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Appendix 2 - Questions for the Department of Defence
1.
Paragraph six of the Defence submission, relating to current
international negotiations on cluster munitions notes that:
Australia is presently involved in negotiations internationally
on cluster munitions, including within the Conventional Weapons Convention. It
is not possible at this stage to predict the likely outcomes of these
negotiations and if domestic legislation is enacted, our negotiating position
in international forums may be prematurely restricted and/or compromised. We
also note that none of Australia’s current obligations under the Conventional
Weapons Convention and its five Protocols have required domestic implementing
legislation.
The international humanitarian law pertaining to use of cluster
munitions, the adverse humanitarian effect of these weapons, the international
positions of various countries such as in the Conventional Weapons Convention
and the positions of non-government humanitarian organisations are all well
known. Noting that although domestic legislation may not be necessary and that
other countries have undertaken unilateral measures:
- Could the bill be amended to conform to Australia's international
position?
- Is the Australian Government's position in international fora firmly
established or is it still evolving?
2.
Paragraphs 16-18 delineate the ADF's ambitions to acquire an advanced
submunition weapon system, noting:
The ADF does not presently use or produce cluster munitions.
Defence is, however, in the process of acquiring an advanced sub-munition
capability for use against mobile armoured vehicles. Such advanced
sub-munitions, when properly used, have a lower risk of adverse humanitarian
effects than older generation cluster munitions, but would potentially be
captured by the terms of the proposed Cluster Munitions (Prohibition) Bill. The
Bill defines ‘cluster munition’ very broadly in Section 6(1) to include all
munitions which deploy ‘one or more sub-munitions’. The passage of this Bill
would, therefore, prevent the ADF from obtaining an advanced sub-munition
capability.
Older generation cluster munitions technologies are unreliable,
lack autonomous target detection, and usually include a large number of small,
low yield, “dumb” bomblets. Such cluster munitions, by virtue of their
unreliability, also have the potential to become Explosive Remnants of War.
In contrast, modern, advanced sub-munitions, are more
discriminating because they are designed to be effective against specific
targets, such as armoured vehicles, while minimising anti-personnel effects.
They also have small numbers of sub-munitions – usually less than ten, and
sometimes as few as two. In addition, each sub-munition possesses a capacity
for autonomous target detection and will self-destruct or self-neutralise (not
detonate) if a target is not found. Advanced smart sub-munitions are more
reliable than older cluster munitions and are an efficient method 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.
Their self-destructing and self-neutralising capability also means that they
pose less of a threat to civilians as an explosive remnant of war.
These paragraphs note that Defence is in the process of
acquiring an 'advanced sub-munition capability' and then proceed to describe
the generic attributes of these kinds of weapons.
- Will the specific 'advanced submunition' weapon system to be
acquired by Defence possess technical criteria related to this generic class designed
to minimise impact on humanitarian populations, such as low failure rates,
precision guided capabilities and self-destruction requirements?
- If so, which attributes?
- What such criteria is used in the acquisition of submunition
based weapon systems, noting that Defence may also pursue new, similar emergent
technologies?
3.
Paragraphs 23 and 24 denote Australia's requirement to comply with
international humanitarian law and the elements of the bill that would prohibit
engagement with foreign forces in the planning for use of cluster munitions.
These indicate:
All ADF personnel are required to adhere to Australia’s
international obligations and domestic law including the principles of
International Humanitarian Law, with particular regard to special consideration
of the principle of proportionality. ADF personnel would also have to comply
with Australia’s obligations as a State Party to Protocol V of the Conventional
Weapons Convention relating to minimising the risks and effects posed by explosive
remnants of war.
Sections 11 and 12 of the Bill prohibit a member of the ADF
intentionally engaging ‘in military preparations to assist a member of the
defence force of another country to use cluster munitions, container units or
sub-munitions’. This would create excessive operational difficulties.
- Considering the overall, global trend of past use of cluster
munitions has had little consideration for civilian populations, would
Australian involvement with planning cluster munitions use result in a greater
consideration for their humanitarian impact than otherwise would be the case?
4.
Paragraphs 26 and 27 note the potential impact of exclusion of the ADF
from command situations due to this constraint on involvement with cluster
munitions. These sections state:
When ADF commanders and personnel are integrated into coalition
task forces, they would be likely to be employed in planning and conducting
operations, including offensive support. In these instances, the ADF officers
may need to call on coalition support in circumstances in which the coalition
unit that responds determines the types of weapons to be used. This may include
cluster munitions, as defined by the proposed Bill. If the Bill were to be
adopted, ADF personnel would be either unable to call in appropriate support or
exposed to prosecution under the Bill.
The Bill would compromise the ADF’s ability to contribute
personnel to Coalition Headquarters where the use of cluster munitions and
advanced sub-munitions may be incidentally planned. Should this Bill become law
it would add significantly to the scope of restrictions and inhibitions on
Australian personnel and reduce the effectiveness of their contribution to
coalition headquarters.
- Noting that Part 2 of the bill, relating to the offences, only
considers activities related to cluster munitions to be offences when they are
'intentional', would inadvertent support to cluster munitions operations, such
as when the responding unit determines the weapons used, result in a breach of
the bill?
- Have or are Australians routinely involved in military
preparations for cluster munition use with allied partners?
- If Australian personnel were in command situations and unable to
call in cluster munition support, what would be the effect on the troops in these
situations and would they be at greater risk?
5.
Paragraph 31 notes that the ADF needs to develop countermeasures to
adversaries' use of various weapon systems including cluster munitions. It
indicates:
Were Australia to be involved in a conflict with another State
that had cluster munitions in its inventory, the ADF would need countermeasures
against those munitions. In fact, Defence currently holds some inert cluster
bombs and inert cluster munitions for the purposes of training explosive
ordnance specialists in the identification and disposal of such ordnance. While
section 14 of the Bill allows work to be done for rendering cluster munitions
safe, it does not permit the acquisition of cluster munitions for research or
training purposes, and section 17 of the Bill requires all cluster munitions
held by Defence to be destroyed. The Bill makes no exception for using,
producing or stockpiling cluster munitions purely for the purpose of developing
such countermeasures. Part 3 does not address this concern.
- Do the countermeasures simply refer to the training for removal
of cluster munitions as explosive remnants of war, or do they refer to a wider
array of research and system development?
- If this refers simply to training for removal of cluster
munitions as explosive remnants of war, would that be covered by the existing
defences in Part 3 of the bill pertaining to conduct related to clearing
submunitions?
- If not, why not and how could the existing language be amended to
remedy this situation?
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