Despite its inherent inhumanity, the means and methods by which war is fought are not unlimited. Human ingenuity in the invention of devices that kill and maim is tempered by those principles and treaties outlawing weapons that cause unnecessary suffering, or which fail to discriminate between military and civilian targets. Although somewhat muted, the law is far from silent in the midst of war.
Australiais one of 108 countries to have decided that cluster munitions merit the description of indiscriminate weapons whose production and use should be universally condemned. In becoming a signatory to the Cluster Munitions Convention, Australia committed itself to the eradication of these nefarious weapons that have destroyed the lives and livelihoods of countless civilians over the past 50 years, and whose unexploded remnants leave a legacy for generations to come.
In international law, signing a treaty is not enough. To become binding, it must be ratified, which in this instance requires implementing legislation. It is here that a party's true commitment is often revealed. And in Australia's case, that commitment, otherwise so robust, would appear to be sorely lacking.
To understand why this is so, one must start with the treaty itself. As the preamble repeatedly makes clear, this is a true disarmament instrument, aimed at putting 'an end for all time' to the suffering caused by cluster munitions. This objective is reflected in the core obligation not only to prohibit the production, use, stockpiling and transfer of cluster munitions, but to refrain from assisting other countries from doing so. The prohibition is expressed in the most absolute of terms - 'never under any circumstances' - an expression notably omitted from Australia's draft legislation. And the Convention is bolstered by positive obligations to encourage others to become parties and to reject the use of cluster munitions.
The prohibition on assistance goes to the heart of the treaty's universal disarmament purpose. It can not be put aside lightly. Without it, the treaty loses its effectiveness and bite.
Unfortunately, the bill before Parliament treats the assistance prohibition as dispensable. It does so courtesy of a broad reading of the so-called 'interoperability' clause, a poorly drafted treaty provision concerning personnel engaged in joint military operations with states not party to the Convention. Most countries and commentators read this provision as a clarification, allowing for joint operations but maintaining the core prohibitions. Australia has long held a different position, treating it as waiving the prohibition on assistance. As a result, States Parties could potentially participate in many acts of assistance that run directly counter to the Convention's purpose, from planning an attack, hosting foreign stockpiles, providing security for stores of such weapons, refuelling vehicles transporting cluster munitions, and even identifying targets for attacks or calling in strikes.
Although this in itself is of significant concern, the legislation goes a step further, expressly allowing other armed forces with whom our armed forces are cooperating to use Australian territory and infrastructure for the stockpiling, retention and transfer of cluster munitions.
No other party to the Convention provides expressly for other parties to act contrary to its objects. It is unprecedented. The dismay of those organizations such as the Cluster Munitions Coalition who have spent the past 10 years lobbying to bring the Convention into existence is palpable. From the perspective of international humanitarian law, the Australian government's minimal interpretation of its obligations falls foul of the orthodox approach to interpreting treaties of international humanitarian law which insists upon expansive rather than restrictive readings of a state's obligations, consistent with principles of humanity. That Australia is on thin legal ice is unlikely to escape the notice of the international community.
Australia's position reflects a familiar geo-political balancing act. On one side lie our European cousins with their faith in a global rule of law bolstered by humanity-based treaties and norms. On the other is the United States, sceptical and suspicious of the legalistic Europeans and their experiments in international law, and wedded, as neo-conservative commentator Robert Kagan has put it, to an anarchic Hobbesian world 'where true security and the defence and promotion of a liberal order still depend on the possession and use of military might'.
We may aspire to be applauded as a good international citizen like the Europeans, but our military endeavours invariably put us in partnership with the US. It is an uncomfortable place to be. In this instance, however, Australia cannot both have its cake and eat it. This is a treaty whose primary object and purpose is the universal eradication of these weapons, not mere individual disarmament. By becoming a party to the treaty, Australia should be placing the burden on non-states parties who have retained cluster munitions to revise their policies and seriously consider their continuing commitment to a weapon we have declared to be inherently inhumane. Instead, we are bending over backwards to accommodate our powerful military ally, putting our land, infrastructure and potentially our military at their disposal.
Compounded by legislative drafting that weakens the criminal nature of the offence by exempting those who act negligently, and provisions that allow for the retention of live munitions for training purposes, one can be excused for wondering what the government believes the legislation will actually achieve.
It is not too late. Parliament has an opportunity to suggest changes that will ensure Australian soldiers remain protected from unfair accusations of complicity merely for participating in joint operations, while nonetheless maintaining the treaty's stigmatisation of these heinous weapons.
If Australia is serious about cluster munitions – and all other indications are that this is indeed the case – then it is time to put the burden on those countries which continue to see some utility in a weapon that time and again has been proven more effective at killing children than winning wars. It is time for Australia to become a cluster munitions-free zone.