CMC Action Alert: Australia considers ban on cluster munitions
03 April 2007

[Read the Cluster Munition (Prohibition) Bill 2006. On 29 March 2007, the Australian Senate extended the reporting dates for the Cluster Munition (Prohibition) Bill-Foreign Affairs, Defence and Trade Committee-to report by 10 May 2007]

Mr. Thomas Nash
Coordinator
Cluster Munition Coalition:

"There have been some important developments in Australia recently and we need you to take action today.

On the international front, as it did not express an interest in participating, Australia did not attend the Oslo Conference on Cluster Munitions. However, we understand that Australia is considering participating in the Lima Conference in May. On the domestic front, as you may know there is a draft bill to ban cluster munitions before the Australian Senate at the moment. It is currently being considered by the Senate Committee on Foreign Affairs, Defence and Trade. Several Australian and international NGOs and IOs have made submissions to the Senate Committee. The Australian Department of Defence has made a submission to the Committee which opposes the bill for the reasons set out below.

Importantly, the Defence submission notes that Australia is “in the process of acquiring an advanced sub-munition capability for use against mobile armoured vehicles.” This acquisition would make Australia country number 76 on the list of states stockpiling cluster munitions. There is a need for Australia to make the case, based on some evidence, that the weapons it is considering buying do not pose the same risks as cluster munitions as we know them.

The Defence submission’s opposition to the bill is based on the following main points:

1.       The bill calls for a ban on cluster munitions and this is not consistent with any of the international proposals under discussion, such as those from ICRC or Norway which call for restrictions on use or bans on some kinds of cluster munitions.

2.       “Australia is presently involved in negotiations internationally on cluster munitions, including within the CCW” and this bill would prejudice the government’s position in these negotiations.

3.       Protocol V provides a substantial response to the problems of cluster munitions and this bill would appear to duplicate some of the obligations in that protocol.

4.       Because of its broad definition, the passage of the bill would prevent Australia from obtaining an advanced sub-munition capability and may prevent it from being able to obtain unmanned weapons systems.

5.       This would put Australia at a disadvantage against future adversaries and make it necessary to use higher yield, less accurate weapons which pose greater humanitarian risks.

6.       The bill would place imprudent limits on Australia’s ability to operate with partners in military operations, particularly in terms of calling in appropriate support from these partners during combat and gaining experience during planning of operations.

7.       The bill would not allow for Australian Defence Forces to retain cluster munitions for training in disposal or countermeasures.

Please take 5 minutes now to take action that could have an important impact on Australia’s policy on cluster munitions.

We need you to:

1. Write to the Senate Committee on Foreign Affairs Defence and Trade responding to the key points made above. Write in your own words and make sure you introduce yourself, why you feel strongly about this issue and what experiences you may have had with cluster munitions. You may also wish to express disappointment that the Committee did not feel the need to hear first hand from witnesses who have been involved in clearing cluster munitions in the field or have experienced first-hand the humanitarian impact. The address is: The Secretary, Senate Standing Committee on Foreign Affairs, Defence and Trade, Parliament House, Canberra, ACT 2600, Australia or by email to FADT.SEN@aph.gov.au or to the chair of the Committee, Senator Johnston, senator.johnston@aph.gov.au. For advice on how to respond to the points made above, see the CMC responses below.

2. Write to the following Members of Parliament in Australia drawing their attention to the draft bill and the Senate Committee deliberations and asking them to express their support for the draft bill:

The Hon Greg Hunt, Parliamentary Secretary to the Minister for Foreign Affairs, Greg.Hunt.MP@aph.gov.au

The Hon Robert McClelland, Shadow Minister for Foreign Affairs, R.McClelland.MP@aph.gov.au

Anthony Byrne, Parliamentary Secretary to the Shadow Minister for Foreign Affairs, Anthony.Byrne.MP@aph.gov.au

The Hon Joel Fitzgibbon, Shadow Minister for Defence, J.Fitzgibbon.MP@aph.gov.au

The Hon Graham Edwards, Parliamentary Secretary to the Shadow Minister for Defence, Graham.Edwards.MP@aph.gov.au (Mr Edwards lost both his legs to an anti-personnel landmine during the Vietnam War and has been an ally of the Australian Network to Ban Landmines on landmine issues)

3. Write to the Foreign Minister of Australia, The Hon Alexander Downer, Parliament House, Canberra, ACT, Australia, 2600 or A.Downer.MP@aph.gov.au with a copy of the Oslo Declaration available here: http://www.stopclustermunitions.org/news.asp?id=52 asking him to give Australia’s full support to the objectives of the declaration for a treaty by 2008 prohibiting cluster munitions that cause unacceptable harm and for the process of meetings outlined in the declaration.

4. Write to the Defence Minister of Australia, The Hon Brendan Nelson, Parliament House Canberra, ACT, 2600, or e-mail B.Nelson.MP@aph.gov.au asking him to explain why Australia is planning to procure cluster munitions at this time and to provide the criteria that will be used to ensure the ‘advanced submunitions’ Australia is planning to procure do not pose the same risk to civilians as other cluster munitions.

CMC responses to the points in the Defence Submission:

1.       The Oslo declaration calls for a prohibition on “cluster munitions that cause unacceptable harm to civilians”. While it could be argued that some weapons currently known as cluster munitions do not cause unacceptable harm to civilians, it is up to governments to prove this by demonstrating conclusively that a particular weapon system does not cause unacceptable harm. The overwhelming humanitarian evidence is that these sorts of weapons inherently pose unacceptable risks to civilians and that is why governments agreed in Oslo to work towards a prohibition by 2008.

2.       In fact Australia has not been involved in negotiations internationally on cluster munitions, because the Convention on Conventional Weapons has only been engaged in discussions on cluster munitions and only as part of a broader working group on explosive remnants of war. Belgium has banned cluster munitions nationally 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.

3.       Protocol V does not provide an adequate response to the problems of cluster munitions, since it is limited to the post-conflict context and does not cover their indiscriminate effects during attacks and allows for the use of cluster munitions to continue. Moreover, although the provisions of Protocol V are binding on all States Parties, there is no mechanism to enforce compliance. 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 UXO and assistance to survivors and affected communities.

4.       The definition is broad and would capture certain advanced weapons systems such as the sensor-fuzed weapon, but it is the responsibility of the government to provide evidence that the ‘advanced sub-munition capability’ that it is seeking does not pose a serious humanitarian problem. What studies, tests and evaluations have been undertaken regarding the potential humanitarian risks of the advanced sub-munition capability? Has a review been or is one being undertaken of this new weapon in accordance with article 36 of Additional Protocol I of the Geneva Conventions?

5.       What evidence can the government provide to substantiate the claim that the use of a 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? It is not the case that the only military alternatives to cluster munitions pose greater risks to civilians – other alternatives exist, including precision-guided weapons. In any case an attack with cluster munitions that would be illegal because it is indiscriminate during and after attacks cannot be replaced by an attack with another weapon that would be even more indiscriminate and thus also illegal.

6.       As a partner in military operations, Australia should be setting an example based on its commitment to humanitarian law that weapons that pose unacceptable consequences for civilians should not be used. Australia should use its influence as a coalition partner to stigmatise the use of cluster munitions, to prevent them being deployed by other partners. This would mean that no imprudent limits would be placed on Australia’s ability to operate in military coalitions.

7.       The bill could easily be amended to allow for Australian Defence Forces to retain cluster munitions for training in disposal or countermeasures, although the numbers retained for training would need to be very limited.

If you are interested in the “advanced submunition capability” that the Australian Defence submission refers to, one example of an advanced submunition capability can be viewed here: http://www.youtube.com/watch?v=THZvZ6S4C14. Scanned documents providing information on the sensor-fuzed weapon are available here: http://www.stopclustermunitions.org/files/SFW%20CBU-97B%20Jane's.pdf and http://www.stopclustermunitions.org/files/SFW%20Bofors%20Giat%20Industries%20155mm%20Jane's.pdf. For more analysis of the sensor-fuzed weapon please see the recent Landmine Action paper at: http://www.stopclustermunitions.org/files/A%20sensor%20fuzed%20solution.pdf.

Finally, if you want to see a clip of the Senator that tabled the draft bill talking about the bill visit:

http://www.youtube.com/watch?v=4o2TXbGW7Sw

More video clips like this are available here: http://www.stopclustermunitions.org/dokumenti/dokument.asp?id=100"

--Thomas Nash
Coordinator
Cluster Munition Coalition
www.stopclustermunitions.org