By Doug Tuttle, CDI Research Assistant
In the summer of 2006, Israel and Hezbollah waged a fierce 34-day war. Although a peace was finally achieved, the effects of the conflict continue today. During the war, Israel showered Lebanon with 2.6 to 4 million submunitions from larger cluster bombs. Thousands of these bombs remain armed in Lebanon today and pose significant risk to the civilian population. The use and legacy of cluster munitions in Lebanon has reinvigorated calls for action against the use of these indiscriminate weapons.
On Feb. 18, 2008, 122 governments met in Wellington, New Zealand to continue discussions on an international treaty banning cluster munitions. This is the fourth meeting of states committed to eradicating these weapons (the first took place in Oslo, Norway in February 2007, the second in Lima, Peru in May 2007, and the third in Vienna, Austria in December 2007). Among those not participating in the meeting are the United States, Russia, China, and Israel – all producers and stockpilers of cluster bombs that oppose such a ban.
The United States argues that investment in such an instrument jeopardizes international progress on all explosive remnants of war (ERW) for which an international instrument currently exists – Protocol V of the Convention on Certain Conventional Weapons (CCW). On Feb. 15, 2008, the United States Department of State issued a White Paper outlining U.S. policy on cluster munitions, titled “Putting the Impact of Cluster Munitions In Context with the Effects of All Explosive Remnants of War.” In the paper, the United States clearly outlines its unwillingness to join the international effort to ban cluster bombs.
Why Control Cluster Munitions?
Cluster munitions are widely criticized because of their potential negative consequences on civilian populations. Cluster bombs are area-affect weapons, meaning that they are used to attack fixed or dynamic targets scattered over a wide area. When dropped, cluster bombs break apart, scattering anywhere from a few dozen to a few hundred small bombs, known as bomblets, over an area as wide as 400 square meters. These submunitions sometimes fail to explode, littering vast areas with ERW. According to a 2004 report to Congress by the Office of the Under Secretary of Defense Acquisitions, Technology, and Logistics, official dud rates of U.S. cluster bombs generally fall between 1 percent and 6 percent. However, when used outside of controlled testing environments failure rates have been documented between 15 percent and 20 percent. Unexploded submunitions can remain armed for decades after their deployment and a conflict has ended. And, particularly when used in densely populated areas, these deadly bomblets act as de facto landmines and threaten civilians in surrounding communities and limit access to land and resources. Victims of unexploded cluster munitions are often children, who are lured to them by their size and colors, which often make them resemble toys and balls.
The Oslo Process
Initially, the international community initially sought to control cluster munitions through Protocol V of the CCW, which addresses the impacts and cleanup of ERW. The Protocol commits states that are in control of areas affected by ERW to clear such munitions. However, critics maintain that Protocol V does not go far enough in dealing with cluster munitions, because it does not address the humanitarian impacts associated with the initial cluster munitions deployment, nor does it address targeting requirements or reliability standards.
Frustrated with Protocol V’s failure to regulate cluster munitions and its inability to address the full scope of humanitarian consequences, 46 states signed the Oslo Declaration in February 2007. The Declaration commits signatories to conclude a legally binding international treaty prohibiting the production, use, stockpiling and transfer of cluster munitions by the end of 2008. The Wellington Conference is intended to further those negotiations.
U.S. Policy on Cluster Munitions
The United States has been vocal in its opposition to a legally binding treaty banning cluster bombs for four main reasons. First, the United States views a treaty as superfluous and potentially damaging to other international mechanisms created to address ERW. The U.S. White Paper argues that “[c]luster munitions constitute a small portion of the total humanitarian threat presented by [ERW].” According to a State Department analysis of the 2007 “Landmine Monitor,” the annual publication of the International Campaign to Ban Landmines (ICBL) that offers a country?by?country analysis of mine use, production, trade, stockpiling, humanitarian demining and mine survivor assistance, only 289 known post-conflict casualties from unexploded cluster submunitions occurred worldwide in 2006, while 5,759 casualties resulted from all ERW. Thus, the United States contends that a new mechanism focused solely on cluster munitions could potentially distract from the wider ERW threat. Instead, U.S. policy supports the negotiation of a “new protocol to address the humanitarian impact of cluster munitions within the framework of the [CCW].”
Second, the United States argues that in certain situations, cluster bombs may be more effective and may cause less collateral damage then unitary bombs. In his opening statement to the Meeting of States Parties to the CCW on Nov. 7, 2007, U.S. Head of Delegation Ronald Bettauer laid out the U.S. position regarding the utility of cluster munitions claiming that “cluster munitions continue to be legitimate weapons when employed properly and in accordance with existing international humanitarian law. In many instances, cluster munitions result in much less collateral damage than unitary weapons would if used for the same mission. 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.”
Third, U.S. policy is focused on improving the reliability of newly manufactured cluster bombs, not banning them entirely. The U.S. Statement to the Second Preparatory Conference of the 2001 for the CCW, on April 5, 2001, underscored the U.S. position, stating, “A higher degree of reliability benefits both friendly military forces and civilian populations, since there is no military advantage to be gained by UXO [unexploded ordnance].” Earlier that year, concerns over ERW led the Department of Defense to announce a new policy on submunition reliability that would reduce the failure rate on newly produced submunitions to less then 1 percent. The policy also stated that submunitions that reached full rate production prior to the first quarter of 2005 would receive the designation “legacy weapons” and remain in U.S. stockpiles until they were used or reached their extended life and decommissioned. The United States has an estimated 700 million to 1 billion submunitions in its stockpiles. Yet, despite the recognition of the potential humanitarian consequences associated with cluster munitions that do not meet this standard, the United States used cluster munitions extensively during the invasion of Iraq, including in urban areas. A September 2002 report by the Government Accountability Office found dud rates to be as high as 15 to 20 percent, and as high as 40 percent in once instance. The newly released White Paper disputes these estimates.
Fourth, the United States addresses cluster munitions by spending more money on international ERW cleanup efforts than any other country in the world. According to a statement to the CCW Group of Governmental Experts on Humanitarian Aspects of Cluster Munitions in January 2008 by U.S. delegation member Katherine Baker, the United States has provided ERW clearance and stockpile destruction assistance to nearly 50 different countries around the world. According to the State Department’s Office of Weapons Removal and Abatement, the United States has spent over $1.3 billion on ERW and landmine clearance efforts since 1993. In January 2008, at a meeting of the CCW-Group of Governmental Experts, the United States announced that it will be releasing a procurement notice to develop a quick reaction force, intended to respond on short notice to humanitarian threats posed by ERW, small arms and light weapons, landmines and man-portable air defense systems (MANPADS).
U.S. Domestic Legislation
Although the executive branch has not supported international efforts to limit cluster munitions use, Congress has taken several steps to address the impacts of cluster munitions. On Feb. 14, 2007, Sens. Dianne Feinstein, D-Calif., Patrick Leahy, D-Vt., Bernie Sanders, I-Vt., and Barbara Mikulski, D-Md., introduced the Cluster Munitions Civilian Protection Act of 2007 (S. 594). The bill restricts the use and transfer of cluster munitions with higher than a 1 percent failure rate and limits the use of cluster munitions to clearly defined military targets not in the vicinity of civilians. To date, the bill has stalled in the Senate Committee on Foreign Relations. On the House side, a similar bill (H.R. 1755) was introduced on March 29, 2007. In April 2007, it was referred to the House Armed Services Subcommittee on Readiness, but no further action has been taken.
Although permanent regulation of cluster munitions has failed to pass either the House or the Senate, both bodies of Congress did pass the 2008 Foreign Appropriations bill, which includes a provision (Sec. 695) limiting the sale and transfer of cluster munition systems that have a 1 percent or lower failure rate and mandating that any country importing U.S. cluster munitions only use them against clearly defined military targets where no civilians are present. Despite objections to the restrictions in the appropriations bill, President George W. Bush signed it into law on Dec. 26, 2007, effectively ending the sale of cluster munitions for one year.
Conclusion and Recommendations
U.S. reluctance to accept international restrictions on the use of cluster munitions seems to be driven by the U.S. assertion that if employed properly, cluster bombs can be an effective military weapon. Unfortunately, even if “employed properly” these weapons can also have disastrous humanitarian impacts. In spite of U.S. claims that cluster bombs constitute only a small portion of ERW threats worldwide, their effects, both during and after conflicts, can remain devastating to communities long after fighting has ended. The current administration has made clear that it will not participate in the Oslo Process. However, even without supporting a complete ban on cluster munitions, the United States can take practical steps to address the adverse humanitarian impacts of cluster munitions.
First, the United States must take seriously its commitments to improve reliability standards and apply those standards to new weapon systems and to “legacy weapons.” Those weapons not meeting reliability standards should be decommissioned.
Second, the United States Congress should pass permanent legislation limiting the sale, transfer, stockpiling and use of weapons that do not meet reliability standards. This legislation should also prohibit the use of clusters in urban or densely populated areas.
Third, the United States should not inhibit progress made through the Oslo process. If the United States wants to proceed with negotiations of another Protocol within the CCW, it should not do so at the expense or replacement of the momentum building towards a new, stand-alone treaty.
The U.S. White Paper on cluster munitions rightly points out that the impact of cluster munitions “should not be taken lightly or dismissed.” While this sentiment sounds good on paper, the United States needs to do more to make sure it is doing its part to rid the world of the dangers of these weapons.
