|
Navigation: Previous Page | Contents | Next Page
Chapter 3 - Regulations and controls on the use of cluster munitions
3.1
This chapter provides context to the bill by considering the
international instruments governing the use of cluster munitions, efforts to
develop additional such instruments and unilateral action that has been taken
in various countries regarding cluster munitions. Many of the submitters
brought these measures to the attention of the committee to help it in
developing its view on the bill.
International instruments governing the use of cluster munitions
3.2
The use of cluster munitions is not specifically prohibited or regulated
by any international legal instrument, other than the norms of international
humanitarian law (IHL) governing the conduct of hostilities. This particularly
involves the Geneva Conventions and Additional Protocols. Article 48 of
Additional Protocol I requires the parties to a conflict to 'distinguish
between the civilian population and combatants, and between civilian objects
and military objectives'.[1]
Article 51 is also of particular relevance noting that:
Indiscriminate attacks are prohibited. Indiscriminate attacks
are: (a) those which are not directed at a specific military objective; (b)
those which employ a method or means of combat which cannot be directed at a
specific military objective; or (c) those which employ a method or means of
combat the effects of which cannot be limited as required by this Protocol.[2]
3.3
Article 57 also requires parties to a conflict to take precautionary
measures regarding civilian populations and installations during attacks
including requirements to:
Do everything feasible to verify that the objectives to be
attacked are neither civilians nor civilian objects....Take all feasible
precautions in the choice of means and methods of attack with a view to
avoiding, and in any event to minimizing, incidental loss of civilian life,
injury to civilians and damage to civilian objects....Refrain from deciding to
launch any attack which may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated.[3]
3.4
The Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on their Destruction of 1993
and the Geneva Protocol of 1925 for Chemical Weapons outlaw the production,
stockpiling and use of chemical weapons, which includes chemical cluster
munitions.
3.5
Although conventional or high explosive cluster munitions can function
like landmines, they are not specifically covered under the 1997 Convention
on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Landmines and their Destruction (Mine Ban Treaty or the
Ottawa Treaty), which entered into force on 1 March 1999. The treaty prohibits
the use of anti-personnel landmines, which it describes as those 'designed to
be exploded by the presence, proximity or contact of a person'.[4]
Therefore, sub-munitions that are ERW because they fail to function as designed
are not covered by the treaty, whereas those that are specifically designed as
anti-personnel mines have been prohibited.
3.6
Another international instrument of relevance to cluster munitions is
Protocol V on Explosive Remnants of War to the 1980 Convention on
Prohibitions or Restrictions on the Use Of Certain Conventional Weapons Which
May Be Deemed To Be Excessively
Injurious or to Have Indiscriminate Effects—also referred to as the Convention
on Certain Conventional Weapons (CCW). This instrument addresses the use of
weapons that cause excessive injury or suffering to combatants or have an
indiscriminate impact on civilians. The CCW has protocols restricting the use
of landmines, blinding lasers, incendiary weapons, munitions that cause injury
by non-detectable fragments, as well as for remedial efforts to minimise the
impact of ERW (Protocol V).
3.7
Protocol V was negotiated by the CCW Group of Government Experts and
adopted on 28 November 2003. It entered into force on 12 November 2006. The protocol provides for post-conflict remedial measures to minimise the risks and
effects of ERW and, therefore, broadly addresses undetonated cluster munitions. It requires states parties to remove ERW and
record and transmit information regarding the use of ordnance likely to become
ERW to facilitate such removal.[5]
Protocol V only addresses post-conflict measures, and does not delineate any
specific preventative measures or refer to particular weapon systems, such as
cluster munitions. Nevertheless, Article nine of Protocol V urges states
parties 'to take generic preventive measures aimed at minimising the occurrence
of explosive remnants of war'. The technical annex prescribes that states
producing or procuring munitions should take appropriate efforts to ensure the
greatest reliability possible including with respect to manufacturing, storage
and training.[6]
3.8
The Medical Association for Prevention of War (Australia) was concerned
that Protocol V does not adequately protect civilians from the effects of cluster
munitions. It stated that:
Protocol V sets out the responsibility to clear ERW after
weapons have been used. It necessarily leaves civilians vulnerable for the
period until the ERW are cleared (and given the impossibility of performing
100% clearance of any given area, indefinitely after that, albeit to a lesser
extent). Clearing ERW takes years. In the meantime, civilians either abandon
their land or risk death and mutilation.[7]
3.9
Most observers believe that cluster munitions are not inherently indiscriminate
and can be used in a fashion consistent with IHL. In its submission to the
inquiry, the Australian Red Cross suggested that the use of cluster munitions
in densely civilian populated areas would violate IHL and the principles of
distinction, discrimination, proportionality and feasible precautions. Also
according to the Red Cross, such breaches could be considered war crimes under Article
8 (2) (b) of the Rome Statute of the International Criminal Court.[8]
This article considers war crimes to include:
Intentionally launching an attack in the knowledge that such
attack will cause incidental loss of life or injury to civilians or damage to
civilian objects or widespread, long-term and severe damage to the natural
environment which would be clearly excessive in relation to the concrete and
direct overall military advantage anticipated.[9]
3.10
On the other hand, a number of submitters argued that cluster munitions
are prone to 'misuse'. Human Rights Watch noted that many uses have breached
IHL and some uses have been consistently indiscriminate.[10]
Indeed, Austcare World Humanitarian Aid suggested that the use of cluster
munitions in recent conflicts has demonstrated that the 'fundamental principles
of IHL have been undermined'.[11]
In Dr Saul's view 'the inability of existing humanitarian law to limit civilian
causalities from cluster munitions 'justifies further regulation'.[12]
Efforts to strengthen international instruments
Official government diplomatic
efforts
3.11
Most international discussions about the use of cluster munitions have
focused on the CCW. The CCW operates on a consensus basis and the third review
conference of states parties to the conference was held on 7–17 November 2006 in
Geneva. There has been division within the states parties to the CCW about
whether cluster munitions are sufficiently regulated by existing IHL or new
specific measures are required. Discussions by the Group of Government Experts
within the CCW are due to occur in June 2007 to consider the application and
implementation of IHL on ERW. The focus will be on cluster munitions, including
their reliability and technical and design developments, to minimise their
adverse humanitarian impact.
3.12
Due to a perceived lack of progress in the CCW including concerns that
the mandate of the June discussions was too limited, in November 2006, Norway
commenced a process to develop a new treaty. It would ban certain—as yet
undefined—types of cluster munitions that are deemed to cause serious hazards
to civilians. The Oslo Conference on Cluster Munitions was held from 21–23
February 2007 and involved representatives from 49 governments, as well as
various NGOs and international agencies including the UN, the International Committee
of the Red Cross (ICRC) and representatives of the CMC organisations.
3.13
Forty-six of the participating countries agreed that by 2008 they would
conclude a legally binding international instrument to prohibit cluster
munitions that 'cause unacceptable harm to civilians', establish a framework
for cooperation in cluster munition ERW removal and rehabilitation, and
continue to address cluster munitions within other forums including IHL and at
national levels.[13]
These countries, according to ANBL, included 36 per cent of global cluster
munition stockpilers and 50 per cent of the producers.[14]
The next meeting towards development of the legal instrument was held in Peru
from 23–25 May 2007. Australia attended the Peru meeting and engaged in
international negotiations regarding this initiative.[15]
3.14
The ICRC held an expert meeting on cluster munitions from 18–20
April 2007 to clarify the technical, legal, military and humanitarian aspects
of the use of cluster munitions in order to inform diplomatic discussions and
help develop an appropriate international response.[16]
At that meeting, Germany provided a draft protocol for the CCW regarding
cluster munitions to be discussed at the Peru meeting in May.[17]
3.15
Australia supported the proposed June 2007 discussions during the third review
conference of states parties to the CCW in November 2006, but did not attend
the Oslo Conference. It has supported efforts to impose technical and targeting
restrictions on cluster munitions to ameliorate the humanitarian impact,
according to the Department of Defence.[18]
Non-government and humanitarian
organisation views
3.16
There is a broad consensus within the international humanitarian
community about the need for additional regulation of the production and use of
cluster munitions. In its submission to the inquiry, ANBL pointed out that
various treaties—such as the Mine Ban Treaty—have come into force to outlaw
previously legal activities, as a result of the codification of moral and
ethical constraints.[19]
In its submission, MAPW noted that Protocol V of the CCW required additional
protections, as it relies on information from the users of cluster munitions,
which is often incomplete or not provided. As noted earlier, MAPW also argued
that Protocol V does not provide any protections for civilians in the period
between the creation of cluster sub-munition ERW and their clearance, which
often takes years. MAPW argued that a new treaty on the use of cluster
munitions would be an important mechanism for stigmatising and pressuring
compliance from recalcitrant states.[20]
3.17
However, there is debate, including within the CMC, about the scope of
any new international instrument. Some NGOs, most notably Handicap
International, have proposed a blanket ban on the use of cluster munitions,
considering them to be inherently indiscriminate weapons that inevitably create
a disproportionate risk for civilian populations. On the other hand, most
humanitarian-focused NGOs, including Human Rights Watch and the ICRC, have
proposed regulating, rather than banning, the use of cluster munitions.[21]
In November 2006, the UN Secretary General also effectively promoted this view.
He pointed out the need for greater adherence to IHL, including cessation of
the use of cluster munitions against military assets in or near civilian
populated areas. He also advocated an end to stationing military assets in such
areas, a freeze on the transfer of cluster munitions that are known to be
inaccurate and the development of technical requirements for new weapons to
enhance their reliability and reduce their adverse humanitarian impact.[22]
3.18
The debate on whether to regulate or ban cluster munitions is partly due
to an acknowledgement, among some organisations, of the military utility,
legality and discrimination of application of some uses of the weapons, and an
anticipation of the probable greater achievability or efficacy of regulation
than prohibition. The advocates of regulation focus on some or all of the
following: a moratorium on the use of cluster munitions; a ban on use of the
weapons in or near civilian populated areas or with high-altitude delivery; a
ban on certain types of cluster munitions that are inaccurate, unreliable or
not equipped with dependable self-destruct or self‑neutralisation
mechanisms; and a requirement for mapping and reporting cluster munition use to
assist in post-conflict removal.[23]
Unilateral action by various states
3.19
While international discussions regarding cluster munitions have been
ongoing, some countries have taken unilateral action to limit their involvement
with cluster munitions. Many of the submissions to the inquiry cited these
measures, particularly the Belgian legislation, the UK bill and the actions
taken by Norway.
3.20
In June 2006, Belgium issued a ban on the transportation, export,
stockpiling, trade, production and 'carrying' (use) of sub-munitions, which
were defined as those designed to separate from a parent munition to fulfil
their tasks. A second law was passed clarifying that for the purposes of the
ban, cluster munitions and sub-munitions did not include anti-electrical,
smoke-producing or illuminating projectiles. They also excluded guided
anti-armour sub-munition based systems not designed for area saturation and
developed to explode only on impact. The ban also required Belgium to destroy
its stockpiles of cluster munitions within three years. In December 2006, the
Belgian Senate adopted a bill to prohibit investments in companies associated
with the production, use and stockpiling of cluster munitions, and included a
list of landmine and cluster munition producers.[24]
3.21
The UK is also considering legislation that would prohibit the use, production,
possession, procurement or transfer of cluster munitions. The definition of
cluster munitions has been refined along the lines of that used in the Belgian
legislation. For the purposes of the UK bill, cluster munitions are containers
that disperse multiple explosive sub-munitions excluding WMD, electronic,
landmine, propaganda, pyrotechnic and precision guided sub-munitions equipped
with self‑destruction or self‑neutralisation capabilities.[25]
3.22
On 20 March 2007, the UK announced that it would immediately
unilaterally withdraw all 'dumb' cluster munitions—those without guidance systems,
self-destruction or self‑neutralisation capabilities—from its arsenal.
This comprises 28 million sub-munitions including the air-delivered RBL
bomblets and artillery launched MLRS M26 grenades. However, it does not include
the Israeli-made M85 sub-munition, which is designed for area saturation but
has self‑destruction features and was considered to be a legitimate
weapon capable of being used in conformity with IHL. The unilateral action was
taken for humanitarian reasons. It followed parliamentary consideration of a
bill to prohibit a wider range of cluster munitions, a previous commitment to
phase out 'dumb' weapons by 2015 and support during the February Oslo Conference
for a legally binding international instrument to prohibit cluster munitions
that have an unacceptable impact on civilians.[26]
3.23
In early 2006, Norway announced a moratorium on the use and testing of
cluster munitions while it reviewed the reliability of the munitions in its
stockpile. The moratorium was extended in October 2006 pending an international
agreement about the acceptability of these munitions from a humanitarian
perspective, following concerns about the use of cluster munitions in Lebanon. Norway
had earlier initiated a self-imposed moratorium on air-delivery of cluster
munitions.
3.24
The US is retrofitting 5 000 DPICM projectiles with self‑destruction
capabilities and in 2001 announced a failure rate requirement of less than one
percent for procurement of new sub-munitions.[27]
On 14 February 2007, four Senators introduced legislation in the US Senate that,
if enacted, would prevent funds being appropriated to any Federal department or
agency for the purpose of using, selling or transferring any cluster munitions
unless the sub-munitions had a 99 percent or higher functioning rate.
Furthermore, the munitions would only be used against clearly defined military
targets and not where civilians were known to be present or in areas normally
inhabited by civilians. Finally, under the proposed legislation, if such
cluster munitions were used, the President would be required to submit to the
Senate Committee on Foreign Relations and the House of Representatives Committee
on Foreign Affairs, 'a plan...for cleaning up any such cluster munitions and sub-munitions
which fail to explode and continue to pose a hazard to civilians'. The proposed
legislation, however, did contain a presidential waiver that would allow the
President, under specified conditions including that it is vital to protect the
security of the US, to fund the use, sale or transfer of cluster munitions that
had a failure rate of more than one percent.[28]
The bill has been referred to the Senate Foreign Relations Committee.
3.25
There has been parliamentary discussion on cluster munitions in several other
countries, including Austria, Denmark, France, Germany, New Zealand, Norway, Sweden
and Switzerland. These discussions also have focused on the adverse
humanitarian impact, or the need for a ban or regulation of cluster munitions.[29]
In many cases the government positions are evolving, still under consideration,
or have not yet been clearly articulated. However, those that have been
expressed—notably by Austria, Denmark and Germany—tend to convey hesitation about
supporting comprehensive bans on cluster munitions. They focus on the need for
adherence to IHL in their use and emphasise the importance of only using
cluster munitions with advanced technical design specifications to lower
failure rates to minimise their legacy as ERW.[30]
3.26
During the Oslo Conference in February, Austria and Bosnia-Herzegovina also
announced national moratoriums. Several other countries including Argentina,
Belgium, Canada, Denmark, France, Germany, Portugal, Sweden and Switzerland
have withdrawn from service, or indicated they will not procure—and in some
cases deploy—cluster munitions with poor failure rates or lacking
self-destruction or self‑neutralisation capabilities.
Summary
3.27
In this chapter, the committee considered the international instruments
governing the use of cluster munitions. Despite the existence of these
instruments, the use of cluster munitions continues to cause death and serious injury
to civilian populations. The committee notes that although there is
disagreement about the need to ban or regulate cluster munitions, there is
considerable momentum regarding the need to prevent the use of designs that
cause unacceptable consequences to civilians.
3.28
Parliaments in a number of countries are responding to the inadequacy of
current international protocols by considering unilateral action that would
better regulate their use of these weapons. The legislation proposed in the
different countries varies significantly in the extent of regulation to be
imposed on the development and use of cluster munitions. However, these
legislative measures consistently have refined the definition of cluster
munitions—to different degrees—to allow certain designs that incorporate
mechanisms to ensure they have no or minimal adverse humanitarian impact.
3.29
A number of parliamentarians in Australia have also introduced
legislation intended to eliminate any possibility of civilians being harmed,
killed or put at risk as a result of Australian involvement with cluster
munitions. In the following chapter the committee considers this proposed
legislation.
Navigation: Previous Page | Contents | Next Page
Website feedback: web.senate@aph.gov.au
Last reviewed 1 June 2007 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
