US to stockpile cluster bombs in Australia?

By NAJ Taylor, Al Jazeera

Cluster munition or parts of the munition often do not explode on impact, causing great harm to the envrionment [EPA]

Brisbane, Australia: A US military "base" in Darwin, Australia (spun as a "rotational deployment" for China, I suspect), will necessitate foreign weapons systems and armaments being stockpiled, retained and transited on and in Australian territory.

Although they are long-standing and committed allies, Australia and the United States hold different positions on many matters relating to both arms control and humanitarian law. One recent normative development where the US and Australia's views have diverged is the ban on cluster bombs, a weapon that has inside multiple - often hundreds - of small explosive sub-munitions or "bomblets" that are dispersed over an area the size of several football fields from either the air or ground. As a result, the final location of each bomblet is impossible to control for those deploying them, and so whom they maim or kill is both unknown and indiscriminate. Roughly 30 per cent of those deployed "fail" to explode on impact, and so the unexploded bomblets become de facto landmines.

When the Convention on Cluster Munitions came into effect in August last year, the Gillard government was part of a chorus of NGOs and governments that saw "an end for all time" of the use of cluster munitions by prohibiting their production, use, stockpiling and transfer. At present, a bill sits with the senate that will criminalise Australian deployment of the weapon under domestic law, thereby ratifying the international convention.

With the formation of a US military base in Darwin, Gillard will effectively make use of certain "loopholes" in the bill that arise from US' non-signatory status to the Convention, and obfuscation of negotiations that are currently taking place for an additional arms control measure this week. Best estimates are that the US forces presently have a quarter of the world's four billion cluster munitions in stockpiles across both its territory and existing overseas bases. The US last deployed cluster munitions during the Iraq War in 2003, despite the emerging norm.

In my view, there's a fair degree of probability cluster munitions will be stockpiled in Darwin, since there are known plans for the US to base a number of B-52 bombers historically used to deploy cluster bombs. It is already known that nuclear weapons will not be permitted onto Australian territory, but a number of the US' naval fleet are nuclear-powered vessels, which will be allowed.

Curiously, there have been no statements from the Gillard government as to whether the Darwin deal will result in US cluster munitions being transited and stockpiled in Darwin, despite widely debated concerns over the bill.

For instance, writing to the Senate Committee responsible for a detailed review of the draft legislation in a letter dated March 16, I warned that the current wording provided:

"Australia's military allies that are not party to the convention unfettered access to stockpile, retain, and transit cluster munitions within Australia."

Specifically, the bill provides a blanket exemption for the stockpiling and transit of cluster munitions on or in Australian territory by foreign forces. Where this is provided - Section 72.42 - severely contravenes Article 9 of the international Convention, which requires state parties to criminalise all prohibited activities (including stockpiling and transfer) on their territory, and to also refrain from assisting non-signatory states in doing so.

Both acts would result in Australia violating the spirit and intent of the Convention - to eliminate cluster munitions and the harm they cause for all time. And both are likely to occur as a result of the US base in Darwin.

Speaking at the Senate Committee hearing on cluster munitions in March this year, Greens Senator Scott Ludlam probed this military interoperability loopholes most expertly with then Lieutenant General David Hurley, then vice chief of the defence force:

At the time Lieutenant General Hurley made these statements (he is now "chief"), it is clear he foresaw the strong possibility of foreign forces such as the US stockpiling cluster munitions in or on Australian territory, as well as subsequent demands for some form of public disclosure and accountability for the defence forces and/or the federal government.

Any loophole analysts found in the bill, then, were deliberate.

This active and willing dilution of an international humanitarian instrument is of considerable international embarrassment, since Australia's implementing legislation is inconsistent with that adopted in other common law counties such as New Zealand and Ireland, where there are no provisions excluding the application of their laws to foreign forces or vehicles on their territory.

Furthermore, the governments of Austria and Germany have made reference to the prohibition of the transit and stockpiling of cluster munitions in their territories, and the United Kingdom, while not expressly banning weapons stores in transit, requested upon signing the Convention in 2008 that the US military remove its stockpiles of cluster munitions within the eight-year timeframe agreed to in the Convention. By November 2010 the UK was able to confirm that there were "no foreign stockpiles of cluster munitions in the UK or on any UK territory".

What's more, in the future, all cluster munitions transited in or on British territory will require the authorisation of the British parliament - or under exceptional circumstances, and there has been only one instance in which this was necessary, the Foreign Secretary alone.

Australia has made no such provisions in the bill before its senate.

It is the view of the world's primary humanitarian controlling authority, the International Committee of the Red Cross (ICRC), that the Gillard government's draft legislation:

"It would … exempt the military personnel of States not party from the offences created by the Bill for acts committed in or on Australian territory. It would also permit the transit of cluster munitions through Australian waters and airspace and allow States not party to stockpile or retain cluster munitions on ADF and other bases within Australia."

In recognition of this, speaking at the Senate Committee hearing in March, Senator Ludlam sought to expose what scant disclosure and governmental accountability is in place to oversee US military armaments in or on Australian territory:

In relation to stockpiling cluster munitions on or in Australian territory, Department of Foreign Affairs and Trade (DFAT) interpret the international Convention such that the distinction between domestic and foreign stockpiles are "separate" in addition to having provided a clear articulation on what measures are in place for cluster munitions in transit:

In relation to stockpiling cluster munitions on or in Australian territory, DFAT interpret the international Convention such that the distinction between domestic and foreign stockpiles are "separate":

As I wrote for Crikey in March this year, "No other signatory country in the world has expressly permitted such unfettered free access to its territories as this. It is unprecedented."

If only I knew then what I do now about Darwin, especially given how little we are likely to ever know about what weapons the US keeps there.

NAJ Taylor is a doctoral candidate in the School of Political Science and International Studies at the University of Queensland. A version of this article was first posted on his blog, This Blog Harms. 

Follow NAJ Taylor on Twitter: @najtaylor

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.