Australia must stand up to US on cluster bomb legislation

Cluster bombs are indiscriminate weapons that have a devastating and long term impact wherever they are used. The outer bomb casing breaks open in midair, raining down hundreds of smaller bombs over a large area, often as far as a kilometre away. Many of these deadly 'bomblets' do not explode on impact. They have been responsible for tens of thousands of civilian deaths, injuries and humanitarian problems in every conflict in which they have been used. Children are at high risk of death or maiming from the unexploded munitions as they are attracted by their toy-like shape. A Handicap International study in 2006 found that 98 per cent of the victims of unexploded cluster munitions are civilian.

Evidence of the severe and long term impact of cluster bombs is readily seen in Laos. Laos was carpeted in cluster bombs during the war in Vietnam and the unexploded remains of this awful campaign remain in place thirty-five years later, continuing to kill Laotian men, women and children, helping to keep the country mired in poverty and unable to work much of its land. The International Red Cross estimates that in Laos alone 9–27 million unexploded submunitions remain, and some 11,000 people have been killed or injured, more than 30 per cent of them children. Given this deadly heritage, it is unsurprising that Laos recently added a ninth Millennium Development Goal, that of clearing its land of unexploded ordnance.

The 2008 Convention on Cluster Munitions was the most significant disarmament and humanitarian treaty negotiated in more than a decade. It unequivocally seeks to ban cluster munitions, and the suffering they cause, for all time. Australia is one of more than a hundred countries to have signed the Convention and a Senate committee is currently reviewing the ratification legislation. Many of Australia's military allies have also joined the Convention, with the United States being a key exception.

And this is where the Australian government runs into problems. In its efforts (some might say overly enthusiastic efforts) to keep a powerful military ally onside, the Australian government has drafted legislation that is littered with alarming loopholes which, to my mind, directly undermine the very spirit and intention of the Convention.

Of course it is important for Australia to maintain military cooperation with its allies. Such cooperation is already preserved by the Convention, which does not jeopardise military operations with countries that are not parties to the Convention. Further, any unknowing or inadvertent participation in the use of cluster munitions by Australia in the course of such cooperation would not constitute an offence under the Convention. This is as it should be.

However, Australia's proposed legislation goes too far in paving the way for Australian forces to actively assist in activities that are explicitly prohibited by the Convention.

Despite the Australian government's protestations to the contrary, the Convention was not drafted so as to indemnify all and any assistance with the use of cluster munitions in the course of joint operations. In my opinion, Australian soldiers must still have a responsibility to refrain from all known involvement in the use of cluster munitions. Thus, identifying targets for cluster bomb strikes or refuelling aircraft in preparation for a cluster bomb strike, two examples given by the government of acceptable activity under our proposed legislation, must surely be regarded as 'assistance' in the use of cluster munitions, and must therefore be prohibited by the legislation.

Similarly, the proposed provisions explicitly allowing Australian territory to be used by foreign powers for the stockpiling and transit of cluster munitions make a mockery of our obligation under the Convention to dissuade states not party to the Convention from using cluster munitions.

Australiais quite clearly out of step with other ratifying countries on these points. Other countries, including NATO members, have introduced much stronger legislative and policy initiatives for their relationships with states not party to the Convention.

I find it particularly worrying that the Australian government has seen fit to isolate Australia in this manner. We are the only country thus far to give a blanket exemption to our military allies, allowing them unfettered access to transit their cluster bombs across our territory and stockpile these awful weapons on our soil. Apart from causing Australia international embarrassment, and arguably subverting our obligations under the Convention, what sort of precedent is Australia setting for other countries considering ratification of the Convention? Do we want our demonstrably weak interpretation of the Convention to stand as an international example for others to follow?

Let me be clear. I have always supported our alliance with the US, and still do. However, Australia needs to play a more independent and constructive role in this key relationship, rather than submerging what has historically been our humanitarian and egalitarian approach beneath the all-consuming interests of the US military. In terms of ratifying this Convention, Australia could and should be doing all it can to persuade our most important ally that it is in their best interests, and in the interests of humanity, that the world rid itself of these inhumane weapons. Instead, the Australian government is highlighting its willingness to do whatever it takes to be a compliant partner of the United States – even when that means undermining the spirit and intention of a Convention that we ourselves helped bring into being.

Rather than bending over backwards to accommodate the American military, if Australia maintained the humanitarian commitment it displayed in signing this Convention, and actively worked to convince all our allies to cease using cluster munitions, we could surely make a significant contribution towards a better world.