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Coming clean on cluster munitions


Cluster bombsAustralia is one of the 108 countries that signed the UN Convention on Cluster Munitions (CMC) which came into force on 1 August 2010. The states which are party to the convention are 'determined to put an end for all time to the suffering and casualties caused by cluster munitions'.

Cluster munitions are, basically, bombs containing lots of smaller bombs, which indiscriminately land over vast areas, usually causing loss of life and limb to civilians. Given that up to 30 per cent of cluster bombs do not explode on impact, they pose a long term threat.

Under the convention, each state undertakes 'never under any circumstances to use cluster munitions'. never to 'develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions', and never to 'assist, encourage or induce anyone to engage in any activity prohibited to a state party' under the convention.

The state parties are 'determined to work strenuously towards the promotion of (the convention's) universalisation and its full implementation'.

Australia is yet to ratify the convention. All major political parties agree that Australia should ratify the convention. Once we have ratified the Convention, we will be required to take 'all appropriate legal, administrative and other measures' to implement it. In particular, we will be required to have in place criminal laws imposing penal sanctions to prevent and suppress 'any activity prohibited to a state party under this convention undertaken by persons or on territory under its jurisdiction or control'.

Ever since 1996 when the Howard Government was elected with a mandate for ensuring better parliamentary scrutiny of executive government decisions to enter into treaties, the Australian Parliament has been equipped with a Joint Standing Committee on Treaties (JSCOT).

JSCOT is required to report on all treaty actions proposed by the Government before action binding Australia to the terms of the treaty is taken. In August 2009, JSCOT recommended that the Government take binding action in relation to the CMC.

Before ratifying the treaty, the Government wants the Parliament to put in place the necessary penal sanctions required for compliance. The Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 has passed through the House of Representatives and been reviewed by the Senate Standing Committee on Foreign Affairs, Defence and Trade. This month it will be presented to the Senate.

The Government has assured the Parliament the proposed bill does all that the treaty would require. Ministers Rudd, Smith and McClelland have even put their name jointly to a letter saying as much.

The highly reputable Australian Network to Ban Landmines and Cluster Munitions (ANBLC) is not convinced, and they have some heavy backers like Malcolm Fraser and Paul Barratt, ex head of the Defence Department. Fraser says the draft legislation 'is scattered with alarming loopholes which directly undermine the very spirit and intention of the Convention'.

Barratt says, 'Regrettably, the Bill ... is at odds with these obligations. It permits us to facilitate the continued use of cluster bombs by non-signatories. It specifically permits foreign forces to base their cluster bombs here or to transit them through Australian territory. It also permits members of the ADF to assist in the use of cluster bombs in joint operations with foreign forces.' They're right.

There are two key disputed issues.

First, critics of the Government's bill point out that penal sanctions should apply to actions prohibited under the convention in two discrete situations — when the act is committed by a person under the jurisdiction or control of Australia, or when the act is committed on Australian territory even if the act is committed by a person not under the jurisdiction or control of Australia.

The Government's bill deals only with the first situation, and not the second. For example, a US plane or warship carrying cluster munitions could land in Australia while on a mission to use, transfer or stockpile cluster munitions. The Americans have no intention of signing the convention. They have no intention of surrendering their stockpiles of cluster munitions at this time.

In 2009, New Zealand, proud of its David Lange tradition and not so constrained by US alliance demands, legislated in very clear terms. Its Cluster Munitions Prohibition Act 2009 provides: 'This Act applies to all acts done or omitted in New Zealand.'

For strict compliance with the convention, our Parliament should do the same. Instead the Government's bill specifically provides that the stockpiling, retention or transfer of cluster munitions in Australia by 'a member of the armed forces of a foreign country that is not a party to the convention' using a base, aircraft or ship in the course of military operations with the ADF will not be an offence.

Second, the Australian bill excuses any Australian citizen or member of the ADF from any criminal liability in relation to cluster munitions if the act 'is done in the course of military cooperation with a foreign country that is not a party' to the convention.

Once again New Zealand has shown us how to legislate in strict compliance with the convention. Its 2009 law specifies the various offences relating to cluster munitions but then notes that a member of their armed forces does not commit such an offence 'merely by engaging, in the course of his or her duties, in operations, exercises, or other military activities with the armed forces of a state that is not a party to the convention'.

New Zealanders may still involve themselves in joint operations with the Americans but they are not permitted themselves to assist in any way with the use, transfer or stockpiling of cluster munitions.

The Australian Government wants to stretch the 'interoperability' envelope by exempting from criminal liability any act by an Australian serviceman 'done in the course of military cooperation or operations with a foreign country that is not a party to the convention'.

Courtesy of Wikileaks we now know that the Australian Government has been in cahoots with the US countering the efforts of 'hardline' countries like Germany and non-government organisations which have been seeking a comprehensive ban on cluster munitions. In the name of accommodating the US alliance, our Government is asking Parliament to scuttle the real significance of this convention.

Sadly, only the Greens have taken the point thus far. And on this issue, the Greens stand as the only party in the Parliament in full sympathy with the Holy See which upon its own ratification of the Convention stated:

Joint military operations do not imply, in any way, a suspension of the obligations under the convention. 'States parties, their military personnel or nationals' shall never engage in activities prohibited by the convention. On the contrary, joint military operations should be opportunities for states parties to promote the standards introduced by the new instrument with the objective to protect civilians during and after armed conflicts.

The major parties and the Independents owe us an explanation as to why the proposed Australian legislation should fudge the clear requirements of the convention, especially as New Zealand has done the necessary legislative drafting for us this time. If we are to ratify this convention, let's show our good faith and legislate appropriate penal sanctions. 

Frank BrennanFr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. 

Topic tags: Frank Brennan, cluster bombs, UN Convention on Cluster Munitions, signatory, greens, treaty



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Existing comments

Thankyou for exposing this. Bravo to the Holy See and New Zealand, but how is it possible to force America and Australia to uphold the requirements of the UN Convention on Cluster Munitions when they have clearly shown that they have no intention to ever do so?

Annabel | 04 May 2011  

This is an excellent piece of information! I had read the Wikileaks news, but wasn't aware that we had already passed a Bill in the House of Reps.

Nathalie | 04 May 2011  

Frank Brennan has raised an extremely important issue which should be of great concern to all of us. There would be many thousands of people, many of them children, who have lost their lives, or limbs, due to stepping on previously unexploded cluster bombs. Apart from the suffering, disability and continuing trauma, there is the cost of personnel to find and render harmless unexploded cluster bombs, the building and maintenance of hospitals, administrative staff, doctors, nurses, physiotherapists, etc. to provide prosthetics and rehabilitation. Frank Brennan is right. The only Party now with an ethical platform is the Greens Party. I don't agree with all their policies but both the Labor and Liberal Parties are simply pragmatic. They lack any ethical commitment. There would be many people, like me, who have turned to the Greens because I despair of the Labor Party. Rudd offered a vision of a better Australia and because of that was extremely popular, showing that Australians have a longing for good, ethical leadership. Both traditional parties need to be taught a lesson by us, the people of Australia, that we will not tolerate merely pragmatic governance.

Maureen Strazzari | 04 May 2011  

A very helpful analysis of classic government hypocrisy, both in the legislation itself and in the deal exposed by Wikileaks. Such cynicism is particularly evil when it involves terrible deaths and injuries to innocent people, particularly children. Pleased to see the Vatican adopting a leadership role in a matter that goes to the heart of Christ's teachings.

Peter Johnstone | 04 May 2011  

Cluster munitions have again been used this year, first by Thailand against Cambodia and then by Libya. I met the two men who had their arms blown off in preah Vihear and also the relatives of the two men killed by the cluster munitions.

Australia needs strong laws that prevent companies investing in Cluster munitions and prohibit Australia from assisting their use by USA or any other country. Rid the world of these weapons rhat have robbed my friends of eyes , arms legs and life.

denisecoghlan | 04 May 2011  

How odd that Australia sends troops out to war, killing other soldiers, and civilians, ad infinitum -and sanction the use of clusterbombs. Yet few of us see this as an issue except for Fr. Frank Brennan. When an ObL is attacked and killed though, misgivings appear aplenty. The Australian Government could begin to improve by recalling our troops in order to stop fighting fighting for peace, such an oxymoron.

Joyce | 04 May 2011  

Set aside the discussion on the effect of ratification on the “interoperability” of our troops with non-signatory parties, from Caritas Australia’s perspective, compliance with the Convention does not stop with refraining from the production, stockpiling and use of cluster munitions. In many of the countries where we work we are confronted with the scourge and enduring legacy of cluster ammunition. In inter alia Vietnam, Cambodia, Sri Lanka and Laos we experience firsthand the real costs of the continued use of these immoral weapons of war. That cost is not borne by our politicians, whom we may respectfully ask to deal with the potential back-lash of concerns around strategic alliances in theaters of war. Their concerns – if at all they exist - may ultimately prove to be of fleeting significance, as taking a principled stand on our adherence to the Convention will not in any credible way jeopardize the solidity of our countries’ allegiances and alliances. The real cost is borne by the communities who continue to suffer deaths, injuries, psychological and physical trauma long after the conflict is over. Interpretation of the terms of the convention requires, in our opinion, bearing in mind this wider context and longer term view.

Michael Peyra, Caritas Australia | 04 May 2011  

A principled – if concededly not always practical – stand on the issue would indeed see joint operations with non-signatory parties as an opportunity to pressure our allies into accepting a situation in which the terms of the Convention are unconditionally respected by all. From an advocacy point of view, the question we should ask ourselves is how we can promote, to our non-signatory allies, the spirit of the Convention if we ourselves do not adhere to it “to the letter”.

Alex Engel, Be More Campaign | 04 May 2011  

Once again, where's the public voice of the Australian Catholic hierarchy...so often missing in any real action?

Hopefully (excuse my hollow laughter) it's inclining itself to another injustice...the quite unlawful sacking of Toowoomva's Bishop Morris. I do hope that this Sunday's prayers of the faithful don't contain any further references to 'justice"...if they do and if I'm the reader, I might just have to ignore it.

Time to ponder those immortal words of one Pontius Pilate "what is truth?"

Brian Haill - Melbourne | 04 May 2011  

Thanks Frank for making bringing this issue to those who read this bulletin. We must do all that we can to see that Australia stops seeing our alliance with the USA more important than the terrible destruction caused by cluster bombs

Deirdre Gardiner | 04 May 2011  

Should we put Australian soldiers at risk of their lives in Afghanistan by forbidding them calling in US support in a critical situation in case cluster bombs were possibly to be used?

Saul | 04 May 2011  

It would make no difference if we did ratify the convention, it would go the way of all the others we promised to uphold - straight in the bin.

Rmmember when I said during the human rights hearings' "as the refugee convention is part of domestic law and we ignore it why would we take notice of a human rights act". No answer was ever forthcoming.

WE ratified the people smuggling protocol which exclude the movement of refugees, yet we jail anyone who gives refugees money or a ride and don't jail bosses who traffic workers as slave labour or fat old white men who traffic in sex slaves.

We are a stupid country Frank, we can't deny that anymore.

Marilyn Shepherd | 05 May 2011  

The clause committing never to “assist, encourage or induce anyone to engage in any activity prohibited to a State party” implies recognition of complicity in those who fail to do so, and would hardly seem open to ambivalent interpretation. If the Criminal Code Amendment (Cluster Munitions Prohibition) Bill permits storing transiting of cluster munitions on Australian territory, responsibilities under the Convention are clearly not met and this obviously then impedes ratification of the instrument. It can be argued that pressing forward with ratification despite appropriate amendments to the aforementioned bill would place the Australian government in the same class as Pontius Pilate.

Kirsty Robertson | 06 May 2011  

Yet another reason to be ashamed to be Australian.

Gavan | 06 May 2011  

The Australian Parliament’s Joint Standing Committee on Treaties (JSCOT) recommended “that the Australian Government and the Australian Defence Force (ADF) have regard to the following issues when drafting the legislation required to implement the Convention on Cluster Munitions, and when developing policies under which the personnel of the ADF operate: preventing inadvertent participation in the use, or assistance in the use, of cluster munitions by Australia.”

A fortiori, the legislation ought be drafted so as to prevent deliberate participation in the use, or assistance in the use, of cluster munitions by Australian personnel even if they be engaged in joint operations with personnel from a non-signatory country.

There is also a need to address the problem that JSCOT failed to consider: the additional treaty obligation that the use or assistance in use of cluster munitions be prohibited by all persons in Australian territory.

Frank Brennan SJ | 24 May 2011  

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