Good afternoon everyone. Pursuant to the order of reference of Friday, October 25, 2013, we are resuming our consideration of Bill .
I want to welcome our witnesses and introduce first those who are here with us at the House of Commons. From Handicap International Canada, we have Marc Drolet, the executive director. Welcome Marc, I'm glad to have you here today. Then we have Jérôme Bobin, the manager of communications and mobilization. Welcome, sir, to you as well.
Then, joining us via video conference from Geneva, Switzerland, we have Amélie Chayer, a policy analyst with the Cluster Munition Coalition. Welcome Ms. Chayer. I think you're six hours ahead, so you're well into the evening. You're at almost 10 o'clock, so thank you very much for joining us.
Why don't we start here, with Handicap International? Then we'll turn it over to Ms. Chayer. We will then go back and forth across the room asking questions and probably get in a couple of rounds.
So over to Handicap International for your opening statement.
First of all, thank you so much for inviting us today.
Thank you very much for the opportunity to speak before you.
Co-recipient of the Nobel Peace Prize, Handicap International is an independent aid organization that celebrated its 30th anniversary last year. Our organization also received the Conrad Hilton humanitarian prize in 2011 for the quality of its field operations.
Handicap International is on the front line in over 60 countries, including Haiti, Afghanistan, Sri Lanka, Iraq, Sierra Leone, and Laos, working alongside the disabled and vulnerable experiencing poverty and exclusion, particularly in situations of conflict and disaster.
Cluster munitions are unreliable and indiscriminate deadly weapons that kill and maim people long after the conflict has ended. We call this the “war after the war”. Credible estimates establish the number of casualties directly attributable to cluster munitions at more than 50,000, most of them innocent civilians, as you know. There is no control over the end target of these munitions, and therefore no means to ensure a distinction between military and civilian targets. Accordingly, it is not surprising that recent research has shown that more than 90% of the reported casualties are civilian, and about half of them are children.
Our roles include being with the victims in the field, offering them support with their disability, trying to facilitate their social reintegration, and helping to clear the littered areas of unexploded munitions, a risky, time-consuming, and costly task. This means that we realize daily at Handicap International realize how horrendous this weapon really is.
I have no doubt that everyone in this room is aware of the devastating long-term physical, psychological, and economic consequences of cluster munitions. I expect we also all agree on the critical importance of the 2008 Convention on Cluster Munitions, and by all means the need for Canada to ratify it.
Handicap International commends the Government of Canada for initiating the current ratification process as reflected in Bill . Handicap International is pleased to note that several clauses of the bill lay out clear and unambiguous prohibitions. At the same time we are concerned with some exceptions and omissions that go against the very purpose of the convention. Especially troublesome are exemptions in the bill for interoperability, and the absence of prohibitions on financing and investment.
With regard to interoperability, Handicap International understands and respects the government's preoccupation with ensuring that Canadian Forces continue to be involved in joint military operations with Canada's allies, some of whom are not party to the convention. This legitimate preoccupation is in fact explicitly addressed by the convention in the way that does not limit Canada's right to cooperate with other nations not party to it. Handicap International's concern with the exceptions set out in the bill is not that they might allow Canadian Forces to participate in joint military operations with allies not party to the convention, but rather that they are not necessary and would do the following.
Firstly, they would allow such participation even if cluster munitions were used, and even give Canadian military personnel the latitude to expressly request and direct the use of cluster munitions as per paragraph 11.1(b).
Secondly, they would grant Canadian Forces explicit permission to use, acquire, and possess cluster munitions while on attachment, exchange, or secondment as per paragraph 11.1(c).
Thirdly, they would allow Canadian Forces to aid and abet a person using cluster munitions while in combined operations as long as it would not be an offence for that other person to commit that act as per paragraph 11.3(a).
Proponents of this approach evoke article 21 of the convention to reconcile their position with the treaty. This overlooks the fact that article 21, while permitting military cooperation and operations between state parties to and state parties not to the convention, includes other paragraphs that place explicit obligations on state parties to the convention to actively discourage the use of cluster munitions.
Article 21 must be construed to be consistent with and reflect the obligations spelled out in article 1 of the convention to never assist anyone undertaking a prohibited act. After all, how could the convention both require the discouragement of the use of cluster munitions and at the same time allow facilitation of their use?
Handicap International is of the opinion, on the one hand, that it would be important to explicitly state that a member of the Canadian Armed Forces does not commit an offence against the law merely by engaging, in the course of his or her duties, in operations, exercises, or other military activities with the armed forces of a state not party to the convention, and which has the capability to engage in conduct prohibited by the convention. Such a statement is important to avoid criminal charges against members of the Canadian Armed Forces who have no knowledge that their action may result in the use of cluster munitions by other parties.
On the other hand, despite this qualification, it would also be important to explicitly state that whatever the circumstances, the men and women serving in the Canadian Forces will not direct, request, aid, and abet the use of cluster munitions or use, acquire, and possess such weapons.
Handicap International's position on this issue is based not only on the opinion of experts, but also on the legislative instruments developed by some 30 countries, including NATO allies such as France, Norway, Portugal, Hungary, and Belgium, as well as other countries such as New Zealand, Switzerland, and Sweden.
The legislative framework developed by these countries does not give their armed forces license to engage in activities prohibited by the convention, therefore demonstrating that such license is not at all necessary to enable effective participation in joint military operations with states not party to the convention.
Also problematic—and this is another issue completely aside from interoperability—is the fact that Bill does specify that the prohibition on assistance applies to direct and indirect investments in the production of cluster munitions and their components. More than 25 countries, including the United Kingdom, Australia, New Zealand, and France, have taken the position that investment in cluster munitions development or production is a form of assistance prohibited by the convention, particularly when there is an intention that the investment be used, or even the knowledge that it is to be used, for such a purpose. Canada should follow suit.
In conclusion, the Convention on Cluster Munitions represents a historic step in international humanitarian law meant above all to prevent casualities among innocent civilian populations. Bill should be strengthened to ensure that everything possible is done to promote the spirit and achieve the purpose of the Oslo Convention. Some qualifications may be necessary, but they should be narrow in scope, and certainly not be contrary to the objectives of the convention. As currently drafted, the bill could, paradoxically, very well contribute to the continued use of cluster munitions rather than their elimination as intended.
The good news, as demonstrated by so many other countries, including some of Canada's closest allies, is that the exceptions and omissions we have flagged are not needed to achieve truly balanced legislation that both protects innocent civilians and allows, among other things, Canada's participation in joint military operations.
On behalf of Handicap International I would like to thank you for this opportunity for your time and questions.
I can also answer your questions in French.
Thank you very much, Mr. Chair. I will do most of my presentation in French.
First, I would like to thank the Standing Committee on Foreign Affairs and International Development for the opportunity to take the floor. I represent the Cluster Munition Coalition. We are made up of non-governmental organizations that operate in some 100 countries, working to eradicate cluster munitions. Our task is to have all states join the Convention on Cluster Munitions and fully comply with its provisions.
We are the sister campaign of the international campaign to ban landmines, which has worked closely with Canada to adopt the Ottawa Convention on anti-personnel mines. This campaign won the 1997 Nobel Peace Prize for its efforts to eliminate those mines.
I come from Montreal, but I have been working for a number of years for the Cluster Munition Coalition and the treaty to ban anti-personnel land mines. I currently work in Geneva.
I would like to tell you about my friend Mr. Thi, whom I met in Dublin at the treaty negotiations. He is a farmer from Vietnam. In 1977, he was blown up by a cluster munition while digging up his field. Half of his arm was amputated. Over the next few decades, he has continued to work in the same field where he kept finding explosive submunitions just like the one that blew off his arm several years earlier. On a daily basis, he lives in terror because of those cluster munitions. That is not something we can relate to, where we are. This daily terror certainly does not compare to our farmers' experience in the Prairies. However, in a number of countries affected by cluster munitions, this is the daily reality, a reality that can be fully avoided through the Convention on Cluster Munitions.
The Cluster Munition Coalition thanks Canada for engaging in the ratification process of the Convention on Cluster Munitions. I would also like to say that I agree with all the comments our colleagues from Handicap International Canada made a few minutes ago.
In recent years, cluster munitions have been used only by regimes such as the armies of Bashar al-Assad or Moammar Gadhafi. It has been more than 10 years since the United States have used cluster munitions on a large scale. Since 2007, the few times cluster munitions have been used, the state that had seemingly used them refused to confirm it, because the use of cluster munitions is not well regarded at all.
As a result of a recent resolution by the United Nations General Assembly, the number of states that condemn the use of cluster munitions by Syria has gone up to 131. More or less two-thirds of all the countries in the world are expressing their disgust for those weapons. When Moammar Gadhafi used cluster munitions, U.S. Secretary of State Hillary Clinton described that use as disturbing. When Bashar al-Assad used cluster munitions, U.S. Ambassador to the United Nations Susan Rice added the use of cluster munitions to the list of atrocities under the Syrian regime.
For a number of years, the International Security Assistance Force in Afghanistan has had a policy against the use of cluster munitions. Those weapons were not used during the NATO operations in Libya in 2011.
Clearly, those weapons are unacceptable. This is where we are really at now. We are talking about a large group of countries and an international instrument that has been negotiated down to the last detail. It is the community of nations that raises its voice when those weapons are used by people like Moammar Gadhafi and Bashar al-Assad.
So many voices are being raised that almost no one has the audacity to use those weapons. That is called stigma. Every time a government rejects those weapons, the stigma becomes increasingly stronger. As a result, those weapons will be used less and less.
Canada's bill worries us because some of its provisions clearly seem to go counter to the stigma. We feel that some aspects fly in the face of the goal and purpose of the convention.
Given the time constraints, I will not go over clause 11 in great detail right now. Our concerns are fully outlined in our written brief. We feel that clause 11 of the bill is clearly a violation of the convention.
First of all, article 1 of the convention lists the prohibitions. For instance, it is prohibited to use, produce and stockpile cluster munitions. It is also prohibited to assist, encourage or induce anyone to engage in those activities. That is the fundamental prohibition in the convention.
Article 21 of the convention deals with the relations with the States that are not members of the convention. Among other things, article 21 states that the military personnel of state parties may engage in military cooperation and operations with States not party to the convention that might engage in prohibited activities. Article 21 of the convention is not an exception to the prohibition on assistance in article 1 of the convention. In fact, article 21 clarifies that joint operations are allowed and that neither the state parties nor their armed forces are liable for the prohibited activities undertaken by non-party states during joint operations. It therefore does not reduce the scope of the prohibitions under article 1, which apply at all times.
So far, 40 state parties to the convention have clearly expressed their opinion on the matter; 38 of those states explicitly said that article 1 is the basis of the convention, that the prohibition is essential, and that article 21 is not an exception and therefore it cannot allow anyone to assist someone who might engage in an activity prohibited by the convention. Many of those countries are NATO members, including Belgium, France, Germany, Norway, Portugal and Slovenia, to name a few. All those NATO members will continue to participate in possibly joint operations without letting their armed forces ever use cluster munitions.
Since Canada started drafting its bill, there has been some criticism in other parts of the world. I will mention a few. I will say this in English, because the original comments made by the states were in English.
Still in the context of Canada's draft legislation, Norway publicly noted that article 1 of the convention referred to “the absolute prohibition on any use of all cluster munitions”. It also noted that all countries had a responsibility to ensure that their implementation measures fully complied with the provisions set out in the convention.
Austria said publicly:
||Austria attaches great importance to the obligation of all States Parties to fully bring into effect the international norms of the Convention and not to allow for any loopholes to exist in their national legal frameworks.
||In Austria’s view, exceptions in national legislation with respect to interoperability clauses risk to run counter to the object and purpose of the Convention.
The ICRC, coming out of its usual reserve, said that “The ICRC is increasingly concerned about the scope of the exceptions allowed in national legislation...”.
The Holy See said that “After showing strong resolve in Dublin when we adopted this Treaty, all of us, we should continue to show domestically the same will to implement all our obligations in good faith.”
The United Nations, via its coordination group on mine action, said that “the United Nations shares the concern over possible inconsistencies contained in national legislation that has either been adopted or is under consideration that may be contrary to the letter and spirit of the Convention...”.
New Zealand invited states to consider important issues, such as aiding and abetting, when drafting national legislation.
Thank you very much, Mr. Chair.
Thank you to both of our witnesses for being with us today. It's a very important discussion for us. I don't know whether you had the opportunity to read the transcripts of the minister's testimony last week, but obviously Canada finds these munitions reprehensible. We are going to do everything in our power to work toward seeing the world rid of these horrible things.
Mr. Drolet, you've got experience in the field and you know what you have to contend with when you're dealing with people who have been injured. The lives of people in some of these countries are already difficult, to say the least, and are compounded by the problems of children who have inadvertently picked up something they thought was a play toy but which then resulted in horrible handicaps. It is terrible that any child should have to go through that.
As you know, the minister has already spoken about the money Canada is contributing, particularly in Laos right now, to ensure that we help that country with the demining process. We want to do everything that we can. We are working toward those things.
First of all, I want to say thank you to Handicap International. I had the opportunity to meet with a number of stakeholders a year ago and to discuss the issues of people who are suffering from disabilities in other countries, and how they have to work within the context of their own country, so often stigmatized—that word is being used. It was an opportunity to discuss and find a way for Canada to move forward in helping to put in place some of the policies that will look first of all at development, with disabilities as part of the lens, and how we can work our development dollars so that we are inclusive of people who have disabilities. It was a very fruitful discussion, and I am pleased to say that we had some of those stakeholders meet with after that discussion. Minister Fantino was putting those into place during his time in the ministry. I expect that we will move forward with those things.
I just have a comment. We heard from the general last Thursday about the responsibility we have to our military right now when we are working with our closest neighbour, the United States. I respectfully submit to our witness from Switzerland that even though the countries of Norway and Austria and the Holy See have made these comments, they don't have the same relationship that Canada has with the United States. We have a far different connection here.
We work with our closest ally in many ways that these other countries do not have to. We are in a rather unique position, being not only on the same continent but connected as we are to the United States in the relationship that we have.
My question would be to both of you, since you both are undertaking initiatives to speak to countries that have not signed on to the treaty. Obviously we would like to see everybody sign on to the treaty; that would be our objective in the long term. Can you tell us what negotiations you have had with and what representations you have made to countries that are not signatories to the treaty? How can Canada then come in and have those discussions, recognizing that we do have this very close relationship with the United States? How can we have discussions with the others that are not signatories to the treaty? What negotiations are you having?
Thank you very much, Ms. Brown.
I am pleased to hear once again that Canada wants to do everything in its power to eradicate cluster munitions. In order to do so, the loopholes in the current bill must be closed.
I am also pleased to hear you talk about inclusive development. That is actually an important part of the restorative aspect of the convention, meaning assistance to those who were injured or maimed by those weapons.
According to the Cluster Munition Coalition, as well as many states, many of the NATO states and many witnesses you have heard from and will hear from, it is possible to maintain military cooperation with any allies, including the U.S., as long as no Canadian ever uses cluster munitions and as long as all Canadians fully respect the prohibitions of the convention.
In terms of the work of the Cluster Munition Coalition, we are working on ensuring that all states adhere to the convention. We are actually working with the member states on that. We will be very pleased to work with Canada on that issue.
The states are divided geographically. In terms of the work that goes into making the treaty universal and in terms of the committees that are set up, the states work together so that more potential states adhere to the convention. In terms of the states that we would like to see adhere to the convention, not only do we want them to adhere, but we also want them to scrupulously follow all the provisions of the treaty.
We would be delighted to have Canada's support.
On the one hand we have the government, as expressed by Madam Brown, saying that yes, we decry the use of cluster munitions, as we all do around the table here. But unfortunately it is not willing to reassess the interpretation of article 21 of the convention. Certainly my party has been very clear in taking the position that Canada should clearly state that it will not participate in a particular joint operation with an ally such as the United States that could use cluster munitions in a particular joint operation.
Yes, we will work with our allies, all the time, in lots of other things, but not if they say they could use cluster munitions in a particular operation. I don't believe that kind of caveat is going to harm our relationship with our allies in any way whatsoever. We're much stronger than that in our relationship with the United States, and have proven it over the years. We are a very stalwart and reliable ally. On top of that it would show dramatically that Canada is actively working to rid the world of this indiscriminate and horrible weapon. We all agree on that.
However, I have to say that it's my impression that the current government is unwilling to take that position of international leadership. That unfortunately is the situation. Therefore, it all boils down to the interpretation of article 21 of the convention. In his submission to the committee, Earl Turcotte, who was the Canadian chief negotiator for the Convention on Cluster Munitions, said that Bill 's interpretation of article 21, mostly reflected in clause 11 of Bill C-6, is complete and utter nonsense. This is the guy who helped write it for Canada.
In his view, article 21 does not allow Canada to use cluster munitions in joint operations. Again, this is coming from the guy who was part of writing the convention. This is the interpretation we took when we wrote the convention.
I'd like to ask our two witnesses, starting with Monsieur Drolet, what do you think of a country that makes specific commitments when it's negotiating the convention and then reneges on them when it's about to ratify the convention?
I would like to complete my answer because I can link your question with what Mrs. Brown was asking me earlier on what we do to try to influence. We have national offices in eight countries. We have an office in Washington, and we do try to convince our American friends to ratify the Oslo accord and the Ottawa convention as well. They are reticent to do that. They have shown that they are not using submunitions and haven't for six to eight years already. I think the major countries are not the ones that are using them right now.
What is really a concern for us are the countries that are using them right now, like Libya and Syria, as mentioned by my colleague. Also, the other concern is that the United States has used these submunitions in the past and they are still a heritage in Cambodia, in Laos. Thirty years later, those countries are still polluted by those weapons. We can only try to move them, but I think there might be economic interests behind that. By endorsing it in our Canadian law, by sending signals, for instance by funding and adding those financial elements to the law, I think we can signal to our friends and maybe be strong, as Monsieur Garneau was mentioning, and be brave, and show the world that we need to take a lead in that.
Our perspective, as Jérôme was mentioning, is really from seeing the victims and trying to help them through. We can only bring them to the table, have them testify, tell how their lives are being affected, and hope that those people will have the compassion to ratify, sign, and go as far as they can within the spirit of the convention.
I want to underline that. We've seen some movement in words from the government. It is important to put what the convention says in the clearest possible way. We've heard goodwill from everyone around this table and from witnesses. The goal is to prevent horrific harm to individuals and human beings, but the challenge we face right now has to do with clause 11, which doesn't completely ban the use of these munitions by our forces.
I want to go to Madam Chayer. You mentioned the Red Cross. I want to read something into the record. They gave us a brief and I was quite surprised that, as you said, the ICRC went public with their concerns. The ICRC, for those who don't know, almost never takes such a position. On the ground, they are concerned about what's going on, but they are usually quiet about it.
With regard to the legislation, they say this:
||the exceptions in clause 11 are broad and, if adopted as presently drafted, they could permit activities that undermine the object and purpose of the convention and ultimately contribute to the continued use of cluster munitions rather than bringing about their elimination.
In other words, what the ICRC is saying is that, as the legislation exists right now, it could actually work against the intention of the treaty.
First of all, could you give your comments on how unusual it is for the ICRC to comment, and second, do you agree with the statement? Give us your explanation if you agree with this statement. If you don't agree, tell us why.
We're going to suspend for a couple of minutes just to get our next witnesses in and set up.
The Chair: We'll get started now.
We have with us the Right Honourable Malcolm Fraser, former Prime Minister of Australia.
Mr. Fraser, welcome. We're glad to have you with us from Melbourne. As I understand it, it's around 8:30 in the morning there, so thank you for participating with us.
We also will have, from Minneapolis, Minnesota, Professor Wiebe, whose testimony we're going to hear momentarily.
Why don't we start with Mr. Fraser?
Thank you for taking the time to join us today. We're going to have you start with your opening testimony, and hopefully we'll get wired in via video conference our next witness and hear Mr. Wiebe after we've had a chance to hear from you, Mr. Fraser.
The floor is yours, Mr. Fraser. You have 10 minutes for your opening statement, please.
Thank you very much indeed, Mr. Chairman, and thank you for making time available for me to speak with you briefly.
I asked my office to send over a press article that appeared in 2011, at a time when Australia was passing cluster bomb ratification legislation. I hope you have copies of that because it will save me from going back to it, and I think the arguments there are relevant to what Canada is doing at the present time.
Cluster bombs represent about the most indiscriminate of all weapons. If you want to kill women and children, cluster bombs would be the weapon of choice. If you want a precise military weapon, a cluster bomb is the last thing one would go to, and I can't really believe that in modern warfare cluster bombs are going to be the choice of any civilized power.
The 2008 treaty was a most significant humanitarian treaty, and most allies of the United States have signed on to that treaty—major allies, such as Britain, France, and Germany. The prohibitions in the treaty are emphatic and absolute that cluster bombs should just not be used, but for some reason, the military, especially in the United States, want to keep the power or capacity to use cluster bombs. The United States has not signed on. Of all the NATO powers—I hope it's not an offence to any other country—the United States is the only significant country that has not signed onto the treaty.
The exceptions in the Canadian legislation are substantial and would enable Canadian military forces to use cluster bombs in a much wider range of circumstances if a state not party to the convention, the United States, wanted to use them. But the Canadian exceptions go beyond that because for transport or an activity that would help the United States, there are unprecedented powers in subclause 11(3) of Bill C-6 to help the United States in the use of cluster weapons. The exception is also given to direct or to authorize or to request the use of cluster bombs. I would have thought this really goes to the heart of the convention and undermines it in a major way.
Article 21.3 of the Convention, I would have thought, as other testimony has indicated, gives all the power to the Canadian military, or to the Australian military, to work with the United States, because that's really what we're talking about, that, is whether allies of the United States can continue to work with them. I make the point that Canada, I think in its wisdom—and that's not meant in a critical sense, but in a praiseworthy sense—had the very good sense to keep out of the wars in Vietnam and Iraq, which Australia was involved in with America. That's a mark not only of Canada's judgment but also of its capacity for independence in relation to a close ally. Article 21.3 gives us, or you, all the authority we need to work with the United States were we ever to have the circumstances in which the United States wanted to use cluster weapons in the future.
I can't really conceive of any circumstances in which it makes technical or strategic sense, in any likely war that the United States might be involved in, to use cluster weapons. Where they have been used relatively recently, whether in Lebanon or Kosovo or wherever, it has made no sense and has led to a great many civilian casualties.
One of the things that I believe must concern Canada, Australia, and most countries around the world is that as time has passed and military weapons become more and more precise, we've come to a stage where the greatest number of casualties by far are in fact civilians. Wars used to be fought directly between armies and it was armies who suffered the casualties but now it's not, it's civilians. Keeping cluster weapons on the agenda will only exacerbate that point. In this case in particular, because of the characteristics of the weapons, more children will be killed or maimed in future years.
The exception in New Zealand is probably the best worded piece of legislation, which, I'm sure, has been brought in front of you. Australia went backwards, having listened to the United States' objections, I suppose, to the treaty. With all respect Canada's gone a little further backwards than Australia on this issue.
From my perspective over a long period in public life, it seems to me to be contrary to Canadian tradition because, amongst western powers, Canada has over many decades taken an enlightened view of world affairs as expressed in a degree of independence from the United States over a number of issues. That has not affected the closeness of your relationship and has not affected the capacity of Canada to work cooperatively in support of common objectives. But the only reason for the strength and depth of the amendments seems to me, really, to please the United States, and quite unnecessarily.
I indicated that Canada kept out of Vietnam and Iraq. I think many Australians would argue that although you're closer geographically, the second in charge of American troops throughout the Pacific is in fact an active Australian major general. I don't think we should have him there, but we do. That shows the depth of the integration and interoperability of Australian forces with the United States, which I would believe is just as great as Canada's.
So why not ratify the treaty with a New Zealand kind of exception? I mean, article 21.3 gives all the power a country needs to operate with an ally that's not a state party to the convention. Why go beyond that? Why break down the strength of a very good humanitarian treaty that was a major plus for the world?
I'm sure you have all the background needed, ladies and gentlemen. If you wish to ask questions I'll do my best to answer them.
Thank you very much for the opportunity to testify today.
My name is Virgil Wiebe. I'm a professor at the University of St. Thomas School of Law here in Minneapolis. I appear in my personal capacity.
As a Mennonite, I’ve been blessed to walk in the steps of people who have been raising their voices about cluster munitions since the 1960s and 1970s. By 1975, when the Vietnam War ended, the threat from unexploded ordnance like millions of this small “bombie” or bomblet was already becoming clear throughout the region. I commend the written submission of Mennonite Central Committee Canada as it recounts their experience working with people most affected by unexploded bomblets, especially in Laos. In particular, their calls for legislative implementation of positive obligations should be heeded. Also, as a board member of Mines Advisory Group America, I have travelled to Lebanon and seen firsthand the aftermath of massive cluster munition use there.
As a scholar, I followed the Oslo treaty process closely, including attending the final negotiations in Dublin. I then joined a team of scholars and diplomats to write the Oxford commentary on the Convention on Cluster Munitions, published in 2010. I focused my efforts on the history of cluster munition use and article 1 of the treaty. I also contributed to the chapter on article 21 of the treaty.
Now, to get quickly to a few points. First, clause 11 of Bill C-6 is not simply a restatement of article 21 of the treaty, but it veers in the direction of violating both the letter and spirit of the treaty. The provisions of clause 11 are not unquestionably allowed by the convention. They go beyond any other national legislation in implementing protections for national service members. Quite breathtakingly, clause 11 sanctions the use, stockpiling, and transfer of cluster munitions by Canadian Forces in certain circumstances. A written submission I made last week and also an open letter that was submitted to Minister Baird last year by 26 Canadian scholars spelled out how clause 11 goes well beyond the text of the convention, its context, its object, and its purpose.
In particular, it's important to note that article 21.1 and article 21.2 require Canada to encourage other states to join the treaty and to make best efforts to discourage other states from using cluster munitions.
The principles of treaty construction call for a much narrower interpretation of articles 21.3 and 21.4 than is done in Bill C-6. One example of treaty interpretation tools is that names matter. Article 21 is named “Relations with States not party to this Convention.” During the negotiations in Dublin the drafts of what would become article 21 were called “Proposals on Interoperability.” It was therefore no accident when the final name of the article became “Relations with states not party”. The emphasis was not on interoperability; indeed, that word appears nowhere in the treaty, but on relations with states not party and how to pull them into compliance and even membership in the treaty as well as how to discourage them from using cluster munitions.
Second, existing Canadian law already provides protection for unknowing or unwitting actions by Canadian Forces in joint operations. Last week, General Walter Natynczyk was asked a great question: what would happen to Canadian service members who were in a joint operation and unknowingly or unwittingly participated in the use of cluster munitions if this legislation did not exist? His reply was that:
||...Canadian Forces must abide by the law of the land and the code of service discipline applies with criminal law. So therefore that individual or individuals could be subject to prosecution.
With all due respect to the general, I submit that he was wrong. Someone in that situation would not have needed section 11 in order to avoid prosecution. Under both the Code of Service Discipline and the Canadian Criminal Code, offences with the prospect of imprisonment require some mens rea element.
My reading of the prohibition section of Bill , in the context of existing Canadian law—and I'm reading clause 6 of the bill—is that a prosecutor would have to prove that the person in question had the purpose, intent, knowledge, or at least recklessness to commit an offence spelled out in clause 6 of the bill. That person would have been protected from criminal prosecution for his or her unknowing and unintentional assistance in the use of cluster munitions under existing law, without the protection of clause 11.
Thirdly, creating exceptions for the use of cluster munitions may have long-term negative effects on the service members who use or assist in the use of cluster munitions. On the one hand, to, as a nation, condemn cluster bombs while on the other hand then allowing some to use them may well create a profound moral dilemma for those persons during and following conflict.
A colleague of mine has studied the early medieval church and how it grappled with this notion of legally sanctioned but morally repugnant acts. It did so by creating elaborate systems of penance following a soldier’s return from war. We have similar situations now. Some of those who have used and assisted in the use of cluster munitions have later experienced profound guilt and regret. Some have sought absolution and redemption by engaging in the equivalent of penance, including engaging in unexploded ordnance clearance, even decades after the events in question.
Fourthly, there is state responsibility. Excusing individuals for otherwise criminal activity does not necessarily excuse Canadian state responsibility for acts carried out by a Canadian state organ. Principles of state responsibility attribute to Canada actions by representatives of Canada where Canada maintains direction and control of those personnel.
To conclude, I have learned a few terms from the psychologists and social workers with whom I work.
One of those words is “enabler”, which has been defined as one who enables another to persist in self-destructive behaviour by providing excuses or by making it possible to avoid the consequences of such behaviour.
Through clause 11 of Bill Canada is enabling potentially destructive and unhelpful behaviour by its allies, like the United States, and maybe even by Canada.
On the other hand, a “psychological intervention” has been defined as a concrete action that tries to introduce some changes in a given situation, usually planned and devised according to some previous theory, and adapted to the here-and-now peculiarities.
Canada’s cluster munition legislation should act as the intervention needed for states not party to the convention. It should embrace article 21 in its entirety and use paragraphs 1 and 2 of article 21 to pull countries like the United States in the right direction.
As for what should be done, I can offer some specific suggestions in response to questions. Many of these responses, I acknowledge, I will take from the written submissions from groups like Mines Action Canada, the Harvard human rights clinic, the Canadian Red Cross, and others.
Thank you very much.
I appreciate your comments on this, because it is a matter of weighing all opinions and then taking the right direction.
Mr. Wiebe, I want to go to you on the issue of article 21.
I think it's important for our committee to understand what you were saying. In the treaty article 21, sections 1 and 2 are very explicit. They tell us to not only look to enact legislation to ban cluster weapons, but also that it is also our responsibility to focus on other parties not signatories to the treaty to do the same. We heard from our at committee who was very up front. He wanted to see the world be rid of these munitions. We agree.
However, clause 11, as we just heard from former prime minister Fraser, goes the other way. It's interesting. Former prime minister Fraser said that in clause 11 of the bill, you have in essence a direction that would be allowed and almost encouraged to use the very weapons we're trying to rid ourselves of.
So are you telling us that article 21 of the treaty, sections 1 and 2, charges us with the responsibility for enacting legislation that would put pressure on our colleagues south of the border, in the United States, to actually follow us, and not just to accommodate the United States and its military actions?
Thank you very much for appearing before us.
Mr. Fraser, I used the analogy last week of the real-life circumstance in Korea. Of course, I believe in that immediate theatre there were Australian troops as well as New Zealand troops, but it was in the Kapyong region. It was Colonel Stone with the Princess Patricias who was at the verge of being overrun by thousands of Chinese at the position he was in. The position got so untenable that he literally called down an artillery strike on his own position.
Under a scenario like that I could quite well imagine that given the circumstances, he'd be more than prepared to take anything from air or artillery that was available under those circumstances.
That's one concern that I have when we have our military being involved on what I call the front lines more and more, whether it's in Afghanistan or in Korea, not having that option of emergency to be able to deal with the circumstance. It's limiting the lives and health not only of our soldiers but also in that area of the American soldiers as well, too.
I'm not sure, as had said earlier, that the Americans would want to be hamstrung in that particular scenario by having a partner there that was going to make things conditional when you're in an emergency circumstance. Certainly any effective command in any region cannot have confusion or hesitancy happening.
But more so than anything, I'm looking at this article 21 as being more party state definitions than it is individual definitions, where clause 11 is certainly personal protection for that individual. Then I refer back to that scenario, that real-life scenario. He who called in that artillery strike was not at high command. The high command would be at the general position. This was a colonel. It may very well be a sergeant calling in that air drop or that artillery support.
Canadian soldiers, as well as many professional army soldiers, are taught to be independent thinkers and to act when the circumstances demand that they act professionally and immediately. So it's easy to say that on high the parties have come to an agreement, but I really feel you need this individual protection for the men and women who are actually there on the front lines. What is your opinion on that, Mr. Fraser?