Commitment to the Convention on Cluster Munitions

Policy

Australia signed the Convention on Cluster Munitions on 3 December 2008 and ratified on 8 October 2012. The convention entered into force for Australia on 1 April 2013.

In June 2013, a government representative informed the Monitor that Australia’s entry into force of the Convention on Cluster Munitions represents “the culmination of a longstanding commitment” to the convention.[1] Australia’s initial Article 7 report is due by 28 September 2013.

National Implementation Legislation

Australia’s implementing legislation is the Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012, which came into force on 1 April 2013. The Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010was approved by the House of Representatives on 18 November 2010 and by the Senate on 21 August 2012. The bill was given royal assent on 8 September 2012 and Australia deposited the instrument of ratification with the UN in New York on 8 October 2012.

At intersessional meetings of the ban convention in April 2013, Australia stated that its legislation “faithfully and fully implements the Convention – making it an offence in Australia, to use, develop, produce, acquire, stockpile, retain or transfer cluster munitions.…The obligations and limitations under the Convention and the Cluster Munitions Prohibition Act are fully reflected in Australian Defence Force (ADF) doctrine, procedures, rules and directives.”[2]

From the time of the bill’s introduction, the CMC and Australian NGOs urged that key sections of the bill be revised, particularly with respect to its provisions on joint military operations with states not party.[3] During the third and final Senate debate on 21 August 2012, Green Senator Scott Ludlam proposed a raft of amendments to strengthen and clarify key provisions of the law that failed to achieve support from either the governing Labor Party or from the major opposition Liberal Party and the legislation was approved without amendment by a vote of 29 to 10.

The CMC has described the Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 as “extremely problematic” as it “allows its military personnel to assist with cluster munition attacks by states not party, and it creates explicit exceptions for transit across, and foreign stockpiling of cluster munitions in the country’s territory. The provisions not only run counter to the prohibition on assistance but also contravene Article 9, which requires penal sanctions for activities prohibited by the convention and ‘undertaken by persons or on territory under its jurisdiction or control.’ Such interpretations of the convention, which are in the minority, are contrary to both the language of the treaty and its underlying aim.”[4]

The Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 is reviewed in the section on interpretive issues.

Ban Policy

Australia participated extensively in the Oslo Process that created the Convention on Cluster Munitions and its policy toward the prohibition on cluster munitions evolved significantly during that time.[5] Australia joined in the consensus adoption of the convention in Dublin on 30 May 2008 and signed in December 2008.

Australia continued to actively contribute to the work of the Convention on Cluster Munitions in 2012 and the first half of 2013. It participated in the Third Meeting of States Parties in Oslo, Norway, where it made several statements, including on universalization, clearance and risk reduction, and cooperation and assistance.

Australia attended the convention’s intersessional meetings in Geneva in April 2013 and made statements on national implementation measures, compliance, victim assistance, and on the issues of clearance and risk reduction.

At the intersessional meetings in April 2013, Australia noted “recent reports of possible use of cluster munitions in the conflict in Syria in the past year” and urged “the parties to the conflict…to refrain from using cluster munitions.”[6] Australia also voted in favor of a UN General Assembly (UNGA) resolution on 15 May 2013 that strongly condemned “the use by the Syrian authorities of...cluster munitions.”[7]

Australia attended a regional meeting on the Pacific Islands Forum Regional Unexploded Ordnance Strategy in Koror, Palau in October 2012.

Australia has supported efforts to encourage universalization of the Convention on Cluster Munitions at the multilateral, regional and bilateral levels, including in the Asia-Pacific region where it supported workshops on the convention held in Bangkok in August 2011, Phnom Penh in August 2011, and Palau in October 2012. Australia also provides support to the CMC for its advocacy work.[8]

Interpretive Issues

In correspondence as well as during the Oslo Process to negotiate the convention and in the course of the process to enact the Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012, Australia has publicly expressed its views on a range of important matters relating to interpretation of the Convention on Cluster Munitions.

Joint military operations

According to the bills digest, Section 72.41 of Australia’s implementing legislation “provides a defence to the offence provisions where prohibited conduct takes place in the course of military cooperation or operations with a foreign country that is not a party to the Convention.”[9] During joint or coalition military operations, ADF personnel could help plan operations or provide intelligence for, and/or contribute logistical support to coalition members during which a state not party uses cluster munitions.[10]

In the view of the CMC, Section 72.41 of Australia’s implementing legislation provides a defence to the offence provisions where prohibited may be interpreted to allow Australians to assist in the context of joint or coalition military operations with prohibited activities that run counter to the convention’s object and purpose as well as its prohibition on assistance. In September 2012, the CMC expressed concern that the legislation “allows Australian troops to directly and actively assist in activities prohibited by the Convention during military operations with states not party to it, allowing its military personnel to help plan, give logistical support for, or provide intelligence for cluster munition attacks by states not party.”[11] It noted that, “the express authorization of these forms of assistance is clearly counter to the letter and the spirit of the Convention, and we were deeply disappointed that the bill was passed without changing these elements.”[12] The CMC believes a State Party can allow participation in joint military operations without permitting these forms of assistance.

In June 2013, a government representative informed the Monitor that “Australia’s view regarding interoperability is a matter of public knowledge and has been consistent throughout the negotiations on the Convention to the present day. Section 72.41 of Australia’s implementing legislation is consistent with the provisions in Article 21 of the Convention.”[13] In a joint statement issued upon Australia’s ratification in October 2012, the Minister for Foreign Affairs, the Minister for Defence, and the Attorney-General stated, “[w]ith this legislation, it is now an offence to use,…and also to encourage others to engage with these dangerous weapons.…The Convention and the Act will also apply to Australian Defence Force (ADF) personnel during military operations and ADF personnel serving alongside the defence forces of States not party to the Convention.”[14]

In November 2011 the Minister of Defence, the Minister for Foreign Affairs and the Attorney-General stated that “[t]he ability to maintain interoperability is central to the maintenance of Australia’s national security,” and said “Australian Defence Force personnel will not be permitted to use, develop, produce or otherwise acquire cluster munitions, or to make the decision to do so. This includes while serving on combined operations with Defence forces of other countries, in combined headquarters, or on exchange with a foreign force.”[15]

In May 2012, the Department of Foreign Affairs and Trade (DFAT) informed the Monitor that “ADF personnel involved in joint operations may call in fire support from forces of a State not party to the Convention, where they are aware that cluster munitions may be used. However, ADF personnel must not specifically request the use of cluster munitions where the choice of munitions is within their exclusive control.”[16]

In June 2012, the Attorney-General stated that the “limitations” contained in Australia’s then-draft implementing legislation “ensure that Australia and Australians will continue to act consistently with the object and purpose of the Convention. ADF personnel serving alongside defence forces of other countries remain subject to Australian domestic and international legal obligations and national policy requirements, which are applied through ADF doctrine, procedures, rules, and directives.”[17]

During the Oslo Process, Australia supported the inclusion in the convention text of provisions on “interoperability” or military relations with states that have not joined the convention (Article 21).[18] In a December 2008 United States (US) diplomatic cable made public by Wikileaks in August 2011, a senior Australian foreign affairs official reportedly informed US officials that “[f]rom a policy perspective, Australia would strongly wish to avoid any limitations on ADF involvement in tactical planning with US forces.”[19]

Transit and foreign stockpiling

Section 72.42 of Australia’s implementing legislation explicitly allows states not party to stockpile cluster munitions on Australian soil and permits them to transit cluster munitions through Australian ports and airspace. In the CMC’s view, transit and foreign stockpiling are activities banned under the prohibition on assistance of the Convention on Cluster Munitions.

Australia has informed the Monitor that the implementation legislation “provides a defence for military personnel of countries that are not party to the Convention who stockpile, retain or transfer cluster munitions while on a base, ship or aircraft in Australian territory. Notwithstanding this defence, visiting forces would not be allowed to use, develop, produce or acquire cluster munitions in Australia.”[20] In March 2011, an official said that Article 21(3) permits States Parties to undertake military cooperation and operations with States not party to the Convention which “may extend to hosting foreign bases, aircraft, or ships and, in this context, to the stockpiling, retention and/or transfer of cluster munitions by military personnel of States not party to the Convention.”[21]

Australia officials have often stated that foreign stockpiling of cluster munitions on Australian soil will not be allowed. In June 2013, a government representative informed the Monitor that “The Australian Government has stated consistently since 2011 that, as a matter of policy, it will not approve the stockpiling of cluster munitions by foreign governments in Australia. Nor are there any existing stockpiles of cluster munitions on Australian territory.”[22] In an October 2012 statement, the Minister for Foreign Affairs, the Minister for Defence, and the Attorney-General said, “Australia does not have operational stockpiles of cluster munitions and will not approve the stockpiling of cluster munitions in Australia by other countries.”[23] In June 2012, the Attorney-General stated that “the Government has not and will not authorise foreign stockpiles of cluster munitions in Australia.”[24]

Disinvestment

Australia’s implementing legislation does not include specific measures to prohibit investment in cluster munition production. In the March 2011 letter to the Monitor, the DFAT said, “While the Convention does not expressly prohibit investment in companies that produce or manufacture cluster munitions, some acts of investment will fall within the scope of the conduct prohibited by Article 1” of the convention.[25] During Senate debate on the bill in October 2010, the Attorney-General stated that activities covered by the conduct prohibited by the draft implementing legislation includes where a person “invests in a company that develops or produces cluster munitions, but only where that person intends to assist, encourage or induce the development or production of cluster munitions by that company.”[26] In a March 2011 list of examples of what will fall within the scope of an offense under Australia’s implementation legislation, the Attorney-General’s department stated “The intentional provision of financial assistance to an entity so that the entity can develop or produce cluster munitions will amount to an offence.”[27]

In May 2011, Australia’s sovereign wealth fund confirmed that it had divested itself of holdings in mine and cluster munition manufacturers by excluding 10 companies from its investment portfolio.[28] According to a June 2012 NGO report, at least one Australian financial institution invests in companies involved the production of cluster munitions.[29]

Australia is a State Party to the Mine Ban Treaty. It is also party to the Convention on Conventional Weapons.

Use, production, transfer, and stockpiling

Australia does not have, and has never had, an operational stockpile of prohibited cluster munitions. In April 2013, Australia confirmed stated that it has never had an “operational stockpiles of cluster munitions” and “will not, therefore, need to undertake a process of stockpile destruction.”[30]

Previously DFAT stated that “Australia has not developed, produced or used cluster munitions, and does not currently develop, produce or use them.”[31] In 2010, the DFAT clarified that “To the best of our knowledge, the ADF has not used cluster munitions as a weapon of war, and has never had operational stocks of cluster munitions to use.”[32] The November 2011 statement by the Minister for Foreign Affairs, Minister for Defence, and the Attorney-General affirms that “Australia has never had an operational stockpile.”[33]

In 2007, Australia procured SMArt 155 weapons with submunitions, a 155mm antitank artillery round that contains two submunitions.[34] The weapon is not covered by the definition of a cluster munition in the Convention on Cluster Munitions.[35]

Retention

Section 72.39 of Australia’s implementation legislation permits the retention of cluster munitions using language identical to that of the convention’s Article 3.6.[36] In April 2013, Australia stated that “As permitted under Article 3(6) of the Convention, the ADF possesses a limited number of live cluster munitions for the development of, and training in, cluster munition detection, clearance and destruction techniques, as well as the development of counter-measures.”[37]

In May 2012, Australia informed the Monitor that “[i]n specific circumstances specified members of the ADF (or other specified Commonwealth public officials) may acquire or retain specified cluster munitions with the written authorization of the Minister for Defence (or delegate) who is the Minister responsible for the administration of the Explosives Act 1961.”[38] In June 2011, Australia said that the retained munitions are “representative samples,” a combination of submunitions and dispensers of which only two bombs are “live,” andthey are not part of operational stocks and not suitable for use.[39]