from Crikey .....

An Australian cluster fuck: taking aim at munitions laws

NAJ Taylor, a lecturer and PhD candidate in political science, writes:

CLUSTER MUNITIONS

With the final decision on draft legislation for cluster munitions being deferred for some months now, this is not the place to again rehearse arguments based on either international humanitarian law, general treaty obligations, or the role of a middle-powers such Australia in norm entrepreneurship. Rather, I seek here to highlight two possible ways in which individual Australians will be needlessly faced with operational and moral dilemmas that the Senate must ensure are addressed by immediate amendment to the current bill.

That is, why two loopholes in the Cluster Munitions Prohibition Bill (2010) makes for one big cluster fuck.

For some months now, experts critiquing the bill have argued it contains within it two significant loopholes relating to "military interoperability" and "indirect investment".

Military interoperability refers to that part of the draft legislation that permits Australia's military allies that are not party to the convention unfettered access to stockpile, retain and transit cluster munitions within Australia, as well as allowing Australian military personnel to actively assist in cluster munitions-related activities during joint military operations with our non-signatory allies. Removing this first loophole remains the primary focus of the Fix the Bill campaign run by the Australian branch of the Cluster Munition Coalition, as well as the campaign launched by GetUp in mid-August 2011, while it is being defended by the Australian government's Department of Foreign Affairs and Trade, Department of Defence, and the Attorney-General's office.

Indirect investment refers to holdings in foreign companies that produce cluster munitions as part of its broader business activities -- such as components manufacturers or firms with sufficiently diversified businesses. Australia's restrictive reading of the convention does not meet the standards set by the respective governments of New Zealand, Ireland, Holland, Luxembourg and Belgium, who have in their domestic legislation included statements specifically banning investment and provision of other financial services -- such as banking, loans and equity -- to companies that either develop or produce cluster munitions.

Other governments, including those of Britain, Germany, France, Switzerland, Lebanon, Mexico, Norway and Rwanda, have all publicly stated that they interpret the convention as including a prohibition of direct (i.e. firms that specialise in producing cluster munitions -- of which none presently exist) and indirect investment. Removing this second loophole remains the focus of a small number of individual experts and the largest grouping of superannuation funds in Australia, the Australian Council of Super Investors, who represent more than $300 billion in assets. At the same time the Department of Foreign Affairs and Trade is attempting to maintain the present loophole, against the best advice of the Attorney-General's office.

Combined, these two loopholes will have unintended negative consequences for Australia.

Military interoperability will needlessly burden the Australian Defence Force and its members with complex operational and moral dilemmas as they operate in the field, in my view. For instance, it is expected that a specialist in the Australian Defence Force embedded within American headquarters will not be permitted to be actively involved in the planning or actual deployment of the cluster bombs in the American arsenal.

What a tremendously conflicted message that sends to any Australian soldier in the field -- as an Aussie soldier you are not permitted to deploy cluster bombs due to your country's humanitarian concerns, but it is expected you will operate alongside Yanks while they do. I fear that directive will not be so easily resolved as it may sound.

Indirect investment will undoubtedly burden Australian superannuation (pension) funds by banning one avenue of investment in cluster munitions producers and not others. For instance, the bill would require Australian super funds to direct their overseas-based investment managers to cease direct investment in cluster munitions producers, while explaining to them that Australian legislation does permit indirect investment in firms involved in the development and production of cluster munitions (i.e. holdings in firms that either produce other goods as well as cluster munitions).

This could be a long conversation, since the distinction between direct and indirect investment is not one that is made elsewhere -- and there are few armaments of any type that are produced by such specialist firms as to trigger this direct investment classification.

Thus, a British investment manager who is tasked with allocating the funds of an Australian super fund, will be banned from all types of investment in cluster munitions producers under British law, but may continue to invest in all seven current cluster munitions producers for their Australian clients.

Quite apart from the sound humanitarian arguments made against the deployment of cluster munitions, the current bill is unfairly and inappropriately outsourcing the function of upholding an international norm to various individual Australians.

As things presently stand, only the members of the Senate can avoid burdening individual military personnel and super fund trustees with one big headache.

*NAJ Taylor is a PhD candidate in the School of Political Science and International Studies at the University of Queensland, and casual lecturer in the Faculty of Law and Management at La Trobe University

When considering the Australian Government's position on banning cluster bombs, the Two-Face character from the Batman movie springs to mind. Unfortunately, the reality of cluster bombs is not fictional like the character, or the government's commitment to upholding the spirit and intent of the Convention on Cluster Munitions.

The honourable and humanitarian face that Australia likes to show to the world is marred by the subversion and sabotage of the treaty, that then Foreign Minister Stephen Smith so proudly signed and said that Australia would support. In explaining this Janus-faced hypocrisy, it is important to flag that there are two concurrent issues, which fit hand in glove, to increasingly expose Australia's lack of dedication to the global ban of this indiscriminate legacy weapon.

You don't have to meet a cluster bomb survivor to know that there is a serious problem when 85% of a weapon system's victims are civilians. And in the act of signing the treaty to ban cluster bombs in August 2008, Australia seemed to recognise this, committing to respect the object of the treaty in both its domestic legislation and its interaction with other states. In flagrant disregard of this commitment, Australia is doing precisely the opposite, actively undermining the treaty both nationally and internationally. This is played out domestically by draft cluster ban bill that is riddled with loopholes. On a global level this has recently been demonstrated by expressed support of a protocol (in a separate convention) that threatens to undermine the high humanitarian norms already established in international law by the cluster bomb treaty...but more on this in a moment.

First it is important to explain, that far from working to eliminate the use, manufacture, stockpile and transit of cluster munitions and to prevent assistance to non-state parties in any of these activities, Australia's draft cluster ban bill permits stockpile, transit and direct assistance in joint-operations where cluster bombs are deployed.

Again the Two-Faced character comes to mind. There is no better way to sum up the government's position on cluster bombs then a misleading fusion of contradictory ideals.

Instead of showing strong leadership in the Asia-Pacific region, the loopholes in our proposed legislation would make it the weakest to date setting a low precedent for others to follow. We have never stockpiled so why start now? Why would Australia flout its responsibilities by including these weak provisions? From looking closely at the loopholes, you can find a trail back to an obvious truth, Australia is playing lapdog, pandering to the United States.

It was announced at the AUSMIN conference in September that defence ties between the United States and Australia would be significantly beefed up, including the expansion of US bases on Australian soil. The United States, which has not joined the treaty to ban cluster bombs, would be allowed to stockpile clusters in Australia and transit them across our territory. Additionally, our troops by law could be involved in every step of a cluster bomb operation bar pulling the trigger.

This coupled with comments made by US Defence Secretary Leon Panetta, at the AUSMIN meeting, signals that an arms race is becoming increasingly likely. Mr Panetta was quoted in The Australian saying, "The enhancement of the relationship between the alliance partners was intended to send a 'very clear signal' to the Asia-Pacific region...to make very clear to those that would threaten us that we are going to stick together."

Troop Boost By AUSMIN A Signal To Asia-Pacific

“So, as two great democracies, we speak up for these freedoms when they are threatened.  We partner with emerging democracies, like Indonesia, to help strengthen the institutions upon which good governance depends.  We encourage open government, because democracies depend on informed and active citizens.  We help strengthen civil societies, because they empower citizens to hold their governments accountable.  And we advance the rights of all people-women, minorities and indigenous cultures-because when societies harness the potential of all their citizens, those societies are more successful, more prosperous and more just.

This is the future we seek in the Asia Pacific-security, prosperity and dignity for all.  That's what we stand for.  That's who we are.  That's the future we will pursue, in partnership with allies and friends, and with every element of American power.  So let there be no doubt: in the Asia Pacific in the 21st century, the United States of America is all in.”

Barack Obama

Address to the Australian Parliament

November 17, 2011

meanwhile …..

American diplomats are lobbying for changes to the international treaty banning cluster bombs so the US and other major military powers can join the protocol without actually giving up the deadly weapons. Cluster munitions are designed to burst open in midair and release anywhere from dozens to hundreds of smaller munitions that explode tiny fragments of metal, frequently injuring or killing civilian non-combatants.

Representatives from about 100 countries are discussing the US-backed proposal at the Fourth Review Conference of the Convention on Conventional Weapons (CCW) in Geneva. The US is not a party to the Convention on Cluster Munitions.

The agreement currently bans the weapons, requires destruction of stockpiles within eight years, and mandates clearance of areas contaminated by cluster munitions within 10 years and assistance to victims. The US-backed amendments to the CCW would allow ongoing continued use, production, trade and stockpiling of cluster munitions.

At various times, the United States has used cluster bombs in Vietnam, Cambodia, Laos, Lebanon, Grenada, Libya, Iran, Iraq, Kuwait, Saudi Arabia, Bosnia and Herzegovina, Serbia, Montenegro, Kosovo, Afghanistan and, most recently, Yemen. US companies, with the permission of the federal government, have sold cluster munitions to at least 30 nations, most recently to the United Arab Emirates (2006), India (2008) and Saudi Arabia (2011).

The US maintains a stockpile of an estimated 5 million cluster munitions and 700 million submunitions.

Zach Hudson, coordinator of the United States Campaign to Ban Landmines for Handicap International, told Inter Press Service that the changes sought by the Obama administration represent a "backslide" and are "really unacceptable." Hudson added that the new draft "essentially undermines" the effort to rid the world of the destructive weapons.

Obama Administration Fights to Keep Cluster Bombs

First developed during World War II, cluster bombs contain a number of smaller bomblets designed to cover a large area and deter an advancing army.

A total of 111 UN member states have already signed up to the Oslo convention prohibiting the production, transfer, and use of cluster munitions. The US, Russia and China have not.

A senior US official said the bombs were a military necessity for when targets were spread over wide areas, and that using alternative armaments would cause more collateral damage and prolong conflicts, Reuters reports.

The outcome of Friday's meeting in Geneva was welcomed by human rights campaigners who say cluster bombs are indiscriminate weapons that can fail to explode on impact and lie dormant, often causing injury to civilian years after conflict has ended.

"How often do you see the US, Russia, China, India, Israel and Belarus push for something, and they don't get it? That has happened largely because of one powerful alliance driving the Oslo partnership," said Steve Goose of Human Rights Watch (HRW).

The BBC's Imogen Foulkes, in Geneva, says that though the proposal would have eliminated millions of ageing cluster munitions, even military allies of the US, like Britain, chose not to support it.

Many UN member states felt, she says, that getting rid of some cluster weapons while officially sanctioning others would set a dangerous precedent, and might even legitimise their use in the long-term.

http://www.bbc.co.uk/news/world-15901152