Foreign Affairs Committee on Nov. 21st, 2013

[The Chair, Conservative, Dean Allison]

Thank you.

We're going to finish the first round with Mr. Garneau.

Sir, you have seven minutes.

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

Thank you, Mr. Chair.

My first question is for General Natynczyk.

I hope you're enjoying the Canadian Space Agency. Sometimes I wish I were back there myself.

[Some hon. members]

Oh, oh!

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

On the issue of cluster munitions, the U.S. still has them. I would like to have your assessment of why they still consider it to be a weapon that's worth having in their arsenal for possible use in the battlefield.

[Gen Walter Natynczyk]

I don't have any insight at all.

What I would say to you from a land warfare tactical and operational standpoint is that the U.S. has treaties with a number of nations around the world where, with regard to any kind of invasion of those nations, the U.S. is treaty-bound to come to their defence.

Clearly, that is the case with NATO, and we're all well aware of that, but my understanding is that the U.S. also has commitments to other nations that, as I mentioned in my statement, are in troubled regions of the world.

The problem is there has been the experience of offensive operations on to those countries. The question is, are the defences satisfactory? Clearly, the United States sees there is a need for all of the tools out there. I cannot make a judgment call on that, other than to say that these weapons are clearly abhorrent.

It would also indicate from the other non-signatories the great concern they have in terms of their vulnerability.

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

Thank you.

As far as we know, as I understand it, they haven't been used since 2003, and the U.S. army apparently declared that cluster munitions were a loser in Operation Iraqi Freedom and a relic as well. I've also seen them described as a useful weapon as well, so it's hard to understand exactly how they feel about it.

You were very clear on condemning the use of these weapons, particularly because of the devastating effects they have for decades after and particularly killing innocent civilians.

Here's a hypothetical question, General. We have been staunch allies of the United States, and you quite rightfully pointed out that we have carried our load. If we said to our U.S. ally that we would continue to be staunch allies in the years to come but if we engaged in joint operations with them, it would be on condition that in those particular engagements they didn't use cluster weapons, do you think that would seriously jeopardize our relationship with the United States in the context of NORAD or within the broader international context of NATO?

[Gen Walter Natynczyk]

Sir, I don't know. We have great relationships in terms of trust and confidence with them, but I don't know enough about their thinking with regard to this and the current situation in some of the hotspots around the world, so I really can't comment on that.

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

Very good. I'll offer my opinion. I don't think our relationship would be seriously jeopardized.

Dr. Dorn, I have a couple of questions for you. You've obviously presented this before the Senate and talked about changes to clause 11. How were those greeted at that point? Obviously, they're still there, so somebody disagreed with you. What were the counter arguments they presented to the changes that you feel should and can be done to clause 11?

[Prof. Walter Dorn]

I've had discussions with people from Foreign Affairs and from JAG in the military, and they were valuable discussions.

There's a debate about the utility of such strong language allowing such a wide range of activities for Canadian soldiers. We both agree that the Canadian soldiers should be protected, but this sets such a bad precedent for the rest of the world who might use those similar sorts of provisions to do lots of nefarious things.

The typical arguments that I get are the examples such as if a Canadian is on the ground and needs to call in close air support and the only plane that's in the air has cluster munitions on it. My response is that's part of force planning, that you can pre-envision all those kinds of scenarios so that you can make sure that it isn't the only aircraft in the air, that the Americans know that, and it will also put pressure on the Americans to make less use of cluster munitions, which we're supposed to do under the convention in any case.

I haven't found any case yet—the Australian discussion paper from the negotiations, or any case that I have discussed—that I saw as a showstopper for legislation that just says we won't actively assist with cluster munitions.

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

You raised the notion of caveats. Can you give me an example? Can you imagine a possible caveat that might help in the case of cluster munitions, for us to ultimately accomplish what we want to do, which is not to see them used?

[Prof. Walter Dorn]

I think General Natynczyk could give you very good examples of caveats from Afghanistan.

Obviously, we signed the landmine convention and the United States hasn't. We don't want to be laying landmines if we're in a joint camp together.

The caveats that came up frequently and were often complained about in Afghanistan were that the Germans wouldn't fly in the south and wouldn't engage in combat operations. These are standard practices in putting together a multinational coalition. I could see that we could have caveats on cluster munitions that would be perfectly natural. Even with our legislation we'd still have those caveats. We can't actively ask Canadian soldiers to plant landmines or cluster munitions, or drop them, or shoot them from artillery.

I think we'll be faced with that situation in presenting caveats anyway. All the prohibitions and treaties should be part of our caveat.

[The Chair, Conservative, Dean Allison]

You have 30 seconds.

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

You talked about active assistance. I'd like you to define what exactly you mean by that.

[Prof. Walter Dorn]

That would come in the very rare possibility of a court case. The court might have to decide what active assistance is exactly. Participating knowingly, because there's the mens rea provision of law, and knowingly putting a cluster munition into the ground and shooting it is being actively involved. If you're just sitting back and saying that the Americans are over there doing that, then that's not a problem, but if you're saying that you need a cluster munition in this position, then you're actively participating in it. If you're helping transport the cluster munition for its use, then that's active participation.

I think the word “active” is a pretty good one.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Garneau.

We're going to start our second round, which will be five minutes for questions and answers.

I'm going to start with Mr. Goldring.

[Peter Goldring, Conservative, Edmonton East, AB]

Thank you very much and thank you for being here, gentlemen.

I might say that I believe I looked snappier in my uniform than I do today in my civvies.

I think it's well known that Canadian soldiers' reputation as peacekeepers was really built in the wars throughout the past century. We can look at the first one, with Vimy Ridge. You can go through Ortona. You can go through D-Day. Perhaps a more comparable one would be Korea. We're recognizing 50 years since the ceasefire in Korea. The PPCLI was engaged in one of the pre-eminent battles there, Kapyong, and in fact won a presidential citation for it.

My point here is I believe that our soldiers’ interoperability is saving lives and has saved lives, many lives. Having restrictions on that capability could keep them from helping out in different world situations that they have been in in the past. I certainly feel, as does everybody in this room, that cluster munitions are just obscene. They really should not be used. All attempts to ban them should be worldwide.

In the meantime, we have another responsibility and that's to the world. We have a responsibility to be engaged. As you said, General, we don't know where the next one is going to be. I hardly knew where Afghanistan was before that came up, but it was necessary for Canada to be on the pointy part of that confrontation with the United States. Whereas many other countries had exceptions to it, and they might not go out at night or they might not do it this way or they might not do it that way, Canada had none of those exclusions in acceptance. Canada was there predominantly with our American partners out in the field.

We owe these soldiers a great deal of respect and we want to protect their rights. I don't believe that we can make side deals with other countries that will better protect our soldiers than we have in this agreement here. In other words, it's our responsibility to protect our soldiers from litigation or possible blame on being involved, from here, not depending on another country whether they're going to or not.

When we're talking about being actively engaged in these units, there's no time for recusing oneself, no time to step out of this or step out of that. You're there to be involved and totally engaged. I think it would be destabilizing if your partners out in the field thought you were going to have these hesitancies from time to time. You said, General, that the way the circumstances are now, the soldiers will be hesitant, that they'll be uncertain, and that can interfere with a proper, solid commanding structure.

General, could you reinforce some of your beliefs to us? Number one, where is it best to have this understanding? To protect our troops, is it better to have the understanding in Canadian law or in foreign law to begin with? I would have hesitancy in our relying on our soldiers for litigation in other countries.

Could you comment on the importance of these clauses that protect our soldiers out in the field?

[Gen Walter Natynczyk]

Mr. Chair, ladies and gentlemen, I guess what I would say to you is a line that I used when I was in Iraq, because of how complicated it was, that the further you are from the sound of the guns, the less you understand. When you're there on the ground and the situation is going really bad, and you're trying to relate what the heck is going on to a higher headquarters that is beyond the sound of the guns, beyond the sound of the impact, and you're trying to get as many tools as you can to save your people, and nothing's perfect, and the situation's awful, you need every tool you can get.

Sometimes you try to define what a theatre of war is, and you can't even define the theatre of war. The fact is you're in that box, and no matter where you are, whether you're inside the wire or outside the wire, it doesn't matter; you're in that theatre of war. Again, I've had chaplains wounded because they were there.

This idea that somehow you can compartmentalize this is really something that is back here at home, where we are so lucky, because Canada, with the U.S., is kind of an island. But once you leave our shores, and whether you're in Europe or whether you're in the Pacific, or whether you're in Asia, the situation is very complex.

I would say to you that when we send our men and women offshore, as we have in the past, and the government allowed me to go to Iraq, we go in with one assessment, one evaluation of what might occur, and then it changes. It changes on the ground. There's no one who's writing up the story. It just evolves. The enemy has a vote and they write the script. We're talking about the blood of the sons and daughters of Canada, whether they wear a uniform, whether they're civilian. How do we ensure that we give them the tools so they can achieve their mission to bring peace? That's what it's all about.

You started, sir, talking about Korea. Korea was a peacekeeping mission. It was a United Nations mission, and yet the 2nd Battalion of PPCLI were calling artillery on themselves in order to save the day.

There is no rhyme nor reason. What we're talking about is how to conduct ourselves legally in war.

Thank you.

[The Chair, Conservative, Dean Allison]

Thank you, and thank you, Mr. Goldring.

We're going to move back to Mr. Dewar, and I believe he's going to share his time with Mr. Marston.

[Paul Dewar, NDP, Ottawa Centre, ON]

Building on what the general said, I agree about the confusion of war in theatre. My grandfather was gassed in World War I. My father, who was in World War II, didn't have to suffer that vulnerability. What we're trying to do is get those weapons out of there, frankly, so I think we might agree on that point.

Mr. Doran, I just want to nail down one piece here. We talked about it in the last session with Minister Baird. He talked about not worrying about clause 11 because we're going to have our generals provide directives that cluster munitions won't be used. That's one option. The other option is just to improve the law so you have good law.

Can you give us your opinion, regulation versus law?

[Prof. Walter Dorn]

I'll bring together the last two questioners' points.

A cluster munitions ban is now part of international law. We do want to have it clear for the soldiers whether they can or can't use cluster munitions, so a good Canadian law also helps make that, as well as the directions from generals for good rules of engagement, ROE.

The problem with this legislation is that it creates a tension for the soldier. He knows that he shouldn't be using or assisting with cluster munitions under international law. At the same time, the Canadian legislation is saying yes he can. It creates a moral dilemma for the soldier in the field at precisely the time you don't want that confusion.

Make it very clear: no participation, no active assistance with cluster munitions. It's the easiest way out of it.

[The Chair, Conservative, Dean Allison]

Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Thank you, Mr. Chair.

General, I just want to say that 50 years ago tomorrow, when John Kennedy was shot, I was in basic training, marching around the parade square in Chilliwack. We saw the B-52s going overhead and we thought we had something very serious happening, but I don't want to digress too far.

In labour law when you negotiate a collective agreement, there's a thing called a notwithstanding clause, which is very similar in ideas, I think, to clause 11. From the notwithstanding clause, it says that according to the collective agreement, we must abide by the rules as stated in the collective agreement, notwithstanding article 1, which says we can't do this, but maybe in these circumstances we can.

What I'm concerned about here is if in theatre you had command of joint forces, and you had the pressures from below to use these munitions—not you yourself necessarily, but a future commander—what would this do to undercut your ability to say, “No, we won't use these”, if there's that kind of notwithstanding clause built into this?

[Gen Walter Natynczyk]

Sir, I think the kinds of instructions I signed off on December 3, 2008 were really clear, that the Canadian Forces would not be an active party to this whatsoever.

I would also say to you that whenever we send our men and women on whatever duty, whether it be United Nations duty, whether it be a NATO duty, or whether it be as they are today in the multinational force and observers in the Sinai, the Chief of the Defence Staff retains the national command of those men and women.

While we provide those soldiers, sailors, airmen and women to the other forces under operational command or operational control, those are all trumped by national command, so the order that they will not participate will actually trump all others.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Good.

Mr. Dorn, would you like to comment on that, that the sense of that notwithstanding status seems to be built in here?

[Prof. Walter Dorn]

Right. Well, “notwithstanding” can mean various things under labour laws, constitutional law, international law.

This treaty came through a series of negotiations with amendments and compromises. The Canadian negotiator definitely did not want article 21 to become a loophole. He defended it against civil society groups, who said to watch about the danger here. He said, “No, this is not the Canadian intention.” He gave all the speeches on behalf of Canada during the Oslo negotiations and the other negotiations, and he sees that this is not an exception. Notwithstanding doesn't mean exception; it just means that article 21 allows you to participate in multinational coalitions that otherwise some countries might have been hesitant about, because if the Americans are going to use cluster munitions over there, maybe we can't participate.

This says that you can still participate in a multinational coalition, but it doesn't say that you can all of a sudden violate the basic provision of the convention, which is to not, under any circumstance, use cluster munitions.