On 6 May 2009, representatives from the State Department and Department of Defense hosted officials from Britain's Foreign and Commonwealth Office (FCO) "to discuss progress on [Britain's] national legislation implementing the Convention on Cluster Munitions ".
Ostensibly, the British delegation's "primary focus at this meeting was to inform Washington of an accelerated date for the request of the removal of U.S. munitions from UK territory". In fact, the two sides were going to discuss an arrangement to allow the Americans to maintain the storage and transit of cluster bombs in that territory.
Specifically, the US permanently held the bombs on ships off the coast of Diego Garcia, which is still held by Britain, in the Indian Ocean. By 2009, however, the British Government --- in a change of position --- had signed the international treaty banning the use and stockpiling of cluster bombs.
The solution? The Foreign Office, led by David Miliband, established "temporary exceptions" for the US to store the bombs on a "case-by-case" basis for specific military operations, such as those in Afghanistan.
And in the May 2009 meeting, there was a neat twist. The Foreign Office delegation had an arrangement to keep the deal with the Americans a secret from the British Parliament:
It would be better for the US government and HMG [the British government] not to reach final agreement on this temporary agreement understanding until after the [treaty] ratification process is completed in parliament, so that they can tell parliamentarians that they have requested the US government to remove its cluster munitions by 2013, without complicating/muddying the debate by having to indicate that this request is open to exceptions.
THE ORIGINAL CABLE
Thursday, 21 May 2009, 19:12
C O N F I D E N T I A L STATE 052368
EO 12958 DECL: 05/19/2019
TAGS MOPS, PREL, PGOV, NATO, UK
SUBJECT: U.S.-UK CLUSTER MUNITIONS DIALOGUE
REF: A. 2008 LONDON 3082 B. 2008 STATE 229199
Classified By: PM/WRA DEPUTY DIRECTOR STEVEN COSTNER For reasons 1.4 (b) and (d)
1. (C) Summary: In the latest bilateral consultation on the cluster munitions issue, Department and DoD representatives met with representatives from the United Kingdom Foreign and Commonwealth Office (FCO) on May 6 to discuss progress on their national legislation implementing the Convention on Cluster Munitions (CCM), timeline for ratification, outstanding issues related to interoperability, CCM discussion at NATO, and on-going cluster munitions negotiations in the Convention on Conventional Weapons (CCW). The UK's primary focus at this meeting was to inform Washington of an accelerated date for the request of the removal of U.S. munitions from UK territory and to seek reactions to the latest version of the draft letter from Foreign Minister Miliband to Secretary Clinton. They also expressed concerns with our position regarding the treatment of the cluster munitions system excluded from the CCM definition of cluster munitions in the CCW negotiations. End Summary.
2. (C) Nicolas Pickard, head of the FCO Security Policy Group accompanied by his deputy Andrew Ford and Clare Bloomfield from the UK Embassy, visited PM/WRA on May 6. PM/WRA Deputy Director Steven Costner headed the U.S. representation that included David Hodson (OSD), Stephen Mathias (L), Mark Melamed (EUR/RPM), Lindsay Gardner (PM/WRA), and Katherine Baker (PM/WRA). This meeting was a continuation of close bilateral consultations on cluster munitions. The last formal meeting was held in London in December 2008 (ref A), and the group also met on the margins of a multilateral meeting in February 2009 (ref B).
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CONVENTION ON CLUSTER MUNITIONS
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3. (C) Pickard informed the group that the Convention on Cluster Munitions has been put on the draft Parliamentary agenda for the next session (November 2009 to May 2010). Although the Parliamentary agenda will not be final until the Queen makes her speech to Parliament in November and this session will be short due to the May 2010 general elections, it is likely that the CCM will be ratified during the session. Pickard confirmed that the recommended legislation is in line with and does not go beyond the UK legal interpretation of the CCM -- with one exception: UK personnel, even if embedded in non-State Parties' armed forces, will be prohibited from firing cluster munitions. (At the February consultations UKrepresentatives stated that from a legal perspective, UKpilots embedded in U.S. units could fire cluster munitions, but forewarned that the policy position may not allow this.) The prohibition would not apply to other personnel in the chain of command or headquarters positions.
4. (C) Pickard also noted a gap between the UKinterpretation of the CCM and its policy decision regarding removal of cluster munitions stockpiles from UKterritory. In relation to this request, Pickard stated that the Ministers would like to accelerate the time frame for removal so that all U.S. cluster munitions currently in permanent storage on UK territory would be moved out by the time the UK MOD completed destruction of its own stockpiles in 2013. Originally the FCO had previewed that U.S. armed forces would have until about 2018 to complete the action, in line with the transition period provided in the CCM once the treaty enters into force. Costner noted that the new timeline may have little practical effect on our primary concerns related to operations at Diego Garcia because most of the cluster munitions there are permanently stored on ships, but must transit the base. (Pickard reconfirmed that off-shore storage on U.S. ships would still be permitted.) That said, DoD needs to review the request because, among other factors, resources have not been allocated to remove the munitions in this time frame.
5. (C) In answer to queries about the case-by-case temporary storage exception for specific missions, Pickard and Ford confirmed that the concept was accepted at highest levels of the Government, as that idea has been included in the draft letter from Minister Miliband to Secretary Clinton. The operation-by-operation definition of "case-by-case" is being put forward for approval at the Ministerial level, backed up by precedent in other agreements for U.S. use of UK bases for specific operations. Further discussion clarified that, under the latest UK proposal, any U.S. cluster munitions currently stored on British territory (either UK territory proper, Diego Garcia, or elsewhere) would be permitted to stay until 2013, while any new cluster munitions the USG wanted to bring to those sites after the treaty's entry into force for the UK -- either before or after 2013 -- would require the temporary exception. Any movement of cluster munitions from ships at Diego Garcia to planes there, temporary transit, or use from British territory also would require the temporary exception after entry into force. Pickard noted that it would be better for the USG and HMG not to reach final agreement on this temporary agreement understanding until after the CCM ratification process is completed in Parliament, so that they can tell Parliamentarians that they have requested the USG to remove its cluster munitions by 2013, without complicating/muddying the debate by having to indicate that this request is open to exceptions.
6. (C) Costner requested that Pickard provide confirmation that the requests for temporary storage would be considered on an operation-by-operation basis when it is clear this approach been approved. Pickard requested clarity from DoD on the process for moving munitions at Diego Garcia from the ships where they're stored to the planes, a reaction to the 2013 deadline and specifics as to why the 2013 deadline could not be met if in fact it cannot, and U.S. reaction to the revised draft letter from Foreign Minister Miliband to the Secretary. This draft incorporates changes that we suggested (ref A) as well as the request that U.S. stockpiles be removed by 2013. Pickard requested comments on the letter as soon as possible so that the Government can report that it has been done well in advance of any Parliamentary debate. Costner recommended waiting until this summer to put the letter forward, when appropriate officials within the Department are in place.
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CCM AT NATO
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7. (C) Hodson outlined our concerns about potential proposals at NATO related to next steps on CCM and interoperability. He stressed that we did not think that this was an appropriate issue for the North Atlantic Council (NAC) and that agreement on detailed obligations for NATO members did not seem possible. The most that we could accept - and, likely, the most that could be achieved - would be a simple statement referring to the obligations in the treaty itself, including Article 21, but without interpretation. The note to ROE 38 related to the Ottawa Convention on anti-personnel landmines could be an acceptable model. In particular, the ideas Germany floated with U.S. representatives on the margins of the last round of CCW negotiations - including that the NAC recognize that: CCM States Party request the Alliance not use cluster munitions; the CCM has a different definition of cluster munitions; and CCM states have taken certain obligations related to the Convention - are viewed as unhelpful. Pickard agreed that a NAC ruling on cluster munitions would not be helpful and noted that they were satisfied with the October 2008 military advice. They did not think the subject should be discussed at NATO until closer to the CCM entry into force and stated that any iscussion should be kept as brief as possible. Pickard noted that they could probably accept something along the lines of the note in ROE 38.
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CCW
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8. (C) Ford expressed UK support for concluding a Protocol on cluster munitions in the CCW, but doubted that it would be possible given extreme positions on both sides of the negotiation. Mathias noted that we have some hope that some progress could be made. Both sides agreed that the input the ICRC provided in advance of the last negotiating session was not constructive or objective. The conversation then focused on treatment of the weapon systems excluded from the CCM definition of cluster munitions in the CCW draft text. The UK noted that it placed additional restrictions on the CCM-excluded weapon making it "CCM plus", rather than "CCM minus" which is how they have come to view the CCW process. Mathias verified that the UK interpretation is correct and that the intent of the provision is to ensure that CCM-excluded weapons are restricted in the same way that CCW protocol-permitted cluster munitions would be. Mathias stressed that there is no conceptual difference in the two types of weapons systems and therefore they should have the same restrictions. He confirmed that we are willing to take on the obligations of the Protocol for our future cluster munitions systems, even those which may meet the CCM exclusions. Ford indicated that accepting additional restrictions on the CCM-excluded weapon would be difficult for the UK because their ministers pledged to ban all cluster munitions upon theUK's signing of the CCM. It would be difficult to explain why additional restrictions were needed on a "safe" weapon. That said, he noted that this was not a red line and is open to on-going consultations. Pickard and Ford additionally voiced concerns that prolonged negotiations could cause states to lose interest in the CCW process, particularly after entry into force of the CCM, to which Costner and Mathias responded that they felt many states did not want to be blamed for negotiations falling apart and are therefore willing to allow discussions to continue without progress.
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WAY FORWARD
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9. (C) Regarding our bilateral conversation, the Department will work with DoD to answer the questions posed about the accelerated timeline and operations at Diego Garcia as well as comments on the latest draft letter. Regarding possible discussions at NATO, the Department recommends that USNATO remain in close contact with UK counterparts on this issue, as they will need to work together to minimize unhelpful initiatives. On CCW, the U.S. delegation will continue close consultations with the UK on the CCM-excluded weapons issue.
CLINTON