Foreign Affairs Committee on Nov. 7th, 2013

[LCol Chris Penny]

That's correct. That's why during the negotiations Canada used the very scenario of an officer in a multinational headquarters as an example of why we needed article 21. That individual would, but for article 21 and but for clause 11 of the legislation, be put in—

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

That's just to protect that individual. It is not to make a decision about whether Canada will be part of a joint operation where cluster munitions are used.

[LCol Chris Penny]

That's correct. But as my colleague indicated in her opening presentation, the obligation to discourage use of cluster munitions by other states is and was intended to be undertaken at the diplomatic level. It was not intended that this burden be placed on individual soldiers in an operational or tactical setting.

[The Chair, Conservative, Dean Allison]

Thank you very much. That's all the time we have.

We're going to start our second round of five minutes for each intervention. We'll start with Ms. Brown.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Thank you very much, Mr. Chair.

Thanks so much for being here.

I have two questions. The first one is if we didn't have that interoperability clause what would happen? Maybe one of you can speak to that.

My other question is for Ms. Nolke. In your opening remarks you were speaking about what Canada is doing to assist other countries in getting rid of their cluster munitions. You talked about money that's been given to Mines Action projects, money that's been given to Laos. Can you tell us where we are in that process? What countries are we working in? How effective are we being?

[Sabine Nolke]

With regard to the first question, as I believe we have already indicated, without the interoperability clause, article 21, Canada would not have been in a position to sign or ratify the convention. The reason for that is simple. We have an extensive security cooperation with the United States, which is not a state party and may not become a state party for some time. Our security interests balance our interests in that particular regard. So we and 11 other states would not have been able to become a party to this convention.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

As a clarification, would that mean that we would not be able to enter any cooperative project with the United States army if that weren't there?

[Sabine Nolke]

Not “any”, but certainly—and again, on that particular question I should really defer to my colleagues in uniform—operations like the ones in Kosovo, Afghanistan, and most recently Libya. For any operation that involves bombing, I think that would certainly be the case.

But I'll defer to General Lamarre.

[BGen Charles Lamarre]

That would be exactly it. Whenever we're going off to conduct operations, most of the time they are multinational, coalition-based operations. And of course, with having non-state parties on that thing, they tend to also carry quite a bit of weight, particularly the United States, but they're not the only ones.

As we saw with other nations' also saying you need to have this interoperability clause, everybody's concerned about being able to continue with coalition operations. It facilitates things, it's logical, and like-minded people are connecting toward the same end states, if you will. So not having that ability would cause us some concerns.

Chris, can you add to this?

[LCol Chris Penny]

I would note on that basis that it's certainly important to stress that the likelihood in most scenarios of a Canadian armed forces member being involved in the authorization of use or calling in the use of cluster munitions would be rare. In my understanding, it did not occur in Afghanistan, for example.

There are other activities that would be seen as potentially assisting or encouraging use by another state that would be much more mundane and certainly more likely. Again, this is why during the negotiations Canada highlighted a variety of activities in conjunction with many other states where that prohibition on assistance might arise. Providing intelligence to another state, intelligence sharing, being involved in a multinational headquarters, participating in logistics chains, all inherent parts of multinational operations, could be seen in some circumstances as assisting those other states in the use of cluster munitions. So those would all be implicated.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

I know we're not getting to the second question, but I have another question then.

Does that mean that when we go to the United Nations and ask the United Nations to make a recommendation on a military action in a country, even though we are part of the United Nations, we would not be able to act with our partners to participate in a military action if we didn't have this interoperability clause here?

[Sabine Nolke]

That depends on the nature of the operation.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Of course.

[Sabine Nolke]

The way the United Nations works at the Security Council is that it authorizes the use of force in a specific situation and then invites or encourages member states to participate. Then participation by such states is on a voluntary basis. Then, of course, we can assess the nature of the cooperation, the nature of the operation, whether we wish to participate, and in what manner.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

But we would not be able to if that interoperability clause were not there, because we wouldn't be able to put any of our forces—

[The Chair, Conservative, Dean Allison]

That's all the time.

[Sabine Nolke]

Yes, if the operation is of such nature that there might be a possible use, then that would be correct.

[The Chair, Conservative, Dean Allison]

Thank you very much, Ms. Brown.

We're going to continue with Madam Laverdière, for five minutes, please.

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

Thank you, Mr. Chair.

Maybe just as a note, we should still remember that in the case of the land mines treaty, we have been able to achieve a treaty without loopholes and still work with our partners who have not signed and ratified the treaty. So I think we should handle that with care.

Personally, I don't think it's as simple as saying that if we didn't have an interoperability clause we wouldn't be able to work with others anymore, because we have contrary examples of that. That being said, we do have article 21. Article 21 per se is not so much of a problem....

Before I get to that, I would just like to come back to a comment by Lieutenant-Colonel Penny that when we read article 1, we have to read it with article 21 in mind. From my brief diplomatic experience and my limited understanding of international treaties, in fact article 1 is kind of always the supreme article. It's the one that states the objectives. It's the other articles that have to be read keeping the first one in mind. So I would rather reverse your proposal and say that article 21 should be read keeping in mind article 1.

In this respect, our understanding, and the understanding of many experts, is that article 21 is intended to allow personnel to operate alongside personnel from countries that may use cluster munitions, but article 21 does not allow forces themselves to expressly order or participate in the use of the munitions.

I would like you to identify whether any of our allies—I'm thinking of Great Britain, for example—would allow one of its commanders of a multinational force to authorize or order the use of cluster munitions by non-party states. Have any of our allies gone so far in their interpretation of article 21?

[BGen Charles Lamarre]

What I can do is indicate how the coalition is working, how we just in recent operations had involvement from other nations as well.

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

If you don't mind, since we have such a short time here, I think my point is that....

My question was more about the interpretation made by various countries—our allies—of article 21 in their own legislation.

Do any other countries have laws that also allow their senior military personnel to authorize or even order the use of cluster munitions by countries not party to the convention.

[Sabine Nolke]

Before I give the floor to my colleague from the Department of Justice, I will comment on the note you made, Madam Laverdière, on the role of article 1 versus the remainder of the convention.

Yes, the first article of a convention tends to set out the scope of the convention, but each provision is equally legally binding. The treaty has to be read as a coherent whole. The adage in diplomatic circles, as I'm sure you remember, is that nothing is agreed until everything is agreed. The entire thing comes as a package.

I'll give the floor to my colleague from the Department of Justice.

[The Chair, Conservative, Dean Allison]

You have about 40 seconds.

[Christopher Ram]

I'll be very brief, Mr. Chairman.

I would just point out that the critical article for the purposes of the bill is actually article 9 of the convention, which is the obligation to implement some of what's in the convention using the criminal law. All that's in the bill is what Canadian officials, Canadian Forces members and so on, could be prosecuted and punished for. It doesn't speak to the general implementation of the convention by Canada.

I think that's very important to bear in mind.

[The Chair, Conservative, Dean Allison]

Thank you. That's all the time we have. We'll have to pick up any further follow-up in the next round.

Mr. Allen, the last question of this round goes to you. You have five minutes, sir.