The Current U.S. Cluster Munition Stockpile
Congress, as part of the FY 2005 DoD appropriations process, mandated a report on the U.S. cluster munition inventory (the above-mentioned DoD Report to Congress). The amendment requesting the report, initiated by Congresswoman Betty McCollum and submitted by the House Appropriations Subcommittee on Defense, directs the Secretary of Defense to provide a report that addresses how the Department of Defense (DoD) is improving the dud rate of cluster munitions to meet existing DoD policies.8
The report, dated October 2004, addresses three areas:
While the report recognizes the need for more reliable submunitions as required by the Cohen policy, it also stresses the United Statess continued commitment to old cluster submunitions with high failure rates.
The report details a stockpile of 5.5 million cluster munitions containing about 728.5 million submunitions.10 This figure, however, does not appear to be a full accounting of cluster munitions available to U.S. forces. In particular, the tally does not include cluster munitions that are part of the War Reserve Stocks for Allies (WRSA).11 Human Rights Watch has previously reported that the U.S. inventory, including WRSA, totaled about one billion submunitions.12
Cluster munitions are particularly ubiquitous in the stores of U.S. ground forces. According to the DoD report, the Army has about 638.3 million cluster submunitions (88 percent of the total inventory) and the Marine Corps has about 53.3 million (7 percent). The report states, Cannon and rocket artillery cluster munitions comprise over 80% of Army fire support capability,13 and they comprise the bulk of the Marine Corps artillery munitions.14 The Air Force stockpiles about 22.2 million air-delivered cluster bombs (3 percent of the cluster inventory) and the Navy about 14.7 million (2 percent).
Of the 728 million submunitions, only 30,990 have self-destruct devices (.00004 percent).15 The DoD report cites failure rates of 2 percent to 6 percent for most of the submunitions, based on lot acceptance testing and stockpile reliability testing. Previous DoD documents have indicated much higher failure rates for the most common submunitions.16 Organizations involved in UXO clearance in various countries also cite higher failure rates.
Both ground and air forces stockpile large numbers of outdated cluster munitions that have caused significant harm to civilians in recent conflicts. The Army and Marine Corps have 155mm artillery projectiles (M483/M483A1 and M864) containing about 402 million Dual Purpose Improved Conventional Munition (DPICM) submunitions. The new DoD report cites a failure rate of 3 percent, while a July 2000 Army study cited 14 percent.17 Similarly, the Army has M26 Multiple Launch Rocket Systems (MRLS) containing about 282 million submunitions; the new DoD report cites a failure rate of 5 percent, while an earlier study cited 16 to 23 percent.18 These weapons killed or wounded hundreds of civilians in Iraq in 2003.
The Air Force still has CBU-87 cluster bombs containing more than 20 million submunitions; the DoD report cites a failure rate of 4 to 6 percent, while U.N. clearance operations in Kosovo found a 7 percent failure rate. The yellow BLU-97 submunitions in these cluster bombs caused hundreds of civilian casualties during and after conflict in Kosovo, Afghanistan, and Iraq.
The Navy retains MK-20 Rockeye cluster bombs with about 14.5 million submunitions; the DoD report cites a surprisingly low 2 percent failure rate. These cluster bombs were developed in the 1950s and were used in great numbers in the Vietnam War and in the 1991 Gulf War and were reported to have high failure rates; clearance agencies in Kuwait encountered a very large number of hazardous dud Rockeye submunitions.19
Even using the reports very conservative dud rates, however, the current submunition inventory, if employed, would leave behind more than 27 million hazardous duds (see Table 2). The report says that legacy munitions will remain in the departments inventory until used or until they reach their extended life and are demilitarized.20 Thus, while the DoD will destroy some submunitions because they have expired, it has no plans to destroy cluster munitions because of their high failure rates and inaccuracy. According to the report, a total of 480 million of the old, unreliable submunitions will still be in the inventory in FY 2011.21
The report also reflects an unwillingness to replace cluster munitions with unitary weapons. It describes the cluster munitions as vital and versatile, particularly for attacks on time-sensitive area targets. Restricting U.S. Forces to firing only unitary munitions would severely hinder our capabilities . . . and would limit the number of available munitions options for the operational commander.22 It specifically states that unitary models are not intended as a replacement for MLRS or ATACMS cluster munitions.23 Such statements ignore the lessons of Iraq where field commanders and Judge Advocate Generals (legal advisers) called for a unitary alternative to reduce the risk to U.S. troops and Iraqi civilians. In that conflict, ground forces used long-range MLRS rockets, which only carry submunitions, largely because Iraqi artillery outranged U.S. artillery. In such cases, a unitary warhead would have served the same purpose without the civilian harm that is all but inevitable when one uses an area effect weapon that produces dozens of duds.
 Public Law No. 108-287 (2004), sec. 8134.
 DoD Report to Congress, p. ii.
 The report lists 626,824,422 submunitions in the Active Inventory and 728,477,489 in the Total Inventory. Active inventory denotes serviceable ammunition items that can be safely used in training or combat. Total inventory may include damaged, suspended, or unserviceable ammunition that is awaiting disposal or repair.
 Under this program, munitions are stored in foreign countries (notably in Europe, Japan, and Korea), but kept under U.S. title and control, then made available to United States and allied forces in the event of hostilities.
 See, e.g., Human Rights Watch, Cluster Munitions a Foreseeable Hazard in Iraq, A Human Rights Watch Briefing Paper, March 2003. The one billion submunitions figure is mostly drawn from U.S. Army Material Systems Analysis Activity, Unexploded Ordnance (UXO) Study, April 1996. The United States may have removed from inventory and destroyed a significant number of expired cluster munitions since that 1996 study. The new DoD report also does not include an unknown number of SADARM cluster munitions and TLAM cruise missiles with conventional submunitions, and more than 400,000 scatterable mine systems.
 DoD Report to Congress, p. 2.
 Ibid., p. 3.
 These are CBU-97 and CBU-105 Sensor Fuzed Weapons (SFW) held by the Air Force and Navy. The Armys SADARM cluster munitions, which are similar to SFW, are not included in the DoD report.
 See, e.g., Office of the Under Secretary of Defense for Acquisition, Technology and Logistics, Unexploded Ordnance Report, table 2-3, p. 5. No date, but transmitted to the U.S. Congress on February 29, 2000.
 U.S. Army Defense Ammunition Center, Technical Center for Explosives Safety, Study of Ammunition Dud and Low Order Detonation Rates, July 2000, p. 9.
 Office of the Under Secretary of Defense for Acquisition, Technology and Logistics, Unexploded Ordnance Report.
 For more details and sources on Rockeye, CBU-87, DPICM and MLRS, see Human Rights Watch, Cluster Munitions a Foreseeable Hazard in Iraq.
 DoD Report to Congress, p. 12.
 Ibid., pp. 12-16.
 Ibid., p. ii.
 Ibid., p. 8.