Commitment to the Convention on Cluster Munitions

Policy

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

Australia’s implementing legislation is the Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012, which entered into force on 1 April 2013.[1] Australia has stated that the legislation and ban convention “are fully reflected in Australian Defence Force (ADF) doctrine, procedures, rules and directives.”[2] A joint directive issued by the Secretary of the Department of Defence and Chief of the Defence Force on 27 March 2013 instructs all defence personnel on compliance with the implementing law and ban convention.[3]

Australia submitted its initial Article 7 transparency report for the Convention on Cluster Munitions on 6 September 2013 and provided an annual updated report on 11 April 2014.[4]

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 has continued to actively engage in the work of the Convention on Cluster Munitions. It has participated in every Meeting of States Parties of the convention, including the Fourth Meeting of States Parties in Lusaka, Zambia in September 2013, where it spoke on universalization, clearance and risk reduction, victim assistance, and cooperation and assistance. Australia has attended all of the convention’s intersessional meetings in Geneva, including in April 2014 where it made several statements, including on victim assistance.

Australia has supported efforts at the multilateral, regional, and bilateral levels to universalize the Convention on Cluster Munitions, especially in the Asia-Pacific region. It supported a workshop held in Brisbane on 27–28 June 2013 by the Pacific Islands Forum Secretariat and ICBL-CMC member SafeGround (recently renamed from the Australian Network to Ban Landmines and Cluster Munitions) that addressed the Convention on Cluster Munitions and related treaties.[6]

At the UN General Assembly (UNGA) First Committee on Disarmament and International Security in October 2013, Australia stated that it recognizes the tragic impact that cluster munitions have on civilians and “encourages continued momentum on universalisation of the Convention on Cluster Munitions.”[7]

Australia first expressed concern at the use of cluster munitions in Syria in April 2013.[8] At the intersessional meetings in April 2014, Australia noted “recent reports of possible use of cluster munitions in the conflict in Syria in the past year” and again urged “the parties to the conflict…to refrain from using cluster munitions.”[9] Australia has voted in favor of UNGA resolutions condemning Syria’s cluster munition use, including Resolution 68/182 on 18 December 2013, which expressed “outrage” at “continued widespread and systematic gross violations of human rights…including those involving the use of…cluster munitions.”[10] In a 6 March 2014 response to a letter from SafeGround expressing concern at reports of new cluster munition use in South Sudan, Australia’s Minister of Foreign Affairs said the government “notes with concern the recent reports of possible use of cluster munitions in South Sudan” and “if accurate, this would be contrary to the growing international consensus established by the Convention against the use of these indiscriminate weapons.”[11] As a non-permanent member of the UN Security Council, Australia endorsed Security Council Resolution 2155 on 27 May 2014, which expressed concern at the use of cluster munitions in South Sudan and called for “all parties to refrain from similar such use in the future.”[12]

Interpretive Issues

In correspondence, in statements 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. The CMC has described the 2012 implementing law as “extremely problematic” because 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.”[13]

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.”[14] 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.[15]

In the view of the CMC, Section 72.41 of Australia’s implementing legislation 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.”[16] 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.”[17] 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, “With 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.”[18]

In November 2011 the Minister of Defence, the Minister for Foreign Affairs, and the Attorney-General declared that “The 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.”[19]

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.”[20]

In June 2012, the Attorney-General stated that “ADF personnel serving alongside defense 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.”[21]

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).[22] 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 “From a policy perspective, Australia would strongly wish to avoid any limitations on ADF involvement in tactical planning with US forces.”[23]

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.

Despite agreeing to legislation explicitly allowing foreign stockpiling of cluster munitions in Australia, government representatives have often stated that foreign stockpiling of cluster munitions on Australian soil would not be allowed. Australia’s 2013 Article 7 report states that “the Australian government announced on 23 November 2011 that as a matter of policy ‘it will not approve the stockpiling of cluster munitions in Australia by foreign governments.’”[24] In an October 2012 statement, the Minister for Foreign Affairs, the Minister for Defence, and the Attorney-General said, “Australia will not approve the stockpiling of cluster munitions in Australia by other countries.”[25] In June 2012, the Attorney-General stated that “the Government has not and will not authorise foreign stockpiles of cluster munitions in Australia.”[26] Before the November 2011 policy decision, Australian officials told the Monitor that the legislation permitted foreign stockpiling in Australia.[27]

Disinvestment

Australia’s implementing legislation does not include specific measures to prohibit investment in cluster munition production. In March 2011, DFAT informed the Monitor, “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.[28] During Senate debate in 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.”[29] 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.”[30]

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.[31] According to a June 2012 report, at least one Australian financial institution has invested in companies involved the production of cluster munitions.[32]

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 has declared in its Article 7 reports that “The Australian Defence Force (ADF) has not used and does not use cluster munitions operationally.”[33]

Australia has also declared that it “does not have and has never had a stockpile of cluster munitions for operational use.”[34] Previously, in April 2013, Australia stated that it has never had “operational stockpiles of cluster munitions” and “will not, therefore, need to undertake a process of stockpile destruction.”[35] The November 2011 declaration by the Minister for Foreign Affairs, Minister for Defence, and the Attorney-General affirmed that “Australia has never had an operational stockpile.”[36]

In the initial Article 7 report, Australia clarified that “in the 1970s and early 1980s Australia conducted the KARINGA project” which involved “design trials of an indigenous cluster munition, as well as operational test and evaluation trials.” According to the report, the trials “did not result in a production run” and “the KARINGA was not certified for operational employment, was never introduced into service, and has not been used in any operations.”[37]

Under Form D of the Article 7 reports on the “technical characteristics” of cluster munitions produced/owned or possessed by Australia, it has responded “this information is classified.”[38] In  2010, a senior DFAT official informed the Monitor that approximately 10–20 cluster munitions were tested and Australia also acquired and tested “limited numbers” of US CBU-58 cluster bombs “to ‘baseline’ the Karinga’s performance” but these trials did not result in a production decision.[39]

In 2007, Australia procured SMArt 155 weapons with submunitions, a 155mm antitank artillery round that contains two submunitions.[40] The weapon is not covered by the definition of a cluster munition in the Convention on Cluster Munitions.[41]

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.[42] 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.”[43]

In its Article 7 reports, Australia has declared the retention of two cluster munitions and 276 explosive submunitions from the former Soviet Union.[44] Previously, in June 2011, Australia described its retained cluster munitions as “representative samples,” a combination of submunitions and dispensers of which only two bombs are “live,” and said they were not part of operational stocks or suitable for use.[45]

Ministerial authorization for the acquisition and retention of cluster munitions and explosive submunitions for training, counter-measures, and destruction purposes took effect on 1 April 2013. Previously, in May 2012, Australia informed the Monitor that “In 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.”[46]