VZCZCXYZ0010
OO RUEHWEB

DE RUEHC #4777 3641651
ZNY CCCCC ZZH
O R 291637Z DEC 08
FM SECSTATE WASHDC
TO RUEHBUL/AMEMBASSY KABUL IMMEDIATE 0000
INFO RUEKJCS/SECDEF WASHINGTON DC
RHMFISS/JOINT STAFF WASHINGTON DC

C O N F I D E N T I A L STATE 134777 

SIPDIS 

EO 12958 DECL: 12/29/2018 
TAGS PARM, MOPS, PREL, AF 
SUBJECT: DEMARCHE TO AFGHANISTAN ON CLUSTER MUNITIONS 

REF: A. STATE 125608  B. KABUL 346  C. KHAN-MORIMOTO E-MAIL (12/10/2008)

Classified By: PM Assistant Secretary Mark T. Kimmitt For Reasons 1.4 (b) and (d)

¶1. (U) This is an action request. See para 2.

¶2. (SBU) Summary and Action Request: Contrary to previous statements to the U.S. Government, the Government of the Islamic Republic of Afghanistan joined 93 other states in signing the Convention on Cluster Munitions (CCM), December 3-4, 2008 in Oslo, Norway. The United States did not sign the treaty as cluster munitions continue to have military utility. The U.S. Government believes Article 21 of the Convention provides the flexibility for signatories to continue to cooperate and conduct operations with U.S. forces, and in turn for U.S. forces to store, transfer, and use U.S. cluster munitions in the territory of a State Party.  The Department requests that Post approach appropriate interlocutors at the Afghan Ministries of Foreign Affairs and Defense to urge Kabul to interpret Article 21 in a similar manner, minimizing any potential impact of Afghanistan,s signature of the Convention on U.S. operations and military cooperation. Given the political sensitivities in Afghanistan surrounding cluster munitions as well as air and artillery strikes in general, the Department believes that a low-profile approach will be the best way to ensure a common understanding that the CCM does not impede military planning and operations between our two governments. A copy of the CCM will be e-mailed to Post. End Summary and Action Request.

OBJECTIVES
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¶3. (SBU) Department requests Post pursue the following objectives with the Government of the Islamic Republic of Afghanistan (GIRoA) Ministries of Foreign Affairs and Defense. Post may also draw on points in ref A and the background below. A copy of the CCM text will be e-mailed to Post.
-- Reassure GIRoA the United States shares Afghanistan,s humanitarian concerns and expends great effort to reduce the unintended risk to civilians from cluster munitions during and after armed conflict.
-- Urge GIRoA to take full advantage of the flexibility afforded by Article 21 of the Convention on Cluster Munitions (CCM) that allows for continued “military cooperation and operations” between a signatory and a non-signatory. Article 21 also covers all preparations for future military operations, transit of cluster munitions through Afghanistan,s territory, and storage and potential use of cluster munitions on Afghanistan,s territory.
-- Emphasize that a narrow interpretation of Article 21 by GIRoA will impair our ability to defend the lives of our soldiers as well as those of Afghanistan and Coalition partners.
-- Share with GIRoA the U.S. Department of Defense Policy on Cluster Munitions and Unintended Harm to Civilians, signed by Secretary Gates on June 19, 2008. (Text can be found at: http://www.defenselink.mil/news/d20080709cmpo licy.pdf.)
-- Request that GIRoA pass to the USG any concerns impacting military operations in Afghanistan through bilateral channels.
-- IF RAISED: The United States currently has a very small stockpile of cluster munitions in Afghanistan. In certain circumstances, they are the most effective system to use against light armor, wheeled vehicles, materiel, and personnel, while at the same time limiting collateral damage.  Not allowing the use of cluster munitions will increase risk to coalition forces engaged in combat from enemy counter-fire, reduce responsiveness, decrease the number of different targets that can be attacked within a specified timeframe, and will substantially increase risks of collateral damage by requiring usage of a greater number of large, unitary warheads to accomplish the same mission. Cluster munitions employment would comply with the laws of war to include a painstaking collateral methodology and target development process, and only when absolutely necessary.

REPORTING DEADLINE
------------------ 

¶4. (U) Embassy should report results of efforts by cable to PM/WRA Katherine Baker before January 5, 2009.

BACKGROUND
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¶5. (C) Despite assurances to the contrary from President Karzai and Foreign Minister Spanta to Ambassador Wood in February 2008 (ref B), the GIRoA joined 93 other states in signing the CCM, December 3-4, 2008 in Oslo, Norway. According to timely Post reporting, President Karzai decided at the last moment to overrule Spanta and sign the CCM without prior consultation with the USG or other key states engaged in operations in Afghanistan. Information from Post and the press indicates that even ardent supporters of the CCM who had been lobbying Kabul for some time were unaware of the change in policy until December 3, when Afghanistan formally signed the treaty. Moreover, at least parts of the Foreign Ministry appeared unaware of the policy change, as of December 10 (ref C). Given the political sensitivities in Afghanistan surrounding cluster munitions as well as air and artillery strikes in general, the Department believes that a relatively low-profile dialogue at the sub-ministerial level will be the best way to ensure a common understanding between the USG and GIRoA that the CCM does not impede U.S. and ISAF military planning and operations.

¶6. (SBU) CCM signature does not automatically result in restrictions on the plans and operations of the International Security Assistance Force (ISAF) or other organizations engaged in security operations in Afghanistan. The United States interprets Article 21 of the CCM to enable non-signatories to continue to operate with those that have signed the treaty. Furthermore, the United States reads the phrase “military cooperation and operations” in Article 21 to include all preparations for future military operations, transit of cluster munitions through the territory of a State Party, and storage and use of cluster munitions on the territory of a State Party. Many of our NATO Allies and other key partners share this interpretation. The NATO Military Committee advice issued on September 30, 2008 notes that Article 21 provides the necessary flexibility to allow military cooperation among Allies that are party to the Convention and those that are not. Bilateral consultations with military allies and partners during the negotiation of the CCM indicate that ongoing operations in Afghanistan were a major factor in the inclusion of Article 21 by would-be signatories, several being troop contributors to ISAF. A narrow interpretation of the clause by GIRoA would reverse the hard work of our Allies and partners in ensuring that the CCM text included a clause on interoperability and combined operations.

¶7. (U) The United States did not sign the CCM as it constitutes a near-total ban on cluster munitions, which provide a vital military capability and remain a legitimate weapon when used properly and in accordance with existing international humanitarian law. We believe that the elimination of cluster munitions from our stockpiles would put the lives of our soldiers and those of our coalition partners at risk. Without cluster munitions it becomes more difficult to fulfill our security guarantees to others. We are not aware of any munition that offers the same combination of range, economy of force, responsiveness, and flexibility as cluster munitions. Moreover, there are no easy substitutes, and possible alternatives (carpet bombing, massed artillery barrages, etc.) have pronounced and potentially more adverse humanitarian impacts. We are working to improve our cluster munitions in order to reduce the unintended effects on civilians. While the current security environment in Afghanistan may not necessarily lend itself to employment of cluster munitions, the situation remains dynamic so that the United States cannot permanently preclude its use in the country.

¶8. (SBU) As the United States expands its forces in Afghanistan, the likelihood of enemy contact will rise due to an increase in operations. It is critical for the United States and Coalition partners to have the effects that cluster munitions can provide for the safety of our forces. The use of cluster munitions depends on the targeting sets and the effects desired against those targeting sets balanced with humanitarian considerations. Targeting sets would normally be light armor, wheeled vehicles, materiel, and personnel. Not allowing the use of cluster munitions will increases risk to Coalition forces engaged in combat from enemy counter-fire, reduce responsiveness, decrease the number of different targets that can be attacked within a specified timeframe, and will substantially increase risks of collateral damage by requiring usage of a greater number of large, unitary warheads to accomplish the same mission. Cluster munitions employment would comply with the laws of war. The rules of engagement would be stringent, and the collateral damage methodology and target development process would be painstaking, balancing military need with humanitarian concerns.

U.S. Attempts to Address Humanitarian Concerns
--------------------------------------------- - 

¶9. (U) The United States is addressing the humanitarian impact of unexploded cluster munitions through multiple channels. On June 19, Secretary Gates signed the new Department of Defense Policy on Cluster Munitions and Unintended Harm to Civilians. The primary feature of this policy is the commitment that by 2018, U.S. armed forces will employ only those cluster munitions that, after arming, result in no more than 1 percent unexploded ordnance across the range of intended operational environments. Post-2018, the USG will not transfer cluster munitions that do not meet these criteria and, for any cluster munitions transferred prior to 2018 not meeting this standard, the recipient state must agree not to use them after 2018.

¶10. (U) In addition, the Department of State and the Agency for International Development will continue efforts to protect civilians from unexploded cluster munitions and explosive remnants of war (ERW) through extensive survey, clearance, risk education assistance, and victims, assistance programs. The U.S. is the largest single donor to these types of activities, providing over $1.4 billion since 1993, including nearly $167.5 million for Afghanistan. (This figure includes assistance for clearance of landmines and all varieties of unexploded ordnance.) State Department programs include both immediate post-conflict response and long-term assistance for affected states, including Afghanistan where the United States has had demining and ERW clearance programs since 1988.

¶11. (U) Finally, the United States continues to work towards a legally-binding Protocol on cluster munitions within the framework of the Convention on Certain Conventional Weapons (CCW). Unlike the CCM, the CCW includes most major states which use, produce, and/or stockpile the world,s cluster munitions; many of them will not sign the CCM. These states were willing to work towards finalizing an agreement in the CCW that addresses both military and humanitarian concerns. Unfortunately, 25 of the strongest CCM supporters blocked consensus towards a binding CCW Protocol during the November 2008 negotiating session by demanding language virtually identical to that found in the CCM. The United States continues to support the CCW negotiations and will participate in the 2009 GGE sessions (February 16-20 and April 14-17). Afghanistan has signed, but not ratified, the CCW.

¶12. (U) For more information, please contact Katherine Baker (202-663-0104) in PM/WRA. RICE