Minority report by Labor Members
Introduction
1.1
In the main, Labor members of the committee support the findings of the
majority report but believe that some important matters warrant a stronger
emphasis.
Humanitarian concerns
1.2
Many of the submissions to the inquiry drew attention to the use of
cluster munitions over the past 40 years and the extent of harm they have
caused to civilians both during and after a conflict. They underscored the
serious humanitarian problems posed by the use of cluster munitions in
countries including Laos, Cambodia, Vietnam, Chechnya, Kosovo, Afghanistan and Iraq.
The Medical Association for Prevention of War suggested that 98% of known
casualties from cluster munitions are civilians of which at least 27% are
children.[1]
Austcare World Humanitarian Aid explained that cluster munitions pose a threat
to civilians in two ways:
- The bomblets dispersed by the munition 'often stray from military
targets causing death and injury to civilians'—when 'used near populated areas,
their effects have proved impossible to contain'. Landmine Action suggested
that the affected areas are often 'as large as 3–4 soccer fields'.
- The unexploded remnants from cluster munitions threaten the lives
and livelihoods of civilian communities for years after the conflict has
ceased.[2]
1.3
Many of the submissions drew attention to the death and 'terrible
physical and psychological suffering for civilians' caused by the use of
cluster munitions. They emphasised that children are particularly vulnerable.[3]
UNICEF Australia's Chief Executive, Ms Carolyn Hardy, noted that the legacy of
unexploded cluster bombs violates a number of articles of the Convention on the
Rights of the Child, including those which 'relate to a child's right to life,
to a safe environment in which to play, to health, clean water, sanitary
conditions and adequate education'.[4] She said:
Experience in conflict zones such as Lebanon has shown that it’s
the young who are getting injured and dying. Children are being killed because
they see a shiny metal object and they often go and pick it up and play with
it.[5]
1.4
Ms Hardy also noted that:
Children who are fortunate enough to survive a cluster bomb
blast often have permanent physical scars, as well as emotional trauma that
haunts them for years.[6]
1.5
Civilians returning to their homes and places of work are at risk from
unexploded ordnance. Indeed, ordinary daily activities such as fetching water,
gathering food, or herding stock can be dangerous. This situation has arisen in
South Lebanon which is highly dependent on agriculture. A report released by
the United Nations Office for the Coordination of Humanitarian Affairs in
September 2006, found that South Lebanon's agricultural land 'is heavily
contaminated with cluster bombs'.[7] It noted that
'the sheer amount of unexploded ordnance that remains in South Lebanon, one of
the poorest areas of the country, will hamper the future social and economic
livelihood of the region':
Farmers, in areas feared to contain cluster bombs, have not been
able to irrigate or harvest their current crops and are unable to plant the
winter crop, be it wheat, lentils, chickpeas or other vegetables. Next year’s
agriculture cycle will also be affected if, as is likely to be the case,
substantial numbers of cluster bombs are not cleared until the end of 2007.[8]
1.6
Unexploded remnants of war pose a grave threat to civilians for years
after a conflict has ended.
Labor members' views
1.7
Labor Members believe that the suffering and disruption caused to
civilian communities by the use of cluster munitions is intolerable and that Australia
must take a leadership role to ensure that the use of cluster munitions will
not continue to inflict harm on civilian populations.
International Protections
1.8
Although a number of submitters noted that International Human Rights
Law (IHL) offers protection to civilians from harm by the use of cluster
munitions, the reality is that the use of this munition has caused and
continues to cause civilian deaths and injuries. Dr Ben Saul, University of Sydney,
was of the view that 'the inability of existing humanitarian law to limit
civilian casualties from cluster munitions justifies further regulation'.[9]
Austcare World Humanitarian Aid noted that recent conflicts have demonstrated
that the fundamental principles of IHL have been 'undermined'.[10]
1.9
A message recently delivered to the Third Review Conference of the
Convention on Certain Conventional Weapons on behalf of the United Nations
Secretary-General, Kofi Annan, urged states to comply fully with international
humanitarian law. He noted, however, that:
recent events show that the atrocious, inhumane effects of these
weapons—both at the time of their use and after conflict ends—must be addressed
immediately, so that civilian populations can start rebuilding their lives.[11]
1.10
The September report from the United Nations Office for the Coordination
of Humanitarian Affairs recorded that:
The density of cluster bombs in south Lebanon appears to be
higher than that witnessed in Kosovo and Iraq, with a greater concentration in built-up
areas and agricultural land, according to UNMACC.[12]
1.11
Statistics contained in this report indicate that:
Unexploded cluster bombs have been killing or wounding on
average three people a day since 14 August. At least 15 people have died during
this period and 83 others wounded, as of 18 September. Most of these casualties
have occurred as people checked their homes or fields.
1.12
Furthermore, it estimated that the time taken to destroy the majority of
unexploded cluster bombs would be about 24 to 30 months, double the time
initially thought because of the escalating numbers of unexploded bombs being
identified.[13]
1.13
Recent conflicts where cluster munitions have been used, make it clear
that despite IHL, such munitions continue to cause the death and injury of
civilians, who through no fault of their own, have been caught up in a
conflict. Many submissions supported this view and in particular cited the
inadequacy of Protocol V.[14]
1.14
Submissions by Austcare World Humanitarian Aid, as well as the Cluster
Munitions Coalition and Handicap International highlighted the limitations of
Protocol V. In particular, Austcare stated:
Protocol V does not provide an adequate response to the
humanitarian problem resultant from the use of cluster munitions. Protocol V is
limited to the post-conflict context and falls short of providing regulatory
measures to control the use of ERW-producing weapons during conflict situations....Moreover,
although the provisions of Protocol V are binding on all signatory States,
there is no mechanism to enforce compliance.[15]
1.15
Therefore, the Cluster Munitions Coalition and Handicap International
concluded that additional measures were needed and that these 'would not
duplicate existing obligations...would be complementary, would reinforce existing
and emerging international standards of practice' and could easily be
incorporated into national measures on other banned munitions, such as
anti-personnel landmines.[16]
Labor members' view
1.16
Labor members of the committee believe that current international law is
not adequately addressing the use of cluster munitions and is failing to
protect civilian populations from the effects of the use of cluster munitions.
Recent international developments
1.17
A number of countries have responded to what they see as a failure by
the international community to prevent the unacceptable harm caused to
civilians by the use of cluster munitions. The majority report detailed these
recent developments.
1.18
In its submission, the Department of Defence stated that the Australian
Government 'shares domestic and international concerns about humanitarian
hazards associated with the use of some cluster munitions and...is working
actively to ameliorate these effects.' A number of submissions took issue with
this assertion. They pointed out that Australia was not one of the 46 nations present
at the Oslo Conference on Cluster Munitions.[17]
Australian Network to Ban Landmines stated:
Australia was not represented at the meeting in Oslo, with the
Australian Government stating that it was not invited. It is our understanding
that the meeting was open to all states that wished to attend.[18]
1.19
Landmine Action noted further that Australia has 'not engaged in
international negotiations on cluster munitions, choosing only to support a
limited discussion mandate within the UN Convention on Certain Conventional
Weapons (CCW)'.[19]
It must be acknowledged, however, that since the receipt of the submissions, official
representatives from Australia attended the follow-up meeting to the Oslo
Conference, which was held in Peru from 23-25 May 2007.
Labor members' views
1.20
While fully endorsing recommendation 7, Labour members stress that Australia
should be taking a more active leadership role in advocating a ban on cluster
munitions that cause unacceptable harm to civilians. To date, the Australian
government has shown no such inclination to lead and has tended to follow. It
is notable that until recently, Australia has only been involved in the CCW
forum and elected not to participate in the meeting in Oslo. However, the Oslo
forum evolved out of widespread frustration that the discussions within the CCW
were not progressing or likely to yield any tangible progress in introducing
measures related to addressing the adverse humanitarian impact of cluster
munitions. Australia did attend the follow-up meeting in Peru.
1.21
The Labor members call on the Australian Government to make a public
statement that unequivocally supports international efforts to ban the use of
cluster munitions that cause unacceptable harm to civilians and to strengthen
this statement by demonstrating a willingness to participate in all international
forums working toward this objective.
Defence's concerns
The acquisition of advanced sub-munitions
1.22
One of Defence's main objections to the Bill was that it would 'exclude Australia's
potential to exploit new emergent technologies that would be more capable,
discriminating and reliable than existing munitions'. The definition
of cluster munitions as provided in the bill would, according to Defence, have
the unintended consequence of preventing the acquisition of advanced,
sophisticated systems. These would include limited number, precision guided sub-munition
based weapon systems as well as, 'weapon-carrying unmanned Aerial Vehicles,
Surface Unmanned Vessels, and Underwater Unmanned Vehicles'.
1.23
In this respect, Defence has noted the comprehensive ban proposed under
the bill goes beyond most measures discussed in international forums. Defence
argued: 'there is no substantial support for such a ban' from states parties to
the CCW and that the provisions exceed those proposed by the International
Committee of the Red Cross and the Oslo Conference, which focused on
prohibiting only cluster munitions that are 'inaccurate and unreliable', or
‘have unacceptable humanitarian consequences’ respectively.[20]
1.24
Labor members accept the finding of the majority report that the bill
would, if enacted, effectively 'preclude development or acquisition of more
advanced, reliable and discriminating emergent technologies'. They accept
Defence's explanation that, 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
any sub-munition based weapon system, whether or not it was generally
considered to be a cluster munition, and including those intended to minimise
humanitarian impact. It is noted that both Landmine Action UK as well as the
Cluster Munitions Coalition and Handicap International have conceded
precision-guided munitions, such as in the process of being procured by Defence
and that would be banned under the bill, 'do not pose a greater risk to
civilians' and constitute legitimate alternatives to general cluster munitions.[21]
1.25
In this regard, Labor members agree with the majority report's 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 producing ERW.
1.26
Labor Senators note, however, the doubts raised by some submitters about
assertions concerning the reliability of these advanced sophisticated
munitions. For example, the Medical Association for Prevention of War (Australia)
noted that technological advances, 'while possibly offering some benefit in
terms of civilian protection in some situations, cannot necessarily be relied
on to deliver this result'. Submitters cited two reasons—reliability and
expense—for questioning the veracity of statements made about the reliability
and accuracy of the new technology.
Reliability
1.27
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. The Medical Association
for Prevention of War (Australia) noted that self-destruct mechanisms fitted to
cluster munitions can and do fail. Furthermore it argued that a low failure
rate of 1% may look attractive but when millions of cluster munitions are used
tens of thousands of live munitions result. The Australian Network to Ban
Landmines pointed out that deminers regularly report 'failure rates well above
the claims made by manufacturers and by military sources, where new cluster
munitions are usually tested under ideal conditions and on hard ground'. Mines
Action Canada noted the 'overwhelming humanitarian evidence' that these sorts
of weapons inherently pose unacceptable risks to civilians' and Austcare
referred to the poor track record to date.[22]
Expense of new technology
1.28
Technologically advanced weapons are 'almost invariably more expensive
than older weapons and this limits their use greatly'.[23]
Verification of the reliability and
accuracy of the new technology
1.29
The Medical Association for Prevention of War considered the use of
advanced munitions that 'would be of less humanitarian concern than those that
disperse hundreds of sub-munitions. It agreed that 'a legitimate case could be
put for their exclusion from the Bill with the qualification that 'any
exclusions should be absolutely clear-cut with no room for ambiguity or
different interpretations'.[24]
1.30
In response to Defence's intention to obtain an advanced sub-munition
capability, Mines Action Canada asked; 'What studies, tests and evaluations
have been undertaken regarding the potential humanitarian risks of the advanced
sub-munition capability?' Landmine Action asked a similar question.[25]
1.31
Mines Action Canada and Austcare stressed that it is up to governments
to prove that their cluster munitions would not cause unacceptable harm to
civilians by 'demonstrating conclusively that a particular weapon system does
not cause unacceptable harm'.[26]
Austcare maintained that the government would have the responsibility to
provide evidence 'that the advanced sub-munition capability it intends to
acquire does not pose serious humanitarian problems'.[27]
Labor members' views
1.32
Labor members accept that the bill as now drafted would not allow
Defence to acquire more advanced, reliable and discriminating emergent
technologies. In this regard, it endorses recommendations 3 and 4 but believes
that the cautionary words of the submitters that raised concerns about the reliability
of new technologies and the need for independent verification should be heeded
and reflected more strongly in the recommendations. In particular, it is noted
that Israeli Military Industries—a cluster munitions manufacturer—submitted to
the inquiry that the failure rates of its M85 sub-munition were 0.06 percent.
However, the majority report cited statements made in the UK Parliament that
these munitions yield failure rates of between one and five per cent.
1.33
The Labor members note that Defence has only indicated an interest in
acquiring more sophisticated, limited number, precision-guided sub-munition
based weapon systems with reliable self-destruction mechanisms that are not
designed to produce ERW. However, the Labor Senators of the committee consider
the introduction of a legal instrument to ban the procurement, production or
use of older systems to be highly desirable considering the adverse
humanitarian impact that these systems have had on civilian populations.
Training and countermeasures
1.34
Defence noted that the bill does not permit the acquisition of cluster
munitions for research or training purposes: that it makes no exception for
using, producing or stockpiling cluster munitions for the purpose of developing
countermeasures.[28]
1.35
Mines Action Canada, Austcare as well as the Cluster Munitions Coalition
and Handicap International, could see no impediment to amending the bill to
allow the Australian Defence Force to retain cluster munitions for training in
disposal or countermeasures. It noted, however, that the numbers retained would
'understandably be limited'.[29]
Labor Members' views
1.36
Labor members accept the finding of the majority report that the ADF
needs access to cluster munitions for training and to conduct countermeasures
research. They note that the bill as drafted would not allow these activities.
They also note that an amendment to the bill could resolve this difficulty.
Conclusion
1.37
Labor Senators believe that immediate action must be taken to ban the
manufacture and use of cluster munitions that cause unacceptable harm to
civilians.
1.38
Labour Senators believe that the Australian Government has not taken a
strong enough stand on banning the use of these types of munitions. It
recommends that Australia take a more active role in international forums
advocating a ban on the manufacture and use of cluster munitions that cause unacceptable
harm to civilians.
1.39
Labor members support the stated purpose of the bill which is 'to ensure
that innocent civilians in conflict zones are not maimed, killed, or put at
risk as a result of Australians possessing, using or manufacturing cluster
munitions'. Having considered the evidence, it is not convinced, however, that
the bill as drafted takes sufficient account of Defence's concerns. In
particular, Labor members note Defence's concerns about not being able to
acquire and/or use advanced cluster munitions designed so that they do not pose
an unacceptable risk to civilians. They do note submitters concerns, however,
about the need to ensure that any claims about the reliability of these
munitions must be fully and comprehensively tested and their reliability
independently verified.
1.40
The majority report recommended that the bill not proceed. Labor
Senators believe that this might send the wrong message. It believes that the
sponsors of the bill should withdraw the proposed legislation for the time
being. This measure would allow them to consider the concerns raised by Defence
and to take account of international developments. Labor Senators want to
ensure that discussion of, and consultation on, legislation relating to the use
of cluster munitions continues so that common ground can be established for the
drafting of future legislation.
| SENATOR MARK BISHOP |
|
SENATOR JOHN HOGG |
| |
|
|
| SENATOR STEVE HUTCHINS |
|
SENATOR MICHAEL FORSHAW |
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