Analysis of S. 594

What does this bill do?

This legislation does three basic things. First, it prohibits the U.S. government from using, selling, or transferring cluster munitions that have a high failure rate. Unless the president waives this requirement, any cluster munition that contains submunitions that fail to detonate as designed more than 1 percent of the time could not be used or transferred under this legislation. On January 10, 2001, out-going Secretary of Defense William Cohen issued a policy memorandum stating that beginning in fiscal year 2005, all newly procured cluster submunitions must have a failure rate of less than 1 percent. However, that policy applies only to newly acquired submunitions, and does not affect the existing U.S. stockpile of older, unreliable, and inaccurate weapons, which the United States can still transfer or use. The proposed legislation ensures that the U.S. applies the same standard for its old submunitions as it does for newly produced ones.

Second, the legislation prohibits the use of U.S.-made cluster munitions in civilian-populated areas. It states that cluster munitions can 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.” This provision applies equally to use by U.S. armed forces and by any other government that receives U.S.-made cluster munitions, which must sign an agreement to this effect.

Third, the legislation requires that if cluster munitions are used, the President must submit to Congress within 30 days a plan for cleaning up unexploded submunition duds; in the case of foreign use of U.S. cluster munitions, the plan must be prepared by the government to which the U.S. provided the weapons.

What does this bill NOT do?

The Cluster Munitions Civilian Protection Act does not ban the use of all types of cluster munitions in all circumstances. If a cluster munition has a 99% or higher functioning rate, it can be used against clearly defined military targets outside of civilian-populated areas. If the President believes that the use of cluster munitions with less than a 99% functioning rate is “vital to protect the security of the United States,” he or she can waive the prohibition related to the functioning rate.

Why is this legislation necessary?

The humanitarian suffering that continues in countries plagued by the lasting effects of cluster munitions underlines the urgent need to curb the use of these inhumane weapons. Cluster munitions pose a problem for civilians during attacks on civilian-populated areas because they disperse dozens to several hundred bomblets that spray deadly shrapnel fragments over a wide area, failing to distinguish between civilian and military targets. Depending on the type of weapon, the “footprint,” or the area in which a cluster munition can cover, can be the size of several football fields.

Cluster munitions also pose a problem for civilians many years after an attack. While they are designed to explode on impact, many cluster submunitions fail to detonate, leaving behind large numbers of hazardous explosive duds. These unexploded submunitions are often sensitive enough to function like a landmine. They can explode when children pick them up and play with them or when people hit them with a tool while farming. The presence of such unexploded submunitions has caused thousands of men, women, and children’s lives and prevents family’s access to their farmland and other livelihoods.

In the two dozen or so countries where cluster munitions have been used, they have been used with horrific effect. Yet, in many respects, cluster munitions are a human-made disaster still waiting to happen. There are billions of submunitions in the stockpiles of the world that have yet to be used. By adopting S. 594, the United States can help prevent the next large-scale humanitarian catastrophe before countless more innocent people are injured or killed.

Which weapons are covered by this bill?

The Pentagon would have to determine which cluster munitions in the existing inventory have submunitions with a functioning rate of less than 99 percent. Various official documents have indicated functioning rates and failure rates for some U.S. submunitions, but often times these are imprecise or inconsistent, and for many submunitions, there is no known information publicly available regarding such rates.

Based on available information, only a very small number of the existing stockpiles of cluster munitions have submunitions with a 99 percent functioning rate. Use and transfer of the main types of U.S. cluster munitions used in Kosovo, Afghanistan, Iraq and Lebanon, which caused so many civilian casualties, would be prohibited. This would include, for example, CBU-87 cluster bombs with BLU-97 bomblets, Rockeye cluster bombs with Mk-118 bomblets, M26 Multiple Launch Rocket Systems with M77 submunitions, M483A1 and M864 155mm artillery projectiles with M42 and M46 submunitions, and M395 and M396 155mm artillery projectiles with M85 submunitions.

Which weapons are NOT covered by this bill?

Again, the Pentagon would have to determine which cluster munitions in the existing inventory have submunitions with a functioning rate of more than 99 percent. According to military sources, the CBU-97 and CBU-105 Sensor Fuzed Weapons held by the Air Force and Navy, as well as the SADARM cluster munitions held by the Army, meet the functioning requirements specified in the bill.

Presumably, the bill also would not apply to non-explosive cluster munitions, or to munitions with nuclear warheads.

If certain cluster munitions are no longer available, how will this affect our military strategy and tactics?

Contemporary conflicts often involve asymmetric forms of warfare between parties of unequal strength, in which the vast majority of cluster munitions stockpiled have limited, if any, utility. Cluster munitions were designed for use in the Cold War, specifically for the large-scale bombardment of massed tank and infantry formations. Many cluster munitions in stockpiles are nearing the end of their storage life and will become dangerous to use.
Cluster munitions also have limitations and liabilities that can hinder military operations. Most notably, the presence of hazardous duds can endanger a force’s own troops and decrease their mobility. Reports after the Gulf War, Kosovo, Afghanistan, and Iraq cited the negative impact of cluster munitions on both friendly forces and peacekeepers.

A “lessons learned” report by the U.S. Third Infantry Division after operations in Iraq in 2003 described cluster munitions as among the “losers” of the war. It singled out the dual-purpose improved conventional munition (DPICM), a submunition used in artillery and ground rocket cluster munitions. The report asked, “Is the DPICM munition a Cold War relic?” Commanders were “hesitant to use it . . . but had to” because alternative weapons were not on hand. The report specifically noted that these weapons are “not for use in urban areas.” Field officers were particularly concerned about the dud rate of the DPICM, which was higher than expected.

In counter-insurgencies, stiff restrictions on cluster munitions would, if anything, help the effort of U.S. commanders. Since counter-insurgency is an effort to win hearts and minds, a commander who even considers a resort to cluster munitions in a built-up area (where insurgent meets counter-insurgent in the contest to control or at least influence the population’s allegiance) has already lost the battle and probably the “war.”

Why focus on cluster munitions? Aren’t other Explosive Remnants of War just as dangerous?

Because of the large number of submunitions and poor design, the amount and the density of unexploded ordnance contamination from a cluster munition strike are much higher than the UXO contamination from other weapons. This makes them much more likely to threaten civilians after a conflict than other weapons.

What does international law have to say about cluster munitions?

No treaty specifically regulates cluster munitions. Other weapons with indiscriminate effects, such as landmines and incendiary weapons, are the subject of specific rules that complement and reinforce the general rules of international humanitarian law applicable in armed conflict. Because of their wide area effects and the large amount of unexploded ordnance they leave after a conflict, many groups, such as the International Committee of the Red Cross, have called for specific rules on cluster munitions.

Yet, even without law specifically focused on cluster munitions, these weapons raise concerns under existing international humanitarian law (IHL). Additional Protocol I of 1977 to the Geneva Conventions, along with the Fourth Geneva Convention, lays out the law that protects civilians during war. The basic principle of this branch of IHL is that of distinction between civilians and combatants. Article 48 of Protocol I states, “the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Attacks that strike military objects and civilians or civilian objects without distinction are considered indiscriminate and are prohibited. Since cluster munitions weapons are prone to being indiscriminate, particularly when certain methods of attack or older or less sophisticated models are used, the use of these weapons raises concerns. The relevant provisions of Additional Protocol I are customary international law, binding on the United States even though it is not party to the treaty.

Protocol V on Explosive Remnants of War (ERW) of the Convention on Conventional Weapons covers post-conflict remedial measures to minimize the effects of ERW, including unexploded submunition duds. It requires parties to clear ERW in their territory and facilitate clearance of explosive ordnance they used in territory not under their control. It also sets up duties to record and share information, protect humanitarian missions, and take all feasible precautions to protect civilians from ERW. The United States is not yet party to this protocol, making the bill all the more important.

Which countries produce cluster munitions?

At least 34 countries have produced over 210 different types of cluster munitions. These include: Argentina, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Chile, China, Egypt, France, Germany, Greece, India, Iran, Iraq, Israel, Italy, Japan, North Korea, South Korea, Netherlands, Pakistan, Poland, Romania, Russia, Serbia, Singapore, Slovakia, South Africa, Spain, Sweden, Switzerland, Turkey, United Kingdom, and the United States

Which counties stockpile cluster munitions?

At least 75 countries maintain cluster munition stockpiles. These include: Algeria, Angola, Argentina, Austria, Azerbaijan, Bahrain, Belarus, Belgium, Bosnia & Herzegovina, Brazil, Bulgaria, Canada, Chile, China, Croatia, Cuba, Czech Republic, Denmark, Egypt, Eritrea, Ethiopia, Finland, France, Georgia, Germany, Greece, Guinea, Guinea Bissau, Honduras, Hungary, India, Indonesia, Iran, Iraq, Israel, Italy, Japan, Jordan, Kazakhstan, North Korea, South Korea, Kuwait, Libya, Moldova, Mongolia, Morocco, Netherlands, Nigeria, Norway, Oman, Pakistan, Poland, Portugal, Romania, Russia, Saudi Arabia, Serbia, Singapore, Slovakia, South Africa, Spain, Sudan, Sweden, Switzerland, Syria, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates, United Kingdom, United States, Uzbekistan, Yemen, and Zimbabwe.

Who has recently used cluster munitions?

Cluster munitions have been used by armed forces since the Second World War. In the past ten years such weapons have been used by Sudanese government forces in southern Sudan, Nigerian peacekeepers in Sierra Leone, Ethiopia and Eritrea against each other in 1998, Yugoslav forces in Albania, NATO forces (U.S., UK, Netherlands) in Yugoslavia and Kosovo, U.S. forces in Afghanistan, U.S. and UK forces in Iraq, Israeli forces against Hezbollah in Lebanon, and Hezbollah in northern Israel.

To which countries has the U.S. exported cluster munitions?

The United States is known to have exported or transferred cluster munitions to at least 27 other states: Argentina, Australia, Bahrain, Belgium, Canada, Egypt, Denmark, France, Greece, Honduras, Indonesia, Israel, Italy, Japan, Jordan, South Korea, Morocco, Netherlands, Norway, Oman, Pakistan, Saudi Arabia, Spain, Thailand, Turkey, the United Arab Emirates, and the United Kingdom.