Cluster Munitions

Definition and humanitarian problems

The Oslo Process to ban cluster munitions

The Oslo Process followed the model of the Ottawa Process. Several regional and negotiation conferences were organised in close partnership between the lead states, the ICRC and the CMC. Likewise, NGOs and leading states emphasised the humanitarian framing of the issue and the ‘unacceptable harm’ caused by CMs. Thus, the legal norm of disproportionate harm informed the political meaning of ‘unacceptability’, even if it could be argued that in certain circumstances CMs could be used in a legal manner. Starting with a broad humanitarian frame that CMs cause unacceptable harm, the burden of proof shifted to states opposing a comprehensive prohibition to show that some CMs did not in fact present humanitarian dangers.

Although the emerging norm was grafted on the previous landmine prohibition, especially through arguments that CMs functioned as de facto landmines, more emphasis was placed on their indiscriminate effects during conflicts to counter proposals based on technical fixes of the unexploded rate. An important document in this respect was a 2007 report about the unexploded rates and humanitarian costs of relatively modern submunitions, claimed to have a dud rate of just 1–2 percent, which Israel had used in Lebanon.¹⁰ It showed that the failure rate was close to 10 percent, thus laying to rest arguments about finding a technological solution and exempting CMs with self-destruct mechanisms from the ban.

The Oslo Process was successful despite some differences with the landmine campaign. Compared to anti-personnel landmines, the perceived military utility of CMs was higher and their humanitarian problem smaller. Importantly, the core states leading the process were fewer in number and the opposition they faced included some erstwhile strong supporters of the landmine ban. For example, Australia, France, the Netherlands and the UK participated in the process, but opposed a comprehensive ban until the very end, preferring a prohibition of old, CMs with high dud rates only. Nevertheless, once they had committed to a humanitarian approach to the issue, they found themselves rhetorically entrapped in the process and ultimately ratified the resulting Convention on Cluster Munitions, even if it banned all the CMs they possessed, including recently acquired ones.¹¹

Timeline of the Oslo Process leading to the adoption of the CCM

Provisions of the Convention on Cluster Munitions

The CCM institutes a comprehensive prohibition on CMs as defined by it (including the use, production, stockpiling and transfer of CMs, and assisting states not party to the treaty with prohibited activities).¹²

According to its definition:

Cluster munition’ means a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions. It does not mean the following:

• A munition or submunition designed to dispense flares, smoke, pyrotechnics or chaff; or a munition designed exclusively for an air defence role;
• A munition or submunition designed to produce electrical or electronic effects;
• A munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:
  1. Each munition contains fewer than ten explosive submunitions;
  2. Each explosive submunition weighs more than four kilograms;
  3. Each explosive submunition is designed to detect and engage a single target object;
  4. Each explosive submunition is equipped with an electronic self-destruction mechanism;
  5. Each explosive submunition is equipped with an electronic self-deactivating feature¹³

Convention on Cluster Munitions, Article 2

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The definition aimed to capture all CMs posing a humanitarian problem, while excluding sensor-fused munitions that had only a small number of submunitions, higher reliability and infrared sensors for targeting vehicles. Since all the requirements (i-v) have to be cumulatively met, certain types of sensor-fused weapons (such as the American CBU-97) were also banned. Moreover, the definition explicitly prohibits the indiscriminate area effects of CMs – a ban campaigners see as potentially applicable to other weapon types.

The treaty sets a deadline for stockpile destruction – eight years from its entry into force for a state party with the possibility of extending this by four years on request. Cluster munition remnants should be cleared within ten years (with a possibility of a five-year extension).

Past users that have created contamination in the territory of another state party are also ‘strongly encouraged to provide, inter alia, technical, financial, material or human resources assistance to the latter State Party’¹⁴ – a path-breaking provision that creates retroactive responsibility for clearance of past contamination, even if expressed only as strong encouragement.

The CCM provides a broad definition of CM victims both regarding the impacts of CMs and the range of persons affected. It covers ‘all persons who have been killed or suffered physical or psychological injury, economic loss, social marginalisation or substantial impairment of the realisation of their rights caused by the use of cluster munitions’, including the victims’ families and communities.¹⁵ The CCM obliges states to ‘adequately provide age- and gender-sensitive assistance’, as well as social and economic inclusion.¹⁶ Importantly, the preamble commits states to guarantee the human rights of all persons with disabilities, without discrimination, including among victims injured by different weapons. Lastly, it adds a requirement that states report on fulfilling their victim assistance obligations. These provisions are an advancement over the MBT that only required states to provide victim assistance if they were ‘in a position to do so’.¹⁷

As in the MBT, state reporting is complemented by de facto civil society monitoring. Since 2010, the Cluster Munition Monitor has been providing vital information about the evolution of state practices and treaty compliance.

Status of the CCM

As of September 2024, a total of 112 states have ratified the CCM and another 12 have signed but not ratified it. States parties include past producers (Belgium, Germany, France, Italy, the UK, the Netherlands, Spain, Sweden and South Africa) and users (France, the UK and the Netherlands). States contaminated with unexploded CMs, such as Afghanistan, Iraq, Lao PDR and Lebanon, have also ratified the CCM.

Regional body	Support (%)	Support (number of member states)	Non-signatories to the convention
African Union (AU)	81	44 of 54	Algeria, Egypt, Equatorial Guinea, Algeria, Egypt
Association of Southeast Asian Nations (ASEAN)	30	3 of 10	Brunei Darussalam, Cambodia, Malaysia, Myanmar, Singapore, Thailand, Vietnam
European Union (EU)	78	21 of 27	Estonia, Finland, Greece, Latvia, Poland, Romania
North Atlantic Treaty Organization (NATO)	75	24 of 32	Estonia, Finland, Greece, Latvia, Poland, Romania, Türkiye, US
Organization of American States (OAS)	77	27 of 35	Argentina, Bahamas, Barbados, Brazil, Dominica, Suriname, US, Venezuela
Pacific Island Forum	56	10 of 18	Kiribati, Marshall Islands Micronesia, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, Vanuatu

Convention on Cluster Munitions membership by regional or security body
Source: Cluster Munitions Monitor 2024, p. 7

Eighteen states have stopped production of CMs (all of them states parties except Argentina), while 16 continue production (none of them has joined the CCM).¹⁸

Since the Convention’s adoption, states parties have destroyed 99 percent of their declared CM stocks, eliminating 1.48 million CMs and 178.5 million submunitions.

Major military powers, including China, India, Pakistan, Russia and the US, remain outside the treaty. Nevertheless, there are signs that the ban has had stigmatising effects. Several states not party to the treaty – Estonia, Finland, Poland and Romania – have committed not to use CMs outside their own territories. The US has not used CMs since 2003 (except for a single, unacknowledged attack in Yemen in 2009), while Israel last used CMs in 2006, despite the conduct of military operations by both.

Non-governmental organisations have promoted an interpretation that the ban on assisting and encouraging prohibited activities includes investment in CM production. They have focused, in particular, on stigmatising CMs beyond states by advocating that financial institutions, such as banks and pension funds, divest from CM manufacturers.¹⁹ In 2018, a total of 48 financial institutions had clear and comprehensive policies prohibiting investment in CM manufacturing,²⁰ while several producers had ceased CM production due to its increased political and economic costs.²¹

Compared to the ICBL, the NGO campaign on cluster munitions has extended the range of activities targeting non-state actors – from NSAGs (which for the most part have not used CMs) to the business and financial sector.

Convention on Cluster Munitions (CCM)

Effective 01 August 2010Legally binding112 Member States

The Convention on Cluster Munitions (CCM) is a legally binding international treaty that prohibits the use, production, stockpiling, and transfer of cluster bombs due to their indiscriminate effects and long-lasting danger to civilians. It mandates clearance of contaminated areas, destruction of stockpiles, and assistance to victims. Adopted in 2008, it entered into force on August 1, 2010. Over 120 countries have signed, though major military powers such as the U.S., Russia, and China remain non-signatories. The treaty strengthens international humanitarian law by aiming to reduce the human cost of war and prevent future harm from unexploded submunitions.

Current Adoption

• AFG
• ALB
• AND
• ATG
• AUS
• AUT
• BEL
• BLZ
• BEN
• BOL
• BIH
• BWA
• BGR
• BFA
• BDI
• CPV
• CMR
• CAN
• TCD
• CHL
• COL
• COM
• COG
• COK
• CRI
• CIV
• HRV
• CUB
• CZE
• DNK
• DOM
• ECU
• SLV
• SWZ
• FJI
• FRA
• GMB
• DEU
• GHA
• GRD
• GTM
• GIN
• GNB
• GUY
• VAT
• HND
• HUN
• ISL
• IRQ
• IRL
• ITA
• JPN
• LAO
• LBN
• LSO
• LIE
• LTU
• LUX
• MDG
• MWI
• MDV
• MLI
• MLT
• MRT
• MUS
• MEX
• MCO
• MNE
• MOZ
• NAM
• NRU
• NLD
• NZL
• NIC
• NER
• NGA
• NIU
• MKD
• NOR
• PLW
• PAN
• PRY
• PER
• PHL
• PRT
• MDA
• RWA
• KNA
• LCA
• VCT
• WSM
• SMR
• STP
• SEN
• SYC
• SLE
• SVK
• SVN
• SOM
• ZAF
• SSD
• ESP
• LKA
• PSE
• SWE
• CHE
• TGO
• TTO
• TUN
• GBR
• URY
• ZMB
• AGO
• ARE
• ARG
• ARM
• AZE
• BGD
• BHR
• BHS
• BLR
• BRA
• BRB
• BRN
• BTN
• CAF
• CHN
• COD
• CYP
• DJI
• DMA
• DZA
• EGY
• ERI
• EST
• ETH
• FIN
• FSM
• GAB
• GEO
• GNQ
• GRC
• HTI
• IDN
• IND
• IRN
• ISR
• JAM
• JOR
• KAZ
• KEN
• KGZ
• KHM
• KIR
• KOR
• KWT
• LBR
• LBY
• LVA
• MAR
• MHL
• MMR
• MNG
• MYS
• NPL
• OMN
• PAK
• PNG
• POL
• PRK
• QAT
• ROU
• RUS
• SAU
• SDN
• SGP
• SLB
• SRB
• SUR
• SYR
• THA
• TJK
• TKM
• TLS
• TON
• TUR
• TUV
• TZA
• UGA
• UKR
• USA
• UZB
• VEN
• VNM
• VUT
• YEM
• ZWE

Data:

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Footnotes

1. Goose 2004, 247. ↩

2. CM Monitor 2024, 10. ↩

3. Failure rates vary widely depending on the types of submunitions, delivery method and conditions under which they are used. According to HRW, 5 percent is a conservative estimate for the CMs used by the US in Afghanistan, while the ICRC estimates that in general 10 to 40 percent fail in practice; HRW 2010; ICRC 2010. ↩

4. In 2021–2023, in Laos, 47 people were killed or injured by Vietnam-era CMs; CM Monitor 2024, 51. ↩

5. Many submunitions are dual purpose with anti-vehicle and anti-personnel effects. They are designed to penetrate armour and send fragments that can kill a person within 10–20 metres, depending on the type. For example, one of the most widely used CMs, CBU-87, has a lethal range of at least 20 metres; Geneva International Centre for Humanitarian Demining 2016, 36. Moreover, their sensitive fuses make unexploded submunitions hazardous to clear; ICRC 2000, 14. ↩

6. This is partly due to the lack of information on military casualties. However, even when information does exist, as it does on CM use in Ukraine, civilians still make up 93 percent of recorded casualties; HRW 2010; CM Monitor 2024, 51. ↩

7. Prokosch 1995. ↩

8. HRW, Handicap International, Landmine Action, Mines Action Canada and Pax Christi, among others. ↩

9. Austria, New Zealand, Mexico, Ireland and initially Peru. ↩

10. King, Dullum, and Østern 2007. ↩

11. Petrova 2016. ↩

12. A controversial caveat, criticised by NGOs, was included at the end of the treaty text in article 21. It sought to protect states parties against liability for joint military operations with states not party to the CCM by explicitly providing that ‘States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.’ ↩

13. CCM, Article 2(2), https://www.clusterconvention.org/convention-text/. ↩

14. Article 4(4)(a). ↩

15. Article 2(1). ↩

16. Article 5(1). ↩

17. Docherty 2009. ↩

18. Brazil, China, Egypt, Greece, India, Iran, Israel, North Korea, South Korea, Pakistan, Poland, Romania, Russia, Singapore, Türkiye and the US. Although known production of CMs, including the CBU-97 sensor-fused weapons, has stopped in the US, it is listed as a producer because of the development of replacement munitions that might fall under the CCM definition of CMs. ↩

19. See, Stop Explosive Investments Campaign, https://stopexplosiveinvestments.org/ ↩

20. Another 62 institutions have policies on cluster munitions, but with several loopholes; PAX 2018. ↩

21. CM Monitor 2023, 19, 35. ↩