The Australian Senate has a chance to avoid an embarrassing double standard in its approach to international law. But it needs to decide: does it want to ban cluster munitions or not? Is it willing to stand by its signed commitment to eliminate these indiscriminate weapons immediately rather than do the bidding of the United States, which wants to put off a ban until at least 2018?
If the Senate passes the Cluster Munition Prohibition Bill without amendment, Australia will be in the unfortunate position of having arguably the world's weakest national law to carry out the international ban on cluster munitions. The Senate, which is scheduled to debate the bill in coming days or as early as today, should instead seize the opportunity to strengthen the proposed legislation, increasing protection for civilians in armed conflict and remaining true to the international law Australia claims to support.
The bill is designed to enforce the 2008 Convention on Cluster Munitions, a landmark treaty banning the use, production, transfer, and stockpiling of these inhumane weapons. Australia is one of 108 states to have signed the convention, meaning it must uphold the convention's humanitarian objectives. So far, 60 countries have ratified and are bound to meet all of the treaty's obligations. Australia's legal system requires it to pass domestic implementation legislation before it can ratify.
As currently drafted, Australia's proposed legislation creates exceptions to the convention's absolute prohibition on cluster munitions, running counter to the convention's purpose. It would allow Australian troops to facilitate future use of cluster munitions by allies that have not joined the convention, notably the United States. For example, according to the Department of Defence, Australian forces could jointly plan cluster munition strikes, provide intelligence for such attacks, or refuel planes on their way to drop cluster munitions. In addition, the bill would allow military personnel of states that are not parties to escape prosecution for stockpiling cluster munitions on or transferring them through Australian territory. The convention bans both stockpiling and transfer.
Cluster munitions, large weapons that disperse smaller submunitions, blanket a broad area, killing soldiers and civilians alike. They continue to cause casualties after a conflict because many submunitions do not detonate on impact and linger like landmines for months or years to come. Human Rights Watch and others have documented the use of these weapons by Muammar Gaddafi's forces this year in residential parts of Misrata, Libya.
Even though the Australian government recognises the harm cluster munitions cause, it asserts that it could not participate in joint military operations unless it is permitted to assist non-party allies in using the weapons. But other countries, such as New Zealand and Norway, have passed laws that allow for joint operations without condoning assistance with cluster munition use.
Australia's proposed legislation paves the way for the country to ratify the Convention on Cluster Munitions, a crucial step that will enable Australia to be a full state party to the convention. But Australia's ratification should not depend on a law of loopholes. It should rest on a strong law that faithfully promotes the purpose of the convention — to eliminate cluster munitions and the harm they cause.
