Foreign Affairs Committee on Nov. 7th, 2013

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Thank you, Chair.

Thank you to our witnesses for being here today.

I'd just like to follow up on the some of the questioning with respect to how this actually works in the field. I'm just a lowly bean-counter. I'm not a lawyer, so I want to try to understand how this might actually work in the field.

Ms. Nolke, you said it's a state's policy decision on the use of these cluster munitions.

If we have a Canadian in charge of a specific effort, a multinational force, for example, which has non-party states in it, how does that work? If one of those non-party states happens to use cluster munitions in the course of its operations, how does our chief handle that? In addition to some of the operational practices you just talked about, are there ways we can influence that as head of such operations? Can we actually stop those states from using them?

[BGen Charles Lamarre]

First of all, in terms of the actual operational aspect, certainly a Canadian might be in charge, but then it comes down again to the policies enacted from the non-party state for what they're using. When we are giving directions as to what we want to achieve, we are always giving very clear directions and we give our rules of engagement. Every nation also issues rules of engagement to which its members will adhere.

When a commander is giving out instructions for how something is to occur, he or she will often speak in terms of effect. So if you were out there and you were commanding a large land force, if you will, you might ask an American or a British ally, or whoever, who is part of the coalition, to provide you with a blocking function on the left flank so you can conduct operations. How they will conduct that blocking function will become their business and really, it is done, and so they will continue to go ahead with their own rules and regulations on that. That's the best way I can describe that.

Over to you, Chris.

[LCol Chris Penny]

I don't have much to add to that, except to note that there is a provision in both the convention and Bill C-6 that would prevent a Canadian in that position from expressly requesting the use of cluster munitions, should the choice of munitions used be within the exclusive control of the Canadian armed forces. The circumstances that may arise, and would more often arise, in a multinational operation would be that Canada would not have exclusive control over the choice of munitions used by other states because their choice of munitions is made as a sovereign decision of theirs, and they are participating in that operation as an ally.

So there are certainly circumstances where, if a Canadian had exclusive control over these, he or she would be prohibited from it, and Canadians would be prohibited themselves from using cluster munitions in any event because those are policy decisions clearly within the exclusive control of Canada.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Given that, what are some of the other countries doing? Are you aware of other countries that might be signatories and actually are party states that might be working with non-party states? How have they tried to deal with this, to implement the convention?

[LCol Chris Penny]

I wouldn't be comfortable speaking on other states' legislation, but I can point back to the negotiations themselves, where Canada was certainly not alone in highlighting the various scenarios in which interoperability was a legitimate and important function to protect in the context of the convention itself. Again, those positions are on record throughout the negotiations, including the scenario of a multinational combined headquarters.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Ms. Nolke, in your comments, you talked about this. There's a line in there and sometimes words are important: it says, “Other provisions are carried out by other means and not necessarily through legislative mechanisms”, and I recognize that as part of this we're trying to get to the criminal aspect of this and trying to get this into Canadian law. But how are we implementing other aspects of this convention? Are there other ways we're trying to do this?

[The Chair, Conservative, Dean Allison]

Ms. Nolke, please be very quick, because we're almost out of time.

[Sabine Nolke]

Yes. For example, the advocacy on behalf of the implementation ratification of the convention and the reduction or elimination of use of the munitions, that was done through diplomatic channels. We provide programming—Ms. Brown, to your question—that allows states to destroy their stockpiles, to remove explosive remnants of war including cluster munitions.

So those are the provisions that call, for example, for technical assistance. We implement those through existing means and structures, but they don't require legislation.

[The Chair, Conservative, Dean Allison]

Thank you very much.

We're going to start a third round.

We're going to start with Mr. Goldring, please, for five minutes.

[Peter Goldring, Conservative, Edmonton East, AB]

Thank you very much.

My first question deals with the information from the library, I suppose, which alludes to the “constitutional requirements” for the implementation of this treaty. What section of the Constitution of Canada would be impacted by that, or where would there be a call for that?

[Christopher Ram]

I wouldn't describe it, I don't think, as a constitutional requirement per se, but if Canada as a state enters into an agreement in international law and agrees to ratify a treaty, it would presume on the supremacy of Parliament to do that if it required legislation. Canada would not ratify a treaty before the necessary criminal offences—in this case—that we're required to adopt are in place. It would presume on Parliament.

I'm not sure that I would describe that as a constitutional problem. It almost would be more of an international law problem, in the sense that Canada would not be in conformity with its legal obligations under the treaty if Parliament then decided not to enact the legislation necessary to complete the implementation package—if that answers the question.

[Peter Goldring, Conservative, Edmonton East, AB]

Yes.

With the breakup of the Soviet Union.... Understandably, the United States and Soviet Union would have been making them, but with the breakup, these countries are now munitions manufacturers as well. What other countries around the world are manufacturing these? Have all of those countries signed on to ratify the agreement?

For munitions manufacturers, obviously it would take a high degree of advanced technology and a very technical delivery system, so there would be a limited number of countries that do manufacture them, but are there other countries that manufacture munitions and are impacted by this?

[Sabine Nolke]

Yes. I have a list of countries that manufacture cluster munitions: Brazil, China, Egypt, Greece, India, Iran, Israel, North Korea, South Korea, Pakistan, Poland, Romania, Russia, Singapore, Slovakia, Turkey, and the United States.

I haven't done a side-by-side reading to determine whether or not any of those states have signed or ratified the convention. I believe they have not, but I may be wrong. Certainly, if some of those states have moved to the side of the convention, then we'd be able to provide you that information in writing, if that is acceptable.

[Peter Goldring, Conservative, Edmonton East, AB]

I had no idea that they were that broadly manufactured.

[Sabine Nolke]

Yes. There are 17 of them.

[Peter Goldring, Conservative, Edmonton East, AB]

That is a real concern.

On the interoperability of it, and seeing that Australia has excluded that in their clause agreement, do you have a scenario where Canada is in a theatre and involved with one of these countries that manufactures them and that may have them in the theatre? Would this be a reason for Canada to decline the command of the theatre operations based on the fact that one of the participants is not a signatory to this agreement? Would it change or alter the structure of the command decision made by the Canadians to be involved as the command?

[BGen Charles Lamarre]

If I may respond on that one, first of all, every single decision for us to assume command is usually directed from government to us. It's not something that we undertake on our own. We get a political decision to go ahead, but it's after careful consideration of all the aspects, including who is participating and who is partaking.

For example, in a case where we have the United States that is not a party to this thing, would we consider that if it were something that met with Canada's objectives? Yes, we would. But in the case of other operations with other non-signatories, depending on who they are, it would be on a case-by-case basis.

[Peter Goldring, Conservative, Edmonton East, AB]

Right, and if you were in an emergency situation in a theatre, knowing that one of the parties was the manufacturer and had the delivery system for it, do I understand that it would be permissible for that other party to call down munitions like this into the theatre?

[The Chair, Conservative, Dean Allison]

General, there is just about 30 seconds left.

[BGen Charles Lamarre]

Okay. I'll use a specific example to answer that.

If by chance you are working with allies in a place like Afghanistan and you happen to be out in a forward position being attacked, and the only air assets you have happen to be American air assets equipped with cluster munitions, your knowledge is not of what is going to be dropped on you at that point. But certainly you're going to call on the assets that are in the air and are specifically there to assist you.

If they're coming in and they drop a load of ordnance to provide some defence for you, it may well be cluster munitions or it might be high explosives. You're not in a position where you will provide direction at that time on the load of munitions, but you will have a call upon it.

[The Chair, Conservative, Dean Allison]

Thank you.

very briefly.

[LCol Chris Penny]

The legal challenge there is that although the policy decision to arm those aircraft with cluster munitions would be that of another state, once that aircraft shows up the pilot would likely be in communication with the individual on the ground and would be given the choice to authorize the strike or receive no strike. Therefore, that would invariably be seen as potentially assisting or encouraging or inducing the use of cluster munitions. That is one of the scenarios we used in negotiations as a rationale for article 21. That is why you see that protected in clause 11 as well.

[The Chair, Conservative, Dean Allison]

Madame Laverdière, you have five minutes, please.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Thank you very much, Mr. Chair.

I would like to come back to my previous question and I welcome your comments, Lieutenant-Colonel, on article 21. But what I want to focus on is not article 21, as the mandate of this committee is not to study the convention but to study the law implementing the convention, so I'm going to repeat my question. Among our main allies, can you identify any other state party or signatory that would allow one of its commanders in a multinational force to authorize or order the use of cluster munitions by a non-party state?

[LCol Chris Penny]

Again, I can't comment on the legislation or the policy decisions of other states to restrict their reliance on article 21. I can simply say that the convention itself permits that and that the permissions—again, not permissions of specific acts and specific scenarios but the protections from criminal liability—do exist in this context because the convention allows that.