Foreign Affairs Committee on Nov. 26th, 2013

[Prof. Virgil Wiebe]

I think the consequence would be that it would not allow Canada to play the very important role of trying to encourage my country not to use cluster munitions. I think it would be setting a bad example for implementing legislation where that's required in other countries who are party to the treaty. It would create some of the problems I talked about in my comments, which is that on the one hand Canada is saying these are horrible weapons and then on the other hand allowing for members of the Canadian Armed Forces to even use these. So those are some of the concerns I would have about clause 11 beyond the borders and the service personnel of Canada.

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

If I can summarize, to my interpretation at least, it seems to remove our moral authority to lecture other people and try to get them to act the way the convention wants them to act.

Mr. Fraser, thank you for being with us. The approach taken by New Zealand is the one that you seem to favour, versus the one that has been taken by Canada or even by your country, Australia. Can you summarize very quickly why you think that one hits it on the head?

[Malcolm Fraser]

They really rely on article 21.3 in a very effective way, and they're happy with that. Their forces are small and their chance of operating in a cluster munitions environment are even less than Canada or Australia's, but I can't see why we shouldn't all rely on 21.3.

There's very little moral authority in the world and the point I made, in a different way a little earlier, is that through much of the post-war period Canada has been a moral voice in the world and one that has, I think, done a great deal of good. I hate to see Canada doing something that diminishes its moral authority, especially in a world in which moral authority is in such short supply.

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

I have one last question for you. I'm asking you this based on your experiences as a politician, as the prime minister. It's hypothetical, but do you think Australia's relationship with the United States, of which you're a strong ally as we are, would be diminished if Australia had taken a position in its legislation that was more akin to the New Zealand position?

[Malcolm Fraser]

My experience with the United States precedes being prime minister, because I was army minister and defence minister during the unhappy Vietnam era.

It is quite simply that the United States does not respect people who meekly—or whatever way one wants to put it—accept or accede to U.S. wishes or requests. They respect much more a partner that has a point of view, that can argue for it with validity and with strength, and they're much more likely to listen to that partner and that partner will have much more influence.

I think we diminish influence over the United States by accepting the kind of exceptions that we did in Australia or the far greater exception that is before the Canadian Parliament in clause 11.

We're not serving our major ally well by going down this track.

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

Thank you, sir.

If I have any time I'll pass it on.

[The Chair, Conservative, Dean Allison]

You're almost out of time.

We're going to have bells shortly. My question is can we go back for one round each with the Conservatives? Would that be all right? It will still give us 20 minutes to get over there.

So why don't we just get right to it, then? We have Mr. Allen and Mr. Goldring for five minutes, and then I'll finish.

Mr. Goldring first. Go ahead.

[Peter Goldring, Conservative, Edmonton East, AB]

Thank you very much.

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 Mr. Garneau 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?

[Malcolm Fraser]

There are two points there.

The first point is that the United States had 600,000 troops in Vietnam and was beaten. They're not going to put an army on the mainland of Asia ever again. We might have a war with China, and if they side absolutely with Japan, that's highly likely.

Korea is out of the act compared to today's circumstances. We had people there, as you did, and a lot of them suffered severe casualties, but it was a different war, a different time, in different circumstances. Modern technology and modern weapons have made the Korean experience irrelevant to today.

The second and, I suppose, more substantive point is that article 21.3 quite specifically gives protections to the individuals you're concerned for, and I would also be concerned for. The military personnel or nationals of state parties are individual men or women. It's not just a state party or the army or whatever, it is the individuals who make it up that have the protection under those words.

[Prof. Virgil Wiebe]

To echo the Prime Minister, I would just read briefly from our commentary on this very point:

What Article 21 should allow in these situations, therefore, is for a State Party and the members of its armed forces to call in a strike delivered by a State not party in an international operation even if there is no guarantee that cluster munitions will not be used. Military personnel would thus not incur penal sanctions for the use of cluster munitions by others as long as they do not exercise effective control over the tactical decisions following their request for support.

So other states have considered this and haven't found it necessary to come up with the very broad exceptions that clause 11 has.

One of the difficult challenges that you as policy-makers and those who enshrine the laws of armed conflict have, is that even in those difficult situations, even in the fog of war, there's no excuse for violating the law of armed conflict or violating treaty obligations related to inhumane weapons.

[The Chair, Conservative, Dean Allison]

That's all the time we have.

We're going to finish with you guys.

[Paul Dewar, NDP, Ottawa Centre, ON]

I want to be in hot pursuit, as they say, of what happens sometimes in these events and round tables.

I want to build on what Mr. Wiebe was saying, because article 21.3 of the convention allows for military co-operation in operations with states not party to the convention.

In essence, there was a rationale for this in the treaty. It intended to allow military personnel, in our case Canadian personnel, to operate alongside personnel from countries, in our case the United States, who may use—albeit are “not likely” to, according to Prime Minister Fraser—cluster munitions and at the same time not allow Canadian personnel themselves to expressly order the use of those munitions. That's the essence of article 21.3, which is what you're saying, Mr. Wiebe, right? Does that capture it?

[Prof. Virgil Wiebe]

I think that's right.

Part of the issue is effective direct control not only on the choice of munitions but over the operation, as I understand it.

[Paul Dewar, NDP, Ottawa Centre, ON]

We're trying to fix the bill, I'll be very blunt with you, for the reasons we've talked about.

In terms of an amendment, if you saw article 21.3 put into the bill, in other words take out clause 11 and put in article 21.3 in a legislative form, would that not capture the essence of what I think is the government's concern?

In other words, take it right out of the treaty, put it into the legislation, and then calm the concerns that some have within government about interoperability.

[Prof. Virgil Wiebe]

I suppose that could be one way to do it.

I'd also recommend to you page 7 of the Mines Action Canada written submission, where it draws upon the implementing legislation for the Ottawa treaty. That's one option. In the Harvard submission on page 10, there is some suggested language as well that's an alternative. It talks about “mere participation”. Those are some options to consider. The Canadian Red Cross in its submission on page 4 also has some very specific suggestions about clause 11.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thanks for that.

I just want to get from you as well your comment on our taking article 21.3 out of the treaty and putting it into the legislation. Then, what is guiding us—that is, the treaty—would certainly be explicit and not divert us from what we see in the legislation presently.

[Prof. Virgil Wiebe]

That can certainly inform whatever else was in the legislation, certainly.

[Paul Dewar, NDP, Ottawa Centre, ON]

Okay. Thank you.

Prime Minister Fraser, I thank you for taking the time. I see that you're passionate about this, and I thank you for that as well.

Can you make just a quick comment on what you think this would do to treaties and their implementation if we were to leave clause 11 in the legislation before us?

In other words, it's not just about this particular treaty. What could be the effect of this legislation on other treaties?

[Malcolm Fraser]

Well, I think it would be a very bad example, because you would have legislated for the treaty but put in exceptions that virtually nullified the treaty. I think it is a bad precedent, bad practice, bad parliamentary practice.

I also think, and I'm sorry if I'm impertinent in saying this, that it's contrary to Canada's tradition of well over 60 years.

[Paul Dewar, NDP, Ottawa Centre, ON]

It's not good for our reputation, in other words.

[Malcolm Fraser]

It's bad for your reputation, yes. It reduces your moral authority.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you very much.

[The Chair, Conservative, Dean Allison]

To our witnesses, Mr. Fraser and Mr. Wiebe, thank you very much for taking time.

I know, Mr. Fraser, you came in at 8:30 in the morning. We appreciate that.

With that, the meeting is adjourned.