agreement “applicable to the assistance, transfer, or sale of such cluster munitions or cluster munitions technology” must specify that the munitions “will only be used against clearly defined military targets and will not be used where civilians are known to be present or in areas normally inhabited by civilians.”[31]

The same export moratorium language was included in the 2010 Consolidated Appropriations Act signed into law by President Obama on 16 December 2009.[32] Similar export moratorium language was included in the 2012 Consolidated Appropriations Act (P.L. 112-74) signed into law on 23 December 2011,[33] the 2013 Continuing Appropriations Resolution signed into law on 28 September 2012,[34] and the 2013 Consolidated and Further Continuing Appropriations Act.[35]

On 19 May 2011, the Defense Security Cooperation Agency (DSCA) issued a memorandum on the sale of cluster munitions that incorporates these legal requirements into DSCA policy by adding them to the Security Assistance Management Manual. According to the US agency that administers weapons transfers, “At present the only cluster munition with a compliant submunition (one that does not result in more than 1% UXO across the range of intended operational environments) is the CBU-97B/CBU-105, Sensor Fuzed Weapon (SFW). The CBU-107 Passive Attack Weapon, which contains non-explosive rods, is not captured by the ban.”[36]

Recent US exports of cluster munitions include sales to the UAE (announced in September 2006 of 780 M30 GMLRS rockets),[37] India (announced in September 2008 of 510 CBU-105 SFW),[38] Saudi Arabia (announced in June 2011 of 404 CBU-105D/B SFW),[39] Taiwan (announced in September 2011 of 64 CBU-105 SFW),[40] and the Republic of Korea (announced June 2012 of 367 CBU-105D/B SFW).[41]

On 26 April 2013, Representative Gerald Connolly (D-MA) introduced H.R. 1793 or the “Global Partnerships Act of 2013.”[42] The bill contains language identical to export moratorium on cluster munitions that in the 2010 Consolidated Appropriations Act (P.L. 111-117) and adds that any “agreement applicable to the assistance, transfer, or sale of such cluster munitions or cluster munitions technology” must require the recipient to “immediately recover any unexploded submunitions, and to give assistance as necessary to any civilian injuries, that follow the use of such weapons in any area in which civilians are present.”

Stockpiling

In 2009, a US Department of State official said, “The current stockpile is huge; the DoD currently holds more than 5 million cluster munitions with 700 million submunitions. Using our current demilitarization capabilities, it will cost $2.2 billion to destroy this stockpile.”[43] At the CCW Fourth Review Conference in November 2011, the US delegate stated that the US stockpile includes “more than 6 million cluster munitions,” which indicates that the stockpile may be larger than previously reported.[44]

An October 2004 report to the US Congress by the DoD provides details on a stockpile of 5.5 million cluster munitions containing about 728.5 million submunitions.[45]

US stockpile of cluster munitions (as of 2004)[46]

In a February 2011 presentation to CCW delegates, the US stated that “around two million” cluster munitions would be captured by a CCW proposal for a ban on the use of cluster munitions produced before 1980. The types of cluster munitions included in this figure were listed on a slide projected during an informal briefing to CCW delegates by a member of the US delegation. Several of the types (such as CBU-58, CBU-55B, and M509A1) were not listed in the “active” or “total” inventory by the US DoD in a report to Congress in late 2004.

The October 2004 DoD report to Congress provides details on a stockpile of 5.5 million cluster munitions of 17 different types that contain about 728 million submunitions.[47] However, this figure does not appear to be a full accounting of cluster munitions available to US forces. The number apparently does not include cluster munitions that are located in foreign countries or stockpiled as part of the War Reserve Stocks for Allies (WRSA).[48]

The DoD had not publicly reported on the removal of excess cluster munitions from stocks by June 2009, as called for in the July 2008 policy. The July 2013 letter to President Obama from Senators Feinstein and Leahy notes that the 2008 policy “requires the Services and Combatant Commands to initiate the removal from active inventory all cluster munition stocks that exceed or do not satisfy operational planning requirements” and requests that the DoD provide “an unclassified report detailing the number of cluster munitions that have been removed from the active stockpile, as well as how many remain.”[49]

Since 2000, the US has destroyed 9,400 tons of outdated cluster munitions (not including missiles and rockets) on average per year at an average annual cost of $7.2 million. For fiscal year 2012, the funding for the destruction of non-missile cluster munitions and submunitions consumes 24% of the annual budget allocation for the destruction of conventional ammunitions.[50]

Since fiscal year 2007, there has been a separate funding source for the destruction of multiple launch rocket system (MLRS) rockets and ATACM missiles, with special destruction facilities for MLRS rockets at the Anniston Defense Munitions Center in Alabama and the Letterkenny Munitions Center in Pennsylvania. The army has requested $109 million for the destruction of 98,904 M26 MLRS rockets from fiscal year 2007 to fiscal year 2012.[51]

Foreign stockpiling and transit

It appears that the US has taken action to remove its stockpiles from the territories of at least two States Parties to the Convention on Cluster Munitions. The UK announced in 2010 that there were now “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”[52] According to a Norwegian Ministry of Foreign Affairs official, the US removed its stockpiled cluster munitions from Norway in 2010.[53]

US Department of State cables released by Wikileaks show that the US has stockpiled and may continue to be storing cluster munitions in a number of countries, including Convention on Cluster Munitions States Parties Afghanistan, Germany, Italy, Japan, and Spain, as well as in non-signatories Israel, Qatar and perhaps Kuwait:

·         According to a December 2008 cable, “The United States currently has a very small stockpile of cluster munitions in Afghanistan.”[54]

·         According to a December 2008 cable, Germany has engaged with the US on the matter of cluster munitions that may be stockpiled by the US in Germany.[55]

·         According to a cable detailing the inaugural meeting on 1 May 2008 of the “U.S.-Israeli Cluster Munitions Working Group (CMWG),” until US cluster munitions are transferred from the War Reserve Stockpiles for use by Israel in wartime, “they are considered to be under U.S. title, and U.S. legislation now prevents such a transfer of any cluster munitions with less than a one percent failure rate.”[56]

·         In a November 2008 cable, the US identified Italy, Spain, and Qatar as states of particular concern with respect to interoperability since “they are states in which the US stores cluster munitions,” even though apparently Qatar “may be unaware of US cluster munitions stockpiles in the country.”[57]

·         A December 2008 cable states that Japan “recognizes U.S. forces in Japan are not under Japan’s control and hence the GOJ [Government of Japan] cannot compel them to take action or to penalize them.”[58]

·         According to a May 2007 cable, the US might be storing clusters munitions in Kuwait.[59]