The following opinion piece written by me appeared in the Monday 2 May edition of The Age:
We must do more to help rid the world of these foul weapons
May 2, 2011-05-12
Legislation on cluster bombs puts our troops in an ambiguous position.
The Senate is about to consider legislation to ratify Australia's accession to the United Nations Convention on Cluster Munitions. Regrettably, the legislation is far too weak.
Cluster munitions are weapons that open in midair and disperse smaller bomblets - anywhere from a few dozen to hundreds - into the target area. They are valued militarily because one munition can kill or destroy many targets within its impact area, and fewer weapons systems are needed to deliver fewer munitions to attack multiple targets.
The fundamental criticisms of cluster munitions are that they disperse large numbers of submunitions imprecisely over an extended area, and that they frequently fail to detonate.
Bomb disposal experts have found that the failure rate can be as high as 30 per cent of the bomblets in the cluster. The unexploded bomblets are difficult to detect, and can remain widely dispersed explosive hazards for decades.
Australia played an active role in the negotiation of the UN Convention, and signed it on December 3, 2008, the day it was opened for signature. The convention became binding international law for states parties on August 1 last year. The legislation now before the Parliament is designed to give effect to our obligations by creating new criminal offences for Australians who behave in ways at odds with the convention.
The United States regards cluster munitions as militarily useful, has no intention of eliminating them from its arsenals, and has no intention of joining the convention. This creates a balancing act for the Australian government. We want to ratify the convention, but we want also to continue to engage in joint military operations with our non-signatory major ally.
The convention tackles this issue with inter-operability provisions that enable states parties to continue to operate with non-signatories to which they are allied.
Those provisions, however, are heavily restricted by the convention's categorical prohibitions not to develop, produce, otherwise acquire, stockpile, transfer, use or expressly request the use of cluster munitions. They are restricted also by the positive obligations to promote the norms the convention establishes, to notify non-signatories of our obligations under the convention, to encourage them to join the convention, and to make best efforts to discourage them from using cluster munitions.
Regrettably, the bill before the Senate is at odds with these obligations. It permits us to facilitate 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 Australian Defence Force to assist in the use of cluster bombs in joint operations with foreign forces.
Human Rights Watch and Harvard Law School's International Human Rights Clinic told the Senate committee inquiring into the legislation that it could be interpreted to ''allow Australian military personnel to load and aim the gun, so long as they did not pull the trigger''.
Remarkably, the legislation also flies in the face of a recommendation of the Joint Standing Committee on Treaties and permits Australian entities to invest in the companies that produce these munitions.
Legislation in these terms is clearly at odds with a convention whose central purpose is to prevent the use of cluster munitions and ensure the destruction of all national stockpiles, and which imposes on all parties obligations both to encourage non-signatories to join and to discourage them from using cluster munitions.
Eliminating the use of cluster munitions is a vital humanitarian concern. The scourge they represent is illustrated by Laos, the most bombed country in history on a per capita basis. From 1964 to 1973, about 270 million cluster submunitions were dropped on Laos.
Estimates of the numbers of bomblets remaining in Laos vary. The relevant Laotian government agency estimates the country is host to 80 million as yet undetected bomblets. They are in every province, and 25 per cent of Laotian villages are contaminated by unexploded ordnance, 37 years after the end of the fighting. Three hundred Laotians a year are killed or maimed by them. Forty per cent of the victims are children, usually performing livelihood activities such as tending animals.
At the current rate of clean-up of these munitions it will take another 3000 years to render Laos safe. More than half the population of this at-risk country was born after the conflict ended, but they must still endure its consequences.
In signing the convention on cluster munitions, Australia has agreed with a proposition in the preamble that we are ''determined to work strenuously towards the promotion of its universalisation and its full implementation''.
If we are serious about that, we will need to do much better than the bill now before the Senate, and will need to pursue much more active diplomacy to bring about the worldwide elimination of cluster munitions.
Paul Barratt is a former secretary of the Department of Defence and deputy secretary of the Department of Foreign Affairs and Trade.