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The Commonwealth of Australia signed the Convention on Cluster Munitions in Oslo on 3 December 2008. Australia confirmed that it had started its parliamentary process to ratify the convention during a special event to promote the convention at the UN in New York in March 2009.[1]

Australia is a party to the Convention on Conventional Weapons (CCW) and ratified Protocol V on Explosive Remnants of War on 4 January 2007. It has been an active participant in and supporter of the work of the CCW on cluster munitions in recent years.

Cluster Munition Ban Policy

Australia’s cluster munition policy evolved significantly from 2006 to 2008. It was not an early supporter of any kind of prohibition on cluster munitions. At the CCW Third Review Conference in November 2006, Australia did not support a proposal for a mandate to negotiate a legally-binding instrument “that addresses the humanitarian concerns posed by cluster munitions.”[2]

Australia stated that “while states are agreed on the need to act, we are well short of consensus on such negotiations among States Parties. Any instrument on cluster munitions must include major producing and user states to maximize its humanitarian benefit.” Australia supported the continuation of work on cluster munitions in the CCW framework, “to explore the application, implementation and adequacy of existing international humanitarian law as it applies to munitions that may become ERW, including cluster munitions, as well as factors affecting their reliability and design characteristics.”[3]

On 5 December 2006, Senator Lyn Allison, leader of the Australian Democrats, introduced in the Senate a private members bill titled the Cluster Munitions (Prohibition) Bill 2006. The bill stated its purpose as “to ensure the innocent civilians in conflict zones are not maimed, killed, or put at risk as a result of Australians possessing, using or manufacturing cluster munitions.”[4]

Australia did not attend the initial meeting in Oslo to launch the Oslo Process in February 2007, but participated in all of the subsequent international diplomatic conferences to develop the convention text in Lima, Vienna, and Wellington, as well as the formal negotiations in Dublin in May 2008. It also attended the regional conference hosted by the Lao PDR in October 2008 to promote signature of the convention in Southeast Asia.

Just prior to the Lima conference, Australia sent a letter to the CMC indicating that it would participate in Lima, but stated, “We remain of the view, however, that the [CCW] is the most appropriate forum…particularly since it includes the major producers and users of cluster munitions who have chosen to stay outside the Oslo Process.”[5]

At the Lima conference in May 2007, Australia stated it was participating in the Oslo Process out of shared concerns over the humanitarian hazards posed by inaccurate and unreliable cluster munitions. At the same time, Australia declared it was actively pushing for a negotiating mandate in the CCW as it viewed the Oslo Process and the CCW as complementary.[6] With respect to the draft convention text, Australia said that in determining the scope of any prohibition, reliability had to be considered, with possible exemptions for cluster munitions with certain technical characteristics such as self-destruct mechanisms. Australia also set out its concerns about “interoperability,” referring to potential criminal liability for members of its Defence Forces in joint operations with states not party. Australia spoke of the need to hold representative samples of cluster munitions for the purpose of training and research, saying training was crucial for Australia to make a contribution to humanitarian efforts on cluster munitions.[7]

On 31 May 2007, the Australian Senate Committee recommended that the Cluster Munition (Prohibition) Bill under consideration should not be passed.[8] It stated that while “there is an urgent need for measures to be taken to prevent the use of such deadly weapons from harming civilian populations,” distinctions could be made between cluster munitions and submunition-based weapon systems that “are not designed for area saturation. The latter includes the limited number, precision-guided sub-munitions.”[9]

The Department of Defence argued that the bill would have put Australia “at a serious military disadvantage in future conflicts” and would constrain Australia’s ability to negotiate internationally on the issue. It also argued that further regulation of the use of cluster munitions was unnecessary beyond what was already contained in international humanitarian law, in particular Protocol V of the CCW.[10] The Senate Committee, however, rejected this view and acknowledged that “there is insufficient protection for civilians from the ERW [explosive remnants of war] legacy of cluster munitions.” The Committee encouraged the government “to strengthen its multilateral efforts towards the effective regulation of the use of cluster munitions.”[11] The Senate Committee’s decision was strongly criticized domestically by NGOs[12] and Australian politicians calling for a ban on cluster munitions. [13]

In conjunction with the Senate Committee’s report, the Department of Defence stated it was “acquiring an advanced sub-munition based weapon system capability for use against mobile armoured vehicles.” It said this system would have “probably between two and ten submunitions,” with “guided targeting, and self-destruction or self-neutralisation capabilities.”[14]

In the November 2007 Meeting of the States Parties to the CCW, Australia pledged support to the CCW’s work on cluster munitions believing that “millions of concerned citizens in our countries are looking for leadership and substantive progress from the CCW to address those cluster munitions that cause unacceptable harm to civilians. Our institution could suffer greatly if we are not seen to provide that leadership.”[15]

At the Vienna conference in December 2007, Australia declared its aim to seek a legally-binding agreement in both the Oslo Process and the CCW. It called the need for new provisions in the draft text on interoperability a “red line issue” for Australia in order to avoid significant legal barriers to humanitarian interventions, including specifically, UN mandated interventions.[16] Australia advocated for a high standard for victim assistance to address the long-term needs of survivors.[17]

At the Wellington conference in February 2008, Australia again emphasized concerns over interoperability.[18] It introduced a discussion paper which argued that the prohibition on assistance as contained in the Wellington draft text “could inhibit a range of military activities essential to the effectiveness of international operations” and listed a number of scenarios it considered problematic.[19] On definitions, it stated “Australia does not believe that the most modern sensor fused systems which contain a small number of submunitions and which are fitted with redundant fail safe mechanisms which are designed to initiate only when an appropriate target is identified should be captured within the definition of cluster munitions that pose an unacceptable harm to civilians….”[20] It also continued to argue for a capacity to hold stocks of cluster munitions for training and research.[21] Australia associated itself with the so-called like-minded group that put forth a number of proposals strongly criticized by the CMC as weakening the draft text. It supported the joint statement of the like-minded group at the end of the conference expressing disappointment with the proceedings and the unwillingness to incorporate their proposals into the draft text.[22] Nevertheless, Australia subscribed to the Wellington Declaration, indicating its intention to participate fully in the formal negotiations in Dublin on the basis of the Wellington draft text.

At the beginning of the Dublin Diplomatic Conference in May 2008, Australia maintained the positions it outlined in Wellington. On 20 May 2008, while negotiations were underway, Australia’s Minister of Foreign Affairs Stephen P. Smith stated in a press release that “Australia’s objectives at the conference will be to address the humanitarian consequences of older and inherently unreliable cluster munitions that scatter battlefields with tens and hundreds of unexploded bombs which continue to kill and maim civilians long after the cessation of conflicts.[23] Australia argued that current and future submunitions which use sensors to engage point-targets and have electronic self-destruct and self-neutralization mechanisms should lie beyond the scope of the prohibition.[24] Australia continued to argue for the inclusion of provisions on interoperability, calling it “a deal-breaker,” and arguing that it could not be addressed through national statements, but needed amendments to the convention text.[25] Australia’s key concerns, particularly regarding the definition and interoperability were largely met in the final convention text, and Australia joined in the consensus adoption of the convention. In doing so, it lauded the convention’s strong humanitarian outcome, its ground breaking provisions on victim assistance, and its provisions on international cooperation and assistance.[26]

In November 2008, when CCW negotiations on cluster munitions were set to conclude, Australia did not join 26 states that issued a joint statement expressing their opposition to the weak draft text on a possible CCW protocol on cluster munitions, indicating it was an unacceptable step back from the standards set by the Convention on Cluster Munitions.[27] CCW States Parties were unable to reach agreement on text and extended the work into 2009.

Upon signing the Convention on Cluster Munitions in Oslo in December 2008, Minister of Foreign Affairs Stephen P. Smith praised the humanitarian impact of the convention. He acknowledged the work and leadership of the “Core Group” of states behind the Oslo Process, and said that “we also owe civil society a great deal of credit for this outcome.” He paid tribute to the “inspiring role played by survivors.”[28]

Use, Production, Stockpiling, and Transfer

According to the Department of Foreign Affairs and Trade, “Australia has not developed, produced or used cluster munitions, and does not currently develop, produce or use them.”[29] Similar statements were made by Australian delegations at the Oslo Process conferences in Lima, Wellington, and Dublin.[30] In May 2007, the department stated that “Australia does not in fact have a stockpile of cluster munitions; the ADF [Australian Defence Force] holds representative samples of cluster munitions—most of them inert—solely for research and training.”[31]

While Australia does not use, produce or stockpile cluster munitions today, the—still incomplete—historical accounting of Australia’s involvement with cluster munition use, production, and stockpiling appears to tell a different story. In November 2006, Senator Lyn Allison asked the Minister of Defence a series of questions (Question No. 2616) regarding Australia’s past involvement with cluster munitions. Senator Ian Campbell provided the answers:[32]

Question: “Does the Government possess a stockpile of cluster bombs?”

Answer: “No.”

Question: “If the Government does not possess a stockpile of cluster bombs, has the Government ever possessed such a stockpile in the past?”

Answer: “Yes, from the 1970s to 1990s.”

Question: “Has the Government ever used a cluster bomb as a weapon of war or for testing purposes; if so: (a) how many have been used; (b) where have they been used; and (c) what types have been used?”

Answer: “The Australian Defence Force has not used cluster munitions as a weapon of war, but they have been used in limited quantities for testing purposes: (a) Approximately 10 to 20 cluster munitions were tested; (b) Woomera test range in South Australia; (c) Karinga cluster bomb and American CBU-58B.”

Question: “Has the Government ever produced, or contracted an Australian company to produce, cluster bombs?”

Answer: “Yes, in the 1970s and 1980s the Government manufactured limited numbers of cluster bombs for testing purposes.”

Moreover, there is an undated photograph of Australian military personnel fitting, albeit for “trial” purposes, a US SUU-7 submunition dispenser to an Australian bomber during the Vietnam conflict.[33] The No. 2 Squadron of the Royal Australian Air Force operated Canberra B. Mk-20 bombers out of Phan Rang Air Base in Vietnam from April 1967 until June 1971 while assigned to the United States Air Force’s 35th Tactical Fighter Wing.[34] According to a respected history, “The bombs used during the early period came from Bomb Dumps throughout Australia.... After that, standard US [Air Force] weapons were the norm.”[35]

Australia developed, manufactured, and tested a cluster bomb named Karinga as “an experimental cluster bomb developed by the Defence Science and Technology Organization (DTSO) in the 1970/1980s for employment by F111 strike aircraft.”[36] According to information disclosed to the Australian Senate, Australia apparently also acquired a number of US CBU-58 cluster bombs during the same time period, presumably for comparative testing with the Karinga.

Jane’s Information Group lists Australia as possessing US-produced Rockeye cluster bombs as recently as January 2008, but military officials state that these weapons were removed from the inventory of the Australian Defence Forces many years ago.[37]

In October 2007, it was reported that Australia “has finalised the acquisition of SMArt 155 artillery rounds worth AUD14 million (USD12.3 million) for its 36 M198 155mm towed howitzers.”[38] SMArt 155 contains two submunitions but is not captured by the definition of a cluster munition in the Convention on Cluster Munitions because it meets the five technical criteria set out by negotiators as necessary to avoid the negative effects of cluster munitions.[39] In a letter dated 10 July 2008, Minister of Foreign Affairs Stephen P. Smith stated, “Advanced munitions with reliable, electronic fuzes and fail-safe elements, such as the SMArt 155, do not fall within the definition of a cluster munitions which has been agreed in the Convention. This definition was drafted with the express purpose of creating a comprehensive ban on all cluster munitions which have caused humanitarian problems when used in previous conflicts.”[40]

[1] CMC, “Report on the Special Event on the Convention on Cluster Munitions, United Nations, New York, 18 March 2009.”

[2] Proposal for a Mandate to Negotiate a Legally-Binding Instrument that Addresses the Humanitarian Concerns Posed by Cluster Munitions, Third Review Conference of the States Parties to the CCW, CCW/CONF.III/WP.1, Geneva, 25 October 2006. When States Parties rejected the mandate, Australia did not join 25 nations in supporting a declaration calling for an international agreement that would prohibit the use of cluster munitions “within concentrations of civilians,” prohibit the use of cluster munitions that “pose serious humanitarian hazards because they are for example unreliable and/or inaccurate,” and require destruction of stockpiles of such cluster munitions. Declaration on Cluster Munitions, Third Review Conference of the States Parties to the CCW, CCW/CONF.III/WP.18, Geneva, 17 November 2006.

[3] Statement of Australia, Third Review Conference of the States Parties to the CCW, Geneva, 17 November 2006.

[4] Cluster Munitions (Prohibition) Bill, 2006, Senators Allison, Bartlett, Bishop, and Bob Brown. www.comlaw.gov.au.

[5] Letter from John Sullivan, Assistant Secretary, Arms Control and Counter Proliferation Branch, Department of Foreign Affairs and Trade of Australia, to Thomas Nash, Coordinator, CMC, 14 May 2007.

[6] Statement of Australia, Lima Conference on Cluster Munitions, 23 May 2007. Unofficial transcription by WILPF.

[7] Ibid, 24 May 2007.

[8] Report of the Senate Standing Committee on Foreign Affairs, Defence and Trade, “Cluster Munition (Prohibition) Bill 2006,” Canberra, May 2007, p. 38, www.wilpf.int.ch.

[9] Ibid, p. 12.

[10] Ibid, p. 29.

[11] Ibid, p. 40.

[12] In January 2008, CMC Australia was established with members including Austcare, the Australian Network to Ban Landmines, the Medical Association for the Prevention of War (Australia), Mines Victims and Clearance Trust, Peace Organisation Australia, and Uniting Church in Australia Synod of Victoria and Tasmania. See www.austcare.org.au.

[13] Lyn Allison, “Australia and the Road to a Global Cluster Bomb Ban: A Personal Account,” Australian Journal of Peace Studies, Volume 3, 3008, p. 130.

[14] Report of the Senate Standing Committee on Foreign Affairs, Defence and Trade, “Cluster Munition (Prohibition) Bill 2006,” Canberra, May 2007, www.wilpf.int.ch.

[15] Statement by Amb. Caroline Millar, Permanent Mission of Australia to the UN in Geneva, First 2008 Session of the CCW Group of Governmental Experts (GGE) on Cluster Munitions, Geneva, 14 January 2008.

[16] Australia referred to its participation in Afghanistan under a UN Chapter 7 mandate and said the provisions in the Vienna Discussion Text would be unsustainable and prevent operations with states not party. Statement of Australia, Vienna Conference on Cluster Munitions, Session on General Scope of Obligations, 6 December 2007. Notes by CMC/WILPF.

[17] Statement of Australia, Session on Victim Assistance, Vienna Conference, 6 December 2008. Notes by CMC/WILPF.

[18] Statement of Australia, Session on Definition and General Scope of Obligations, Wellington Conference on Cluster Munitions, 18 February 2008. Notes by CMC.

[19] Australia, Canada, Czech Republic, Denmark, Finland, France, Germany, Italy, Netherlands, Sweden, Switzerland, United Kingdom, “Discussion paper, Cluster Munitions and Interoperability: The Oslo-Process Discussion Text and Implications for International Operations,” Wellington Conference, 18–22 February 2008.

[20] Statement of Australia, Session on Definition and General Scope of Obligations, Wellington Conference on Cluster Munitions, 19 February 2008. Notes by the CMC.

[21] Statement of Australia, Session on Storage and Stockpile Destruction, Wellington Conference, 21 February 2008. Notes by CMC.

[22] Statement of Australia, Closing Statement, Wellington Conference, 22 February 2008. Notes by CMC; and Statement of France on behalf of like-minded countries, Wellington Conference, 22 February 2008.

[23] The Hon Stephen P. Smith MP, Minister of Foreign Affairs, “Dublin Diplomatic Conference on Cluster Munitions,” Press release, 20 May 2008, www.foreignminister.gov.au.

[24] Statement of Australia, Informal Discussions on Interoperability, Dublin Diplomatic Conference, 20 May 2008. Notes by Landmine Action.

[25] Ibid, 22 May 2008.

[26] Statement of Australia, Closing Statement, Dublin Diplomatic Conference, 30 May 2008. Notes by Landmine Action.

[27] Statement delivered by Costa Rica on behalf of Austria, Belgium, Benin, Bosnia and Herzegovina, Chile, Croatia, Ecuador, El Salvador, Guatemala, Holy See, Honduras, Indonesia, Ireland, Lebanon, Mexico, New Zealand, Nicaragua, Norway, Peru, Philippines, Senegal, South Africa, Uganda, Uruguay, and Venezuela, Fifth 2008 Session of the CCW GGE on Cluster Munitions, Geneva, 5 November 2008.

[28] Statement of Australia, Convention on Cluster Munitions Signing Conference, Oslo, 3 December 2008.

[29] Letter from Peter Shannon, Assistant Secretary, Arms Control and Counter-Proliferation Branch, Department of Foreign Affairs and Trade, to Pax Christi Netherlands, 25 February 2005.

[30] Statement of Australia, Lima Conference, 23 May 2008. Notes by CMC/WILPF; Statement of Australia, Wellington Conference, 22 February 2008. Notes by CMC; and Statement of Australia, Committee of the Whole on Article 3, Dublin Diplomatic Conference, 19 May 2008. Notes by Landmine Action.

[31] Letter from John Sullivan, Department of Foreign Affairs and Trade of Australia, 14 May 2007.

[32] “Banning Cluster Munitions: Australia’s Role,” Submission by the Peace Organisation of Australia to the Senate Foreign Affairs, Defence and Trade Committee inquiry into the provisions of the Cluster Munitions (Prohibition) Bill 2006, January 2007.

[33] The photo, attributed to have been taken in 1967, can be found at www.airwarvietnam.com.

[34] Royal Australian Air Force, “History: South-East Asia and Vietnam,” updated 15 April 2009, www.raaf.gov.au.

[35] “No. 2 Squadron Royal Australian Air Force,” Air War Vietnam.Com, updated 28 December 2004, www.airwarvietnam.com.

[36] “Cluster Bomb Karinga,” Australian War Memorial Collection Record, REL/04840, updated 29 September 2008, cas.awm.gov.au.

[37] Robert Hewson, ed., Jane’s Air-Launched Weapons, Issue 44 (Surrey, UK: Jane’s Information Group Limited, 2004), p. 835; Colin King, ed., Jane’s Explosive Ordnance Disposal 2007–2008, CD-edition, 15 January 2008, (Surrey, UK: Jane’s Information Group Limited, 2008); and Human Rights Watch interview with members of Australia’s delegation to the Eleventh Session of the CCW GGE, Geneva, 10 August 2005.

[38] Jane’s Defence Weekly, 4 October 2007.

[39] Article 2.2(c) excludes munitions with submunitions if they have less than 10 submunitions, and each submunition weighs more than four kg, can detect and engage a single target object, and is equipped with electronic self-destruction and self-deactivation features.

[40] Letter from Hon. Stephen Smith, MP, Minister of Foreign Affairs, to Archie Law, Chief Executive Officer, Austcare, 10 July 2008.