Policy Analysis on United States Sale of Cluster Munitions

Introduction
The United States has been an active participant in Middle Eastern hostilities for the
better part of the 21st century. Since 9/11, our government has attempted to not only fight
terror through direct intervention, but also through arms sales to our allies in the region.
The majority of these weapons have been shipped to the gulf-states most notably Saudi
Arabia for use against terrorists and non-state armed groups. Although this policy
purports to alleviate the need for American ground troops while still limiting the growth of
terrorism; in actuality, the policy hurts Americas image around the world and fails to
further our international objectives.
Specifically, the United States role in brokering the sale of cluster munitions
between American defense contractors and international states has resulted in increased
civilian death tolls around the world. Hundreds of civilians have died as a result of the
Saudi bombing campaign in Yemen. The United States should enact the proposed Cluster
Munitions Civilian Protection Act, and include a final section banning the sale of cluster
munitions to international states.

Background Section
In order to properly understand the need for legislation restricting the sale of
cluster munitions, it is important to understand the scope of the problem. While it is easy to
look at this problem through an international human rights lens, it is actually more
beneficial to raise cogent arguments that the use of cluster munitions actually undermines

American presence in the Middle East and around the world. After analyzing different
viewpoints, it becomes clear when selling cluster munitions the United States is: 1) at least
complicit in many civilian deaths, and at most in violation of international law; and 2)
undermining its position worldwide.
Before delineating the problems with cluster munitions, its necessary to
understand how these weapons work. Cluster munitions are explosive weapons that can be
either ground launched or air-dropped. These weapons can eject up to 2,000 smaller
submunitions, or bomblets, which disperse over a wide area and leave a portion
unexploded. When undetonated, these bomblets essentially become landmines that can
maim or kill civilians long after fighting has ceased. These problems have led many states
to question the international legality of cluster munitions and refrain from their use.
The first problem with selling cluster munitions is that the United States is complicit
in killing Yemeni civilians. In 2013, Saudi Arabia purchased $60 billion in arms from the
United States, making it the largest arms sale to date. $641 million of these arms were in
the form of cluster munitions.1 In March 2015, Saudi Arabia began its bombing campaign
against Houthi rebels in Northern Yemen. While the Saudis have maintained that few
civilians have died, non-governmental organizations and the United Nations have looked
into this claim and come to the opposite conclusion.
The first non-governmental organization to investigate the Saudi bombing campaign
was Human Rights Watch (HRW). In its August 2015 report HRW found: all seven sites
(four of which HRW visited and three from which it had pictures) contained unexploded
bomblets; in just the seven sites it documented, thirteen civilians were killed, twenty-two
civilians were wounded, and three people were injured or killed handling unexploded

bombletsall of these casualties were specifically linked to cluster munitions; and three
different types of cluster munitions were found, some which had an unexplosive rate of
twenty three percent.2 In October 2015 Amnesty International also conducted a report on
civilian casualties in Northern Yemen. After investigating thirteen sites, it was able to
document that over on hundred civilians had been killed, including fifty five children and
twenty two women. Although all these deaths could not be directly traced to cluster
munitions, Amnesty was able to identify two types of United States manufactured cluster
munitions that carried up to 202 submunitions per bomb.3
In addition to non-governmental organizations, the United Nations has been
following the conflict and releasing periodic statements on Saudi Arabias bombing
campaign. On January 5, 2016, the UN High Commissioner for Human Rights stated that
2,795 civilians were killed in the previous year by Saudi bombs in Yemen. The report
specifically noted the Saudi coalitions use of cluster munitions was alarming because of
the close proximity to civilian populations. An OHCHR team that visited one site in the
Hardah District found remnants of 29 submunitions near banana plantations, and
interviewed multiple witnesses that reported cluster munitions in other parts of Yemen.4 It
is difficult to quantify the percentage of civilian deaths attributable to cluster munitions,
but it is fair to say the Saudis have been continuously dropping cluster munitions since the
conflict began in March 2015.
In total, three different kinds of United States manufactured cluster munitions were
found scattered across Northern Yemen, and over one hundred civilians were undoubtedly
killed. After looking at these reports it becomes hard to see how the United States
maintains that its sale of cluster munitions does not contribute to an unimaginable amount

of civilian death. These reports clearly support the contention that the United States is
complicit in the rising civilian death toll.
In addition to its mere complicity in civilian deaths, by selling cluster munitions the
United States may also be committing an international war crime. In 1998 the International
Criminal Court (ICC) stated that the following constitutes a war crime in international
armed conflict: [e]mploying weapons which are inherently indiscriminatory.5 While the
United States is not a party to the Rome Statute, this requirement is customary
international law which is binding on all states. The use of inherently indiscriminate
weapons is clearly illegal; however, it is not clear which weapons are inherently
indiscriminate. The United States government still contends that cluster munitions have
demonstrated military utility and are not invalid under international law. While this
contention theoretically justifies the sale of cluster munitions, it does not comport with
established international legal principles.
In any international analysis it is necessary to note the four principles of war: 1)
necessity; 2) distinction; 3) proportionality; and 4) humanity.6 Again, although the US is not
a signatory to Additional Protocol 1, the principles are customary international law. Even
without conducting a full international legal analysis, it is evident that cluster munitions
are in stark contrast with the principles of distinction and proportionality. After being
dropped, it is nearly impossible to be certain of the exact damage because there will
inevitably be undetonated bomblets. This uncertainty makes it impossible to distinguish
civilians from military targets. Additionally, coupled with the large area these bomblets
cover, it is extremely difficult to maintain that there will not be a disproportionate loss of

civilian life. If states cannot be certain of the exact area a bombing campaign will cover, it
follows that they cannot be certain of the proportionality of their bombing campaign.
In opposition to the United States position, non-governmental organizations and
other states have concluded that cluster munitions violate international law. Amnesty
Internationals stated position is that using cluster munitions is per se illegal under
international law because they do not comport with the inherently indiscriminate
requirement.7 Additionally, 116 states signed the 2008 Convention on Cluster Munitions
(CCM). This treaty bans the use, stockpiling and transfer of cluster munitions; and
mandates the rapid destruction of remaining stockpiles.8 Most of the western world has
signed the treaty, including: Canada, UK, Spain, Norway, France, Germany, Australia, New
Zealand, Netherlands, Japan, Mexico, Portugal, Ireland and South Africa. In contrast, the
most notable non-signatories of the treaty are the United States, Saudi Arabia, Iran,
Pakistan, Russia, China and Israel.
While the argument that cluster munitions are legal seems tenuous, there is still no
international consensus on the question. This disagreement leaves the United States in a
position to continue denying its responsibility to protect human life while continuing to
profit from the sale of cluster munitions. Therefore, instead of shaming the United States,
opposition groups should focus on other arguments against selling cluster munitions.
One better argument to make is that the United States is undermining its world
position by selling cluster munitions. For example, the United Nations has reported
widespread use of cluster bombs by pro-Russian forces in the Ukraine. Western leaders,
including President Obama, have widely condemned Russia and used its actions to justify
economic sanctions. Additionally, President Obama stated that Bashar al-Assads use of

cluster munitions in Syria was a justification for invading and bombing the leaders forces.
These two claims by the Obama administration are in direct contrast with its sale of cluster
munitions to Saudi Arabia. It is incontrovertible that the United States sale of cluster
munitions is also resulting in civilian deaths, but the President has not condemned United
States defense contractors or the Defense Department for their role in the carnage. If the
United States wants to be seen as the worlds moral leader, it needs to take steps to
mitigate the harm it causes, starting with cluster munitions.
In addition to the hypocrisy of its actions, by selling cluster munitions the United
States is actually undermining its own objectives in the Middle East. On September 14,
2001, Congress drastically changed the power of the presidency and expressly stated the
countrys new foreign policy. The Authorization for Use of Military Force stated, the
President is authorized to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001.9 This statute granted Presidents
Bush and Obama the ability to use force against Al-Qaeda and its affiliates around the
world; and left little question as to with whom the United States was at war. Therefore, the
sale of cluster munitions to Saudi Arabia is even more perplexing because the actual use of
these weapons is benefiting the United States enemy: Al-Qaeda.
Saudi Arabias main objective in Yemen is to oust Houthi rebels in Northern parts of
the country. Following Yemens civil war in 2014, then-President Hadi was removed from
power and three factions took over: Saudi supported Hadi loyalists; Houthi Rebels; and AlQaeda in the Arabian Peninsula (AQAP). Today, Houthis have successfully driven out
AQAP, however the group remains strong in Saudi backed territories in the East. This

places the United States in the precarious position of selling arms to a foreign nation that is
bombing the only regional group successfully defeating our enemy, Al-Qaeda. This policy is
in direct opposition to the United States stated policy in the global war on terror.
For the aforementioned reasons, it is necessary that the United States stop the sale
of cluster munitions, specifically to Saudi Arabia. The combination of civilian deaths,
questions on international legality, and benefits to our enemies, supports the contention
that selling cluster munitions is not only wrong, but also not in the United States best
interests. These objectives may be achieved through many different vehicles, however the
most realistic would be to pass federal legislation banning the sale of cluster munitions.

Landscape Section
Although it is clear that the United States policy needs to change with relation to
cluster munitions, there are many different options for policy makers. The main options
available to policy makers are as stated: 1) sign on to the 2008 Convention on Cluster
Munitions Treaty (CCM); 2) enact the existing Cluster Munitions Civilian Protection Act
including a section banning the sale of cluster munitions to international states; or 3)
continue to include language limiting the use of cluster munitions in current and future
arms deals.
The first option for policy makers is to sign on to the 2008 CCM. Without any
political roadblocks, this is probably the most effective option. The CCM already has 116
other signatories that have agreed to ban the sale, use, stockpiling, and transfer of cluster
munitions. States are given a specific timetable to dispose of their stockpiles and report to
an independent treaty body. While this treaty body does not have the greatest enforcement

mechanisms, the watchdog organization that compiles annual reports does provide some
incentive to abide by treaty regulations. Most of Americas allies in the western world are
already party to the treaty, and by adopting it American would be saving lives and
promoting its own interests. Unfortunately, this is a wholly unviable option.
The United States is party to the Convention on Certain Conventional Weapons
(CCW), which covers landmines, booby traps, incendiary weapons, blinding laser
weapons, and explosive remnants of war weapons (including cluster munitions). Since the
treaty requires a consensus before action, it does not ban weapons, but merely limits the
damage and regulates their clean up. This consensus requirement bothered many nongovernmental organizations and states enough to break treaty protocol and begin
negotiations to ban cluster munitions in 2006.10 At the time the United States refused to
break from the CCW process and did not join what became the CCM. Since the United States
refused to submit to the CCM process at the outset, it is highly unlikely it would agree to
sign the treaty today.
Notwithstanding the international policy concerns, it would be nearly impossible for
President Obama to sign the CCM. It is extremely doubtful that he would sign the treaty
considering his administration brokered the sale of cluster munitions (and allegedly
dropped cluster munitions).1112 But even if he did choose to shift policy, it would be
impossible to convince the Senate to ratify the treaty in the final year of his presidency. The
necessary political capital simply does not exist.
The next option available to policy makers is to adopt the existing proposed Cluster
Munitions Civilian Protection Act with an additional section banning the sale of cluster
munitions to international states. The current proposed act purports to achieve three goals:

1) limit the sale and use of cluster munitions that exceed a 1% unexplosive rate; 2)
specifies that cluster munitions may only be used against clearly defined military targets
where civilians are not known to be present; and 3) requires the United States to clean up
areas within 90 days of dropping cluster munitions.13 While these three requirements
would place obligations on the United States, the bill would do little to stop international
states from misusing cluster munitions. Therefore to truly limit the damage done by cluster
munitions, it would be necessary to add an additional section banning their sale to
international states.
Representative Jim McGovern has proposed the aforementioned Cluster Munitions
Civilian Protection Act every year since 2007. The bill has been proposed in both houses
and sponsored by many different legislators without any success. This fact, however,
should not hinder future action on a proposal to ban all international sales of cluster
munitions. Until the summer of 2015, the public was relatively uninformed on the effects
cluster munitions can have on civilian populations; this, however, has changed. The war in
Yemen has been covered by every American news network, and the public perception of
Saudi Arabia is dramatically worse than the only other country to use American made
cluster munitions, Israel. According to Gallup, 70% of Americans hold favorable views
towards Israel while only 38% hold favorable views toward Saudi Arabia.14 The amount of
news coverage combined with low favorability of Saudi Arabia could create the perfect
environment to pass meaningful legislation banning the sale of cluster munitions.
The final option for policy makers is to continue to insert language into arms deals
ostensibly limiting the context in which states may use American made cluster munitions.
This option would be to essentially maintain the status quo in completing arms deals. The

2013 deal with Saudi Arabia stipulated that no bombs would be found on the ground and
that weapons would not be used near civilians.15 There are numerous aforementioned
reports documenting the number of civilians killed by cluster munitions and providing
photographs of unexploded cluster munitions on the ground.
The issue with continuing the status quo is that is obviously does not work. The
framework of United States-Saudi Arabia relations provides no means for the United States
to enforce the terms of the deal. Additionally, if the United States continues to broker arms
deals in the fashion it has, its actions are simply telling foreign nations that they dont need
to abide by agreements. The only way to stop states from misusing cluster munitions is to
stop selling them all together.
Proposed Action
Sign the 2008 Convention
on Cluster Munitions

Enact existing proposal for

Cluster Munitions Civilian
Protection Act with an
additional section banning
sale to international states

Costs and Problems

Benefits

US opposed CCM
process in 2006; it could
look weak retreating
from original position
Nearly impossible to
pass with lame duck
President and
Republican Congress
Constitutional process
for treaty ratification
would take >1 year
Loss of some
sovereignty and ability
to use cluster munitions
when US sees fit
Loss of profits from sale
of cluster munitions
Defense lobby will
staunchly oppose
Existing proposal has
never passed House or
Senate before

116 states, including

many US allies, have
already signed the
treaty
Sets specific timetables
for destruction of
cluster munition
stockpiles
Stops loss of future
human life
Makes US look less
hypocritical and more
like a moral leader

Existing policy vehicle

already exists
Genuinely changes
policy vs. codifying
existing treaty language

 Loss of profits from sale

of cluster munitions

Include language limiting

use of cluster munitions in
current and future arms
deals

Continued loss of
civilian life in places like
Yemen
World continues to see
American hypocrisy
No political costs
considering our deals
already include this
language

Stops loss of future

human life
Makes US look less
hypocritical and more
like a moral leader
Does not limit US use of
cluster munitions, only
international states
No need for legislation
Preserves the status quo
Ostensibly seems like
the US is trying to limit
the use of cluster
munitions
Continued sale of cluster
munitions keeps US
boots off the ground in
gulf states and Middle
East

Conclusion
The only way to properly achieve the goals of saving human lives and repairing the
United States international image is to ban the sale of cluster munitions to international
states. While signing the Convention on Cluster Munitions would also achieve this goal, it
seems less likely in the current political climate; and preserving the status quo is no longer
an option. To seriously address these issues, policy makers need to take it upon themselves
to introduce legislation that would expand the Cluster Munitions Civilian Protection Act
to include a ban on the sale of these weapons to all international states.

Foreign Policy, US Shipping Thousands of Cluster Bombs to Saudis Despite Global Ban, 23 August
2013; available at: http://foreignpolicy.com/2013/08/23/u-s-shipping-thousands-of-clusterbombs-to-saudis-despite-global-ban/
2 Human Rights Watch, Yemen: Cluster Munition Rockets Kill, Injure Dozens, 26 August 2015;
available at: https://www.hrw.org/news/2015/08/26/yemen-cluster-munition-rockets-killinjure-dozens
3 Amnesty International, Yemen: Bombs Fall From The Sky Day And Night: Civilians Under Fire In
Northern Yemen, 6 October 2015; available at:
https://www.amnesty.org/en/documents/mde31/2548/2015/en/
4 UN Office of the High Commissioner for Human Rights, Press briefing note on Yemen, 5 January
2016; available at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16923&LangID=E
5 UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998; available at:
http://legal.un.org/icc/statute/99_corr/cstatute.htm
6 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I),
8 June 1977; available at: https://www.icrc.org/ihl/INTRO/470
7 Amnesty, Yemen: Bombs Fall From The Sky, 2015.
8 The Convention on Cluster Munitions, 1 August 2010, 2688 U.N.T.S. 39.
9 Authorization for Use of Military Force, 115 Stat. 224 (2001).
10 Heritage Foundation, The United States Should Not Join the Convention on Cluster Munitions, 28
April 2011; available at: http://www.heritage.org/research/reports/2011/04/the-united-statesshould-not-join-the-convention-on-cluster-munitions
11 Vice News, US Cluster Bombs Keep Killing Civilians in Yemen, 17 May 2014; available at:
https://news.vice.com/article/us-cluster-bombs-keep-killing-civilians-in-yemen
12 Amnesty International, Wikileaks Cable Corroborates Evidence of US Airstrikes in Yemen, 1
December 2010; available at: https://www.amnesty.org/en/press-releases/2010/12/wikileakscable-corroborates-evidence-us-airstrikes-yemen/
13 Cluster Munitions Civilian Protection Act of 2015, H.R. 157, 114th Cong. (2015).
14 Gallup, Canada, Great Britain Are Americans Most Favored Nations, 13 March 2015; available at:
http://www.gallup.com/poll/181961/canada-great-britain-americans-favored-nations.aspx
15 Amnesty, Yemen: Bombs Fall From The Sky, 2015.
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