Chapter 5 - Main findings
5.1
All submissions to the inquiry raised concerns about the use of cluster
munitions and their potential adverse humanitarian impact, especially as ERW.
However, there was disagreement about the appropriateness of the definition and
scope of the ban on cluster munitions proposed in the bill. This was especially
the case regarding the potential for discriminate use of sub-munition based
weapon systems, the efficacy of technical design advances to ameliorate the
impact on civilian populations and the possibility of use of cluster munitions
in conformity with IHL.
Support for the bill
5.2
The committee received nine submissions supporting the bill, including
from the Peace Organisation of Australia (POA), Austcare World Humanitarian Aid,
Landmine Action UK, the Australian Red Cross, Mr David Bath, Mr Kieran Bennett,
Mr Christopher Flynn, a joint submission from the Medical Association for
Prevention of War (MAPW) and Australians for Lebanon, and a joint submission
from the Australian Network to Ban Landmines (ANBL) and the Uniting Church of
Australia Synod of Victoria and Tasmania. All underscored the moral importance
of the bill with respect to the adverse humanitarian impact of cluster
munitions (as outlined in chapter two). Late submissions were also received
from Austcare, Landmine Action UK, Mines Action Canada, as well as a joint
submission from the Cluster Munition Coalition and Handicap International
reiterating or expressing their support for the bill.
5.3
POA, Austcare and Landmine Action UK highlighted the importance of the
bill as a positive step for the protection of civilians and an impetus to
efforts for an international treaty on cluster munitions. They considered this
to be especially important considering existing international instruments have
failed to prevent or regulate the use of cluster munitions.
5.4
The submissions from POA and Mr David Bath were especially supportive of
the definition of cluster munitions. POA noted the bill goes further than
similar overseas bills because it concludes that cluster munition use 'is
unacceptable in all circumstances'.[1]
It described this principle as 'arguably one of the most important features of
this Bill'.[2]
POA supported the list of offences as comprehensive and the appropriateness of
a penalty of life imprisonment for transgressions. It also endorsed the extra-territorial
operation of the bill, noting that offences would most likely occur outside
Australian territory.
5.5
Austcare, POA and Mr Bath highlighted clause 11 of the bill—pertaining
to assistance to foreign countries in the use of cluster munitions—as especially
important considering the past military engagement by the ADF with allied
countries. In particular, POA supported the provision under the bill that 'Australia
would not...be lawfully permitted to assist the United Kingdom or the United
States in preparations for cluster munition use'.[3]
Mr Bath also highlighted that this provision would prohibit the development,
acquisition or involvement in assisting allies regarding any sub-munition
based system.[4]
Suggested amendments
5.6
Austcare, ANBL and Landmine Action UK all suggested minor amendments to the
provisions of the bill relating to offences. Austcare suggested that the bill
make clear that it would be an offence not only for ADF personnel to use
cluster munitions but also to assist or provide support in the production,
transfer, and stockpiling of the weapon. It indicated that this could be
achieved through additions of text to modify the purpose of the bill in subclause
3(2), as well as the offences in paragraph 10(d) and clauses 11–13.[5]
Similarly, ANBL proposed an amendment be made to clauses 10 and 11 of the bill
to prevent members of the ADF or any other Australian from providing 'any
assistance' in the production, transfer or stockpiling of cluster munitions, in
addition to the existing provisions to ban intentional involvement in military
preparations to use cluster munitions.[6]
Landmine Action UK also suggested the bill could be strengthened in paragraph
10 (a) in this fashion.[7]
5.7
Austcare noted that the defences in Part Three were appropriate,
especially for a bill to prohibit cluster munitions. However, it underscored
the need for additional provisions or legislation to address the need to remove
ERW, education and decommissioning.[8]
Concerns about the bill
5.8
The committee received three submissions highlighting concerns
about the bill from the Australian Department of Defence, Israeli Military
Industries—a cluster munitions manufacturer—and from Dr Ben Saul, Senior
Lecturer in international law at the University of Sydney. These noted that the
bill does not distinguish between what they understand as legitimate uses of
cluster munitions under IHL and designs that have no or minimal humanitarian
impact. In particular, they highlighted concerns about the breadth and
ambiguity of the definitions under the bill and that it proposes a
comprehensive ban on the use of cluster munitions and sub-munition based weapon
systems.
5.9
Defence maintained that the bill does not provide any additional
protections for civilian populations that are not already inherent in Australia's
international obligations. However, it argued the bill contains provisions that
will impact on the ADF's capability development and operational effectiveness. Defence
has noted that 'if enacted it [the bill] will put Australia at a serious
military disadvantage in future conflicts, which would be detrimental to our
national interest'.[9]
In particular, Defence summarised its concerns with the bill as:
- its extremely broad definitions,
- its prohibitions on acquiring advanced sub-munition capabilities,
- the operational difficulties it would cause when the ADF operates
(as it commonly does) with allies and with coalitions,
- its failure to make provision for the development by the ADF of
countermeasures to cluster munitions,
- its failure to make provision for training ADF personnel in
rendering cluster munitions safe, and
- the effective pre-emption of Australia's position in current
negotiations on cluster munitions.[10]
5.10
Defence argued that the provisions delineating the purpose of the
bill—to ensure Australians are not involved in cluster munition use that poses
humanitarian problems—are unnecessary. It acknowledged the potential for some
cluster munitions to pose humanitarian hazards, but that these arise when
cluster munitions are used in violation of IHL and when the sub-munitions fail
to explode as intended. Defence noted that use of cluster munitions against
civilian populations is already restricted under IHL. It stressed that ADF
personnel 'are trained in the laws of armed conflict which form an integral
part of ADF targeting decisions'.[11]
Also, Defence highlighted that Australia is a party to the Protocol V to
the CCW, which already imposes obligations for it to take remedial measures to
remove ERW.[12]
5.11
It should be noted, as mentioned in chapters two and three of this
report, that the users of cluster munitions do not always observe IHL and that
IHL does not necessarily provide sufficient protection for civilian
populations. Indeed, a number of submitters asserted that the use of cluster
munitions has 'consistently contradicted the principles of International
Humanitarian Law'.[13]
ANBL was critical of Defence's failure to acknowledge that 'the design of many
cluster munitions makes them, like anti-personnel landmines, open to misuse
with consequences that leave a legacy that in some cases lasts for decades'.[14]
MAPW stated:
The Department of Defence 's persistent attempt to portray the
humanitarian hazards of cluster munitions as an aberration rather than the norm
with these weapons is disingenuous. The weapons are by nature non-discriminatory.
They contaminate wide areas.[15]
5.12
POA argued that:
...current international legal regime is inadequate in preventing
the use of cluster munitions and, therefore, a treaty relating specifically to
cluster munitions should be created at the soonest opportunity.[16]
As noted earlier, MAPW has drawn attention to problems with
clearing ERW.
Committee view
5.13
The committee acknowledges that IHL does not offer adequate protection
to civilian populations. Cluster munitions have been used consistently in or
near civilian populations in violation of IHL. But in particular, there is
insufficient protection for civilians from the ERW legacy of cluster munitions.
As MAPW has argued, Protocol V to the CCW provides valuable but limited
protections and relies on cooperation from the users of cluster munitions that
historically has not been forthcoming or has been insufficient. The committee
hopes that the increasing trend towards incorporation of self-destruction or
self-neutralisation capabilities will help remedy this situation but notes
additional measures probably will be required.
5.14
The following section examines whether the bill as drafted is the most
appropriate and practical means of ensuring that 'innocent civilians are not
harmed as a result of Australians possessing, using or manufacturing cluster
munitions'.
The scope of the ban
5.15
Dr Saul indicated he does not support an absolute prohibition on the use
of cluster munitions, as would be legislated in the bill (Part Two). He noted:
In some cases, the use of cluster munitions will comply with the
[international humanitarian law] principles of distinction, discrimination,
proportionality and necessity; for example, where they are used against massed
enemy formations in areas which are clearly distinguished from civilian
populations and civilian objects. [17]
5.16
He stated that cluster munitions should not be banned because they do
not inherently violate IHL. However, he advocated that the Australian Government
support initiatives to regulate the use of cluster munitions because they often
have been used contrary to the constraints of IHL. He indicated his views
'roughly correlate' with the initiatives proposed by the Norwegian Government
for the February Oslo Conference, including prohibition of use of cluster
munitions in or near civilian populations, prohibition of indiscriminate and
unreliable cluster munitions and destruction of stockpiles of such weapons.[18]
5.17
Defence also opposed the comprehensive nature of the ban on cluster
munitions proposed under the bill. It noted that the scope of this prohibition
is not substantially supported in international circles by the states parties
to the CCW and that none of the current international initiatives on cluster
munitions propose a total ban. According to Defence, most of the international
initiatives focus on regulation and addressing the need to ensure cluster
munition use is within the principles of IHL and restrictions are imposed on
unreliable munitions that create ERW. Defence informed the committee of
measures being taken to ensure that any cluster munition used by the ADF would
be designed to prevent harm to civilian populations.
Australia's capability development
5.18
Defence raised concerns about the definition of cluster munitions under
the bill (clause six) and its impact on Australia's capability development. Defence
noted that sub-munition based weapon systems that would be precluded by the
bill include those not designed for area saturation and developed to minimise
the probability of becoming ERW. These advanced systems possess some of the
features common to cluster munitions but are generally not considered to be
within this class of weapon and have been excluded from legislative regulation
in other countries (see chapter two), but would be banned under this bill. In
particular, Defence is in the process of acquiring an advanced sub-munition
based weapon system capability for use against mobile armoured vehicles. Such
systems consist of a very small number of sub-munitions—probably between
two and ten—guided targeting, and self-destruction or self-neutralisation
capabilities. Defence has argued the trend in sub-munition weapon development
is towards advanced, limited sub-munition, guided systems designed for minimal
humanitarian impact.[19]
5.19
Further, Defence noted that such advanced sub-munition based systems provide
an efficient means of neutralising multiple targets at long range and with
minimal risk to Australian personnel. In answer to a written question on notice,
Defence provided additional information on the range of newer technologies and
design features that help 'to minimise their potential to create adverse
humanitarian effects'. It cited the case of an advanced sub-munition that
Defence is in the process of acquiring which if no target is detected in the
search area the sub-munition 'will commence a self destruct sequence.'
According to Defence, this development means that the sub-munition is 'designed
not to produce an ERW'. It explained further:
Most advanced sub-munitions, including the system that Defence
is in the process of acquiring, have precision targeting capabilities. This
enables the application of a precisely targeted projectile with only one or two
sub-munitions. As a result, they do not need to be dispensed in
significant numbers, and it is not necessary to saturate a large area with dumb
bomblets, which is the approach taken with older cluster munitions.[20]
5.20
In summary, Defence informed the committee that:
...advanced sub-munitions possess a range of newer technologies
and design features which help to minimise their potential to create adverse
humanitarian effects as a result of a conflict. In addition, ADF observance of
existing legal obligations would ensure that the possibility of unintended
damage, and the risk to civilians, was even further reduced.[21]
5.21
Defence argued that prohibiting acquisition or development of such
systems would place Australian forces at a disadvantage against potential
adversaries and reduce or remove its margin of superiority. It would also force
the ADF to rely on higher yield, lower accuracy weapons that would pose a
greater risk to ADF personnel, civilians and civilian objects.[22]
5.22
Also, Defence maintained that the breadth of the definition of cluster
munitions under the bill and the ambiguity of terms such as 'device', 'fired'
and 'harm' could capture development or acquisition of broader weapon systems
not intended to be considered cluster munitions. In particular, it would
preclude development or acquisition of more advanced, reliable and
discriminating emergent technologies such as unmanned aerial vehicles and
surface and underwater vessels. The trend in development of these platforms is
towards smaller weapons to be integrated into larger, autonomous delivery vehicles
to enhance safety by removing the need for personnel to penetrate enemy
territory to deliver a payload. Existing precision guided weapons are short
range and thereby contain higher risk to personnel than some emergent, remote,
unmanned technologies.[23]
5.23
Israeli Military Industries also recommended that the bill narrow its
definition and prohibition to distinguish between different types of cluster munitions.
In particular, it noted that new area-saturation cluster sub-munitions have
been developed with extremely low failure rates to reduce the impact on
civilian populations and should be seen as legitimate weapons that can be used
responsibly. It noted that these are increasingly being marketed to other
countries.[24]
5.24
Not all submitters, however, were convinced of the reliability of the
new generation of cluster munitions, especially the self-destruction and
self-neutralisation mechanisms of area-saturation cluster munitions. ANBL was
of the view that 'most of the technical reforms proposed to cluster munitions
could only partially address the humanitarian problems caused by cluster
munitions'. It questioned whether 'they are a workable basis for enhanced
protection or would be sufficiently broadly adopted by countries'.[25]
MAPW was definite in its view. It argued that 'as weapons are supposedly
rendered more accurate, unfortunately, we do not see a commensurate reduction
in the civilian cost of warfare'. It noted that technological advances may
offer some benefit in terms of civilian protection in some situations but
cannot 'be relied on to deliver this result'. The Association noted that:
- the reliability of technologies can depend on the context in
which they are used—battlefield conditions are often very different from
weapons testing environments, and reliability can vary significantly;
- self-destruct mechanisms fitted to cluster munitions can and do
fail;
-
technologically advanced weapons are almost invariably more
expensive than older weapons which limits their use.[26]
5.25
Despite reservations about the new technologies, MAPW and ANBL
acknowledged Defence's concerns about the scope of the ban on cluster munitions
proposed by the bill and agreed that the provisions could potentially be
amended. Nevertheless, MAPW concluded that a comprehensive ban that captured
more reliable weapons designed to minimise any adverse humanitarian impact
would be preferable to inadequate regulation that allowed the perpetuation of
the use of weapons that pose hazards to civilian populations.
5.26
MAPW acknowledged that 'a legitimate case' could be made for the
exclusion of sub-munition based weapon systems not designed for area saturation
from the provisions of the bill, as they 'would be less of a humanitarian
concern'.[27]
ANBL noted that such an exemption would be consistent with the intentions of
the February Oslo Conference and agreed it could be considered, provided
certain independently verified standards of reliability were used. ANBL also
agreed that amendments could be made to accommodate Defence's concerns about
the ambiguity regarding the inclusion of unmanned vehicles in the definition of
cluster munitions and to allow the ADF to maintain—but not produce—a very small
stockpile for removal training and countermeasure development.
5.27
While the Australian Red Cross supported the comprehensive ban on the
use of cluster munitions proposed in the bill, it also suggested amendments to
regulate the use of cluster munitions in the event that a ban cannot be
supported. This proposal would involve a prohibition on the uses of cluster
munitions that are inconsistent with IHL, notably where military targets are
collocated with civilians or civilian sites. Further, in instances when cluster
munitions are used, the Australian Red Cross argued requirements should be
imposed for ensuring significant decreases in the failure rates, the inclusion
of reliable deactivation mechanisms for unexploded sub-munitions, the
mapping and subsequent removal of unexploded cluster munitions and observation
of obligations under Protocol V of the CCW.[28]
Committee view
5.28
The committee accepts Defence's explanation that the bill would, if
enacted, effectively 'preclude development or acquisition of more advanced,
reliable and discriminating emergent technologies'. According to Defence, the
prohibition 'would place Australian forces at a disadvantage against potential
adversaries and reduce or remove its margin of superiority'. Furthermore, such
a ban would mean that Defence could not acquire sub-munition based weapon
systems intended to minimise humanitarian impact.
5.29
The committee is of the view that the definition of cluster munitions in
the bill is too broad and does not take proper account of advances being made
in weapon systems that are designed to ensure greater precision and to remove
the likelihood of ERW. It also incorporates weapon systems often excluded from
definitions of cluster munitions—such as the limited sub-munition, guided
systems with self-destruction or self-neutralisation mechanisms—and potentially
those not considered to be cluster munitions in any other sense—such as
unmanned platforms.
Training and countermeasures
5.30
Defence noted that part of the ADF's capability development includes
training in countermeasures against weapon systems, including cluster
munitions. Australia maintains a small number of inert cluster munitions for
the purpose of training specialists in the identification and removal of
cluster munitions that could be used by adversaries.[29]
Defence noted that clauses 14 and 17 of the bill do not allow the maintenance
of cluster munitions for research and training purposes and would oblige the
ADF to destroy these holdings.[30]
The bill would also require the Minister for Defence to destroy or decommission
'all cluster munitions, container units and sub-munitions' under the
control of the ADF.[31]
5.31
In response to a written question on notice, Defence emphasised that
countermeasures encompass more than training for the removal of cluster
munitions as ERW. In this regard, it explained in detail the problems it
believes that the proposed legislation would create:
The aim of the countermeasure research is to provide Defence
with an understanding of the range of cluster munitions threats the ADF could
face on operations and to advise the ADF on the procedures and capability
enhancements needed to counter these threats. Advice on disposal to protect
both the ADF and the wider civilian community is only one element of the work.
For the accurate assessment of the threats to the ADF and the
effective development of countermeasure techniques and capabilities Defence needs
access to both live and inert munitions for evaluation and testing.
...
Part 3 of the bill only provides protection for Australians who
are involved with 'clearing or rendering safe sub-munitions which have been
deployed but which have not exploded'. There is no protection in the bill for
Australians involved in training for such activities. Nor is there any
protection for Australians involved in research related to such activities.
Finally, as the bill does not permit the acquisition of cluster
munitions for research or training purposes and requires all cluster munitions
in the possession of the ADF to be destroyed, this would not leave Defence with
any munitions to train its personnel or conduct countermeasures research as
described above. This would limit our ability to provide for the safety of ADF,
allied and civilian personnel in operations and also significantly increase the
risk to ADF involved in countering and clearing the munitions.[32]
Committee view
5.32
The committee accepts that the ADF needs access to cluster munitions for
training and to conduct countermeasures research. This is in order to protect
ADF personnel but also to assist in ameliorating the impact of cluster munition
ERW on civilian populations by enhancing readiness to assist in potential
removal operations. The committee notes that the bill as drafted would not
allow these activities.
Australia's operational ability
5.33
Defence noted that Australia adheres to its obligations under IHL, so
the bill would not offer additional protections against Australian involvement
with cluster munition use. However, Defence argued it would undermine the ADF's
interoperability and, thereby, long-term capability development. The ADF would
not be able to contribute to, or gain experience from, modern coalition combat
operations. These exclusions would be likely to increase over time, as more
allied partners take advantage of more sophisticated cluster munitions and sub-munition
based weapon systems being developed and incorporate them into their armed
forces. The interoperability of Australian and allied forces was highlighted in
the Defence 2000 White Paper as an important capability and a crucial factor in
achieving superiority in theatre.[33]
5.34
In particular, Defence argued the restrictions of clause 11—regarding
military planning with allies—would potentially undermine the capacity of the
ADF to contribute to coalition headquarters where use of cluster munitions
could be planned. In instances where ADF personnel were in command positions, they
would be put in situations where they could inadvertently transgress the provisions
of the bill. Integrated ADF personnel involved in planning and conducting
operations may need to call on coalition support in circumstances where the
coalition unit determines the weapons used, which could include cluster
munitions as defined under the bill. An alternative would be that ADF personnel
would be restricted from calling in appropriate support, enhancing the risk to
operational forces.[34]
5.35
Defence pointed out that the provisions of the bill could result in
unforseen consequences and seriously undermine its capacity to contribute to a
wide range of coalition activities. For example, due to the range of platforms
that could use cluster munitions as defined by the bill, Defence indicated ADF
personnel would be precluded from serving in a variety of support positions
that could involve preparations to use cluster munitions. Examples provided
included general logistics support—where indirect transfer of prohibited
munitions could occur, air-space management duties—where personnel would not be
able to discriminate between weapon systems used by the various aircraft, and
target identification—where the use of particular munitions is decided by the forces
directly involved.[35]
5.36
Some submitters questioned Defence's stand on the importance of
interoperability. Dr Saul indicated that although the military requirement of
interoperability is important, it should not preclude the development of
restrictions in domestic law if necessary. He pointed out that the ADF already
operates under different rules of engagement to its allies and has restrictions
on assistance in the use of outlawed weapons (such as WMD) or conducting of
illegal actions.[36]
ANBL made a similar point, noting that the ADF already collaborates with allied
partners not party to the treaty prohibiting use of anti-personnel
landmines.
5.37
MAPW also raised concerns about Defence's emphasis on the need for
interoperability, military engagement with allies and capability development.
MAPW considers Australia to be 'legally and morally' obliged to refuse
cooperation with the use of cluster munitions, which it considers to be a
'non-discriminatory class of weapon'.[37]
It argued that this moral imperative outweighed the capability development
advantages. MAPW also reiterated growing concerns among humanitarian
organisations (see chapter two) regarding the failure rates of even the newer
and more sophisticated cluster munitions. It also noted that more advanced
weapons are usually more expensive and often do not replace older versions in
countries' arsenals.[38]
Committee view
5.38
The committee notes Defence's argument that the provisions of the bill
could result in unforseen consequences and seriously undermine its capacity to
contribute to a wide range of coalition activities, continue capability
development and fulfil national security requirements. It also takes account of
the arguments that there is a moral imperative to ensure the actions of the ADF
do not cause civilian suffering. The committee also notes the concerns of the
submitters that the history of use of cluster munitions by other countries has
shown insufficient regard for civilians and the protections of IHL.
5.39
The committee considers that cluster munitions can be used in conformity
with IHL and accepts the assurance of Defence of its emphasis on such
strictures in training and target identification. However, the committee
reiterates its concern about the broader effectiveness of IHL in terms of
global uses, especially with respect to observance and prevention of the
creation of cluster munition ERW.
Compromise of Australia's
negotiations
5.40
Defence also argued that the broad scope of the prohibition under the
bill would compromise and restrict Australia's negotiations in international
forums.[39]
It informed the committee that international proposals currently under
discussion:
...involve banning cluster munitions which 'cause unacceptable
harm to civilians', or are 'unreliable and inaccurate'. The precise technical
definitions of these terms—in terms of failure rates, minimum requirements for
precision targeting, and self-neutralisation or self-destruction, and so
on—have yet to be identified.[40]
5.41
According to Defence, international meetings to discuss such matters were
to be held in April, May, June and some time later in 2007. It took the view
that:
...until further clarity emerges from these meetings, it is not
possible to anticipate the standards which are likely to apply. Therefore
legislative action at this stage is premature.[41]
5.42
MAPW, Dr Saul and ANBL rejected Defence's argument that the development
of domestic legislation would have a detrimental impact on Australia's
international negotiating position. Dr Saul noted that although maintaining
freedom to negotiate in international forums was important, he argued it should
not prejudice the option of developing domestic legislation. Such legislation
could shape Australia's negotiating position, especially following a
parliamentary inquiry, and could be modified to be consistent with any
international instrument that may be developed, or could be the basis of a
reservation to the acceptance of a treaty.[42]
ANBL argued that the participants of the February Oslo Conference did not
consider that international engagement prejudiced their negotiating position,
but used the opportunity to advance their views.
Committee view
5.43
The committee is not persuaded by Defence's argument that in this
instance Australia's negotiation position may be compromised. It acknowledges
the bill would impose more restrictive standards on Australia than proposed
internationally, but considers that this of itself would not impact on Australia's
involvement in international forums to regulate broader global use.
Conclusion
5.44
The committee notes the stimulus that the bill has provided to discussions
regarding cluster munitions and notes that this debate will probably extend
beyond the life of this inquiry. It acknowledges and concurs with concerns
about the use of cluster munitions and their potential humanitarian impact.
However, the committee believes that the bill in its current form and without
substantial redrafting is not the most appropriate means to address the
problems created by the use of cluster munitions that kill and maim civilians.
5.45
The committee remains concerned that the bill does not anticipate the
direction of cluster munition technical design developments and would preclude Australia's
future development or acquisition of emerging or current systems designed to
minimise or have no adverse humanitarian impact. Also, as indicated by Defence,
the provisions of the bill would have various unintended consequences including
preventing the use of weapon systems not generally considered to be cluster
munitions. Therefore, and for reasons of capability development and ensuring
the ADF can effectively operate, the committee accepts that Australia must
retain the capacity to acquire advanced sophisticated sub-munition based weapon
systems that are designed to minimise any adverse humanitarian impact.
Furthermore, the committee notes the importance of Australia being able to collaborate
with coalition forces in military operations that would use these advanced sub-munitions.
5.46
The committee also recognises that ADF members need access to cluster
munitions to enable them to train in, and develop countermeasures against, such
weapon systems. The bill as drafted would not permit the acquisition of cluster
munitions for research or training purposes and would require the destruction
of all cluster munitions in the possession of the ADF. Defence argued that,
without munitions to train its personnel or conduct countermeasures research,
its ability to provide for the safety of ADF, allied and civilian personnel in
operations would be limited. It noted further that this situation would place ADF
personnel involved in countering and clearing the munitions at a significantly
increased risk.[43]
5.47
For the two preceding reasons, in particular, the committee does not
support the bill as drafted. It notes that some of the submitters acknowledged
these concerns and agreed that amendments could be made to refine the
definition of cluster munitions and to include a reservation allowing the
maintenance of cluster munitions for countermeasure development. However, the
committee acknowledges other concerns raised by Defence, particularly with
respect to interoperability and long-term capability development, which would
be complicated further by amendments to the existing bill. Thus, the committee
is of the view that simple amendments, such as re-defining cluster munitions,
would not address the shortcomings in this proposed legislation and that the
bill should not proceed.
5.48
Nevertheless, the committee notes that the government can and should
take unilateral measures—in line with the growing international trend—to ensure
Australia's future acquisition and use of sub-munition based weapon systems
have appropriate regard for humanitarian consequences. These measures would not
affect ADF capability development. They would reinforce perceptions of Australia
as a good international citizen, complement measures pursued internationally by
other countries and promote procurement and responsible uses of weapon systems
in a fashion that avoids any unacceptable adverse humanitarian impact.
5.49
The committee also recognises the need for the effective international regulation
of the use of cluster munitions to prevent unacceptable harm to civilians. It
believes that the Australian government has an important contribution to make
towards achieving a consensus within international instruments and forums on
the use of cluster munitions. The focus on any such agreement should be on efforts
to develop more responsible norms governing the use of cluster munitions, enhance
post-conflict removal and promote technical design developments to minimise the
humanitarian impact of ERW. The committee encourages the Australian government
to strengthen its multilateral efforts towards the effective regulation of the
use of cluster munitions.
Recommendation 1
5.50 The committee recommends that the government call for countries
that use cluster munitions to strictly observe international law and
humanitarian obligations in their use, particularly discrimination of targeting
and no-use in or near civilian populated areas, and for all parties to a conflict
to take appropriate measures to distinguish and distance military deployments
from civilian populations.
Recommendation 2
5.51
The committee recommends that the Australian Defence Force continues to
ensure, and reinforces during training, that any military involvement with use
of cluster munitions including with allied partners is consistent with
international humanitarian law obligations and due care for civilian
populations.
Recommendation 3
5.52
The committee recommends that the Department of Defence ensures that the
acquisition or development of any cluster munitions or sub-munition based
weapon systems by the Australian Defence Force comprise only weapons designed
to minimise the potential impact on civilian populations as explosive remnants
of war. The munitions would have low failure rates and reliable self-destruction
or self-neutralisation mechanisms, or be designs with high precision individual
targeting capabilities.
Recommendation 4
5.53
The committee recommends that prior to any
procurement of cluster munitions the Department of Defence confirms these
systems do not pose unacceptable harm to civilians. This would involve ensuring
independent verification of the reliability of the failure rates and
self-destruct or self-neutralisation mechanisms that would emerge under
battlefield conditions.
Recommendation 5
5.54
The committee recommends that the government call for countries
maintaining cluster munitions to take all feasible means to ensure that, as
soon as possible, stockpiles comprise only weapons designed to minimise the
potential impact on civilian populations as explosive remnants of war. The
munitions would have low failure rates and reliable self-destruction or self-neutralisation
mechanisms, or be designs with high precision individual targeting
capabilities.
Recommendation 6
5.55
The committee recommends that the Department of Foreign Affairs and
Trade actively encourages counterparts to ratify and adhere to Protocol V to
the 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. This adherence is to ensure that upon the cessation
of hostilities the users of cluster munitions and those upon whose territory
such weapons have been used, provide necessary technical, financial, material
or personnel assistance to facilitate the identification, clearance and removal
of explosive remnants of war to minimise the impact on civilian populations.
Recommendation 7
5.56 The committee recommends that the Department of Foreign Affairs
and Trade strengthens efforts within international forums, especially but not
limited to the 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, to build a consensus and standardise
international regulation of the use, production and stockpiling of cluster
munitions to facilitate minimisation of the impact on civilian populations. This engagement should be directed towards ensuring
that any international treaties or instruments developed are influenced by and
accommodate Australian interests.
Recommendation 8
5.57
The committee recommends that the bill not be passed.
Recommendation 9
5.58
The committee recommends that the Government consider foreign legislation
that has been enacted or is currently before foreign parliaments that relates
to the use of cluster munitions with a view to introducing similar legislation
that would be relevant to Australia's circumstances.
SENATOR MARISE PAYNE
CHAIR
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