Australian Foreign
Minister, the Honorable Alexander Downer, signed the Mine Ban Treaty in Ottawa
on 3 December 1997. One year later, on 10 December 1998, the Australian
Parliament passed national ratification and implementation legislation titled
the “Antipersonnel Mines Convention Bill 1998." Australia was the
fifty-ninth country to deposit its instrument of ratification at the United
Nations in New York on 14 January 1999.
Australia’s non-governmental movement calling for a ban on
antipersonnel landmines was initiated in 1991 and is one of the oldest in the
International Campaign to Ban Landmines. In 1995 they were told by then-Foreign
Minister Gareth Evans that their call for a ban was “hopelessly
utopian.”[1] In late
1995, during a national election campaign, the Labor Government declared that
Australia was committed to “the elimination of all antipersonnel landmines
as an ultimate goal.”
In April 1996, one of the first policy announcements of the new Coalition was
a joint statement by the Ministers of Foreign Affairs and Defense pledging
Australia’s support for a global ban on production, stockpiling, use and
transfer of antipersonnel
landmines.[2] The ministers
announced a suspension of the operational use of antipersonnel landmines, with
an exception “in the case of a substantial deterioration in our strategic
circumstances, in which Australia’s security was under threat
....”[3]
Australia attended the October 1996 pro-ban governments meeting which
launched the Ottawa Process, but after the US decision in January 1997 to
attempt to negotiate a ban through the Conference on Disarmament, Australia
began increasing its support for this option as opposed to the Ottawa Process.
Australia’s Ambassador to the CD, John Campbell, was appointed by the body
as a Special Coordinator in 1997 to examine the possibility of negotiating a
comprehensive ban on AP mines in the CD, and again in 1998 to look at the
possibilities of an export ban. To date, he has been unable to get a consensus
on the issue.
During 1997, Australia attended all of the Ottawa Process diplomatic
meetings, but without embracing the treaty. When asked about its attitude
toward the Ottawa Process and the goal of a comprehensive ban treaty by December
1997, a senior adviser to the Minister for Defense wrote in mid-June that
Australia favored the CD because of its “proven track record in developing
significant international legal agreements such as the Comprehensive Test Ban
Treaty and the Chemical Weapons Convention,” because “it facilitates
genuinely multilateral negotiation” and because “a rapidly
negotiated ban treaty which does not attract the support of the major
antipersonnel landmine producing, exporting and using states will do little in
practical terms to relieve the humanitarian
crisis.”[4]
At the Brussels Conference in late June, the ICBL was compelled to release a
media statement questioning Australia’s promotion of the
CD.[5] Australia left the
meeting without joining ninety-seven other governments in endorsing the pro-ban
treaty Brussels Declaration. At the Sydney Colloquium, “Towards Ottawa
and Beyond” in July 1997, Australian government representatives disturbed
campaigners by their continued insistence that an effective ban could be better
negotiated through the
CD.[6]
Australia came nonetheless, like the United States, as a full participant to
the Oslo negotiations of the ban treaty with its CD Ambassador John Campbell as
Head of Delegation. Australia’s sincerity was questioned by concerned
campaigners as it threw its support behind U.S. proposals that, if accepted,
would have seriously weakened the treaty including an exception for continued
use of mines in Korea, a delay of nine years for entry into force, and a
withdrawal in times of war clause. Australia’s Foreign Affairs Minister
defended against the criticisms arguing, “Australia played an active and
constructive role in the Oslo negotiations and succeeded in securing a number of
improvements to make the final document even stronger” including in areas
such as definitions and
verification.[7]
In the aftermath of the treaty negotiations, Australia reassessed its
position and announced on 17 November the “difficult” decision that
it would sign the ban treaty in Ottawa. Earlier that week at the UN, Australia
had voted in the First Committee for a UN General Assembly resolution endorsing
the ban treaty. The First Committee also adopted an Australian-led resolution
which invited the Conference on Disarmament to intensify its efforts on
antipersonnel mines.[8]
Downer remarked: “We initially had some reservations about the Ottawa
processes as distinct from the Conference on Disarmament process, because we
hoped that, through a Conference on Disarmament convention, it would be possible
for it to be comprehensive and that we would get everybody in it. It was clear
in the end that was not going to happen, for all sorts of reasons, so the Ottawa
path was the only path that could be
followed.”[9]
A key 1998 government document further elaborated on Australia’s
reluctance to sign: “the decision to sign the Convention last December
held some difficulties for the Government. Antipersonnel mines represent a
significant tactical capability that has had a well-established place in ADF
[Australian Defense Force] plans for the conduct of military operations.
Finding alternatives will involve a costly research and development effort. As
alternative technology does not exist and is some years away, the ADF for this
period could face an increased risk of casualties, especially if deployed
overseas, and a potentially reduced capacity for coalition operations in certain
circumstances.”[10]
Australia continues to profess its commitment to negotiating a ban on
antipersonnel mine transfers in the Conference on
Disarmament.[11] In February
1999, it was one of the twenty-two CD members that jointly called, once again,
for the appointment of a Special Coordinator on AP mines, and the establishment
of an Ad Hoc Committee to negotiate a transfer
ban.[12]
Australia is also a strong supporter of the Convention on Conventional
Weapons and its Protocol II on landmines. Australia is a state party to the CCW
and ratified amended Protocol II on 22 August 1997.
Antipersonnel Mines Convention Bill
Since May 1996, all treaties that are tabled in Australia’s Parliament
are accompanied by a “National Interest Analysis” that “notes
the reason why Australia should become a party to the
treaty.”[13] The Analysis
was tabled in both houses of the Australian parliament on 26 May 1998, while the
legislation itself was not tabled until 11 November 1998. The Analysis proposed
“National Declaration” language setting out Australia’s
understanding of the treaty including its effects, direct financial costs,
obligations imposed, domestic implementation, consultation that has occurred and
whether the treaty provides for withdrawal or denunciation. The National
Declaration language contained in the National Interest Analysis and described
below remained unchanged and on 15 January 1999 it was deposited along with the
instrument of ratification at the United Nations in New
York.[14] This Declaration
describes Australia’s understandings in relation to Articles 1, 2, 4, 5
and 7 of the ban treaty.
In relation to Article One (General Obligations), Australia’s National
Declaration on use is that:
“in the context of operations, exercises or other military activity
authorised by the United Nations or otherwise conducted in accordance with
international law, the participation by the Australian Defence Force, or
individual Australian citizens or residents, in such operations, exercises or
other military activity conducted in combination with the armed forces of States
not party to the Convention which engage in activity prohibited under the
Convention would not by itself, be considered to be in violation of the
Convention.”
There is serious concern about the consistency of this understanding with the
treaty’s Article One provision that each State Party undertakes never
under any circumstances to “assist, encourage, or induce, in any way,
anyone to engage in any activity prohibited” by the treaty. The National
Declaration goes on to interpret the words “use,”
“assist,” “encourage,” and “induce” in a
very narrow fashion, that, at the least, appears to go against the spirit of a
treaty aimed at the total elimination of all possession and use of antipersonnel
mines. The understandings seem clearly aimed at permitting joint operations
with the United States in which U.S. forces use antipersonnel mines.
It interprets the word “use” as meaning: “... the
actual physical emplacement of antipersonnel mines and does not
include receiving an indirect or incidental benefit from antipersonnel mines
laid by another State or person.” (emphasis added).
It interprets the word “assist” to mean: “... the actual
and direct physical participation in any activity prohibited by the
Convention but does not include permissible indirect support such as the
provision of security for the personnel of a State not party to the Convention
engaging in such activities.” (emphasis added).
It interprets the word “encourage” to mean “... the
actual request for the commission of any activity prohibited by the
Convention,” and “induce” to mean “the active
engagement in the offering of threats or incentives to obtain the commission
of any activity prohibited by the Convention.” (emphasis added).
The phrase “jurisdiction or control” is defined as meaning
“within the sovereign territory of a State Party or over which it
exercises legal responsibility by virtue of a United Nations mandate or
arrangement with another State and the ownership or physical possession of
antipersonnel mines, but does not include the temporary occupation of, or
presence on, foreign territory where antipersonnel mines have been laid by other
States or persons.”
When the National Interest Analysis and Antipersonnel Mines Convention Bill
1998 were tabled, parliamentary debate resolved around Part 2, clause 7(3) of
the Bill which read:
“Section 7(3) Subsection (1) does not apply to anything done by way of
participation in operations, exercises or other military activities conducted in
combination with an armed force that:
(a) is an armed force of a country that is not a party to the Convention,
and
(b) engages in an activity prohibited under the Convention.”
The Member of Parliament for Cowan, Graham Edwards, expressed concern that
clause 7(3) could be used as a loophole to assist countries which are not
signatories to this convention and where Australia is involved in joint military
operations. He asked for an assurance “that Australian defense personnel
will know exactly what their guidelines are in relation to their
responsibilities under this legislation. I want to be assured that defense
personnel acting in good faith will have sufficient safeguards when involved in
or supporting international operations.”
[15]
The following day, Downer made a statement of clarification on the
government’s understanding:
“Clause 7(3) is not intended to be construed as a blanket
decriminalization of the activities listed in clause 7(1). There may be
circumstances in which there are military operations carried out jointly with
the armed forces of a country which is not a party to the convention. In the
course of those operations, the armed forces of that country might engage in an
activity which would be prohibited under the convention. Clause 7(3) provides
that a person to whom the act applies will not be guilty of an offence merely by
reason of participation in such combined exercises. However, that subclause
does not provide a defense in circumstances where such a person actually carries
out one of the prohibited acts in the course of those combined operations. In
the event of a charge being laid, the prosecution would be required to prove
that the actions alleged constituted an offence prohibited under clause 7(1).
If the accused wished to rely on the exception of clause 7(3), he or she would
need to produce evidence that suggests a reasonable possibility that the
exception applies. If the accused is able to do this, it is for the prosecution
to prove otherwise if the person is to be
convicted.”[16]
Downer added for the parliamentary record that “the Australian Defense
Force doctrinal and operation manuals will be amended to comply with the
prohibitions contained in the bill, including the interpretation of clause 7(1)
and (3)” and noted that “Australia’s compliance with the
provisions of the convention will also be subject to the transparency measures
in article 7 of the convention.” Downer defended the necessity for clause
7(3) and named the non-signatory country that Australia would need to conduct
joint military operations with, namely its traditional defense ally the United
States.[17]
Production and Transfer
Australia states that it does not produce and has
never produced antipersonnel mines. The 15 April 1996 policy announcement stated
that “Australia did not produce and would not export
landmines.”[18]
Thus, Australia’s stockpile of mines are all imported. According to
one U.S. government source, the U.S. shipped 38,000 antipersonnel mines to
Australia in 1969, including 30,000 M16A1 bounding mines and 8,000 M18A1
Claymore mines.[19] According
to another U.S. government source, the U.S. exported 8,000 AP mines to Australia
between 1983 and 1992, but precise types and years are not
known.[20] Details on other
importations from other countries of AP mines are not available.
In the past, the Australian campaign voiced concerns about production and
export by Australian Defense Industries (ADI) of a “Booby Trap
Switch,” the F1, a combination switch designed to be used in “booby
trapping” that can be operated as a pull switch, pressure switch, pressure
release, tension release and trip. The F1 is a switch, not a munition, and must
be fitted with a
detonator.[21]
In its National Interest Analysis, Australia raised concern over a
“costly research and development effort” to find alternatives to
antipersonnel landmine but the actual cost and the extent of these efforts are
unknown at present.
Stockpiling
Australia has an estimated 60,000 stockpiled
antipersonnel landmines although the Government has never made public the number
or types of stockpiled
mines.[22] The National
Interest Analysis which examines the cost to Australia of implementing the
treaty notes that “final destruction and exact quantities for retention
are still to be determined,” but then goes on to state that initial
indicative costs for destruction of the stockpile are 4.l million Australian
dollars, of which stock write-offs total 3.9 million Australian
dollars.[23] This appears to
mean that the actual costs for destruction of Australia’s AP mines is
approximately 200,000 Australian dollars or approximately U.S.$127,380.
The Australian campaign has asked for, but not yet received, the release of
more details on the cost of destruction, exact number, types, origins, and
destruction schedule by the Australian Defense Forces. Such details have
previously been regarded as classified information. The Department of the
Parliamentary Library has also attempted to gain information in this area, but
with no success--only replies that the information is either not available or
classified. Stockpile destruction typically costs about one U.S. dollar per mine
while dismantling the mine is slightly more expensive at U.S.$1.50 per
mine.[24]
No timetable for destruction of the stockpile has been announced, however
Australia intends to destroy its stockpile “consistent with the provisions
of the Ottawa
Treaty.”[25]
Use
Australia halted operational use of antipersonnel
landmines on 15 April 1996. It has not used antipersonnel mines operationally
since the Vietnam War. Australia retains the right to retain and use command
detonated munitions (Claymore type mines) which under the terms of the National
Declaration are not defined as antipersonnel mines.
Australia is not mine-affected.
Mine Action Funding
Australia’s international development
agency, AusAID, Australia has contributed almost A$36 million (approximately
U.S.$ 22.9 million) in funding to humanitarian mine action programs since 1994
including contributions from both the head office and from in-country posts.
Australia has committed to spending A$100 million by the year
2005.[26]
Some of these funds include in-kind contributions in personnel costs. For
example, in 1997-98 an Australian Defense Adviser to CMAC Cambodia cost
A$240,000 (approximately U.S. $ 153,000) while in 1996-97 technical advisers to
UNDP Trust Fund in Laos cost A$500,000 (approximately U.S.$318,000). Australian
technical advisors are sent overseas to country Mine Action Centers as well as
United Nations Head Quarters usually through a cost sharing arrangement between
AusAID and the Department of Defense.
The funds have also paid for equipment. For example, in 1997 the Australian
government provided A$l million (approximately U.S. $637,000) to CMAC for the
purchase of mine detectors from the Australian company Minelab, which initially
provided 325 detectors.
Funding has been provided to governments (for example, UXO Lao and the
National Rehabilitation Center); to the military (Australian Defense Force has
supplied personnel on a “full cost recovery” basis, reimbursed by
AusAID); to NGOs including Austcare, Australian Red Cross, Handicap
International, ICRC, World Vision Cambodia, World Vision Australia, and numerous
local NGOs in Cambodia; to the UN Trust Fund; to UN agencies (UNICEF, UNDP,
UNOCHA, UNDHA) and also to the various national, regional and international
activities of the Australian Network of the ICBL.
According to AusAID it is not possible to provide information on how much
money was received by the recipient country or organization or how much was
spent in the field, for all mine action projects that they have undertaken.
“A good deal of the funds have been provided to UNDP Trust Funds,
particularly for Cambodia, Laos and Mozambique and more recently Sri Lanka.
Because these are multilateral funds, Australia’s contribution cannot be
distinguished from all others. Even on victim assistance we would not be able to
give you a clear picture since much of our contributions in that category have
gone to the International Committee for Red Cross for global appeals. As with
UNDP contributions, this goes into a pool and Australian funds cannot be
distinguished from
others.”[27]
A Government initiative using funds from the Princess Diana Trust Fund is
called the "Destroy a Minefield" program, under which individuals, schools,
community groups, businesses and associations raise funds to clear an adopted
minefield and help to return the land to local populations for productive use.
These funds are then be subsidized with monies from the Trust Funds on the basis
of one for every two dollars
raised.[28]
The government-funded Australian Defense Science and Technology Organization
will spend A$4 million over the next five years on “further research into
mine detection and
neutralization.”[29]
Mine Clearance
Demining assistance focuses on four countries --
Cambodia, Laos, Angola and Mozambique -- and includes support for surveys and
clearance using detectors, sniffer dogs and, to a limited degree, mechanical
clearance devices. The ultimate goal of Australia’s demining assistance is
to build local capacity in affected countries to implement and sustain demining
programs.
According to the Australian Ambassador to the United Nations in New York,
“Australia continues to address some of the broader problems exacerbated
by the presence of landmines. For instance, Cambodia is a major recipient of
Australian food aid--food that is required partly as a result of arable land
being heavily
mined.”[30]
Australia provide a core contribution to the UN Mine Action Service to
support its key role of coordination and is concerned that “donor
activities are properly coordinated and matched with the priority needs of
communities.”[31]
In March 1998, Australia appointed a Special Representative on Demining, the
Parliamentary Secretary for Foreign Affairs, Kathy Sullivan. Sullivan plays a
key role in ensuring Australia's demining efforts are coordinated to maximize
their impact in the field. She also works “to encourage the most effective
global coordination of international donor resources to demining, victim
assistance projects and landmine awareness
education.”[32]
Landmine Casualties
There are Australian military, and peacekeeping
casualties from landmines but no detailed data is available. A cursory
examination of records held by the Australian War Memorial reveals that
approximately fifty percent of Australia’s casualties in Vietnam were the
result of landmines; of the 504 personnel killed and 3,000 or more who were
injured, approximately half were casualties of mines which had been removed
from minefields that Australia had
laid.[33]
Australian landmine survivors are cared for under the nation’s health
care system. Comprehensive national disability laws exist including the
Disability Discrimination Act 1992.
[1]Senator Gareth Evans,
Questions without Notice, Australian Senate, l June 1995.
[2]“Australia Pledges
Support for Global Ban on Antipersonnel Landmines; unilaterally suspends
use,” Press Release by Downer and MacLachlan, Department of Foreign
Affairs and Trade (DFAT), 15 April 1996.
[4]Peter Jennings, Senior
Adviser in the Office of Minister for Defense, Letter to Dr. Ian Buckley, 13
June 1997.
[5]International Campaign to
Ban Landmines, “Australian Duplicity At Landmines Conference,” Media
Release, 25 June 1997.
[6]Australian Network ICBL,
“Australian Ambivalence, South Pacific Commitment at Landmine
Colloquium,” Media Release, June 1997.
[7]“Australia Shows
Mine Ban Doubts,” West Australian, 19 September 1997.
[8]First Committee Adopts
APMs Resolution, WKGR 8995, UNGA 52, United Nations.
[9]The Honorable Alexander
Downer, Minister for Foreign Affairs, Speech on Antipersonnel Mines Bill, House
of Representatives Hansard, p. 623, 26 November 1998.
[10]DFAT, Conventional and
Nuclear Disarmament Section, International Security Division, “National
Interest Analysis: Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their Destruction,”
tabled on 26 May 1998,
http://www.austlii.edu.au/au/other/dfat/nia/1998/1998019n.html
[11]For example see: Member
of Parliament Kathy Sullivan , “Landmines: Australia’s Policies
& Programs,” Speech to Soroptimist International meeting, Melbourne,
30 October 1998; and Downer, Speech on Landmines Bill, House of Representatives,
26 November 1998.
[12]Statement by Bulgarian
Ambassador Petko Draganov to the Conference on Disarmament, undated but February
1999.
[13]“Australia and
International Treaty Making: Questions and Answers,”
http://www.austlii.edu.au/au/other/dfat/infokit.html#3.
[14]DFAT, “National
Interest Analysis,” tabled on 26 May 1998. See also: Convention on the
Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on their Destruction, Declarations: Austrailia.
www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/xxvi_boo/xxvi_5.html.
[15]Graham Edwards MP,
Speech to the Australian House of Representatives (page 558 Hansard), 25
November 1998.
[16]The Honorable Alexander
Downer, Minister for Foreign Affairs, Speech to the Australian House of
Representatives (pp. 624-625 Hansard), 26 November 1998.
[18]“Australia Pledges
Support for Global Ban on Antipersonnel Landmines; unilaterally suspends
use,” Press Release by Downer and MacLachlan, DFAT, 15 April 1996.
[19]U.S. Army, Armament,
Munitions, and Chemical Command (USAMCCOM), Letter to Human Rights Watch, 25
August 1993, and attached statistical tables.
[20]Letter from Valerie
Belon, Demining Action Officer, US Dept. of State, to Human Rights Watch, 29
March 1994, and attached table from the Defense Security Assistance Agency, "US
Landmine Sales by Country."
[21]Bill van Ree and
Patricia Garcia, Austcare, email correspondence to Mary Wareham, Human Rights
Watch, 22 March 1999.
[22]Two sources citing 60,000
AP mines are: Gervase Greene, “Australia to Sign Landmine Treaty,”
The Age, November 1997; and MAPW (Australia), “Australia Joins the
World at Ottawa,” MAPW National Newsletter, Summer 1997-98.
[23]DFAT, “National
Interest Analysis,” tabled on 26 May 1998.
[24]Thomas Hajnoczi,
Government of Austria, Panel Presentation “Toward a Ban: The Ottawa
Treaty, An Overview,” in ICBL Report: Regional Conference on Landmines,
Budapest, Hungary, 26-28 March 1998, p. 51.
[25]“Australia to Sign
Landmines Ban Treaty and Destroy Stockpile,” Joint Media Release by the
Ministers for Foreign Affairs and Defense, 17 November 1997.
[26]Australian Ambassador and
Permanent Representative to the United Nations, Penny Wensley, Statement on
Assistance in Mine Clearance, UN General Assembly 53, Item 42, 17 November
1998.
[27]Humanitarian Emergencies
Section, AusAID, Letter to LM Researcher, 19 January 1998.
[28]Australia and Landmines.
http://www.dfat.gov.au/landmines/
[29]The Honorable Alexander
Downer, Minister for Foreign Affairs, “Statement to the Ministerial Treaty
Signing Conference for the Convention on the Prohibitions of the Use,
Stockpiling, Production and Transfer of Anti-Personnel Landmines and on their
Destruction,” Ottawa, 3 December 1997.
[30]Australian Ambassador and
Permanent Representative to the United Nations, Penny Wensley, Statement on
Assistance in Mine Clearance, UN General Assembly 53, Item 42, 17 November
1998.
[32]Australia and Landmines:
Demining. http://www.dfat.gov.au/landmines/
[33]Bruce Grey, Submission,
Joint Standing Committee on Treaties, Parliament House, Canberra, 19 June 1998.
See also, The Shadow of Vietnam, Television Documentary screened on TV3, New
Zealand, 26 April 1995; Chris Gannon, “You’ll Be Back for
Breakfast,” in Kenneth Maddock (ed.), Memories of Vietnam (Sydney:
Random House, 1991), pp. 70-71.
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