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Country Reports
USA

United States of America

The United States of America has not signed the Convention on Cluster Munitions. It did not participate directly at all in the diplomatic “Oslo Process” in 2007–2008 to develop and negotiate the convention, which as of April 2009 had been signed by 96 nations, including most of the US’s closest military allies.

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

The US has been the most prolific user of cluster munitions, and one of the biggest producers and exporters as well. It stockpiles cluster munitions containing between 700 million and one billion submunitions.

The US is party to the Convention on Conventional Weapons (CCW) and ratified Protocol V on Explosive Remnants of War (ERW) on 21 January 2009.

Cluster Munition Ban Policy

The US was among the first nations to take steps at the national level to lessen the dangers that cluster munitions pose to civilians. It focused on technical measures to improve the reliability and accuracy of the weapons—steps that also made cluster munitions more appealing from a military perspective. In 2001, then-Secretary of Defense William Cohen issued a policy memorandum stating that all submunitions reaching a production decision in fiscal year 2005 and beyond must have a dud rate of less than 1%.[2] This policy did not affect the hundreds of millions of submunitions already in US arsenals.

At the international level, the US was not interested in any new rules or regulations on cluster munitions, much less any sort of prohibition. Its position was that the best way to address cluster munitions, as one of many types of ERW, was through the implementation of existing humanitarian law and improvements in the technical reliability of munitions. During the discussions, then negotiations, on ERW in the Convention on Conventional Weapons from 2001–2003, the US would only accept provisions dealing with post-conflict remedial measures, but would not discuss possible use restrictions or specific weapons systems, such as cluster munitions.[3]

Some states kept the issue of cluster munitions on the CCW agenda, however, and in response to concerns raised over their indiscriminate effects, the US in 2004 said it would join an effort aimed at “increasing reliability of cluster munitions through improved fusing and self-destruct mechanisms” and said that “[e]hancing the reliability of munitions systems is an important goal from a military as well as a humanitarian point of view.”[4] The US was still not interested in discussing any restrictions on use of the weapon.[5]

In September 2006, Senator Dianne Feinstein, along with Senator Patrick Leahy, introduced the first legislative action in the US to address cluster munitions. Their proposed amendment, to “protect civilian lives from unexploded cluster munitions,” would have prevented the use of cluster munitions by US armed forces in or near any concentrated population of civilians. It was defeated 30–70.[6]

As international pressure to deal with cluster munitions grew in 2006, especially after Israel’s massive use of the weapons in south Lebanon, a number of CCW States Parties began calling for the negotiation of a new international legally-binding instrument on cluster munitions. At the opening of the CCW Third Review Conference in November 2006, however, the US position was that it was unnecessary to talk about new rules of international humanitarian law. Instead, states should apply existing laws “rigorously” and focus on the implementation of Protocol V on ERW.[7] The US rejected a specific proposal for a mandate to negotiate a legally-binding instrument “that addresses the humanitarian concerns posed by cluster munitions.”[8] The US agreed not to block a compromise proposal from the United Kingdom for a vague mandate to “consider further the application and implementation of existing international humanitarian law” to weapons which might cause ERW, “with a particular focus on cluster munitions.”[9]

At closing of the Review Conference on 17 November 2006, in the wake of the failure of the CCW to take meaningful steps on cluster munitions, Norway announced its decision to initiate the Oslo Process. The US responded by saying that “the US government was disappointed at the announcement…of a separate meeting to go outside this CCW framework to have talks and to negotiate concerning cluster munitions. While recognizing that this is an important humanitarian issue, the process to deal with cluster munitions, we feel, should be one that is inside the current framework, the framework of the CCW. The effort to go outside, we think, is not healthy for the CCW, is not healthy for the development of widely adhered to rules of international humanitarian law.…”[10]

At the next CCW meeting, in June 2007, the US announced a shift in its stance on international action, indicating that it was now prepared not only to talk about cluster munitions, but even to consider future negotiations as long as they occurred in the framework of the CCW.[11] Some observers described the shift as more of an attempt to deal with the Oslo Process than an attempt to address cluster munitions, with no real indication that US views on cluster munitions had changed at all.[12] The US maintained that “cluster munitions continue to be legitimate weapons when employed properly and in accordance with existing international humanitarian law” and argued that “in many instances, cluster munitions result in much less collateral damage than unitary weapons would if used for the same mission.”[13]

A few months earlier, in February 2007, Senators Feinstein and Leahy, and Representative James McGovern, had introduced the “Cluster Munitions Civilian Protection Act of 2007.” The act would limit the use and transfer of cluster munitions to those munitions that have a 99% or higher reliability rate, and would prohibit use of cluster munitions in areas where civilians are known to be present. The act would also require the President to submit a plan to Congress for clean-up of unexploded duds if the US used cluster munitions or if another country used cluster munitions that it had received from the US.[14] The act gathered support in the Senate and House of Representatives throughout 2007 and 2008, but was not brought to a vote.

In December 2007, Congress passed the Consolidated Appropriations Act for fiscal year 2008 which placed a one-year moratorium on the transfer of cluster munitions unless they have a 99% or higher tested reliability rate. The legislation also required that any state receiving cluster munitions from the US must agree that those cluster munitions will only be used against clearly defined military targets and will not be used in areas where civilians are known to be present.[15]

At the end of 2007, CCW States Parties could still not agree on a mandate to negotiate a legally-binding instrument on cluster munitions, but instead agreed to “negotiate a proposal.” The US continued to assert that the CCW was the most appropriate framework for negotiation on cluster munitions, because “it is most likely to achieve a result that balances humanitarian concerns with military utility and is, therefore, likely to have a more substantial impact than a result that fails to garner the support of many military powers.”[16]

At the beginning of the CCW negotiations in 2008, the US opposed any sort of ban on cluster munitions and suggested that identifying good military practices relating to the use of cluster munitions, such as “protections and safeguards that can be implemented through the targeting process,” could be beneficial, but only in the form of best practice measures, not legally-binding treaty provisions. The US supported addressing technical improvements for the reliability of cluster munitions as a “long term” approach to addressing humanitarian concerns, but stated that “the cost and complexity of implementing such improvements suggest that it will not be possible to achieve consensus on requiring [technical] improvements immediately or on a short-term basis.”[17]

After the adoption of the Convention on Cluster Munitions by 107 States (including 71 CCW States Parties) in Dublin in May 2008, the US said that it chose not to participate in the process because it did “not support a sweeping ban on cluster munitions” and stated that it did not view the new convention as establishing a norm against the use of cluster munitions.[18] Senators Feinstein and Leahy introduced a joint resolution calling on the US to sign the convention when it opened for signature in December 2008.[19]

While not participating directly in the Oslo Process and the negotiations, the US worked hard to influence them. A State Department official said the US had communicated its views on the process and draft convention to more than 100 nations. Foremost among the concerns it raised with other states about the possible impact of a future convention that prohibits cluster munitions was the issue of “interoperability” (joint military operations involving the US and States Parties to the convention), with the US seeking to ensure that a new convention did not inhibit its ability to employ cluster munitions in NATO and other coalition military operations.[20]

During the negotiations, campaigners in Dublin, the US, and elsewhere protested US efforts to undermine the convention. US Senator Patrick Leahy visited the Dublin negotiations, where he urged delegates to “be guided by the conviction that this is, above all, more than a military issue. It is a moral issue.”[21] Nobel Peace Laureate Jody Williams, through statements to the media, challenged the US to come to Dublin to “do its own dirty work and not hide behind its allies.”[22] Victims of cluster munitions used by the US in Afghanistan, Cambodia, and Iraq joined campaigners outside the US embassy in Dublin on 23 May 2008 to protest what they called the “elephant not in the room” at the Dublin negotiations.

On 9 July 2008, the US Department of Defense released a new policy stating that by the end of 2018, the US will no longer use cluster munitions that result in more than 1% unexploded ordnance (UXO).[23]  Until 2018, effective immediately, use of cluster munitions that exceed the 1% UXO rate must be approved by the Combatant Commander.[24] The government has stated that the 10-year transition period “is necessary to develop the new technology, get it into production, and to substitute, improve, or replace existing stocks.”[25]

According to the policy memorandum issued by Secretary of Defense Gates, military departments will also initiate removal of all cluster munition stocks “that exceed operational planning requirements or for which there are no operational planning requirements” from active inventories as soon as possible, but no later than 19 June 2009. These excess cluster munitions will be demilitarized as soon as practicable.[26]

The Department of Defense stated that the new policy “is viewed as a viable alternative to a complete ban proposal generated by the Oslo Process in Dublin, Ireland,” and the policy serves as the basis for the US position in negotiations on an agreement on cluster munitions in the CCW.[27]

By November 2008, when CCW negotiations were scheduled to conclude, the US was one of the strongest supporters of a draft protocol on cluster munitions. The US favored an optional set of restrictions on cluster munitions, although it maintained that in practice these would result in the replacement of 95% of cluster munitions in its stockpiles.[28] It insisted on the necessity of a transition period before key requirements took effect.[29] It opposed a deadline for stockpile destruction.[30] While it supported the inclusion of provisions for assistance to the victims of cluster munitions, the US was among the few states that raised objections to a broad definition of victim which included the victim’s family and affected communities,[31] and proposed weakening language on victim assistance taken from the Convention on Cluster Munitions.[32]

When the CCW failed to reach agreement on an instrument on cluster munitions at the end of the November 2008 session, the US stated it was deeply disappointed and accused states, especially those associated with the Oslo Process, of leaving “significant humanitarian benefits on the table” and “risking the credibility of the CCW.”[33] States Parties agreed to continue work on cluster munitions in 2009.

The US export ban that had been in place since 2007 was made permanent on 11 March 2009 when an omnibus budget bill (HR 1105) was signed into law.[34] On 11 February 2009, the “Cluster Munitions Civilian Protection Act” (S. 416/H.R. 981) was reintroduced in the Senate by Senators Feinstein and Leahy and in the House by Representative McGovern.[35] As of April 2009, the legislation had attracted 24 Senate cosponsors.

The US Campaign to Ban Landmines and Cluster Bombs, coordinated by the Washington, DC-based Friends Committee on National Legislation, spearheads NGO campaigning in the US against cluster munitions.[36] From 6–17 October 2008, the US Campaign organized a speaking tour by cluster munition survivors from Afghanistan, Lebanon, and the US through 11 Midwest cities to build awareness and support for the ban.

The US did not participate in the Oslo Signing Conference of the Convention on Cluster Munitions on 3–4 December 2008, although 20 other observer states attended. When asked, a White House spokesperson could not explain why the Bush administration was not signing.[37] An Obama spokesperson released a statement that said: “President-elect Obama is deeply concerned about the well-being of civilians in situations of conflict, as reflected by his support of the legislation in 2006 that would have prohibited the use of cluster munitions near concentrations of civilians. As president, he will carefully review the new treaty and work closely with other countries to ensure that the United States is doing everything feasible to promote protection of civilians in conflict.”[38]

On 10 February 2009, leaders of 67 US organizations sent a joint letter to President Obama requesting a review of US policy on landmines and cluster munitions. As of April 2009, no response had been received.

Use

The US used cluster munitions in Cambodia, Lao PDR, and Vietnam in the 1960s and 1970s, Grenada in 1983, Lebanon in 1983, Iraq, Kuwait, and Saudi Arabia in 1991, Serbia, Montenegro, and Kosovo in 1999, Afghanistan in 2001 and 2002, and Iraq in 2003. Despite the ongoing conflicts, they have not used cluster munitions in Afghanistan since 2002 or in Iraq since 2003.

US forces made extensive use of cluster munitions in bombing campaigns in Cambodia, Lao PDR and Vietnam between 1965 and 1975. According to an analysis of US bombing data by Handicap International, approximately 80,000 cluster munitions, containing 26 million submunitions, were dropped on Cambodia between 1969 and 1973; over 414,000 cluster bombs, containing at least 260 million submunitions, were dropped on Lao PDR between 1965 and 1973; and over 296,000 cluster munitions, containing nearly 97 million submunitions, were dropped in Vietnam between 1965 and 1975.[39]

US Navy aircraft dropped 21 Mk.-20 Rockeye cluster bombs on Grenada in close air support operations during the invasion of Grenada in November 1983. The same US Navy unit used 12 CBU-59 and 28 Rockeye bombs against Syrian air defense units near Beirut in December 1983.[40]

Between 17 January and 28 February 1991, the US and its allies (France and the UK) dropped 61,000 cluster bombs, containing some 20 million submunitions on Iraq and Kuwait. A significant number of surface-delivered cluster munitions were also used; one source estimates that over 30 million dual purpose improved conventional munition (DPICM) submunitions were used in the conflict.[41] The number of civilian casualties caused by the cluster strikes is not known. At least 80 US military casualties were attributed to its own cluster munition duds.[42]

In the former Yugoslavia (including Serbia, Montenegro, and Kosovo), the US, along with the UK and the Netherlands, dropped 1,765 cluster bombs, containing about 295,000 bomblets, from March to June 1999. Human Rights Watch documented that cluster strikes killed 90–150 civilians, and injured many more. This constituted 18–30% of the total civilian deaths in the conflict, even though cluster bombs amounted to just 7% of the total number of bombs dropped.[43]

In Afghanistan, the US dropped about 1,228 cluster bombs containing 248,056 bomblets between October 2001 and March 2002.[44] In a limited sampling of the country, Human Rights Watch confirmed that at least 25 civilians died and many more were injured during cluster strikes in or near populated areas.

The US used 10,782 cluster munitions, containing about 1.8 million submunitions, in the three weeks of major combat in Iraq between March and April 2003. Human Rights Watch’s field investigation concluded that cluster munition strikes, particularly ground attacks on populated areas, were a major cause of civilian casualties; hospital records show cluster strikes caused hundreds of civilians deaths and injuries in Baghdad, al-Hilla, al-Najaf, Basra, and elsewhere.[45] In after-action reports, US forces called their own cluster munitions “relics” and “losers” and questioned the weapon’s utility.[46]

Production

In 2001, then-Secretary of Defense William Cohen issued a policy memorandum stating that all submunitions reaching the “Milestone 3” production decision in fiscal year 2005 and beyond must have a dud rate of less than 1%.[47] According to an October 2004 Pentagon report to Congress on cluster munitions, submunitions procured in past years are exempt from the policy, but “[f]uture submunitions must comply with the desired goal of 99% or higher submunition functioning rate or must receive a waiver.”[48]

US manufacturers have had difficulties meeting the reliability requirement of the Cohen policy, within budgetary constraints. The US has apparently not produced any cluster munitions since 2005, except for Sensor Fuzed Weapons, which reportedly meet the 99% standard, and M30 Guided Multiple Launch Rocket System (GMLRS) rockets with DPICM submunitions.

It appears that subsequent to the Cohen policy, a waiver was granted in an Operational Requirements Document (ORD) approved by the Pentagon’s Joint Requirements Oversight Committee (JROC) that established a new, higher, hazardous dud requirement for M30 GMLRS rocket DPICM submunitions. This higher dud rate requirement sets a “less that 2% dud rate between ranges of 20-60 kilometers” and “less than 4% dud rate under 20 kilometers and over 60 kilometers.”[49]

The first funding for the production of M30 GMLRS began in June 2003 with actual deliveries beginning in May 2004. The final purchase was contracted in December 2007.[50] The US canceled plans in December 2008 to buy additional M30 GMLRS rockets with submunitions and only buy unitary warhead rockets after the deliveries of previously contracted M30 rockets with submunitions are completed in mid-2009.[51]

As of 2007, according to one military source, the US stockpiled 1,518 M30 rockets.[52] Each M30 rocket carries 404 M101 DPICM submunitions. Lockheed Martin produces the M30 GMLRS at a facility in Camden, Arkansas. BT Fuze Products (formerly Bulova Technologies), a subsidiary of L-3 Communications, produces the self-destruct fuze for the M101 DPICM submunition.[53]

The rate of unexploded ordnance (UXO) resulting from production qualification testing of M30 rockets and M101 DPICM submunitions conducted in November 2006 totaled 6.5% and the submunition dud rate averaged 1.5%.[54] The M30 rocket will be placed in the war reserve inventory and will require the approval of a combatant commander before they are used. After 2018, they can no longer be used.[55] In future production, the warhead containing DPICM will be replaced by an alternative non-cluster munition warhead.[56]

However, the US apparently also intends to produce and export 780 M30 GMLRS rockets with submunitions to the United Arab Emirates (UAE) as part of a larger US$752 million foreign military sale announced in September 2006.[57] The Defense Security Cooperation Agency notified Congress of the DPICM sale to the UAE on 21 September 2006. Colonel David Rice, project manager for precision fires, rockets and missiles systems, told Inside the Army that the deal was signed in 2007, well before the export legislation was introduced, and that the Army obtained legal opinions that confirm the validity of the final sale.[58]

Stockpiling

An October 2004 report to the US Congress by the Department of Defense provides details on a stockpile of 5.5 million cluster munitions containing about 728.5 million submunitions.[59] This figure however does not appear to be a full accounting of cluster munitions available to US forces. In particular, the tally does not include cluster munitions that are part of the War Reserve Stocks for Allies (WRSA).[60] In 1994 the stockpile, including the WRSA, consisted of 8.9 million cluster munitions containing nearly one billion submunitions.[61]

Cluster munitions are particularly ubiquitous in the stores of US ground forces. According to the report, the Army has about 638.3 million cluster submunitions (88% of the total inventory) and the Marine Corps has about 53.3 million (7%). The report states, “Cannon and rocket artillery cluster munitions comprise over 80% of Army fire support capability,” and they “comprise the bulk of the Marine Corps artillery munitions.”[62] The Air Force stockpiles about 22.2 million air-delivered cluster bombs (3% of the cluster inventory) and the Navy about 14.7 million (2 %).

Of the 728 million submunitions cited in the report, only 30,990 have self-destruct devices (.00004%).[63] The Department of Defense report cites failure rates of 2–6% for most of the submunitions, based on lot acceptance testing and stockpile reliability testing. Previous Department of Defense documents have indicated much higher failure rates for the most common submunitions.[64]

Over the past decade, the US has destroyed on average 7,000 tons (seven million kg) of cluster munitions per year at an average annual cost of $6.6 million. This represents less than 10% of the annual ammunition demilitarization appropriation. As of 2006, at least 103,473 tons (103.5 million kg) of outdated cluster munitions awaited destruction.[65]

US Stockpile of Cluster Munitions, 2004[66]

Type

Number of Submunitions Per Munition

Active Inventory

Submunition Total

Total Inventory

Submunition Total

Army

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

368,928

237,589,632

438,546

282,423,624

M26A1

518

4,128

2,138,304

4,128

2,138,304

M449 APICM

60

27

1,620

40

2,400

M449A1 APICM

60

24

1,440

49

2,940

M483/M483A1

88

2,881,693

253,588,984

3,489,279

307,056,552

M864

72

575,623

41,444,856

585,459

42,153,048

M444

18

30,148

542,664

134,344

2,418,192

M261 MPSM

9

74,591

671,319

83,589

752,301

Total

 

3,936,658

537,177,269

4,737,240

638,386,961

Marine Corps

M26

644

648

417,312

648

417,312

M483/M483A1

88

455,173

40,055,224

458,494

40,347,472

M864

72

172,386

12,411,792

174,282

12,548,304

Total

 

628,207

52,884,328

633,424

53,313,088

Air Force

CBU-87 CEM

202

99,282

20,054,964

99,282

20,054,964

CBU-97 SFW

10

214

2,140

214

2,140

CBU-103 CEM WCMD

202

10,226

2,065,652

10,226

2,065,652

CBU-105 SFW WCMD

10

1,986

19,860

1,986

19,860

CBU-105 SFW P3I

10

899

8,990

899

8,990

AGM-154A JSOW-A

145

151

21,895

151

21,895

Total

 

112,758

22,173,501

112,758

22,173,501

Navy

Mk-20 Rockeye

247

58,762

14,514,214

58,762

14,514,214

AGM-154A JSOW-A

145

518

75,110

965

139,925

Total

 

59,280

14,589,324

59,727

14,654,139

Grand Total

4,736,903

626,824,422

5,543,149

728,527,689

Transfer

Legislation (the omnibus budget bill HR 1105) signed into law on 11 March 2009 by President Obama made permanent a ban on nearly all cluster bomb exports by the US. Under the law, the US can only export cluster munitions that leave behind less than 1% of their submunitions as duds.[67] The legislation also requires the receiving country to agree that cluster munitions “will not be used where civilians are known to be present.” The US export ban was first enacted in a budget bill in December 2007, but that law mandated it for only one year.

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

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

Known Exports of Selected Cluster Munitions by the US

M483A1 projectile

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

Rockeye bomb

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

CBU-58 bomb

Australia, Israel, Saudi Arabia

CBU-87 bomb

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

CBU-97/CBU-105 bomb

India, South Korea, Oman, UAE

M26 rocket

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

ATACMS missile

Bahrain, Greece, South Korea, Turkey, UAE

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

In addition to the GMLRS sale to the UAE detailed above, the US most recently announced in September 2008 that at the request of India, it was intending to sell 510 CBU-105 air-dropped Sensor Fuzed Weapons in an arms deal valued at as much as $355 million.[68] According to the US Department of Defense, “India intends to use the Sensor Fuzed Weapons to modernize its armed forces and enhance its defensive ability to counter ground-armored threats.”[69] The US has attached a term to the transfer, in compliance with Public Law 110–161 (26 December 2008), which requires that the submunitions have a 99% or higher reliability rate and stipulates that “the cluster munitions will only be used against clearly defined military targets and will not be used where civilians are known to be present.”[70]


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

[2] Secretary of Defense William Cohen, “Memorandum for the Secretaries of the Military Departments, Subject: DOD Policy on Submunition Reliability (U),” 10 January 2001.

[3] CCW States Parties agreed to Protocol V on ERW on 28 November 2003, and it entered into force on 12 November 2006. The US did not ratify it until 21 January 2009.

[4] Statement by Col. W. Renn Gade, Deputy Legal Counsel, Joint Chiefs of Staff, “Implementation of Existing International Humanitarian Law,” Eighth Session of the CCW Group of Governmental Experts (GGE), Geneva, 7 July 2004.

[5] For example, it stated that a prohibition on the use of cluster munitions in or near populated areas was “an overly simplistic approach that ignores the observations of recent conflicts. The imposition of such a prohibition would provide further incentives to those who employ the unlawful tactic of positioning lawful military targets among civilians and civilian infrastructure in an attempt either deter or shield legitimate attacks or deliberately endanger noncombatants to gain political advantage. Inevitably, a targeting prohibition of this type would potentially increase harm to civilians, rather than further reduce humanitarian risk.” Statement by Col. W. Renn Gade, Joint Chiefs of Staff, “Implementation of Existing International Humanitarian Law,” Eighth Session of the CCW GGE, Geneva, 7 July 2004.

[6] Senate Amendment 4882 to the FY2007 Defense Appropriations Bill (H.R. 5631), Roll Call Vote 232, 6 September 2006. The amendment would also have prevented the export of cluster munitions unless the recipient nation agreed not to use them in populated areas. Then-Senator Barack Obama voted in favor of the amendment. See Friends Committee on National Legislation, “Feinstein Amdt. No. 4882; To protect civilian lives from cluster bombs,” 6 September 2006, capwiz.com.

[7] The US said that in negotiating Protocol V, CCW States Parties “have considered the issue of ERW in a careful and comprehensive way across a broad range of weapons systems. The law in the field has been shown to be adequate.” The US indicated that future 5-year review conferences of Protocol V would be an appropriate place for discussions on cluster munitions, “rather than continue discussion of the issue at this time.” Statement by Ronald J. Bettauer, Third Review Conference of the States Parties to the CCW, Geneva, 7 November 2006.

[8] Proposal to Negotiate a Legally-Binding Instrument the Addresses the Humanitarian Concerns Posed by Cluster Munitions, Presented by Austria, Holy See, Ireland, Mexico, New Zealand, and Sweden, Third Review Conference of the States Parties to the CCW, CCW/CONF.III/WP.1, Geneva, 25 October 2006. It also declined to join 25 nations that issued a joint declaration calling for an agreement that would prohibit the use of cluster munitions “within concentrations of civilians,” prohibit the use of cluster munitions that “pose serious humanitarian hazards because they are for example unreliable and/or inaccurate,” and require destruction of stockpiles of such cluster munitions. Declaration on Cluster Munitions, Third Review Conference of the States Parties to the CCW, CCW/CONF.III/WP.18, Geneva, 17 November 2006.

[9] Proposal for a Mandate on Explosive Remnants of War, presented by the UK, Third Review Conference of the States Parties to the CCW, Geneva, CCW/CONF.III/WP.15, 15 November 2006.

[10] Statement of the US, Third Review Conference of the States Parties to the CCW, Geneva, 17 November 2006. Unofficial transcription by Landmine Action.

[11] Statement by Ronald J. Bettauer, “Statement on the Outcome of the CCW Group of Government Experts Meeting,” 2007 Session of the CCW Group of Governmental Experts (GGE), Geneva, 22 June 2007.

[12] See, for example, Stephen Goose, “Cluster Munitions: Ban Them,” Arms Control Today, January/February 2008, pp. 8–9. At the same June CCW meeting, the US made a presentation on the military utility of cluster munitions which cited as “common misconceptions” that cluster munitions are “outdated weapons” and “indiscriminate and inaccurate.” Presentation by Col. Gary Kinne, “The Ongoing Military Utility and Role of Cluster Munitions,” 2007 Session of the CCW GGE, Geneva, 19 June 2007. It also made an intervention asserting that the “impacts of cluster munitions are episodic and limited.” Statement by Richard Kidd, Director, Office of Weapons Removal and. Abatement, Department of State, “US Intervention on the Humanitarian Impacts of Cluster Munitions,” 2007 Session of the CCW GGE, Geneva, 20 June 2007.

[13] The US stated that “if the use of cluster munitions were banned or unreasonably restricted, certain missions would require our forces to fire many times more non-cluster projectiles to achieve the objectives, potentially causing greater civilian casualties and damage to infrastructure.” Statement by Ronald J. Bettauer, Head of US Delegation, 2007 Meeting of the States Parties to the CCW, Geneva, 7 November 2007.

[14] Cluster Munitions Civilian Protection Act of 2007 (S. 594), 110th Congress, 2007.

[15] Consolidated Appropriations Act, 2008 (H.R. 2764), 110th Congress, 2007. In September 2008, Congress passed a continuing resolution to extend the Consolidated Appropriations Act, and thus the moratorium, through 6 March 2009.

[16] Statement by Stephen Mathias, Head of US Delegation, First 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 14 January 2008.

[17] Statement of the US, First 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 17 January 2008.

[18] Statement of the US, Third 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 7 July 2008. Notes by Landmine Action.

[19] A joint resolution expressing the sense of Congress that the US should sign the Declaration of the Oslo Conference on Cluster Munitions and future instruments banning cluster munitions that cause unacceptable harm to civilians (S. J. Res. 37), 110th Congress, 2008.

[20] See, for example, Stephen Goose, “Cluster Munitions: Ban Them,” Arms Control Today, January/February 2008, pp. 8–9. The US prepared a paper detailing concerns about interoperability, and US officials visited a number of capitals to discuss the issue. During the Dublin negotiations, the highest level US officials reportedly weighed in with their counterparts on this issue, which was identified by many states as the most important consideration in their ability to adopt and sign the convention. Negotiators agreed to a new Article 21 in the convention that the CMC strongly criticized for being politically motivated and leaving room for interpretation about what is allowed or not under the prohibition on assistance with prohibited acts. However, the article also requires States Parties to discourage use of cluster munitions by those not party and to encourage them to join the convention.

[21] Jamila Homayun, “U.S. Leadership and Set-Backs,” Cluster Ban News (CMC newsletter), Edition 5, 28 May 2008, www.stopclustermunitions.org.

[22] Jody Williams, “US subverts the cluster bomb ban,” Boston Globe, 24 May 2008, www.boston.com.

[23] The policy memorandum was dated 19 June, but not formally released until 9 July 2008. Secretary of Defense Robert M. Gates, “Memorandum for the Secretaries of the Military Departments, Subject: DOD Policy on Cluster Munitions and Unintended Harm to Civilians,” 19 June 2008, www.defenselink.mil. Presumably rendered meaningless by the legislatively enacted export ban, the policy allows transfer of cluster munitions that do not meet the 1% UXO rate, consistent with US law and policy, provided that the receiving state agrees not to use the munitions after 2018, and after 2018, the US will not transfer cluster munitions that do not meet the 1% UXO rate, except for purposes of destruction, training, or development of clearance and detection methods.

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

[25] Statement by Stephen Mathias, “United States Intervention on Technical Improvements, Third 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 15 July 2008, ccwtreaty.state.gov.

[26] Secretary of Defense Robert M. Gates, “Memorandum for the Secretaries of the Military Departments, Subject: DOD Policy on Cluster Munitions and Unintended Harm to Civilians,” 19 June 2008, www.defenselink.mil.

[27] Department of Defense, “Cluster Munitions Policy Released,” Press release, 9 July 2008, No. 577-08, www.defenselink.mil.

[28] Statement of the US, Fifth 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 5 November 2008. Notes by Landmine Action.

[29] Ibid, 3 November 2008. Notes by Landmine Action.

[30] Statement of the US, Fourth 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 2 September 2008; and Statement of the US, Fourth 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 4 September 2008. Notes by Landmine Action.

[31] Statement of the US, Third 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 22 July 2008; and Statement of the US, Fifth 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 5 November 2008. Notes by Landmine Action.

[32] Statement of the US, Fifth 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 3 November 2008. Notes by Landmine Action.

[33] Statement of the US, 2008 Meeting of the States Parties to the CCW, Geneva, 13 November 2008. Notes by Landmine Action.

[34] Making omnibus appropriations for the fiscal year ending September 30, 2009, and for other purposes (H.R. 1105), 111th Congress, 2009, thomas.loc.gov. Section 7056 deals with the export of cluster munitions.

[35] The new version dropped the requirements related to transfer, since these had passed as part of the Consolidated Appropriations Act, 2008, and its extension.

[36] US Campaign to Ban Landmines and Cluster Bombs, www.banminesusa.org.

[37] Friends Committee on National Legislation, “White House Can’t Remember Why the U.S. Doesn’t Like Cluster Bomb Ban Treaty,” 4 December 2008, www.fcnl.org.

[38] Jack Healy, “Will Obama Ban Cluster Bombs?” The Lede (New York Times blog), 2 December 2008, thelede.blogs.nytimes.com.

[39] Handicap International, “Circle of Impact: The Fatal Footprint of Cluster Munitions on People and Communities,” 2007, pp. 23, 30, 39, en.handicapinternational.be.

[40] US Department of the Navy, Attack Squadron Fifteen, Memorandum from Commanding Officer, Attack Squadron Fifteen, to Chief of Naval Operations, “Command History: Enclosure 5, Ordnance Expenditure for 1983,” 18 February 1984, declassified 28 April 2000, www.history.navy.mil.

[41] Colin King, “Explosive Remnants of War: A Study on Submunitions and other Unexploded Ordnance,” commissioned by the ICRC, August 2000, p. 16, citing Donald Kennedy and William Kincheloe, “Steel Rain: Submunitions,” U.S. Army Journal, January 1993.

[42] US General Accounting Office (GAO), “Military Operations: Information on U.S. Use of Land Mines in the Persian Gulf War,” Report to the Honorable Lane Evans, House of Representatives, GAO-02-1003, Washington, DC, September 2002, p. 17, figure 2. All casualty figures were provided to the GAO by US Armed Services.

[43] Human Rights Watch, “Civilian Deaths in the NATO Air Campaign,” vol. 12, no. 1(D), February 2000, www.hrw.org; and Human Rights Watch, “Ticking Time Bombs: NATO’s Use of Cluster Munitions in Yugoslavia,” vol. 11, no. 6(D), June 1999, www.hrw.org.

[44] Human Rights Watch, “Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan,” vol. 14, no. 7(G), December 2002, www.hrw.org.

[45] Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq (New York: Human Rights Watch, November 2003), www.hrw.org.

[46] US Army, Third Infantry Division, After-Action Briefing, “Fires in the Close Fight: OIF [Operation Iraqi Freedom] Lessons Learned,” undated, www.globalsecurity.org.

[47] 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.

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

[49] Office of the US Army Product Manager, Precision Fires Rocket and Missile Systems, “Briefing on Precision Guided Missiles and Rockets; Self Destruct Fuze Efforts,” February 2007, Slide 2.

[50] Department of the Army, Committee Staff Procurement Backup Book, “Fiscal Year 2009 President’s Budget: Missile Procurement, Army, February 2008, Guided MLRS Rocket,” pp. 46–64. It is not possible, based on budget documents, to differentiate between buys of unitary and DPICM submunition variants. They say “Operational requirements may dictate a change in the actual quantity mix (Unitary/DPICM) of munitions proposed.”

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

[52] Briefing by Lt. Col. Mark Pincoski, Product Manager PGM/R, Precision Fires Rocket & Missile Systems, to the Precision Guided Missiles and Rockets Program Review, 24 April 2007, Slide 5.

[53] Department of the Army, Committee Staff Procurement Backup Book, “Fiscal Year 2009 President’s Budget: Missile Procurement, Army, February 2008, Guided MLRS Rocket,” pp. 46–64; and Briefing by Lt. Col. Mark Pincoski, to the Precision Guided Missiles and Rockets Program Review, 24 April 2007, Slide 5.

[54] Office of the US Army Product Manager, Precision Fires Rocket and Missile Systems, “Briefing on Precision Guided Missiles and Rockets; Self Destruct Fuze Efforts,” February 2007, Slides 6, 7, and 9. While the UXO rate and dud rate are treated as separate entities by the Pentagon, there are additional undefined qualifiers on the end- state condition of the submunitions which differentiate between “hazardous” and “sterilized” duds. For example, the aim of the testing was to determine if the self-destruct fuze for the M101 DPICM “could attain fuze functioning requirements of <1% hazardous dud rate” and a greater than “95% reliability functioning rate.” It was noted that the self-destruct fuze “nearly achieved the functioning requirements desired.”

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

[56] US Army Aviation and Missile Command (Missile), “Request for Pre-Solicitation Conference for the Alternative Warhead for the Guided Multiple Launch Rocket System,” Solicitation Number: W31P4Q-09-R-0002, 9 January 2009. Previously, according to US Army budget documents, the US intended to spend $91.3 million for an additional 816 M30 rockets between fiscal years 2007 and 2009. Department of the Army, Procurement Programs, Committee Staff Procurement Backup Book, “Fiscal Year 2008/2009 Budget Estimates, Missile Procurement, Army, February 2007,” p. 46.

[57] Kate Brannen, “Army Will Complete 2007 DPICM Sale Despite New Law From Congress,” Inside the Army, 23 March 2009. The original notification is Defense Security Cooperation Agency, “United Arab Emirates: High Mobility Artillery Rocket Systems,” Press release, Transmittal No. 06-5521, September 2006, p. 1.

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

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

[60] Under this program, munitions are stored in foreign countries, but kept under US title and control, then made available to US and allied forces in the event of hostilities.

[61] See Human Rights Watch, “Cluster Munitions a Forseeable Hazard in Iraq,” March 2003, www.hrw.org. The one billion submunitions figure is mostly drawn from US Army Material Systems Analysis Activity, “Unexploded Ordnance (UXO) Study,” April 1996. The US may have removed from inventory and destroyed a significant number of expired cluster munitions since that 1996 study. The new Department of Defense report also does not include an unknown number of SADARM cluster munitions and TLAM cruise missiles with conventional submunitions.

[62] Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Report to Congress: Cluster Munitions,” October 2004, p. 2–3.

[63] These are CBU-97 and CBU-105 Sensor Fuzed Weapons (SFW) held by the Air Force and Navy. The Army’s SADARM cluster munitions, which are similar to SFW, are not included in the Department of Defense report.

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

[65] Figures are compiled from annual editions of Department of the Army, Committee Staff Procurement Backup Book, Ammunition Procurement, Army from FY00 to FY09.

[66] Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), Department of Defense, “Report to Congress: Cluster Munitions,” October 2004. The report lists 626,824,422 submunitions in the “Active Inventory” and 728,477,489 in the “Total Inventory.” Active inventory denotes serviceable ammunition items that can be safely used in training or combat. Total inventory may include damaged, suspended, or unserviceable ammunition that is awaiting disposal or repair.

[67] The only cluster munitions that might meet this standard are CBU-97 and CBU-105 SFW with self-destruct and self-deactivation mechanisms, as well as individually targetable submunitions. According to Department of Defense statistics from 2004, SFW make up 3,099 of the 5,543,149 US cluster munitions.

[68] US Defense Security Cooperation Agency, “India: CBU-105 Sensor Fuzed Weapons,” Press release, Transmittal No. 08-105, 30 September 2008.

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

[70] Letter from Vice Admiral Jeffrey A. Wieringa, US Defense Security Cooperation Agency, to Senator Robert C. Byrd, Chairman of the Senate Committee on Appropriations (USP012679), 26 September 2008.