United States

Cluster Munition Ban Policy

Last updated: 11 August 2015

Five-Year Review: Non-signatory the United States (US) rarely comments publicly on the question of its accession to the convention and has never participated in a meeting of the convention. In 2014 and 2015, US officials made more statements and supported more resolutions than ever before that expressed concern and/or condemned new use of cluster munitions in South Sudan, Sudan, Syria, and Ukraine.

The US maintains that cluster munitions have military utility, but with the exception of a 2009 strike in Yemen, it has not used them since 2003 in Iraq. There has been no evidence to indicate that the US is using cluster munitions in the “Operation Inherent Resolve” military action against forces of the Islamic State (IS) in Syria and Iraq. A 2008 policy requires that the US not use cluster munitions that result in more than 1% unexploded ordnance (UXO) after 2018.

Since 2007, the US has exported or transferred only cluster munitions that are supposed to meet this 1% UXO standard on the condition the weapons not be used in civilian areas. The use of US-made and -supplied CBU-105 cluster munitions by a Saudi Arabia-led coalition in Yemen in 2015 has raised questions about whether those requirements are being met. The US last budgeted funds to produce new cluster munitions in 2007. The US appears to have made significant progress in removing cluster munitions from the active stockpile and destroying them through demilitarization, despite a lack of detailed information from the Department of Defense on the process.

Policy

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

The US has privately acknowledged the “important contributions” made by the Convention on Cluster Munitions, but its government officials rarely comment publicly on the matter of US accession.[1]

According to a US Department of Defense “Laws of War Manual” issued in June 2015, “the United States has determined that its national security interests cannot be fully consistent with the terms of the Convention on Cluster Munitions.”[2] The US sees “demonstrated military utility” in cluster munitions, argues their “elimination from U.S. stockpiles would put lives of its soldiers and those of its coalition partners at risk,” and affirms that “cluster munitions can often result in much less collateral damage than unitary weapons.”[3] The Department of Defense Laws of War Manual lists cluster munitions under “lawful weapons” and states that “cluster munitions are not specifically prohibited or restricted by the law of war,” unlike antipersonnel landmines, which it lists under “prohibited weapons.”[4]

The US is a party to the Convention on Conventional Weapons (CCW), where it opposed the negotiation of a legally binding CCW protocol on cluster munitions until June 2007, after the Oslo Process to create the Convention on Cluster Munitions got underway.[5] The US then became one of the most ardent proponents of a new CCW protocol on cluster munitions, working intensively to forge agreement on a draft text. That initiative ended in November 2011, when states at the CCW’s Fourth Review Conference failed to reach consensus on adopting a draft cluster munitions protocol.[6] At the time, the US stated it was “deeply disappointed” by the CCW outcome and committed to continuing its adherence to its 2008 policy on cluster munitions.

Since 2011, the US has not proposed any further CCW work on cluster munitions and the Convention on Cluster Munitions remains the sole international instrument to specifically address cluster munitions.[7] An April 2014 report by the Congressional Research Service noted “doubts that CCW efforts to develop a cluster munitions protocol will be viable.”[8]

The Obama administration has continued to implement a cluster munition policy created under President George W. Bush in July 2008. Under the Department of Defense policy, by the end of 2018 the US will no longer use cluster munitions that result in more than 1% UXO.[9] The policy requires that cluster munitions used after 2018 meet a 1% UXO rate not only in testing, but in actual use during combat operations within the various environments that US forces operate in.

Until then, any cluster munition use that exceeds the 1% UXO rate must be approved by the Combatant Commander.[10] 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.”[11] 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 not later than 19 June 2009 and demilitarized as soon as practicable.[12]

Six years on, significant progress appears to have been made in implementation of the 2008 policy, despite a lack of public information from the Department of Defense (see Use, Production, Transfer, and Stockpiling sections below).

The US did not directly participate, not even as an observer, in the 2007–2008 diplomatic Oslo Process that resulted in the Convention on Cluster Munitions.[13] 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).[14] According to the Congressional Research Service report, “U.S. officials were concerned that early versions of the [draft treaty text] would prevent military forces from non-states parties from providing humanitarian and peacekeeping support and significantly affect NATO military operations.”[15]

The US has never participated in a meeting of the Convention on Cluster Munitions. It was invited to, but did not attend, the convention’s Fifth Meeting of States Parties in San José, Costa Rica in September 2014.

Recent Congressional initiatives relating to US cluster munitions policy include:

On 6 January 2015, US Senator Dianne Feinstein (Democrat [D]-California) and Senator Patrick D. Leahy (D-Vermont) reintroduced the Cluster Munitions Civilian Protection Act, Bill S. 28, while Representative Jim McGovern (D-Massachusetts) reintroduced the House equivalent, H.R. 157. The legislation limits US use of cluster munitions to munitions that have a 99% or higher reliability rate and prohibits their use in areas where civilians are known to be present.[16] The legislation, which also requires a clearance plan if the US uses cluster munitions, was referred to the Senate Foreign Relations Committee and the House Armed Services Committee.
In March 2015, Senator Leahy met senior Department of Defense officials and provided them with a list of questions concerning the Department’s implementation of the 2008 policy on cluster munitions.
On 17 March 2015, Senator Benjamin Cardin (D-Maryland) reintroduced the Syrian War Crimes Accountability Act, which “strongly condemns the…targeting of civilian populations…with cluster bombs.” On 9 June 2015, the Senate Committee on Foreign Relations referred the bill to the full Senate for consideration.[17]
On 15 June 2015, Representative Kay Granger (Republican-Texas) introduced the Department of State, Foreign Operations, and Related Programs Appropriations Act, which, in Section 7054, would limit the export licensing and sale of cluster munitions with a less than 99% reliability rate and require they be used only against clearly defined military targets with no known civilians present, or for the purpose of demilitarizing or permanently disposing of the cluster munitions. On 15 June 2015, the bill was reported by the House Appropriations Committee to the full House of Representatives for consideration.[18]

US NGOs continue to campaign for the US to ban cluster munitions and accede to the Convention on Cluster Munitions.[19] In a 30 March 2015 letter, the Cluster Munition Coalition US called on President Obama to initiate a review of the 2008 policy on cluster munitions with the objective of identifying and overcoming any remaining obstacles to accession to the convention so that the US can join as soon as possible.[20] In August 2013, the CMC warned the US against using cluster munitions in any military operation in Syria and urged the US to accede to the Convention on Cluster Munitions.[21]

Responses to new use of cluster munitions

In the course of 2014 and 2015, the US made more statements and supported more resolutions than ever before that expressed concern at or condemned new use of cluster munitions:

On 27 May 2014, the US voted in favor of a UN Security Council resolution expressing concern at the “indiscriminate” use of cluster munitions in South Sudan.[22]
On 21 October 2014, State Department Deputy Spokesperson Marie Harf acknowledged reports of cluster munition use in Ukraine and “called again on all sides to take steps to protect civilian lives.”[23]
On 24 October 2014, the US expressed concern at the reported use of cluster munitions in Ukraine during a UN Security Council debate, and called for an investigation.[24]
On 29 October 2014, at an Organization for Security and Co-operation in Europe (OSCE) meeting, the US expressed concern at reports of cluster munition use in Ukraine and requested an investigation.[25]
On 13 November 2014, at a CCW meeting, the US expressed concern at “disturbing reports” of new use of cluster munitions and attended—along with a number of states—a side event briefing by Human Rights Watch on the use of cluster munitions in Ukraine.[26]
On 18 December 2014, the US voted in favor of a UN General Assembly (UNGA) resolution condemning the use of cluster munitions in Syria. It voted for two other UNGA resolutions in 2013–2014 containing similar language condemning cluster munition use in Syria.[27]
On 29 June 2015, the US voted in favor of a UN Security Council resolution that also expressed concern at evidence of cluster munition use in Darfur and called on the government of Sudan to “immediately investigate."[28]
On 2 July 2015, the US voted in favor of a Human Rights Council resolution that “condemns the use by the Syrian authorities of…cluster munitions.” It voted for three other Human Rights Council resolutions in 2014 and 2015 that contained similar language condemning the use of cluster munitions in Syria.[29]

The use of cluster munitions in Yemen since a Saudi Arabia-led coalition of states began airstrikes in late March 2015 has attracted widespread media coverage, public outcry, and condemnations.[30] On 4 May 2015, State Department Acting Deputy Spokesperson Jeff Rathke said the US was looking at reports US-manufactured and -supplied CBU-105 cluster munitions were being used by the coalition in Yemen. He said “we share the concerns regarding unintended harm to civilians caused by the use of cluster munitions.” Rathke reiterated US policy to not transfer cluster munitions with more than a 1% failure rate and the requirement that recipients commit that the cluster munitions “will be used only against clearly defined military targets.”[31]

As of 15 July 2015, the US has not expressed its views on the use of cluster munitions in Libya in 2015. The US is not a party to the 1997 Mine Ban Treaty, but on 27 June 2014, the Obama administration announced an immediate ban on US production and acquisition of antipersonnel landmines and, on 23 September 2014, President Obama announced a ban on US use of antipersonnel mines, except in Korea.[32] The White House described the new policy as part of a package of measures to enable future US accession to the Mine Ban Treaty. Since 2009, it has become a regular observer at Mine Ban Treaty meetings.

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); Iraq (2003); and Yemen (2009).[33]

There has been no evidence to indicate that the US is using cluster munitions in the “Operation Inherent Resolve” military action against forces of the Islamic State that began in 2014 in Syria and Iraq. In 2015, the US is providing logistical and other support to the Saudi Arabia-led coalition of states that is undertaking airstrikes in Yemen using cluster munitions.

The last time the US used cluster munitions was on 17 December 2009, when at least five TLAM-D cruise missile with 166 BLU-97 submunitions was used to attack 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.[34] Cluster munition remnants were never cleared and have killed four more civilians and wounded 13 others since the attack, most recently in January 2012.[35] Neither the US nor the Yemeni government has publicly responded to the reported use and neither has denied US responsibility for the attack.[36] Senators Feinstein and Leahy referred to the 2009 strike in Yemen and resulting civilian casualties in a July 2013 letter that requested “detailed information on the use of cluster munitions” since the 2008 Department of Defense policy on cluster munitions was issued.[37]

A 2014 Congressional Research Service report asserts that the US military has not used cluster munitions since 2003 and suggests that, “For subsequent military operations, where cluster munitions would otherwise have been the weapon of choice, Congress might review what types of weapons were substituted in place of cluster munitions and how effective they were in achieving the desired tactical results. Also worth considering are effects-based weapons systems and operations, which seek to achieve the same or similar effect against a potential target without applying a ‘kinetic solution’ such as a cluster munition. Such insights could prove valuable in analyzing U.S. policy options on the future of cluster munitions.”[38]

Production

Since 2005 all submunitions produced by the US must have a failure rate of less than 1%, according to policy issued in 2001 by =Secretary of Defense William Cohen.[39] The US last budgeted funds to produce new cluster munitions in 2007.[40]

The Air Force, Army, and the Office of the Secretary of Defense continue research and development activities at the applied research level to develop alternatives to cluster munitions as well as improve the reliability of existing submunitions and develop new types of submunitions.[41]

The Guided Multiple Launch Rocket System-Alternate Warhead (GMLRS-AW) is one weapon the Army is developing to replace cluster munitions. Initial operational tests and evaluation of the warhead conducted in October and November 2014 reportedly found it was “accurate and reliable.” In January 2015, a spokesman for the Army program office charged with developing the warhead informed Inside the Army that, “results from the production qualification tests, combined developmental test/operational test, as well as modeling and simulation indicate that the system meets —and in some cases exceeds—the requirement for effectiveness.” The service was scheduled to make “a full-rate production decision” for the weapon in March 2015, with plans to acquire 18,072 warheads. Lockheed Martin is the “prime contractor” for the weapon.[42]

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

Transfer

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, South Korea, Morocco, the Netherlands, Norway, Oman, Pakistan, Saudi Arabia, Spain, Thailand, Turkey, the United Arab Emirates (UAE), and the United Kingdom (UK).[43] In 2012, Chile’s Ministry of National Defense provided information showing a transfer to the US in 1991 of one 250kg cluster bomb and one 500kg cluster bomb.[44]

The US first instituted a moratorium on the export or transfer of cluster munitions that do not meet the 1% UXO standard in a 2007 appropriations (budget) bill at the initiative of Senator Leahy. The moratorium was extended the following year as the 2008 Consolidated Appropriations Act, but again the restrictions only applied to that fiscal year.[45] The 2009 Omnibus Appropriations Act contained similar restrictions as the previous appropriations bills; it prohibited the provision of military assistance for cluster munitions, the issuing of defense export licenses for cluster munitions, or the sale or transfer of cluster munitions or cluster munitions technology 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.”[46]

The same export moratorium language was included in the 2010 Consolidated Appropriations Act signed into law by President Obama on 16 December 2009.[47] Similar export moratorium language was included in the 2012 Consolidated Appropriations Act (P.L. 112-74) signed into law on 23 December 2011,[48] the 2013 Continuing Appropriations Resolution signed into law on 28 September 2012,[49] and the 2013 Consolidated and Further Continuing Appropriations Act.[50]

On 19 May 2011, the Defense Security Cooperation Agency (DSCA)—the US government agency that administers weapons transfers—issued a memorandum on the sale of cluster munitions that incorporates these legal requirements into DSCA policy by adding them to the Security Assistance Management Manual. According to the memorandum, “the only cluster munition with a compliant submunition (one that does not result in more than 1% UXO across the range of intended operational environments) is the CBU-97B/CBU-105, Sensor Fuzed Weapon (SFW).”[51]

Since 2008, Congressional notifications show that the US has exported CBU-105 Sensor Fuzed Weapons to India (510 CBU-105 announced in 2008),[52] the UAE (an unknown number of announced in 2010),[53] Saudi Arabia (404 CBU-105 announced in 2011),[54] Taiwan (64 CBU-105 announced in 2011),[55] and South Korea (367 CBU-105 announced 2012).[56]

The use of US-manufactured and -supplied CBU-105 by a Saudi Arabia-led coalition in Yemen in 2015 has raised questions about whether the transfer requirements are being met. According to the 2008 policy, prior to 2018 the Department of Defense “may, consistent with U.S. law and policy, seek to transfer cluster munitions that do not meet the 1% UXO rate provided that the receiving foreign government agrees not to use these cluster munitions after 2018.” It is unclear what, if any, transfers have occurred under this provision. The Saudi Arabia-led coalition also used US-made cluster munitions that do not meet the 1% UXO rate, but it is not known when the munitions were acquired from the US.

Stockpiling

In 2011, the US stated it has a stockpile of “more than 6 million cluster munitions.”[57] In 2009, a US Department of State official said the stockpile of “more than 5 million cluster munitions with 700 million submunitions” would cost $2.2 billion to destroy using current demilitarization capabilities.[58] An October 2004 Department of Defense report to the US Congress detailed a stockpile of 5.5 million cluster munitions of 17 different types containing about 728.5 million submunitions, as listed in the following table, but that number does not appear to be a full accounting of cluster munitions available to US forces as it apparently does not include US cluster munitions stocks located in foreign countries or stockpiled as part of the War Reserve Stocks for Allies (WRSA).[59]

US stockpile of cluster munitions (as of 2004)[60]

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

According to one report, “the Pentagon estimates that ‘upward of 80 percent of U.S. cluster munitions reside in the Army artillery stockpile.’”[61]

Stockpile destruction

The 2008 policy required that the services and combatant commands remove all cluster munition stocks that exceed or do not satisfy operational planning requirements from the active inventory by June 2009. The US appears to have made significant progress in removing cluster munitions from the active stockpile and destroying them through demilitarization, despite a lack of detailed information from the Department of Defense on the process, including the number and types of cluster munitions.

In February 2015, the Army disclosed that there are currently “approximately 221,502 tons of cluster munitions in the demil [demilitarization account] stockpile” and “an additional 250,224 tons are expected to be added into the [demilitarization account] no later than FY 2018 to ensure compliance with the Cluster Munitions Policy.”[62] Between 2000 and 2012, the US destroyed 9,400 tons of outdated cluster munitions (not including missiles and rockets) on average per year, at an annual cost of $7.2 million.[63]

US company General Dynamics Ordnance and Tactical Systems describes its US-based demilitarization facility as “the largest cluster munitions disposal facility in the world.”[64] In 2013 and 2015, General Dynamics was awarded contracts to demilitarize US cluster munitions and other weapons.[65] In June 2014, General Dynamics completed the destruction of Canada’s stockpile of 12,597 M483A1 projectiles and 1,108,536 DPICM submunitions (806,208 M42 and 302,328 M46) at its facility outside Joplin, Missouri.[66]

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 requested $109 million for the destruction of 98,904 M26 MLRS rockets from fiscal year 2007 to fiscal year 2012.[67]

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. According to a Norwegian Ministry of Foreign Affairs official, the US removed its stockpiled cluster munitions from Norway in 2010.[68] The UK announced in 2010 that there were now “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”[69]

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:

In Afghanistan, the “United States currently has a very small stockpile of cluster munitions,” according to a December 2008 cable.[70]
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.[71]
In Israel, US cluster munitions are “considered to be under U.S. title” until they are transferred from the War Reserve Stockpiles for use by Israel in wartime. A cable on the inaugural meeting on 1 May 2008 of the U.S.-Israeli Cluster Munitions Working Group (CMWG) states that “U.S. legislation now prevents such a transfer of any cluster munitions with less than a one percent failure rate.”[72]
Italy, Spain, and Qatar are identified in a November 2008 cable as “states in which the US stores cluster munitions,” even though apparently Qatar “may be unaware of US cluster munitions stockpiles in the country.”[73]
Japan “recognizes U.S. forces in Japan are not under Japan’s control and hence the GOJ [Government of Japan] cannot compel them to take action or to penalize them,” according to a December 2008 cable.[74]
The US might be storing clusters munitions in Kuwait, according to a May 2007 cable.[75]

[1] In a February 2009 cable, the US commended Norwegian Minister of Foreign Affairs Jonas Gahr Støre for the “successful conclusion” of the Convention on Cluster Munitions. 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.” “Part III: Norwegian FM [Foreign Minister] Støre: The World at His Feet,” US Department of State cable 09OSLO116 dated 13 February 2009, released by Wikileaks on 1 September 2011.

[2] The Manual paraphrases a 2009 statement by US State Department legal advisor Harold Hongju Koh at a Convention on Conventional Weapons meeting that “We realize many delegations here are parties to the Convention on Cluster Munitions (CCM). However many States, including the United States, have determined that their national security interests cannot be fully ensured consistent with the terms of the CCM.” Statement of US, CCW Protocol V meeting, Geneva, 9 November 2009. In Department of Defense Office of General Counsel, “Department of Defense Laws of War Manual,” June 2015, section 6.13.4. http://www.defense.gov/pubs/Law-of-War-Manual-June-2015.pdf

[3] US Department of State webpage, “Cluster Munitions,” undated.

[4] Department of Defense, Office of General Counsel, “Department of Defense Laws of War Manual,” June 2015, Section 6.13.

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

[6] Throughout the negotiations, the US supported the main tenants 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.

[7] Permanent Mission of the US to the UN in Geneva Press Statement, “U.S. Deeply Disappointed by CCW’s Failure to Conclude Protocol on Cluster Munitions,” Geneva, 25 November 2011.

[8] Andrew Feickert and Paul K. Kerr, “Cluster Munitions: Background and Issues for Congress,” Congressional Research Service, 29 April 2014, pp. 6–7.

[9] 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.

[10] 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.

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

[12] Secretary of Defense Gates, “Memorandum for the Secretaries of the Military Departments, Subject: DOD Policy on Cluster Munitions and Unintended Harm to Civilians,” 19 June 2008. The US has not reported any details on the removal of stocks, or whether the undertaking has been completed.

[13] For details 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.

[14] 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. 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.

[15] Andrew Feickert and Paul K. Kerr, “Cluster Munitions: Background and Issues for Congress,” Congressional Research Service, 29 April 2014.

[16] The draft legislation was referred to the Senate Foreign Relations Committee, Cluster Munitions Civilian Protection Act, 2015 (S. 28), and the House Armed Services Committee, Cluster Munitions Civilian Protection Act, 2015 (H.R. 157). Neither bill has moved to a further stage in the legislative process.

[17] Syrian War Crimes Accountability Act, 2015 (S. 756).

[18] Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 (H.R. 2772).

[19] In January 2014, Human Rights Watch (HRW) became the chair of the US Campaign to Ban Landmines, which has also coordinated US NGO activities on US cluster munition policy and practice on behalf of the CMC. In early 2015, separate websites for the US Campaign to Ban Landmines and the Cluster Munition Coalition US were launched.

[20] The coalition also called on the US to start participating as an observer in regular meetings of the Convention on Cluster Munitions, starting with the First Review Conference in Dubrovnik, Croatia in September 2015. See, Cluster Munition Coalition US, "US must commit to no cluster bomb use,” 2 April 2015.

[21] CMC Web Post, “Say no to possible US use of cluster munitions in Syria intervention,” 28 August 2013.

[22] The resolution noted “with serious concern reports of the indiscriminate use of cluster munitions” and called for “all parties to refrain from similar such use in the future.” UN Security Council, “Security Council, Adopting Resolution 2155 (2014), Extends Mandate of Mission In South Sudan, Bolstering Its Strength to Quell Surging Violence,” SC11414, 27 May 2014.

[23] US State Department, Transcript of Department of State Daily Press Briefing, 21 October 2014. However, in February 2015, State Department spokesperson Jen Psaki said she was unaware of reports of cluster munition use in Ukraine. “Transcript of Department of State, Daily Press Briefing,” 9 February 2015.

[24] Provisional report of the 7287th meeting of the UN Security Council, S/PV.7287, 24 October 2014, p. 21.

[25] Statement of the US, Meeting of the OSCE Permanent Council, Vienna, 29 October 2014.

[26] Statement of the US, CCW Meeting of High Contracting Parties, Geneva, 13 November 2014.

[27] “Situation of human rights in the Syrian Arab Republic,” UNGA Resolution A/RES/69/189, 18 December 2014. The US voted in favor of similar resolutions on 15 May and 18 December 2013.

[28] The five permanent members of the UN Security Council voted for the resolution in addition to non-permanent members, Angola, Chad, Chile, Jordan, Lithuania, Malaysia, New Zealand, Nigeria, Spain, and Venezuela.

[29] “The grave and deteriorating human rights and humanitarian situation in the Syrian Arab Republic,” Human Rights Council Resolution A/HRC/29/L.4, 2 July 2015; “The continuing grave deterioration in the human rights and humanitarian situation in the Syrian Arab Republic,” UN Human Rights Council Resolution A/HRC/RES/28/20, 27 March 2015; “The continuing grave deterioration in the human rights and humanitarian situation in the Syrian Arab Republic,” UN Human Rights Council Resolution A/HRC/RES/26/23, 27 June 2014; and “The continuing grave deterioration of the human rights and humanitarian situation in the Syrian Arab Republic,” UN Human Rights Council Resolution A/HRC/RES/25/23, 28 March 2014.

[30] See, for example, John Hudson, “U.S.: Saudis Can Use Cluster Bombs in Yemen, But Only if They’re Extra Careful,” Foreign Policy, 4 May 2015.

[31] US State Department, “Transcript of Department of State Daily Press Briefing,” 4 May 2015. The reporter asked, “Why is it so important to use them or to continue to sell them? Is it just a money-making thing for arms manufacturers? I mean, there are clearly a lot of problems with them. Why is it U.S. policy to sell them – to transfer them at all, given the fact that you can’t guarantee this 1 percent rate? And some might argue that even 1 percent is too much.”

[32] Statement of the US, Mine Ban Treaty Third Review Conference, Maputo, 27 June 2014. See also, HRW, “US: A Step Closer to Landmine Treaty,” 6 October 2014.

[33] 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. 256. See also the Timeline of Use contained in Cluster Munition Monitor 2015’s Ban Policy Overview.

[34] 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. See also “U.S. missiles killed civilians in Yemen, rights group says,” CNN, 7 June 2010.

[35] The most recent casualty was on 24 January 2012, when a boy brought home a BLU-97 submunition that exploded, killing his father and wounding the boy and his two brothers. Those affected by the cluster munition strike on al-Ma‘jalah have not received any compensation for the casualties caused or damaged property. See HRW, “Between a Drone and Al-Qaeda,” 22 October 2013.

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

[37] The letter is available on Senator Feinstein’s website.

[38] Andrew Feickert and Paul K. Kerr, “Cluster Munitions: Background and Issues for Congress,” Congressional Research Service, 29 April 2014, p. 6.

[39] 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 yearsare exempt from the policy, but, “Future submunitions must comply with the desired goal of 99% or higher submunition functioning rate or must receive a waiver.” Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Report to Congress: Cluster Munitions,” October 2004, p. ii.

[40] For details on the production of cluster munitions by the US from 2005 to 2007, 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.

[41] 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.

[42] Justin Doubleday, “Pentagon’s Civilian-Friendly Cluster Bomb May Not Be Deadly Enough,” Inside the Army, 26 January 2015.

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

[44] 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.

[45] Consolidated Appropriations Act, 2008 (P.L. 110-161).

[46] Omnibus Appropriations Act, 2009 (P.L. 111-8).

[47] Consolidated Appropriations Act, 2010 (P.L. 111-117).

[48] Consolidated Appropriations Act, 2012 (P.L. 112-74).

[49] Continuing Appropriations Resolution, 2013 (P.L. 112-175).

[50] Consolidated and Further Continuing Appropriations Act, 2013 (P.L. 113-6).

[51] It also stated that the CBU-107 Passive Attack Weapon, which contains non-explosive rods, is not captured by the ban. DSCA, “Guidance on the Sale of Cluster Munitions, DSCA Policy 11-33,” Memorandum, Washington, DC, 19 May 2011.

[52] DSCA News Release, “India – CBU-105 Sensor Fuzed Weapons,” Transmittal No. 08-105, Washington, DC, 30 September 2008.

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

[54] DSCA news release, “Saudi Arabia – CBU-105 Sensor Fuzed Weapons,” Transmittal No. 10-03, Washington, DC, 13 June 2011.

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

[56] DSCA Press Release, “Republic of Korea – CBU-105D/B Sensor Fuzed Weapons,” Transmittal No. 12-23, Washington, DC, 4 June 2012.

[57] Statement of the US, CCW Fourth Review Conference, Geneva, 14 November 2011. In a 2011 presentation to CCW delegates, the US claimed that “around two million” cluster munitions would be captured by a CCW proposal to ban 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 Department of Defense in a report to Congress in late 2004.

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

[59] 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. The report lists 626,824,422 submunitions in the “Active Inventory” and 728,527,689 in the “Total Inventory.” Under the War Reserve Stocks for Allies program, munitions are stored in foreign countries, but kept under US title and control, then made available to US and allied forces in the event of hostilities. In 1994, the stockpile, including WRSA, consisted of 8.9 million cluster munitions containing nearly 1 billion submunitions. See US Army Material Systems Analysis Activity, “Unexploded Ordnance (UXO) Study,” April 1996.

[60] 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 and submarines, which deliver BLU-97 submunitions. US Navy Fact File, “Tomahawk Cruise Missile,” 14 August 2014. The 2004 Department of Defense report also does not include artillery-fired SADARM cluster munitions (thought to number 715).

[61] Daniel Wasserbly, “Army Warhead Program to Reduce Dud Rate for Cluster Munitions,” InsideDefense.com, 21 July 2008. Quoted in Andrew Feickert and Paul K. Kerr, “Cluster Munitions: Background and Issues for Congress,” Congressional Research Service, 29 April 2014, p. 5.

[62] Department of Defense, “Fiscal Year (FY) 2016 President's Budget Submission,” February 2015.

[63] 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.

[64] See, General Dynamics website, “About Munition Services,” undated.,Form B,nitions within the last pe (ld be in size 14 text. If not, should be de-capitolized. itial one) and text size reduced to

[65] On 18 February 2015, General Dynamics was awarded a $9.3 million contract to demilitarize 3,248 cluster bomb units and other high explosive cartridges. See: Department of Defence, “Contracts,” 18 February 2015. On 29 August 2013, General Dynamics Ordnance and Tactical Systems was awarded a $11.7 million contract for the destruction of 49,387 rounds of Improved Conventional Munitions and 5,192 Cluster Bomb Units. The contract was for $11,714,490. Department of Defence, “Contracts,” 29 August 2013.

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

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

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

[69] Section 8 of the UK’s legislation states that its foreign secretary may grant authorization for visiting forces of states not party to the Convention on Cluster Munitions to “possess cluster munitions on, or transfer them through, UK territory.” In November 2011, UK officials stated that the only such authorization given to date was provided by former Foreign Secretary David Miliband to the US Department of State to permit the US to transfer its cluster munitions out of UK territory. Statement by Jeremy Browne, Minister of State, Foreign and Commonwealth Office, House of Commons Debate, Hansard, (London: Her Majesty’s Stationary Office, 1 November 2011), Column 589W.

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

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

[72] “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.

[73] “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.

[74] “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.

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