Australia’s cluster bomb ban: are we setting the right example?

By Roselina Press
12 year old Mohammad Abd el Aal, in Lebanon, lost one leg, and his arm from a cluster bomb. Cluster Munition Coalition/Flickr.

Australia signed the Convention on Cluster Munitions on 3 December 2008, the same day it was open for signature. The treaty, which was drafted in the wake of the 2006 Lebanon war, seeks to “put at end for all time to the suffering and casualties caused by cluster munitions”.

Australia is one of 109 countries to have signed the Convention and we are currently in the process of ratifying it. So far 59 nations have ratified the Convention, and to join them the government must enact legislation that will implement the treaty’s norms in our domestic law. Our proposed legislation, the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010, was passed by the House of Representatives in November last year and is currently awaiting debate in the Senate.

But since its inception, the Bill has been the subject of continued controversy and criticism. Organisations such as International Committee of the Red Cross, Human Rights Watch and Australian Lawyers for Human Rights (to name just a few) have condemned the Bill, arguing it does not do enough to outlaw cluster munitions. Former Prime Minister Malcolm Fraser has also called the legislation flawed, and has rebuked the government for bowing to pressure from the United States on this issue. Crucially, the US, our key military ally, has not signed the Convention.

The government rejects these claims. In a joint letter Attorney General Robert McClelland, Foreign Minister Kevin Rudd and Defence Minister Stephen Smith maintain the government “is a strong supporter of the Convention” and they are confident the Bill “includes the legislative measures necessary to give effect to the Convention”.

On 25 March the Senate Committee on Foreign Affairs, Defence and Trade recommended that the Senate pass the Bill without amendment. Should the Bill become law after the Senate recommences on 16 August however, it would dismay human rights organisations here in Australia and overseas.

What are cluster munitions? And what is so controversial about this Bill?

A deadly, indiscriminate weapon

Cluster munitions are dangerous and volatile. Inside these large bombs may be dozens or hundreds of smaller sub-munitions, or “bomblets.” When cluster munitions are either dropped by aircraft, or fired by artillery or missiles, they open mid-flight and unleash scores of bomblets over the ground below. The bomblets of one cluster munition can cover roughly the size of one or two football fields.

If cluster munitions are used near populated areas, their wide dispersal means they can indiscriminately kill anyone, be they military or civilian. The bomblets are also unreliable since they often fail to detonate on impact. According to the United Nations Development Programme, cluster munition failure rates “are difficult to verify, as they vary according to for example climate, terrain and height of dispersal.” However, failure rates of anywhere between five and 30 per cent have been recorded. As John Rodsted and Michelle Fahy from Cluster Munition Coalition Australia (CMC Australia) wrote in the April-May edition of Arena: “Given the vast number of bomblets deployed in a cluster bomb strike, any area where they are used ends up containing hundreds, even thousands, of unexploded bomblets”.

Unexploded bomblets are just as hazardous as those that successfully detonate, if not more so. Like landmines these bomblets remain a fatal threat to anyone who is unfortunate enough to find them. According to Handicap International, 98 per cent of victims killed or maimed by these unexploded sub-munitions are civilians, and nearly one-third are children.

To understand the devastation caused by cluster munitions, we only need to look towards Laos. Between 1964 and 1973 over 260 million sub-munitions were dropped there by the US, making it the most heavily bombed country per capita in history. 36 years since the end of the Vietnam War, approximately 11,000 Laotians have been killed or injured by unexploded sub-munitions while the country is supposed to be enjoying post-war peace.

More recently the US dropped 1,228 cluster bombs in Afghanistan between 2001 and 2002, before using them again in Iraq between 2003 and 2006. Cluster munitions caused most civilian causalities in Iraq in 2003.

According to UN estimates Israel used up to four million sub-munitions in Lebanon during the 2006 Lebanon war. Nearly 200 civilians were injured or killed by these bombs. This harm to civilian life, coupled with the ongoing harm cluster munitions have caused for decades, prompted countries to create a treaty that would ban them for good. The result was the Convention on Cluster Munitions.

Criticism of the proposed Australian legislation

Australia was one of the first countries to sign the Convention, and yet our ratification legislation has been criticised for being weak, and riddled with loopholes. Critics of the Bill have pointed to three main problems.

Interoperability

The first issue is interoperability. This term refers to the ability for allied forces to cooperate during joint military operations. The Bill prohibits Australians from using, developing, producing, acquiring, stockpiling, retaining or transferring cluster munitions. It also prohibits Australians from assisting another person to do any of the aforementioned activities.

But the Bill contains a provision (section 72.41) that allows Australian troops to assist states not party to the Convention to use cluster munitions in the course of military cooperation.

This means the Australian Defence Force (ADF) could potentially participate in cluster munition strikes orchestrated by our allies. We could help them identify targets, or refuel aircraft in preparation for such an attack. It also means the ADF could call in a cluster munition strike so long as they have not “expressly request[ed] the use of a cluster munition in a case where the choice of munitions used is within the Commonwealth’s exclusive control.”

There is perhaps one obvious reason why this is the case. Australia’s most important military ally, the US, has not joined the Convention and does not plan to. In this case, interoperability is a particularly pertinent issue for our government to deal with. In the course of joint operations with the US, it is possible that Australian troops may, inadvertently or not, come into contact with cluster munitions.

Some argue that if we do not waive the prohibition on assistance during military cooperation then we are effectively putting our troops at risk. Thom Woodroofe, making such an argument in The Drum earlier this year, stated “we should be careful to ensure the men and women serving our nation are able to do their job in making this world a safer place without fear from unintended prosecution.”

However, this Bill does not simply protect troops who inadvertently become involved in the use of cluster munitions. The Bill allows Australian troops to directly and actively assist our allies to use cluster munitions. Critics of the Bill say this undermines the very purpose of the Convention.

The Convention states, in Article 1(1)(c), that state parties are prohibited from assisting anyone from producing, using or stockpiling cluster munitions. “Never under any circumstances”, it explains, must a state party violate this rule.

Some countries, however, including Australia, Canada and the UK (each military allies of the US), have interpreted the Convention’s clause on interoperability, Article 21(3), as allowing certain forms of assistance during military cooperation, despite what is clearly defined in Article 1(1)(c).

Human Rights Watch argues, in a 19-page analysis of the Convention published in 2009, that Article 1(1)(c) should be read as absolute. Meaning that, in order to stay true to the Convention, all forms of direct and active assistance must be banned at all times. Otherwise, as Bonnie Docherty, Arms Division researcher at Human Rights Watch, explained, “if wide loopholes are read into the convention, signatories could effectively load and prime the gun so long as they didn’t pull the trigger.”

What’s more, the Convention obligates state parties to encourage others to ratify it, including our military allies. Given that the Convention aims to universally eradicate cluster munitions, asking countries that haven’t signed it to jump on board is vital to its ultimate success. But can Australia fulfil this important role if we assist the US to use cluster munitions?

Stockpiling and transiting cluster bombs on Australian territory

The second key concern with the Bill is that it allows our allies to stockpile and transit their cluster munitions on Australian territory. If the Senate passes the Bill it will not be an offence for the US military to use Australian infrastructure and territory as a store for their cluster munitions, or for them to transit cluster munitions through Australian ports and airspace.

Matthew Zagor, from Australian Lawyers for Human Rights, has called this “unprecedented”. CMC Australia points to the fact that “no other country has given foreign military allies a blanket exemption and such unfettered access to its territory”. The government has defended this, arguing the Convention’s provision on interoperability extends “to the hosting of foreign bases, and the use of those foreign bases for the stockpiling of cluster munitions by non-state parties” – but this is disputed.

No prohibition on investment

Finally, the Bill doesn’t include a prohibition on investment in the production of cluster munitions.

Last year, the Parliamentary Joint Standing Committee on Treaties (JSCOT) recommended the government add a clause to the Bill banning “investment by Australian entities in the development or production of cluster munitions, either directly, or through the provision of funds to companies that may develop or produce cluster munitions.” The Australian Council of Super Investors has since endorsed JSCOT’s recommendation, and yet the government has not followed this advice.

According to the Department of Foreign Affairs and Trade, the Bill’s prohibition on assistance will mean “the intentional provision of financial assistance to an entity for the purpose of developing or producing cluster munitions will amount to an offence.” But this implies financial assistance is only illegal when provided for the purpose of cluster munition production. The Bill does not contain a ban on indirect investment.

The world’s weakest interpretation of the Convention

On the phone with Right Now, John Rodsted, the founder of CMC Australia, said if the Bill is passed Australia will have delivered the world’s weakest interpretation of the Convention.

“Our leadership should think about Australia’s interests. But instead the government has come up with a watered down legislation. They are rolling over for America,” he said. “This is gutless leadership.”

The Greens are the only party calling for the Bill to be amended. Greens Senator Scott Ludlum submitted a dissenting report and made four amendment recommendations. Just last month, however, the government and the opposition used their combined numbers in the Senate to block a Greens move to refer the Bill to JSCOT for review. Senator Ludlum had hoped parliament would take the opportunity to reexamine the Bill in light of the sharp criticism from humanitarian and legal organisations.

There might also be potential for Australia’s proposed legislation to influence how other countries shape their own cluster bomb bans. As Malcolm Fraser asked in the Australian, “what sort of precedent is Australia setting for other countries considering ratification of the Convention?”

Australia has never used cluster munitions, and we do not currently produce or stockpile them on our own territory. Surely we are in a good position to be a world leader on this issue. But there remains serious doubt over whether our Bill sets the right international example for others to follow.

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