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Fatima Ibrahim al-Marzuqi is carried by her brother because she is not able to walk due to her injuries sustained during a cluster munition attack on Malus village on June 7, 2015.  © 2015 Ole Solvang/Human Rights Watch

When the Convention on Cluster Munitions entered into force 10 years ago, on Aug. 1, 2010, it was seen as a major advance for protecting civilians both during and after armed conflict. The international treaty comprehensively bans cluster munitions and requires member countries to clear areas contaminated by cluster munition remnants within 10 years, destroy their cluster munition stocks within eight years, and provide assistance for victims.

Cluster munitions are prohibited for two main reasons. First, they spread multiple bomblets or submunitions indiscriminately over a wide area, which can be devastating for civilians caught in a strike. Second, many submunitions fail to explode on initial impact, leaving dangerous duds that, like landmines, can kill and maim for years to come unless cleared and destroyed.

When the Convention took effect, Human Rights Watch called it “the start of the formal life of the treaty and the end of the legitimacy of this indiscriminate weapon that has caused so much civilian suffering.” We asserted that “the stigma against cluster munitions is now so strong that no nation should ever use them again.”

Ten years later, how is the Convention doing? What challenges has it faced?

There have been no reports or allegations of new use or production of cluster munitions by any party to the treaty. Nearly 1.5 million cluster munitions containing 178 million submunitions have been destroyed from stockpiles according to Cluster Munition Monitor. Vast tracts of land have been cleared of explosive remnants and returned to productive use.

However, the nascent norm against cluster munitions has been put to the test over the past decade in several countries that have not joined the treaty.

In 2011, Muammar Gaddafi’s government in Libya used cluster munitions in the town of Misrata during fighting that grew from protests marking the beginning of the “Arab Spring.” In 2012, reports emerged that Sudanese government forces were dropping cluster bombs in Southern Kordofan and Blue Nile states bordering South Sudan, which had gained independence less than a year earlier.

The first Human Rights Watch reports detailing evidence of cluster bomb attacks by Syrian government forces in mid-2012 were met with skepticism from certain quarters. That faded quickly as we published report after report documenting mounting civilian casualties from hundreds of attacks involving at least 14 types of cluster munitions, virtually all made in Russia.

During that time, Human Rights Watch also investigated the use of cluster munition rockets by the government of Ukraine, which inherited stocks from the breakup of the Soviet Union, and by Russia-backed separatists in the eastern Donetsk and Luhansk provinces. We issued reports showing that the Saudi Arabia-led coalition in Yemen used Brazilian, British, and U.S.-made cluster munitions in its attacks against Houthi forces.

This use shows that some still think that cluster munitions help militarily, but these weapons were not a military game-changer in any of these conflicts. Instead, they caused devastating harm to civilians and created a foreseeable humanitarian liability that will last for years.

Political leaders and the United Nations Security Council, Human Rights Council, and General Assembly have all condemned these instances of new use of a banned weapon. The U.S. and other countries that have not signed the treaty supported many of these condemnations of cluster munition use.

But the fiercest opponents of cluster munition use are now the convention’s own States parties, spurred on by the International Committee of the Red Cross and the Cluster Munition Coalition, which is a group of organizations in 100 countries chaired by Human Rights Watch that works in support of the ban. The convention was the first to explicitly require States parties “to discourage use of cluster munitions by those not party and to encourage them to join the convention.”

Universalization of the convention has been a top priority as increased participation strengthens the stigma against cluster munitions and brings closer the convention’s goal of putting “an end for all time to the suffering and casualties caused by cluster munitions.”

When the Convention on Cluster Munitions took effect, it had 38 States parties. That number has grown to 108 today, while another 17 countries have signed, but not completed ratification. A dozen nations have acceded to the convention since it took effect in 2010, including Cuba, Slovakia, and Sri Lanka.

The U.S. did not take part in the negotiations for or sign the Convention on Cluster Munitions, and we now know mostly from Wikileaks that behind-the-scenes the U.S. put pressure on its allies to not participate in the process at all, and if they did participate, to reject the notion of a ban.

Weeks after the convention was adopted in 2008, the Pentagon announced a new policy, a commitment not to use cluster munitions that have a failure rate of more than one percent beginning in 2019 – in essence, banning all but a tiny fraction of the existing arsenal.

But the U.S. also wasted diplomatic resources trying to establish a counter treaty that would permit continued cluster munition development, production, use, transfer, and stockpiling. If successful, this alternative would have set a terrible precedent by establishing weaker provisions than the ones that had already been widely adopted. The dangerous proposal at the Convention on Conventional Weapons (CCW) was rejected in November 2011 after more than 50 States objected.

Since then, no State attempted to revive this failed initiative and the U.S. has studiously avoided commenting on the Convention on Cluster Munitions. Throughout, it has funded the clearance of the explosive remnants, including from thousands of cluster bombs that the U.S. used in Cambodia, Laos, and Vietnam decades ago.

But in November 2017,  the Defense Department  issued new policy permitting the U.S. military to use all of the millions of cluster munitions in existing stocks, even the most unreliable types, “until sufficient quantities” of “enhanced and more reliable” versions are developed and fielded. The policy also facilitates U.S. acquisition of cluster munitions from foreign sources to replenish stocks. After rolling back civilian protections on cluster munitions, the Trump administration did the same for internationally banned antipersonnel landmines with its January 31, 2020 policy that has been condemned for allowing the U.S. to use landmines anywhere in the world in perpetuity.

The U.S. clings to its cluster munitions, but the last time it used them was in Iraq in 2003, with the exception of a single attack with cruise missiles equipped with cluster munition warheads in Yemen in 2009. As yet, there is no evidence to indicate the U.S. has restarted production or new transfers of cluster munitions.

One major reason for the lack of U.S. production and use of banned cluster munitions is that its traditional allies are among the most ardent proponents of the Convention on Cluster Munitions. The treaty includes France, Germany, the Netherlands, the United Kingdom, and 20 other NATO member States as well as other key allies, such as Australia and Japan.

The rollback of civilian protections on cluster munitions is unlikely to be overturned during the Trump administration. In the meantime, the convention’s States parties should continue to demonstrate that the convention is having a positive impact to ensure that the stigma it is creating against these weapons sticks.

This November, Switzerland will convene the convention’s milestone Second Review Conference in Lausanne. China and some other non-signatories usually participate as observers to acknowledge the Convention’s humanitarian rationale. But the U.S. is likely to be absent, as usual, which sends a poor signal. That makes it all the more important to remind the rest of the world that this convention matters because it saves lives.

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