United States

Cluster Munition Ban Policy

Last updated: 24 November 2020

Ten-Year Review: Non-signatory the United States (US) has not taken any steps to join the Convention on Cluster Munitions, as it sees military utility in cluster munitions. The US has never participated in a meeting of the convention, even as an observer. It abstained from voting on a key United Nations (UN) resolution promoting the convention in December 2019.

In November 2017, the US reversed a long-standing policy requiring its forces to not use cluster munitions that result in more than 1% unexploded ordnance (UXO) after 2018. The US last used cluster munitions during the 2003 invasion of Iraq, with the exception of a single attack in Yemen in 2009. The US last budgeted funds to produce new cluster munitions in 2007 and since then has only manufactured them for foreign sales. Research and development programs for the replacing of artillery-delivered submunitions commenced in 2018.

Policy

The United States of America has not acceded to the Convention on Cluster Munitions. The US has not taken any steps to join the convention because, in its view, cluster munitions provide “a vital military capability.”[1]

National policy

In November 2017, the Trump administration replaced a July 2008 Department of Defense policy directive on cluster munitions issued under President George W. Bush.[2] The Trump policy abandons the requirement that the US no longer use cluster munitions that result in more than a 1% UXO rate by the end of 2018.[3]

The 2017 policy requires the Department of Defense to “program for capabilities to replace cluster munitions” that do not meet the 1% UXO standard.[4] However, to “meet immediate warfighting demand” the policy gives combatant commanders (the heads of various combatant commands with geographic and other areas of responsibility) the authority to approve employing (using) cluster munitions “that do not meet the standards prescribed by this policy for procuring new cluster munitions” as well as to accept transfers of those cluster munitions.[5]

Trump administration officials have not commented on cluster munitions or the 2017 policy since then. The 2017 policy roll-back was widely condemned.[6] A March 2018 Government Business Council report criticized the 2017 policy for exposing the US to “international backlash” and hampering its “ability to remain on the cutting edge of defense technology.”[7]

Following the 2017 policy, the Congressional Research Service recommended in February 2019 that the US Congress consider “how this U.S. policy reversal on the military use of cluster munitions will be perceived by the international community.”[8]

US and the Convention on Cluster Munitions

The US did not participate, even as an observer, in the 2007–2008 Oslo Process that resulted in the Convention on Cluster Munitions.[9] However, US Department of State cables made public by Wikileaks show how the US attempted to influence its allies, partners, and other states during the process in order 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).[10]

The US has never participated in a meeting of the Convention on Cluster Munitions, even as an observer. The US was invited, but did not attend, the convention’s Ninth Meeting of States Parties in Geneva in September 2019.

In December 2019, the US abstained from the vote on a UN General Assembly (UNGA) resolution that urged states outside the Convention on Cluster Munitions to “join as soon as possible.”[11] The US has abstained from voting on the annual UNGA resolution promoting the convention since it was first introduced in 2015. In 2015, the US explained that it considers the resolution to apply “only to those States Parties to this convention.”[12] In October 2019, the US again stated that it does not accept that the convention “represents an emerging norm.”[13]

However, the US has voted in favor of UNGA resolutions condemning the use of cluster munitions in Syria, most recently in December 2019.[14]

In previous years, Senators Dianne Feinstein and Patrick Leahy have introduced legislation encouraging the US to accede to the Convention on Cluster Munitions as soon as possible.[15]

The US is party to the Convention on Conventional Weapons (CCW), but has not proposed further CCW deliberations on cluster munitions since States Parties to the CCW failed to adopt a draft protocol on cluster munitions in 2011.[16] This effectively concluded CCW consideration on the matter, leaving the Convention on Cluster Munitions as the sole international instrument dedicated to ending the suffering caused by these weapons.

The US is not a party to the Mine Ban Treaty, but since 2009 has participated as an observer in Mine Ban Treaty meetings.

Use

Under the 2017 policy, any US cluster munition use that exceeds the 1% UXO rate must be approved by a combatant commander.[17]

The last US use of cluster munitions was during Operation Iraqi Freedom in 2003, with the exception of a single attack in Yemen in December 2009.[18] Neither the US nor the Yemeni government has publicly denied US responsibility for the 2009 attack.[19]

In 2016, the US Air Force (USAF) said it had not used cluster munitions in the air war against the Islamic State during operations in Iraq, Syria, and Libya.[20] The US provided logistical and other support to a Saudi Arabia-led coalition of states that used US-supplied cluster munitions in Yemen in 2015–2017.

The US used cluster munitions in several conflicts in the past: 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 (2001–2002); Iraq (2003); and Yemen (2009).[21]

In December 2019, the New York Times published an investigation documenting fratricidal cluster munition deaths among US troops in Iraq and other countries as well as at US training ranges.[22]

Production

The US Department of Defense could not confirm whether the US still produces cluster munitions as of December 2018, telling a US media outlet that it “is not aware of any U.S. industry production of cluster munitions.”[23]

Since 2005, all submunitions produced by the US must have a failure rate of less than 1%, according to a 2001 policy issued by Secretary of Defense William Cohen.[24] The US last budgeted funds to produce new cluster munitions in 2007.[25] Since then, it has manufactured cluster munitions only for each foreign sales order in accordance with the delivery schedule.

The US government has not taken any steps to prohibit US production of cluster munitions since 2016, when the sole remaining US producer, Textron Systems Corporation, announced an end to its production.[26] In a filing with the Securities and Exchange Commission on 30 August 2016, Textron said it discontinued production of the CBU-105 cluster bomb because of reduced orders, stating that “the current political environment has made it difficult” to obtain sales approvals.[27]

In the past, before the adoption of the Convention on Cluster Munitions, the US licensed the production of cluster munitions with Japan, the Netherlands, Pakistan, South Korea and Turkey.

Alternatives to cluster munitions

The USAF, the US Army, and the Office of the Secretary of Defense, are continuing research and development activities at the applied research level to develop alternatives to cluster munitions.[28]

Lockheed Martin is producing the Guided Multiple Launch Rocket System-Alternate Warhead (GMLRS-AW) for the US Army.[29] The GMLRS-AW has been manufactured for foreign military sales.[30] In April 2020, Lockheed Martin vice president Jarrod P. Agen told media that the company “does not develop or produce cluster munitions, as defined in the 2008 Convention on Cluster Munitions.”[31]

The US Army initially awarded a US$71 million contract in April 2018 to acquire 1,250 155mm BONUS artillery projectiles from a company in Sweden.[32] The BONUS projectile contains two sensor-fuzed submunitions and is not prohibited by the Convention on Cluster Munitions. Budget justification materials described the BONUS as “an effective bridging strategy to address critical capability gaps from the loss of DPICM and mitigates risks until the planned program of record is completed.” This procurement has been expanded multiple times, most recently in March 2020, for subsequent fiscal years, and now funds the $245 million acquisition of 3,379 projectiles to be delivered through April 2022.[33]

The US Army has funded research and development programs that aim to “provide increased battlefield lethality with reduced unexploded ordnance (UXO) compliant with the Department of Defense (DoD) cluster munitions policy” such as the “Cannon-Delivered Area Effects Munitions (C-DAEM) Program.”[34] The C-DAEM program aims to replace the current US stockpile of 155mm Dual-Purpose Improved Conventional Munitions (DPICM) “with DoD policy compliant munitions and address anti-armor and extended range capability requirements.” A total of $27.5 million was spent on C-DAEM in 2018–2020, while the fiscal year 2021 budget has requested $41 million for the program in 2021 for completion of the competitive demonstration phase.[35]

Beginning in 2018, the US spent $2.5 million testing the 155mm M999 “Advance Anti-Personnel Munition” containing M99 explosive submunitions produced by Israel Military Industries (IMI).[36] In October 2018, an IMI official told The New York Times that each M999 shell contains nine submunitions with self-destruct features.[37] More information is needed to determine if this weapon complies with the Convention on Cluster Munitions.

Transfer

Export moratorium language has been included in the annual budget each year.[38] 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 is prohibited 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.”

On 19 May 2011, the Defense Security Cooperation Agency (DSCA)—the US government agency that administers weapons transfers—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 memorandum, “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).”[39]

The last congressional sales notification for CBU-105 Sensor Fuzed Weapons was in July 2015. Congressional notifications show that the US had concluded agreements from 2008 until 2015 to sell CBU-105 to India,[40] Oman,[41] Saudi Arabia,[42] Singapore,[43] South Korea,[44] Taiwan,[45] and the United Arab Emirates (UAE).[46]

In May 2016, a senior Department of Defense official said that the end-use provision of its 2012 agreement with Saudi Arabia and “a handful of other cases” was “incomplete.”[47] The use of US-manufactured and US-supplied CBU-105 in 2015 and 2016 raised serious questions about whether the transfer requirements were being met.[48] In May 2016, the Obama administration suspended transfers of cluster munitions to Saudi Arabia after reports of their use in civilian areas in Yemen.[49]

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, Morocco, the Netherlands, Norway, Oman, Pakistan, Saudi Arabia, South Korea, Spain, Thailand, Turkey, the UAE, and the United Kingdom (UK).[50]

In 2012, Chile’s Ministry of National Defense provided information showing that Chile transferred one 250kg cluster bomb and one 500kg cluster bomb to the US in 1991.[51]

Stockpiling

A 2004 Department of Defense report to the US Congress detailed a stockpile of 5.5 million cluster munitions of 17 different types containing about 728.5 million submunitions, as listed in the following table. That number does not appear to be a full account of cluster munitions available to US forces, as it apparently does not include US cluster munitions stocks located in foreign countries or stockpiled as part of the War Reserve Stocks for Allies (WRSA).[52]

While outdated, the 2004 list remains the most detailed public account of US cluster munition stocks.

US stockpile of cluster munitions (as of 2004)[53]

Type

Number of submunitions per munition

Munitions in active inventory

Submunitions in active inventory

Munitions in total inventory

Submunitions in total inventory

Rocket

ATACMS 1

950

1,091

1,036,450

1,304

1,238,800

ATACMS 1A

400

405

162,000

502

200,800

M26 MLRS

644

369,576

238,006,944

439,194

282,840,936

M26A1 MLRS

518

4,128

2,138,304

4,128

2,138,304

M261 MPSM

9

74,591

671,319

83,589

752,301

Total

449,791

242,015,017

528,717

287,171,141

Projectile

M449 APICM

60

27

1,620

40

2,400

M449A1 APICM

60

24

1,440

49

2,940

M483/M483A1

88

3,336,866

293,644,208

3,947,773

347,404,024

M864

72

748,009

53,856,648

759,741

54,701,352

M444

18

30,148

542,664

134,344

2,418,192

Total

4,115,074

348,046,580

4,841,947

404,528,908

Bomb

Mk-20 Rockeye

247

58,762

14,514,214

58,762

14,514,214

CBU-87 CEM

202

99,282

20,054,964

99,282

20,054,964

CBU-103 CEM WCMD

202

10,226

2,065,652

10,226

2,065,652

CBU-97 SFW

10

214

2,140

214

2,140

CBU-105 SFW WCMD

10

1,986

19,860

1,986

19,860

CBU-105 SFW P3I WCMD

10

899

8,990

899

8,990

AGM-154A JSOW-A

145

669

97,005

1,116

161,820

Total

172,038

36,762,825

172,485

36,827,640

 

Grand Total

4,736,903

626,824,422

5,543,149

728,527,689

 

Stockpile destruction

All cluster munition stocks that exceed or do not satisfy operational planning requirements were removed by the service and combatant commands from the active inventory by June 2009.

The now-reversed 2008 policy required that the Department of Defense relinquish more than 99.9% of its cluster munition stocks by the end of 2018, as only the CBU-105 Sensor Fuzed Weapon met the less than 1% UXO requirement.

According to a March 2019 Department of Defense budget request, “Currently, there are approximately 93,766 tons of cluster munitions” in the demilitarization account known as ‘B5A.’” The document states that an additional 203,024 tons of cluster munitions remain in CONUS outside the B5A, while another 91,362 cluster munitions are “OCONUS” or not scheduled for destruction.

Recent funding for the destruction of cluster munitions (US$ million)[54]

Type

Previous Years

FY 2018

FY 2019

FY 2020

FY 2021

(request)

Cluster munitions (non-rockets)

331.1

14.2

20.8

23.3

22.9

Cluster munition rockets

212.7

15.4

8.3

4.9

7.9

Note: FY=Fiscal year.

Previously, US budget materials released in February 2018 stated that there were “approximately 122,083 tons of cluster munitions in the demil stockpile” and another “188,787 tons remaining in [the continental US] outside the B5A and another 127,972 [outside the continental US].”[55]

US company General Dynamics Ordnance and Tactical Systems (GDOTS) claims to be “the only US company experienced with automated disposal of Cluster Munitions” and states that it operates “the only commercial submunitions demilitarization facility” in the US.[56] In 2013 and 2015, the company was awarded contracts to demilitarize US cluster munitions and other weapons.[57] In 2014, GDOTS completed the destruction of Canada’s stockpile of 12,597 M483A1 projectiles and 1,108,536 DPICM submunitions at its facility outside Joplin, Missouri.[58]

Since the 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 at the Letterkenny Munitions Center in Pennsylvania. The army requested $109 million for the destruction of 98,904 M26 MLRS rockets from fiscal year 2007 to fiscal year 2012.[59]

Foreign stockpiling and transit

The US appears to have removed its cluster munition stocks from the territories of at least two States Parties to the Convention on Cluster Munitions. The US removed its stockpiled cluster munitions from Norway in 2010,[60] while the UK announced in 2010 that there were now “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”[61]

The US has stockpiled and may continue to store cluster munitions in countries including Convention on Cluster Munitions States Parties Afghanistan, Germany, Italy, Japan, and Spain, and in non-signatories Israel, Qatar, and perhaps Kuwait. This information is contained in the following US Department of State cables released by Wikileaks in 2010–2011:

  • In Afghanistan, the “United States currently has a very small stockpile of cluster munitions,” according to a December 2008 cable.[62]
  • Germany has engaged with the US on the matter of cluster munitions that may be stockpiled by the US in Germany, according to a December 2008 cable.[63]
  • In Israel, US cluster munitions are “considered to be under U.S. title” until they are transferred from the WRSA for use by Israel in wartime.[64]
  • Italy, Spain, and Qatar are identified in a November 2008 cable as “states in which the US stores cluster munitions,” even though apparently, Qatar “may be unaware of US cluster munitions stockpiles in the country.”[65]
  • 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,” according to a December 2008 cable.[66]
  • The US may store clusters munitions in Kuwait, according to a May 2007 cable.[67]


[1] Josh Rogin, “The Trump administration cancels a plan to curtail the use of cluster bombs,” The Washington Post, 30 November 2017. The 30 November 2017 policy expresses the Department of Defense view of cluster munitions as “legitimate weapons with clear military utility…providing distinct advantages against a range of threats in the operating environment.” It claimed that “the use of cluster munitions may result in less collateral damage than the collateral damage that results from the use of unitary munitions alone.”

[2] During his administration, President Barack Obama never amended the Bush policy directive on cluster munitions.

[3] The memorandum on Department of Defense policy is dated 19 June but was not formally released until 9 July 2008. Secretary of Defense Robert M. Gates, “Memorandum for the Secretaries of the Military Departments, Subject: DOD Policy on Cluster Munitions and Unintended Harm to Civilians,” 19 June 2008.

[4] Deputy Secretary of Defense Patrick Shanahan, “Memorandum for the Secretaries of the Military Departments, Subject: DoD Policy on Cluster Munitions,” 30 November 2017.

[5] The 2017 policy stipulates that cluster munitions procured by the US in future must meet at least one of three criteria: a) Not more than one percent of submunitions or submunition warheads, once properly dispensed from the non-reusable canister or delivery body, fail to detonate; b) Each submunition or submunition warhead has [four key] characteristics; and c) The munition is not prohibited by the Convention on Cluster Munitions as of the date of this policy. The four key characteristics are 1) Each submunition or submunition warhead is equipped with an internal power source that is essential for arming and detonation. The submunition or submunition warhead is not designed to be detonated by mechanical means alone; 2) Each submunition or submunition warhead is equipped with at least one automatically functioning, electronic self-destruct mechanism that is in addition to the primary arming and detonation mechanism that is designed to destroy the submunition or submunition warhead on which it is equipped, if the submunition or submunition warhead is not detonated by the primary arming and detonation mechanism; 3) Each submunition or submunition warhead that does not detonate or self-destruct is, once armed, rendered inoperable in 15 minutes or less by means of the irreversible exhaustion of a component (e.g., power source) that is essential to the operation of the submunition or submunition warhead; and 4) Each submunition or submunition warhead that does not arm after being deployed from the non-reusable canister or delivery body cannot be subsequently armed or detonated by incidental handling, contact, or movement. Deputy Secretary of Defense Patrick Shanahan, “Memorandum for the Secretaries of the Military Departments, Subject: DoD Policy on Cluster Munitions,” 30 November 2017.

[6] Senators Dianne Feinstein of California called the 2017 cluster munition policy “unbelievable” and “a shame,” while Patrick Leahy of Vermont, criticized the Pentagon for “perpetuating the use of an indiscriminate weapon.” See, Office of US Senator for California Dianne Feinstein, “Feinstein Opposes Pentagon’s Reversal of Cluster Munitions Policy,” 30 November 2017. Human Rights Watch (HRW), chair of the CMC, condemned the 2017 policy and called the US “embrace” of “notoriously unreliable cluster munitions…a gigantic step backward.” See, HRW, “US Embraces Cluster Munitions,” 1 December 2017. Since 2014, HRW has chaired the US Campaign to Ban Landmines and also US non-governmental organization (NGO) activities against cluster munitions on behalf of the CMC.

[7] The report was sponsored by Orbital ATK, a US company that produced a key component for US cluster munitions until 2016. Igor Geyn, “Modernizing the U.S. Munitions Arsenal,” Government Business Council, 23 March 2018.

[8] Congressional Research Service, “Cluster Munitions: Background and Issues for Congress,” 22 February 2019.

[9] For details on US policy and practice regarding cluster munitions through early 2009, see HRW and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 251–260.

[10] The diplomatic cables also showed that 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. As of July 2012, Wikileaks had made public a total of 428 cables relating to cluster munitions originating from 100 locations for the period from 2003 to 2010. Previously, Cluster Munition Monitor 2011 reviewed a total of 57 US diplomatic cables on cluster munitions from 24 locations, released by Wikileaks as of early August 2011.

[11]Implementation of the Convention on Cluster Munitions,” UNGA Resolution 74/62, 12 December 2019.

[12] Statement of the US, UN General Assembly (UNGA) First Committee on Disarmament and International Security, New York, 4 November 2015.

[13] Statement of the US, UNGA First Committee on Disarmament and International Security, New York, 6 November 2019.

[14]Situation of human rights in the Syrian Arab Republic,” UNGA Resolution 74/169, 18 December 2019. The US voted in favor of similar resolutions related to Syria in 2013–2018.

[15] See, for example, S.897 – Cluster Munitions Civilian Protection Act of 2017, introduced to Congress by Senator Dianne Feinstein on 7 April 2017.

[16] Throughout the CCW negotiations, the US supported the main tenets of the proposed protocol, including an exemption for cluster munitions meeting a manufacturer-stated 1% failure rate and several optional safeguards; a prohibition on use and transfer of all cluster munitions produced before 1980; and a 12-year transition period during which states could continue to use all cluster munitions.

[17] Combatant Commander is the title of a major military leader within the US Armed Forces, either of a large geographical region or of a particular military function, formerly known as a commander-in-chief.

[18] The last time the US used cluster munitions was on 17 December 2009, when at least five TLAM-D cruise missiles, each containing 166 BLU-97 submunitions, were used in attack on an “alleged al-Qa’ida training camp” at al-Ma‘jalah in Abyan governorate in southern Yemen that killed 55 people, including 14 women and 21 children. The remnants in the photographs included images of the propulsion system, a BLU-97 submunition, and the payload ejection system, the latter of which is unique to the TLAM-D cruise missile. See, Amnesty International, “Images of Missile and Cluster Munitions Point to US Role in Fatal Attack in Yemen,” 7 June 2010; and “U.S. missiles killed civilians in Yemen, rights group says,” CNN, 7 June 2010. Cluster munition remnants were never cleared and have killed four more civilians and wounded 13 others since the attack. The most recent casualty was on 24 January 2012, when a boy brought home a BLU-97 submunition that exploded, killing his father and wounding the boy and his two brothers. Those affected by the cluster munition strike on al-Ma‘jalah have not received any compensation for the casualties caused or damaged property. See, HRW, “Between a Drone and Al-Qaeda,” 22 October 2013.

[19] In December 2010, Wikileaks released a US Department of State cable dated 21 December 2009 that acknowledged the US had a role in the 17 December strike. The cable said that Yemeni government officials “continue to publicly maintain that the operation was conducted entirely by its forces, acknowledging U.S. support strictly in terms of intelligence sharing. Deputy Prime Minister Rashad al-Alimi told the Ambassador on December 20 that any evidence of greater U.S. involvement, such as fragments of U.S. munitions found at the sites, could be explained away as equipment purchased from the U.S.” See, “ROYG [Republic of Yemen Government] looks ahead following CT operations, but perhaps not far enough,” US Department of State cable SANAA 02230 dated 21 December 2009, released by Wikileaks on 4 December 2010.

[20] Thomas Gibbons-Neff, “Why the last U.S. company making cluster bombs won’t produce them anymore,” The Washington Post, 2 September 2016. A USAF Central Command spokesperson said in July 2016, “We have not employed cluster munitions in Operation Inherent Resolve. This includes both U.S. and coalition aircraft.” Email from Thomas Gibbons-Neff, Writer, The Washington Post, 27 July 2016. See also, Thomas Gibbons-Neff, “Despite denial, ‘growing evidence’ Russia is using cluster bombs in Syria, report says,” The Washington Post, 28 July 2016.

[21] For historical details on the use of cluster munitions by the US, see, ICBL, Cluster Munition Monitor 2010 (Ottawa: Mines Action Canada, October 2010), p. 262. See also the Timeline of Use contained in Cluster Munition Monitor 2018’s Ban Policy Overview.

[22] John Ismay, “America’s Dark History of Killing Its Own Troops With Cluster Munitions,” The New York Times, 4 December 2019.

[23] Stéphanie Fillion, “The US, Reversing Course on Cluster Bombs, Is Testing New Ones in Israel,” PassBlue, 28 December 2018.

[24] Secretary of Defense William Cohen, “Memorandum for the Secretaries of the Military Departments, Subject: DoD Policy on Submunition Reliability (U),” 10 January 2001. In other words, submunitions that reached “full rate production,” i.e. production for use in combat, during the first quarter of the fiscal year 2005, were required to meet the new standard. According to a Pentagon report to Congress on cluster munitions in October 2004, submunitions procured in past years were exempt from the policy, but, “Future submunitions must comply with the desired goal of 99% or higher submunition functioning rate or must receive a waiver.” Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Report to Congress: Cluster Munitions,” October 2004, p. ii.

[25] For details on US production of cluster munitions in 2005–2007, see, HRW and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 257–258; and ICBL, Cluster Munition Monitor 2010 (Ottawa: Mines Action Canada: October 2010), p. 263.

[26]Last US cluster-bomb maker to cease production,” AFP, 1 September 2016. A rocket motor for the BLU-108 canisters contained in the CBU-105 was manufactured by Orbital ATK (formerly Alliant Techsystems) of Hopkins, Minnesota, but only for that purpose. The CBU-105 was assembled at McAlester Army Ammunition Plant in Oklahoma. Kevin Jackson, “Visit brings flashbacks for Army energy executive,” AMC, 22 April 2014.

[27] Marjorie Censer, “Textron to discontinue production of sensor-fuzed weapon,” Inside Defense, 30 August 2016.

[28] See for example, USAF, “Research, Development, Test, and Evaluation Budget Item Justification, Applied Research: Program Element Number PE 0602602F: Conventional Munitions,” February 2011, p. 6; US Army, “Research, Development, Test, and Evaluation Budget Item Justification, Applied Research: Program Element Number 0602624A: Weapons and Munitions Technology,” February 2011, p. 5; and Office of the Secretary of Defense, “Research, Development, Test, and Evaluation Budget Item Justification, Applied Research: Program Element Number 0602000D8Z: Joint Munitions Technology,” February 2011, p. 13.

[29] According to budget justification materials from March 2019, “GMLRS Alternative Warhead (AW) was developed as a non-cluster munition to engage the same target sets as DPICM.” The Department of Defense’s 2017 budget includes funds to support the acquisition of 1,068 GMLRS-AW, with a total procurement objective of 43,560 warheads. Department of Defense, “Fiscal Year (FY) 2017 President's Budget Submission,” February 2016; see also, “U.S. Army Awards $1.13 Billion Contract to Lockheed Martin for GMLRS Production, Support Equipment,” iConnect007, 3 April 2019. According to budget justification materials from February 2020, the project will be completed in 2020 and will not be awarded further funding. Department of Defense, “Fiscal Year (FY) 2021 President’s Budget Submission,” February 2020.

[31] Tim Gray, “How to invest in the Military-Industrial Complex,” The New York Times, 15 April 2020.

[32] Department of the Army, “Justification Book of Procurement of Ammunition, Army FY19 Procurement of Ammunition, Army,” pp. 329–330.

[33] Department of the Army, “Justification Book of Procurement of Ammunition, Army FY2021 Procurement of Ammunition, Army,” pp. 343–347. The project was expanded initially expanded in March 2019 for a total of 2,274 projectiles at a total cost of $186 million. Department of the Army, “Justification Book of Procurement of Ammunition, Army FY2020 Procurement of Ammunition, Army,” pp. 341–349 and 312.

[36] Department of the Army, “Weapons and Munitions Engineering Development: System Development & Demonstration, Program Element Number: 0604802A,” February 2018, pp. 87–92. The US has not since spent further funds testing the system and did not request any funding for FY2021.

[37] John Ismay, “With North Korean Threats Looming, the U.S. Army Pursues Controversial Weapons,” The New York Times Magazine, 30 October 2018.

[38] Omnibus Appropriations Act, 2009 (P.L. 111-8). The same export moratorium language has been included in the annual Consolidated Appropriations Act since then. See, Consolidated Appropriations Act, 2020 (p. 346).

[39] It also stated that the CBU-107 Passive Attack Weapon, which contains non-explosive metal rods, is not captured by the ban. DSCA, “Guidance on the Sale of Cluster Munitions, DSCA Policy 11-33,” Memorandum, Washington, DC, 19 May 2011. An additional memorandum aimed at increasing oversight of sales was issued in 2016. See, DSCA, “Revision of the Mandatory Note for Sales of Cluster Munitions with Submunitions with a Confirmed 99% or Higher Tested Rate, DSCA Policy 16-29, E-Change 313,” Memorandum, Washington, DC, 23 May 2016.

[40] 510 CBU-105 announced in 2008 for estimated $375 million. DSCA press release, “India – CBU-105 Sensor Fuzed Weapons,” Transmittal No. 08-105, 30 September 2008.

[41] 32 CBU-105 announced in 2012. Department of Defense, ‘‘Arms Sales Notification,’’ Transmittal No. 12-66, 31 December 2012.

[42] 1,300 CBU-105 announced in 2010 and 404 CBU-105 in 2011. DSCA press release, “Saudi Arabia – F-15SA Aircraft,” Transmittal No. 10-43, 20 October 2010. The completion date for this transfer was the end of 2015. “US Department of Defense Contract Announcement, No. 593-13,” 20 August 2013; DSCA press release, “Saudi Arabia – F-15SA Aircraft,” Transmittal No. 10-43, 20 October 2010. The completion date for this transfer was the end of 2015; “US Department of Defense Contract Announcement, No. 593-13,” 20 August 2013; and DSCA press release, “Saudi Arabia – CBU-105 Sensor Fuzed Weapons,” Transmittal No. 10-03, 13 June 2011.

[43] Three CBU-105 announced in 2014. Department of Defense, ‘‘Arms Sales Notification,’’ Transmittal No. 13-67, 21 January 2014.

[44] 367 CBU-105 announced 2012 and two CBU-105 in 2015; DSCA press release, “Republic of Korea – CBU-105D/B Sensor Fuzed Weapons,” Transmittal No. 12-23, 4 June 2012; and Department of Defense, ‘‘Arms Sales Notification,’’ Transmittal No. 15-33, 21 July 2015.

[45] 64 CBU-105 announced in 2011. These were to be included as associated parts in the sale of F-16A/B aircraft. DSCA press release “Taipei Economic and Cultural Representative Office in the United States – Retrofit of F-16A/B Aircraft,” Transmittal No. 11-39, 21 September 2011.

[46] The contract for the sale was signed in November 2007. Textron Inc., “Q2 2010 Earnings Call Transcript,” 21 July 2010; and Textron Defense Systems press release, “Textron Defense Systems and UAE Armed Forces Sign Sensor Fuzed Weapon Contract,” 13 November 2007. Also, the US Congress was notified in June 2007 of a proposed commercial sale of “technical data, defense services, and defense articles to support the sale of the Sensor Fuzed Weapons” to the UAE. Jeffrey T. Bergner, Assistant Secretary for Legislative Affairs, US Department of State to Nancy Pelosi, Speaker of the US House of Representatives (Transmittal No. DDTC 017-07), 7 June 2007.

[47] The provision states that the purchaser agree the CBU-105 “will only be used against clearly defined military targets and will not be used where civilians are known to be present” but failed to include the rest of the legislatively-mandated phrase “or in areas normally inhabited by civilians.” The official said the Department of Defense was pursuing an amendment to the agreement to “remedy this specific error.” Letter from Brian P. McKeon, Principle Deputy Under Secretary of Defense, to Senator Patrick Leahy, 20 May 2016.

[48] HRW documented six instances of CBU-105 use in Yemen by the Saudi Arabia-led coalition in 2015 and 2016. In at least three attacks, it found that some submunitions or “skeet” did not disperse from the BLU-108 canister or dispersed but did not explode, failing to function as intended and exceeding the 1% UXO rate. HRW, “Yemen: Saudis Using US Cluster Munitions,” 6 May 2016.

[49] According to Foreign Policy, a senior US official said the administration acknowledged reports that the weapons had been used “in areas in which civilians are alleged to have been present or in the vicinity,” and added, “We take such concerns seriously and are seeking additional information.” John Hudson, “White House blocks transfer of cluster bombs to Saudi Arabia,” Foreign Policy, 27 May 2016.

[50] US-supplied cluster munitions have been used in combat by Colombia, by Israel in Lebanon and Syria, by Morocco in Western Sahara and Mauritania, by the UK and the Netherlands in the former Yugoslavia, by Saudi Arabia on Yemen, and by the UK in Iraq. In July 2013, mine clearance operators in Yemen shared photographic evidence with the Monitor of cluster munition remnants, including several types of US-manufactured submunitions, in Saada governorate in northwestern Yemen near the border with Saudi Arabia. The contamination apparently dates from conflict in 2009–2010 between the government of Yemen and rebel Houthi forces, but it is not possible to determine definitively the actor responsible for the use.

[51] Monitor notes on Chilean Air Force document signed by Chair of the Joint Chief of Staff of the Air Force, “Exports of Cluster Bombs authorized in the years 1991–2001,” dated 23 June 2009, taken during Monitor meeting with Juan Pablo Jara, Desk Officer, Ministry of National Defense, Santiago, 11 April 2012.

[52] The 2004 report lists 626,824,422 submunitions in the “Active Inventory” and 728,527,689 in the “Total Inventory.” Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Report to Congress: Cluster Munitions,” October 2004. Under the WRSA program, munitions are stored in foreign countries, but kept under US title and control, then made available to US and allied forces in the event of hostilities. In 1994, the stockpile, including WRSA, consisted of 8.9 million cluster munitions containing nearly one billion submunitions. See, US Army Material Systems Analysis Activity, “Unexploded Ordnance (UXO) Study,” April 1996.

[53] Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Report to Congress: Cluster Munitions,” October 2004. This accounting appears to exclude holdings of TLAM-D cruise missiles, a weapon found on some US Navy surface vessels and submarines, which deliver BLU-97 submunitions. US Navy Fact File, “Tomahawk Cruise Missile,” 14 August 2014. The 2004 Department of Defense report also does not include artillery-fired SADARM cluster munitions (thought to number 715).

[55] Department of the Army, “Justification Book of Procurement of Ammunition, Army FY19 Procurement of Ammunition, Army,” p. 614.

[57] On 18 February 2015, GDOTS was awarded a $9.3 million contract to demilitarize 3,248 cluster bomb units and other high explosive cartridges. See, Department of Defense, “Contracts,” Release No. CR-031-15, 18 February 2015. On 29 August 2013, GDOTS was awarded a $11.7 million contract for the destruction of 49,387 rounds of improved conventional munitions and 5,192 cluster bomb units. The contract was for $11,714,490. Department of Defense, “Contracts,” No. 625-13, 29 August 2013.

[58] Canada reported in 2015 that GDOTS in Joplin was “one of two companies that were compliant from 6 bidders.” Canada also stated that its demilitarization strategy was to award a service contract through an open completion to a company that had demilitarized the same cluster munitions within the last five years, from US stockpiles. Canada Convention on Cluster Munitions Article 7 Report, Form B, 29 April 2015.

[59] Department of the Army, “Procurement of Ammunition, Committee Staff Procurement Backup Book,” February 2011, pp. 729–730.

[60] According to a Norwegian official: “After the adoption of the Convention on Cluster Munitions, Norway discussed with the USA the issue of their stockpile of cluster munitions on Norwegian territory. Norway offered to destroy these cluster munitions together with our own stockpiles. However, the USA decided to remove their stocks, something which happened during the spring of 2010.” Email from Ingunn Vatne, Senior Advisor, Department for Human Rights, Democracy and Humanitarian Assistance, Royal Norwegian Ministry of Foreign Affairs, 1 August 2012. According to a US cable dated 17 December 2008, the US stockpile in Norway was thought to consist of “2,544 rounds” of “D563 Dual Purpose Improved Conventional Munitions (DPICM)” and “2,528 rounds” of “D864 Extended Range Dual Purpose ICM.” See, “Norway Raises Question Concerning US Cluster munitions,” US Department of State cable 08OSLO676 dated 17 December 2008, released by Wikileaks on 1 September 2011.

[61] Section 8 of the UK’s legislation states that its 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.” In November 2011, UK officials stated that the only such authorization given to date was provided by former foreign secretary David Miliband to the US Department of State, to permit the US to transfer its cluster munitions out of UK territory. Statement by Jeremy Browne, Minister of State, Foreign and Commonwealth Office, House of Commons Debate, Hansard, Written Answers (London: Her Majesty’s Stationary Office, 1 November 2011), Column 589W.

[62]Demarche to Afghanistan on Cluster Munitions,” US Department of State cable 08STATE134777 dated 29 December 2008, released by Wikileaks on 2 December 2010.

[63] A US cable dated 2 December 2008 citing a discussion between US officials and Gregor Köbel, then-Director of the Conventional Arms Control Division of the German Federal Foreign Office, states, “Koebel stressed that the US will continue to be able to store and transport CM [Cluster Munitions] in Germany, noting that this should be of ‘no concern whatsoever to our American colleagues.’” See, “MFA Gives Reassurances on Stockpiling of US Cluster Munitions in Germany,” US Department of State cable 08BERLIN1609 dated 2 December 2008, released by Wikileaks on 1 September 2011. See also, “Demarche to Germany Regarding Convention on Cluster Munitions,” US Department of State cable 08STATE125631 dated 26 November 2008, released by Wikileaks on 1 September 2011.

[64]Cluster Munitions: Israeli’s Operational Defensive Capabilities Crisis,” US Department of State cable 08TELAVIV1012 dated 7 May 2008, released by Wikileaks on 1 September 2011.

[65]Demarche to Italy, Spain and Qatar Regarding Convention on Cluster Munitions,” US Department of State cable 08STATE125632 dated 26November 2008, released by Wikileaks on 30 August 2011.

[66]Consultations with Japan on Implementing the Oslo Convention on Cluster Munitions,” US Department of State cable 08TOKYO3532 dated 30 December 2008, released by Wikileaks on 1 September 2011.

[67] The cable contains the text of a message sent from a US military advisor to UAE authorities concerning a transfer of “ammunition immediately via US Air Force aircraft from Kuwait stockpile to Lebanon.” About the items to be transferred, the cable states: “The United States will not approve any cluster munitions or white phosphorus.” See, “Follow-up on UAE Response to Lebanese Request for Emergency Aid,” US Department of State cable 07ABUDHABI876 dated 24 May 2007, released by Wikileaks on 1 September 2011.