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United States

Last Updated: 10 September 2012

Cluster Munition Ban Policy

Commitment to the Convention on Cluster Munitions

Convention on Cluster Munitions status

Non-Signatory

Participation in Convention on Cluster Munitions meetings

None

Key developments

Efforts to conclude a CCW protocol on cluster munitions ended unsuccessfully.

Policy

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

In November 2011, a US official said, “The United States recognizes the important contributions of the Oslo Convention,” but said the US views a new protocol on cluster munitions in the Convention on Conventional Weapons (CCW) as the way to take “a significant step forward to eliminating the humanitarian impact of cluster munitions” as it would capture “major users and producers of cluster munitions,” the US included.[1] It is not known if the US will review its policy on cluster munitions following the failure in November 2011 of the US-led effort to conclude a CCW protocol that would have permitted continued use of cluster munitions (see the Convention on Conventional Weapons section below).

The administration of President Barack Obama has continued to implement a cluster munition policy created under President George W. Bush in July 2008. Under the 2008 Department of Defense policy, by the end of 2018 the US will no longer use cluster munitions that result in more than 1% unexploded ordnance (UXO).[2] Until 2018, any use of cluster munitions that exceed the 1% UXO rate must be approved by the Combatant Commander.[3] The 10-year transition period was seen as “necessary to develop the new technology, get it into production, and to substitute, improve, or replace existing stocks.”[4] Under the policy, all cluster munition stocks “that exceed operational planning requirements or for which there are no operational planning requirements” had to be removed from active inventories as soon as possible, but not later than 19 June 2009 and demilitarized as soon as practicable.[5]

In November 2011, the US stated that it would continue to implement the 2008 Department of Defense policy on cluster munitions as it considers cluster munitions to be “legitimate weapons,” but acknowledged the need to reduce damage to civilians and infrastructure.[6]

In April 2011, Secretary of State Hillary Clinton condemned the use of cluster munitions by forces of Moammaer Gadhafi in Misrata, Libya. In July 2012, during the first visit to Lao PDR by a US Secretary of State since 1955, Hilary Clinton reaffirmed the US commitment to eradicating UXO in the country and met with survivors of cluster munitions, but did not publicly discuss the ban on cluster munitions or acknowledge Lao PDR’s leadership of the Convention on Cluster Munitions.[7]

In March 2011, Senators Dianne Feinstein and Patrick Leahy, and Representative Jim McGovern, reintroduced the “Cluster Munitions Civilian Protection Act.” The act would limit the use and transfer of cluster munitions to those munitions that have a 99% or higher reliability rate, would prohibit use of cluster munitions in areas where civilians are known to be present and would require a cleanup plan of cluster munition remnants if the US used cluster munitions.[8]

The US did not directly participate, not even as an observer, in the diplomatic Oslo Process in 2007 and 2008 that resulted in the Convention on Cluster Munitions. However, US Department of State cables made public by Wikileaks from late 2010 through 2011 show how the US attempted to influence its allies, partners, and other states during the Oslo Process to affect the outcome of the negotiations especially with respect to the issue of “interoperability” (joint military operations among the US and States Parties to the convention).[9] The diplomatic cables also show how the US has worked extensively to influence national implementation legislation and interpretation of the Convention on Cluster Munitions, including on issues of foreign stockpiling and transit (see the Foreign stockpiling and transit section below). [10]

In a February 2009 cable, the US commended Norwegian Minister of Foreign Affairs Jonas Gahr Stoere for the “successful conclusion” of the Convention on Cluster Munitions, both “in drafting the treaty” and in “attracting over 100 signatories, including the majority of NATO allies.” Describing the Oslo Process as “an impressive effort,” the cable notes that, “U.S. concerns over interoperability were dismissed as alarmist and it took high-level USG intervention to ensure that the treaty did not harm our ability to operate with NATO allies.”[11] In at least one instance, a US cluster munition manufacturer exerted pressure on a foreign government not to sign the Convention on Cluster Munitions.[12]

The US has not participated in any meetings related to the Convention on Cluster Munitions. It was invited to, but did not attend, the convention’s Second Meeting of States Parties in Beirut, Lebanon in September 2011.

Civil society groups in the US have continued to take action in support of the Convention on Cluster Munitions.

The US has not joined the 1997 Mine Ban Treaty, but in late 2009 the Obama administration began a comprehensive review of US policy on banning antipersonnel mines and accession to the treaty. In the three years since the policy review commenced, the US has become a regular observer at Mine Ban Treaty meetings, but policy review still had not concluded as of July 2012 and an outcome was not expected until January 2013 at the earliest.

Convention on Conventional Weapons

The US is a party to the CCW and for years played a leading role in efforts to conclude a protocol on cluster munitions, but the negotiations ended unsuccessfully at the CCW Fourth Review Conference in November 2011.

The US had opposed the negotiation of a legally binding instrument in the CCW until June 2007, once the Oslo Process was underway.[13] It subsequently became one of the most ardent supporters of a CCW protocol, working intensively, including between meetings, to forge agreement on a CCW protocol on cluster munitions. It worked to develop, as it stated in September 2010, “meaningful requirements” while accommodating proposals for a transition period, opposing a deadline for stockpile destruction, and opposing a broad definition of “cluster munition victim.” By the middle of 2011, the US had secured support for a CCW cluster munition protocol from China, Russia, and India, as well as Israel, Belarus, Brazil, Greece, Romania, Slovakia, South Korea, Turkey, and Ukraine, among others.

A year before the Fourth Review Conference, the US made clear that it viewed the meeting as the “end game” for CCW negotiations on cluster munitions.[14]

The US claimed that the draft protocol would cover “over 40 percent” of its current stockpiles, amounting to a total of nearly 2.8 million cluster munitions.[15] In November 2011, the State Department Legal Advisor stated that the draft protocol would prohibit “over 2 million cluster munitions or more than 100 million submunitions, which is about one-third of the entire U.S. stockpile of cluster munitions.”[16]

At the outset of the Review Conference in November 2011, the US asserted that the draft protocol offers “the only chance of bringing the world’s major cluster munitions users and producers – who represent between 85 and 90 percent of the world’s cluster munitions stockpiles, and are not in a position to join the Oslo Convention – into a legally binding set of prohibitions and regulations.”[17]

Throughout the negotiations, the US supported the main tenants of the 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.

In a stated effort to make concessions in order to garner consensus, the US proposed a technical amendment to the protocol on 18 November.[18] On the final day of the conference, an hour before the negotiations were scheduled to end, the US introduced a new proposal to remove all references to “use” of cluster munitions from the chair’s draft text in a last-minute attempt to create an arms-control type of stockpile management and transfers agreement that would still implicitly allow for unrestricted use of cluster munitions. After a brief recess, the meeting reconvened and Costa Rica read a joint statement on behalf of a group of 50 states declaring that the chair’s draft text does not fully address the fundamental concerns and is unacceptable from a humanitarian standpoint, and therefore does not command consensus.[19]

The Review Conference concluded without agreeing on a protocol and with no proposals for further work on cluster munitions, thus marking the end of the CCW’s work on cluster munitions. The US issued a statement that it was “deeply disappointed by the failure” to conclude a protocol on cluster munitions. It said “In the wake of this outcome, the United States will continue to implement its own voluntary policy to prohibit by 2018 the use of cluster munitions with more than a one percent unexploded ordnance rate, and we encourage other countries to take similar steps.”[20]

US NGO and CMC chair Human Rights Watch (HRW) described the failure of the CCW protocol negotiations as “a great day for those who care about the protection of civilians,” as the proposed protocol “would have given political and legal cover to those who want to continue to use these weapons that have already caused so much human suffering.”[21]

Use

The US used cluster munitions in Cambodia, Lao PDR, and Vietnam (1960s and 1970s); Grenada and Lebanon (1983); Libya (1986); Iran (1988); Iraq, Kuwait, and Saudi Arabia (1991); Bosnia and Herzegovina (1995); Serbia, Montenegro, and Kosovo (1999); Afghanistan (2001 and 2002); and Iraq (2003).[22] The US has apparently not used cluster munitions in Afghanistan since 2002 or in Iraq since 2003.

In June 2010, Amnesty International (AI) published a series of photographs and stated that it appeared to confirm US use of at least one TLAM-D cruise missile with 166 BLU-97 submunitions to attack an “alleged al-Qa’ida training camp” in al-Ma’jalah in the al-Mahfad district of Abyan governorate of Yemen on 17 December 2009.[23] Neither the US nor Yemeni governments have publicly responded to the use allegations. The CMC officially requested the US to confirm or deny this reported use of US-manufactured cluster munitions in Yemen, but there has been no response.[24]

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, and 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.[25]

Production

In 2001, then-Secretary of Defense William Cohen issued a policy memorandum stating that all submunitions reaching the “full rate” production decision by fiscal year 2005 and beyond must have a failure rate of less than 1%.[26] The US has not budgeted any money for producing new cluster munitions since 2007.[27] Research and development activities continue at the applied research level for the purposes of improving the reliability of existing submunitions as well as the development of new types of submunitions. These activities are in programs being conducted by the Air Force, Army, and the Office of the Secretary of Defense.[28]

Transfer

The omnibus budget bill (HR 1105) signed into law on 11 March 2009 by President Obama contains a provision banning nearly all cluster bomb exports by the US.[29] The legislation also requires the receiving country to agree that cluster munitions “will not be used where civilians are known to be present.”[30] 

On 19 May 2011, the Defense Security Cooperation Agency (DSCA) issued a memorandum on the sale of cluster munitions that incorporates these legal requirements into DSCA policy by adding them to the Security Assistance Management Manual. According to this policy, the US can only export cluster munitions that leave behind less than 1% of UXO. According to the US agency that administers weapons transfers, “At present the only cluster munition with a compliant submunition (one that does not result in more than 1% UXO across the range of intended operational environments) is the CBU-97B/CBU-105, Sensor Fuzed Weapon (SFW). The CBU-107 Passive Attack Weapon, which contains non-explosive rods, is not captured by the ban.”[31]

The most recent US exports of cluster munitions include sales to the United Arab Emirates[32] (announced in September 2006 of 780 M30 GMLRS rockets), India[33] (announced in September 2008 of 510 CBU-105 SFW), Saudi Arabia[34] (announced in June 2011 of 404 CBU-105D/B SFW), Taiwan[35] (announced in September 2011 of 64 CBU-105 SFW), and the Republic of Korea (announced June 2012 of 367 CBU-105D/B SFW).[36] According to the 2008 policy, states receiving cluster munitions that do not meet the 1% UXO standard after 19 June 2008 must agree not to use those munitions after 2018.[37]

While the historical record is incomplete, the US has transferred hundreds of thousands of cluster munitions, containing tens of millions of submunitions, to at least 30 countries: Argentina, Australia, Bahrain, Belgium, Canada, Colombia, Denmark, Egypt, France, Germany, Greece, Honduras, India, Indonesia, Israel, Italy, Japan, Jordan, South Korea, Morocco, the Netherlands, Norway, Oman, Pakistan, Saudi Arabia, Spain, Thailand, Turkey, the United Arab Emirates, and the United Kingdom (UK).

States Parties and signatories of the Convention on Cluster Munitions have declared that they possess or have already destroyed US-produced cluster munitions, including Belgium, Canada, Germany, Japan, the Netherlands, Spain, and the UK.

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

In 2012, Chile’s Ministry of Defense provided the Monitor with information showing an export to the United States in 1991 of one 250kg cluster bomb and one 500kg cluster bomb.[38]

Stockpiling

In November 2009, a US Department of State official said, “The current stockpile is huge; the Department of Defense currently holds more than 5 million cluster munitions with 700 million submunitions. Using our current demilitarization capabilities, it will cost $2.2 billion to destroy this stockpile.”[39] At the CCW Fourth Review Conference in November 2011, the US delegate stated that the US stockpile includes “more than 6 million cluster munitions,” which indicates that the stockpile may be larger than previously reported.[40]

An October 2004 report to the US Congress by the Department of Defense provides details on a stockpile of 5.5 million cluster munitions containing about 728.5 million submunitions.[41]

US Stockpile of Cluster Munitions (as of 2004)[42]

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

Totals

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

Totals

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

Totals

172,038

36,762,825

172,485

36,827,640

 

Grand Total

4,736,903

626,824,422

5,543,149

728,527,689

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

The October 2004 Department of Defense report to US Congress provides details on a stockpile of 5.5 million cluster munitions of 17 different types that contain about 728 million submunitions.[43] However, this figure does not appear to be a full accounting of cluster munitions available to US forces. The number apparently does not include cluster munitions that are located in foreign countries or stockpiled as part of the War Reserve Stocks for Allies (WRSA).[44]

The Department of Defense had not publicly reported on the removal of excess cluster munitions from stocks by June 2009, as called for in the July 2008 policy. But it appears that action has been taken. For example, the UK government told parliamentarians 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.”[45] In December 2010, Wikileaks released a US Department of State cable dated 21 May 2009 and titled “US-UK Cluster Munitions Dialogue,” which reported on a proposal that would provide a temporary exception to this timeline for new cluster munitions that the US brought to British territory after the 2013 deadline.[46]

Since 2000, the US has destroyed 9,400 tons of outdated cluster munitions (not including missiles and rockets) on average per year at an average annual cost of $7.2 million. For fiscal year 2012, the funding for the destruction of non-missile cluster munitions and submunitions consumes 24% of the annual budget allocation for the destruction of conventional ammunitions.[47] 

Since fiscal year 2007, there has been a separate funding source for the destruction of Multiple Launch Rocket System (MLRS) rockets and ATACM missiles, with special destruction facilities for MLRS rockets at the Anniston Defense Munitions Center in Alabama and the Letterkenny Munitions Center in Pennsylvania. The army has requested $109 million for the destruction of 98,904 M26 MLRS rockets from fiscal year 2007 to fiscal year 2012.[48]

Foreign stockpiling and transit

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

·         According to a December 2008 cable, “The United States currently has a very small stockpile of cluster munitions in Afghanistan.”[49]

·         According to a December 2008 cable, Germany has engaged with the United States on the matter of cluster munitions that may be stockpiled by the US in Germany.[50]

·         According to a cable detailing the inaugural meeting on 1 May 2008 of the “U.S.-Israeli Cluster Munitions Working Group (CMWG),” until US cluster munitions are transferred from the War Reserve Stockpiles for use by Israel in wartime, “they are considered to be under U.S. title, and U.S. legislation now prevents such a transfer of any cluster munitions with less than a one percent failure rate.”[51]

·         In a November 2008 cable, the US identified Italy, Spain, and Qatar as states of particular concern with respect to interoperability since “they are states in which the US stores cluster munitions,” even though apparently Qatar “may be unaware of US cluster munitions stockpiles in the country.”[52]

·         A December 2008 cable states that Japan “recognizes U.S. forces in Japan are not under Japan's control and hence the GOJ cannot compel them to take action or to penalize them.”[53]

·         According to a May 2007 cable, the US might be storing clusters munitions in Kuwait.[54]

 



[1] Statement by Phillip Spector, Head of US Delegation, CCW Fourth Review Conference, Geneva, 14 November 2011, http://www.unog.ch/80256EDD006B8954/(httpAssets)/AA39A701F5D863C9C1257965003B6737/$file/4thRevCon_USA_Rev2.pdf.

[2] The policy memorandum was dated 19 June, but 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, http://www.defense.gov/news/d20080709cmpolicy.pdf.

[3] The new policy requires cluster munitions used after 2018 to meet a 1% UXO rate not only in testing, but in actual use during combat operations within the variety of operational environments in which US forces intend to use the weapon. Combatant Commander is the title of a major military leader of US Armed Forces, either of a large geographical region or of a particular military function, formerly known as a commander-in-chief.

[4] Statement by Stephen Mathias, “United States Intervention on Technical Improvements,” CCW Group of Governmental Experts (GGE) on Cluster Munitions, Geneva, 15 July 2008.

[5] 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, http://www.defense.gov/news/d20080709cmpolicy.pdf. The US has not reported any details on the removal of stocks, or whether the undertaking has been completed.

[6] Andrew Feickert and Paul K. Kerr, “Cluster Munitions: Background and Issues for Congress,” Congressional Research Service, p. 5, http://www.fas.org/sgp/crs/weapons/RS22907.pdf.

[7] CMC web story, “US Secretary of State Hillary Clinton visits COPE in Lao PDR,” 11 July 2012, http://www.stopclustermunitions.org/news/?id=3735.

[8] Cluster Munitions Civilian Protection Act of 2009, S. 416 and H. 981. It was first introduced in February 2007, and reintroduced in February 2009.

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

[10] 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 cables released by Wikileaks as of early August 2011, http://www.cablegatesearch.net/search.php?q=cluster+munitions&qo=0&qc=0&qto=2010-02-28.

[11] “Part III: Norwegian foreign minister Store: The world at his feet,” US Department of State cable 09OSLO116 dated 13 February 2009, released by Wikileaks on 1 September 2011, http://wikileaks.org/cable/2009/02/09OSLO116.html#.

[12] In a November 2008 cable released by Wikileaks, the US embassy in Sofia, Bulgaria, reported that a team from the US defense firm Textron Systems met with Bulgarian officials in 2008 to urge Bulgaria not to sign the convention. “Bulgaria to Sign Oslo Convention but Will Remain Interoperable,” US Department of State cable 08SOFIA748 dated 26 November 2008, released by Wikileaks on 30 August 2011, http://wikileaks.org/cable/2008/11/08SOFIA748.html.

[13] At CCW’s Third Review Conference in November 2006, the US position was that it was unnecessary to talk about new rules of international humanitarian law. Instead, it said that states should apply existing laws “rigorously” and focus on the implementation of Protocol V on Explosive Remnants of War, to which it is a party. See: Human Rights Watch and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 251–260.

[14] Statement of US, CCW Meeting of States Parties, Geneva, 26 November 2010. Notes by Action on Armed Violence (AOAV).

[15] Statement of US, CCW GGE on Cluster Munitions, Geneva, 21 February 2011. Notes by AOAV.

[16] Briefing by Harold Koh, Legal Advisor, US Department of State, and Bill Lietzau, Deputy Assistant Secretary of Defense, “U.S. Position on the Convention on Conventional Weapons Negotiations on Cluster Munitions Protocol,” 16 November 2011, http://www.state.gov/s/l/releases/remarks/177280.htm.

[17] Statement of the US, Fourth Review Conference, CCW, Geneva, 14 November 2011. http://www.unog.ch/80256EDD006B8954/%28httpAssets%29/AA39A701F5D863C9C1257965003B6737/$file/4thRevCon_USA_Rev2.pdf.

[18] The US proposal was to move the exclusion for weapons with a claimed less than 1% failure rate from Technical Annex A (which refers to munitions excluded entirely from the protocol, such as weapons not covered under the Oslo definition of cluster munitions), to Technical Annex B (the optional menu of technical “safeguards” which can be employed to deem a cluster munition a legally permissible weapon.) This would be accompanied by a new paragraph in Article 1 on general provisions and scope that while the protocol did not apply to weapons not banned under the Convention on Cluster Munitions, each High Contracting Party to a CCW protocol that retained these munitions “should ensure that such weapons have the lowest possible unexploded ordnance rate, consistent with military requirements.”

[19] Joint Statement read by Costa Rica, on behalf of Afghanistan, Angola, Austria, Bolivia, Burkina Faso, Chile, Colombia, Congo, Costa Rica, Democratic Republic of Congo, Denmark, Djibouti, Ecuador, El Salvador, Ghana, Guatemala, Guinea, Guinea-Bissau, Haiti, Holy See, Honduras, Iceland, Lao PDR, Lebanon, Lesotho, Liechtenstein, Liberia, Madagascar, Mali, Mexico, Mozambique, Namibia, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Senegal, Slovenia, South Africa, Spain, Sudan, Togo, Tunisia, Uganda, Uruguay, Venezuela, Zambia and Zimbabwe. CCW Fourth Review Conference, Geneva, 25 November 2011. List confirmed in email from Bantan Nugroho, Head of the CCW Implementation Support Unit, UN Department for Disarmament Affairs, 1 June 2012.

[20] Permanent Mission of the United States of America press statement, “U.S. Deeply Disappointed by CCW’s Failure to Conclude Protocol on Cluster Munitions,” Geneva, 25 November 2011, http://geneva.usmission.gov/2011/11/25/u-s-deeply-disappointed-by-ccws-failure-to-conclude-procotol-on-cluster-munitions/.

[21] HRW press release, “Cluster Bombs: Nations Reject Weakening of Global Ban,” 25 November 2011, https://www.hrw.org/news/2011/11/25/cluster-bombs-nations-reject-weakening-global-ban.

[22] For historical details on the use of cluster munitions by the US, see ICBL, Cluster Munition Monitor 2010 (Ottawa: Mines Action Canada, October 2010), pp. 256.

[23] 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. AI, “Images of Missile and Cluster Munitions Point to US Role in Fatal Attack in Yemen,” 7 June 2010. See also, “U.S. missiles killed civilians in Yemen, rights group says,” CNN, 7 June 2010.

[24] CMC, “US: Confirm or deny use of cluster munitions in Yemen,” Press release, 8 June 2010. 

[25] “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, http://www.cablegatesearch.net/cable.php?id=09SANAA2251&q=munitions.

[26] 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 reach “full rate production,” i.e. production for use in combat, during the first quarter of fiscal year 2005 must meet the new standard. According to an October 2004 Pentagon report to Congress on cluster munitions, submunitions procured in past years are exempt from the policy, but “[f]uture 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.

[27] For detail on the production of cluster munitions by the US from 2005 to 3007, see Human Rights Watch 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.

[28] For example, see US Air Force, “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] Omnibus Appropriations Act, 2009 (H.R. 1105), became Public Law No. 111-8, 11 March 2009. See also, Sen. Patrick Leahy and Sen. Dianne Feinstein, “FY2009 Omnibus Bill Includes Leahy-Feinstein Provision to Prohibit Sale or Transfer of Most U.S. Cluster Munitions,” Press release, 12 March 2009, Washington, DC, www.feinstein.senate.gov. The sponsors of the provision characterized it as a permanent ban on exports. This view has been disputed by others, who have said that it can only apply to the one-year period funded in the bill. Sen. Leahy has included the provision again in annual appropriations bills. A one-year US export ban was first enacted in a budget bill in December 2007, and extended the following year. Consolidated Appropriations Act, 2008 (H.R. 2764), 110th Congress, 2007. In September 2008, Congress passed a continuing resolution to extend the Consolidated Appropriations Act, and thus the moratorium, through 6 March 2009.

[30] US-supplied cluster munitions have been used in combat by Israel in Lebanon and Syria, by Morocco in Western Sahara and possibly Mauritania, by the UK, and the Netherlands in the former Yugoslavia, and by the UK in Iraq.

[31] US Defense Security Cooperation Agency, “Guidance on the Sale of Cluster Munitions, DSCA Policy 11-33,” Memorandum, 19 May 2011, Washington, DC, www.dsca.mil.

[32] US Defense Security Cooperation Agency Press release, “United Arab Emirates: High Mobility Artillery Rocket Systems,” Transmittal No. 06-55, 21 September 2006, Washington, DC, www.dsca.mil. While the export of these cluster munitions is not allowed under the ban legislation, an Army officer told the trade publication Inside the Army in 2009 that the deal was signed in 2007, well before the export ban legislation was introduced, and that the army obtained legal opinions that confirm the validity of the final sale. It is not publicly known how or when this situation was resolved.

[33] US Defense Security Cooperation Agency Press release, “India: CBU-105 Sensor Fuzed Weapons,” Transmittal No. 08-105, 30 September 2008, Washington, DC, www.dsca.mil.

[34] US Defense Security Cooperation Agency Press release, “Saudi Arabia: CBU-105 Sensor Fuzed Weapons,” Transmittal No. 10-03, Washington, DC, 13 June 2011, http://www.dsca.mil/PressReleases/36-b/2011/Saudi_Arabia_10-03.pdf.

[35] These were to be included as associated parts in the sale of F-16A/B aircraft. “Taipei Economic and Cultural Representative Office in the United States - Retrofit of F-16A/B Aircraft”, Defense Security Cooperation Agency, News Release. No. 11-39, 21 September 2011, http://bit.ly/L3nWtL.

[36] US Defense Security Cooperation Agency Press release, “Republic of Korea: CBU-105D/B Sensor Fuzed Weapons,” Transmittal No. 12-23, Washington, DC, 4 June 2012, http://www.dsca.mil/PressReleases/36-b/2012/Korea_12.23.pdf.

[37] “Q & A on New DOD Cluster Munitions Policy,” US Department of State cable 08STATE77331 dated 18 July 2008, released by Wikileaks 30 August 2011, http://wikileaks.org/cable/2008/07/08STATE77331.html. Question 7 of this document notes that this policy “seems to give recipients of transfer of old cluster munitions free reign to use them until 2018.” The response to this question notes, “It is part of our export control practice to have end-user certification and agreements. The nature and content of these are often classified between the United States and the recipient government.”

[38] Cluster Munition 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 Defense, Santiago, 11 April 2012. Translation by the Monitor.

[39] Statement by Harold Hongju Koh, US Department of State, Third Conference of the High Contracting Parties to CCW Protocol V, 9 November 2009.

[40] Statement of the US, Fourth Review Conference, CCW, Geneva, 14 November 2011, http://www.unog.ch/80256EDD006B8954/%28httpAssets%29/AA39A701F5D863C9C1257965003B6737/$file/4thRevCon_USA_Rev2.pdf.

[41] Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Report to Congress: Cluster Munitions,” October 2004. The report lists 626,824,422 submunitions in the “Active Inventory” and 728,527,689 in the “Total Inventory.”

[42] Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Report to Congress: Cluster Munitions,” October 2004.

[43] Ibid. The report lists 626,824,422 submunitions in the “Active Inventory” and 728,527,689 in the “Total Inventory.”

[44] Under this 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. The 2004 Department of Defense report also does not include SADARM cluster munitions (thought to number 715) and an unknown number of TLAM-D cruise missiles with conventional submunitions. In 1994, the stockpile, including WRSA, consisted of 8.9 million cluster munitions containing nearly 1 billion submunitions, see US Army Material Systems Analysis Activity, “Unexploded Ordnance (UXO) Study,” April 1996.

[45] Statement by Baroness Glenys Kinnock, House of Lords Debate, Hansard (London: Her Majesty’s Stationery Office, HMSO, 8 December 2009), Column 1020; and statement by Chris Bryant, House of Commons Debate, Hansard (London: HMSO, 17 March 2010), Column 925.

[46] “U.S.-UK Cluster Munitions Dialogue,” US Department of State cable 09STATE52368 dated 21 May 2009, released by Wikileaks on 1 December 2010. See David de Sola, “UK offered exceptions for U.S. cluster munitions despite treaty,” CNN, 3 December 2010.

[47] Figures and averages are compiled from annual editions of Department of the Army, “Procurement of Ammunition, Committee Staff Procurement Backup Book,” from fiscal year 2000 to fiscal year 2012.

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

[49] “Demarche to Afghanistan on cluster munitions,” US Department of State cable 08STATE134777 dated 29 December 2008, released by Wikileaks on 2 December 2010, http://www.cablegatesearch.net/cable.php?id=08STATE134777&q=cluster%20munitions.

[50] A US cable dated 2 December 2008 citing a discussion between US officials and Gregor Koebel, then-head 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, http://www.cablegatesearch.net/cable.php?id=08BERLIN1609&q=cluster%20munitions. 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, http://www.cablegatesearch.net/cable.php?id=08STATE125631&q=cluster%20munitions.

[51] “Cluster munitions: Israeli’s operational defensive capabilities crisis,” US Department of State cable dated 18 April 2008, released by Wikileaks on 1 September 2011, http://www.cablegatesearch.net/cable.php?id=08STATE41023&q=cluster%20munitions.

[52] “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, http://www.cablegatesearch.net/cable.php?id=08STATE125632&q=cluster%20munitions.

[53] “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, http://www.cablegatesearch.net/cable.php?id=08TOKYO3532&q=cluster%20munitions.

[54] The cable contains the text of a message sent from a US military advisor to United Arab Emirates authorities concerning a transfer of “ammunition immediately via US Air Force aircraft from Kuwait stockpile to Lebanon.” With respect to 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, http://www.cablegatesearch.net/cable.php?id=07ABUDHABI876&q=cluster%20munitions.