Foreign Affairs Committee on Nov. 7th, 2013

[Sabine Nolke]

It is important to note that the bill does not necessarily use the same words as the convention. That does not mean that Canada is not implementing the convention. We are implementing the objective and intent of the convention with language that is common to the Canadian Criminal Code and that will be understood by Canadian courts.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

The intent of that convention is to ban all aspects of cluster munitions, is that correct?

[Sabine Nolke]

That's correct.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Okay.

We talked a little bit about exemptions. Do the exemptions we've spoken about constitute an exemption to any other offence? You talked about how they apply, but I'm just wondering if they allow an exemption to any other offence.

[Sabine Nolke]

No. The exemptions are very specific to the offences created by the bill. Any other offence....

For example, as my colleagues have indicated, indiscriminate use of cluster munitions would fall under the provisions of the Crimes Against Humanity and War Crimes Act concerning the indiscriminate use of any weapon of war. Those offences still remain. This act does not exempt anyone from the provisions of existing Canadian criminal law.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Do the exemptions provided in the legislation in any way amount to an authorization for Canadian Forces to use cluster munitions?

[Sabine Nolke]

No.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Okay.

I want to ask you one other thing. You talked a bit about how things are written and drafted; I think somebody brought up Australia.

Can you explain to me why we have some drafting differences from other countries? Perhaps you can take some time to explain that to us.

[Sabine Nolke]

I certainly can.

Obviously I cannot comment in detail on the legislation provided for other states. I'm simply not an expert in Australian or British law.

The intent to provide these exemptions is the same by all the states that have created legislation that provides for exemptions. When the convention was negotiated, a number of states required, in order to be able to ultimately sign the convention, the interoperability clause that includes exemptions. The states that include this are some of Canada's closest allies. I have the list here: Australia, the Czech Republic, Denmark, Finland, France, Germany, Italy, Netherlands, Sweden, Switzerland, and the United Kingdom.

All of these states have different ways, different legislative approaches, in terms of how they implement provisions of treaty in their domestic law. In Germany, for example, when they ratify a treaty it becomes automatically part of German law. They have to take no other steps. The United Kingdom, Australia, and Canada have different legal systems. We require domestic legislation.

We do, however, take different approaches to legislative drafting. In Canada we like to be as specific as possible. In the United Kingdom they take a slightly looser approach to legislation, leaving more of the interpretation to the courts. It's a question of approach and it's a question of legislative drafting policy.

In Canada we prefer to be precise. The bill that is before you today we believe satisfies exactly what the convention requires and permits us to do. It will assist Canadian courts in implementing and applying those provisions properly.

[The Chair, Conservative, Dean Allison]

David, you have less than a minute. Please make it a quick question.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

In terms of the exception, do you expect that it will apply in some fairly common circumstances, or is it going to be applied extremely rarely?

[Sabine Nolke]

Since that is a question that deals with operations of the Canadian Forces, I will defer to my colleagues from National Defence to answer that.

As we evaluated the provisions of the convention and turned towards implementation, our assessment was that those exceptions would be relatively rarely applied.

I'll leave that to my colleague.

[BGen Charles Lamarre]

Thank you very much.

I'll start and then turn it over to Lieutenant-Colonel Penny as well.

There would be rare occasions. Whenever we get involved in operations, we tend to indicate right up front any limitations that there may be. This is common practice when you're dealing with a coalition to do specific operations. All of the nations come with their own exceptions on specific aspects of how they will conduct their business. That is of course respected by all the nations that form the coalition.

If we have any restrictions, either by law or by decisions that are made by the government, then at that time we communicate those clearly. We find it does not affect our interoperability with those nations.

[The Chair, Conservative, Dean Allison]

Sorry, that's all the time we have. We'll have to pick it up in the next round.

Thank you very much.

Mr. Garneau, you have seven minutes.

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

Thank you, Mr. Chair.

I'd like to ask my question to both foreign affairs and DND, if I may, and get an answer from them.

As they say about pregnancy, you're either pregnant or you're not. You're not half-pregnant. In the same way we are either supporters of the convention, which is to ban cluster munitions, or we are not. I don't think there is any in-between.

I'm going to focus on clause 11. For me, clause 11 is logically and morally problematic. One interpretation of it is that it allows the Canadian Forces to advocate and even order cluster munitions-related activities when on joint military operations with states that have not signed the convention. If we allow this bill to pass as it is without amending clause 11—and it's not sufficient to say there are only going to be rare instances where we might have to invoke those exceptions—then I think we're sending our soldiers mixed messages and putting them in a difficult position where they might propose the use of a weapon that is otherwise banned by Canada.

I'd like to hear your views on that, please.

[Sabine Nolke]

The convention as a whole includes the interoperability clause.

The convention was negotiated very much with states' requirements for security cooperation with non-state parties in mind. That was a starting point of the negotiations.

Canada and a number of other states made their position on that particular point very clear from the beginning. It was very clearly understood that there would be instances when interoperability might require members of the Canadian Forces, or of the forces of other states, to participate in the use of munitions in specific limited circumstances.

In terms of the mixed messages, the messages are very clear. The exemptions are extremely specific, very narrow, and they are further narrowed by the directive that my colleague from National Defence indicated will be put in place.

For this particular convention to have the maximum signatories and maximum participation, needed to pass at the international community level, that particular clause was required. It was an important compromise without which many states would not have been able to sign it at all. It is an important substantive element of the convention itself.

I pass the floor to my colleague from National Defence.

[BGen Charles Lamarre]

Thank you very much.

On that aspect of things, as we indicated in the opening statement, the CDS has banned the use of cluster munitions with the directive that was issued in 2008. Since then and before that, we have never used the cluster munitions.

One of the things we go to great pains to make sure of is that there is no ambiguity for the soldiers as they begin to take part in activities. To that end, the orders that are issued by the chief of the defence staff include any constraints or limitations on what they can do. The rules of engagement that are issued also give any further direction that may be required for the application of force, again with any constraints or limitations.

All of this process we go through is, of course, scrutinized by the judge advocate general to ensure we are respecting Canadian laws in our application.

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

Effectively, if I understood your answers, because interoperability is specifically mentioned in the convention, what you are saying is that although Canada abhors the use of cluster munitions, if it happens to be involved in joint operations with a country that does not ban cluster munitions and a Canadian is involved in a joint team where he or she is involved with the decision-making process, it is conceivable that they may condone the use of cluster munitions as part of these joint operations.

[Sabine Nolke]

As my colleagues explained earlier, and I believe it was General Lamarre in his statement, the important point here is at which point in the decision-making process the decision is taken. If a state policy decision is to use cluster munitions then that is not the decision of the Canadian member. That is where the distinction lies.

I think maybe Lieutenant-Colonel Penny could elaborate on that point.

[LCol Chris Penny]

I could begin with a general comment that goes back to the integral nature of article 21, to the overall fabric of the convention itself. It is not an exception to the convention, it is part of it. So when one looks at article 1 and its reference—and this goes back to an earlier question—to never under any circumstances engage in particular activities, that must be read as never under any circumstances except those permitted by the convention itself.

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

Excuse me, I only have a limited amount of time. If it is a joint operation quite often a joint staff makes decisions. A Canadian may be in that loop. Is that Canadian going to say we cannot use cluster munitions to achieve the following aim because my country does not approve of cluster munitions?

[LCol Chris Penny]

That Canadian himself would not be permitted to use cluster munitions.

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

But they are part of a joint staff and they may be in the decision-making chain—

[LCol Chris Penny]

That's right.

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

—and therefore they will not have the choice but to fall one way or the other.