Commitment to the Convention on Cluster Munitions

Policy

The United Kingdom of Great Britain and Northern Ireland (UK) signed the Convention on Cluster Munitions on 3 December 2008, ratified on 4 May 2010, and became a State Party on 1 November 2010. 

The UK submitted its initial Article 7 report on 28 April 2011.[1] Under national implementation measures, the report lists the Cluster Munitions (Prohibitions) Act 2010, which entered into force on 25 March 2010 and creates criminal offenses to enforce the prohibitions contained in the convention.[2] In December 2010, the government stated that it is in the process of extending the Act to all UK Overseas Territories and that, until it is formally extended, the government’s position is to “act in accordance with its prohibitions.”[3] In November 2010, the UK stated that under its Export Control Order of 2008, cluster munitions are considered in the highest category of prohibited exports.[4]

The Coalition Government that came to power after the May 2010 general elections has affirmed its commitment to the Convention on Cluster Munitions on several occasions. On 27 July 2010, Foreign Secretary William Hague described the convention as “the most significant disarmament agreement of recent years” and urged “all states not yet party to sign and ratify the convention.”[5]  In November 2010, the UK reiterated that cross-party political support for the convention remains strong and said, “It is a stated priority of our Coalition Government to work to achieve a global ban on cluster munitions.”[6]

The UK participated throughout the Oslo Process that created the convention. Its position changed just before the conclusion of the negotiations in Dublin in May 2008 to support a ban on all cluster bombs, a decision that had significant impact in influencing others’ support for the convention text.[7]

The UK has continued its active engagement with the work of the convention in 2010 and the first half of 2011. It attended the First Meeting of States Parties to the Convention on Cluster Munitions in Vientiane, Lao PDR in November 2010, where it announced a contribution of approximately £2.5 million ($4 million) for clearance of unexploded ordnance contamination, including cluster munition remnants in Lao PDR.[8] The UK participated in the convention’s first intersessional meetings in Geneva in June 2011, where it made several statements, including on universalization.

In November 2010, the UK said it “takes all opportunities to encourage universal adherance to the Convention.” It noted that in the past year “this has included lobbying most major users and producers of cluster munitions, irrespective of any bilateral or multilateral ties” and expressed its interest in collaboration with civil society in support of “well-targeted multi-country or regional initiatives.”[9] In June 2011, the UK said that it continues to use all possible opportunities, both bilateral and multilateral, to encourage universalization of the convention and said that government ministers such as Foreign Secretary Hague regularly raised universalization with states not party. The UK said that it used its 1 November 2010 entry into force “as a springboard for our diplomatic network to globally engage with states yet to join and encourage swift ratification and accession.”[10] 

In January 2011, the UK said that its universalization work in support of the convention had found little traction with major powers, such as the United States (US), Russia, India, China, and Pakistan.[11] The UK said that it had undertaken outreach on universalization to African countries at the African Union Summit.[12]

At the UN General Assembly (UNGA) First Committee on Disarmament and International Security in New York in October 2010, the UK said it is committed to continuing its work to clear contaminated areas and “ensure further suffering does not occur by encouraging other States to join us.”[13]  The UK also attended a UN Special Event on the convention in October 2010.

In response to reports of Thai use of cluster munitions in its border conflict with Cambodia in February 2011, a UK Foreign Office spokesperson told media, “We are aware of the recent allegations of the use of cluster munitions by the Thai army and have raised this with the Thai authorities. That cluster munitions may have been used is of serious concern to the UK. We condemn in the strongest terms the use of cluster munitions that causes unacceptable harm to the civilian population.”[14] In a House of Commons debate regarding UN Security Council Resolution 1973 on Libya, the Prime Minister, David Cameron, stated that “we do not use [cluster munitions] and we do not believe that others should either.”[15]

Interpretive issues

The UK expressed its views on the interpretation and implementation of a number of key provisions in the convention during the process of preparing its national legislation, including the prohibition on foreign stockpiling, the prohibition on transit, the prohibition on investment in cluster munitions producers, and the prohibition on assistance with prohibited acts in joint military operations. A number of ministerial statements are on record clarifying the meaning of the UK’s national legislation on these issues and recognizing the positive obligations under the convention.[16] Additionally, during late 2010 several questions were raised in Parliament in response to reports in the British media based on US Department of State cables made public by Wikileaks.

Foreign stockpiling

In June 2008, immediately after the adoption of the convention, the UK stated that did not read the prohibition on foreign stockpiling as a legal requirement under the treaty, but said it would seek the removal of foreign stockpiles of cluster munitions from UK territories within the eight-year period allowed for stockpile destruction in the convention.[17] In December 2009, the government stated that the US had identified the cluster munitions on UK territory as “exceeding operational planning requirements” and that they would be “gone from the UK itself by the end of [2010]” and “gone from other UK territories, including Diego Garcia, by the end of 2013.”[18]

At the First Meeting of States Parties in November 2010, the UK announced that there were now “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”[19]

Transit

In March 2010, UK parliamentarians asked if “transit” of cluster munitions through UK territory is prohibited under the Cluster Munitions (Prohibitions) Act 2010.  The government stated that transit “would not in itself be prohibited, but a direct application would have to be made to the Secretary of State who would have to grant permission before it could happen. We would be reluctant to grant such permission.”[20]

In December 2010, the Parliamentary Under Secretary of State for Defence said that under Section 8 of the UK’s legislation the Foreign Secretary may grant authorization for visiting forces of states not party to the Convention on Cluster Munitions to “possess cluster munitions on, or transfer them through, UK territory.”[21]

In January 2011, however, a Minister of State, Lord Howell of Guildford, clarified that this provision had been used only once and that future use of the provision might be brought before parliament.  He stated that “the one exception was made very properly by the previous Foreign and Commonwealth Secretary, Mr Miliband, allowing the US a temporary extension of its right to keep cluster munitions while it went through the process of getting rid of them as part of the running down of cluster munitions stores in UK territory and in the United Kingdom. That is the only exception that has ever been made. For the future, we will consider bringing to Parliament and recording any decisions that may be proposed for temporary extension, and we will do that on a case-by-case basis. I have to say that in a number of instances it could be governed and limited by security considerations.”[22]

A US Department of State cable dated 21 May 2009 and made public by Wikileaks on 1 December 2010, stated that the head of the Foreign Office's Security Policy Group, Nicolas Pickard, had “reconfirmed” to US officials that “off-shore storage” of cluster munitions “on US ships would still be permitted.” According to the cable, the UK’s position was that “any U.S. cluster munitions currently stored on British territory (either UK territory proper, Diego Garcia, or elsewhere) would be permitted to stay until 2013, while any new cluster munitions the USG [US Government] wanted to bring to those sites after the treaty's entry into force for the UK - either before or after 2013 - would require the temporary exception. Any movement of cluster munitions from ships at Diego Garcia to planes there, temporary transit, or use from British territory also would require the temporary exception after entry into force.”[23]

The cable quoted a UK Foreign Office official as telling US officials that:

It would be better for the USG [US government] and HMG [Her Majesty’s Government - UK] not to reach final agreement on this temporary agreement understanding until after the CCM ratification process is completed in Parliament, so that they can tell parliamentarians that they have requested the USG to remove its cluster munitions by 2013, without complicating/muddying the debate by having to indicate that this request is open to exceptions.

Foreign Secretary Hague said there was “no evidence that Parliament was misled” during the development of the national implementation legislation.[24] The Minister of State responsible for the legislation in the previous Labour Government said that “it was our complete intention that there would be no American cluster munitions on British territories anywhere in the world.”[25]

Interoperability

The convention’s Article 21 provisions on interoperability, the issue of joint military operations with states not party that use cluster munitions, are addressed in Clause 9 of the UK’s national legislation.[26] At the intersessional meetings in June 2011, the UK said that its interpretation of the Article 21 is that “notwithstanding the provisions of Article 1 [prohibition on assistance], Article 21(3) allows States Parties to participate in military operations and cooperation with non‐States Parties who may use cluster munitions. UK law and operational practice reflect this.”[27]

During the development of the UK’s implementation legislation, parliamentarians expressed concern that this clause would provide a loophole that would undermine the purpose of the convention and the UK’s legislation, which is the elimination of cluster munitions.[28]  When pushed by members of parliament to clarify just exactly what activities this clause would permit UK troops engaged in joint military operations to carry out, the government responded that UK troops “would not be allowed to request use of [cluster] munitions where the choice of munitions was within their exclusive control,” but that “they could facilitate operations where [cluster munitions] might be used by a partner.”[29]

Parliamentarians argued that there would likely be situations that, while not illegal under the Bill, would clearly be against the spirit and intention of the legislation and pressed the government on the need to develop proper guidelines and briefings for the UK military.[30] The government responded that, “States Parties have to make sure that any other state with which they are working understands the basis on which their personnel will be engaged…. We have to make sure there is clear guidance for personnel, so they know exactly what they can and cannot do. That is already in hand.”[31] A significant result of the parliamentary debates on interoperability and Clause 9 was the recognition by the government of the need to promote universal adherence to the convention.

In November 2010, the UK described the convention’s Article 21 on interoperability as “a necessary evil” until the convention is fully universalized and said it allowed for a balance between “the need to achieve immediate humanitarian gains and the need to continue to work alongside our coalition partners who are not yet in a position to join the Convention.”[32]

A US Department of State cable dated 21 May 2009 and made public on 1 December 2010, suggested that the UK government’s view of the convention was that, “UK pilots embedded in U.S. units could fire cluster munitions,” but US officials conceded this would not be allowed under the UK legislation.[33]

Investment

The UK’s legislation does not explicitly include a prohibition on investment in, or the provision of financial services to, companies involved in the production of cluster munitions. However, in response to parliamentary questions, the government issued a Ministerial Statement on 7 December 2009 confirming that “under the current provisions of the Bill, which have been modelled upon the definitions and requirements of the convention, the direct financing of cluster munitions would be prohibited. The provision of funds directly contributing to the manufacture of these weapons would therefore become illegal.”[34]

In December 2009, the government stated that it would work to develop a code of conduct for business on investment:

The convention does not prohibit so-called indirect financing of cluster munitions. Indirect financing is therefore not within the scope of the Bill’s provisions. As such, it would not become illegal to provide funds generally to companies that manufacture a range of goods, including cluster munitions. However, aware of the humanitarian suffering caused by cluster munitions and the threat they pose to development in post-conflict areas, the Government are keen to see a complete end to cluster munitions. Due to the complex nature of indirect financing, there is a need for thorough consultation to consider the impact of any measures, and to ensure that we develop the most appropriate and effective measures to end direct financing. The Government intends to work with the financial sector, non-governmental organisations and other interested parties, to promote a voluntary code of conduct to prevent indirect financing, and if necessary would use their right to initiate legislation. We shall also review public investment guidelines to the same end.[35]

In January 2011, the government stated that “a working group has been set up to work out the problem of remote financing.”[36] In May 2011, a government official noted that “the [previous] policy announcement does not bind the current UK Government, which is considering the need to take further action on investment.”[37]

A May 2011 report by CMC-members IKV Pax Christi and Netwerk Vlaanderen on global cluster munition investment listed 12 UK-based financial institutions that still invest in cluster munitions producers.[38]

Other institutions have reported to Parliament that they do not consider investment in companies producing cluster munitions to be appropriate. The Church Commissioners of the Church of England “manage an investment portfolio, held mostly in company shares and property, to produce money to support the Church of England’s work across the country.”[39]  In a statement of 15 April 2010, the fund managed by the Commissioners was reported to stand at £5.3 billion ($8 billion).[40] In response to a parliamentary question regarding the ethical investment practices of the Commissioners, Tony Baldry, Second Church Estates Commissioner and Conservative MP, stated that, “there are a number of US companies that we have made a conscious decision not to invest in because of their involvement in cluster munitions systems.”[41]

In February 2011, a movement to boycott the UK Census over its ties to US company Lockheed Martin, a cluster munition and nuclear weapon producer, spread widely in social media.[42]

Convention on Conventional Weapons

The UK is party to the Convention on Conventional Weapons (CCW), but has not yet ratified CCW Protocol V on explosive remnants of war. The UK continued to participate in CCW deliberations on cluster munitions in 2010 and the first half of 2011.

In June 2011, the UK stated that the objective of the CCW talks on cluster munitions is, in its view, “to establish restrictions on a significant number of cluster munitions, which would have a notable humanitarian effect.” It described the desired outcome as “complementary, rather than contradictory” to the spirit of the Convention on Cluster Munitions.[43]

In September 2010, the UK described the draft chair’s text under discussion as “a mixed bag” and “complicated” with “the kind of duplicity and contradiction…that will surely keep our lawyers employed for time to come.”[44] In February 2011, the UK supported a German proposal for an immediate CCW prohibition on transfers of cluster munitions, which it called a “useful contribution” and “a move in the right direction.”[45] In March 2011, the UK supported a proposal to ban cluster munitions produced before 1980, but also noted that it would also support “a rolling ban” on cluster munitions that are more than 30 years old. It also stated its preference for no transition period to be included in the chair’s draft text.[46]

In June 2011, the UK stated that it did not agree that the CCW work to create a new protocol that would allow continued use, production, stockpiling, and transfer of cluster munitions is “somehow contrary to the letter or spirit” of its obligations under Article 21 of the Convention on Cluster Munitions to promote the norms of the convention, encourage others to join, and actively discourage the use of cluster munitions.[47]

Use, production, and transfer

The UK used cluster munitions extensively in the past: in the Falkland Islands in 1982, in Iraq and Kuwait in 1991, in the Federal Republic of Yugoslavia (including Kosovo) in 1999, and in Iraq in 2003.[48]

The UK has also produced, exported, and imported cluster munitions.

The UK produced several variants the BL-755 bomb with 147 submunitions, and has also produced the L20A1 artillery projectile with 49 M85 dual purpose improved conventional munition (DPICM) submunitions under license from Israel Military Industries.[49]

BL-755 cluster bombs were exported to, or otherwise ended up being possessed by, the following countries: Belgium, Bosnia and Herzegovina (BiH), Croatia, Ethiopia, Germany, India, Iran, Italy, Montenegro, the Netherlands, Nigeria, Oman, Pakistan, Portugal, Saudi Arabia, Switzerland, Thailand, United Arab Emirates, and the former Federal Republic of Yugoslavia.[50]

The UK also imported cluster munitions from the US: M483 155mm artillery projectiles; M26 rockets for Multiple Launch Rocket System (MLRS); M261 Multi-Purpose Submunition rockets used in the CRV-7 air-to-surface launchers; and CBU-87 cluster bombs.[51]

Stockpiling and destruction

In its Article 7 report of April 2011, the UK declared a stockpile of at least 190,828 cluster munitions containing 38,758,898 submunitions, which was withdrawn from service by 30 May 2008.[52]  As of 31 March 2011, the UK had destroyed 22,153,148 submunitions, comprising 57% of its stockpile. The UK noted that as of 31 March 2011, 67,500 cluster munitions containing 16.6 million submunitions remain to be destroyed.[53]

Cluster munitions stockpiled by the UK[54]

The UK stockpile is being destroyed at locations in Germany, Italy, and Sweden. The HE M483A1 were destroyed by Esplodenti Sabino in Casalbordino, Italy. The BL-755 bombs were destroyed by Spreewerk in Lubben, Germany. The CRV-7 M73 were destroyed by the Nordic Ammunition Group (NAMMO Group) Demil Devision in Sweden. The ERBS L20A1 are being destroyed by NAMMO Buck in Pinnow, Germany. The MLRS M26 are being destroyed by Esplodenti Sabino in Italy, with subcontractors Spreewerk (Germany) and Noceto (Italy). [55]

In June 2011, the UK stated that 60% of its stockpile had been destroyed and the remainder would be destroyed by 2013.[56] 

Retention for training

In its Convention on Cluster Munitions Article 7 report, the UK stated that it is retaining 956 explosive submunitions of four different types for the development of countermeasures, research on rendering safe procedures, “defeat of armour” demonstrations and other projects: 576 KV-1 (from the M87 Orkan), 244 M42 (from the M483A1), 96 M46 (from the M483A1), and 40 Alpha bomblet submunitions (from the CB470).[57]

According to the report, 12 M42 explosive submunitions were consumed for these purposes as of 31 March 2011. [58]

In June 2011, the UK stated that it did not intend to retain any additional cluster munitions from its current holdings and reiterated that it would always retain what it considers the minimum number absolutely necessary.[59]

The “Starstreak” missile

Questions had been raised about the status of the “Starstreak” missile, manufactured by Thales Air Defence Limited (TADL) in the UK, in relation to the Convention on Cluster Munitions and the UK’s Cluster Munition (Prohibitions) Act.  Some of the literature produced by the manufacturer asserted a utility for the weapon against ground-based targets, which would seem to contradict its exclusion from the Convention on Cluster Munitions on the basis that it has been “designed exclusively for an air defence role.”[60]

In 2010, when the UK Ministry of Defence was asked, under the Freedom of Information Act, whether it had received any information suggesting that the Starstreak has “a capability” against ground-based targets it replied: “As far as we have been able to ascertain, we have received no information suggesting that the A5 missile, known by Thales Air Defence Ltd (TADL) as Starstreak II, has a capability against ground based targets.…We have, however, seen some articles in the trade press and on the internet reporting a ground based capability. Having discussed the matter with TADL, it is our understanding that confusion may have arisen from a briefing they gave, as it covered several different systems with differing capabilities.”[61]

In May 2011, the UK Ministry of Defence provided more information on their analysis of Starstreak.

Starstreak HVM (High Velocity Missile) is manufactured by Thales Air Defence Limited.  It was designed exclusively for an air defence role to meet the UK MOD’s [Ministry of Defence’s] requirement for Very Short Range Air Defence (VSHORAD). In accordance with Article 2.2(a) of the Convention on Cluster Munitions it is therefore not a cluster munition - for the purposes of either the Convention or the Cluster Munitions (Prohibitions) Act 2010.  This sole air defence role is reflected in the MOD’s Concept of Employment and Concept of Use of Starstreak.

The Starstreak I HVM (High Velocity Missile) entered into service before 1998 and as such does not require a legal review unless it is subject to substantial modification. MOD trials were, however, conducted on the Starstreak I missile system in 2006 to investigate a broader utility of Starstreak in a ground to ground reversionary role, purely as a weapon of last resort, and for self defence only.  This concept of a wider utility was subsequently rejected and no additional secondary roles for Starstreak were adopted.  No other trials of Starstreak ground to ground capability have been conducted by the MOD, including on Starstreak II.

Prior to the 2008 Convention on Cluster Munitions coming into force, Thales had marketed Starstreak as a multi-role system, but this ceased with the introduction of the Convention.  Unfortunately it takes time to redact such capability from the manufacturer’s marketing media and this has served to create an unfortunate misclassification.  Starstreak was designed initially, and exclusively, for an air defence role.  It will continue to be marketed as an air defence only system by Thales on a variety of launch platforms including the LML (Lightweight Multiple Launcher) and the MMS (Multi-Mission System).[62]

Cluster Munition Remnants

In its Article 7 report, the UK states that “there are no UK areas contaminated by cluster munitions or explosive sub-munitions.”[63] However, there is a small residual threat from cluster munition remnants on the Falklands Islands as a result of use of BL-755 cluster bombs by the UK during the 1982 armed conflict. Clearance operations by the UK in 2009–2010 across four areas encountered and destroyed two unexploded submunitions.[64]

In February 2009, in a letter to Landmine Action, the Ministry of Defence stated the following:

According to historical records either 106 or 107 Cluster Bomb Units (CBU) were dropped by British Harriers and Sea Harriers during the conflict. Each CBU contains 147 BL-755 submunitions and using the higher CBU figure (107), a total of 15,729 sub-munitions were dropped. Using a 6.4% failure rate assessed during in-service surveillance over 15 years, we would estimate that 1,006 would not explode. Given that 1,378 BL-755s were cleared in the first year after the conflict and that a further 120 have been found and disposed of since (totalling 1,498), clearly there was a slightly higher failure rate. Even if the rate had been closer to 10% and 1,573 had failed, we can only estimate that some 70 remain but that due to the very soft nature of the peat found on the islands, many of these will have been buried well below the surface. We believe that the majority of those remaining are now contained within existing minefields and these will be cleared in due course.[65]

Compliance with Article 4 of the Convention on Cluster Munitions

Under Article 4 of the Convention on Cluster Munitions, the UK is required to destroy all cluster munition remnants in areas under its jurisdiction or control as soon as possible but not later than 1 November 2020.

In Article 7 report, the UK declared no areas under its jurisdiction or control that contained cluster munition remnants.[66] One BL-755 unexploded submunition was found and destroyed by clearance operations in December 2009.[67] A second submunition was found during clearance operations in 2010.[68] According to information provided by the Ministry of Defence in 2009, no unexploded submunitions were cleared in 2008, but an unexploded BL755 submunition was destroyed in November 2007.[69]