SummaryNo weapons used by U.S.-led coalition forces in Iraq in 2003 caused more civilian casualties than cluster munitions, large weapons that contain dozens or hundreds of smaller submunitions.1 Cluster munitions also caused significant civilian deaths and injuries both during and after the conflicts in Afghanistan in 2001, Yugoslavia in 1999, and Iraq in 1991. They pose an immediate danger to civilians during attacks, especially in populated areas, because they are inaccurate and have a wide dispersal pattern. They also endanger civilians long after the conflict due to the high number of submunition “duds” that do not explode on impact and become de facto landmines. This briefing paper critically examines the status and quality of current U.S. cluster munition stockpiles and assesses in detail the Department of Defense’s (DoD) fiscal year 2006 (FY 2006) budget requests related to such weapons.2 It concludes that, despite recent positive developments in its cluster munition policy and procurement practice, the United States retains—and still is willing to use—at least 728 million old, unreliable, and inaccurate cluster submunitions. These submunitions pose grave dangers to civilian populations and should never be used. They should be destroyed, or modified to improve their accuracy and ensure an initial failure, or dud, rate below 1 percent. Technical improvements should be accompanied by changes in U.S. targeting doctrine, most notably a prohibition on use in or near populated areas. The FY 2005 Defense Appropriations Act directed the Department of Defense to produce a report on existing and future submunitions (hereinafter DoD Report to Congress).3 The detailed report attempts to build the case for continued use of the hundreds of millions of existing, or “legacy,” submunitions. But the report also reflects important changes in the U.S. approach to cluster munitions. It states that DoD “is keenly aware of and interested in reducing our cluster munitions dud rates and improving the accuracy of the delivery methods. . . . Additionally, the DoD acknowledges the potential danger to non-combatants posed by UXO [unexploded ordnance] and has developed strict rules of engagement and targeting methodologies, intended to minimize risks to civilians in or near the zone of conflict.”4 The DoD FY 2006 budget, which covers October 2005 to September 2006, is the first to implement fully an important new U.S. policy toward procuring cluster munitions: the DoD may no longer acquire cluster submunitions with a dud rate of 1 percent or more. This policy was first declared in January 2001 and is only now taking full effect; it applies to new purchases and does not affect the existing stockpile. The Army, Marine Corps, and Air Force all seek funding for additional cluster weapons this year. While these spending requests appear to conform to the new policy, the budget raises a number of questions and concerns, as detailed below. RecommendationsTo minimize the danger of U.S. cluster munition stockpiles, Human Rights Watch recommends that the United States: In addition, Human Rights Watch recommends that Congress, in adopting the FY 2006 budget, place conditions on certain cluster munition procurements (i.e., use only with unitary warheads or submunitions with less than a 1 percent dud rate), and that the Department of Defense provide fuller information about the numbers and types of cluster munitions and submunitions it is requesting, and their dud rates, so that Congress can make informed decisions. The Cohen PolicyIn 2001, then-Secretary of Defense William Cohen issued a policy memorandum stating that all submunitions reaching a Milestone 3 production decision in FY 2005 and beyond would have a dud rate of less than 1 percent (hereinafter the Cohen policy).5 In other words, submunitions that reach “full rate production,” i.e. production for use in combat, during the first quarter of FY 2005 must meet the new standard.6 According to the DoD Report to Congress, submunitions procured in past years are exempt from the policy, but “[f]uture subunitions must comply with the desired goal of 99% or higher submunition functioning rate or must receive a waiver.”7 The implementation of this policy is discussed in the DoD Report to Congress and reflected in the FY 2006 Budget. [1] For information on the use of cluster munitions in Iraq, see Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq (New York: Human Rights Watch, 2003). [2] This paper updates one Human Rights Watch published last year about the FY 2005 budget: Human Rights Watch, “Cluster Munitions Too Costly: Department of Defense FY 2005 Budget Requests Related to Cluster Munitions,” A Human Rights Watch Briefing Paper, June 2004. See Links to Budget Materials at http://www.defenselink.mil/comptroller/defbudget/fy2006/index.html. [3] Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), “Report to Congress: Cluster Munitions,” October 2004 (hereinafter “DoD Report to Congress”). [4] Ibid., p. ii. [5] Secretary of Defense William Cohen, “Memorandum for the Secretaries of the Military Departments, Subject: DoD Policy on Submunition Reliability (U),” January 10, 2001. [6] Ibid. See also Anthony J. Melita, “A Viewpoint from OSD,” briefing at National Defense Industrial Association, 45th Annual Fuze Conference, April 2001, p. 9. [7] “DoD Report to Congress,” p. ii.
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