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Cluster munitions legislation must be strengthened

By Paul Barratt - posted Friday, 6 May 2011

Shortly after Federal Parliament resumes for the May budget session the Senate will consider legislation to ratify Australia's accession to the UN Convention on Cluster Munitions.

Cluster munitions are weapons that open in mid-air and disperse smaller submunitions (bomblets) - anywhere from a few dozen to hundreds - into the target area. They can be delivered by aircraft or from ground systems such as artillery, rockets, and missiles. Cluster munitions 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.

Cluster munitions also permit a smaller force to engage a larger adversary and are considered by some an "economy of force" weapon.


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 this Convention, and signed it on 3 December 2008, the day it was opened for signature. The Convention entered into force and became binding international law for States Parties on 1 August 2010. The legislation now before the Parliament is designed to give effect to our obligations under the Convention by creating new criminal offences for Australians that 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 as 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 addresses 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 Australian Senate is at odds with these obligations. It permits us to facilitate the 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 ADF 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 (IHRC) observed in a submission to 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 (JSCOT) 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 upon all States 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.

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Article edited by Michelle Fahy.
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This article was first published in The Age.

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About the Author

Paul Barratt is a former Secretary, Department of Defence and Deputy Secretary, Department of Foreign Affairs and Trade.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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