Criminal Code Amendment (Cluster Munition Prohibition) Bill 2010
Australia signed the Convention on Cluster Munitions 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. By 7 February 2011, 51 countries had ratified the convention, indicating their intent to be legally bound by the convention’s provisions. The Cluster Munition Prohibition Bill is legislation enabling Australia to ratify the treaty.
Key concerns with bill
- Weak interoperability provisions. That is, loopholes in the legislation allowing Australia to assist in the use of cluster bombs when in joint operations with the US – something that subverts the intent and spirit of the convention (which is to eradicate cluster bombs).
- Jurisdiction issues which explicitly allow foreign forces to use Australian territory to stockpile and transit cluster bombs, thus clearly facilitating the continued use of cluster bombs – in direct contravention of the convention.
- Retention provisions which allow Australia to retain a stockpile of live cluster bombs without setting any maximum permitted number nor making any requirement for ongoing reporting on numbers held.
- No mention of the convention’s positive obligations to assist in clearance of contaminated areas, assist victims, assist other states parties, and work to universalise the convention.
- No prohibition on investment in the production of cluster munitions. Disinvestment must be clarified and needs to be explicitly mentioned in the legislation (the convention uses the words “assist and encourage” – which implies investment – but JSCOT recommended this bill explicitly clarifythat this includes investment.)
The proposed Australian legislation is a weak interpretation of the convention and does not reflect the spirit and intent of the convention.
Failure to use same wording as convention
In their joint submission to the Senate FADT Committee, AG Robert McClelland and Ministers Kevin Rudd and Stephen Smith said, “In order to ensure that all conduct that is prohibited by the Convention is the subject of a criminal offence under Australian law (as required by article 9 of the Convention), the bill has used the same language as the Convention wherever possible.”
“Wherever possible” glosses over the loopholes in the proposed legislation. Why has it been seen as impossible to mirror the strong convention language?The Government needs to explain:
- Why it wasn’t possible to include the words “under any circumstances” when banning the use, stockpiling, and transit of these indiscriminate weapons – words that do appear in the convention (Article 1) to emphasise the comprehensive nature of the ban, but words which the Government has removed.
- Why it was seen as possible to add words which explicitly allow foreign military allies to stockpile, retain and transit cluster munitions in Australia – when these activities are explicitly prohibited by the convention – and no other country has made these provisions?
- Why, in direct contravention of the convention, the legislation explicitly allows Australian troops to assist with cluster munitions-related activities during joint military operations to the extent where Australian military personnel would essentially be allowed to load and aim provided they did not pull the trigger? (per HRW submission.)
Legal ramifications
Australian Lawyers for Human Rights note the “unprecedented” nature of Australia’s explicit provisions enabling the convention to be circumvented:
“No other party to the Convention provides expressly for other parties to act contrary to its objects. It is unprecedented… That Australia is on thin legal ice is unlikely to escape the notice of the international community.”
“This is a treaty whose primary object and purpose is the universal eradication of these weapons… By becoming a party to the treaty, Australia should be placing the burden on states who have retained cluster munitions to seriously reconsider their continuing use of weapons we have declared to be inherently inhumane. Instead, we are bending over backwards to accommodate our powerful military ally, putting our land, infrastructure and potentially our military at their disposal.”
“If Australia is serious about cluster munitions – then it is time to put the burden on those countries which continue to see some utility in a weapon that time and again has been proven more effective at killing children than winning wars.”
A Handicap International study found that 98% of the victims of unexploded cluster munitions are civilian, a third of these are children. Australia must take a strong stand against the manufacture, retention and use of cluster munitions.