by Sam Cassanos

UNITED NATIONS - After refusing to join 111 nations in a treaty banning cluster munitions this past May, the George W. Bush administration recently made public its new policy on the controversial weapon.

In a policy memo dated Jun. 19, Secretary of Defence Robert Gates stated that while the U.S. finds a "blanket elimination of cluster munitions is unacceptable", by 2018 the military will no longer use cluster weapons with a failure rate greater than 1 percent. In the interim period the U.S. will deplete its existing stockpiles of cluster munitions with a greater than 1 percent dud rate by exporting them to foreign governments that agree not to use them starting in 2018.

Cluster munitions explode in midair, releasing dozens, sometimes hundreds of tiny bomblets. They have been documented as causing many civilian deaths during wartime and leaving behind deadly unexploded devices that take lives even after combat has ended.

The Pentagon justified their use in a Jul. 9 statement saying that cluster munitions are "legitimate weapons with clear military utility" and can "save U.S. lives".

However, for supporters of the Cluster Munitions Convention, the policy memo was a potentially dangerous response to a landmark agreement. The weapons that the U.S. intends to retain for the next 10 years are "proven killers of civilians", says Bonnie Docherty, a lecturer on international humanitarian law at Harvard Law School and a participant in the campaign for the cluster munitions convention.

"[The] United States' own use in Iraq in 2003 caused hundreds of civilian casualties," she told IPS. And the promises of near perfect detonation rates have proven fallible in the recent past. The "most touted weapon", said Docherty, "has been the M85 which has been used by Israel in Lebanon. In the field, it had a 10-percent dud rate as opposed to the advertised 1 percent."

According to Mark Hiznay, a spokesperson for the International Campaign to Ban Landmines, these failures are evidence of a problem with cluster munitions that may not be soluble.

"In perfect laboratory conditions, it may be possible to achieve a one-percent failure rate. In the field, under operational conditions, in various climates, the failure rate of submunitions is invariably higher than is claimed by manufacturers or government scientists. Every time cluster munitions are used, we hear that, 'failure rates were higher than anticipated.' That is why a comprehensive prohibition is inherently stronger than a purely technical solution," Hiznay said.

The memo is the latest instance of a U.S. cluster munitions policy that publicly insists on the importance of the weapons, but in practice has begun to shun them. In 2001, then Defence Secretary William Cohen issued a policy memo requiring that all cluster munitions procured by the U.S. after 2005 have a failure rate below 1 percent. This standard has eluded manufacturers, making the U.S. virtually incapable of acquiring new cluster bombs for the past three years.

The U.S. deployed cluster munitions during the invasions of Afghanistan and Iraq, but has not used them in either country since 2003. During the recent negotiations over the convention, the U.S. pressured its allies to word the treaty in such a way as to permit military cooperation between signatories and non-parties in exercises that use cluster munitions.

However, the overall content of the treaty was a defeat for U.S. policy goals, which would have rather preserved the legitimacy of cluster munitions. Instead, over 100 nations resolved to stigmatise the weapon. The force of the treaty was even more jarring to the U.S. because principal allies such as Britain and Japan agreed not only to ban cluster munitions, but to pressure other states to do so as well.

According to Marc Garlasco, a military analyst at Human Rights Watch, evolving international norms are shaping the way the U.S. and other states are using anti-personnel weapons and making it unlikely that the U.S. will use cluster munitions again.

"As more states sign on to the treaty, it will eventually become moot," said Garlasco in an interview with IPS. "Once you have 150 states signed on it will move to the point of customary international law. The landmine treaty [which the U.S. did not join but has adhered to] is a perfect example of that. Right now the only country using landmines is Burma. Even countries like Israel that did not sign the landmine treaty do not use them."

Garlasco says the policy memo is symptomatic of a "White House that is totally uninterested in treaties and negotiations that will improve civilian protections in conflict".

However, he says that in contrast to an official line that insists on their indispensability, the government has been "proactive" in phasing-out cluster munitions and points to the replacement of M26 cluster bombs by the Guided Multiple Launch Rocket System, a much more accurate weapon that launches a single warhead, as evidence of the nearing obsolescence of cluster munitions.

For activists dedicated to banning cluster munitions, the election of a new U.S. president is a hopeful event. The "next administration gives a chance to put added pressure on," says Docherty, who believes that Democratic candidate Barack Obama is more likely to be receptive to the ban than Republican John McCain would be.

In fact, Obama has voiced support for the Leahy-Feinstein Cluster Munitions Civilian Protection Act of 2007, which would confine the use of cluster bombs to clearly defined military targets and bar the export of models with a less than 99 percent detonation rate.

But believing U.S. participation in the treaty is "not necessarily imminent", Docherty recommends that NGOs put pressure on states that adopted the treaty in May to sign it in December.

That may be the decisive step in the anti-cluster bomb campaign. "Once the treaty goes into effect I will be very surprised if anyone use cluster munitions again in the future unless it's a pariah state such as Burma," said Garlesco.
© 2008 Inter Press Service