Summary: Non-signatory the United States (US) sees military utility in cluster munitions and has taken no steps to accede to the convention. It adopted a new policy on 30 November 2017 that abandons a long-standing policy requiring the US not use cluster munitions that result in more than 1% unexploded ordnance (UXO) after 2018. The US abstained from the vote on a key United Nations (UN) resolution promoting the convention in December 2017. The US has never participated in a meeting of the convention, even as an observer. US officials have expressed concern about new use of cluster munitions, especially in Syria, but less frequently in the past year.

The US last used cluster munitions in the 2003 invasion of Iraq, with the exception of a single attack in Yemen in 2009. There is no evidence that the US has used cluster munitions in the coalition operation it is leading against Islamic State (IS) forces in Syria and Iraq. The US last budgeted funds to produce new cluster munitions in 2007 and has only manufactured cluster munitions for foreign sales since then. The CBU-105 was the only cluster munition that the US claims met a 1% or less UXO standard, but its manufacturer Textron Systems announced in 2016 it is stopping its production of the CBU-105. Recipients of US cluster munitions agreed not to use them in civilian areas, and the US suspended cluster munition deliveries to Saudi Arabia in 2016 following evidence of civilian harm from their use in Yemen.

Policy

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

New US Policy

On 30 November 2017, the Trump administration issued a new policy to replace a July 2008 Department of Defense policy directive on cluster munitions issued under President George W. Bush that was never amended by President Barack Obama.

The Trump policy abandons the requirement that the US no longer use cluster munitions that result in more than a 1% UXO rate by the end of 2018.[1] Defense department spokesperson Tom Crosson told media that “the Department of Defense has determined that cluster munitions remain a vital military capability in the tougher warfighting environment ahead of us, while still a relatively safe one…This was a hard choice, not one the department made lightly.”[2]

Under the 2017 Trump policy, the Department of Defense “will program for capabilities to replace cluster munitions” that do not meet the 1% UXO standard.[3] However, to “meet immediate warfighting demand” the policy gives Combatant Commanders (the heads of various combatant commands with geographic and other areas of responsibility) authority to approve employing (using) cluster munitions “that do not meet the standards prescribed by this policy for procuring new cluster munitions” as well as to accept transfers of those cluster munitions.

The 2017 policy stipulates that cluster munitions procured by the US in future must meet at least one of three criteria:

a. Not more than one percent of submunitions or submunition warheads, once properly dispensed from the non-reusable canister or delivery body, fail to detonate;
b. Each submunition or submunition warhead has [four key] characteristics (see footnote);
c. The munition is not prohibited by the Convention on Cluster Munitions as of the date of this policy.[4]

The US Army awarded a $71 million contract in April 2018 to acquire 1,250 155mm BONUS artillery projectiles from a company in Sweden.[5] The BONUS projectile contains two sensor-fuzed submunitions and is not prohibited by the Convention on Cluster Munitions.

Trump administration officials have not made any public remarks commenting on the new policy or cluster munitions more generally since the release last November. Senators Dianne Feinstein of California and Patrick Leahy of Vermont, who introduced legislation annually for the past decade encouraging the US to accede to the Convention on Cluster Munitions as soon as possible, have both condemned the 2017 policy. Feinstein called it “unbelievable” and “a shame,” while Leahy commented that “the Pentagon not only can’t be relied on to keep its commitment; it is perpetuating the use of an indiscriminate weapon that has been shown to have high failure rates, with devastating consequences for civilians.”[6]

Human Rights Watch (HRW), chair of the Cluster Munition Coalition (CMC) condemned the 2017 policy and called the US “embrace” of “notoriously unreliable cluster munitions” as “a gigantic step backward for efforts to protect civilians from the unacceptable harm caused by these weapons.” CMC co-founder Humanity & Inclusion (formerly known as Handicap International, HI) called the 2017 policy a “broken promise” and said, “to imply, as the Pentagon policy memo does, that the weapons are not necessarily a humanitarian hazard, is an outright and shameful lie.”[7] These and other NGOs met with US State Department and Department of Defense officials in December 2017 to discuss the new policy.[8]

Orbital ATK, a US company that produced a key component for US cluster munitions until 2016, sponsored a March 2018 Government Business Council report that criticized the 2017 policy.[9] The report predicted the policy would create “an undesirable dynamic to work around as the US and its allies strive to contain the use of…weapons by Russia and other violators of multi-state weapons pacts” and founds that “continuing to rely on cluster weapons exposes the US military to international backlash and hampers America’s ability to remain on the cutting edge of defense technology.”

The Heritage Foundation in February 2018 recommended that Congress “reject” the convention and support the new policy.[10]

US and the convention

The US sees military utility in cluster munitions, which is why it has not taken any steps to accede to the Convention on Cluster Munitions over the past decade.[11] The US did not comment publicly on the convention or its position on accession until 2015, when it made a statement explaining its decision to abstain from the vote on the first UN General Assembly (UNGA) resolution promoting implementation of the convention.[12] The US said it abstained from the vote on the resolution because it considered the resolution to be “applicable only to those States Parties to this convention.”[13] According to the statement, the US:

does not accept that the Convention on Cluster Munitions represents an emerging norm on prohibition and customary international law on the issue of cluster munitions in armed conflict. It strongly remains the US view that when used in accordance with international humanitarian law, cluster munitions with a low unexploded ordnance rate provide key advantages against certain types of legitimate military targets and can produce less collateral damage than high-explosive, unitary weapons.[14]

The US did not participate, not even as an observer, in the 2007–2008 Oslo Process that resulted in the Convention on Cluster Munitions.[15] 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).[16] According to a 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.”[17]

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 Seventh Meeting of States Parties in Geneva in September 2017.

The US abstained from subsequent UNGA resolutions promoting implementation of the convention in 2016 and in December 2017.[18] It did not comment on cluster munitions during the 2017 session of the UNGA First Committee on Disarmament and International Security.

In the second half of 2017 and first half of 2018, the US continued to support resolutions expressing concern at or condemning new use of cluster munitions in Syria. At the Human Rights Council (HRC), the US voted in favor of a 19 March 2018 resolution that “condemns the Syrian authorities’ use of…cluster munitions.”[19] It also voted in favor of a 2 March 2018 resolution that “condemns…any indiscriminate use of…cluster munitions…by the Syrian authorities.”[20] The US also voted in favor of a UNGA resolution expressing outrage at the use of cluster munitions in Syria on 19 December 2017.[21]

Senators Dianne Feinstein of California and Patrick Leahy of Vermont introduced legislation—S.897—in April 2017 that encouraged the US to accede to the Convention on Cluster Munitions as soon as possible, and condemned the 2017 policy.

The US is not a party to the Mine Ban Treaty, but it has participated as an observer in Mine Ban Treaty meetings since 2009. In 2014, the US banned production and acquisition of antipersonnel landmines and US use of antipersonnel mines, except in Korea.[22]

The US is a party to the Convention on Conventional Weapons (CCW) and US has not proposed any further CCW work on cluster munitions since states failed to adopt a draft CCW protocol on cluster munitions in 2011.[23]

Use

Under current policy, any US cluster munition use that exceeds the 1% UXO rate must be approved by a Combatant Commander.[24] The last large-scale US use of cluster munitions was at the beginning of Operation Iraqi Freedom in 2003. There does not appear to have been any US use of cluster munitions since then with the exception of a single attack in Yemen in December 2009.[25] Neither the US nor the Yemeni government has publicly denied US responsibility for the 2009 attack.[26]

According to a US Air Force spokesperson, neither the US nor other members of the international coalition have used cluster munitions in the air war against the non-state armed group Islamic State in Iraq, Syria, and Libya, that was continuing as of 30 June 2018.[27] A US Air Forces Central Command spokesperson said in July 2016, “We have not employed cluster munitions in Operation Inherent Resolve. This includes both U.S. and coalition aircraft.”[28]

The US has provided logistical and other support to a Saudi Arabia-led coalition of states that has used US cluster munitions in Yemen since April 2015.

The US used cluster munitions in several conflicts in the past: 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).[29]

Alternatives to cluster munitions

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.[30]

One such weapon being developed to replace cluster munitions is the Guided Multiple Launch Rocket System-Alternate Warhead (GMLRS-AW), developed by Lockheed Martin for the US Army.[31] Another 740 GMLRS-AW are being manufactured for foreign military sales.[32]

Production

Since 2005, all submunitions produced by the US must have a failure rate of less than 1%, according to a policy issued in 2001 by Secretary of Defense William Cohen.[33] The US last budgeted funds to produce new cluster munitions in 2007.[34] Since then, it has only manufactured cluster munitions for foreign sales (see Transfer section below).

In August 2016, CBU-105 manufacturer Textron Systems Corporation announced that it is stopping its production of the weapons, which are manufactured for each sales order in accordance with the delivery schedule.[35]

While the US government has yet to take any steps to prohibit US production of cluster munitions, Textron’s announcement marks the effective end of US cluster munition production as the company was the last manufacturer of these weapons.[36] The CBU-105 was assembled at McAlester Army Ammunition Plant in Oklahoma.[37]

Following reports of civilian casualties from the Saudi-led coalition’s use of US cluster munitions in Yemen, public pressure mounted against Textron in the first half of 2016 with demonstrations by local activists, including arrests, outside the company’s headquarters in Providence, Rhode Island.[38]

In a 30 August 2016 filing with the Securities and Exchange Commission, Textron announced it has discontinued production of the CBU-105 because of reduced orders, stating that “the current political environment has made it difficult” to obtain sales approvals from the executive branch and Congress.[39]

In the past, before the adoption of the 2008 Convention on Cluster Munitions, the US licensed the production of cluster munitions with Japan, South Korea, the Netherlands, Pakistan, and Turkey.

A 2017 report by PAX identifies 85 US financial institutions that hold investments in companies known to produce cluster munitions.[40]

Transfer

Export moratorium language has been included in the annual budget each year.[41] 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 is prohibited unless “the submunitions of the cluster munitions, after arming, do not result in more than 1 percent unexploded ordnance across the range of intended operational environments.” In addition, any agreement “applicable to the assistance, transfer, or sale of such cluster munitions or cluster munitions technology” must specify that the munitions “will only be used against clearly defined military targets and will not be used where civilians are known to be present or in areas normally inhabited by civilians.”

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).”[42]

Congressional notifications show that since 2008 theUS has concluded agreements to sell CBU-105 Sensor Fuzed Weapons to India,[43] Oman,[44] Saudi Arabia,[45] Singapore,[46] South Korea,[47] Taiwan,[48] and the United Arab Emirates (UAE).[49] There were no congressional sales notifications for CBU-105 Sensor Fuzed Weapons in 2017 or the first half of 2018. The most recent sales notification was announced in July 2015.

In May 2016, a senior Department of Defense official said the end-use provision of its 2012 agreement with Saudi Arabia and “a handful of other cases” was “incomplete.” The provision states that the purchaser agree the CBU-105 “will only be used against clearly defined military targets and will not be used where civilians are known to be present” but failed to include the rest of the legislatively-mandated phrase “or in areas normally inhabited by civilians.”[50]

The use of US-manufactured and -supplied CBU-105 in 2015 and 2016 raised serious questions about whether the transfer requirements were being met. HRW documented six instances of CBU-105 use in Yemen by the Saudi Arabia-led coalition in 2015 and 2016.[51] Amnesty International and HRW documented cluster munition use by the Saudi Arabia-led coalition in civilian areas and none of these documented CBU-105 attacks in Yemen have involved armored vehicles, nor have damaged or destroyed armored vehicles been documented at the strike locations.[52]

In May 2016, the Obama administration suspended transfers of cluster munitions to Saudi Arabia after reports of their use in civilian areas in Yemen.[53] A Department of Defense official said Saudi Arabia request for the delivery of 404 CBU-105s notified to Congress in June 2011 was “under review.”[54] The US CMC welcomed the decision to suspend US cluster munition transfers to Saudi Arabia and called for it to be made permanent and extended to cover all cluster munition transfers to any country.[55]

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 UAE, and the United Kingdom (UK).[56]

In 2012, Chile’s Ministry of National Defense provided information showing that Chile transferred one 250kg cluster bomb and one 500kg cluster bomb to the US in 1991.[57]

Stockpiling

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. However, that number does not appear to be a full account 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).[58]

The 2004 list is now outdated, but remains the most detailed public account of US cluster munition stocks.[59]

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

Stockpile destruction

All cluster munition stocks that exceed or do not satisfy operational planning requirements were removed by the service and combatant commands from the active inventory by June 2009.

The now-reversed 2008 policy required that the Department of Defense relinquish more than 99.9% of its cluster munition stocks by the end of 2018, as it views only the CBU-105 version of the Sensor Fuzed Weapon as meeting the less than 1% percent UXO requirement. It is unclear if the US completed the process of removing cluster munitions from the active stockpile by this date, as the Department of Defense has provided limited information on the process or the cluster munitions being demilitarized for eventual destruction.

In a December 2015 presentation, the US Army stated that there are currently 136,000 tons of cluster munitions in the demilitarization account known as “B5A,” which it said represents 28% of the total demilitarization stockpile.[61] It did not indicate the type, but described the munitions as “rounds,” which indicates artillery-delivered DPICM. According to the presentation, an additional 272,000 tons “remain in service accounts which would require disposal.” USbudget materials released in February 2018 state that, “Currently, there are approximately 122,083 tons of cluster munitions in the demil stockpile. An additional 188,787 tons remaining in [the continental US] outside the B5A and another 127,972 [outside the continental US].”[62] Previously, in December 2015, the US Army stated that there are currently 136,000 tons of cluster munitions in the demilitarization account known as “B5A.”[63]

US company General Dynamics Ordnance and Tactical Systems has described its US-based demilitarization facility as “the largest cluster munitions disposal facility in the world.”[64] In 2013 and 2015, the company 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 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. The US removed its stockpiled cluster munitions from Norway in 2010, according to a Norwegian Ministry of Foreign Affairs official.[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] 

The US has stockpiled and may continue to be storing cluster munitions in countries including Convention on Cluster Munitions States Parties Afghanistan, Germany, Italy, Japan, and Spain, and non-signatories Israel, Qatar, and perhaps Kuwait. This information is contained in the following US Department of State cables released by Wikileaks in 2010–2011:

• In Afghanistan, the “United States currently has a very small stockpile of cluster munitions,” according to a December 2008 cable.[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.[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 may store clusters munitions in Kuwait, according to a May 2007 cable.[75]