The Department of Defense has quietly signed a $210 million deal to buy advanced cluster shells from one of Israel’s state-owned arms companies, marking unusually large new commitments to a class of weapons and an Israeli defense establishment both widely condemned for their indiscriminate killing of civilians.

The deal, signed in September and not previously reported, is the department’s largest contract to purchase weapons from an Israeli company in available records, according to an online federal database that covers the last 18 years. In a reversal of the more commonly seen direction for weapons transfers between the countries — in which the U.S. sends its weapons to Israel — the U.S. will pay the Israeli weapons firm Tomer over a period of three years to produce a new 155mm munition. The shells are designed to replace decades-old and often defective cluster shells that left live explosives scattered across Vietnam, Laos, Iraq, and other nations.

The terror of cluster weapons persists long after the guns that fired them have quieted, as civilians return to fields, forests, and settlements laced with bomblets that can explode years later without warning.

“The footprint of the injuries of these weapons is so horrifying,” said Alma Taslidžan, advocacy manager for the aid organization Humanity & Inclusion, which pushes to ban cluster munitions. She recalled speaking with a 17-year-old boy who found an unexploded cluster bomblet in his neighbor’s garden in the aftermath of the Bosnian War.

“He said he played with it for quite a while. Suddenly it exploded. It blew up both of his hands; it blew away part of his face as well,” she said.

Known as the XM1208 munition, America’s new cluster shells are designed to have a dud rate — or risk of failure to explode — of less than 1 percent. They rely on more complex fuses and self-destruct features to reduce long-term danger to civilians, according to army procurement documents and weapons experts. But researchers say those low failure rates in testing do not reflect real-world performance, and advocates argue that cluster weapons’ battlefield effectiveness cannot justify their humanitarian costs.

“They are inherently indiscriminate,” said Brian Castner, an Amnesty International weapons investigator and former U.S. Air Force explosive ordnance disposal officer. “There’s not a way to use them responsibly, in that you can’t control where they land, and with this high dud rate you can’t control the effect on the civilian population afterwards.”

The Cluster Munition Monitor has documented more than 24,800 cluster munition injuries and deaths since the 1960s, three-quarters from unexploded remnants. In 2024, cluster munitions killed at least 314 civilians, the majority of them in Ukraine.

Both the XM1208 and the deal to buy them are atypical. The DOD awarded the contract without public competition under a “public interest” exception to federal contracting law, using recent amendments that loosened rules for awarding no-bid defense contracts involving Ukraine, Taiwan, and Israel.

“I found this to be rather unusual,” said Julia Gledhill, a military contracting researcher for the Stimson Center, a Washington-based foreign policy think tank. “I have not seen something like this before — a sole source contract to a foreign military contractor for $200 million.”

“I have not seen something like this before — a sole source contract to a foreign military contractor for $200 million.” 

Federal agencies are legally required to create a “determination and findings” document justifying the award of a no-bid contract, which can be requested from the agencies under public records law. The Army has not yet responded to a Freedom of Information Act request for that documentation.

Tomer did not respond to a request for comment. Asked about the new munition’s failure rate, U.S. Army public affairs officer Shahin Uddin wrote it has “has undergone all required testing to ensure it meets all performance requirements, including compliance with the DoD Cluster Munition Policy.”

A Weapon for the Next War

The Pentagon’s efforts to field the XM1208 comes against the backdrop of the Russia–Ukraine war, where both sides have blanketed battlefields with older cluster munitions — including some given to Ukraine by the Biden administration. Some Eastern European countries have considered withdrawing from the Convention on Cluster Munitions amid fears of conflict with Russia, and in 2014, Lithuania became the first country to abandon the treaty.

As a result, Castner said, “Both the cluster munitions convention and the anti-personnel land mine convention are under threat.” 

But major military powers — like Russia, China, Israel, India, Pakistan, and the United States — have never signed the Convention on Cluster Munitions, which bans its 112 member states from using or producing those weapons. Rather than sign the 2008 pact, the U.S. enacted a policy that year to stop using its old, failure-prone cluster munitions by 2019 and develop new weapons with a dud rate of less than 1 percent. 

Progress was slow, and in 2017, the U.S. weakened its policy to allow continued use of older cluster bombs until it had sufficient stockpiles of safer models. That year, the U.S. military began testing the M999 cluster munition: a new shell developed by another state-owned Israeli arms company, IMI Systems.

“The U.S. wants all options,” said William Hartung, an arms industry researcher with the Quincy Center for Responsible Statecraft. “One of their arguments was it’s good if you’re in a close-packed artillery situation — a ground war. It clears more of an area.”

During its 2006 war in Lebanon, Israel drew international criticism for using cluster bombs, and IMI promised a new weapon that would lower collateral damage — both to civilians and Israel’s flagging global reputation. In 2018, IMI Systems was acquired by Elbit Systems, a privately owned Israeli defense contractor which has faced recent boycotts for arming Israel’s forces in Gaza and the West Bank.

After backlash from investors in countries that had signed the convention, Elbit canceled production of the M999 and pledged not to build any cluster weapons.

But the M999 program did not stay dead. The Israeli government established a new state-owned arms company, Tomer, in 2018, with no limitations on cluster weapon production. The U.S. Army then adopted the M999 as its new cluster shell for artillery, renaming it the XM1208. According to a 2024 army munitions publication, the XM1208 is designed to release nine bomblets which then detonate in the air, each containing 1,200 pieces of tungsten shrapnel.

That same document lists Elbit as a production partner for the XM1208, despite the company’s pledge to abide by the cluster convention. Elbit did not immediately return a request for comment, and the Army did not respond to an inquiry about whether Elbit was working on the munition.

Business at Tomer has been booming, due to both the genocide in Gaza and foreign arms sales, according to the Israeli tech news site Calcalist. It recorded $173 million in sales last year, making the DOD’s $210 million contract a massive windfall compared to its historical revenue. Tomer pays the Israeli government a 50 percent dividend on its profit, Calcalist reported.

The XM1208 is designed with multiple fail-safe fuses to reduce dud rates, according to U.S. Army documents published online. But little is known about how it actually performs in the field. Last year, The Guardian published photos showing an expended M999 shell in Lebanon, suggesting Israel had used the weapon in its recent attacks on Hezbollah. But there is currently no public data on its real-world failure rate, said N.R. Jenzen-Jones, director of the munitions analysis firm Armament Research Services.

Real-world dud rates are generally much higher than those found in controlled testing, which does not account for battlefield conditions like soft soil or older, degraded fuses, said Taslidžan, of Humanity & Inclusion. The manufacturer of Israel’s M85 cluster munition, which includes a self-destruct feature to reduce long-term risk to civilians, touted a “hazardous dud” rate of less than 0.1 percent. But researchers with Norwegian People’s Aid who analyzed the aftermath of M85 strikes from the 2006 war in Lebanon found that about 10 percent failed to explode.

And even if the XM1208 meets its 1 percent failure rate target, it would still be inhumane, said Taslidžan, leaving large numbers of lethal duds behind.

“That’s why the Convention on Cluster Munitions bans these weapons as a class,” she said. “The area effects and residual contamination are fundamentally incompatible with protecting civilians.”