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.