Why the Fuss About Cluster Bombs?
No war is pretty and no weapon is gentle on its victims. What distinguishes cluster munitions from the usual run of the mill weapon is that they fall into a category called “legacy weapons”. Legacy weapons are those weapons which continue killing indiscriminately for years after a conflict ends.
Cluster munitions consist of a canister which opens to release hundreds of small bombs designed to detonate on impact. They can be dropped from an aircraft or launched from the ground. Once released into the air they are at the mercy of the wind and weather and thus are inherently inaccurate. Some explode in mid air, throwing others off course. The terrain they land upon also affects detonation. Falling into foliage, rice paddies or soft sandy soil may mean that they do not detonate on impact as intended. Unlike landmines which do not begin the detonation process until disturbed, cluster bombs have already begun this detonation process, which has stalled at some stage. They are thus highly unstable and unpredictable. The only predictable thing about them is that they will remain “live” and able to cause death and injury for decades after a conflict has ended. In Laos, to take just one example from many, there are still around 78 million unexploded cluster bombs which remain from a war that ended 37 years ago. These bombs claim victims on a near daily basis.
The most commonly quoted statistics used internationally are that civilians make up 98% of the victims of cluster bombs and up to one third of these are children.
Is there good news? Both Yes and No.
The good news is that there is now an international treaty to ban these horrendous weapons. It is called the Convention on Cluster Munitions, and it opened for signature in Oslo in December 2008.
Australia was one of ninety-four countries to sign the treaty at that time, committing itself to comply with the treaty’s aims to eradicate cluster bombs and end for all time the suffering they cause. One hundred and nine countries have now signed, but in reality this is only the first step. Signatory nation must take the further step of ratification before they are irrevocably bound by the treaty’s obligations. Fifty-nine countries have now taken this step and become what are called States Parties. Countries joining the treaty since it entered into force in 2010 (and became legally binding on States Parties) now sign and ratify in one step called Accession.
In Australia, domestic legislation must be enacted for us to ratify the Convention. Draft legislation has been prepared and has passed the House of Representatives with bi-partisan support.
However, now comes the bad news. The proposed legislation comes with its own set of built in loopholes which serve to dilute Australia’s obligations. Campaigners and human rights organisations believe that the interpretation given by the government allows for actions which neither reflect nor implement the intent of the treaty. This interpretation allows Australian forces to assist in the use of cluster bombs by an ally that is not party to the Convention (in practice, the USA). This is known as interoperability. Earl Turcotte, who was the chief Canadian negotiator during the treaty process and who was the principal author of the relevant interoperability article in the treaty, has publicly stated that the Australian government’s interpretation is in fact a misinterpretation. In addition, the draft legislation allows the stockpiling of foreign owned cluster bombs on our soil and their transit across our territory. In this last instance, it is the weakest legislation of any ratifying country.
The bill is also weak in that it does not prohibit indirect investment in companies that produce cluster munitions and it ignores what are called “positive obligations.” These include assistance with land clearance and victim assistance. Positive obligations cannot be included as the bill has been framed as part of the Criminal Code and not a stand alone bill. It thus compares unfavourably to the landmine treaty legislation which was a stand alone bill.
Our Legislative Process
The Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010, as the relevant bill is called, was introduced into Parliament in late October 2010. This was to the surprise of many campaigners who had spent months trying to ascertain the status of the bill. Numerous enquiries to various politicians had elicited vague reassurances that Australia was committed to the Convention on Cluster Munitions and that legislation was in the process of being drafted. The bill was therefore introduced into Parliament with relative secrecy and a complete lack of input from, or scrutiny by, civil society. The bill rapidly passed the House of Representatives “on the voices”, unlike the counted and recorded vote that comes after a division.
When the bill reached the Senate it was found to fall short of the recommendations made by the Joint Standing Committee on Treaties (JSCOT) in 2009. Because of this it was referred to the Senate Committee of Foreign Affairs, Defence and Trade for further investigation and enquiry. The committee received twenty-nine detailed written submissions from organisations and individuals including the international Human Rights Watch, the Human Rights Clinic of Harvard Law School, the Australian Council of Super Investors, the International Council of Red Cross, advocacy groups and prominent academics. Four organisations were invited to present at a public hearing. Unfortunately, two of the Senators on the committee failed to attend. It is disappointing that those entrusted with examining these submissions did not avail themselves of the opportunity to hear from those who were best placed to highlight the core problems in the proposed legislation.
Despite the weight of evidence pointing to the need for bill reform, the committee ignored all recommendations from both the written and oral submissions and produced a report which was to all intents and purposes, a “cut and paste” of the Government’s arguments. To his credit, Senator Scott Ludlam of the Greens produced a dissenting report. He also expressed surprise that having read and heard all the submissions, the government felt that not one word of the legislation needed to be changed.
The Red Cross is essentially a politically conservative organisation which needs to balance the sometimes conflicting areas of politics and pragmatism. It is understandable then that they do not often enter the political arena on issues such as this. This characteristic reluctance to enter political debate therefore makes their submission to the Senate Committee highly unusual and extremely significant, and highlights the need for amendment to this flawed legislation.
The Cluster Munition Coalition Australia
The Cluster Munition Coalition Australia (CMCA), as its name suggests, is made up of both organisations and individuals committed to the eradication of cluster bombs (and other indiscriminate weapons such as landmines). CMCA is spearheading the campaign for amendments to the bill and is running an intensive campaign to reach as many politicians as possible before the bill is debated in the Senate. Politicians are required to familiarise themselves with many pieces of legislation in the course of their duties, and it is perhaps optimistic to expect them to be entirely conversant with the complexities of each one. Nevertheless, it is worryingly obvious that many of them have been largely unaware of the implications of the Cluster Munitions legislation. This is further compounded by our political system which often dictates that irrespective of personal views, politicians are required to follow the party line.
One oft-expressed view has held that the existing military relationship with the United States could not be maintained if Australia were to accept the amendments suggested by civil society. This erroneous view has no basis in fact. CMCA freely acknowledges that a State Party may continue to conduct joint military operations with a country that has not joined the treaty provided that it does not engage in direct and active assistance in the use of cluster munitions. New Zealand has shown the way by enacting legislation which provides for joint military operations and yet maintains the integrity of the treaty by not allowing such prohibited assistance.
This basic lack of knowledge and understanding is one of the primary obstacles to be overcome. Any change to the bill can only come from a renewed appreciation of the contested wording and the consequences of leaving that wording unchanged. Informed debate in all party rooms is paramount if this bill is to receive effective scrutiny and if a truly informed democratic process is to be observed.
CMCA has an online petition to the government which can be seen and signed at: www.cmcaustralia.org.
They have also generated an open letter to the government which was signed by 47 academics, legal experts, human rights campaigners, a Nobel Peace Prize recipient, the 2011 Senior Australian of the Year and other prominent individuals.
Read more about the global cluster bomb issue at: http://www.stopclustermunitions.org/oslo2008.
The CMCA website also has detailed information on the legislation and civil society’s concerns.