Introduction

Seeking to put an end to the human suffering and casualties caused by cluster munitions, the Convention on Cluster Munitions provides a comprehensive framework for eradicating these weapons. Its disarmament provisions prohibit the use, production, transfer, and stockpiling of cluster munitions, as well as assistance with any of these banned activities, and require that stockpiled cluster munitions be destroyed within eight years. The convention’s humanitarian provisions require the clearance of areas contaminated by cluster munition remnants within 10 years and assistance to fulfill the rights of victims of cluster munitions.

The convention’s creation through the fast-track Oslo Process followed the same unconventional path pioneered by its sister convention, the 1997 Mine Ban Treaty.^[1] Together, these humanitarian disarmament conventions have reframed multilateral disarmament and humanitarian law diplomacy by putting humanitarian considerations and the protection of civilians ahead of narrow national security interests.

The Convention on Cluster Munitions was adopted by 107 states in Dublin on 30 May 2008 and then opened for signature in Oslo on 3 December 2008.^[2] The convention entered into force on 1 August 2010, six months after receiving its 30th ratification.

A total of 112 states have joined the Convention on Cluster Munitions as of 31 July 2013 (108 by signature and four by accession). Of these states, a total of 83 are States Parties legally bound by all of the convention’s provisions.^[3] Half of all States Parties have enacted legislation to enforce the ban on cluster munitions or declared that existing legislation will suffice to ensure implementation of the convention. As this report and the online country profiles show, most of the remaining 29 signatories are in the process of ratifying.

Only four states have acceded to the Convention on Cluster Munitions over the past three years. After many years of deliberations, the 1980 Convention on Conventional Weapons (CCW) in 2011 failed to conclude a new protocol aimed at regulating cluster munitions, affirming the status of the Convention on Cluster Munitions as the sole international instrument dedicated to eradicating these weapons.^[4] Yet none of the states that sought a new international law on cluster munitions through the CCW have since joined the Convention on Cluster Munitions.

The disappointing number of new states joining the Convention on Cluster Munitions should not, however, be interpreted as evidence that there has been “no progress” under the convention or that momentum has “stalled” in any way.^[5] As this report shows, States Parties and signatories are implementing the convention’s obligations with vigor and determination, spurred on and supported by the Cluster Munition Coalition (CMC), the United Nations (UN), the International Committee of the Red Cross (ICRC), and other states.

Cluster Munition Monitor 2013 shows impressive progress in stockpile destruction. Under the Convention on Cluster Munitions, 22 States Parties have destroyed 1.03 million cluster munitions containing nearly 122 million submunitions. This represents the destruction of 71% of the cluster munitions and 69% of the submunitions declared as stockpiled by States Parties. In 2012 alone, a total of 173,973 cluster munitions and 27 million submunitions were destroyed by Denmark, France, Germany, Italy, the Netherlands, the United Kingdom (UK), and other States Parties.

Most non-signatories are adhering to the convention’s provisions even if they have not joined, but problems remain. Since 2010, cluster munitions have been used by Libya, Thailand, and Syria, while there have been unconfirmed reports of use by Myanmar and Sudan. Syria started using cluster munitions in early 2012 and with greater frequency as its air campaign intensified in October 2012, yet despite numerous civilian casualties the government’s extensive use of the weapons has continued unabated in 2013.

More than 110 countries have condemned Syria’s use of cluster munitions, including dozens of states not party to the Convention on Cluster Munitions. The president of the convention’s Third Meeting of States Parties said, “The widespread condemnation of these actions in Syria shows that the norms established by the Convention on Cluster Munitions are effective principles of international humanitarian law.”^[6]

Continued vigilance and effort will be required to ensure that the Convention on Cluster Munitions remains a strong and robust international instrument by the time of its First Review Conference in 2015.

This overview covers activities during the second half of 2012 and the first half of 2013, where data is available. For universalization efforts, developments cover the period from the date of completion of Cluster Munition Monitor 2012 (25 August 2012) through until 31 July 2013, when this report was completed. For more detailed country information, please consult the updated country profiles on cluster munition ban policy on the Monitor website.^[7]

Universalization

This section reviews the status of universalization of the Convention on Cluster Munitions, including progress by countries that have yet to join and by the remaining signatories that have yet to ratify. Key meetings and campaigning actions related to the Convention on Cluster Munitions during the period are also reviewed.^[8]

More than half of the countries in the world—112 states—have signed, ratified, or acceded to the convention as of 31 July 2013. Of these states, 41 are from Sub-Saharan Africa, 34 are from Europe, 22 are from the Americas, 12 are from Asia-Pacific, and three are from the Middle East and North Africa region, as listed in the summary table at the front of this report.

Compared to 2009 and 2010, the pace of universalization started to fall off in 2011 and decreased further in 2012 and the first half of 2013. Four signatories deposited their instrument of ratification upon signing the convention on 3 December 2008, while 22 ratified during 2009, 23 ratified in 2010, 17 ratified or acceded in 2011, 10 ratified in 2012, and six have ratified or acceded in 2013 as of 31 July.^[9]

Signature

A total of 108 states signed the Convention on Cluster Munitions in the period from when it was opened for signature in Oslo on 3–4 December 2008 until its entry into force on 1 August 2010.^[10] Because the convention has already taken effect, states can no longer sign, but may instead accede (essentially a process that combines signature and ratification into a single step).^[11]

As of 31 July 2013, 79 signatories have ratified, becoming States Parties to the convention, and 29 signatories still need to ratify. Signatories are bound by the Vienna Convention on the Law of Treaties not to engage in acts that “would defeat the object and purpose” of any treaty they have signed. Thus, signatories to the Convention on Cluster Munitions have committed to never use, produce, or transfer cluster munitions, even if they have not yet ratified.^[12]

Accession

Four countries have acceded to the Convention on Cluster Munitions since it entered into force on 1 August 2010: Grenada, Swaziland, and Trinidad and Tobago in 2011 and Andorra on 9 April 2013.^[13]

States that indicated in 2012 or the first half of 2013 that they were seriously considering accession to the Convention on Cluster Munitions came from Africa (Eritrea, Gabon, Mauritius, South Sudan, and Zimbabwe), the Americas (Saint Kitts and Nevis, and Suriname), and Asia-Pacific (Cambodia, Kiribati, Malaysia, Solomon Islands, Thailand, and Vanuatu).

There was little if any progress towards accession in 2012 or the first half of 2013 by the 18 states that adopted the convention in Dublin but did not subsequently sign.^[14] None of the mainly European states that previously said they were waiting for an outcome to CCW deliberations on cluster munitions before making a decision on accession to the Convention on Cluster Munitions have joined since 2011.^[15]

Ratification

A total of 79 signatories have ratified the Convention on Cluster Munitions as of 31 July 2013, an increase of seven ratifications since August 2012.

Convention on Cluster Munitions ratifications since 25 August 2012

The seven states to ratify the convention since August 2012 include two countries where cluster munitions have been used (Chad and Iraq) and one stockpiler (Peru). Regionally, two of the new ratifications were from the Americas, two were from Asia-Pacific, and there was one each from Sub-Saharan Africa, Europe, and the Middle East.

As the following regional sections show, most of the 29 remaining signatories are in the process of either consulting on ratification or engaging in parliamentary approval of ratification. Some states must complete national implementation legislation before they can ratify, notably Canada, Colombia, and South Africa.

Regional universalization developments

Africa

All of the 49 Sub-Saharan African states have joined the Convention on Cluster Munitions except Equatorial Guinea, Eritrea, Ethiopia, Gabon, Mauritius, South Sudan, Sudan, and Zimbabwe.

A total of 21 African states have ratified and one (Swaziland) has acceded, accounting for a total of 22 States Parties. Since August 2012, Chad has been the only African signatory to ratify the convention.

Five African non-signatories participated as observers in the convention’s Third Meeting of States Parties in September 2012. At the meeting, Gabon again pledged to join the convention “soon.”^[16] Mauritius said that accession to the convention was “being considered by the relevant actors” and committed to “take home a strong call for its universalization.”^[17] Sudan said that it had “renewed” its commitment to the ban convention, but did not elaborate its position on joining it.^[18] South Sudan reiterated its support for the convention, while Zimbabwe did not make a statement.

Four African non-signatories attended the convention’s intersessional meetings in April 2013. Ethiopia stated that it was participating “to learn” and was confident the meeting would “help us make the right decision” on the convention “in the near future.”^[19] Gabon, South Sudan, and Zimbabwe did not make any statements.

Universalization efforts have intensified in the lead-up to the convention’s Fourth Meeting of States Parties, to be held in Lusaka, Zambia in September 2013. A total of 37 states from across the African continent participated in the Lomé Regional Seminar on the Universalization of the Convention on Cluster Munitions hosted by Togo on 22–23 May 2013: 17 States Parties, 13 signatories, and six non-signatories Eritrea, Gabon, South Sudan, and Zimbabwe, as well as North African states Libya and Morocco.^[20]

At the Lomé seminar, Eritrea apologized that its process toward accession “has been delayed to this day” due to “other, more important, security priorities.”^[21] South Sudan said the government is committed to acceding to the Convention on Cluster Munitions “as soon as possible” and explained it has been unable to do so until now because of competing priorities.^[22] Zimbabwe informed states that it is “seriously considering” accession, but acknowledged progress has been slow.^[23] Gabon did not make a statement.

Equatorial Guinea has not made any public statement on cluster munitions or engaged in any meetings on cluster munitions since 2007.

Sub-Saharan Africa has 19 of the 29 signatories left to ratify the Convention on Cluster Munitions and many have indicated that ratification is in progress.^[24]

Ten signatories provided ratification updates during the Lomé seminar in May 2013. Benin said its National Assembly would soon consider ratification with the aim of completing the approval process in 2013.^[25] The Republic of the Congo (Congo-Brazzaville) said it would “soon” achieve parliamentary ratification of the convention.^[26] The Democratic Republic of the Congo (DRC) said the government has urged the Senate to put ratification of the convention on the “fast-track” to completion in 2013.^[27] Gambia said that the convention’s ratification is awaiting cabinet approval and will then be submitted to the National Assembly.^[28] Liberia stated that a committee working on its ratification of the convention has been holding consultations.^[29] Madagascar informed the Monitor that its ratification has been stalled since a 2009 coup.^[30] Namibia reaffirmed its commitment to the convention and said “consultations are underway leading towards the ratification.”^[31] South Africa stated that a memorandum recommending ratification of the convention is awaiting approval by a Cabinet committee.^[32] Tanzania said it has held extensive consultations on ratification “with a view to reaching consensus on all aspects of the Convention.”^[33] Uganda stated that it is working to complete its ratification in 2013.^[34]

Nigeria said in September 2012 that it has started “urgent consultations with relevant stakeholders” on ratification of the convention.^[35] Ratification is understood to be underway in Angola and Djibouti, but the precise status is not clear. The status of ratification by Kenya, Rwanda, and São Tomé and Principe is not known. In the Central African Republic, internal conflict and instability have prevented ratification of the convention from proceeding.^[36] Guinea’s political situation is believed to be constraining progress on ratification.^[37] A representative of the Somalia Mine Action Authority informed the Monitor in April 2013 that continuing instability and a full political agenda have stalled Somalia’s ratification of the convention.^[38]

Americas

A majority of the 35 states from the Americas have joined the Convention on Cluster Munitions. The 13 non-signatories from the region are a mix of those with long-standing objections to the convention—Argentina, Brazil, Cuba, the United States (US), and Venezuela—and smaller states favorable to the convention but with limited capacity to join swiftly: Bahamas, Barbados, Belize, Dominica, Guyana, Saint Kitts and Nevis, Saint Lucia, and Suriname.^[39]

A total of 15 signatories from the Americas have ratified the convention and two non-signatories have acceded, making a total of 17 States Parties.^[40] Since August 2012, Bolivia and Peru have ratified the convention from the region, but there have been no accessions.

Three non-signatories participated in the convention’s Third Meeting of States Parties in September 2012 as observers (Argentina, Saint Kitts and Nevis, and Suriname). For Saint Kitts and Nevis, this marked its first such participation in a meeting of the convention; in a letter to the CMC, its Minister of Foreign Affairs, Patrice Nisbett, said that the government is actively considering ratification.^[41] In April 2013, Suriname said it “highly recognizes the importance of becoming a state party to this convention” and announced that its accession process has started with the delivery of draft legislation and an explanatory memorandum to the executive board of ministers for approval.^[42]

In July 2013, senior US Senators Dianne Feinstein and Patrick Leahy and Representative James McGovern called on President Obama to review US policy on the Convention on Cluster Munitions and bring forward the 2018 deadline in current policy for the US to prohibit the use of cluster munitions with more than a 1% unexploded ordnance rate.^[43]

Legislative processes to approve ratification are underway in all the five remaining signatory countries from the Americas: Canada, Colombia, Haiti, Jamaica, and Paraguay.The Canadian Senate adopted legislation to implement and ratify the convention on 4 December 2012.^[44] The draft legislation was then introduced to the House of Commons, where it remained when the parliament went into recess on 18 June 2013. The draft legislation has been strongly criticized by Mines Action Canada, the CMC, and others. Jamaica said in September 2012 that its ratification of the convention is at an “advanced stage” and expected to be completed “in the very near future.”^[45]

Asia-Pacific

Only 12 of the 40 states that comprise the Asia-Pacific region have joined the Convention on Cluster Munitions.^[46] A total of nine signatories from Asia-Pacific have ratified the convention and become States Parties, including Australia and Nauru since August 2012.^[47] There have been no accessions from the Asia-Pacific region.

Of the 28 non-signatories from the Asia-Pacific region, eight attended the convention’s Third Meeting of States Parties in September 2012 as observers. Cambodia repeated that it is assessing the impact of joining, while Malaysia repeated that it is in consultation with relevant stakeholders with the view to studying the possibility of acceding.^[48] Thailand said it has carried out a series of activities to prepare for accession but provided no timeframe for when it might join.^[49] Vietnam again expressed “strong support for the humanitarian goal” of the convention but listed its concerns with respect to joining.^[50] China, Myanmar, Singapore, and Sri Lanka did not address the meeting.

Signatory Palau hosted a regional meeting on implementation of the Pacific Islands Forum Regional Unexploded Ordnance (UXO) Strategy in Koror on 24–26 October 2012 that considered the Convention on Cluster Munitions. Ten Pacific states attended the regional meeting, including non-signatories Kiribati, Federated States of Micronesia, Republic of the Marshall Islands, Solomon Islands, Tonga, and Vanuatu.^[51] During the meeting, a Vanuatu official informed the CMC that the Council of Ministers is considering the country’s accession to the convention, while Kiribati and the Solomon Islands indicated they are still considering joining the convention.^[52] After the regional meeting, signatory Nauru ratified the convention in February 2013. A follow-up regional meeting was held in Brisbane, Australia on 27–28 June 2013.

Half of the Asia-Pacific non-signatories still have not made a public statement articulating their position on joining the convention.^[53] Six non-signatories participated in the convention’s intersessional meetings in April 2013, but none spoke to provide an update on their efforts to join the convention.^[54] None of the non-signatories that previously supported CCW efforts to regulate cluster munitions took any significant action on cluster munitions in 2012 or the first half of 2013, such as China, India, Pakistan, and South Korea.

Stakeholder consultations on ratification are continuing in the three Asia-Pacific signatories of Indonesia, Palau, and the Philippines.

Europe, the Caucasus, and Central Asia

Thirty-three of the 54 countries in Europe, the Caucasus, and Central Asia have signed the convention, of which 31 have ratified and one state has acceded, making a total of 32 States Parties.^[55] Since August 2012, signatory Liechtenstein completed its ratification of the convention, while Andorra became the first European state to join the convention by accession. The two remaining signatories are Cyprus and Iceland.

Of the 28 European Union (EU) member states, Cyprus has signed but not yet ratified the Convention on Cluster Munitions. Estonia, Finland, Greece, Latvia, Poland, Romania, and Slovakia have not joined the convention.

Russia and all states from the Caucasus and Central Asia remain outside the Convention on Cluster Munitions and appear to have made little, if any, progress toward joining it.^[56] For example, in 2011, 2012, and 2013 Kazakhstan repeated its 2010 statement to the Monitor that Kazakhstan “highly values the humanitarian focus of the Convention on Cluster Munitions, but at this stage does not consider its possible accession.”^[57]

Nine non-signatories from Europe and Central Asia attended the convention’s Third Meeting of States Parties in Oslo in September 2012 as observers, but only two of them spoke.^[58] Armenia stated that it fully supports the convention, but cannot join at this time due to “the security environment in our region.”^[59] Tajikistan said that the government is still considering its position on joining the Convention on Cluster Munitions.^[60] A Finnish official informed the CMC that the government’s top priority is to fulfill its obligations as a new State Party to the Mine Ban Treaty, but said Finland continues to review the implications of joining the Convention on Cluster Munitions.^[61]

Five European non-signatories participated in the convention’s intersessional meetings held in April 2013 (Armenia, Kyrgyzstan, Poland, Serbia, and Turkey), but only Armenia spoke during the meeting, repeating its statement from the Third Meeting of States Parties. In April 2013, Slovakia’s Deputy Prime Minister and Minister of Foreign and European Affairs, Miroslav Lajčák, informed the CMC that the government is preparing an action plan for Slovakia’s accession to the Convention on Cluster Munitions but did not indicate when the plan would be finalized.^[62]

The Former Yugoslav Republic of Macedonia (FYR Macedonia) cooperated with the Regional Arms Control Verification and Implementation Assistance Centre (RACVIAC) at the Centre for Security Cooperation in Southeast Europe, with support from Croatia and Norwegian People’s Aid (NPA), to host a workshop on implementation of the Convention on Cluster Munitions in Skopje on 13–16 May 2013. The workshop was attended by five States Parties from the region—Albania, Bosnia and Herzegovina (BiH), Croatia, FYR Macedonia, and Montenegro—as well as non-signatory Serbia.^[63]

Of the two European signatories still left to ratify the convention, Cyprus informed the Monitor in April 2013 that its ratification “unfortunately…has been put on hold” due to “other considerations” but affirmed the government’s intent to ratify “in the near future.”^[64] Iceland’s ratification of the convention has been in progress for at least three years but still had not been introduced to parliament for approval as of May 2013.^[65]

Middle East and North Africa

There are only three States Parties to the Convention on Cluster Munitions from the Middle East and North Africa: Iraq, Lebanon, and Tunisia.^[66] Iraq ratified on 14 May 2013 after its Council of Representatives (parliament) approved ratification legislation in October 2012.^[67]

As president of the Second Meeting of States Parties, Lebanon has continued to play an active leadership role in the convention, promoting universalization especially in the Middle East and North Africa.

Of the 15 countries from the region that have not signed the convention, five participated as observers in the convention’s Third Meeting of States Parties in Oslo in September 2012: Jordan, Libya, Morocco, Qatar, and Saudi Arabia. At the meeting, Jordan’s Prince Mired Ben Raad Zeid Al-Hussein acknowledged the importance of the Convention on Cluster Munitions and expressed hope that “circumstances will change some time in the not too distant future and we will be able to join.”^[68] Libya said it is “committed” to promoting the Convention on Cluster Munitions and making it universal, but did not provide any information on steps it is taking to accede.^[69] Morocco repeated that the government is not in a position to join the convention “for now” because of the “conflict situation imposed for the past 30 years,” a reference to Western Sahara.^[70] Qatar and Saudi Arabia did not speak; neither has made a public statement detailing their position on the convention.

Seven non-signatories in the Middle East and North Africa participated in the convention’s intersessional meetings in April 2013, but none spoke.^[71] Libya and Morocco attended the Lomé Regional Seminar on the Universalization of the Convention on Cluster Munitions in Lomé, Togo in May 2013.

Meetings and Actions on Cluster Munitions

Norway hosted the Third Meeting of States Parties to the Convention on Cluster Munitions in Oslo from 11–14 September 2012. Approximately 800 delegates attended from 121 states (60 States Parties, 30 signatories, and 31 observers/non-signatories), as well as from UN agencies, the ICRC, and the CMC.^[72] The CMC delegation was comprised of 160 campaigners from 45 countries, including survivors and youth. At the Third Meeting of States Parties, governments adopted the Oslo Progress Report which charts progress made in the implementation of the Vientiane Action Plan issued by the convention’s First Meeting of States Parties in 2010.^[73]

During the annual UN treaty event held during the opening of the UN General Assembly (UNGA) in the second half of September 2012, Peru’s Minister of Foreign Affairs, Rafael Roncagliolo Orbegoso, deposited the country’s instrument of ratification for the Convention on Cluster Munitions. Several states spoke on cluster munitions during the meeting of the UNGA First Committee on Disarmament and International Security in October 2012, including some that condemned Syria’s cluster bomb use (see section Use of Cluster Munitions below).

At the UNGA First Committee on Disarmament and International Security in October 2012, Indonesia made a statement on behalf of the Non-Aligned Movement (NAM) that acknowledged the Convention on Cluster Munitions and said “NAM recognizes the adverse humanitarian impact caused by the use of cluster munitions and expresses sympathy with the cluster munitions-affected countries.”^[74] The final document of the 16th Summit of the Non-Aligned Movement held in Tehran on 26–31 August 2012 “recognized the adverse humanitarian impact caused by the use of cluster munitions” and “noted the entry into force of the Convention on Cluster Munitions on 1 August 2010.”^[75]

The third round of intersessional meetings of the Convention on Cluster Munitions was held in Geneva on 15–18 April 2013 with assistance provided by UNDP, which has continued to act as an informal secretariat for the convention and hosts an Executive Coordinator appointed by State Parties to support the President of the Third Meeting of States Parties. Diplomatic representatives from 101 countries participated in the meetings, as well as a CMC delegation of 114 campaigners from 32 countries. Zambia as President-Designate of the Fourth Meeting of States Parties invited all states to Lusaka for the convention’s Fourth Meeting of States Parties on 9–13 September 2013.

The Pacific regional meeting held in Koror, Palau in October 2012 included discussion of the Convention on Cluster Munitions, as well as a field visit to areas affected by UXO dating from World War II. The fifth annual RACVIAC workshop on implementation of the Convention on Cluster Munitions held in Skopje in May 2013 included a field visit to witness FYR Macedonia’s stockpile destruction efforts.^[76] At the regional seminar for African states held in Lomé, Togo in May 2013, participating states adopted the “Lomé Strategy on the Universalization of the Convention on Cluster Munitions,” which contains specific actions and concrete commitments that states will undertake to encourage other states to join the convention.^[77]

Use of Cluster Munitions

Cluster munitions have been used during armed conflict in 36 countries and four disputed territories since the end of World War II (see the table below). Almost every part of the world has experienced cluster munition use at some point over the past 70 years, including Southeast Asia, Southeast Europe, the Caucasus, the Middle East and North Africa, Sub-Saharan Africa, and Latin America (see Timeline of cluster munition use below).

Article 1 of the Convention on Cluster Munitions contains the convention’s core preventive measures designed to eliminate future humanitarian problems from cluster munitions, most crucially the absolute ban on use of cluster munitions. There have been no confirmed reports or allegations of new use of cluster munitions by any of the States Parties or signatories to the ban convention since it was adopted on 30 May 2008.

New use

In the second half of 2012 and the first half of 2013, Syrian armed forces used cluster munitions extensively, causing numerous civilian casualties. In addition, there are indications that Myanmar government forces may have used a weapon prohibited by the Convention on Cluster Munitions in late 2012 and early 2013. There were also reports of cluster munition use by Sudan in the first half of 2012 and first half of 2013, but the Monitor has not been able to definitively confirm the reports. None of these states are party to the Convention on Cluster Munitions.

Use by Syria

Syria’s cluster munition use directly challenges the norm that the convention seeks to establish—prohibiting the use of cluster munitions—and has evoked a strong and increasingly widespread international condemnation. Initial reports of cluster munition use emerged in mid-2012 and then increased sharply in October 2012 as government forces intensified their air campaign on rebel-held areas. This use has continued unabated in 2013.

In the year from July 2012 until June 2013, Human Rights Watch (HRW) has identified 152 locations across Syria where at least 204 cluster munitions have been used, including in the governorates of Aleppo, Idlib, Latakia, Hama, Deir ez-Zoir, Homs, Daraa, Raqqah, and Rif Dimashq. However, this data is incomplete because not all remnants have been recorded on video or by other means, so the actual number of cluster munitions used in Syria is likely much higher. Several locations have been repeatedly attacked with cluster munitions, most notably al-Za‘faraneh (near Rastan), as well as Abil (near Homs), Binnish (Idlib), Deir al-‘Assafeer (near Damascus), Douma (near Damascus), and Talbiseh (Homs).

In total, four types of cluster munitions and two types of individual submunitions have been recorded as used in the Syrian conflict as of July 2013:^[78]

1. RBK-250 cluster bombs, each containing 30 PTAB-2.5M fragmentation submunitions;

2. RBK-250-275 cluster bombs, each containing 150 AO-1SCh submunitions;

3. RBK-500 cluster bombs, each containing 565 ShOAB-0.5 submunitions;

4. 122mm SAKR rockets, each containing either 72 or 98 dual-purpose improved conventional munition (DPICM) submunitions;^[79]

5. PTAB-2.5KO submunitions;^[80] and

6. AO-2.5RT submunitions.^[81]

Despite abundant evidence and mounting civilian casualties, Syrian authorities have denied the government’s use of cluster munitions. The state-run Syrian Arab News Agency (SANA) reported: “The General Command of the Army and the Armed Forces stressed on [15 October 2012] that the misleading media outlets have recently published untrue news claiming the Syrian Arab Army has been using cluster bombs against terrorists.” According to SANA, “[T]he General Command said the Syrian Army does not possess such bombs.”^[82] In March 2013, Syrian diplomatic representatives continued to deny the evidence of Syrian cluster bomb use.^[83]

Syria’s cluster munition use has attracted widespread media coverage and public outcry.^[84] Article 21(2) of the Convention on Cluster Munitions requires that each State Party “make its best efforts to discourage States not party…from using cluster munitions.” As of July 2013, a total of 113 states had condemned Syria’s use of cluster munitions, most through a UNGA resolution.^[85] At least 25 states have made national statements expressing concern, some condemning the use multiple times.^[86]

Austria’s Minister of Foreign Affairs, Michael Spindelegger, was the first to publicly raise concern when the first reports of cluster munition use in Syria emerged in July 2012.^[87] Following reports of civilian casualties from cluster munitions in mid-October, the foreign ministers of Belgium,^[88] Denmark,^[89] France,^[90] Germany,^[91] Mexico,^[92] and Norway^[93] made statements condemning the use. Later that month at the UNGA First Committee on Disarmament and International Security seven more States Parties condemned Syria’s use: Ireland,^[94] Japan,^[95] Netherlands,^[96] New Zealand,^[97] Portugal,^[98] Switzerland,^[99] and the UK.^[100]

Non-signatory Qatar told the UN Security Council it was “appalled” at Syria’s use of cluster munitions “against its own people.”^[101] The US permanent representative to the UN, Ambassador Susan Rice, tweeted that the cluster munition use was an example of “atrocities” by the Syrian regime.^[102]

During the convention’s intersessional meetings in Geneva in April 2013, 17 states publicly condemned Syria’s continued use of cluster munitions, six for the first time: States Parties Australia,^[103] Croatia,^[104] Ecuador,^[105] Ghana,^[106] and Lao PDR,^[107] and non-signatory Cambodia.^[108] Later in April, Luxembourg expressed deep alarm at Syria’s use of cluster munitions during a UN Security Council debate.^[109]

At a regional seminar on cluster munitions in Lomé, Togo in May 2013, Guinea-Bissau^[110] and South Africa^[111] explicitly condemned Syria’s cluster bomb use and joined 34 other African states participating in the meeting to endorse the “Lomé Strategy on the Universalization of the Convention on Cluster Munitions,” which expresses “grave concern over the recent and on-going use of cluster munitions” and calls for the immediate end to the use of these weapons.^[112]

On 15 May 2013, a total of 107 states voted in favor of UNGA Resolution 67/262 on “the Situation in the Syrian Arab Republic” that included a strong condemnation of “the use by the Syrian authorities of...cluster munitions.”^[113] The affirmative votes included 88 states that had not previously condemned Syria’s cluster munition use, of which 37 were non-signatories to the Convention on Cluster Munitions.^[114]

Throughout this period, the President of the Third Meeting of States Parties to the Convention on Cluster Munitions, Norwegian Ambassador Steffen Kongstad, has issued multiple statements condemning the cluster munition use, stating in March 2013 that States Parties and others must “continue to communicate clearly to those responsible in Syria that attacks on civilians in general and the use of cluster munitions in particular must stop.”^[115]

Russia’s Minister of Foreign Affairs, Sergey Lavrov, in October 2012 denied that “Russian-made” cluster bombs were being used in Syria, stating there was “no confirmation” of use and noting it was “difficult” to establish where the cluster munitions came from.^[116] Egypt has not commented on the Syrian government’s use of Egyptian-made cluster munitions.^[117]

Other reported use

In Myanmar, the Kachin Independence Army (KIA) in Kachin state in the north of the country has claimed that the Myanmar army units stationed at Gangdau Yang used cluster munitions against KIA forces in a 26 January 2013 attack at Hka Ya Bum, “a hill top of strategic significance” five miles west of the town of Laiza in southern Kachin state.^[118] On 19 April 2013, the Deputy Secretary of the Kachin National Council provided photographs to the CMC showing an unknown type of small air-dropped bomb that it said “confirmed that the World War-Two era 20 pound fragmentation bombs were used during the airstrikes in the KIA’s strategic outposts between 14 December 2012 and 08 January 2013 by the Myanmar Air Force.” According to the Kachin National Council “this type has never been used in Burma’s civil war before.”^[119] Human Rights Watchhas received a separate set of photos showing what appear to be the same remnants, being carried in a vehicle, and at a location not known to be the scene of the attack.^[120]

Human Rights Watch has confirmed that airstrikes on and shelling of Laiza by Myanmar forces took place in December 2012 and January 2013.^[121] It is not possible, however, to make a definitive determination that the “cluster adapter” and 20-pound fragmentation bombs shown in the photographs are cluster munitions as defined in the Convention on Cluster Munitions.^[122] Nor is it possible to independently confirm that those weapons were used by Myanmar forces at the times and locations alleged. The government of Myanmar initially denied and then admitted to shelling and bombing Laiza.^[123]

In Sudan, Cluster Munition Monitor 2012 reported two allegations of cluster munition use by country’s armed forces in the first half of 2012 in Troji and Ongolo in Southern Kordofan, a state bordering the Republic of South Sudan that has seen fighting by the Sudan People’s Liberation Army North (SPLM-N) and the Sudan Armed Forces since June 2011. The Monitor was not able to independently confirm definitively in either case when the cluster munitions were used or by whom. In addition, a network of citizen journalists reported that on 18 April 2013 at 10:20 in the morning two cluster bombs were dropped from aircraft on the village of Lado in Southern Kordofan.^[124] The Monitor has not been able to independently confirm this report.

Overview of cluster munition use

The Convention on Cluster Munitions is not retroactive, but Article 4 affirms that a State Party that has previously used cluster munitions that have become remnants on the territory of another State Party before the convention’s entry into force for both parties is “strongly encouraged” to provide assistance to the other State Party. The CMC believes that all users of cluster munitions should follow the guidance of the convention by providing “information on types and quantities of the cluster munitions used, precise locations of cluster munition strikes and areas in which cluster munition remnants are known to be located.”

At least 20 government armed forces have used cluster munitions since the end of World War II, detailed in the following table.

Summary of states using cluster munitions and locations used^[125]

Since the Convention on Cluster Munitions entered into force, there have also been confirmed instances of use of cluster munitions by Libya and Thailand in the first half of 2011, during the reporting period covered by Cluster Munition Monitor 2011.

In Yemen, there was a serious allegation of cluster munition use in Abyan governate by the US in December 2009.^[126] In 2013, evidence emerged indicating cluster munitions were used in 2009–2010 in Sa’ada governorate in the northwest of the country near the border with Saudi Arabia. The cluster munition contamination apparently dates from conflict in 2009–2010 between the government of Yemen and rebel forces led by Abdul-Malik Al-Houthi.^[127] Because the circumstances of the cluster munition use are not clear, it is not possible to determine definitively the actor responsible.^[128]

Many countries that used cluster munitions in the past are now either States Parties (France, Iraq, the Netherlands, and the UK) or signatories (Colombia, Nigeria, and South Africa) to the Convention on Cluster Munitions and have relinquished use of cluster munitions.

The vast majority of states outside the Convention on Cluster Munitions have never used cluster munitions. Ten of the 17 non-signatories known to produce cluster munitions have stated that they have never used cluster munitions (Brazil, China, Egypt, Greece, South Korea, Pakistan, Poland, Romania, Slovakia, and Turkey) and the Monitor has not verified any use of cluster munitions by four other producer states (India, Iran, North Korea, and Singapore). Therefore, only three states that have not joined the Convention on Cluster Munitions could be considered as “major” users and producers of cluster munitions: Israel, Russia, and the US.

In addition, several non-signatories that stockpile cluster munitions have stated that they have never used the weapons (Estonia, Finland, Turkey, and the United Arab Emirates [UAE]), while another 14 non-signatories with stockpiles are not known to have ever used cluster munitions.^[129]

Timeline of cluster munition use

Non-State Armed Groups

Due to the relative sophistication of cluster munitions and their delivery systems, few NSAGs have used these weapons and none have done so since 2006. In the past, cluster munitions use has been recorded in Afghanistan (by the Northern Alliance), BiH (by a Serb militia), Croatia (by a Serb militia), and Israel (by Hezbollah).

Cluster munitions have also been employed in conflicts in disputed territories against NSAGs. In August 2008, the government of the separatist territory of Abkhazia asserted that Georgian forces fired large numbers of cluster munitions into the Kodor Valley. Cluster munitions were used in Nagorno-Karabakh sometime between 1992 and 1994 during conflict between Armenia and Azerbaijan over the territory, but it is not known which armed forces used cluster munitions. Moroccan forces used artillery-fired and air-dropped cluster munitions against the Popular Front for the Liberation of Saguía el Hamra and Río de Oro (Polisario) in Western Sahara during their conflict from 1975 to 1988.

Unilateral restrictions on use

Several states that have not joined the Convention on Cluster Munitions have imposed restrictions on the possible future use of cluster munitions.

The US confirmed in 2011 that its policy on cluster munitions is still guided by a June 2008 US Department of Defense directive requiring that any US use of cluster munitions before 2018 that results in a 1% or higher unexploded ordnance (UXO) rate—which includes all but a tiny fraction of the US arsenal—must be approved by a “Combatant Commander,” a very high-ranking military official. After 2018, the US will no longer use cluster munitions that result in more than 1% UXO.

Romania has said it restricts the use of cluster munitions to exclusively on its own territory. Poland has said it would use cluster munitions for defensive purposes only, and does not intend to use them outside its own territory. Estonia, Finland, and Slovakia have made similar declarations.

During the unsuccessful CCW negotiations on cluster munitions, several states that have not signed or ratified the Convention on Cluster Munitions publicly stated that they were prepared to accept a ban on the use of cluster munitions produced before 1980 as part of the proposed CCW protocol, including Russia, China, India, and South Korea. The CMC urges that as an interim measure toward joining the Convention on Cluster Munitions, these states should institute the commitment made at CCW as national policy.

Production of Cluster Munitions

A total of 34 states have developed or produced^[130] more than 200 types of cluster munitions.^[131] Half of these producers ceased manufacturing cluster munitions prior to or as a result of joining the Convention on Cluster Munitions, while the other half are believed to still produce cluster munitions.

Producers

Seventeen countries are believed to produce cluster munitions or reserve the right to do so.^[132] None of these states have joined the Convention on Cluster Munitions. Asia and Europe account for the majority of producer states, with six each, while the Middle East and North Africa has three producer states, and two producers are from the Americas.

Due to a lack of transparency and available data, it is not known if cluster munitions were produced in all these states in 2012 and/or the first half of 2013. Previously, India has stated that it did not produce any cluster munitions in 2011.^[133] Greece has informed the Monitor that its last production of cluster munitions was in 2001.^[134]

At least three of the countries still producing cluster munitions have established reliability standards for submunitions. The US instituted a policy in 2001 that all submunitions reaching a production decision in fiscal year 2005 and beyond must have a UXO rate of less than 1%.^[135] Poland stated in 2005, “The Ministry of Defense requires during acceptance tests less than 2.5% failure rate for the purchased submunitions.”^[136] South Korea issued a directive in 2008 requiring that in the future it would only acquire cluster munitions with self-destruct mechanisms and a 1% or lower failure rate.^[137]

Former producers

Under Article 1(b) of the Convention on Cluster Munitions, States Parties undertake to never develop or produce cluster munitions. Since the convention entered into force on 1 August 2010, there have been no confirmed instances of new production of cluster munitions by any of the convention’s States Parties or signatories.

Seventeen states have ceased the production of cluster munitions. All are States Parties to the Convention on Cluster Munitions except signatory South Africa and non-signatory Argentina, which has indicated that it does not intend to produce cluster munitions in future.

Several States Parties have provided information in their Article 7 transparency reports on the conversion or decommissioning of production facilities, including France, Japan, Sweden, and Switzerland.^[138] In its initial report provided in September 2012, Chile indicated that the information on previous production is in the process of being verified.^[139]

Transfer of Cluster Munitions

The true scope of the global trade in cluster munitions is difficult to ascertain due to the overall lack of transparency on arms transfers. Despite this challenge, the Monitor has identified at least 15 countries that have in the pasttransferred more than 50 types of cluster munitions to at least 60 other countries.^[140]

Exporters and recent transfers

While the historical record is incomplete and there are large variations in public information available, the US has probably been the world leader in exports, having transferred hundreds of thousands of cluster munitions containing tens of millions of submunitions to at least 30 countries and other areas.^[141]

Cluster munitions of Russian/Soviet origin are reported to be in the stockpiles of 35 states, including many that inherited stocks after the dissolution of the USSR.^[142] The full extent of China’s exports of cluster munitions is not known, but unexploded submunitions of Chinese origin have been found in Iraq, Israel, Lebanon, and Sudan.

Non-signatories Brazil, Israel, South Korea, Slovakia, Turkey, Ukraine, and the US are known to have exported cluster munitions since 2000. States Parties Chile, France, Germany, Moldova, Spain, and the UK exported cluster munitions prior to their adoption of the Convention on Cluster Munitions.

In the reporting period, the Monitor reviewed the following new information on transfers:

• Egypt likely exported or otherwise transferred to Syria 122mm SAKR cluster munition rockets bearing the markings of SAKR Factory for Developed Industries and the Egyptian state-owned Arab Organization for Industrialization.^[143] It is likely that the transfers took place in the past, and not during the current Syrian conflict.
• In July 2012, a Brazilian newspaper reported that Brazil sold cluster bombs to Zimbabwe a decade earlier.^[144] A review of 1,572 pages of documents held by the Ministry of Defense and obtained under the Law on Access to Information showed that in the period from January 2001 to May 2002 Brazil transferred 104 BLG-250K and four BLG-60K cluster bombs and various components for BLG-500K, BLG-250K, and BLG-60k cluster bombs to Zimbabwe.^[145]
• According to a May 2012 document provided to the Monitor by Chile, there were “no other applications or new exports authorizations” for cluster munitions after the year 2001.^[146] According to Ministry of National Defense information, Chile exported cluster munitions to five countries between 1991 and 2001.^[147]

Non-signatories Georgia, India, Pakistan, Slovakia, Turkey, and the UAE are among the recipients of cluster munitions exports since 2005.

At least three states that have not joined the Convention on Cluster Munitions have enacted an export moratorium: Singapore, Slovakia, and the US. Slovakia was added to this list after Slovakia’s Deputy Prime Minister and Minister of Foreign and European Affairs Miroslav Lajčák stated that “concerning the risk of proliferation, we fully adhere to the Convention on Cluster Munitions. The Slovak export control policy on Cluster Munitions, based on this principle, does not allow export of Cluster Munitions.”^[148]

New transfer information arising from recent use

It is not known who supplied the Soviet-era cluster munitions that were allegedly used in Sudan in 2012 and Syria in 2012–2013 or when they were transferred, but both states are known stockpilers of cluster munitions. It is evident that 122mm cluster munition rockets used by the Syrian Armed Forces in early 2013 bore the production markings of two Egyptian companies. Libya’s use of cluster munitions in April 2011 led to the revelation that Spain transferred 1,055 MAT-120 cluster munitions containing 22,155 submunitions to Libya in 2006 and 2008, before Spain adopted the convention.^[149] Thailand’s use of NR269 and M85 cluster munitions in the February 2011 border conflict with Cambodia may indicate recent transfer, as these cluster munition types were not previously known to be stockpiled by Thailand.

Stockpiles of Cluster Munitions and their Destruction

Global stockpiles

The Monitor estimates that prior to the start of the global effort to ban cluster munitions, 91 countries stockpiled millions of cluster munitions containing more than 1 billion submunitions, as shown in the following table.^[150] At least 19 of these states have destroyed their stockpiled cluster munitions, while 18 States Parties are in the process of destruction.

In the reporting period, the Monitor added Botswana to the list of countries known to possess stockpiles of cluster munitions.^[151] Mauritania was removed from the list after it confirmed to the Monitor that it never stockpiled cluster munitions.^[152]

Stockpiles possessed by non-signatories

Most non-signatories to the Convention on Cluster Munitions that stockpile cluster munitions have not disclosed detailed information on the quantities and types they hold. Therefore, it is not possible, given what is known, to make a valid global estimate of quantities in stockpiles.

Only a few non-signatories have disclosed information on the size of their stockpile of cluster munitions, disclosing even less information about the types. The US has disclosed that its stockpile is comprised of “more than 6 million cluster munitions.”^[153] Greece and the Ukraine have disclosed only partial figures.^[154]

Countries that have stockpiled cluster munitions

Note: States in italics report no longer possessing stockpiles.

Stockpiles possessed by States Parties

A total of 33 States Parties have stockpiled cluster munitions at some point in time, of which 15 have already destroyed their stockpiles and the other 18 are preparing to begin, or are in the process of, stockpile destruction.

According to available information, 28 States Parties have stockpiled more than 1.4 million cluster munitions containing 177 million submunitions.

Cluster munitions and explosive submunitions declared by States Parties

Note: Italics indicate States Parties that no longer possess stockpiles.

The number of cluster munitions reported as stockpiled by States Parties has increased significantly since Cluster Munition Monitor 2012, which reported that 24 States Parties have stockpiled more than 1.09 million cluster munitions containing 143 million submunitions. This is because Sweden, Switzerland, and other States Parties with stockpiles submitted their initial Article 7 transparency reports in the second half of 2012 or first half of July 2013, declaring a total of 207,132 cluster munitions and 12 million submunitions. The Netherlands also provided new data on its stockpile destruction prior to the convention’s entry into force.

Five States Parties that have stockpiled are not listed in the table above due to insufficient information. As of 31 July 2013, Guinea-Bissau and Honduras were late in submitting their initial Article 7 transparency reports, while Peru and Iraq’s initial report were not yet due. Honduras and Iraq have stated that they destroyed their cluster munition stockpiles prior to entry into force of the convention, while Guinea-Bissau and Peru have stockpiles to destroy.

The Monitor has listed Afghanistan as a former stockpiler even though it reported on the destruction of cluster munition stockpiles in the reporting period. Both of Afghanistan’s Article 7 transparency reports contain information in the

stockpile destruction forms indicating that significant destruction took place in 2005–2011 and in 2012.^[155] However, it does not appear that the items listed as destroyed were actually stockpiled weapons under the jurisdiction and control of the Afghan government, but rather were cluster munitions that had been abandoned by other combatants in the past and recently discovered, failed cluster munitions, and unexploded submunitions. These are all considered cluster munition remnants under the Convention on Cluster Munitions and not stockpiled cluster munitions. Some of the items may be residual stockpiles, but it is not possible to segregate the data presented in order to provide a clear accounting.^[156]

Stockpiles possessed by signatories

Of the nine signatories known to stockpile cluster munitions, three have completed destruction or have stated they no longer stockpile cluster munitions. Colombia destroyed its stockpile of 72 cluster munitions containing 10,832 submunitions during 2009.^[157] The Central African Republic stated in 2011 that it voluntarily destroyed a “considerable” stockpile of cluster munitions and has no stockpiles.^[158] The Republic of the Congo declared in 2011 that it had no stockpiles of cluster munitions on its territory.^[159]

Two signatories with current stockpiles have provided information on numbers and/or types of stockpiled cluster munitions. Canada has reported a stockpile of 12,597 cluster munitions containing 1.1 million explosive submunitions.^[160] A Nigerian official confirmed in April 2012 that Nigeria has a stockpile of BL755 cluster bombs.^[161]

Four signatories that have stockpiles still have not yet disclosed information on the number and types of cluster munitions. Angola has yet to make an official declaration that all stocks of cluster munitions have been identified and destroyed, but in 2010 it stated that its stockpile has been destroyed and its armed forces no longer possess cluster munitions.^[162] Indonesia has acknowledged having a stockpile of cluster munitions, but the size and precise content is not known. South Africa has stated that its “relatively small stockpile of obsolete cluster munitions” has been earmarked for destruction.^[163] The status of Guinea’s stockpile and plans for its destruction were not known as of 31 July 2013.

No stockpiles

Confirmation by States Parties and signatories in transparency reports that they do not possess stockpiles is as important as a declaration of stockpiles. Many States Parties have confirmed never stockpiling the weapon, most critically through a formal declaration in their Article 7 report.^[164] Since August 2012, Antigua and Barbuda, Samoa, Saint Vincent and the Grenadines, Senegal, Seychelles, and Swaziland have made such a declaration.

Stockpile destruction

Under Article 3 of the Convention on Cluster Munitions, each State Party is required to declare and destroy all stockpiled cluster munitions under its jurisdiction and control as soon as possible, but no later than eight years after entry into force for that State Party.

A total of 22 States Parties have declared the destruction of 1.03 million cluster munitions containing 122 million submunitions as of July 2013, as detailed in the following table.^[165] This represents the destruction of 71% of the cluster munitions and 69% of submunitions declared stockpiled by States Parties.

Cluster munitions destroyed by States Parties

Note: Italics indicate States Parties that have completed stockpile destruction.

The total amount of stockpiles destroyed has increased significantly since the publication of the Cluster Munition Monitor Report 2012, which reported the destruction of more than 700,000 cluster munitions and 85 million submunitions. There are two main reasons for the increase: a large number of stockpiled cluster munitions were reported destroyed in 2012; and the Netherlands disclosed a significantly higher number of stockpiled cluster munitions destroyed prior to the convention’s entry into force for the Netherlands (146,689 cluster munitions containing 22,027,032 submunitions).

Prior to the convention’s entry into force for States Parties, a total of 716,976 cluster munitions containing just more than 78 million submunitions were destroyed by Belgium, Germany, the Netherlands, Switzerland, and the UK. Switzerland declared in April 2013 that 3,999 cluster bombs and 587,853 BL755 Mk1 submunitions held by the Swiss Air Force were destroyed between 1997 and 2000.^[166]

Destruction completed

A total of 15 States Parties have stated that they no longer stockpile cluster munitions, of which 12 have reported information on the number and/or types of munitions destroyed: Ecuador completed destruction in 2004; Austria, Belgium, Czech Republic, Moldova, Montenegro, and Norway completed destruction in 2010; Hungary, Portugal, and Slovenia completed in 2011; the Netherlands finished in 2012; and Côte d’Ivoire completed in the first half of 2013.

Afghanistan declared that it has completed the destruction of stockpiles, but is still reporting significant quantities of newly destroyed stockpiles; it appears these are abandoned and failed cluster munitions, however, which are addressed by the convention’s clearance provisions. Honduras and Iraq have stated that they destroyed their stockpiles prior to entry into force of the convention but have yet to provide their Article 7 transparency reports making a formal declaration and providing information on the number and/or types of munitions destroyed.

Spain announced the completion of its stockpile destruction in 2009 while BiH announced completion in 2011, but in early 2012 both reported additional cluster munitions requiring destruction.

Destruction underway

In 2012, nine States Parties destroyed a total of 173,973 cluster munitions and 27 million submunitions, as detailed in the following table.

Cluster munitions destroyed by States Parties in 2012

Note: Italics indicate completion of stockpile destruction.

In 2011, 10 States Parties destroyed more than 107,000 cluster munitions and 17.6 million submunitions. Germany and the UK accounted for the majority of cluster munitions destroyed in 2012, as they did in 2011. The Netherlands, France, and Denmark also destroyed a significant number of stocks in 2012.

The UK, Denmark, and some other States Parties are working to complete their stockpile destruction in 2013. The UK had destroyed 95% of all its stockpiled cluster munitions and 84% of its submunitions by 31 March 2013 and was on track to complete destruction in 2013. Denmark announced in September 2012 that it should complete its stockpile destruction during 2013—four years earlier than originally planned.^[167] Botswana reported in August 2012 that it planned to destroy its stockpiled cluster munitions by February 2013, but it is not known if the stockpile destruction was conducted as planned.^[168] FYR Macedonia stated in April 2013 that it is undertaking a joint project with NPA to destroy its stockpile of cluster munitions by 31 October 2013.^[169] Chile expressed its hope in April 2013 that stockpile destruction will be completed by the end of 2013.^[170]

Other States Parties have indicated they will complete destruction well in advance of their treaty deadlines. Italy had destroyed 44% of its original stockpile of cluster munitions and 35% of its submunitions by the end of 2012 and is working to complete destruction by 2014.^[171] Sweden stated in April 2013 that “approximately 40%” of its BK-M90 cluster munitions have been destroyed. It intends to complete destruction of the stockpile by the end of 2014.^[172] Germany reported in April 2013 that it destroyed 80% of its stockpile by the end of 2012 and was “well on track for completion by 2015.”^[173] Japan affirmed in April 2013 that its stockpile will be destroyed by 2015.^[174] France announced an amended schedule in April 2013 to destroy its OGR 155mm artillery projectiles by the end of 2013 (instead of 2015) and destroy other stocks by the end of 2017.^[175] Switzerland announced in July 2013 that its stockpile will be destroyed by the end of 2017.^[176]

All other States Parties with cluster munitions stockpiles have committed to complete destruction within the eight-year deadline required by the convention and several provided updates in the reporting period. BiH said in May 2013 that the destruction of a stockpile discovered in 2012 has been approved, but the cluster munitions have not been destroyed yet.^[177] Bulgaria announced in April 2013 that it was in “the final stages” of preparing its stockpile destruction plan.^[178] Croatia said in April 2013 that in 2014 it hopes to finalize the procedures for the destruction of the remainder of its stockpiled cluster munitions.^[179] Guinea-Bissau said in May 2013 that it has requested assistance for its stockpile destruction and hopes the destruction process will soon be able to move forward.^[180] Mozambique confirmed in September 2012 that it is still in the process of preparing a stockpile destruction plan.^[181]

Spain in April 2013 reiterated its commitment to meeting its stockpile destruction obligations under the convention.^[182] Peru did not provide any updated information on its stockpile or preparations for its destruction in the second half of 2012 or first half of 2013.

Destruction costs

At least US$12 million has been spent on stockpile destruction by States Parties (including BiH, Croatia, Moldova, Norway, and Spain). At least $224 million has been allocated or estimated as necessary for the destruction of stockpiled cluster munitions by States Parties Denmark (DKK18 million or €2.5 million or $3.2 million), France (€20.2 or $26 million), Germany (€41.4 million or $53 million), Japan (JPY2.8 billion or $35 million), Switzerland (CHF40 million or $43 million) and the UK (£40 million or $63 million).^[183]

Retention

Article 3 of the Convention on Cluster Munitions permits the retention of cluster munitions and submunitions for development of and training in techniques for detection, clearance and destruction of these weapons, as well as for development of counter-measures such as armor to protect troops and equipment.

The CMC and more than three dozen States Parties and signatories believe that no compelling reason exists to retain live cluster munitions and explosive submunitions for these purposes. Nonetheless, to date, 13 States Parties have chosen to retain cluster munitions.

Retention by States Parties

As of July 2013, 13 States Parties have declared they are retaining cluster munitions for training and research purposes. Germany, Spain, Belgium, and the Netherlands hold the highest number of retained cluster munitions. It is not clear if the holdings constitute the “minimum number absolutely necessary” as required by the convention.

The following table contains information on the 11 States Parties that have provided detailed information on numbers and types of retained cluster munitions and submunitions.

Cluster munitions retained for training^[184]

Note: The quantity totals may include individual submunitions retained, which are not contained in a delivery container.

Four States Parties have declared the retention of cluster munitions since the publication of Cluster Munition Monitor Report 2012: Denmark, Italy, Sweden, and Switzerland.

In addition, Australia and Peru have stated that they intend to retain, but have not yet delivered, Article 7 transparency reports in order to make a formal declaration detailing the numbers and types. Peru has stated that it intends to retain cluster munitions for the purposes of training in detection, clearance and destruction techniques, but has not yet identified the number.^[185] Australia has said it intends to retain a combination of submunitions and dispensers of which two bombs would be “live” and noted these would not be part of operational stocks and not suitable for use.^[186]

Use of retained cluster munitions

The Convention on Cluster Munitions requires that States Parties maintain detailed annual reporting on use of retained cluster munitions to ensure they are being kept only for permitted purposes. In the reporting period, several States Parties reduced the number of cluster munitions retained for training and research. Some consumed cluster munitions in the course of training explosive ordnance disposal (EOD) personnel, while others reduced the number of cluster munitions for other reasons. Several States Parties indicated that they are retaining individual submunitions only.

• Belgium consumed 38 projectiles and 3,344 submunitions in training EOD personnel during 2012, while five projectiles and 440 submunitions were consumed in 2011, and prior to entry into force 24 projectiles and 2,112 submunitions were consumed in 2009–2010.^[187]
• The Czech Republic’s stockpile of submunitions retained for training decreased by two-thirds between November 2010 and December 2012 as submunitions were consumed in the course of training of EOD personnel. The Czech Republic has stated that the submunitions have “no air or surface-fired means of delivery.”^[188]
• Denmark stated in 2010 that it would retain 170 cluster munitions for training, but in May 2013 reported a substantially lower number of 3,634 individual submunitions.^[189] Denmark has said the retained submunitions will be separated from their cluster munition containers and so “cannot be used operationally anymore.”^[190]
• France consumed 27 individual KB-1 and KB-2 submunitions in 2012.^[191] The number of cluster munitions that France retained for training in 2012 was far below the amount allowed by its national law, which permits 500 cluster munitions and their submunitions plus an additional 400 individual submunitions.^[192] French NGOs have criticized the number of submunitions permitted by the national law as “excessive.”^[193]
• Germany announced in September 2012 that it plans to intensify EOD training and, as a result there will be “an estimated increase in consumption of individual submunitions of approximately 30% from 2013 onwards.” In addition, “Some types of submunitions, previously designated for training will not now be used for this purpose and will be instead destroyed, resulting in a further decrease in the numbers retained.” This means “the complete stock of retained cluster munitions will be used up even earlier than 2020 as well as approximately 50% of the retained submunitions.”^[194]
• Italy’s national implementation legislation permits the retention of a “limited quantity” of cluster munitions not exceeding 1,000 “units” or submunitions, yet it is retaining a significantly lower number of three cluster bombs and 641 submunitions, including one Rockeye bomb and 247 Mk-118 submunitions that it is “converting to dummy” munitions, presumably by removing the explosive content.^[195]
• The Netherlands was the only State Party to increase the number of cluster munitions retained for training in 2012, after adding four cluster bombs containing 808 submunitions that were discovered after the completion of stockpile destruction. Among the States Parties providing reports, the Netherlands was the only one that did not consume any cluster munitions or submunitions for training and research purposes in 2012.
• Sweden has declared that it is retaining 125 individual submunitions for training and research purposes.^[196]
• Switzerland emphasized in its initial Article 7 transparency report that “the numbers [of retained cluster munitions provided in the report] refer to the *planned* retention of cluster munitions and submunitions.”^[197]
• The UK reported in April 2013 that it has destroyed its holding of individual submunitions retained for testing “because of concerns over condition, packaging and storage” and stated that it has “no immediate plans to acquire and retain sub-munitions for permitted purposes, but reserves the right to do so.”^[198]

Intended purposes of retained cluster munitions

The Convention on Cluster Munitions also requires that States Parties report on planned use of retained cluster munitions to ensure they are being kept only for permitted purposes. Several States Parties have explained their requirements for retaining cluster munitions and submunitions and detailed the manner by which the items are consumed.

• Belgium anticipates that 20–40 cluster munitions will be consumed each year in the training of EOD personnel.^[199]
• Germany has provided detailed criteria for how it determines the number and types of cluster munitions retained. It has stated that the quantity retained for EOD personnel training needs over a 10-year period means that “on average…two to four items of live munitions are expended during the course for each participant.”^[200]
• The Netherlands has not explained how it intends to consume its retained cluster munitions other than to state that they are intended for “purposes of the ‘Defense Explosive Ordnance Disposal Service.’”^[201]
• Sweden stated in April 2013 that the retained submunitions would be used “for training personnel in destruction techniques on live ammunition” because in its view, “it is crucial for such training to feature the handling of live explosives.”^[202]
• Switzerland stated in April 2013 that its plan is for Armasuisse to retain cluster munitions for the development of counter-measures, and for the Swiss EOD Centre to retain cluster munitions and explosive submunitions for training, detection, clearance, and destruction techniques.^[203]
• The UK stated in 2011 that “it is the UK’s current intention to not retain any prohibited munitions from our own, former operational, UK stocks. We will however, retain a small number of prohibited sub-munitions for trials, development and training activities for the advancement of counter measures to any uncertain future threats.”^[204]

Under Article 3 of the Convention on Cluster Munitions, every State Party has the opportunity to know the types of testing and research involving cluster munitions that is done by other States Parties. Thus it is possible for States Parties to share technical data among themselves without having to acquire items or conduct possibly duplicative testing. However, as yet there has been no reported acquisition or transfer of cluster munitions or submunitions between States Parties.

Retention by signatories

Signatories Angola and South Africa have indicated that they intend to retain cluster munitions and/or submunitions for training and research purposes. South Africa has stated that it would likely retain only inert cluster munition casings and not the explosive content.^[205]

No retention

At least 36 States Parties have expressed their view that there is no need to retain any live cluster munitions or explosive submunitions for training or research in detection, clearance and destruction techniques, or for the development of counter-measures.

Three States Parties—Chile, Croatia, and Moldova—have stated that they are retaining only inert items that have been rendered free from explosives and no longer qualify as cluster munitions or submunitions under the convention. Chile declared in September 2012 that it is retaining a total of 12 CBK-250 cluster munitions containing 240 inert PM-1 submunitions for training and research purposes.^[206]

At least 14 States Parties that declared stockpiled cluster munitions in their Article 7 transparency reports have stated that they do not intend to retain cluster munitions for training or research purposes: Afghanistan, Austria, BiH, Botswana, Bulgaria, Ecuador, Hungary, Japan, FYR Macedonia, Montenegro, Mozambique, Norway, Portugal, and Slovenia. Côte d’Ivoire has yet to deliver its Article 7 transparency report, but in May 2013 stated that it is not retaining any cluster munitions for training and research purposes because “we don’t want to have these types of arms in our arsenal.”^[207]

Eighteen States Parties that have never stockpiled cluster munitions have confirmed they do not retain any cluster munitions or explosive submunitions.^[208] Malawi has stated that the retention of cluster munitions for training and development “should be the exception and not the rule,” and those that do retain should only keep a “very limited number.”^[209]

Signatories Canada and Colombia have indicated they are not retaining any cluster munitions for training or research purposes. A Canadian official said in July 2013, “The Canadian Armed Forces currently have no plans to retain any cluster munitions for purposes permitted by Article 3 of the Convention on Cluster Munitions.”^[210] In 2012, Colombia confirmed that it has not retained any cluster munitions or submunitions for training or development purposes.^[211]

Transparency Reporting

Under Article 7 of the Convention on Cluster Munitions, States Parties are obliged to submit an initial transparency report no later than 180 days after entry into force for that State Party. The CMC encourages states to submit their Article 7 transparency reports by the deadline and provide complete information, including definitive statements.^[212]

Initial reports

As of 31 July 2013, 58 States Parties have submitted an initial report as required by Article 7 of the convention, representing 70% of States Parties for which the obligation applied at that time.^[213]

Seventeen States Parties are late in submitting their initial Article 7 transparency reports, as listed in the table below. Of these states, nine had submission deadlines in 2011, while four were due in 2012.

Eight States Parties have pending deadlines for their initial reporting obligations, as listed in the table below.

Annual updated reports

After submitting their initial report, by 30 April of each year States Parties are required to provide an updated Article 7 transparency report covering the previous calendar year. States with no changes since their previous report can complete a simple cover page indicating no change, while others can provide updated information using only the cover page and relevant forms.

In 2013, 18 States Parties that have submitted previous Article 7 reports did not provide annual updates for calendar year 2012: Antigua and Barbuda, BiH, Botswana, Burundi, Chile, Ecuador, Lesotho, Luxembourg, Malawi, Malta, Monaco, Netherlands, Nicaragua, Saint Vincent and the Grenadines, Samoa, Senegal, Sierra Leone, and Zambia.

In 2012, 11 States Parties that have submitted initial Article 7 reports did not provide annual updates for calendar year 2011: Burkina Faso, Burundi, Ecuador, Lesotho, Malawi, Malta, Mauritania, Montenegro, Nicaragua, Sierra Leone, and Uruguay.

Voluntary reports

States not party to the convention may submit voluntary reports as an interim step toward ratification or accession, or at least as an indication of support for the convention. Three signatories have provided voluntary initial Article 7 transparency reports: Canada in 2011, 2012, and 2013; DRC in 2011 and 2012; and Palau in 2011.

National Implementation Legislation

Article 9 of the Convention on Cluster Munitions requires States Parties to take “all appropriate legal, administrative and other measures to implement this Convention, including the imposition of penal sanctions.”^[214] The CMC urges all States Parties to enact comprehensive national legislation to enforce the convention’s provisions and provide binding, enduring, and unequivocal rules that are less subject to interpretation.

As of 31 July 2013, 22 States Parties are known to have enacted specific legislative measures to implement the convention, while 19 States Parties have indicated that their existing national laws are sufficient to implement the convention. Another 33 States Parties and signatories are planning or are in the process of drafting, reviewing, or adopting specific legislative measures to implement the convention.

National implementation legislation by States Parties

The 22 States Parties that have enacted legislation to implement the convention are listed in the table below. Most enacted legislation prior to ratifying, often combining the approval process for legislation and ratification.

Two states adopted legislation before the convention was concluded in May 2008 (Austria and Belgium), two adopted legislation in 2008 prior to signing the convention in December (Ireland and Norway), four adopted legislation in 2009 (Germany, Japan, Luxembourg, and New Zealand), four in 2010 (Ecuador, France, Spain, and the UK), three in 2011 (Cook Islands, Czech Republic, and Italy), five in 2012 (Australia, Guatemala, Hungary, Samoa, Sweden, and Switzerland), and one in the first half of 2013 (Liechtenstein).

In the reporting period, four states were added to the Monitor’s list of states with implementing legislation:

• Australia’s implementing legislation is the Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012, which came into force on 1 April 2013.^[215]
• Guatemala’s implementing legislation for the convention is the Law on Cluster Munitions and/or Explosive Bomblets (Ley de munciones en racimo y/o bombetas explosivas), enacted on 14 August 2012.
• Liechtenstein’s ratification of the Convention on Cluster Munitions was enabled by an amendment to its Law on Brokering in War Material, which also expressly prohibits “brokering and direct, as well as indirect, financing of cluster munitions.” The amended law will take effect in Liechtenstein on 1 September 2013. In addition, under the Customs Union Treaty between Liechtenstein and Switzerland “the development, manufacture, purchase, acquisition, transfer, import, export, transport, and stockpiling and possession of cluster munitions is governed by Swiss legislation in Liechtenstein.” The amendments to Switzerland’s Federal Law on War Material enacted by the Swiss parliament in March 2012 “are therefore also applicable in Liechtenstein.”^[216]
• Samoa’s national implementation legislation is the Cluster Munitions Prohibition Act 2012, which came into effect on 27 April 2012.^[217]

Existing law deemed sufficient

At least 19 States Parties have indicated that they view their existing laws as sufficient to implement the convention: Albania, Andorra, Bulgaria, Denmark, Guinea-Bissau, Holy See, Lithuania, FYR Macedonia, Malta, Mexico, Moldova, Montenegro, the Netherlands, Nicaragua, Portugal, San Marino, Slovenia, Tunisia, and Uruguay.

Several states joined this list in the reporting period:

• Albania declared that it does not see a need for specific legislation to implement the Convention on Cluster Munitions as existing legislation is considered to be “sufficient.”^[218]
• Andorra stated that following a legislative review it finds that “current domestic legislation already complies with the main obligations” of the Convention on Cluster Munitions so “it is not necessary to develop…internal regulations.”^[219]
• Bulgaria declared that after reviewing its existing laws, “no special national legislation on the implementation of the Convention on Cluster Munitions will be considered for adoption.” It stated that under its constitution, international treaties ratified by Bulgaria become part of domestic law so “there is no legal necessity to adopt an additional specific legislation.”^[220]
• Guinea-Bissau stated that it considers its existing laws as sufficient to implement the Convention on Cluster Munitions and the Mine Ban Treaty and said its penal code contains clear sanctions for any violations.^[221]

Legislation under consideration

At least 33 other States Parties and signatories have said that they are planning or are in the process of drafting, reviewing, or adopting specific legislative measures to implement the convention: Afghanistan, Benin, BiH, Botswana, Burkina Faso, Burundi, Canada, Central African Republic, Chad, Colombia, Republic of the Congo, DRC, Côte d’Ivoire, Croatia, Cyprus, Ghana, Grenada, Iceland, Lao PDR, Lebanon, Lesotho, Malawi, Niger, Senegal, Seychelles, Sierra Leone, Spain, Saint Vincent and the Grenadines, South Africa, Tanzania, Togo, Uganda, and Zambia.

Many of these states reported progress toward enacting national legislation in the second half of 2012 and the first half of 2013:

• Afghanistan reported that draft legislation banning antipersonnel landmines and cluster munitions is being reviewed by the Ministry of Justice.^[222]
• BiH officials said that legislative measures to implement and enforce the Convention on Cluster Munitions are being considered.^[223]
• Botswana reported that “consultations [are] underway to domesticate the convention through an Act of parliament.”^[224]
• Burkina Faso said that it is working to conclude national legislation to implement the Convention on Cluster Munitions in 2013.^[225]
• Burundi said that it intends to expand its existing Mine Ban Treaty legislation to address cluster munitions.^[226]
• Canada’s implementation legislation, the “Act to Implement the Convention on Cluster Munitions” or Bill S-10, was introduced in the Senate on 25 April 2012 and approved on 4 December 2012. As of 31 July 2013, the draft legislation was awaiting approval by the House of Commons.^[227] The draft legislation to implement the ban convention has been strongly criticized by the CMC, Mines Action Canada, and others.
• Chad said that the government is discussing possible national legislation to implement the convention’s provisions with the ICRC and others.^[228]
• Colombia’s Congress enacted Law 1604 on 12 December 2012, which incorporates the Convention on Cluster Munitions into domestic law, but separate implementation legislation is also planned.
• The Republic of the Congo said that after ratification it intends to amend its existing Mine Ban Treaty law to include cluster munitions.^[229]
• Côte d’Ivoire said its National Assembly is updating the country’s laws to ensure compliance with international treaties and said it would “be compliant very soon” with its Convention on Cluster Munitions obligations.^[230]
• Ghana stated that draft legislation prepared by the Attorney General’s department to prohibit the use, manufacturing, production, stockpiling, and transfer of cluster munitions should be adopted soon.^[231]
• Iceland said that proposed amendments to existing penal law in relation to the convention would be introduced in the fall 2013 parliamentary session.^[232]
• Lao PDR stated that it intends to either establish a new law or amend existing laws in order to “prevent and suppress activities prohibited to a State Party” and reflect its national implementation obligations.^[233]
• It has also indicated that the relevant articles of the penal code may be amended to reflect its obligations under the convention.^[234]
• Lebanon announced that it plans to amend existing legislation in 2013 to enforce the provisions of the Convention on Cluster Munitions.^[235]
• Lesotho said that draft legislation to implement the Convention on Cluster Munitions has been prepared for submission to parliament.^[236]
• Niger stated that draft implementation legislation for the Convention on Cluster Munitions is being prepared.^[237] An official said it would be submitted to the National Assembly in 2014.^[238]
• Senegal said that it intends to enact specific legislation to enforce the provisions of the convention in domestic law.^[239]
• Seychelles said that, following a legislative review process, the government has concluded that its existing Mine Ban Treaty law will be amended to apply the provisions of the Convention on Cluster Munitions.^[240]
• Sierra Leone said that draft implementation legislation has been prepared using a model provided by the ICRC.^[241]
• Spain reported that a process is underway to amend its national implementation legislation for the Mine Ban Treaty, Law 33/1998, to include “a total ban on cluster munitions and similar arms.”^[242]
• Togo said that it is cooperating with the ICRC to revise its penal code to incorporate provisions of the Convention on Cluster Munitions into domestic law.^[243]
• Uganda said that national implementation legislation for the Convention on Cluster Munitions is being prepared for consideration after ratification.^[244]
• Zambia stated that it “is in the process of domesticating” the Convention on Cluster Munitions and hopes to complete the process by September 2013.^[245]

The status of national implementation measures is unknown or unclear in the remaining States Parties and signatories. This includes 15 States Parties that have yet to submit an initial Article 7 transparency report as of 31 July 2013.^[246] The status of national implementation legislation in 19 of the 29 signatories is not known.^[247]

Interpretive Issues

During the Oslo Process and the final negotiations in Dublin where the Convention on Cluster Munitions was adopted on 30 May 2008, it appeared that there was not a uniform view on some important issues related to interpretation and implementation of the convention. The CMC has urged States Parties and signatories to declare their views on the following special issues of concern so that common understandings can be reached:

1. The prohibition on assistance during joint military operations with states not party that may use cluster munitions (“interoperability”);
2. The prohibition on transit and foreign stockpiling of cluster munitions; and
3. The prohibition on investment in production of cluster munitions.

A significant number of States Parties and signatories to the convention have declared their views on these matters, including through Article 7 transparency reports, statements at meetings, parliamentary debates, and in direct communication with the Monitor. Several strong implementation laws have been enacted that provide useful models for how to implement certain provisions of the Convention on Cluster Munitions. Yet, as of 31 July 2013, 33 of the 83 States Parties to the Convention on Cluster Munitions still had not declared their views on even one of these interpretive issues.^[248]

In addition, US Department of State cables made public by Wikileaks in late 2010 and 2011 show how the US, despite not itself participating in the Oslo Process, attempted to influence its allies, partners and other states on the content of the Convention on Cluster Munitions, especially with respect to interoperability.^[249] The cables also show that the US has stockpiled and may continue to be storing cluster munitions in a number of States Parties, including Afghanistan, Germany, Italy, Japan, and Spain. US cluster munition stocks have been removed from Norway and the UK.

Prohibition on assistance and interoperability

Article 1 of the convention obliges States Parties “never under any circumstances to…assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.” Yet during the Oslo Process, some states expressed concern about the application of the prohibition on assistance during joint military operations with countries that have not joined the convention. In response to these “interoperability” concerns, Article 21 on “Relations with States not Party to this Convention” was included in the convention. Article 21 was strongly criticized by the CMC for being politically motivated and for leaving a degree of ambiguity about how the prohibition on assistance would be applied in joint military operations.

Article 21 says that States Parties “may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.” It does not, however, negate a State Party’s obligations under Article 1 to “never under any circumstances” assist with prohibited acts. The article also requires States Parties to discourage use of cluster munitions by those not party and to encourage them to join the convention. Together, Article 1 and Article 21 should have a unified and coherent purpose, as the convention cannot both discourage the use of cluster munitions and, by implication, encourage it. Furthermore, to interpret Article 21 as qualifying Article 1 would run counter to the object and purpose of the convention, which is to eliminate cluster munitions and the harm they cause to civilians.

The CMC position is therefore that States Parties must not intentionally or deliberately assist, induce, or encourage any activity prohibited under the Convention on Cluster Munitions, even when engaging in joint operations with states not party.

At least 38 States Parties and signatories have agreed that the convention’s Article 21 provision on interoperability should not be read as allowing states to avoid their specific obligation under Article 1 to prohibit assistance with prohibited acts.^[250] Developments in the reporting period included:

• Guatemala’s 2012 law explicitly allows for participation in joint operations, but does not state that this participation permits assistance with the use of cluster munitions. Article 3 prohibits the “assistance, encouragement, or inducement to anyone to participate in any of the aforementioned activities.”
• Niger informed the Monitor that it views assistance during joint military operations with states not party that may use cluster munitions to be banned by the convention.^[251]
• Samoa’s law reinforces the importance of prohibiting assistance without creating explicit exceptions to Article 1 of the Convention on Cluster Munitions. The Cluster Munitions Prohibition Act 2012 specifically makes it an offence for members of Samoa’s police forces to expressly request the use of cluster munitions while engaged in operations, exercises or other military activities with the armed forces of a state that is not party to the convention, when the choice of munitions used is within the exclusive control of the police.^[252]

States Parties Australia, Japan, the Netherlands, and the UK have indicated support for the contrary view that the Article 1 prohibition on assistance with prohibited acts may be overridden by the interoperability provisions contained in Article 21.

The CMC has described Australia’s Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 as “extremely problematic” because it allows Australian military personnel to assist with cluster munition attacks by states not party—a provision that runs counter to the conventino’s prohibition on assistance—and contravenes Article 9 requiring penal sanctions for activities prohibited by the convention. An Australian official informed the Monitor in June 2013 that “Australia’s view regarding interoperability is a matter of public knowledge and has been consistent throughout the negotiations on the Convention to the present day. Section 72.41 of Australia’s implementing legislation is consistent with the provisions in Article 21 of the Convention.”^[253] In a statement issued upon Australia’s ratification in October 2012, the Minister for Foreign Affairs stated, “With this legislation, it is now an offence to use...and also to encourage others to engage with these dangerous weapons … The Convention and the Act will also apply to Australian Defence Force (ADF) personnel during military operations and ADF personnel serving alongside the defence forces of States not party to the Convention.”^[254]

Japan has been reluctant to publicly discuss its views on Article 21, but in a June 2008 State Department cable, a senior Japanese official apparently told the US that Japan interprets the convention as enabling the US and Japan to continue to engage in military cooperation and conduct operations that involve US-owned cluster munitions.^[255]

Denmark reported in May 2013 that its Defence Command has issued instructions that stipulate “limitations on the possibilities to co-operate with nations who have not signed the convention.”^[256]

Signatory Canada is in the process of considering draft implementation legislation that contains extensive provisions on interoperability. Section 11 of Canada’s draft implementing legislation on “Joint Military Operations” would permit Canadian Armed Forces and public officials to “direct or authorize” an act that “may involve” a state not party while that state is performing activities prohibited under the Convention on Cluster Munitions. The bill would also permit Canadian forces and public officials to “expressly request” use of cluster munitions by a state not party if the choice of weapons is not within the “exclusive control” of the Canadian Armed Forces. Section 11 would also allow Canadians themselves to use, acquire, possess, or transfer cluster munitions if they are on secondment to the armed forces of a state not party.^[257] At the convention’s Third Meeting of States Parties in September 2012, Canada defended the draft legislation as reflecting “all of the legal obligations called for” in the convention and emphasized that “we have gone even further by prohibiting other activities as a matter of policy, policy which will be translated in operational directives which are themselves legally binding for our soldiers under the military justice system.”^[258]

At the Third Meeting of States Parties in September 2012, the CMC, States Parties, and others expressed concern at certain interpretations in national legislation undertaken by Australia, Canada, and others.^[259] Austria stated that “all State Parties are obliged to undertake best efforts to discourage States from using cluster munitions” and said that “exceptions in national legislation with respect to interoperability clauses risk to run counter to the object and purpose of the Convention.”^[260] Norway said that, “Article 1(1) states the absolute prohibition on any use of all cluster munitions, linked to the unambiguous phrase ‘never under any circumstances.’ This prohibition applies to all kinds of conflicts as well as situations falling below the threshold of armed conflict. The prohibition against use, production, etc., cannot be bypassed or circumvented by creative interpretations of other articles in the Convention. Article 21(4) of the Convention specifies that nothing in the Convention shall authorise a State Party to inter alia use cluster munitions. Article 9 requires that what is prohibited to States Parties must also be prohibited for all individuals.”^[261]

Transit and foreign stockpiling

The CMC has stated that the injunction to not provide any form of direct or indirect assistance with prohibited acts contained in Article 1 of the Convention on Cluster Munitions should be seen as a ban on the transit of cluster munitions across or through the national territory, airspace, or waters of a State Party. It has also said that the convention should be seen as banning the stockpiling of cluster munitions by a state not party on the territory of a State Party.

At least 34 States Parties and signatories have declared that transit and foreign stockpiling are prohibited by the convention.^[262] This includes three states that made their views known in this reporting period:

• The Republic of the Congo’s National Mine Action Focal Point informed the Monitor that the Republic of the Congo “is not willing to assist any country with prohibited acts” under the convention, nor “to use its national territory for transit of these weapons or the stockpiling of cluster munitions and landmines belonging to a foreign army.”^[263]
• Article 3 of Guatemala’s national implementation legislation prohibits the “use, development, production, acquisition, stockpiling, retention, direct or indirect transfer of one or more cluster munitions and/or explosive bomblets.”^[264]
• A representative of Niger informed the Monitor that Niger considers transit and foreign stockpiling of cluster munitions on the territory of a State Party to be prohibited under the Convention on Cluster Munitions.^[265]

States Parties that have indicated support for the opposite view, that transit and foreign stockpiling are not prohibited by the convention, include Australia, Japan, the Netherlands, Portugal, Sweden, and the UK.

• Australia’s implementing legislation (Section 72.42) explicitly allows states not party to stockpile cluster munitions on Australian soil and permits them to transit cluster munitions through Australian ports and airspace. However, in June 2013, a government representative informed the Monitor that “The Australian Government has stated consistently since 2011 that, as a matter of policy, it will not approve the stockpiling of cluster munitions by foreign governments in Australia. Nor are there any existing stockpiles of cluster munitions on Australian territory.”^[266]
• The Netherlands appears to permit transit, but requires a special permit. The Regulations on General Transit Permits NL008 for military goods from allied countries entered into force on 1 July 2012. According to Articles 3 and 4, cluster munitions and antipersonnel mines are excluded from general transit permits, meaning that an individual transit permit is required for both types of weapons. An explanatory note to the regulations says that cluster munitions and antipersonnel mines are “very sensitive goods for which the Netherlands has committed itself to the obligations stemming from the Convention on Cluster Munitions and the Ottawa Convention. Naturally, these goods are excluded from the scope of the NL008 general transit permits.”^[267]
• Sweden’s 2012 parliamentary report articulates the view of the government that transit of cluster munitions is not prohibited under the convention.^[268] Sweden has not made an explicit statement on the issue of the prohibition on foreign stockpiling of cluster munitions, but its 2011 ratification legislation states that “stockpiling, transport, and other handling of cluster munitions could occur in the occasion of military cooperation with states that are not parties to the convention, typically when the latter has a military base, a military ship, or aircraft on the territory of a state party. These activities could also occur during an international mission where military forces from many nations take part and where weapons and ammunition are supplied through common logistical functions.”

In addition, signatory Canada’s draft legislation does not explicitly address transit or foreign stockpiling of cluster munitions but could be read to implicitly allow these activities.^[269] Section 11(2) of the proposed legislation would allow Canadian forces to transport the cluster munitions of a state not party during joint military operations. According to a senior government official, the bill “does not allow stockpiling of cluster munitions on Canada’s territory, including by a State not party to the Convention, as it prohibits all forms of possession.”^[270] On 29 May 2013, the Parliamentary Secretary to the Minister of Foreign Affairs stated that, “The Canadian Forces would also prohibit, as a matter of policy, the transportation of any cluster munitions aboard Canadian assets.”^[271]

US stockpiling and transit

States Parties Norway and the UK have confirmed that the US has removed its stockpiled cluster munitions from their respective territories. The UK announced in 2010 that there were now “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”^[272] According to a Norwegian Ministry of Foreign Affairs official the US removed its stockpiled cluster munitions from Norway in 2010.^[273]

The US Department of State cables released by Wikileaks show that the US has stockpiled and may continue to be storing cluster munitions in five other States Parties to the Convention on Cluster Munitions (Afghanistan, Germany, Italy, Japan, and Spain), as well as in non-signatories Israel, Qatar, and perhaps Kuwait:

• A US cable dated December 2008 states, “The United States currently has a very small stockpile of cluster munitions in Afghanistan.”^[274] Some International Security Assistance Force (ISAF) troops operating in Afghanistan have been equipped with cluster munitions, but the current status of any possible stockpiles is not known.
• According to a December 2008 cable, Germany has engaged with the US on the matter of cluster munitions that may be stockpiled by the US in Germany.^[275] Germany has yet to publicly express clear views on the convention’s prohibition on foreign stockpiling of cluster munitions.
• In a November 2008 cable, the US identified Italy, Spain, and Qatar as states of particular concern with respect to interoperability since “they are states in which the US stores cluster munitions,” even though apparently Qatar “may be unaware of US cluster munitions stockpiles in the country.”^[276] Spain reported in 2011 that it is in the process of informing the states not party with which it cooperates in joint military operations of its international obligations with respect to the prohibition of storage of prohibited weapons on territory under its jurisdiction or control.^[277]
• A December 2008 cable states that 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.”^[278] Japan maintains that US military bases in Japan are under US jurisdiction and control, so the possession of cluster munitions by US forces does not violate the national law or the convention.
• According to a cable detailing the inaugural meeting on 1 May 2008 of the “U.S.-Israeli Cluster Munitions Working Group (CMWG),” until US cluster munitions are transferred from the War Reserve Stockpiles for use by Israel in wartime, “they are considered to be under U.S. title, and U.S. legislation now prevents such a transfer of any cluster munitions with less than a one percent failure rate.”^[279]
• According to a May 2007 cable, the US may store clusters munitions in Kuwait.^[280]

Disinvestment

A total of nine States Parties have enacted legislation that explicitly prohibits investment in cluster munitions, as shown in the following table.^[281]

Belgium was first to enact disinvestment legislation in 2007, followed by Ireland in 2008, Luxembourg and New Zealand in 2009, Italy in 2011, Samoa in 2012, and Liechtenstein, the Netherlands, and Switzerland in 2013.

There were a number of legislative developments concerning disinvestment in the second half of 2012 and first half of 2013:

• Belgian Senator Cécile Thibaut and others introduced a draft bill on 22 May 2013 to recognize and promote socially responsible investments in pension funds and the Ageing Fund. The proposed legislation would prohibit investment in enterprises or public entities that use, adjust, produce, acquire, stock in one way or another, save or transfer to anyone, directly or indirectly, cluster munitions.^[282] On 28 March 2013, two senators introduced a draft bill to create a “green” savings account that would not permit the financing of companies “in the field of international humanitarian law” that “directly or indirectly…use” cluster munitions as well as “develop, produce, acquire in any way, store, retain or transfer to whomever.”^[283]
• Canada’s draft implementing legislation for the convention, Bill S-10, contains no specific prohibition on investment in the production of cluster munitions and the Parliamentary Secretary to the Minister of Foreign Affairs has stated that “the convention does not require state bodies to criminalize investment. However, liability for aiding and abetting, as set out in the bill, would include investment scenarios in which there is sufficient intention and connection between the investment and the prohibited activity to meet Canadian charter and criminal law requirements.”^[284] According to a senior Canadian official, “an investment that is executed with the knowledge and intention that it will encourage or assist cluster munitions production would be captured by the legislation’s prohibition on aiding and abetting any primary offence.”^[285]
• Denmark’s Minister for Business and Growth, Annette Vilhelmsen, announced in May 2013 that the government will work to ban investment in cluster munition production and requested that the Danish Council on Social Responsibility provide recommendations on how a legal prohibition on investment in weapons subject to international disarmament conventions, such as cluster munitions and landmines, could be undertaken.^[286]
• Liechtenstein’s 2013 amendment to its Law on Brokering in War Material “prohibits brokering and direct as well as indirect financing of cluster munitions.” According to the Office for Foreign Affairs, under Article 7(b) of the law, “the following acts are considered as direct financing: the direct extension of credits, loans and donations or comparable financial benefits to cover the costs of or to promote the development, manufacturing or the acquisition of prohibited war material.”^[287]
• Luxembourg’s Ministry of Foreign Affairs confirmed in May 2013 that all assets from producers of cluster munitions had been sold from the Social Security Compensation Fund and declared that it would control the compliance of other government investments with its 2009 law prohibiting investment in cluster munitions. ^[288]
• The Netherlands enacted a legal prohibition on direct investment in production, sale, and distribution of cluster munitions, effective January 2013. The amended Market Abuse (Financial Supervision Act) Decree prevents an enterprise from “directly supporting any national or foreign enterprise which produces, sells, or distributes cluster munitions,” with a view to restricting, as much as possible, any investment in cluster munition producers. The Netherlands Authority for Financial Markets is the primary body responsible for supervising compliance.^[289]
• Samoa’s Cluster Munitions Prohibition Act 2012 makes it an offence to invest in cluster munitions development or production. According to Section 6(1)(f), the offence pertains to persons who “directly or indirectly invest funds with the intention that the funds be used, or knowing that they are to be used, in the development and production of cluster munitions.”^[290]

An additional 25 States Parties and signatories to the convention have provided their view that investment in cluster munitions production is a form of assistance that is prohibited by the convention: Australia, BiH, Cameroon, Canada, Colombia, Republic of the Congo, Croatia, Czech Republic, DRC, France, Guatemala, the Holy See, Hungary, Lao PDR, Lebanon, Madagascar, Malawi, Malta, Mexico, Niger, Rwanda, Senegal, Slovenia, the UK, and Zambia.

A few states have expressed the contrary view that the convention does not prohibit investment in cluster munition production, including Germany, Japan, and Sweden.

Government pension funds in Australia, Ireland, New Zealand, Norway, Luxembourg, and Sweden have withdrawn and/or banned investments in cluster munition producers.

Financial institutions have acted to stop investment in cluster munition production and promote socially responsible investment in Australia, Belgium, Canada, Denmark, France, Germany, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, and the UK.

CMC member NGOs and national stakeholders have continued to call on governments to legislate against investment in cluster munition producers and to provide clear guidance to financial institutions and investors on the issue of investment in cluster munition producers.^[291] In June 2012, IKV Pax Christi (the Netherlands) and FairFin (former Netwerk Vlaanderen, Belgium) issued an update of their October 2009 report, Worldwide Investments in Cluster Munitions: a shared responsibility.^[292] In April 2013, they launched a report on states’ best practices to ban investment in cluster munitions.^[293]