Bill C-6 (Historical)

Prohibiting Cluster Munitions Act

An Act to implement the Convention on Cluster Munitions

This enactment implements Canada’s commitments under the Convention on Cluster Munitions. In particular, it establishes prohibitions and offences for certain activities involving cluster munitions, explosive submunitions and explosive bomblets.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Chair, I would like some clarification on clause 15. There is language that I want some help with, where it says: A minister may delegate to any person, subject to any conditions that the minister considers appropriate, any powers, duties or functions conferred on the minister under this act.

My question has to do with its fairly general scope. We've seen in previous manifestations on this kind of legislation that it's much more defined. We've seen delegation of responsibilities in previous legislation that enacted treaties similar to this one that:

The Minister may designate one or more persons to exercise the powers, and perform the duties and functions, of the Minister under this Act or the Convention that are specified in the designation. That person or those persons may exercise those powers and shall perform those functions subject to such terms and conditions, if any, as are specified in the designation.

I'm giving you that, Mr. Chair, because I want to understand better the fact that what we have in Bill C-6 is very general in the scope of delegation of powers. When we're talking about a treaty as important as this one and we look back to previous treaties where we've had legislation to enact those treaties, the delegation responsibility is much more refined.

What I'm looking for here is to better understand why the delegation of authority is so general.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

If I may, I'd like to say a few words about this, because it also introduces the notion of active assistance. The amendment we are proposing here draws on the language of Canada's legislation banning land mines to bring clause 11 of Bill C-6 to what we consider to be in line with article 21 of the convention.

Although our preferred policy would be for Canada to insist that cluster bombs not be used at all in multinational operations Canada participates in, we accept the fact that Canadian Forces may end up working with other countries that use cluster munitions. In these cases, we believe the appropriate policy is to inform our allies that Canada will not participate in the use of cluster munitions while simultaneously protecting our soldiers from legal prosecution for working with these other countries.

The words “active assistance” we believe accomplish this by making it clear that Canadian Forces cannot knowingly or intentionally assist with the use of cluster munitions but that they are protected from prosecution should they unknowingly or unintentionally assist with the use of cluster munitions.

When Minister Baird came, he made it clear at the committee that he never wants to see Canadian Forces use cluster munitions. Government members of this committee have stated that they see clause 11 not as permission to use cluster munitions but really as intended to be a protection for Canadian soldiers in joint operations.

We believe the wording we are proposing in this amendment is a better reflection of the government's own stated position that it does not want to see Canadians using cluster munitions but that it does want to protect Canadians in combined operations with countries that may use cluster munitions. That is what is behind the proposal we're putting forward as amendment LIB-3.

Thank you.

[The Chair, Conservative, Dean Allison]

Thank you very much for your intervention, Mr. Fortin.

I'm just going to read why it is inadmissible.

Bill C-6, An Act to implement the Convention on Cluster Munitions provides for exceptions to prohibitions listed in clause 6 of the bill. One of these exceptions could be found in subclause 11(1), which does not prohibit some specified individuals from doing certain acts listed in clause 6.

The amendment proposes to alter the wording from “does not prohibit” to “prohibits”. As House of Commons Procedure and Practice, Second Edition , states on page 766, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill”. In the opinion of the chair, the amendment is contrary to the principle of the bill as it negates an exception provided in subclause 11(1) of the bill. Therefore the amendment is inadmissible.

Thank you very much. Now we're going to move to amendment LIB-3. Mr. Garneau, I'll turn the floor over to you for your amendment.

[Jean-François Fortin, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

First off, I'd like to mention that amendment BQ-2 and amendment BQ-3 are consistent with amendment BQ-1. I'll explain the principle underlying what I am proposing to the committee today.

The Bloc Québecois is glad that Bill C-6 was brought forward and sincerely hopes it will live up to the objectives laid out in the Convention on Cluster Munitions. Keep in mind that the importance of the convention cannot be understated. It prohibits the use of cluster bombs and establishes a framework for their destruction. The prohibitions that have to be included in the bill before us today, a bill to implement the convention, must be firm and comprehensive, while following through on Canada's commitment to never again use cluster bombs, a veritable scourge for civilian populations.

Unfortunately, we think clause 11 of the bill weakens the legislation and, to some extent, spoils its intent by setting out an exception for members of the Canadian Armed Forces participating in joint military operations. The reality is these members of the military could contravene the very spirit of the convention that Canada has signed. As we see it, the exception is so broad that it practically guts the bill of its substance and significance. Simply consider the fact that nearly all the armed conflicts Canada has played a role in recently have involved joint military operations with international troops, either under NATO or with partners who have yet to ratify the convention. Earlier, Ms. May said she hoped that all of our partners, all governments, would end up ratifying the convention. Canada has taken part in missions abroad, both NATO-led and others, and some of Canada's partners have stated their intention not to ratify the convention. In short, those operations, especially with the U.S., could put Canada in contravention of the very spirit of the convention it signed.

In its current form, Bill C-6 is merely window dressing because it has been gutted of any real meaning. And that is why we are proposing three amendments. They would amend the first sentence of each of the subsections in clause 11 and completely transform it, turning the exceptions, which currently allow for the continued use of cluster bombs, into explicit prohibitions, as required by the Convention on Cluster Munitions. With our three amendments, Bill C-6 could actually do what it is supposed to: implement the convention. It wouldn't simply be a public relations exercise to the detriment of civilians who are killed every day by cluster bombs.

Mr. Chair, I will wrap up my remarks with a brief comment so as not to take up too much more of the committee's time. I heard what the experts had to say earlier. I realize their arguments are well thought out, but Canada has a role to fulfill. As it contributes to operations abroad and passes legislation to implement the convention, Canada must show it is mindful of the situation and serve as an example to other nations involved in joint military operations. With a tougher piece of legislation, Canada could set the example for the rest of our international partners.

I urge the committee members to adopt my three amendments, which will give the bill the teeth it needs to do what it is intended to.

Thank you.

[The Chair, Conservative, Dean Allison]

Pursuant to the order of reference of Friday, October 25, 2013, Bill C-6, An Act to implement the Convention on Cluster Munitions, we're going to get started with that today.

I want to welcome our witnesses back again today.

We've got Sabine Nolke, who's the director general, who was here before. Welcome back.

We've got Lieutenant-Colonel Chris Penny. Welcome back, sir.

And, of course, we've got, from the Department of Justice, Christopher Ram.

They'll be there to answer any questions we may have.

Before we get started, we just submitted a couple of budgets. One is for this committee, which is for $3,300 for witnesses we had here for Bill C-6. I just want to ask the question, if we could get that approved.

All in favour?

[Gary Schellenberger, Conservative, Perth—Wellington, ON]

Thank you, and thank you to our witnesses today. I have one question about something that's been bothering me a wee bit ever since I realized it. The UN Security Council removed the International Criminal Court's jurisdiction over acts of current or former officials or personnel from states that contributed to the UN stabilization force and multinational force in Liberia, unless a contributing state consents to the ICC exercising jurisdiction.

This was Resolution 1497 of the Security Council in 2003. Nobody voted against it and there were three abstentions. This is an example of international law recognizing the importance of protecting citizens and armed forces from being tried for crimes in precarious situations where they are being sent to aid stabilization and peacekeeping efforts.

Would you argue that the spirit of clause 11 of Bill C-6, which would allow for the protection of Canadian Armed Forces personnel when aiding our allies in joint missions, is any different?

[Prof. Virgil Wiebe, Professor of Law, University of St. Thomas School of Law, As an Individual]

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 C-6, 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 C-6Canada 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.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you very much.

Mr. Drolet, ideally, we would have heard from cluster munition victims. There aren't any on our list of witnesses. In your view, what would they have to say about Canada's position and Bill C-6? Have you included that in your comments or do you have something to add?

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

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 C-6'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?

[Marc Drolet, Executive Director, Handicap International Canada]

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 C-6. 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 C-6 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 C-6 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.

Thank you.

I can also answer your questions in French.

[The Chair, Conservative, Dean Allison]

Good afternoon everyone. Pursuant to the order of reference of Friday, October 25, 2013, we are resuming our consideration of Bill C-6, An Act to implement the Convention on Cluster Munitions.

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.

[Prof. Walter Dorn, Professor, Royal Military College of Canada, Department of Defence Studies, As an Individual]

Mr. Chair, thank you for the opportunity to appear before this important committee.

I gave the same remarks in 1995 with respect to the Chemical Weapon Convention. In addition, I was present in Parliament when the Ottawa convention banning antipersonnel mines was ratified.

At the Canadian Forces College, I teach officers from 20 countries about arms control and international UN law. I work as a consultant for the UN and have taken part in peacekeeping operations.

As with landmines, we all agree it's high time that the world send cluster munitions to the trash bin of history. To achieve this ban, the treaty is categorical in its first article that a state party may “never under any circumstances” use or assist in the use of these inhumane weapons. Canada's long-overdue ratification of the 2008 convention is welcome as the country takes its place among the progressive nations demonstrating humanitarian concern, but the implementing legislation, Bill C-6, contains one completely out-of-place clause. I appreciate that the government is willing to hear the arguments against clause 11 and to consider eliminating or amending the obnoxious paragraphs.

Who would want Canadians to use cluster munitions, aid and abet, direct or request their use, or conspire with another person to use these indiscriminate weapons? Yet this wording is in the legislation itself to allow for the so-called cooperation with a non-party, which we know to be aimed at the possible cooperation with the United States. Besides being abhorrent, the problems with the approach are twofold.

First, it is against the spirit and I am convinced the letter of the treaty. Article 21, paragraph 3 of the treaty is not a basis for and cannot be used to justify the legislation's clause 11. The treaty article only reaffirms that “States Parties...may engage in military cooperation” with states non-party. It allows countries to be a part of a coalition in which some members might use cluster munitions, but it does not give any authorizations for their use by states parties. This understanding of a complete prohibition “under any circumstance” in the convention's primary article is the view of a great many states, international lawyers, civil society organizations, and Canada's main negotiator of the convention, Earl Turcotte, who is in fact one of the primary drafters of article 21.

Another reason to amend clause 11 is that it is not necessary. With deference to General Natynczyk, who has a great deal of experience, I can foresee scenarios whereby some of the problems he might have encountered in Iraq can be overcome. The various scenarios that have been advanced are really exceedingly rare, as we've just heard from him, and can be dealt with in ways that do not contravene the convention and do little damage to interoperability.

For instance, individuals in a chain of command can recuse themselves, that is, temporarily remove themselves, so that a cluster munitions order may skip or detour around the Canadian. General Lessard was telling me about this possibility for the Canadian Forces yesterday. Similarly, if Canadians are in planning or intelligence units, they can recuse themselves from assisting in specific parts dealing with cluster munitions.

Caveats can be entered before participating in a multinational coalition. Such national caveats are common. We were just speaking about this before the providing of testimony and you hear about how the commanders have matrices, Excel spreadsheets with national caveats. It's part of the routine business of working with multinational coalitions to ensure respect for national prerogatives. For instance, if Canadians were in a coalition operation, the U.S. might have to ensure that any U.S. aircraft that could be used for close air support, an example just provided, do not carry only cluster munitions but have other munitions as well, which is normal.

Logistics such as air-to-air refuelling of U.S. planes carrying cluster munitions, or landmines for that matter, can be provided by the U.S. rather than Canada.

Training exercises can be designed so that any cluster munitions used are not done as part of the combined operations, but are completely separate.

By taking these actions, Canada would fulfill the other provisions of article 21 to discourage the use of cluster munitions and to encourage non-parties to accept or accede to the convention, something we can hope the U.S. will do in the near very future.

In any case, under article 21 Canada has an obligation to notify the U.S. of Canadian commitments under the convention.

Since the instances of non-cooperation are very rare, and in fact, the minister the other day said they were infinitesimal, and the humanitarian principles are shared by most of the members of the international community and almost all members of NATO, it is not expected to be a serious impediment to the important military relationship between Canada and the United States. General Natynczyk said that we have full interoperability, yet we still agree to disagree on different issues. Interoperability can be maintained.

Article 21 does give Canada cover when the U.S. uses cluster munitions in a fashion that is beyond Canadian control. Merely being a member of a coalition does not mean Canada is complicit or is assisting with cluster munitions. That is the real value and meaning of article 21.

This approach suggests a better way to design the cooperation section of the implementing legislation, drawing on the standard-setting Canadian legislation passed for the Ottawa treaty. The anti-personnel mines legislation states that Canadians are not prohibited from “participation in operations, exercises or other military activities” with non-parties “if that participation does not amount to active assistance in that prohibited activity”.

This idea of active assistance is what should be the standard. This allows Canadians who are not actively assisting to be free from potential prosecution. That is a better way. It will allow Canada to be a stronger force for international humanitarian law, draw less ire from some of our colleagues and allies, and help the world to finally place these weapons into the trash bin of history's most inhumane weapons.

Thank you, on behalf of humankind.

[Gen Walter Natynczyk, President, Canadian Space Agency, As an Individual]

Mr. Chair, ladies and gentlemen of the committee, I would like to thank you for inviting me to appear today.

I am delighted to have this opportunity to share my personal views on Bill C-6, the Prohibiting Cluster Munitions Act. I am here today as an individual, as well as a former member of the Canadian Armed Forces and former Chief of the Defence Staff.

As many of you might be aware, I served in uniform for about 37 years. Over the course of my service, I deployed for three years on peacekeeping operations, on stability operations, and on combat duty. I've worn the blue beret with the United Nations in Cyprus, Bosnia, and Croatia. I've been a NATO commander in Bosnia, and I was deployed throughout 2004 as a deputy commanding general of a U.S.-led multinational force in Iraq, while on exchange duties with the U.S. Army. I participated in exercises in Europe, the Middle East, and South Korea.

With that perspective, I hope to be able to share my opinions and experiences as they relate to the convention's impact on the Canadian Armed Forces in conducting operations around the world with Canada's closest allies.

Throughout my military career, I saw how the relics of war, even after the guns had gone silent, killed and mutilated the most vulnerable: the young, the disabled and innocent civilians.

I spent my time in Bosnia and Croatia in 1994-95 and I saw the indiscriminate effects of landmines on civilians tilling their fields, children playing near schools, our own Canadian men and women and allied United Nations soldiers who attempted to bring peace and security to those troubled countries.

Similarly, unexploded cluster munitions have a devastating impact on civilian populations long after the conflict has ended. Countries like Vietnam, the entire region, in fact, continue to suffer the effects of cluster bombs dropped during the Vietnam War.

It's because of this heavy cost to civilians that the international community, justifiably, has created this international law to prohibit the use of cluster bomb munitions. I believe this convention is very right and very important to Canada and to the global community to save lives.

Even though the Convention on Cluster Munitions is not yet in force in Canada, the Department of National Defence and the Canadian Armed Forces adopted measures that were in line with the convention during my time as Chief of the Defence Staff.

You'll remember that in 2008, when I approved the interim order, Canadian service men and women were on a NATO-led combat mission in Afghanistan and participating on numerous other operations in the Middle East, Africa, Kosovo, and Haiti. Since then our soldiers, sailors, and airmen and women also participated in the United Nations-sanctioned and NATO-led mission to protect civilians in Libya.

In each of those theatres of operations, our men and women in uniform were asked to serve in conditions that could be described as unstable, uncertain, complex and ambiguous. And we expect our military leaders, from corporals to generals, to make sound and timely decisions that contribute to a mission's success in the most challenging situations. They are frequently called upon to make decisions in the face of serious time pressures and complex conditions.

I believe that Canadians can be justifiably proud of their armed forces. From my standpoint, man for man, woman for woman, unit for unit, they are among the most professional forces in the world. As a result, our allies want Canadians on their flanks. My experience has been that when a crisis erupts, our allies and partners are immediately requesting the participation of the Canadian Armed Forces.

The challenge is that some of our NATO allies, such as Poland, Turkey and Estonia, as well as some of our international partners, including South Korea and Israel, have chosen not to join the convention. Clearly, each of those countries is dealing with major geostrategic security concerns that we, in Canada, are not faced with.

The United States, our NORAD and NATO ally, also made the decision not to join the convention. While we cooperate closely with their armed forces across the defence and security spectrum, sometimes we must agree to disagree, as is the case with the cluster munitions convention.

I understand that during the negotiation of the convention, Canada and several of our NATO allies championed a clause, I believe it to be article 21 of the convention, that sought to safeguard our ability to cooperate on military operations with countries that are not party to the treaty.

If we had to enforce article 21 of the convention, the exceptions listed in clause 11 of Bill C-6 would protect our men and women in uniform against prosecution, because they would have simply been carrying out their military duties.

From my perspective, I believe article 21 enables our forces to remain fully interoperable with the U.S. armed forces. This comprehensive level of cooperation is a unique strategic advantage for Canada. It is the result of the reality of our joint defence of our continent and a reflection of shared trust, confidence, and values.

The interoperability clause of the convention strikes a fair balance between profound humanitarian principles on the one hand, and Canada's security realities on the other.

l believe it's important for Canada to retain full capability to participate in combined operations with our allies that enhance our national and collective security.

Many Canadian Armed Forces members are currently on secondment or taking part in exchanges with the U.S. military in places like Afghanistan or the continental U.S. These members occasionally support training activities for our Polish allies. They may be posted in Turkey under NATO command or under UN command in South Korea.

My assessment is that the fulfillment of their routine military duties should not expose them to prosecution, for example, for calling in aircraft to save the lives of our soldiers or allowing an aircraft to land on an airfield we control, for air-to-air refuelling of fighter aircraft, for sharing of intelligence, or for authorizing a port visit of a ship.

Having had the exchange experience as the deputy commanding general of the Multi-National Force - Iraq throughout 2004, l can say to you with confidence that l was never aware that cluster bombs were actually stocked in theatre or that l participated in planning for their use or, in fact, authorized their use. I had none of that experience whatsoever.

However, unwittingly l could have done so, and l could have participated in activities, without my knowledge, that assisted in the use of cluster munitions, but l would not have known it at that time.

Therefore, Mr. Chair, it is my personal opinion that these exceptions are necessary to protect members of the Canadian Armed Forces when they are sent into dangerous situations, with the expectation that they will fulfill their duties to protect Canada and its interests.

In my layman's opinion, Bill C-6, as currently drafted, appropriately reflects the Convention on Cluster Munitions prohibitions and exceptions.

l believe it strikes the right balance between our international obligations to rid the world of these destructive weapons, while recognizing Canada's unique security realities, and ensuring a specific legal protection for the men and women of the Canadian armed forces who continue to serve.

Thank you.

[The Chair, Conservative, Dean Allison]

I call this meeting to order.

Gentlemen, thank you very much for taking the time to be here today as we look at Bill C-6.

General Natynczyk, we thank you for being here. We will start with you first.

I also want to introduce Dr. Dorn, who is a professor at the Royal Military College of Canada.

We realize both of you are here as individuals, so thank you for that.

General Natynczyk, why don't we start with you, sir. We'll go with 10 minutes, and up to 10 minutes as well with Dr. Dorn, and then we'll move back and forth over the rest of the hour with questions and answers.

Thanks again for being here. The floor is yours.

[Sabine Nolke]

The basic answer is yes, there could be a prosecution. The provisions in Bill C-6 on the prohibitions are very wide and they include the entire range of Canadian law on aiding and abetting. For example, if you have a military expert who recommends the use of an airstrike, that could be considered counselling if one of the states in the military coalition is armed with cluster munitions. So that would be a potential exposure. The minister mentioned earlier that, if a soldier called in close air support, that could be considered actual use under Canadian law.

So, yes, there is a potential exposure. This is a criminal law bill. It creates criminal offences. These are potentially very wide-ranging because the bill is very ambitious, just as the treaty is very ambitious in the types of conduct it seeks to outlaw. That is why the exemptions are needed: precisely to provide that necessary balance, so that you do not have Canadian soldiers inadvertently caught by those criminal offences.