[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] 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.

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

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

[8] 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.

[9] 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.

[10] “Implementation of the Convention on Cluster Munitions,” UNGA Resolution 75/62, 7 December 2020.

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

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

[13] “Situation of human rights in the Syrian Arab Republic,” UNGA Resolution 75/193, 16 December 2020. The US voted in favor of similar resolutions related to Syria in 2013–2019.

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

[15] 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.

[16] 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.

[17] 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.

[18] 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.

[19] 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.

[20] 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.

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

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

[23] 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 yearswere 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.

[24] 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.

[25] “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.

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

[27] Marcus Weisgerber, “Northrop Grumman says it will walk away from cluster bomb contract,” Defense One, 28 January 2021.

[28] Future decisions on this program are scheduled to occur by fiscal year 2024. Department of Defense Fiscal Year (FY) 2022 Budget Estimates, May 2021, “Army Justification Book Volume 2a of 2, Research, Development, Test & Evaluation, Army RDT&E − Volume II, Budget Activity 4,” pp. 180–187.

[29] 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.”

[30] Department of Defense Fiscal Year (FY) 2022 Budget Estimates, May 2021, “Army Justification Book Volume 1 of 1, Procurement of Ammunition, Army,” pp. 333–334.

[31] 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.

[32] See, “US Department of Defense Contract Announcement, No. CR-104-15,” 3 June 2015; and “US Department of Defense Contract Announcement, No. CR-095-16,” 19 May 2016.

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

[34] Department of Defense Fiscal Year (FY) 2022 Budget Estimates, May 2021, “Justification Book of Missile Procurement, Army,” pp. 109–118.

[35] 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).

[36] 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.

[37] 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.

[38] 32 CBU-105 announced in 2012. Department of Defense, ‘‘Arms Sales Notification,’’ Transmittal No. 12-66, 31 December 2012.

[39] 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.

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

[41] 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.

[42] 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.

[43] 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.

[44] 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.

[45] 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.

[46] 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.

[47] 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.

[48] 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.

[49] 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.

[50] 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).

[51] 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.

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

[53] Department of Defense Fiscal Year (FY) 2022 Budget Estimates, May 2021, “Army Justification Book Volume 1 of 1, Procurement of Ammunition, Army,” pp. 637–642.

[54] 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.

[55] 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.

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

[57] 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.

[58] “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.

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

[60] “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.

[61] 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.