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Australian Democrats dissenting report
The Australian Democrats want a ban on cluster bombs for use
in the Australian Armed Forces and reject the Committee's findings that the
newer self-destruct munitions should be exempt from any ban. Evidence shows
that these weapons still carry serious failure rates and cause unacceptable
humanitarian harm.
The Democrats are disappointed that the Department of
Defence not only opposes the prohibition on all cluster munitions, as set out
in this bill, but also that it will, for the first time in history, acquire
submunitions for operational purposes. We consider that this will diminish Australia's
capacity to persuade other countries to take seriously the impact of cluster
munitions on civilians. In a submission to the Committee’s inquiry, the Medical
Association for Prevention of War said:
A major reason for calling for the prohibition of all cluster
munitions is that such a call has a clear focus, purpose and demand. It cannot
be mounded to fit around policies that violate its central humanitarian
concern, and it does not rely on regulations relating to the way in which these
weapons may be used.
It is possible that, in the process of banning all cluster
munitions, some weapons from this class that pose less risk to civilians than
others will be prohibited. However, we ask: Is this not a better outcome than
another distinct possibility – prolonged discussions over precisely which
technical characteristics will be allowed and how a regime of regulation will
be enforced, with ongoing attempts on the part of nations to exploit loopholes,
while the inevitable consequence of civilian casualties continues unabated.[1]
We thank the Senate Standing Committee on Foreign Affairs,
Defence and Trade for its work in inquiring into the Cluster Munitions
(Prohibition) Bill 2006 but disagree with a number of the findings and
recommendations of the majority report and, in some cases, the use of evidence.
Appended to this report are Chapters 2 and 5, marked to show
the changes in reporting on the evidence that we consider ought to be made.
The inquiry was timely given the huge humanitarian cost to
the civilians of Lebanon last year after more than a thousand cluster bombs
were dropped, leaving the country littered with more than a million bomblets
devices, high numbers of which will go on to kill and maim civilians on a
regular basis.
The Committee was also reminded in the submissions that
cluster bomb use in Iraq, Afghanistan and even in conflicts many decades ago
in, for instance, Vietnam and Cambodia remain a serious threat.
On 7 November 2006, the UN Secretary-General called on
States Parties to the Convention on Certain Conventional Weapons to
'immediately address the atrocious, inhumane effects of cluster munitions at
the time of their use and long after conflict ends' and to 'devise effective
norms that will reduce and ultimately eliminate the horrendous humanitarian and
development impact of these weapons’.[2]
UNICEF Australia said unexploded cluster bombs left over
from conflict violate a number of articles of the Convention on the Rights of
the Child, including those which relate to a child's right to life, to a safe
environment in which to play, to health, to clean water, to sanitary conditions
and to adequate education.[3]
The inquiry was also opportune, given the developments in
introducing an international agreement on prohibiting or limiting the use of
cluster munitions.
For these reasons, the Democrats consider that a public
hearing would have been appropriate. Submitters were given the opportunity to
make supplementary submissions commenting on the DoD submission, which was
useful but a poor substitute for direct questioning.
We also question the selective use of evidence, both from
submissions and from a wide range of Internet-sourced documents, to support the
case that advanced, self-destruct munitions had been developed that
substantially reduce the impact on civilians and should be exempt from any ban.
We do not consider the position on either the limited ban or
the acquisition of submunitions to have been justified and focus in this report
on the arguments advanced by the Department of Defence (DoD).
The Department of Defence case
Submissions challenged the DoD claim that the Australian
Government 'shares domestic and international concerns about the humanitarian
hazards ... and ... is working actively to ameliorate these effects’. They said
that this statement did not in any sense convey that concern, pointing out that
98 per cent of the victims of cluster munitions are civilians and 27 to 70 per
cent of those were children. MAPW challenged the notion that the humanitarian
problem could be attributed to just ‘some' cluster munitions, saying the
humanitarian problem reflected the nature of cluster munitions as a
non-discriminatory class of weapons.[4]
Challenged too were DoD's claims that cluster munitions were
'acknowledged as having legitimate military utility' and that 'hazards arise as
a result of their inappropriate use'.[5]
ANBL and the Synod of Victoria and Tasmania reminded us that
similar arguments were advanced prior to the development of the Convention on
the Prohibition of Anti-Personnel Mines. Countries said that it was only as a
result of inappropriate use that they may have breached principles of
International Humanitarian Law.
This argument applies to most Conventions, including much of IHL
itself, as it is only after the new instrument comes into force that a new
definition of legality applies. Of course moral, ethical and humanitarian
considerations remain unchanged both pre and post introduction of the legal
instrument.
However, it remains the view of the ANBL and the Synod of
Victoria and Tasmania that the design of many cluster munitions makes them,
like anti-personnel landmines, open to easy misuse with consequences that leave
a legacy that in some cases lasts for decades.[6]
MAPW argues that persistent attempts to portray the
humanitarian hazards of cluster munitions as an aberration rather than the norm
was disingenuous.
Arguments that propose how cluster munitions could be used more
humanely may be theoretically attractive but the difficulty is that they do not
reflect reality .... Handicap International's stance in favour of a total ban on
cluster munitions ... stems not from IHL but from the experience of its staff
working in areas affected by cluster munitions.
International negotiations on
cluster munitions
DoD argued that domestic legislation such as this bill may
restrict and/or compromise Australia's position in international forums,
particularly the Convention on Certain Conventional Weapons. It argues too that
the Conventional Weapons Convention and its five protocols did not require domestic
implementing legislation and that none of the current international initiatives
went as far as this bill in banning cluster munitions.
MAPW called this alarmist and said it was 'not supported by
examples of situations where a nation has taken a principled stand to uphold
the welfare of civilians and suddenly been deprived of forums in which to
promote its stance. In fact forums can be created, as the Norwegian Government
has done on the issue of cluster munitions, and as the Canadian Government did
extraordinarily successfully with the issue of landmines.'[7]
Mines Action Canada pointed out that Belgium banned cluster
munitions and Norway and Austria have national moratoria in place, yet these
national steps have not affected their ability to play strong, constructive and
leading roles in international negotiations on cluster munitions.[8]
Dr Ben Saul argued that 'it does not follow that freedom
to negotiate in international forums should trump considerations in favour
of an immediate domestic legislative response. Domestic legislation may play an
important role in shaping the international response.'
DoD argued that international talks included initiatives
such as preventing cluster munitions from being used near concentrations of
civilians. MAPW dismissed this saying 'it was difficult to imagine a location
that is both of military significance and is also absolutely devoid of adjacent
civilian populations or any agricultural or other purpose’.[9]
For all its concern about the provisions of this bill
restricting our position in international negotiations, Australia did not take
part in the Oslo Conference on Cluster Munitions on 22-23 February 2007. The
conference was open to all states and attended by 46 governments. It aimed to
stimulate further international regulation of cluster munitions, in response to
the failure of the 2006 Convention of Conventional Weapons conference to agree
on such regulation and agreed to:
- Conclude by 2008 a legally binding international instrument that will:
- prohibit the use, production, transfer and stockpiling of cluster
munitions that cause unacceptable harm to civilians, and
- establish a framework for cooperation and assistance that ensures
adequate provision of care and rehabilitation to survivors and their
communities, clearance of contaminated areas, risk education and destruction of
stockpiles of prohibited cluster munitions
- Consider taking steps at the national level to address these problems.
- Continue to address the humanitarian challenges posed by cluster
munitions within the framework of international humanitarian law and in all
relevant for a.
- Meet again to continue their work, including in Lima in May/June and Vienna
in November/December 2007, and in Dublin in early 2008, and welcome the
announcement of Belgium to organise a regional meeting.
Of the 46 countries that attended and signed up to the
declaration, 17 have also produced cluster munitions, including the UK, Sweden,
Switzerland, Spain, South Africa, Netherlands, Italy, Germany, France, Egypt,
Canada, Belgium and Argentina.
The second meeting of the Oslo Process, in which Australia
did participate, took place in Lima, Peru, from 23 – 25 May 2007. Human Rights
Watch rightly criticised Australia and a small number of other states for
promoting the exemption of large categories of submunitions from the ban.
Protocol V and Explosive Remnants
of War
DoD argued that Australia agreed to be bound by Protocol V
to the Conventional Weapons Convention on 4 January 2007 obliging it to:
mark, clear, remove or destroy, explosive remnants of war
present in its territory; record, retain and transmit information regarding use
of explosive ordnances; and take precautions for the protection of civilians
and humanitarian missions.
Protocol V also contains a technical annex which sets out
voluntary measures for States producing or procuring munitions to ensure that
reliability standards are maintained. States are encouraged to undertake
generic preventative measures, including but not limited to, manufacture,
testing, management and training in order to reduce the failure rates of
explosive ordnance.[10]
DoD argued that the entry into force of Protocol V made
aspects of the bill unnecessary.
MAPW pointed out that Protocol V is limited to setting out
the responsibility to clear ERW after weapons have been used. The Protocol does
not cover the indiscriminate effects of cluster munitions during attacks and
leaves civilians vulnerable until they are cleared. This can take years and
there is no certainty that all will be cleared. MAPW cited the case of Lebanon,
where villagers and farmers were being mutilated or killed at an average rate
of 2-3 per week. Furthermore, maps provided by Israel lacked the necessary
detail to expedite cluster bomb clearance.[11]
According to Mines Action Canada the provisions of Protocol
V are binding on all States Parties, although there is no mechanism to enforce
compliance and a new cluster munition treaty would not duplicate existing
obligations.
Rather its obligations to provide assistance and protect
civilians from the post conflict threat would be complementary, would reinforce
existing and emerging international standards of practice and would be
integrated into national practice on clearance of mines and USO and assistance
to survivors and affected communities. Many countries which have ratified
Protocol V have also signed the Oslo Declaration.[12]
Dr Saul advises that the 2003 Protocol V on Explosive
Remnants of War (under the 1980 Convention on Conventional Weapons) encourages
(but does not require) countries to 'examine ways and means of improving the
reliability of explosive ordnance that it intends to produce or procure, with a
view to achieving the highest possible reliability (article 9 and annex).
International Humanitarian Law
DoD pointed out that cluster and submunitions are not
illegal per se under any arms control agreement or International Humanitarian
Law but are governed by the principles of International Humanitarian Law
requiring parties to a conflict to distinguish between civilian and military
objectives and prohibiting parties from launching an attack which may be
expected to cause incidental loss of life, injury to civilians, damage to
civilian objects or a combination thereof, which would be excessive in relation
to the concrete and direct military advantage anticipated by such an attack.
Dr Ben Saul advises that:
Humanitarian law does not expressly prohibit cluster munitions,
which are subject to the ordinary rules on the means and methods of warfare. In
some cases, the use of cluster munitions will comply with the principles of
distinction, discrimination, proportionality and necessity; for example, where
they are used against massed enemy formations in areas which are clearly
distinguished from civilian populations and civilian objects.
While they are not inherently indiscriminate, cluster munitions
may be unlawfully indiscriminate if they are used in contexts where they
'cannot be directed at a specific military objective' or where their 'effects
cannot be limited to military objectives as required (1977 Additional Protocol
1, art 51(4)(b) and (c))
... Internationally, serious concerns have been raised about the
effects of cluster munitions on civilians in conflicts in Laos, Cambodia, Vietnam,
Afghanistan, Iraq, Kuwait, Chechnya, the former Yugoslavia and Kosovo, and
southern Lebanon. The general rules of humanitarian law do not appear to have
been successful in constraining serious harm to civilians by cluster munitions,
not least because of the dispersal of large numbers of sub-munitions, over
large areas, for prolonged periods.[13]
The Democrats make the point that International Humanitarian
Law has, in conflict after conflict and for decades, has been unable to deliver
on many of its laudable objectives. Australia, whilst not armed with cluster
munitions, is a party to the various conventions, protocols and treaties under
International Humanitarian Law but has nonetheless operated alongside other
forces in some of these conflicts where almost all the victims of these weapons
have been civilians.
Capability Considerations
DoD advised it was in the process of acquiring an advanced
submunition capability for use against mobile armoured vehicles and argued that
these were more discriminating than older generation cluster munitions
technologies that were unreliable, lacked autonomous target detection and
usually included a large number of small, low yield, ‘dumb’ bomblets that have
the potential to become ERWs.
According to DoD each of these advanced munitions would
possess a capacity for autonomous target detection and would self-destruct or
self-neutralise (not detonate) if a target is not found. They were efficient
methods of attacking identified and specific targets at a greater range and
with less consequent risk to the attacking force and third parties than would
otherwise be possible. A ban on all submunitions would mean our forces would
need to rely on existing weapons which may have a higher yield, lower accuracy
and attendant risks to deployed ADF personnel, civilians and civilian objects,
which the DoD argued was at odds with the intention of the bill.
Mines Action Canada challenged this claim saying no evidence
had been put forward that would substantiate the claim that the use of specific
weapon system would have posed greater humanitarian risks in a specific
situation in a specific conflict had cluster munitions not been available for
use.[14]
DoD said an emerging trend in capability development was for
systems which integrate small weapons into larger autonomous delivery vehicles,
avoiding the need for 'manned assets' (such as aircraft) to have to penetrate
defended territory.[15]
MAPW pointed out that whilst weapons are supposedly rendered
more accurate, technological advances have not delivered a commensurate
reduction in the civilian cost of warfare. They cite battlefield conditions
being very different from testing environments and say that whether or not
cluster bombs explode on impact with the ground depends on a number of factors
such as delivery technique, the age of the munitions, the air temperature, the
type of ground and whether they get caught in trees or other vegetation.
Even "self-destruct" mechanisms fitted to cluster
munitions can and do fail. This was confirmed for MAPW by Handicap
International in Lebanon, whose experience is that the M85 cluster bombs fitted
with self-destruct mechanism can fail. (Both variants of the M85 with and
without self-destruct mechanism were used in Lebanon.)[16]
MAPW also pointed that technologically advanced weapons are
almost invariably more expensive than older weapons and this limits their use
greatly. China and Russia have indicated that they would not replace all their
submunitions and the US permits use of older, less ‘reliable’ stock.
Israel used American-made cheap cluster munitions against the
people of Lebanon despite the fact that Israel Military Industries produces
cluster bombs with a lower failure rate, and the decision to do so was made
purely on economic grounds.[17]
The subject of submunitions failure rates was central to
this inquiry and terms used were often misleading, particularly the distinction
drawn in the majority report between so called hazardous and non-hazardous submunitions.
Israel Military Industries claimed the 'proven hazardous
rate of their M85 cluster device was 0.06 per cent'. IMI did not support this
claim with details of the testing regime that delivered this finding but,
importantly we understand from Mr Colin King, the de-miner from the UK,
referred to in Chapter 2, clause 2.30, that this failure rate relates to those which
failed to detonate on impact and also failed to self-neutralise.
Leaving aside the contestable question of the reliability of
these tests in simulating operational conditions, submissions argued that what
makes these devices with 'self-destructing' or 'self-neutralising' mechanisms
so dangerous is the relative ease with which they can be de-activated by
handling or impact. This is discussed further in Chapter 2.
It is for this reason that we understand the meeting on
cluster munitions in Lima last week, 70 states, including Australia, agreed to
no longer use those terms and at this and the Montreux conference in April a
strong case was made that self-destruct mechanisms alone cannot be seen as the
answer to ending the humanitarian impacts of cluster munitions.
Operational Issues
DoD advised that the prohibition in the bill on engaging in
military preparations to assist a member of the defence force of another
country to use cluster munitions would create excessive operational
difficulties and that Australia placed a premium on interoperability between
our forces and those of our allies, a capability that helps us to achieve an
advantage over adversaries in a conflict.
Dr Saul recognised that interoperability of coalition forces
was vital:
However, it is of some concern that Defence is seeking to exempt
from liability Australian personnel who assist an ally to use (what would be)
unlawful weapons under domestic law. By way of analogy, it would be neither
'imprudent' nor productive of 'excessive operational difficulties' to require
ADF personnel to refrain from assisting an ally to use forbidden chemical or
biological weapons, or to commit unlawful reprisals against the civilian
population of an adversary.
In different contexts, ADF personnel already operate under rules
of engagement which differ from those of coalition partners. The ADF may also
take different approaches to its allies in matters of targeting,
proportionality and other issues of legal interpretation and assessment. In
this light, if the Parliament (or an international treaty to which Australia
becomes party) requires ADF members to refrain from assisting in the use of cluster
munitions, interoperability is not a relevant consideration.[18]
Austcare argued that 'Australia should use its influence as
a coalition partner to stigmatise the use of cluster munitions which cause
unacceptable humanitarian harm. Moreover, the ADF is able to work successfully
with a number of nations not signatory to other arms control conventions,
including the United States’.[19]
Regulation, if not complete prohibition
Whilst many submissions were in favour of a complete ban on
submunitions, some like the Australian Red Cross’s submission also urged the
committee to consider, as a minimum fallback, restrictions on the use of
cluster munitions such that they could only be used in a manner consistent with
the legal principles outlined in International Humanitarian Law which would
require, at a minimum:
- a prohibition on the use of Cluster Munitions in situations where the
military target is co-located with civilians or civilian sites, or facilities
essential to the survival of the civilian population (including arable land);
- a significant decrease in the failure rate of submunitions;
- the inclusion of reliable deactivation mechanisms for unexploded
submunitions
- appropriate rules for the mapping, marking and subsequent
deactivation/removal of unexploded submunitions and,
- other requirements that would fully implement all of Australia's
obligations under Protocol V of the Convention on Certain Conventional Weapons.[20]
Dr Saul does not support an absolute prohibition on the use
of cluster munitions but argued that the inability of existing humanitarian law
to limit civilian casualties from cluster munitions justified further
regulation. Most of his recommendations, as follows, correlate with those made
by the Norwegian Government as part of its sponsorship of the inter-governmental
Oslo Conference on Cluster Munitions this year:
- prohibit the use of cluster munitions in or near civilian population
areas
- prohibit cluster munitions which have indiscriminate effects due to
their mode of delivery or pattern of dispersal
- prohibit cluster munitions which have high failure rates (more than 1%,
whether in relation to exploding, self-destructing or self-neutralizing);
- prohibit the development, production and transfer (by any means and to
any actor) of such cluster munitions;
- destroy stockpiles of such cluster munitions
- record the location of areas in which cluster munitions are used, and
disseminate such data to assist in clearance of unexploded munitions and in
community education about the dangers of unexploded munitions;
- provide for the compensation of non-combatants injured by cluster bombs
used by Australian armed forces, whether upon impact or by subsequent
detonation of unexploded munitions.
ANBL suggested that:
Should the Committee wish to accommodate the desire of the Department
of Defence to acquire advanced submunitions while implementing the Cluster
Munitions (Prohibition) Bill 2006, a way forward would be an amendment to
the Bill that allowed for a schedule of 'advanced' submunitions that were
exempted from the Bill by virtue of meeting standards that ensured that the
submunitions would not cause unacceptable harm to civilians. Such a Bill would
then appear consistent with the broad intentions of the declaration that came
out of the Oslo meeting in February.
The classification of such submunitions as exempted from the Bill
should be subject to rigorous standards backed up with thorough independent
testing in realistic conditions. Failure rates in terms of 'live duds', claimed
by manufacturers are often those under ideal conditions of hard flat ground and
optimal deployment of the cluster munition.
The ANBL and Synod of Victoria and Tasmania also would not
oppose a tightening of the definitions in the Bill to ensure that it only
covers cluster munitions and unmanned weapon systems as outlined in paragraphs
21 and 22 of the Department of Defence submission.[21]
The Democrats recommend that the Cluster Munitions
(Prohibition) Bill 2006 is passed without amendment but we remain open to
further discussion and negotiation to deliver on the stated purpose of the bill
– to ensure that innocent civilians in conflict zones are not maimed, killed or
put at risk as a result of Australians possessing, using or manufacturing
cluster munitions or being involved in any way in the deployment of cluster
munitions by the defence forces of other countries.
SENATOR LYN ALLISON
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