United States
Cluster Munition Ban Policy
Summary: Non-signatory the United States (US) has not taken any steps to join the Convention on Cluster Munitions, as it sees military utility in cluster munitions. The US has never participated in a meeting of the convention, even as an observer. The US abstained from voting on a key United Nations General Assembly (UNGA) resolution promoting the convention in December 2022.
A November 2017 policy directive issued under President Donald Trump allows US forces to use cluster munitions that result in more than 1% unexploded ordnance (UXO). The US last used cluster munitions during the 2003 invasion of Iraq, with the exception of a single attack in Yemen in 2009. The US last budgeted funds to produce new cluster munitions in 2007 but is aggressively pursuing replacements. The US stockpiles cluster munitions, and in July 2023 the administration of President Joe Biden announced that the US will transfer potentially hundreds of thousands of its artillery-delivered cluster munitions to Ukraine for use in the war with Russia.
Policy
The United States of America has not acceded to the Convention on Cluster Munitions. The US has not taken any steps to join the convention because, in its view, cluster munitions provide “a vital military capability.”[1]
National policy
As of July 2023, the Biden administration has not indicated if it will review the November 2017 policy directive on cluster munitions issued by former president Trump. The 2017 policy replaced a July 2008 Department of Defense policy directive on cluster munitions, issued under President George W. Bush, and abandoned its requirement that the US no longer use cluster munitions that result in more than a 1% UXO rate by the end of 2018.[2]
The 2017 policy requires the Department of Defense to “program for capabilities to replace cluster munitions” that do not meet the 1% UXO standard.[3] However, to “meet immediate warfighting demand” the policy gave combatant commanders (the heads of various combatant commands with geographic and other areas of responsibility) the authority to approve employing (using) cluster munitions “that do not meet the standards prescribed by this policy for procuring new cluster munitions” as well as to accept transfers of those cluster munitions.[4]
In July 2023, the Biden administration announced that the US would transfer its stocks of artillery-delivered cluster munitions to Ukraine for use in the war with Russia. (See Transfers section).
US and the Convention on Cluster Munitions
The US did not participate, even as an observer, in the 2007–2008 Oslo Process that created the Convention on Cluster Munitions.[5] However, US Department of State cables made public by Wikileaks show how the US attempted to influence its allies, partners, and other states during the process in order to affect the outcome of the negotiations, especially with respect to the issue of “interoperability” (joint military operations between the US and States Parties to the convention).[6]
The US has never participated in a meeting of the Convention on Cluster Munitions, even as an observer. The US was invited to, but did not attend, the convention’s Tenth Meeting of States Parties held in Geneva in August–September 2022.
In December 2022, the US abstained from the vote on a key UNGA resolution that urged states outside the Convention on Cluster Munitions to “join as soon as possible.”[7] The US has abstained from voting on the annual UNGA resolution promoting the convention since it was first introduced in 2015. The US explained in 2015 that it considers the resolution to apply “only to those States Parties to this convention.”[8] In its most recent comment on the resolution, in November 2019, the US again stated that it does not accept that the convention “represents an emerging norm.”[9]
The US expressed deep alarm at Russia’s use of cluster munitions in Ukraine in 2022.[10]However, the US backtracked on a comment from one senior official who criticized cluster munitions as unacceptable weapons that “have no place on the battlefield.”[11]
There has been widespread criticism of the July 2023 announcement by the Biden administration that the US will transfer cluster munitions to Ukraine. On 13 July 2023, 147 congressional representatives (98 Republicans and 49 Democrats) voted to prohibit the sale and transfer of cluster munitions to Ukraine, but the measure did not pass as 276 representatives voted against it.[12] The original amendment sought to prohibit cluster munition transfers to any country and was accompanied by a letter from Sara Jacobs, Ilhan Omar, and 17 other House Democrats renouncing the US transfer of cluster munitions.[13](See Transfers section).
The US is not party to the Mine Ban Treaty but has participated as an observer at Mine Ban Treaty meetings since 2009. In June 2022, the US announced a new policy re-aligning its position with major requirements of the treaty, and committing to “undertake diligent efforts to pursue materiel and operational solutions to assist in becoming compliant with and ultimately acceding” to the Mine Ban Treaty.[14]
The US is party to the Convention on Conventional Weapons (CCW), but has not proposed further CCW deliberations on cluster munitions since States Parties to the CCW failed to adopt a draft protocol on cluster munitions in 2011.[15] This effectively concluded CCW consideration on the matter, leaving the Convention on Cluster Munitions as the sole international instrument dedicated to ending the suffering caused by these weapons.
Use
The last US use of cluster munitions was during Operation Iraqi Freedom in 2003, with the exception of a single attack in Yemen in December 2009.[16] Neither the US nor the Yemeni government has publicly denied US responsibility for the 2009 attack.[17]
In 2016, the United States Air Force (USAF) said that it had not used cluster munitions in aerial operations against the Islamic State in Iraq, Libya, and Syria.[18] The US provided logistical support to a Saudi Arabia-led coalition that used US-supplied cluster munitions in Yemen in 2015–2017.
The US has used cluster munitions in past conflicts in several countries and areas: Cambodia, Lao PDR, and Vietnam (1960s–1970s); Grenada and Lebanon (1983); Libya (1986); Iran (1988); Iraq, Kuwait, and Saudi Arabia (1991); Bosnia and Herzegovina (1995); Serbia, Montenegro, and Kosovo (1999); Afghanistan (2001–2002); Iraq (2003); and Yemen (2009).[19]
Production
The US Department of Defense could not confirm whether the US still produces cluster munitions as of December 2018, telling a US media outlet that it “is not aware of any U.S. industry production of cluster munitions.”[20] However, several research and development programs are underway that may result in the production of new weapons that are not compliant with the Convention on Cluster Munitions. (See Replacements for cluster munitions section).
Since 2005, all submunitions produced by the US must have a failure rate of less than 1%, according to a 2001 policy issued by Secretary of Defense William Cohen.[21] The US last budgeted funds to produce new cluster munitions in 2007.[22] Since then, the US has manufactured cluster munitions only for each foreign sales order in accordance with the contractual delivery schedule.
The US government has not taken any steps to prohibit US production of cluster munitions since 2016, when the sole remaining US producer, Textron Systems Corporation, announced an end to its production.[23] In a filing with the Securities and Exchange Commission on 30 August 2016, Textron Systems Corporation said it had discontinued production of the CBU-105 cluster bomb because of reduced orders, stating that “the current political environment has made it difficult” to obtain sales approvals.[24]
US defense contractor Northrop Grumman announced in January 2021 that it was ending participation in a US government contract to test the shelf-life of stocks of cluster munitions.[25] The company, which does not make cluster munitions, inherited the stockpile management contract after acquiring US company Orbital ATK.
In the past, before the adoption of the Convention on Cluster Munitions, the US licensed the production of cluster munitions with Japan, the Netherlands, Pakistan, South Korea, and Türkiye.
Replacements for cluster munitions
The US military is developing several replacements for ground-launched cluster munitions that could not meet the requirements of the cluster munition reliability policy of the Department of Defense, namely M483A1 and M864 155mm artillery projectiles, which contain M42/M46 dual-purpose improved conventional munitions (DPICM) and M26 rockets containing M77 DPICM. The first of these replacements, the Alternative Warhead variant for the Guided Multiple Launch Rocket System (GMLRS), began production in 2015 and contains 160,000 pre-formed tungsten fragments, but no explosive submunitions.
The US Army has budgeted nearly $500 million during 2022–2028 for researching and developing replacements for 155mm artillery projectiles containing older DPICM (M42/M46). In 2018, two parallel research and development tracks began to develop Cannon-Delivered Area Effects Munitions (C-DAEM) as “policy-compliant munitions.”[26]
The first of the replacements is called “C-DAEM Armor” and is designated XM1180. This is an extended-range, presumably unitary, guided projectile with advanced components including a seeker, shaped charge warhead, and military-grade GPS. C-DAEM Armor is intended to destroy moving self-propelled howitzers, infantry fighting vehicles, and tanks. Assuming the success of the research and development program, the decision to “type classify” the projectile will occur in 2026, with a decision on whether to enter full production planned for 2028.[27] The US Army is requesting $57 million in the 2024 budget for the eventual procurement of 250 projectiles.[28] Under earlier decisions in this replacement program, the US procured 3,676 BONUS Mk2 projectiles in 2019–2021 from BAE Systems AB, Sweden, totaling $209 million.[29]
The second project in the replacement program is called “C-DAEM DPICM Replacement.” This is intended to attack targets ranging from personnel to soft-skinned vehicles. The US Army has approved the Israeli-designed M999 advanced antipersonnel munition, designated XM1208, as the solution for this requirement. The XM1208 projectile dispenses nine M99 “advanced submunitions.”[30] Hardware and some components for this projectile are being imported from Israel in cooperation with the Israeli Ministry of Defence. [31]
The US Army has also initiated two other longer-range research and development tracks to enhance the performance of the GMLRS missile. A total of $327 million is being requested from 2022–2028 for this program. The first project within the program covers the development of a modified enhanced alternative warhead in addition to other modifications that improve effectiveness against “light and medium armored targets,” with the objective to include these modifications in the 2026–2027 production run. A second project will attempt to integrate a “Sensor Fuzed Weapon” (type not specified) for delivery by the GMLRS missile by 2030. Another program will “determine the feasibility and effectiveness of utilizing GMLRS rockets to dispense anti-armor submunitions for engaging medium and heavy armor targets.”[32]
Transfer
Export moratorium language has been included in the annual US Department of Defense budget each year since 2009.[33] The provision of military assistance for cluster munitions, the issuing of defense export licenses for cluster munitions, and the sale or transfer of cluster munitions or cluster munitions technology is prohibited unless “the submunitions of the cluster munitions, after arming, do not result in more than 1 percent unexploded ordnance across the range of intended operational environments.” In addition, any agreement “applicable to the assistance, transfer, or sale of such cluster munitions or cluster munitions technology” must specify that the munitions “will only be used against clearly defined military targets and will not be used where civilians are known to be present or in areas normally inhabited by civilians.”
The Defense Security Cooperation Agency (DSCA)—the US government agency that administers weapons transfers—issued a memorandum on 19 May 2011 regarding the sale of cluster munitions that incorporates these legal requirements into DSCA policy, by adding them to the Security Assistance Management Manual. According to the memorandum, “the only cluster munition with a compliant submunition (one that does not result in more than 1% UXO across the range of intended operational environments) is the CBU-97B/CBU-105, Sensor Fuzed Weapon (SFW).”[34]
On 7 July 2023, US officials announced that President Biden had signed a waiver allowing the US to transfer to Ukraine an unspecified quantity of US stocks of cluster munitions that have a higher than 1% failure rate.[35] In July 2023, The Washington Post reported that there was no waiver provision on the 1% limit that Congress had placed on cluster munition dud rates, written into Department of Defense appropriations since 2017. Biden could bypass this, according to a White House official, under the Foreign Assistance Act, which allows the president to furnish assistance, regardless of appropriations or arms export restrictions, as long as he determines and notifies Congress that it is “vital to the security of the interests of the United States.”
According to the Department of Defense, “155mm artillery rounds” will be transferred, including ones that deliver what it called “highly effective and reliable” DPICM.[36]
The US has not named the specific types of DPICM projectiles or the quantities to be provided. Department of Defense officials claim the DPICM submunitions “have a dud rate less than 2.35 percent” but say that the testing data behind this figure is “classified.”[37] From congressional briefings, it appears that the US will transfer 155mm M864 cluster munition artillery projectiles that each contain 72 DPICM submunitions, as well as 155mm M483A1 artillery projectiles that each contain 88 DPICM submunitions. The two types of projectiles deliver M42 and M46 DPICM submunitions. Historic data for these submunitions shows that they have a failure rate of 6–14%; often higher in operations due to wind, soft soil, dense vegetation, and other delivery factors.[38]
As of 9 July 2023, world leaders from 19 countries had expressed concern over cluster munitions after the US decision to transfer stocks to Ukraine, including: Australia, Austria, Belgium, Cambodia, Canada, Costa Rica, France, Germany, Iraq, Ireland, Italy, Lao PDR, the Netherlands, New Zealand, Norway, the Philippines, Spain, Switzerland, and the United Kingdom (UK). The US decision to transfer cluster munitions to Ukraine received worldwide media coverage and has been criticized by US congressional representatives, United Nations (UN) spokespersons, and the Cluster Munition Coalition (CMC).
Previous transfers
Previously, the last congressional sales notification for CBU-105 Sensor Fuzed Weapons was in July 2015. Congressional notifications show that the US had concluded agreements from 2008–2015 to sell the CBU-105 to India,[39] Oman,[40] Saudi Arabia,[41] Singapore,[42] South Korea,[43] Taiwan,[44] and the United Arab Emirates (UAE).[45]
In May 2016, a senior Department of Defense official said that the end-use provision of its 2012 agreement with Saudi Arabia and “a handful of other cases” was “incomplete.”[46] The Saudi Arabia-led coalition’s use of the CBU-105 in Yemen in 2015–2016 raised serious questions about whether the transfer requirements were being met.[47] In May 2016, the administration of President Barack Obama suspended US transfers of cluster munitions to Saudi Arabia after reports of their use in civilian areas in Yemen.[48]
While the historical record is incomplete, in the past, the US transferred hundreds of thousands of cluster munitions containing tens of millions of submunitions to at least 30 countries: Argentina, Australia, Bahrain, Belgium, Canada, Colombia, Denmark, Egypt, France, Germany, Greece, Honduras, India, Indonesia, Israel, Italy, Japan, Jordan, Morocco, the Netherlands, Norway, Oman, Pakistan, Saudi Arabia, South Korea, Spain, Thailand, Türkiye, the UAE, and the UK.[49]
In 2012, Chile’s Ministry of National Defense provided information showing that Chile transferred one 250kg cluster bomb and one 500kg cluster bomb to the US in 1991.[50]
Stockpiling
A 2004 Department of Defense report to the US Congress detailed a stockpile of 5.5 million cluster munitions of 17 different types, containing approximately 728.5 million submunitions, as listed in the following table. That total does not appear to be a full account of cluster munitions available to US forces, as it apparently does not include US cluster munition stocks located in foreign countries or stockpiled as part of the War Reserve Stocks for Allies (WRSA).[51]
Although it is outdated, the list from 2004 remains the most detailed public account of US cluster munition stocks.
US stockpile of cluster munitions (as of 2004)[52]
|
Type |
Number of submunitions per munition |
Munitions in active inventory |
Submunitions in active inventory |
Munitions in total inventory |
Submunitions in total inventory |
|
Rocket |
|||||
|
ATACMS 1 |
950 |
1,091 |
1,036,450 |
1,304 |
1,238,800 |
|
ATACMS 1A |
400 |
405 |
162,000 |
502 |
200,800 |
|
M26 MLRS |
644 |
369,576 |
238,006,944 |
439,194 |
282,840,936 |
|
M26A1 MLRS |
518 |
4,128 |
2,138,304 |
4,128 |
2,138,304 |
|
M261 MPSM |
9 |
74,591 |
671,319 |
83,589 |
752,301 |
|
Total |
449,791 |
242,015,017 |
528,717 |
287,171,141 |
|
|
Projectile |
|||||
|
M449 APICM |
60 |
27 |
1,620 |
40 |
2,400 |
|
M449A1 APICM |
60 |
24 |
1,440 |
49 |
2,940 |
|
M483/M483A1 |
88 |
3,336,866 |
293,644,208 |
3,947,773 |
347,404,024 |
|
M864 |
72 |
748,009 |
53,856,648 |
759,741 |
54,701,352 |
|
M444 |
18 |
30,148 |
542,664 |
134,344 |
2,418,192 |
|
Total |
4,115,074 |
348,046,580 |
4,841,947 |
404,528,908 |
|
|
Bomb |
|||||
|
Mk-20 Rockeye |
247 |
58,762 |
14,514,214 |
58,762 |
14,514,214 |
|
CBU-87 CEM |
202 |
99,282 |
20,054,964 |
99,282 |
20,054,964 |
|
CBU-103 CEM WCMD |
202 |
10,226 |
2,065,652 |
10,226 |
2,065,652 |
|
CBU-97 SFW |
10 |
214 |
2,140 |
214 |
2,140 |
|
CBU-105 SFW WCMD |
10 |
1,986 |
19,860 |
1,986 |
19,860 |
|
CBU-105 SFW P3I WCMD |
10 |
899 |
8,990 |
899 |
8,990 |
|
AGM-154A JSOW-A |
145 |
669 |
97,005 |
1,116 |
161,820 |
|
Total |
172,038 |
36,762,825 |
172,485 |
36,827,640 |
|
|
|
|||||
|
Grand Total |
4,736,903 |
626,824,422 |
5,543,149 |
728,527,689 |
|
Note: ATACMS=Army Tactical Missile System; MLRS=Multiple Launch Rocket System; APICM=Antipersonnel Improved Conventional Munition; CBU=Cluster Bomb Unit; CEM=Combined Effects Munition; WCMD=Wind Corrected Munitions Dispenser; SFW=Sensor Fuzed Weapon; JSOW=Joint Standoff Weapon.
Stockpile destruction
All cluster munition stocks that exceed or do not satisfy operational planning requirements were removed by the service and combatant commands from the active inventory by June 2009.[53]
In March 2019, the Department of Defense budget stated, “Currently, there are approximately 93,766 tons of cluster munitions” in the demilitarization account known as B5A. It also stated that another 203,024 tons of cluster munitions in the US remained outside of B5A. The Department of Defense budget for 2022 no longer details the amount of cluster munitions.
In April 2022, Expal USA was awarded a contract for the demilitarization and disposal of cluster munitions.[54]
Since 2007, there has been a separate funding source for the destruction of Multiple Launch Rocket System (MLRS) rockets and Army Tactical Missile System (ATACMS) missiles, with special destruction facilities for MLRS rockets at the Anniston Defense Munitions Center in Alabama and the Letterkenny Munitions Center in Pennsylvania.[55]
Recent funding for the destruction of cluster munitions (US$ million)[56]
|
Type |
Previous years |
FY 2021 |
FY 2022 |
FY 2023 (request) |
|
Cluster munitions (non-rockets) |
367 |
437 |
23 |
24 |
|
Cluster munition rockets |
521 |
20 |
7 |
7 |
Note: FY=Fiscal Year.
Foreign stockpiling and transit
The US appears to have removed its cluster munition stocks from the territories of at least two States Parties to the Convention on Cluster Munitions. The US removed its stockpiled cluster munitions from Norway in 2010,[57] while the UK announced in 2010 that there were now “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”[58]
The US has stockpiled, and may continue to store cluster munitions, in countries including States Parties Afghanistan, Germany, Italy, Japan, and Spain, and in non-signatories Israel, Qatar, and possibly Kuwait. This information is contained in the following US Department of State cables released by Wikileaks in 2010–2011:
- In Afghanistan, the “United States currently has a very small stockpile of cluster munitions,” according to a December 2008 cable.[59]
- Germany has engaged with the US on the matter of cluster munitions that may be stockpiled by the US in Germany, according to a December 2008 cable.[60]
- In Israel, US cluster munitions are “considered to be under U.S. title” until they are transferred for use by Israel in wartime.[61]
- Italy, Qatar, and Spain are identified in a November 2008 cable as “states in which the US stores cluster munitions,” even though apparently, Qatar “may be unaware of US cluster munitions stockpiles in the country.”[62]
- Japan “recognizes U.S. forces in Japan are not under Japan’s control and hence the GOJ [Government of Japan] cannot compel them to take action or to penalize them” in relation to possible storage of cluster munitions, according to a December 2008 cable.[63]
- The US may store clusters munitions in Kuwait, according to a May 2007 cable.[64]
[1] Josh Rogin, “The Trump administration cancels a plan to curtail the use of cluster bombs,” The Washington Post, 30 November 2017. The 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] Deputy Secretary of Defense Patrick Shanahan, “Memorandum for the Secretaries of the Military Departments, Subject: DoD Policy on Cluster Munitions,” 30 November 2017.
[4] The 2017 policy stipulates that cluster munitions procured by the US in the 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.
[5] For details 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.
[6] 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.
[7] “Implementation of the Convention on Cluster Munitions,” UNGA Resolution 77/79, 7 December 2022.
[8] Statement of the US, UNGA First Committee on Disarmament and International Security, New York, 4 November 2015.
[9] Statement of the US, UNGA First Committee on Disarmament and International Security, New York, 6 November 2019.
[10] Statement by Amb. Sheba Crocker, Permanent representative of the US to the United Nations (UN) in Geneva, Human Rights Council Urgent Debate on the Human Rights Situation in Ukraine, 3 March 2022.
[11] CSPAN (cspan), “.@USAmbUN Linda Thomas-Greenfield at #UNGA: ‘Now, at more than any other point in recent history, the United Nations is being challenged. If the United Nations has any purpose, it is to prevent war, it is to condemn war, to stop war. That is our job here today.’” 2 March 2022, 16:28 UTC. Tweet.
[12] Clerk of the House of Representatives, “Final vote results for roll call 317 on HR2670, recorded vote, Green of Georgia Amendment No. 48,” 13 July 2023.
[13] Branko Marcetic, “As Cluster Bombs Head to Ukraine, Progressive Dissent on the War Is Suddenly Allowed Again,” The Jacobian, 14 July 2023.
[14] The White House press release, “FACT SHEET: Changes to U.S. Anti-Personnel Landmine Policy,” 21 June 2022.
[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] 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,” 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: The Civilian Cost of US Targeted Killings in Yemen,” 22 October 2013.
[17] 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 dated 21 December 2009, released by Wikileaks on 4 December 2010.
[18] 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.
[19] 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 chapter. CMC, Cluster Munition Monitor 2018 (Geneva: ICBL-CMC, August 2018).
[20] Stéphanie Fillion, “The US, Reversing Course on Cluster Bombs, Is Testing New Ones in Israel,” PassBlue, 28 December 2018.
[21] 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, though “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.
[22] 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.
[23] “Last US cluster-bomb maker to cease production,” Agence France-Presse (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,” US Army, 22 April 2014.
[24] Marjorie Censer, “Textron to discontinue production of sensor-fuzed weapon,” Inside Defense, 30 August 2016.
[25] Marcus Weisgerber, “Northrop Grumman Says It Will Walk Away From Cluster Bomb Contract,” Defense One, 28 January 2021.
[26] Department of Defense Fiscal Year 2024 Budget Estimates, RDT&E – Volume II, Budget Activity 5B, “Cannon-Delivered Area Effects Munitions,” March 2023, Vol. 3B, pp. 154–163.
[27] Ibid.
[28] Department of Defense Fiscal Year 2024 Budget Estimates, “Procurement of Ammunition, Army,” March 2023, Vol. 1, p. 425.
[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.” Department of Defense, Fiscal Year 2022 Budget Estimates, “Army Justification Book Volume 1 of 1, Procurement of Ammunition, Army,” May 2021, pp. 333–334.
[30] Joint Program Executive Office Armaments and Ammunition, “C-DAEM DPICM Replacement (XM1208),” undated.
[31] Department of Defense Fiscal Year 2024 Budget Estimates, RDT&E – Volume II, Budget Activity 5B, “Cannon-Delivered Area Effects Munitions,” March 2023, Vol. 3B, pp. 154–163.
[32] Department of Defense Fiscal Year 2024 Budget Estimates, RDT&E – Volume III, Budget Activity 7, “Guided Multiple-Launch Rocket System (GMLRS),” March 2023, Vol. 4B, pp. 301–308.
[33] US Congress, 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, US Congress, Consolidated Appropriations Act, 2020, p. 346.
[34] 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,” 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,” 23 May 2016.
[35] The White House, “Press Briefing by Press Secretary Karine Jean-Pierre and National Security Advisor Jake Sullivan,” 7 July 2023; and Department of Defense, “Under Secretary of Defense for Policy Dr. Colin Kahl Holds Press Briefing,” 7 July 2023.
[36] Department of Defense press release, “Biden Administration Announces Additional Security Assistance for Ukraine,” 7 July 2023.
[37] Department of Defense, “Under Secretary of Defense for Policy Dr. Colin Kahl Holds Press Briefing,” 7 July 2023.
[38] John Ismay, “Cluster Weapons U.S. Is Sending Ukraine Often Fail to Detonate,” The New York Times, 8 July 2023; and Karen DeYoung, Alex Horton, and Missy Ryan, “Biden approves cluster munition supply to Ukraine,” The Washington Post, 6 July 2023.
[39] 510 CBU-105 announced in 2008 for an estimated $375 million. DSCA press release, “India – CBU-105 Sensor Fuzed Weapons,” Transmittal No. 08-105, 30 September 2008.
[40] 32 CBU-105 announced in 2012. Department of Defense, “36(b)(1) Arms Sales Notification,” Transmittal No. 12-66, 31 December 2012.
[41] 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; and DSCA press release, “Saudi Arabia – CBU-105 Sensor Fuzed Weapons,” Transmittal No. 10-03, 13 June 2011.
[42] Three CBU-105 announced in 2014. Department of Defense, “36(b)(1) Arms Sales Notification,” Transmittal No. 13-67, 21 January 2014.
[43] 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, “36(b)(1) Arms Sales Notification,” Transmittal No. 15-33, 21 July 2015.
[44] 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.
[45] 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, Department of State, to Nancy Pelosi, Speaker of the House of Representatives, Transmittal No. DDTC 017-07, 7 June 2007.
[46] 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, Principal Deputy Under Secretary of Defense, to Senator Patrick Leahy, 20 May 2016.
[47] HRW documented six instances of CBU-105 use in Yemen by the Saudi Arabia-led coalition in 2015–2016. In at least three attacks, HRW found that some submunitions or “skeet” either did not disperse from the BLU-108 canister, or dispersed but did not explode, therefore failing to function as intended and exceeding the 1% UXO rate. See, HRW, “Yemen: Saudis Using US Cluster Munitions,” 6 May 2016.
[48] 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.
[49] 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 in 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 the northwestern governorate of Saada 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 this use.
[50] 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.
[51] 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, and are to be 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. US Army Material Systems Analysis Activity, “Unexploded Ordnance (UXO) Study,” April 1996.
[52] 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, “Tomahawk Cruise Missile,” 14 August 2014 (no longer available online). The 2004 Department of Defense report also does not include artillery-fired SADARM cluster munitions (thought to number 715).
[53] 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.
[54] “Contract Award: Expal USA (Hooks, Texas) – $28,830,008,” Defense Daily, 15 April 2022.
[55] Department of the Army, “Procurement of Ammunition, Committee Staff Procurement Backup Book,” February 2011, pp. 729–730.
[56] Department of Defense, Fiscal Year 2023 Budget Estimates, “Army Justification Book Volume 1 of 1, Procurement of Ammunition, Army,” April 2022, pp. 723–726.
[57] 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, Ministry of Foreign Affairs of Norway, 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.
[58] 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 (FCO), House of Commons Debate, Written Answers, November 2011, Column 589W.
[59] “Demarche to Afghanistan on Cluster Munitions,” US Department of State cable 08STATE134777 dated 29 December 2008, released by Wikileaks on 2 December 2010.
[60] 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 (GFFO), 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.
[61] “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.
[62] “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.
[63] “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.
[64] 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.” Regarding 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.