Introduction | Universalization | Use | Production | Transfer | Stockpiles | Retention | Transparency Reporting | National Implemenation Legislation | Interpretive Issues

Introduction

With last September’s successful First Review Conference now behind them, the 100 States Parties to the Convention on Cluster Munitions are entering a new period characterized by further implementation of the convention’s obligations and by responding to threats against the norm that the treaty seeks to establish. 

When the Convention on Cluster Munitions entered into force on 1 August 2010, becoming binding international law, 108 states had signed, of which 38 were States Parties legally bound by all of its provisions. Over the past six years another 51 signatories have ratified, while 11 countries have acceded, including Cuba and Mauritius in the past year.[1]

Five signatories have ratified since Cluster Munition Monitor 2015 was published, but 19 signatories still must ratify to become fully bound by the convention’s provisions.

The first United Nations General Assembly (UNGA) resolution on the convention to ever be voted on was adopted on 7 December 2015 by an impressive margin: 139 countries voted in favor, including 33 non-signatories to the convention, while two voted against it and 40 countries abstained. Cyprus and Uganda were the only signatories to abstain. 

Non-signatory Russia bolstered the case for it being the country most opposed to eradicating cluster munitions after it voted against the UNGA resolution together with Zimbabwe. Russia is largely responsible for the significant increase in cluster munition attacks on opposition-held areas of Syria since October 2015.

Non-signatory Saudi Arabia abstained from voting on the UNGA resolution and has said little in response to more than 15 months of documented cluster munition attacks in Yemen by the coalition of states it leads.

The use of banned cluster munitions in Syria and Yemen, and the resulting civilian casualties, has been met with swift public outcry and global media coverage. It has been widely condemned by States Parties and non-signatories alike as well as through resolutions by the European Parliament, Human Rights Council, UNGA, and UN Security Council. Such responses contribute to the stigma the convention is establishing against any use of cluster munitions. They also show how many non-signatories are disturbed by the use of cluster munitions even if they themselves have not yet relinquished the weapons.

There have been no reports or allegations of any States Parties engaging in activities prohibited by the Convention on Cluster Munitions since 2008, when the convention was adopted in Dublin on 30 May and opened for signature on 3 December.[2]

To date, 29 States Parties have destroyed their stocks of cluster munitions, all well in advance of the convention’s eight-year deadline. Collectively, States Parties have destroyed more than 1.3 million stockpiled cluster munitions containing 172 million submunitions, representing the destruction of 93% of all cluster munitions and 97% of all submunitions declared stockpiled under the convention.

In 2015 alone, nine States Parties destroyed 79,184 cluster munitions and 8.7 million submunitions. States Parties France, Germany, Italy, Mozambique, and Sweden have completed destruction of their stocks since the publication of Cluster Munition Monitor 2015.[3]

Most of the 11 States Parties with stockpiles still to destroy have begun the destruction process. All are expected to finish in advance of their respective deadlines, however some have indicated they require assistance.

A total of 27 States Parties have enacted specific legislation to enforce the convention’s provisions, while two dozen are in the process of adopting new legislation. Another 30 States Parties have indicated that existing laws will suffice to ensure their adherence. More than 80% of States Parties have provided initial transparency reports detailing the actions they are taking to implement and promote the convention.

The community of governments, UN agencies, the International Committee of the Red Cross (ICRC), and Cluster Munition Coalition (CMC) that brought about the Convention on Cluster Munitions remains strongly engaged and united.[4] This partnership champions a common humanitarian disarmament objective that places the protection of civilians, victims, and affected communities at the center. In these challenging times, it should be celebrated and replicated as an inspirational example of peace in the making.

This ban overview covers activities during the second half of 2015 and the first half of 2016, and sometimes later when data was available. All findings are drawn from detailed country profiles available on the Monitor website.[5]

Universalization

“Universalization” refers to the process of non-signatory countries joining the Convention on Cluster Munitions, usually through accession. It also encompasses ratifications by countries that signed the convention prior to its entry into force on 1 August 2010. Both accession and ratification usually involve some form of parliamentary approval, typically in the form of legislation.

Accessions

Since the Convention on Cluster Munitions became binding international law on 1 August 2010, states can no longer sign, but instead join through a process known as accession, which is essentially a process that combines signature and ratification into a single step.[6] 

Since August 2010, the number of countries that are part of the convention has risen from 108 to 119, following accessions by 11 countries.[7] Two accessions have occurred since the publication of Cluster Munition Monitor 2015: Mauritius on 1 October 2015 and Cuba on 6 April 2016.[8]

Ratifications

A total of 51 signatories have ratified the convention since August 2010 to become States Parties, including five since Cluster Munition Monitor 2015 was published: Colombia, Iceland, Palau, Rwanda, and Somalia.[9]

Almost all of the convention’s 19 remaining signatories have committed to ratify.[10] Many have conducted stakeholder consultations on the convention, but only a few appear to have parliamentary approval processes underway, as the following regional summaries show. The Democratic Republic of the Congo (DRC), Jamaica, and Madagascar appear to be the closest to completing their ratification of the convention.

Meetings on cluster munitions 

Croatia hosted the First Review Conference of the Convention on Cluster Munitions in Dubrovnik on 7–11 September 2015. A total of 95 countries attended the meeting (61 States Parties, nine signatories, and 25 non-signatories) in addition to UN agencies, the ICRC, and the CMC.[11] Croatia’s Prime Minister Zoran Milanović was elected by acclamation as President of the First Review Conference and in his opening address called on all countries to reject the use of cluster munitions and join the convention.[12] Colombia ratified the convention during the meeting, while Cuba made a surprise announcement committing to accede. States Parties adopted a progress report reviewing implementation since entry into force and an action plan.

States Parties also adopted the “Dubrovnik Declaration” committing “to end the harm caused by cluster munitions” and “ensure that cluster munitions remain a stigmatized weapon” by working for “a world free of the suffering, casualties and socio-economic impacts” caused by the weapons.[13] In the weeks and months leading up to the Review Conference, States Parties led by Croatia, in cooperation with partners such as the CMC, worked to ensure the draft declaration was not weakened or watered down. The Declaration’s firm statement that “We condemn any use of cluster munitions by any actor” was adopted without amendment. Four States Parties—United Kingdom, Australia, Canada, and Lithuania—expressed reservations with the text.

At the annual meeting of the Convention on Conventional Weapons (CCW) in November 2015, several countries expressed their views on cluster munitions, including South Korea, which expressed regret that a “complex security environment” prevents it from acceding to the Convention on Cluster Munitions.[14] Some non-signatories to the Convention on Cluster Munitions, such as India and Israel, as well as EU member states Estonia, Finland, Greece, and Poland, expressed regret that states failed in 2011 to regulate the use of cluster munitions through the framework provided by the CCW. Yet none of these states have proposed CCW work on cluster munitions since then or reassessed their approach to the Convention on Cluster Munitions.[15] The 2011 failure effectively ended CCW deliberations on the matter, leaving the Convention on Cluster Munitions as the sole international instrument to specifically address the suffering caused by cluster munitions. 

The Monitor is not aware of any regional workshops aimed at encouraging universalization and implementation of the Convention on Cluster Munitions in the second half of 2015 or first half of 2016.[16]

After States Parties decided in 2015 to no longer hold intersessional meetings for the convention, the Netherlands in cooperation with the CMC organized an informal meeting for States Parties in Geneva on 17 May 2016.[17] The half-day discussion focused on universalization, responses to instances and allegations of use of cluster munitions, and strengthening the norm against the weapon.

Since 1 January 2016, the Permanent Representative of the Netherlands to the Conference on Disarmament, Ambassador Henk Cor van der Kwast, has served as President of the convention’s Sixth Meeting of States Parties.[18] The meeting will be held at the UN in Geneva on 5–7 September 2016, marking the first time States Parties have held their annual meeting at the UN.[19]

UN General Assembly Resolution 70/54

Croatia and 36 co-sponsors introduced UNGA Resolution 70/54 on “Implementation of the Convention on Cluster Munitions.”[20] The non-binding resolution calls for full implementation of the Convention on Cluster Munitions and urges states outside the convention to “join as soon as possible.”[21] It was the first UNGA resolution on the convention to be adopted by a vote.[22]

On 7 December 2015, the resolution was adopted by a vote of 139 states in favor and only two states—Russia and Zimbabwe—opposed. Forty states abstained, all non-signatories to the convention except for signatories Cyprus and Uganda.[23]

Thirty-two non-signatories voted in favor of Resolution 70/54, proving its usefulness as a barometer of support for the convention.[24] It also saw Russia and 13 other states that abstained on the resolution make statements explaining their vote and stance on the convention.[25]

Regional universalization developments

Africa

Of the 49 states in Sub-Saharan Africa, 28 are States Parties to the convention. Mauritius and Swaziland have acceded to the convention, while the rest signed and ratified. There are 14 signatory states in the region, and seven non-signatories.

Rwanda ratified on 25 August 2015, just prior to the convention’s First Review Conference. Somalia, which has suffered from the use of cluster munitions, ratified on 30 September 2015 and Mauritius acceded the next day, after enacting national implementation legislation.

In December 2015, five of the seven non-signatories to the convention from Sub-Saharan Africa voted in favor of the UNGA resolution calling on states that have not done so to join the Convention on Cluster Munitions as soon as possible: Equatorial Guinea, Eritrea, Ethiopia, Gabon, and Sudan.South Sudan was absent from the vote.

At the First Review Conference in September 2015, Gabon informed States Parties that it hopes to join the convention, but did not provide a timeframe for completing accession.[26] The six other African non-signatories appear to take few, if any, steps toward acceding to the convention, but Eritrea, South Sudan, and Sudan also participated as observers in the First Review Conference.

Zimbabwe surprised many by voting against the UNGA resolution in December 2015 together with Russia. It has not responded to requests to elaborate why it voted no. Signatory Uganda also has not explained why it abstained from both rounds of voting on Resolution 70/54, while signatories Angola and São Tomé e Príncipe were absent during the final vote on the resolution.

Of the 14 African signatories to the convention, three have completed or are undertaking parliamentary approval processes to ratify the convention. Madagascar’s parliament approved ratification of the convention in May 2015 while DRC’s parliament did so in 2013. For both, the last remaining step is to deposit the ratification instrument with the UN.[27] In October 2015, Madagascar informed states that it was awaiting promulgation of the ratification, which it described as “imminent.”[28] Liberia’s government introduced draft legislation to ratify the convention in parliament in July 2015.[29]

The 11 other signatories from Sub-Saharan Africa have expressed their desire to ratify and several have undertaken stakeholder consultations on the matter, but none have introduced ratification measures for parliamentary consideration and approval.[30] 

Americas

Of the 35 states from the Americas, 24 are States Parties to the convention, while signatories Haiti and Jamaica still need to ratify.[31] There are nine non-signatories in the region. 

Colombia ratified the convention on 10 September 2015, during the First Review Conference. Dubrovnik is also where Cuba announced that it would accede to the convention.[32] It followed through six months later, becoming the sixth country from the region to accede to the convention.[33]

In December 2015, six non-signatories from the Americas voted in favor of the UNGA resolution: Suriname; Venezuela; and Caribbean states Bahamas, Barbados, Dominica, and Saint Lucia. These countries have limited capacity to undertake the accession process, but their positive votes for the resolution indicate the likelihood they will join the convention in the future.

Before its accession, Cuba also voted in favor of Resolution 70/54 and affirmed its “strong support” for the convention at the UNGA First Committee in October 2015.[34]

Argentina, Brazil, and the United States (US) abstained from the vote on the UNGA resolution and provided explanations to elaborate their long-held objections to the convention.[35]

At the UNGA in October 2015, Jamaica said “we are currently working towards ensuring our ratification [of the convention] at the earliest opportunity.”[36] The status of Haiti’s ratification process is not known.

Asia-Pacific

Only 10 of the 40 states in the Asia-Pacific region are States Parties to the Convention on Cluster Munitions, while Indonesia and the Philippines have signed, but still not ratified.[37] 

The last ratification of the convention was the Pacific island state of Palau on 19 April 2016, which became the 100^th State Party to the convention.[38]

From the Asia-Pacific region, 17 non-signatories voted in favor of the UNGA resolution on the convention in December 2015, including nine that have not made a public statement articulating their position on the convention: Bangladesh, Bhutan, Brunei Darussalam, Maldives, Marshall Islands, Federated States of Micronesia, Sri Lanka, Timor-Leste, and Tuvalu. They were joined by eight other non-signatories: Kiribati, Malaysia, Mongolia, Papua New Guinea, Singapore, Solomon Islands, Thailand, and Vanuatu.

Only seven non-signatories from the Asia-Pacific region abstained on Resolution 70/54: China, India, South Korea, Myanmar, Nepal, Pakistan, and Vietnam. Cambodia, North Korea, and Tonga were absent during the vote. Non-signatory Niue is not eligible to vote on UNGA resolutions, but can accede to the convention.

Pakistan and Vietnam explained why they abstained from the vote, while Singapore expressed its support for the convention after voting in favor of the UNGA resolution.

Non-signatories China, Pakistan, Singapore, Sri Lanka, Thailand, and Vietnam participated as observers in the convention’s First Review Conference in September 2015.

Asia-Pacific signatories Indonesia and the Philippines still do not appear to have concluded their years-long stakeholder consultations on the convention or introduced ratification legislation into their respective parliaments for consideration and approval.

Europe, the Caucasus, and Central Asia

Of the 54 countries in Europe, the Caucasus, and Central Asia, 34 are States Parties to the convention: 32 have signed and ratified, while Andorra and Slovakia have acceded.[39] 

Iceland ratified the convention on 31 August 2015 and the following week participated as a State Party in the convention’s First Review Conference.

Only two non-signatories from Europe voted in favor of Resolution 70/54 on the Convention on Cluster Munitions: Azerbaijan and Kazakhstan.

Support for the convention is strongest in the European Union, where 21 of 28 EU member states are State Parties to the convention. The UNGA resolution demonstrated a clear split between EU members on the convention, as all EU non-signatories to the convention—Estonia, Finland, Greece, Latvia, Poland, and Romania—abstained rather than vote in favor.

Poland provided an explanation on behalf of itself, Greece, Estonia, and Finland that expressed “support [for] the humanitarian goal of the Convention on Cluster Munitions” but said “at the same time, we believe that humanitarian concerns must be balanced with States’ legitimate security concerns and military and defence needs.”[40]

Russia explained why it voted against the UNGA resolution, expressing “concern about the humanitarian impact of the arbitrary use of cluster munitions” but disagreeing vehemently with the approach taken by the ban convention. Nine other European non-signatories abstained on Resolution 70/54: Armenia, Belarus, Georgia, Kyrgyzstan, Serbia, Tajikistan, Turkey, Ukraine, and Uzbekistan. Turkmenistan was absent from both rounds of voting on the resolution.

Other states from the Caucasus and Central Asia have made no progress toward joining the Convention on Cluster Munitions.[41]

Finland, Kazakhstan, Serbia, Turkey, and Turkmenistan participated as observers in the convention’s First Review Conference in September 2015.

Cyprus is the last signatory left to ratify the convention from Europe. Its parliament has been considering draft ratification legislation for the convention since 2011, but there are concerns over Turkey’s absence from the convention.[42] Cyprus abstained from both rounds of voting on the UNGA resolution and explained that the “abnormal security situation on the island” may have prevented ratification, but pledged “these issues can and will be resolved.”[43]

Middle East and North Africa

Of the 19 countries in the Middle East and North Africa, only four are States Parties to the Convention on Cluster Munitions: Iraq, Lebanon, Palestine, and Tunisia.[44] 

Algeria participated in a meeting of the convention for the first time in September 2015, when it attended the First Review Conference. It expressed firm opposition to cluster munitions and said the convention “provides a useful international norm to the global regime on disarmament.”[45] Yemen said in May 2016 that it is considering acceding to the convention.[46]

Jordan and Libya voted in favor of the UNGA resolution in December 2015, calling for the universalization of the Convention on Cluster Munitions. The other non-signatories abstained.[47] Iran was the only country from the region to explain why it abstained from the resolution.

Algeria, Morocco, Oman, Qatar, and Saudi Arabia participated as observers in the convention’s First Review Conference in September 2015.[48]

Use of Cluster Munitions

Global overview

Cluster munitions have been used by at least 21 governments in 40 countries and four disputed territories since the end of World War II (as detailed in the following table and the Timeline of cluster munition use found in the appendices of this chapter). Almost every region 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.

Most states outside the convention have never used cluster munitions.[49] Only Israel, Russia, and the US can be considered major or prolific users and producers of cluster munitions.[50]

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 the use of cluster munitions. Many countries that used cluster munitions in the past are now States Parties to the Convention on Cluster Munitions and have relinquished any use of these weapons under any circumstances.[51]

Article 4 of the convention addresses the clearance of cluster munition remnants. While not retroactive, it finds that a State Party that previously used cluster munitions that became remnants on the territory of another State Party before the convention’s entry into force for both states is “strongly encouraged” to provide assistance to the affected State Party.

There have been no confirmed reports or allegations of new use of cluster munitions by any State Party to the convention.

However, cluster munitions have been used in seven non-signatories to the convention since its August 2010 entry into force, including Cambodia (2011), Libya (2011 and 2015), South Sudan (2014), Sudan (2012 and 2015), Syria (2012–present), Ukraine (2014–2015), and Yemen (2015–present).[52]

Summary of states using cluster munitions and locations used[53]


Note: Other areas are indicated in italics.

In this reporting period—since 1 July 2015—cluster munitions have been used in Syria and Yemen, as summarized below (for a more detailed accounting, please see the relevant country profile). There is also strong, but unconfirmed evidence that cluster munitions were used in Nagorno-Karabakh in April 2016, while signatory Kenya has denied an allegation that it used cluster munitions in Somalia in January 2016.

At the First Review Conference of the Convention on Cluster Munitions in September 2015, States Parties adopted the Dubrovnik Declaration, which affirms: “We are deeply concerned by any and all allegations, reports or documented evidence of the use of cluster munitions, including in Cambodia, Libya, South Sudan, Sudan, Syrian Arab Republic, Ukraine and Yemen. We condemn any use of cluster munitions by any actor.”[54]

Use in Syria

Since 2012, Syrian government forces have used at least 13 types of cluster munitions made by two countries, as the following table shows.[55]

From July 2012 until July 2016 at least 360 cluster munition attacks have been recorded in Syria.[56] The actual number is likely far higher. Since mid-2012, Syrian government forces have used cluster munitions in multiple locations across 10 of the country’s 14 governorates.[57]

Cluster Munition Monitor 2014 reported at least 249 cluster munition attacks from July 2012 until July 2014. The frequency of reported use of cluster munitions decreased significantly in the second half of 2014 and first three-quarters of 2015.[58] It increased again when Russia began its joint operation with Syrian government forces and at least 76 attacks were recorded between 30 September 2015 and 20 July 2016.[59]

Russia has denied using cluster munitions in Syria since beginning its joint military operation with Syrian government forces on 30 September 2015, but its response is unconvincing. There is growing evidence that Russia stockpiles cluster munitions at its airbase at Hmeymim, southeast of Latakia City in Syria.

Types of cluster munitions used in Syria since 2012[60]

 

There is compelling evidence that Russia is using cluster munitions in Syria and/or directly participating with Syrian government forces in attacks using cluster munitions on opposition-held areas of governorates such as Aleppo, Homs, and Idlib, and on armed opposition groups.

The first use in the conflict of two more types of cluster munitions has been documented since the start of Russia’s joint military operation with Syria. Advanced air-dropped RBK-500 SPBE cluster bombs containing SPBE sensor fuzed submunitions have been used since October 2015 and ground-launched 3-O-8 cluster munition projectiles containing O-10 submunitions have been used since December 2015.[61]

A remarkable number of RBK-500 AO-2.5RT/RTM bombs appear to have been used and failed, given the high numbers of unexploded submunitions recorded after attacks.

Several air-dropped RBK-series cluster munitions used since 30 September 2015 bear markings showing they were produced from 1989 into the early 1990s, particularly the RBK-500 SPBE cluster bombs, which appear to have been manufactured in 1990 and 1991. This appears to be a noticeable shift from before the Russian intervention, when production markings on the cluster bombs used in Syria showed they were produced in the 1970s and 1980s.[62]

The UK and US have said that Russia is using cluster munitions in Syria, including in a 16 June 2016 attack on coalition-backed armed opposition forces near the Syrian al-Tanf border crossing with Iraq. Photographs released by the forces attacked show RBK-500 AO-2.5RT/RTM cluster munition remnants.[63] The US Department of Defense claimed that Russian forces conducted the attack.[64] In a statement, the Russian Ministry of Defense appeared to acknowledge responsibility for the attack, but did not address the reported use of cluster munitions.[65]

It is challenging to determine conclusively if Russian or Syrian government forces are responsible for individual attacks, as they use many of the same aircraft and weapons and frequently carry out offensives together. However, only Russia has forces in Syria that operate the Sukhoi SU-25 and SU-34 fighter-ground attack aircraft that have been used to deliver some of the RBK-series cluster bombs used in Syria. Human Rights Watch (HRW), Amnesty International, and others have compiled credible evidence, including video and photographs, documenting SU-25 and SU-34 near or involved in attack sites when cluster munitions were used.[66]

There has been no evidence to indicate that the US or its partners have used cluster munitions in the coalition’s Inherent Resolve operation against the non-state armed group Islamic State (IS) in Syria and Iraq that began in August 2014.[67] A spokesperson for the US Air Force Central Command informed The Washington Post on 26 July 2016 that: “We have not employed cluster munitions in Operation Inherent Resolve. This includes both U.S. and coalition aircraft.”[68]

Earlier use of cluster munitions 

Initial reports of the use of RBK-series air-dropped cluster bombs containing AO-1SCh and PTAB-2.5M bomblets emerged in mid-2012, when the Syrian government began its air campaign on opposition-held areas.[69] Its use of air-dropped cluster bombs has continued since then, including RBK-500 cluster bombs containing ShOAB-0.5 submunitions and AO-2.5RT and PTAB-2.5KO submunitions for which the delivery system still is not clear.[70]

Ground-launched cluster munitions have been used since the end of 2012, when government forces first used multi-barrel rocket launchers to deliver 122mm SAKR cluster munition rockets containing DPICM submunitions with distinctive white nylon stabilizing ribbons.[71] In early 2014, Syrian government forces began to use 9M55K and 9M27K-series surface-to-surface rockets containing 9N210/9N235 submunitions equipped with self-destruct mechanisms.[72] In July 2014, the first IS cluster munition use was documented during its advance on Ayn al-`Arab/Kobani, involving a DPICM-like submunition with a distinctive red ribbon, called “ZP-39” by experts.[73]

Multiple 9M79-series Tochka ballistic missiles with submunition warheads have been used in Syria, including in an attack on Al-Najeya village on 4 December 2015.

As the Syria conflict continues to spiral, it is not possible to determine with confidence if opposition groups other than IS have used cluster munitions. There is evidence that opposition forces have repurposed unexploded submunitions as improvised explosive devices (IEDs).[74] However, no opposition group operates aircraft and none have been seen in possession of the systems necessary to deliver ground-launched cluster munitions.[75]

Responses to the use of cluster munitions 

The Syrian military has denied possessing or using cluster munitions, but usually does not respond to or comment on new use of cluster munitions.[76] In December 2015, the Russian Defence Ministry stated that “Russian aviation does not use [cluster munitions]” and that “there are no such munitions at the Russian air base in Syria.”[77] IS has not responded to its reported use of cluster munitions.

The civilian harm caused by the use of cluster munitions in Syria has attracted widespread media coverage, public outcry, and condemnations from more than 140 states.[78] Of these countries, more than 40 have made national statements condemning the use in Syria, including by the foreign ministers of Convention on Cluster Munitions States Parties Austria, Belgium, Costa Rica, Croatia, Denmark, France, Germany, Mexico, Netherlands, Norway, Sweden, and the UK.[79] In February 2016, US Secretary of State John Kerry expressed concern at the use of cluster munitions in Syria, which he said is “killing innocent women and children.”[80]

During the First Review Conference, 29 states condemned or expressed concern at ongoing use of cluster munitions, a dozen of which specifically mentioned cluster munition use in Syria.[81]

UN Secretary-General Ban Ki-moon has described “the carnage caused by cluster munitions in Syria” as “a direct violation” of international humanitarian law.[82] However, the UN Secretary-General’s statement to the First Review Conference in September 2015 failed to condemn or even object to new use of cluster munitions.

States have adopted four UNGA resolutions since May 2013 condemning the use of cluster munitions in Syria, including Resolution 70/234 adopted on 23 December 2015 by a vote of 104 states in favor, which deplored and condemned “in the strongest terms” the continued use of cluster munitions.[83]

Since April 2014, states have adopted seven Human Rights Council resolutions condemning the use of cluster munitions in Syria, including five since April 2015.[84]

The UN Commission of Inquiry on Syria, which reports to the Human Rights Council, has reported on cluster munition use several times.[85]

Use in Yemen

On 26 March 2015, a Saudi Arabia-led coalition began a military operation in Yemen against Ansar Allah (Houthi forces) that was continuing as of July 2016 despite a 10 April 2016 ceasefire agreement.

HRW and Amnesty International have documented evidence of at least 19 cluster munition attacks in the conflict involving the use of seven types of air-delivered and ground-launched cluster munitions produced in three countries, as the following table shows.

HRW could not determine who used ground-launched cluster munitions containing “ZP-39” submunitions in Saada in April 2015, but Saudi Arabia and Houthi forces both possess rocket launchers and tube artillery capable of delivering them.[87]

Cluster munitions used in Yemen since April 2015[87]

None of the states participating in the Saudi Arabia-led coalition—Bahrain, Egypt, Jordan, Kuwait, Morocco, Pakistan, Qatar, Sudan, UAE—are party to the Convention on Cluster Munitions.

The first recorded cluster munition attack occurred at al-Shaaf in the western part of Saada governorate according to a video uploaded on 17 April 2015.[88] A subsequent visit by HRW researchers to al-Amar village, 30 kilometers south of Saada City, confirmed a cluster munition attack on 27 April, including the presence of unexploded submunitions.[89] The most recently documented cluster munition attack was on 15 February 2016 at a cement factory in Amran governornate. All three of these attacks involved the use of CBU-105 Sensor Fuzed Weapons, the only cluster munition that the US has exported since 2008 and only on the condition that they are not used in civilian areas.[90] Both Saudi Arabia and UAE have received CBU-105s from the US.

In Yemen, HRW has found at least three instances in which CBU-105s malfunctioned as their “skeet” or submunitions did not disperse from the BLU-108 canister and did not explode.[91] Under existing US policy, the CBU-105 is required to have a failure rate of less than 1%. HRW documented evidence showing the CBU-105 was used in or near civilian areas, also in apparent violation of US export law.[92]

In August 2015, HRW published the results of a research mission to Hajja governorate, which borders Saudi Arabia, documenting at least seven cluster munition rocket attacks by coalition forces from late April to mid-July 2015 that caused dozens of civilian casualties.[93]

On 6 January 2016, coalition forces dropped a US-made CBU-58 cluster bomb containing BLU-63 submunitions on Yemen’s capital Sanaa in an attack documented by HRW, The New York Times, The Washington Post, and others.[94] Markings on the bomb remnants indicate that it was manufactured in 1978. In Saada, HRW and VICE News also documented coalition use of notoriously harmful BLU-97 submunitions delivered by CBU-87 cluster bombs.[95]

Amnesty International researchers documented the use of two types of cluster munitions in Yemen since April 2015, apparently by coalition forces. It found the remnants of a Brazil-made ASTROS II cluster munition rocket in Saada from a 27 October 2015 attack, and in May 2016 confirmed the presence of UK-made BL-755 cluster munitions remnants in al-Khadra village in Hajja governorate.[96]

Responses to the cluster munition use 

In May 2016, Yemen informed a Mine Ban Treaty meeting that its mine clearance program has been set back by the conflict that began in March 2015 and has generated new contamination, including from cluster munition remnants.[97]

The government of Saudi Arabia still has not issued a formal statement to confirm or deny the reports that the Saudi-led coalition used cluster munitions multiple times in Yemen.[98] Saudi Arabia’s principle military spokesperson Brig. Gen. Ahmed Asiri has admitted in media interviews to one instance of use of CBU-105 Sensor Fuzed Weapons in April 2015 in Hajja governorate, but argued it was not in a populated area and that they are not prohibited weapons.[99] In February 2016, The New York Times reported that Saudi officials continue to deny ordering the use of cluster munitions in Yemen.[100]

The UAE has denied using CBU-105 Sensor Fuzed Weapons in Yemen.[101] None of the other members of the coalition have commented on the use of cluster munitions in Yemen or responded to a CMC letter calling for an end to the attacks.

US officials have indicated that the US is aware of Saudi Arabia’s use of cluster munitions in Yemen, including CBU-105 Sensor Fuzed Weapons, which are banned by the Convention on Cluster Munitions as they fall under the convention’s definition of a cluster munition.[102] In May 2016, the Obama administration suspended transfers of cluster munitions to Saudi Arabia after reports of their use in civilian areas in Yemen.[103]

The use of BL-755 cluster munitions in Yemen marks the first documented use of UK-made cluster munitions since the Convention on Cluster Munitions, to which the UK is party, entered into force in 2010. The UK has denied Saudi use of cluster munitions in Yemen.[104] The UK’s last transfer of BL-755 cluster munitions to Saudi Arabia was in 1989.[105]

Brazil has not commented on the evidence that its ASTROS cluster munition rockets have been used by the Saudi-led coalition in Yemen. In May 2016, HRW shared research findings with Brazilian government officials, including photographs from Hajja governorate showing unexploded submunitions from the rocket attacks.

Since the convention’s intersessional meetings in June 2015, states have continued to express concern at or condemn new use of cluster munitions in Yemen.[106]

On 12 January 2016, the Netherlands in its capacity as president of the convention expressed deep concern at the reported cluster munition use in Yemen.[107] At the Conference on Disarmament on 29 February 2016, the Netherlands Minister of Foreign Affairs Bert Koenders said he was “deeply concerned about reports of the use of cluster munitions in the Yemen conflict” and called on all countries to “refrain from using cluster munitions.”[108]

Previously, Costa Rica as president of the convention’s Fifth Meeting of States Parties and Croatia as president of the First Review Conference both condemned the use of cluster munitions in Yemen.[109]

The UN, the ICRC, and the CMC have condemned the use of cluster munitions in Yemen. On 25 February 2016, the European Parliament adopted another resolution condemning the Saudi-led coalition airstrikes in Yemen, including the use of cluster bombs. It adopted a similar resolution on 9 July 2015.[110]

Use in Nagorno-Karabakh, Azerbaijan

There is credible evidence that two types of ground-launched cluster munition rockets were used in Nagorno-Karabakh during the first week of April 2016 during fighting across the line of contact separating local Armenian-backed separatists and Azerbaijani forces. Ground fighting was confined to areas close to the line of contact, but Azerbaijan launched artillery and rockets more than 10 kilometers into Nagorno-Karabakh from 1 April until 5 April 2016 when a ceasefire went into effect.[111]

Azerbaijan and Armenia have both denied using cluster munitions in the brief conflict and accused the other side of using cluster munitions against civilians.[112] Cluster Munition Monitor has not been able to conduct an independent investigation to make a conclusive determination about responsibility.

Within 10 days of commencing an emergency clearance operation in cooperation with Nagorno-Karabakh’s Emergency Situations Service on 8 April 2016, the HALO Trust reported the clearance and destruction of close to 200 unexploded M095 DPICM-type submunitions from near the villages of Nerkin Horatagh and Mokhratagh, close to the town of Martakert in northeast Nagorno-Karabakh.[113] HALO found remnants of Israeli-produced LAR-140 surfaced-fired rockets, which deliver the M095 DPICM submunitions.[114] The cluster munitions were reportedly fired from Azerbaijan.[115]

Media documented the remnants of the cargo section of 9M55K 300mm Smerch rockets in the southeast of Hardut district near the borders with Azerbaijan and Iran.[116] Correspondents from Russian media outlet Sputnik photographed remnants of the cargo section of 9M55K Smerch rockets in a cemetery outside the village of Shukyurbeyli in Hadrut region. Azerbaijan was reported to have fired the Smerch rockets on the night of 4 April.[117]

Allegation of use by Kenya in Somalia 

On 24 January 2016, a Somali media outlet published a report on an alleged cluster munition attack in the Gedo region of Somalia.[118] It published photographs reportedly taken at the site of the attack that show dead livestock and the remnants of UK-made BL-755 cluster bombs and their submunitions. According to the article, the Kenyan Defence Forces (KDF) carried out the attack, reportedly against al-Shabaab, after Kenyan troops were forced to retreat from their base near the Somali border town of El Adde. 

The Governor of Gedo region, Mohamed Abdi Kalil, accused the KDF of attacking the area around Bardere City “using illegal cluster bombs.”[119] At the UN Security Council in February 2016, the US said it was “deeply disturbed by allegations” that Kenya attacked civilian areas in Somalia in January 2016, including “claims that cluster munitions were deployed in violation of international law.”[120] It called for an investigation.

The UN investigated and reported to the Security Council on 9 May 2016, finding that:

In addition to civilian casualties, air strikes by the Kenyan military from 15 to 23 January in the Gedo region reportedly resulted in the killing of livestock and the destruction of water wells and houses. In this regard, allegations of cluster munitions were reported by the media and local communities. However, the Government of Kenya has officially denied them. Unexploded sub-munitions are reported to have been used by Al-Shabaab as improvised explosive devices during attacks. On 31 January, the Federal Government announced a committee to investigate the impact of the air strikes, but the committee has yet to begin its work.[121]

It is not possible on the basis of the above evidence for the Monitor to confirm the use of cluster munitions in January 2016, or to identify the responsible party.

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 November 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 must be approved by a “Combatant Commander,” a high-ranking US military official. After 2018, the US will no longer use cluster munitions that result in more than 1% UXO.

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

During the failed 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 China, India, and Russia. The CMC has called on these states to institute the commitments they made at the CCW as national policy as an interim measure toward joining the Convention on Cluster Munitions.

Non-state armed groups

Due to the relative sophistication of cluster munitions and their delivery systems, very few non-state armed groups (NSAGs) have used them.

In the past, NSAG use of cluster munitions has been recorded in Afghanistan (by the Northern Alliance), BiH (by a Serb militia), Croatia (by a Serb militia), Israel (by Hezbollah), Syria (by IS), and Ukraine (by opposition forces).[122]

Government forces used cluster munitions against NSAGs in Syria, and Yemen in the second half of 2015 and into 2016, while in the past, cluster munitions were used against NSAGs in several countries, including Lebanon, Libya, South Sudan, Sudan, Syria, and Ukraine, as well as in Abkhazia, Nagorno-Karabakh, and Western Sahara.[123] 

Production of Cluster Munitions

A total of 34 states have developed or produced more than 200 types of cluster munitions.[124] Half of these states ceased manufacturing cluster munitions prior to or as a result of joining the Convention on Cluster Munitions.

Producers 

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

Cluster munition producers

It is not known if cluster munitions were produced in all these countries in 2015 or the first half of 2016 due to lack of transparency and available data. Greece, Romania, Singapore, and Turkey have indicated no active production, but the Monitor continues to list them as producers as it is unclear if they have adopted a new policy forswearing any future production of cluster munitions.

In November 2015, the private company Singapore Technologies Engineering (STE) announced that it has ceased production of cluster munitions. In a statement posted to its website, STE wrote, “As a responsible military technology manufacturer we do not design, produce and sell anti-personnel mines and cluster munitions and any related key components.”[125] The Monitor will continue to list Singapore as a producer until the government formally commits not to acquire cluster munitions from its domestic industry. Singapore already observes an indefinite export moratorium.

In June 2011, Greece told the Monitor that its last production of cluster munitions was in 2001.[126] In April 2011, Romania’s Deputy Minister for Foreign Affairs stated, “Romania is not a producer of cluster munition[s].” In August 2011, Turkey stated it has not produced cluster munitions since 2005.

Some cluster munition producers have established specific standards aimed at addressing the weapon’s failure rate and resulting UXO:

• South Korea in 2008 issued a directive requiring that in the future it would only acquire cluster munitions with self-destruct mechanisms and a 1% or lower failure rate.[127]
• In 2001, the US instituted a policy that all submunitions produced after 2005 must have a UXO rate of less than 1%.[128] 

Former producers

Under Article 1(1)(b) of the Convention on Cluster Munitions, States Parties undertake to never develop, produce, or acquire cluster munitions. There have been no confirmed instances of new production of cluster munitions by any of the convention’s States Parties or signatories since the convention took effect in August 2010.

Eighteen states have ceased the production of cluster munitions, as shown by the following table. All are States Parties to the Convention on Cluster Munitions except non-signatory Argentina, which has indicated that it does not intend to produce cluster munitions in the future.

Former producers of cluster munitions

Several States Parties have provided information on the conversion or decommissioning of production facilities in their Article 7 transparency reports, including France, Japan, Sweden, and Switzerland.[129]

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 past transferred more than 50 types of cluster munitions to at least 60 other countries.[130]

Exporters and recent transfers 

Since joining the Convention on Cluster Munitions, no State Party is known to have transferred cluster munitions other than for the purposes of stockpile destruction or for research and training purposes. States Parties Chile, France, Germany, Moldova, Slovakia, Spain, and the UK exported cluster munitions before they adopted the Convention on Cluster Munitions.

Ecuador’s Santa Barbara company, which is part of the Ministry of Defense, listed a type of cluster munition in its 2016 arms catalogue as available for sale.[131] In June 2016, following an inquiry from the CMC, Ecuador confirmed that it is not selling cluster munitions and the item was removed from the catalogue.[132]

While the historical record is incomplete and there are large variations in publicly available information, 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.[133] Cluster munitions of Russian/Soviet origin are reported to be in the stockpiles of at least 36 states, including countries that inherited stocks after the dissolution of the USSR.[134] 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.

Use of cluster munitions in 2015 and 2016 and further research point to previously unknown transfers of cluster munitions. For example:

• Saudi Arabia acquired ASTROS cluster munition rockets from Brazil at some point and received its last shipment of BL-755 cluster bombs from the UK in 1989.
• Syria possesses SAKR cluster munition rockets bearing the production markings of Egyptian companies. Based on evidence of cluster munition use by government forces since 2012, Syria has imported at least 12 types of cluster munitions made by either the USSR or Russia.
• In October 2015, Nigeria’s Defence Headquarters issued an alert warning the public of improvised explosive devices (IEDs) fabricated by Boko Haram from cluster munitions. It issued photographs showing submunitions from French-made BLG-66 cluster munitions that it said had been recovered from arms caches found in areas contested by Boko Haram.[135]
• The US provided small numbers of CBU-105 Sensor Fuzed Weapons to Oman (32 in 2012), Singapore (3 in 2014), and South Korea (2 in 2015).

Non-signatories Brazil, Israel, South Korea, Turkey, Ukraine, and the US are known to have exported cluster munitions since 2000. The use of US-manufactured and supplied CBU-105 cluster munitions by the Saudi Arabia-led coalition in Yemen in 2015 and 2016 is raising questions about whether statutory US transfer requirements are being met.[136] In May 2016, the Obama administration suspended transfers of US cluster munitions to Saudi Arabia after reports of their use in civilian areas of Yemen.[137]

Non-signatories Georgia, India, Oman, Pakistan, Saudi Arabia, Singapore, South Korea, Taiwan, Turkey, and the UAE are among the recipients of cluster munitions exports since 2005.

At least two states that have not joined the Convention on Cluster Munitions have enacted a partial or complete export moratorium: Singapore and the US.

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 one billion submunitions, as shown in the following table.[138] At least 31 of these countries have destroyed their stockpiled cluster munitions, while 11 States Parties to the convention still have stocks to destroy.

Countries that have stockpiled cluster munitions
Note: Countries in italics still possess stockpiles.

Stockpiles possessed by non-signatories 

It is not possible to provide a global estimate of the quantity of cluster munitions currently stockpiled by non-signatories to the Convention on Cluster Munitions as too few have disclosed information on the types and quantities possessed.[139]

In 2011, the US said its stockpile was comprised of “more than 6 million cluster munitions.”[140] However, the US appears to have made significant progress since 2008 in removing the cluster munitions from its active inventory and placing them in the demilitarization inventory for destruction. There is a lack of detailed information on the process, including the number and types destroyed, but according to a December 2015 US Army presentation there are currently 136,000 tons of cluster munitions in the demilitarization account.[141]

Georgia completed the destruction of 844 RBK-series cluster bombs containing 320,375 submunitions in 2013; it used Israeli-made cluster munition rockets during the 2008 conflict with Russia.[142] Greece and Ukraine have disclosed partial figures on their respective stockpiles of cluster munitions.[143]

Stockpiles possessed by States Parties 

A total of 40 States Parties have stockpiled cluster munitions at some point in time, of which 29 have completely destroyed their stockpiles.

According to available information, at one point 32 States Parties stockpiled nearly 1.5 million cluster munitions containing more than 178 million submunitions, as shown in the following table.

Cluster munitions declared by States Parties[144]

Note: Italics indicate states that still possess stockpiles to destroy.

Eight more States Parties that have or are believed to stockpile cluster munitions are not listed in the table above. Six have not formally declared the stocks in their initial Article 7 transparency reports:

• The Republic of the Congo informed States Parties in 2011 that it had no stocks of cluster munitions, but has not provided its transparency report, originally due in August 2015.[145]
• Cuba has never confirmed or denied stockpiling cluster munitions, but is believed to possess cluster munitions of Soviet-era origin. Its initial transparency report is due by March 2017.

• Guinea’s stockpile status and plans for its destruction are not known. It has not yet submitted its initial transparency report, which was due by September 2015.
• Guinea-Bissau acknowledges that it stockpiles cluster munitions, but is nearly four years late in delivering its initial transparency report for the convention.[146]
• Honduras stated in 2007 that it no longer possessed a stockpile ofcluster munitions, but has yet to deliver its initial transparency report, originally due in February 2013.
• South Africa has stated that its relatively small stockpile of cluster munitions has been earmarked for destruction. 

States Parties Afghanistan and Iraq have reported the completion of stockpile destruction, but did not provide a specific completion date or the total quantity destroyed. Both continue to report the discovery and destruction of stocks of cluster munitions believed to have been abandoned in arms caches.[147]

No stockpiles 

A total of 43 States Parties have confirmed never stockpiling cluster munitions, most through a direct statement in their transparency report for the convention.[148] Since September 2015, Mali, Panama, Paraguay, and Saint Kitts and Nevis have submitted initial transparency reports confirming they do not possess any stocks.

Stockpiles possessed by signatories 

The Central African Republic stated in 2011 that it had destroyed a “considerable” stockpile of cluster munitions and no longer had stocks on its territory.[149] Angola stated in 2010 that its entire stockpile had been destroyed and its armed forces no longer possessed cluster munitions, but it has yet to make an official declaration that all stocks of cluster munitions were destroyed.[150]

Two other signatories acknowledge stockpiling cluster munitions, but have yet to disclose information on the quantities and types or destruction plan. Indonesia has acknowledged stockpiling cluster munitions, but has not disclosed information on the types and quantities possessed. A Nigerian official confirmed in April 2012 that its armed forces stockpile BL-755 cluster bombs.[151] In October 2015, Nigeria alleged that Boko Haram has been using BLG-66 cluster munitions recovered from arms caches.[152]

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 or control as soon as possible, but no later than eight years after entry into force for that State Party.

States Parties have collectively destroyed nearly 1.4 million cluster munitions containing more than 172 million submunitions, as shown in the following table.[153] This represents the destruction of 93% of the total stockpile of cluster munitions and 97% of the total number of submunitions declared by States Parties.

Cluster munitions destroyed by States Parties[154]

Note: Italics indicate States Parties that have not yet completed stockpile destruction. 

Annual destruction progress since entry into force

Since the convention took effect in August 2010, States Parties have destroyed 611,787 cluster munitions and 93.6 million submunitions:

• In 2011, 10 States Parties destroyed 107,000 cluster munitions and 17.6 million submunitions.
• In 2012, nine States Parties destroyed 173,973 cluster munitions and 27 million submunitions.
• In 2013, 10 States Parties destroyed 130,380 cluster munitions and 24 million submunitions.
• In 2014, eight States Parties destroyed 121,585 cluster munitions and 16.4 million submunitions.
• In 2015, nine States Parties destroyed 79,184 cluster munitions and 8.7 million submunitions. 

Destruction completed 

Of the 29 States Parties that have completed destruction of their stockpiled cluster munitions, four destroyed their stocks before the convention’s entry into force: Ecuador in 2004, Colombia in 2009, and Moldova and Norway in July 2010.

In the period since then, 21 States Parties have completed their stockpile destruction obligation under the convention:

• Austria, Belgium, Czech Republic, and Montenegro in the last four months of 2010.
• BiH, Hungary, Portugal, and Slovenia in 2011.
• The Netherlands in 2012.
• Chile, Côte d’Ivoire, Macedonia FYR, and the UK in 2013.
• Canada and Denmark in 2014.
• Germany, Italy, Japan, Mozambique, and Sweden in 2015.
• France in the first half of 2016.

States Parties Afghanistan, Republic of the Congo, Honduras, and Iraq report or state that they have completed stockpile destruction, but have not specified the date of completion or the total quantity destroyed.

Destruction in 2015 and 2016

All States Parties have destroyed their stocks of cluster munitions well in advance of the convention’s eight-year deadline, which was hotly debated during the 2008 negotiations. With more than half a million cluster munitions, Germany reported the highest number of stocks of any State Party, but destroyed them all two years and nine months in advance of its 1 August 2018 deadline. Germany’s Minister of Defence and Minister of Foreign Affairs announced on 25 November 2015 the completion of the destruction of “50,000 tonnes” of cluster munitions.[155]

France and Japan were also among the first 30 ratifications to trigger the convention’s entry into force on 1 August 2010, resulting in the same August 2018 stockpile destruction deadline: France completed destruction on 30 June 2016, which is two years and a month in advance, while Japan completed three years in advance, on 9 February 2015. Croatia and Spain are the last States Parties with the August 2018 deadline still to complete stockpile destruction.

Other States Parties that concluded stockpile destruction in 2015 took even less time. Italy announced completion on 14 December 2015, four years and 2 months in advance of its deadline. Mozambique destroyed all its stocks between October 2014 and September 2015, completing destruction five years in advance of its deadline. Sweden completed its stockpile destruction on 13 April 2015, five and a half years in advance of its deadline.

Destruction underway 

During 2015, nine States Parties destroyed 79,184 cluster munitions and 8.7 million submunitions, as shown in the following table. 

Cluster munitions destroyed by States Parties in 2015
Note: Italics indicate States Parties that have not completed stockpile destruction.

Three States Parties are in the process of stockpile destruction:

• Croatia has made rapid progress since beginning the destruction of its cluster munition stocks, destroying 80% of them by the end of 2015.[156]
• Slovakia began stockpile destruction in the second half of 2015 and destroyed another 50 cluster munitions and 3,026 submunitions in the first half of 2016.[157] It is on track to complete destruction well in advance of its January 2024 deadline.
• Switzerland destroyed 60% of its cluster munition stockpile by the end of 2015. It is on track to complete destruction in 2018, in advance of its January 2021 deadline. 

Six States Parties with stockpiles indicate that they plan to begin destruction, but are not known to have started yet:

• Botswana previously reported its plan to destroy its stocks by the end of 2015 in advance of its December 2019 deadline. The current status of stockpile destruction is unclear as Botswana last provided an Article 7 transparency report in April 2014.[158]
• Bulgaria last provided an Article 7 report in April 2015, but has committed to destroy its stocks by the October 2019 deadline.
• Guinea-Bissau still has not submitted its initial Article 7 transparency report for the convention, originally due in October 2011, but it has requested financial and technical assistance to destroy the stockpile by the May 2019 deadline.
• Peru reported a slightly larger stockpile in July 2016 that it is preparing to destroy by its March 2021 deadline.[159]
• South Africa has not submitted its initial Article 7 transparency report for the convention, originally due by 29 April 2016, or detailed the number and types of cluster munitions it stockpiles or the plan for their destruction.
• Spain still has not destroyed additional stocks reported in 2012, but its implementing legislation for the convention specifically requires their destruction by the convention’s deadline of 1 August 2018.[160]

Two States Parties are believed to stockpile cluster munitions, but must confirm:

• Cuba’s initial transparency report is due by 30 March 2017.
• Guinea is believed to stockpile cluster munitions, but has not provided its Article 7 transparency report for the convention, originally due in September 2015. 

Retention

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

The CMC questioned the need for this provision when the convention was negotiated, as it saw no compelling reason to retain live cluster munitions and explosive submunitions for research and training purposes. In their transparency reports, statements and letters, and implementation legislation, most States Parties have expressed the view that there is no need to retain any live cluster munitions or explosive submunitions for training in detection, clearance, and destruction techniques, or for the development of counter-measures. This includes 19 States Parties that stockpiled cluster munitions in the past.[161]

Some States Parties that have stockpiled cluster munitions—Chile, Croatia, and Moldova—have declared the retention of inert items that have been rendered free from explosives and no longer qualify as cluster munitions or submunitions under the convention.

Despite this, 11 States Parties—all from Europe—are retaining cluster munitions for training and research purposes, as shown in the following table. The initial quantity of cluster munitions (and submunitions) retained, the quantity retained at the end of calendar year 2015, and the quantity and types used or “consumed” for permitted purposes are listed.

Cluster munitions retained for training (as of 31 December 2015)[162]

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

In September 2015, Slovakia stated that with respect to the convention’s provision concerning the retention of cluster munitions, “Slovakia does not intend to keep any submunitions and we plan to destroy all our stockpiles.”[163] Slovakia subsequently reported that it intends to use its retained cluster munitions for the development of destruction techniques in “the second half of 2016.”[164]

Germany has reduced the number of cluster munitions retained by almost a quarter since 2011 by consuming them in explosive ordnance disposal (EOD) training, but remains the State Party with the highest number of retained cluster munitions.[165]

Switzerland reduced the number of cluster munitions it has retained for training as Belgium, Czech Republic, Denmark, France, Germany, and Spain have also done. In most cases, states have significantly reduced the number of cluster munitions retained for training since their initial declarations were made. This would indicate that the initial amounts retained were likely too high, but it is still not clear if current holdings constitute the “minimum number absolutely necessary” as required by the convention for the permitted purposes.

States Parties Australia and the UK initially retained cluster munitions, but have since destroyed and not replaced them.

Italy and Sweden have yet to consume any of their retained cluster munitions. During 2015, the Netherlands reduced the number retained slightly from the previous total, stating that the “quantity for 2015 is slightly lower than reported for 2014, without use during reporting period.”[166]

Czech Republic, Denmark, and Sweden are retaining individual submunitions only.

Transparency Reporting

Under Article 7 of the Convention on Cluster Munitions, States Parties are obliged to submit an initial transparency report within 180 days of the convention taking effect for that country. An updated report is due by 30 April each year thereafter, covering activities in the previous year. The CMC encourages states to submit their Article 7 transparency reports by the deadline and provide complete information, including definitive statements.[167]

Initial reports

According to the UN Office of Disarmament Affairs website as of 21 July 2016, a total of 76 States Parties have submitted an initial transparency report for the convention, representing 82% of States Parties for which the obligation applied at that time. This compliance rate represents a slight increase from previous years.[168] 

A total of 18 States Parties have missed the deadline to submit their initial transparency reports, of which six are more than five years late. 

State Parties with overdue initial Article 7 reports (as of 21 July 2016)
 

Six new States Parties have deadlines pending: Iceland and Rwanda (31 July 2016), Colombia (28 August 2016), Somalia (31 August 2016), Mauritius (29 September 2016), and Cuba (30 March 2017). 

Canada, Chad, Mali, Panama, Paraguay, Slovakia, and St. Kitts and Nevis have provided their initial transparency reports since the convention’s First Review Conference in September 2015.

Annual reports for 2015

As of 21 July 2016, a total of 43 States Parties have submitted their annual updated transparency report covering activities in 2015.[169] Two dozen States Parties have yet to submit their annual updated reports, which were due by 30 April 2016.[170]

Voluntary reporting 

Prior to ratifying, Canada provided voluntary transparency reports for the convention in 2011–2014, while Palau provided one in 2011. DRC submitted voluntary reports in 2011, 2012, and 2014.

Only a small number of states have used voluntary Form J to report on actions to promote universalization and discourage use of cluster munitions, list cooperation and assistance support, or report on other important matters such as their position on interpretive issues.[171]

National Implementation Legislation

According to Article 9 of the Convention on Cluster Munitions, States Parties are required to take “all appropriate legal, administrative and other measures to implement this Convention, including the imposition of penal sanctions.”[172] The CMC urges all States Parties to enact comprehensive national legislation to enforce the convention’s provisions and provide binding, enduring, and unequivocal rules. 

A total of 27 States Parties have enacted specific legislative measures to implement the convention’s provisions, as listed in the table below. Some enacted legislation prior to ratifying or acceding to the convention, often by combining the legislative approval process for both implementation and ratification/accession. 

States with implementation laws for the Convention on Cluster Munitions
 

A total of 11 states enacted implementing legislation prior to the convention’s August 2010 entry into force. Since then, 16 states have enacted implementing legislation, including four in 2015 and one in the first half of 2016.

Since mid-2015, three States Parties to the convention have adopted implementing legislation:

• Bulgaria’s parliament adopted implementing legislation for both the Convention on Cluster Munitions and the Mine Ban Treaty on 24 November 2015 and the law took effect on 8 December 2015. The legislation “prohibits any activities with cluster munitions and antipersonnel mines on the territory of the Republic of Bulgaria, except those permitted by the Convention...[and] regulates the conditions and procedures for transfer, transportation, and destruction.”[173] It also amended Articles 337–339 of the Penal Code in June 2016 to establish penal sanctions for violating the prohibitions in the new implementation law on the Convention on Cluster Munitions.[174]
• In Mauritius, the National Assembly adopted a law on 21 June 2016 that serves as the country’s implementing legislation for both the Convention on Cluster Munitions and Mine Ban Treaty.[175] The Anti-Personnel Mines and Cluster Munitions (Prohibition) Act 2016 prohibits the development, production, acquisition, stockpiling, retention, or transfer of cluster munitions and provides for penal sanctions of up to 15-years’ imprisonment for violations.[176]
• Togo amended its Penal Code in November 2015 to criminalize use, production, transfer, and stockpiling of cluster munitions, as well as explosive bomblets, in accordance with the convention.[177] Article 577 provides for penal sanctions of 10–20 years' imprisonment and a fine of CFA5–100 million. 

In addition, Saint Kitts and Nevis reported in December 2015 that it enacted domestic legislation entitled the Cluster Munitions (Prohibition) Act on 27 August 2014.[178] The Monitor is seeking a copy of the law, which does not appear to be available online. 

Legislation under consideration 

At least 23 States Parties have stated that they are planning or are in the process of drafting, reviewing, or adopting specific legislative measures to implement the convention: Afghanistan, Antigua and Barbuda, Belize, Botswana, Burkina Faso, Burundi, Chad, Colombia, Republic of the Congo, Côte d’Ivoire, Ghana, Grenada, Lao PDR, Lebanon, Lesotho, Malawi, Mali, Niger, Seychelles, Sierra Leone, South Africa, Swaziland, and Zambia.

Existing law deemed sufficient 

At least 31 States Parties have indicated that their existing laws will suffice to enforce their adherence to the convention: Albania, Andorra, BiH, Chile, Costa Rica, Croatia, Denmark, El Salvador, Guinea-Bissau, Holy See, Iraq, Lithuania, Macedonia FYR, Malta, Mauritania, Mexico, Moldova, Montenegro, Netherlands, Nicaragua, Palau, Paraguay, Peru, Portugal, San Marino, Senegal, Slovakia, Slovenia, Tunisia, Trinidad and Tobago, and Uruguay.

Developments in the reporting period included:

• Croatia enacted mine action legislation on 21 October 2015 that it reports is “intended to be comprehensive” and “as such, the Act states that each failure in treatment of cluster munitions is subject to misdemeanor sanction.”[179] The law does not impose sanctions to prevent and suppress any activity prohibited under the convention on territory under its jurisdiction or control, however Croatia’s Penal Code does apply.[180]
• Palau has reported existing legislation under legal, administrative, and other measures to implement the convention, including its Constitution, which it states “prohibits use, production, and transhipment of cluster munitions.”[181]
• Paraguay provided its initial transparency report in May 2016, listing its ratification law under national implementation measures.[182]

• Slovakia cited existing arms trafficking legislation and its Penal Code to enforce its adherence to the convention’s provisions.[183]

Status unknown 

The status of national implementation measures is unknown or unclear in the remaining States Parties, most of which have not provided an initial Article 7 transparency report.

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 encourages States Parties and signatories that have not yet done so to express their views on the following issues of concern so that common understandings can be reached:

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

A number of States Parties and signatories to the convention have elaborated their views on these issues, including through Article 7 transparency reports, statements at meetings, parliamentary debates, and direct communications with the CMC and the Monitor. Several strong implementation laws provide useful models for how to implement certain provisions of the convention. Yet, as of 21 July 2016, more than three dozen States Parties had not articulated their views on even one of these interpretive issues.[184]

More than 400 US Department of State cables made public by Wikileaks in 2010–2011 demonstrate how the US—despite not participating in the Oslo Process—made numerous attempts to influence its allies, partners, and other states on the content of the draft Convention on Cluster Munitions, especially with respect to interoperability.[185] The cables also show that the US has stockpiled and may continue to be storing cluster munitions in a number of States Parties.

Interoperability and the prohibition on assistance

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. The CMC has strongly criticized Article 21 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 states 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 require States Parties to discourage the use of cluster munitions and, by implication, allow them to 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’s 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 37 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.[186]

During the reporting period:

• Costa Rica stated that Article 21 must not be interpreted in a manner that contradicts Article 1.[187]
• Mauritius enacted implementing legislation in June 2016 that states: “no person shall in any manner assist, encourage or induce any other person to engage in any [of the prohibited acts].”[188]
• Togo’s amended its Penal Code to prohibit assisting, encouraging, or inciting others to violate the convention’s prohibition on cluster munitions.[189]

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

• Australia’s Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 has been heavily criticized for allowing Australian military personnel to assist with cluster munition use by states not party. Section 72.41 of Australia’s implementing legislation “provides a defence to the offence provisions where prohibited conduct takes place in the course of military cooperation or operations with a foreign country that is not a party to the Convention.”[190] During joint or coalition military operations, Australian Defence Force personnel could help plan operations or provide intelligence for, and/or contribute logistical support to coalition members during which a state not party uses cluster munitions.[191]

• Canada’s Prohibiting Cluster Munitions Act 2014 has elicited similar criticism for its provisions allowing Canadian Armed Forces and public officials to “direct or authorize” an act that “may involve” a state not party performing activities prohibited under the convention during joint military operations.[192] In March 2015, the Chief of Defence Staff issued a directive  to “provide direction on prohibited and permitted activities to [Canadian Armed Forces] personnel who might become involved in cluster munition related activities.”[193] 

• Japan has been reluctant to publicly discuss its interpretation of Article 21.[194] However, 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.[195]

• The UK’s 2010 implementation law permits assistance with a number of acts prohibited under the convention if the assistance occurs during joint military operations.[196] In addition, the UK stated in 2011 that its interpretation of Article 21 is that “notwithstanding the provisions of Article 1 [prohibition on assistance], Article 21(3) allows States Parties to participate in military operations and cooperation with non-States Parties who may use cluster munitions. UK law and operational practice reflect this.”[197]

States Parties France, the Netherlands, and Spain have provided the view that Article 21 allows for military cooperation in joint operations, but have not indicated the forms of assistance allowed. Spain’s 2015 implementation law establishes that military cooperation and participation in military operations by Spain, its military personnel, or its nationals with states that are not party to the Convention on Cluster Munitions and that use cluster munitions is not prohibited.[198] After Spain’s opposition parties called for the draft legislation to prohibit Spain’s involvement at all times in military operations with other states that use cluster munitions, the draft legislation was adjusted to incorporate the positive obligations of Article 21(2) of the convention, requiring Spain to work for universalization and to discourage the use of cluster munitions.

The US and its coalition partners have not used cluster munitions in the “Operation Inherent Resolve” military action against IS forces that started in 2014 in Syria and Iraq.[199] The Monitor requested information from the UK on how it is engaging in the Iraq portion of the joint operation with the US and other states that have not banned cluster munitions. In May 2015, the Foreign and Commonwealth Office (FCO) responded:

The prohibition on the UK’s use of cluster munitions is reflected in our operational targeting policy documents which outline how UK armed forces will operate, including with coalition partners. Restrictions on the use of weapons and national caveats imposed during coalition operations are a normal part of coalition operations. These directives include the national, operationally-specific, rules of engagement profiles and national caveats which will ensure that any action is within the parameters of UK law.[200] 

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 banning the transit of cluster munitions across or through the national territory, airspace, or waters of a State Party. 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 33 States Parties and signatories have declared that transit and foreign stockpiling are prohibited by the convention.[201] In the reporting period, Costa Rica was added to this list.[202] 

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

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.”[203] According to a Norwegian Ministry of Foreign Affairs official, the US removed its stockpiled cluster munitions from Norway in 2010.[204]

The US Department of State cables released by Wikileaks show that the US has stockpiled and may still store cluster munitions in States Parties 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.”[205]
• Germany has not expressed clear views on the convention’s prohibition on foreign stockpiling of cluster munitions, but according to a December 2008 cable, it has engaged with the US on the matter of cluster munitions that may be stockpiled by the US in Germany.[206]
• Italy, Spain, and Qatar were identified by the US in a November 2008 cable as “states in which the US stores cluster munitions,” even though apparently Qatar “may be unaware of US cluster munitions stockpiles in the country.”[207] 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.[208]
• 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. 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.”[209]
• 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.”[210]
• According to a May 2007 cable, the US may store cluster munitions in Kuwait.[211]

Disinvestment

A number of States Parties as well as the CMC view the convention’s Article 1 ban on assistance with prohibited acts as constituting a prohibition on investment in the production of cluster munitions.

A total of 10 States Parties have enacted legislation that explicitly prohibits investment in cluster munitions, as shown in the table below.[212]

Disinvestment laws on cluster munitions

Four States Parties enacted legislation on cluster munitions containing provisions on disinvestment prior to the convention’s 1 August 2010 entry into force, while six have adopted disinvestment laws in the period since. There was no new legislation relating to disinvestment in the second half of 2015 or first half of 2016.

At least 28 States Parties and signatories to the convention have elaborated their view that investment in cluster munition production is a form of assistance that is prohibited by the convention: Australia, BiH, Cameroon, Canada, Colombia, Republic of the Congo, Costa Rica, Croatia, Czech Republic, DRC, France, Ghana, Guatemala, the Holy See, Hungary, Lao PDR, Lebanon, Madagascar, Malawi, Malta, Mexico, Niger, Norway, Rwanda, Senegal, Slovenia, the UK, and Zambia.

At the First Review Conference in September 2015, Costa Rica made its first interpretive statement regarding investments in cluster munitions, declaring that it views “investment in the production of cluster munitions…as a form of assistance that is prohibited by the convention.”[213] 

A few States Parties to the convention 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, France, New Zealand, Norway, Luxembourg, Sweden, and other states have either fully or partially withdrawn investments, or banned investments, in cluster munition producers. 

At the First Review Conference, States Parties also adopted the Dubrovnik Action Plan, which encourages the adoption of national legislation prohibiting investments in producers of cluster munitions.[214] 

Financial institutions have acted to stop investment in cluster munition producers 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 co-founder and member PAX continues to lead advocacy and research to encourage governments to legislate against investment in cluster munition producers and provide clear guidance to financial institutions and investors. In June 2016, PAX issued another update of its report detailing the status of global investment in cluster munition producers.[215]

Timeline of cluster munition use[216]