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United States

Last Updated: 22 October 2010

Cluster Munition Ban Policy

Policy

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

In September 2008, Secretary of Defense Robert M. Gates said, “The US did not participate in the Cluster Munitions Convention negotiations because we believe that cluster munitions are an integral part of our and many of our coalition partners’ military operations. The elimination of cluster munitions from our stockpiles would put the lives of our soldiers and those of our coalition partners at risk. There are no substitute munitions, and some of the possible alternatives could actually increase the damage that results from an attack.”[1] 

In November 2009, a US Department of State official said that “many States, including the United States, have determined that their national security interests cannot be fully ensured consistent with the terms of the [Convention on Cluster Munitions].”[2]

The US views the Convention on Conventional Weapons (CCW) as the most appropriate framework for negotiation on cluster munitions, because “it is most likely to achieve a result that balances humanitarian concerns with military utility and is, therefore, likely to have a more substantial impact than a result that fails to garner the support of many military powers.”[3] 

Under the current policy issued by the US Department of Defense in July 2008, by the end of 2018 the US will no longer use cluster munitions that result in more than 1% UXO.[4] Until 2018, use of cluster munitions that exceed the 1% UXO rate must be approved by the Combatant Commander.[5] Also, military departments will initiate removal of all cluster munition stocks “that exceed operational planning requirements or for which there are no operational planning requirements” from active inventories as soon as possible, but not later than 19 June 2009. These excess cluster munitions will be demilitarized as soon as practicable.[6]

The only existing US cluster munitions that might meet the 99% reliability standard are CBU-97, CBU-105, and M898 SADARM Sensor Fuzed Weapons with self-destruct and self-deactivation mechanisms. According to Department of Defense statistics from 2004, Sensor Fuzed Weapons make up 3,099 of the 5,543,149 US cluster munitions.[7] 

The government stated in 2008 that the 10-year transition period “is necessary to develop the new technology, get it into production, and to substitute, improve, or replace existing stocks.”[8] It said in 2009 that the “2018 deadline…allows us time to design and produce cluster munitions to replace existing stocks.”[9]

The Department of Defense had not 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 United Kingdom 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.”[10]

The administration of President Barack Obama has not yet conducted a review of US policy on cluster munitions. On 29 September 2009, Senator Patrick Leahy (D-VT), Senator Dianne Feinstein (D-CA), and 14 other US Senators wrote to President Obama urging him to “conduct a thorough review of U.S. policy on cluster munitions,” noting that “the United States has already begun to move away from a reliance on cluster munitions.”[11]

At the beginning of the term, Secretary of State-designate Hillary Rodham Clinton told the US Senate Committee on Foreign Relations, “The incoming Administration has not taken a position on the new cluster bomb treaty. I look forward to working with the President-Elect and the rest of the national security team on this issue in order to develop a policy that upholds our moral obligations while protecting our troops. The new Administration will carefully review the treaty in consultation with military commanders and work closely with our friends and allies to ensure that the United States is doing everything feasible to promote protection of civilians—especially children.”[12]

In February 2009, Senators Feinstein and Leahy, and Representative Jim McGovern, re-introduced 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, and would prohibit use of cluster munitions in areas where civilians are known to be present. It would also require the President to submit a plan to Congress for clean-up of cluster munition remnants if the US used cluster munitions or if another country used cluster munitions that it had received from the US.[13] The Act has continued to gather support in the Senate and House of Representatives, but has not yet been brought to a vote. 

The US did not directly participate, even as an observer, in the diplomatic Oslo Process in 2007 and 2008 that resulted in the Convention on Cluster Munitions. The US worked hard, however, to influence the outcome of the negotiations and address its concerns, primarily on the issue of “interoperability” (joint military operations among the US and States Parties to the convention).[14]

The US did not engage in the work of the convention in 2009 and 2010. It did not attend the Berlin Conference on the Destruction of Cluster Munitions in June 2009, the Regional Conference for Latin America and the Caribbean on Cluster Munitions held in Santiago, Chile in September 2009, or the International Conference on the Convention on Cluster Munitions, also held in Santiago, in June 2010. As of August 2010, the US had not indicated if it would attend as an observer the First Meeting of States Parties to the Convention on Cluster Munitions in Lao PDR in November 2010. 

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.

Convention on Conventional Weapons

The US is party to the CCW and ratified Protocol V on explosive remnants of war (ERW) on 21 January 2009.

The US has participated extensively in the CCW deliberations on cluster munitions in 2009 and 2010. In November 2009, the US reaffirmed its commitment “to negotiate a legally binding Protocol on Cluster Munitions in the CCW to mitigate the threat to civilian populations resulting from the use of cluster munitions…. The United States believes that it should be possible to reach agreement in the CCW on a protocol on cluster munitions that will have significant humanitarian benefits.”[15]

The US has stated, “A comprehensive international response to the humanitarian concerns associated with cluster munitions must include action by those States that are not in a position to become parties to the [Convention on Cluster Munitions], because among those States are the States that produce and stockpile the vast majority of the world’s cluster munitions.”[16] The US has claimed that some “90 percent” of global stockpiles of cluster munitions are held by governments that are part of the CCW, but not part of the Convention on Cluster Munitions.[17] 

During the CCW deliberations, the US has stressed the need for a transition period, has opposed a deadline for stockpile destruction, and has opposed a broad definition of “cluster munition victim.” It has contributed technical information to discussions on the definition of a self-destruct mechanism.

Use

The US used cluster munitions in Cambodia, Lao PDR, and Vietnam in the 1960s and 1970s,[18] Grenada and Lebanon in 1983,[19] Libya in 1986,[20] Iran in 1988,[21] Iraq, Kuwait, and Saudi Arabia in 1991,[22] Bosnia and Herzegovina in 1995,[23] Serbia, Montenegro, and Kosovo in 1999,[24]Afghanistan in 2001 and 2002,[25] and Iraq in 2003.[26] The US has apparently not used cluster munitions in Afghanistan since 2002, or in Iraq since 2003.  

In June 2010, Amnesty International stated that it appears the US used 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. Amnesty International published a series of photographs showing the remnants of the cruise missile, and noted “the likely use of cluster munitions” in the attack. It said the attack killed 55 people, including 41 civilians (21 children, 14 women, and 6 men).[27] Neither the US nor Yemeni governments have publicly responded to Amnesty International’s allegations. On 8 June 2010, the CMC called on the US to confirm or deny this reported use of US-manufactured cluster munitions in Yemen, but there has been no response.[28] 

An August 2010 New York Times story on US military involvement in Yemen referred to the Amnesty International report on the cruise missile cluster munition attack, noting that a “Navy ship offshore had fired the weapon in the attack.” It stated that American officials said cruise missiles were all that was available at the time because the US Central Intelligence Agency’s armed drones were tied up with the bombing campaign in Pakistan. The story also cited another US cruise missile attack on 24 December 2009, without any mention of cluster munitions.[29]

Production

In 2001, then-Secretary of Defense William Cohen issued a policy memorandum stating that all submunitions reaching the “Milestone 3” production decision in fiscal year 2005 and beyond must have a dud rate of less than 1%.[30] 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.”[31]

US manufacturers have had difficulties meeting the reliability requirement of the Cohen policy, within budgetary constraints. The US has apparently not produced any cluster munitions since 2005, with two exceptions.

In 2007, the final funding increments were appropriated for the P3I variant of the Sensor Fuzed Weapon (SFW) which reportedly meets the 99% standard. Funding was also provided that year for M30 Guided Multiple Launch Rocket System (GMLRS) rockets with dual purpose improved conventional munition (DPICM) submunitions, which do not meet the standard but received a waiver.[32] 

The last purchase of SFWs was in the budget for fiscal year 2007 for the delivery of 305 weapons beginning in January 2008 (the date of final delivery for this lot was not specified). This was a sole-source, firm-fixed-price contract awarded in January 2007 to Textron Systems Corporation.[33]

According to media reports, the final deliveries of M30 rockets from Lockheed Martin Corporation, the prime contractor for the GMLRS system, were completed in the summer of 2009.[34]

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.[35] Under the law, the US can only export cluster munitions that leave behind less than 1% of their submunitions as duds.[36] The legislation also requires the receiving country to agree that cluster munitions “will not be used where civilians are known to be present.”[37] A one-year US export ban was first enacted in a budget bill in December 2007, and extended the following year.[38]

According to a March 2009 report, the US intends to export 780 M30 GMLRS rockets with DPICM submunitions to the United Arab Emirates (UAE) as part of a larger US$752 million foreign military sale announced in September 2006.[39] Colonel David Rice, project manager for precision fires, rockets, and missiles systems, told Inside the Army 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.[40]

The US announced in September 2008 that at the request of India, it was intending to sell 510 CBU-105 air-dropped SFWs in an arms deal valued at as much as $355 million.[41] According to the US Department of Defense, “India intends to use the Sensor Fuzed Weapons to modernize its armed forces and enhance its defensive ability to counter ground-armored threats.”[42] The US has attached a term to the transfer, in compliance with the cluster munition export law, which requires that the submunitions have a 99% or higher reliability rate and stipulates that “the cluster munitions will only be used against clearly defined military targets and will not be used where civilians are known to be present.”[43]

While the historical record is incomplete, the US has transferred hundreds of thousands of cluster munitions, containing tens of millions of unreliable and inaccurate submunitions to at least 29 countries: Argentina, Australia, Bahrain, Belgium, Canada, Egypt, Denmark, France, Germany, Greece, Honduras, India, Indonesia, Israel, Italy, Japan, Jordan, South Korea, Morocco, the Netherlands, Norway, Oman, Pakistan, Saudi Arabia, Spain, Thailand, Turkey, the UAE, and the UK.

Known exports of selected cluster munitions by the US

M483A1 artillery projectile

Bahrain, Belgium, Canada, Greece, Israel, Japan, Jordan, South Korea, Morocco, Netherlands, Pakistan, Turkey, UK

Rockeye bomb

Argentina, Australia, Canada, Denmark, Egypt, Greece, Honduras, Indonesia, Israel, Jordan, South Korea, Morocco, Norway, Oman, Pakistan, Spain, Thailand, Turkey

CBU-58 bomb

Australia, Israel, Saudi Arabia

CBU-87 bomb

Egypt, Japan, South Korea, Netherlands, Saudi Arabia, Turkey, UAE

CBU-97/CBU-105 bomb

India, South Korea, Oman, UAE

M26 ground rocket

Bahrain, Egypt, France, Germany, Greece, Israel, Italy, Japan, South Korea, Netherlands, Turkey, UAE, UK

ATACMS missile

Bahrain, Greece, South Korea, Turkey, UAE

The US has also licensed the production of cluster munitions, including with South Korea in 2001 for production of DPICM submunitions for Multiple Launch Rocket System (MLRS) rockets. Also in 2001, the US provided assistance and technical data to support Japan’s production of CBU-87 Combined Effects Munitions. In addition, the US licensed production of DPICM artillery projectiles to the Netherlands, Pakistan, and Turkey.[44]

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.”[45]

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.[46] However, this figure does not appear to be a full accounting of cluster munitions available to US forces. In particular, the tally does not include cluster munitions that are part of the War Reserve Stocks for Allies (WRSA).[47] In 1994, the stockpile, including WRSA, consisted of 8.9 million cluster munitions containing nearly 1 billion submunitions.[48]

US stockpile of cluster munitions, 2004[49]

Type

No. 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

Total

4,736,903

626,824,422

5,543,149

728,527,689

Of the 728 million submunitions cited in the report, only 30,990 have self-destruct devices (0.00004%).[50] The Department of Defense report cites failure rates of 2–6% for most of the submunitions, based on lot acceptance testing and stockpile reliability testing. Previous Department of Defense documents have indicated much higher failure rates for the most common submunitions.[51]

Since 2000, the US has destroyed on average 7,200 tons (7.2 million kg) of outdated cluster munitions (not including missiles and rockets) per year at an average annual cost of $7.1 million. As of 2006, at least 103,473 tons (103 million kg) of outdated cluster munitions were awaiting destruction.[52]  

Since fiscal year 2007, there has been a separate funding source for the destruction of 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 $72.4 million for the destruction of 71,062 M26 MLRS rockets from fiscal year 2007 to fiscal year 2011.[53]



[1] Letter from Secretary of Defense Robert M. Gates to Sen. Patrick Leahy, 12 September 2008.

[2] Statement by Harold Hongju Koh, Legal Adviser, US Department of State, Third Conference of the High Contracting Parties to CCW Protocol V, 9 November 2009, geneva.usmission.gov.

[3] Statement by Stephen Mathias, Head of US Delegation, CCW Group of Governmental Experts (GGE) on Cluster Munitions, Geneva, 14 January 2008.

[4] 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, www.defenselink.mil. Presumably rendered meaningless by the legislatively enacted export ban, the policy allows transfer of cluster munitions that do not meet the 1% UXO rate, consistent with US law and policy, provided that the receiving state agrees not to use the munitions after 2018; after 2018, the US will not transfer cluster munitions that do not meet the 1% UXO rate, except for purposes of destruction, training, or development of clearance and detection methods.

[5] 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.

[6] 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, www.defenselink.mil.

[7] This constitutes 0.06% of the existing stockpile. Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Report to Congress: Cluster Munitions,” October 2004.

[8] Statement by Stephen Mathias, “United States Intervention on Technical Improvements,” CCW GGE on Cluster Munitions, Geneva, 15 July 2008. For unknown reasons, the report did not include the 715 SADARM projectiles thought to be stockpiled by the US.

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

[10] 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.

[11] Letter to President Barack Obama from 16 US Senators, 29 September 2009.

[12] Questions for the Record Submitted to Secretary of State-designee Hillary Rodham Clinton by Sen. Robert P. Casey, Jr., US Senate Committee on Foreign Relations, 13 January 2009.

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

[14] For detail on US policy and practice regarding cluster munitions through early 2009, see Human Rights Watch (HRW) and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 251–260. A Department of State official said the US had communicated its views on the process and draft convention to more than 100 countries. The US prepared a paper detailing concerns about interoperability, and US officials visited a number of capitals to discuss the issue. During the Dublin negotiations, the highest level US officials reportedly weighed in with their counterparts on this issue, which was identified by many states as the most important to their ability to adopt and sign the convention. Negotiators agreed to a new Article 21 in the convention that the CMC strongly criticized for being politically motivated and leaving room for interpretation about what is allowed or not under the prohibition on assistance with prohibited acts.  However, the article also requires States Parties to discourage use of cluster munitions by those not party and to encourage them to join the convention.

[15] Opening Statement by Stephen Mathias, Head of the US Delegation, CCW Meeting of States Parties, Geneva, 12 November 2009.

[16] Opening Statement by Stephen Mathias, CCW Meeting of States Parties, Geneva, 12 November 2009.

[17] See for example, Statement of the US, CCW GGE on Cluster Munitions, Geneva, 16 February 2009. Notes by AOAV. Statement by Harold Hongju Koh, US Department of State, Third Conference of the High Contracting Parties to CCW Protocol V, 9 November 2009, geneva.usmission.gov. In an April 2010 statement to the CCW, HRW refuted this argument by noting that it is not possible to make a valid claim about quantities in stockpile that the CCW could potentially capture as the vast majority of states stockpiling cluster munitions have not disclosed detailed information on the quantities. HRW also stated that a total of 38 of the 87 states that have possessed stockpiles are signatories to the Convention on Cluster Munitions, while 32 are party to the CCW but not the ban convention, and 17 are not part of either. Statement by Mark Hiznay, Senior Researcher, Arms Division, HRW, CCW GGE on Cluster Munitions, Geneva, 12 April 2009, www.hrw.org.

[18] According to an analysis of US bombing data by Handicap International, approximately 80,000 cluster munitions, containing 26 million submunitions, were dropped on Cambodia between 1969 and 1973; over 414,000 cluster bombs, containing at least 260 million submunitions, were dropped on Lao PDR between 1965 and 1973; and over 296,000 cluster munitions, containing nearly 97 million submunitions, were dropped in Vietnam between 1965 and 1975. See Circle of Impact: The Fatal Footprint of Cluster Munitions on People and Communities (Brussels: Handicap International, May 2007), pp. 23, 30, 39.

[19] US Navy aircraft dropped 21 Mk.-20 Rockeye cluster bombs on Grenada in close air support operations during the invasion of Grenada in October 1983. The same US Navy unit used 12 CBU-59 and 28 Rockeye bombs against Syrian air defense units near Beirut in December 1983. See US Department of the Navy, Attack Squadron Fifteen, Memorandum from Commanding Officer, Attack Squadron Fifteen, to Chief of Naval Operations, “Command History: Enclosure 5, Ordnance Expenditure for 1983,” 18 February 1984, declassified 28 April 2000.

[20] On 25 March 1986, US Navy aircraft attacked Libyan ships using Mk-20 Rockeye cluster bombs in the Gulf of Sidra. On the night of 14–15 April 1986, US Navy aircraft dropped 60 Rockeye bombs on the airfield at Benina. See Daniel P. Bolger, Americans at War: 1975–1986, An Era of Violent Peace (Novato, CA: Presidio Press, 1988), p. 423.

[21] On 18 April 1988, US Navy aircraft attacked Iranian Revolutionary Guard speedboats and an Iranian Navy ship using 18 Mk.-20 Rockeye bombs during Operation Praying Mantis. See Memorandum from the Commanding Officer of the USS Enterprise (CVN-65) to the Director of Naval History (OP-09BH), “1988 Command History,” 27 February 1989, p. 20.

[22] Between 17 January and 28 February 1991, the US and its allies (France and the UK) dropped 61,000 cluster bombs, containing some 20 million submunitions on Iraq and Kuwait. A significant number of surface-delivered cluster munitions were also used; one source estimates that over 30 million DPICM submunitions were used in the conflict. See Colin King, “Explosive Remnants of War: A Study on Submunitions and other Unexploded Ordnance,” commissioned by the ICRC, August 2000, p. 16, citing Donald Kennedy and William Kincheloe, “Steel Rain: Submunitions,” U.S. Army Journal, January 1993. At least 80 US military casualties were attributed to its own cluster munition duds. US General Accounting Office (GAO), “GAO-02-1003: MILITARY OPERATIONS: Information on US Use of Land Mines in the Persian Gulf War,” September 2002, p. 17, figure 2. All casualty figures were provided to the GAO by US Armed Services.

[23] According to a US Air Force study, planners decided not to use cluster bombs during Operation Deliberate Force “because their inaccuracy and wide dispersion pattern made them likely to cause collateral damage.” However, a USAF A-10A dropped two CBU-87s during the first day of the campaign on 25 August 1995 as a result of a miscommunication with the combined air operations center.  Col .Robert C. Owen (ed.), Deliberate Force: A Case Study in Effective Air Campaigning, Final Report of the Air University, Balkans Air Campaign Study, (Maxwell Air Force Base, Alabama: US Air Force, Air University Press, January 2000), pp. 265–266.

[24] The US, along with the UK and the Netherlands, dropped 1,765 cluster bombs, containing about 295,000 submunitions from March to June 1999.  HRW documented that cluster strikes killed 90–150 civilians, and injured many more. This constituted 18–30% of the total civilian deaths in the conflict, even though cluster bombs amounted to just 7% of the total number of bombs dropped. See HRW, “Civilian Deaths in the NATO Air Campaign,” vol. 12, no. 1(D), February 2000; and HRW, “Ticking Time Bombs: NATO’s Use of Cluster Munitions in Yugoslavia,” vol. 11, no. 6(D), June 1999.

[25] The US dropped approximately 1,228 cluster bombs containing 248,056 submunitions between October 2001 and March 2002. See HRW, “Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan,” vol. 14, no. 7(G), December 2002. 

[26] The US used 10,782 cluster munitions, containing about 1.8 million submunitions, in the three weeks of major combat in Iraq between March and April 2003. See HRW, Off Target: The Conduct of the War and Civilian Casualties in Iraq (New York: HRW, November 2003). In after-action reports, US forces called their own cluster munitions “relics” and “losers” and questioned the weapon’s utility. See US Army, Third Infantry Division, After-Action Briefing, “Fires in the Close Fight: OIF [Operation Iraqi Freedom] Lessons Learned,” undated.

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

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

[29] Scott Shane, Mark Mazzetti and Robert F. Worth, “Secret Assault on Terrorism Widens on Two Continents,” New York Times, 14 August 2010, www.nytimes.com.

[30] 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.

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

[32] It appears that subsequent to the Cohen policy, a waiver was granted in an Operational Requirements Document (ORD) approved by the Pentagon’s Joint Requirements Oversight Committee (JROC) that established a new, higher, hazardous dud requirement for M30 GMLRS rocket DPICM submunitions. This higher dud rate requirement sets a “less that 2% dud rate between ranges of 20-60 kilometers” and “less than 4% dud rate under 20 kilometers and over 60 kilometers.” See Office of the US Army Product Manager, Precision Fires Rocket and Missile Systems, “Briefing on Precision Guided Missiles and Rockets; Self Destruct Fuze Efforts,” February 2007, Slide 2.

[33] Department of the Air Force, Air Force Financial Management and Comptroller, “Procurement of Ammunition, FY2007 Budget Estimates,” February 2006, pp. 93–95.

[34] Kate Brannen, “Army Will Complete 2007 DPICM Sale Despite New Law From Congress,” Inside the Army, 23 March 2009. It was not possible, based on budget documents, to differentiate between buys of unitary and DPICM submunition variants in justification materials submitted to the US Congress for the procurement of missiles by the US Army. They say “Operational requirements may dictate a change in the actual quantity mix (Unitary/DPICM) of munitions proposed.” In the fiscal year 2011 budget, separate budget lines for the procurement of DPICM (without any funds obligated) and unitary variants is available.

[35] 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, 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 included the provision again in the fiscal year 2011 appropriations bill, which had not yet been acted on by Congress as the Monitor went to print.

[36] The only cluster munitions that might meet this standard are CBU-97, CBU-105, and M898 SADARM SFWs with self-destruct and self-deactivation mechanisms. According to Department of Defense statistics from 2004, SFWs make up 3,099 of the 5,543,149 US cluster munitions.

[37] 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.

[38] 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.

[39] Kate Brannen, “Army will Complete 2007 DPICM Sale Despite New Law From Congress,” Inside the Army, 23 March 2009.  The original notification is US Defense Security Cooperation Agency, “United Arab Emirates: High Mobility Artillery Rocket Systems,” Press release, Transmittal No. 06-55, 21 September 2006, Washington, DC, www.dsca.mil.

[40] Kate Brannen, “Army will Complete 2007 DPICM Sale Despite New Law From Congress,” Inside the Army, 23 March 2009. 

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

[42] “Policy Justification” sheet attached to a letter from Vice-Adm. Jeffrey A. Wieringa, Director, US Defense Security Cooperation Agency, to Sen. Robert C. Byrd, Chairman, Senate Committee on Appropriations (USP012679), 26 September 2008. 

[43] Letter from Vice–Adm. Jeffrey A. Wieringa, US Defense Security Cooperation Agency, to Sen. Robert C. Byrd, Senate Committee on Appropriations (USP012679), 26 September 2008.

[44] Leland S. Ness and Anthony G. Williams, eds., Jane’s Ammunition Handbook 2007–2008 (Surrey, UK: Jane’s Information Group Limited, 2007), pp. 336–338, 635–636.

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

[46] 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 728,477,489 in the “Total Inventory.”

[47] 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.

[48] See HRW, “Cluster Munitions a Foreseeable Hazard in Iraq,” March 2003. The 1 billion submunitions figure is mostly drawn from US Army Material Systems Analysis Activity, “Unexploded Ordnance (UXO) Study,” April 1996. The US may have removed from inventory and destroyed a significant number of expired cluster munitions since that 1996 study.

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

[50] These are CBU-97 and CBU-105 SFWs held by the US Air Force and Navy. The army’s SADARM cluster munitions, which are similar to SFWs, are not included in the Department of Defense report.

[51] See Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Unexploded Ordnance Report,” undated, table 2–3, p. 5, transmitted to the US Congress on 29 February 2000.

[52] Figures 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 2011.

[53] Department of the Army, “Procurement of Ammunition, Committee Staff Procurement Backup Book,” February 2010, pp. 571–572.