Disarmament Insight

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Thursday, March 26, 2009

A step towards a U.S. cluster munitions ban?


On March 11, U.S. President Obama signed the Omnibus Appropriations Act for fiscal year 2009. Some have called this piece of legislation a ‘major turnaround in U.S. arms policy’. It contains the following passage:

No military assistance shall be furnished for cluster munitions, no defense export license for cluster munitions may be issued, and no cluster munitions or cluster munitions technology shall be sold or transferred, unless
(1) the submunitions of the cluster munitions have a 99 percent or higher functioning
rate; and
(2) the agreement applicable to the assistance, transfer, or sale of the cluster munitions or cluster munitions technology specifies that the cluster munitions will only be used against clearly defined military targets and will not be used where civilians are known to be present.
A similar restriction on the export of cluster munitions was first introduced in the 2008 Consolidated Appropriations Act in December 2007. Compared to the 2008 Act, this year’s law represents advancement, but some of its wording calls for further clarification. Questions arise in particular regarding the ‘agreements’ concluded with the recipients of US cluster munition exports. These agreements usually not being public, how will recipients’ compliance be assessed and how will they be held accountable if they do not respect the terms of the agreement?

As to the content of these agreements, what is meant by ‘clearly defined military targets’, for instance? Will recipients be held to the generally accepted standards on the conduct of hostilities and the definition of a ‘military objective’ contained in Additional Protocol I to the 1949 Geneva Conventions - a treaty that the U.S. has never ratified? Further, the phrase ‘where civilians are known to be present’ raises questions about the level of knowledge that is required at any time during and preceding an attack. Will it for instance be in order to use cluster munitions where civilians are possibly or probably present? What measures does the attacker have to take to ascertain whether there are civilians in the area? And if there are civilians, can the attacker assume that they are no longer present after they have been warned of an impending attack?

Apart from these open questions, the 2009 Act introduces a more restrictive export policy, notably due to the reformulation of the 1% failure rate criterion. Whereas in 2008, cluster munitions had to have a ‘99 percent or higher tested rate’ to be exportable, now, they have to have a ‘99 percent or higher functioning rate’. The term ‘functioning rate’ was already used in the Cluster Munitions Civilian Protection Act (a bill aimed at limiting the use, sale, and transfer of cluster munitions) that was introduced by Senators Feinstein and Leahy in February 2007 (and which was stalled in the various Committees of the Senate and House of Representatives). The 99 % functionning rate criterion limits exportable cluster munitions to those that in actual combat situations produce no more than 1% duds, as opposed to the failure rates measured under the ideal conditions of a test. But how the ‘functioning rate’ of a cluster munition will exactly be determined and by whom remains to be seen.

Interestingly, the cluster munitions policy presented by Secretary of Defence’s Gates in June 2008 contains yet another formulation of the 1% failure rate criterion. It refers to:
cluster munitions containing submunitions that, after arming, do not result in more than 1% unexploded ordnance (UXO) across the range of intended operational environments
The U.S. delegation introduced similar wording into the text that the Convention on Certain Conventional Weapons’ (CCW) Group of Governmental Experts (GGE) is discussing in Geneva. And the 2009 bill for a Cluster Munitions Civilian Protection Act introduced in the U.S. Senate on February 11 this year also uses the phrase ‘range of intended operational environments’. This formulation of the reliability criterion suggests that the failure rate is calculated on the basis of instances of cluster munitions use in different terrains and weather conditions. It does beg the question, however, what ‘unintended operational environments’ are.
Another part of the phrase also gives rise to concern. In fact, it seems to address only those submunitions (or depending on the reading, cluster munitions) that, after arming, do not result in more than 1% dud rate. This would mean that submunitions that for various reasons fail to arm during descent (respectively, those cluster munitions that fail to disperse their load) do not enter the 1% calculus. However, unarmed submunitions (whether dispersed or not) also represent a danger to civilians. Years after their deployment, movement can cause them to arm - and detonate.

Participants in the Oslo Process on Cluster Munitions that led to the successful adoption of the Convention on Cluster Munitions (CCM) in May last year, have recognized that the reliability of cluster munitions depends on a multitude of factors and is difficult to determine in a universally acceptable, objective way. Therefore, the CCM’s approach has been to address all the criteria that have in practice caused the unreliability and indiscriminate effects of cluster munitions. The CCW GGE, in contrast, continues to grapple with failure rates. But in practice, the U.S. 1% failure rate policy, whatever its formulation, is tantamount to a de facto export ban on ‘cluster munitions causing unacceptable harm to civilians’ because ‘only a very tiny fraction of the cluster munitions in the U.S. arsenal meet the 1-percent standard’.

The other major step towards an export ban on cluster munitions lies in the fact that the export limitation in the 2009 Appropriations Act may well be a permanent one. In difference to the export restriction of the 2008 Consolidated Appropriations Act, which was only valid for the duration of fiscal year 2008, the 2009 Act contains no such time limit. How U.S. policy on the use of cluster munitions, as opposed to their export, will shape up is still unclear. Supporters of a complete ban on cluster munitions are working toward motivating Senators to co-sponsor the recently introduced Cluster Munitions Civilian Protection Act of 2009. They hope that growing co-sponsorship of this legislation might in time encourage President Obama to join the CCM.

Maya Brehm, with thanks to Laura Chirot and Virgil Wiebe for their helpful comments.

Photo Credit: 'Go toward the light' by J.Star on Flickr.

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