Joint Standing Committee on Treaties
CHAPTER 2
PROTOCOL IV
2.1 Protocol IV, on Blinding Laser Weapons, to the
Inhumane Weapons Convention (IWC) was adopted by a conference of States'
Parties including Australia on 13 October 1995.
Provisions and implications
2.2 Article 1 prohibits the use and transfer of laser
weapons designed to cause permanent blindness to unenhanced vision. These
weapons are very narrow beams of high energy which must be fired directly
into the eye/s of an opponent to be effective. They are still in the developmental
stage. Although a small number of countries are believed to be developing
them, there is no record of use in combat situations. This Article also
prohibits the transfer of blinding laser weapons to any State or non-State
entity.[1]
2.3 Article 2 requires Australia, through training
of Australian Defence Force (ADF) personnel and other practical measures,
to take all feasible precautions to prevent the use of laser systems accidentally
causing permanent blindness.
2.4 Protocol IV does not restrict the use of laser
systems in combat. Article 3 specifically recognises that accidental blindness
may result from legitimate military use of these systems, eg. against
optical equipment.
2.5 Permanent blindness is defined in Article 4 as
'irreversible and uncorrectable loss of vision which is seriously disabling
with no prospect of recovery'.[2]
2.6 This Protocol will come into force six months
after it has been ratified by 20 countries. To date, only Finland has
done so. Australia would like to be in a group of the first 20 nations.[3]
2.7 A witness from the Department of Foreign Affairs
and Trade (DFAT) stated that, whereas the amended Protocol II is about
remedies to an existing and serious problem, Protocol IV is about prevention.
It is 'an eminently humane measure' which will contribute to the safety
of Australian forces in combat situations. It is timely in that it will
control such an abhorrent and excessively injurious weapon before it has
become widely available internationally.[4]
2.8 The ADF is already observing the principles set
out in this Protocol. Although it has never had any intention of acquiring
laser weapons, its training programs will be adjusted to reflect the requirements
of this document.[5]
2.9 In answer to a question about the focus of the
Protocol on the use of these weapons, rather than manufacturing and stockpiling
them, another DFAT witness referred to the difficulty of extending its
scope beyond their use.[6]
2.10 There is no evidence of any Australian involvement
in the design or testing of these weapons.[7]
2.11 This Protocol does not include any provisions
for verification of compliance, although the annual meeting of the States'
Parties to the Convention itself is seen as the beginning of a verification
mechanism. A review conference in 2001 could consider verification procedures
and any other amendments considered necessary.[8]
2.12 Ratification of the Protocol would not involve
any additional expenditure or new legislation by the Australian Government.
Application of the Protocol
2.13 The International Committee of the Red Cross
(ICRC) encourages states adhering to the Protocol to make a declaration
of their understanding that it applies in all circumstances. As drafted,
it only applies in international armed conflict and not to internal conflicts
because the final session of the review conference ended without resolving
the issue. A number of countries have indicated their intention to make
such a declaration.[9]
2.14 When the Protocol is ratified, the Government
proposes to make this declaration: It is the understanding of the Australian
Government that the provisions of Protocol IV shall apply in all circumstances.[10]
Transhipment/transit of defence-relevant goods
2.15 Australia's controls on the export, import or
transfer of specific defence-relevant and strategic goods, including APLs,
are under review to ensure the inclusion of blinding laser weapons as
a controlled item under the prohibited import and prohibited export regulations.[11]
2.16 Existing regulations do not control the latter
weapons because they have not yet been developed. Following amendment,
regulations would either prohibit the transfer absolutely or require Ministerial
approval before the transfer could proceed. The Australian Customs Service
(ACS) would rely on its electronic systems or industry intelligence to
detect any attempt to transfer prohibited goods. Australian ratification
of the Protocol would deal with any attempt to import these weapons.[12]
2.17 With the exception of narcotics, the current
provisions of the prohibited export and prohibited import regulations
do not cover goods in transit. It has been the view that the latter do
not need to be covered by the relevant regulations because they are not
technically either exports or imports. It is not known, however, to what
extent defence-relevant goods are in transit through Australia without
being unloaded, because at present they do not have to be reported. While
ACS has the power to search any aircraft/ship within an Australian port/airport,
it would be difficult and costly to search an aircraft or a container/vessel
for prohibited material.[13]
2.18 Goods which are transhipped, i.e. come to Australia
and are unloaded and then re-loaded on another carrier for departure,
are reported to ACS and are under its control for the time they are in
Australia.[14]
2.19 As part of the current review, ACS is examining
international practices in this matter and it appears that no other Customs
administration exerts controls specifically aimed at prohibiting the transfer
of defence-relevant or strategic goods in transit. Statutory changes would
be required, and there would be 'enormous resource implications', if Australia
decided to impose controls on such goods. The major issues for the review
therefore seem to be:
- whether prohibited goods in transit and those being transhipped should
be treated in the same way, and
- what controls should be introduced, and what would be their resource
implications, if it were made illegal for prohibited goods to be in
transit without permission from Australian authorities.[15]
2.20 In the case of the transhipment of blinding laser
weapons through Australia, an ACS witness suggested that his organisation's
powers may require some strengthening, and that the issue was part of
the current review.[16]
Consultation
2.21 Negotiations on the Protocol were notified to
the States and Territories through the Standing Committee on Treaties
(SCOT) process.
2.22 Community groups were consulted and informed
about the Protocol through DFAT's National Consultative Committee on Peace
and Disarmament, the Australian Network of the International Campaign
to Ban Landmines, which was represented on the Australian negotiating
delegation, and a departmental newsletter. Australian ratification of
this Protocol is supported by the Australian Red Cross and non-government
organisations including those representing blind Australians.
Withdrawal
2.23 Denunciation of the Protocols to the IWC is dealt
with in Article 9 of that document. It takes effect one year after the
Depositary, the Secretary-General to the United Nations, receives notification
of the intention to withdraw from a Protocol.
Views of interested organisations
2.24 A submission from the Christian Blind Mission
International Australia (CBMI) included information about the action of
lasers on the human eye. It pointed out that blindness is a catastrophe
for the individual, his/her family and that person's society generally.
There are about 40 million blind people in the world, 85 per cent of whom
are in developing countries, and according to the World Health Organisation
(WHO) about six million people become blind each year.[17]
2.25 CBMI's role is to prevent blindness and to heal
curable cases and, where neither of these are possible, to rehabilitate
blind people as far as can be done. Using the limited funds received by
donation, it works in more than 100 countries, supporting 1000 projects
which will together receive about $A80 million in 1996.[18]
2.26 This opthalmic specialist and Christian aid organisation
pleaded for a halt to the development of what it calls 'a new, indescribable,
inexorable horror', and called for the prevention of the production and
distribution of these weapons.[19]
2.27 Ms Shaun Hoyt of the ICRC commented that adoption
of Protocol IV was an achievement for international humanitarian law,
in that it was the first time since 1868 that a weapon has been banned
before it is used on the battlefield. The scope of this Protocol did not,
however, extend to internal conflicts and, as set out above, the ICRC
would be encouraging all states to declare, at the time of adherence,
that they consider it should apply at all times.[20]
2.28 The Medical Association for the Prevention of
War (MAPW) is an organisation of about 400 doctors, formed in 1981 primarily
to work for the abolition of all nuclear weapons. It also works for a
reduction in the trade of so-called conventional weapons.[21]
2.29 Dr Ian Buckley of the MAPW also commended the
development of a Protocol to the IWC which prohibited the use of a weapon
before it is used in battle. He drew attention to the fact that this Protocol
did not prevent development or stockpiling of blinding laser weapons.
He stated that it did nothing to prevent technologically advanced States
from further developing and stockpiling weapons for later contingencies.
It did not make provision for obligatory disclosure of currently held
types and stocks maintained, nor for inspections or sanctions in the event
of breaches.[22]
2.30 Reference was also made to the lack of procedures
for verification, and to the need to push for changes to this Protocol.
The MAPW suggested that the Australian Government should ensure that what
the Association saw as 'weaknesses' or 'omissions' from this Protocol
were rectified as part of the ratification process.[23]
2.31 Sister Patricia Pak Poy, of the Australian Network
of the International Campaign to Ban Landmines, referred to the flaw in
the technical definition of blinding laser weapons, causing permanent
blindness to unenhanced vision, which allowed some room for interpretation
and therefore for loopholes. She also noted the lack of a verification
mechanism, but was aware that the Protocol put controls on these weapons
and believed that it should be ratified.[24]
2.32 Major General A Clunies-Ross (RL) representing
the Returned and Services League (RSL) expressed the view that the restrictions
in the Protocol were appropriate. That organisation saw it as eliminating
a potential threat to ADF personnel and reducing the need to develop adequate
protection against these weapons.[25]
The Committee's views
2.33 There can be no doubt that blinding laser weapons
are horrific and should be banned. The ICRC's declaration about the application
of the Protocol in all circumstances should therefore be supported by
the Australian Government and all nations.
2.34 During this inquiry, evidence was given of significant
weaknesses in this Protocol, beginning with the definition of the weapons
themselves. Reference was also made to the difficulties of negotiating
extensions to include such subjects as the manufacture and stockpiling
of these weapons, and verification provisions.
2.35 Action should be taken as soon as practicable
to extend the provisions of Protocol IV. The weaknesses noted above should
be raised as soon as practicable in appropriate forums, such as the annual
conferences of States' Parties to the Convention itself, and placed on
the agenda for the review conference in 2001.
2.36 The Joint Standing Committee on Treaties recommends
that:
The Australian Government take every opportunity during periodic reviews
to ensure that the weaknesses in Protocol IV are corrected, with
a view to ensuring it becomes more effective in preventing the use of
blinding laser weapons.
2.37 Without wishing to make a recommendation, we
believe that the review of controls on defence-relevant and strategic
goods should be finalised, and any necessary statutory changes implemented,
as soon as practicable.
2.38 The Committee notes the information it has
been given and supports early ratification of Protocol IV to the
Inhumane Weapons Convention as proposed.
Footnotes
[1] Transcript, 30 October 1996, pp 9, 5.
[2] Exhibit No 1 gives details of the military
uses of lasers and of the damage they can do to the human eye. See also
Exhibits Nos 3, 4 and 5.
[3] Transcript, 30 October 1996, pp 8-9, 5.
[4] ibid, pp 5-6.
[5] ibid, pp 7, 6, 13, 11.
[6] ibid, p 7.
[7] ibid, p 8.
[8] ibid, p 10.
[9] Submissions, p 21; Transcript, 3 February
1997, p 100.
[10] Submissions, p 21; Transcript, 3 February
1997, pp 100-101.
[11] Transcript, 30 October 1996, pp 12-13.
[12] ibid; Transcript, 3 February 1997, p 103.
[13] ibid, pp 101, 103.
[14] ibid, p 103.
[15] ibid, p 102.
[16] Transcript, 30 October 1996, p 13.
[17] Submissions, pp 12-13.
[18] Submissions, p 13.
[19] Submissions, p 15.
[20] Transcript, 2 December 1996, pp 35, 39,
49. See paragraphs 2.13 and 2.14 above for reference to the declaration
about the application of this Protocol.
[21] ibid, p 47.
[22] Submissions, p 20.
[23] Transcript, 2 December 1996, p 52; Submissions,
p 20.
[24] Transcript, 2 December 1996, p 49.
[25] ibid, p 67.