Foreign Affairs Committee on Nov. 21st, 2013

[The Chair, Conservative, Dean Allison]

I call this meeting to order.

Gentlemen, thank you very much for taking the time to be here today as we look at Bill C-6.

General Natynczyk, we thank you for being here. We will start with you first.

I also want to introduce Dr. Dorn, who is a professor at the Royal Military College of Canada.

We realize both of you are here as individuals, so thank you for that.

General Natynczyk, why don't we start with you, sir. We'll go with 10 minutes, and up to 10 minutes as well with Dr. Dorn, and then we'll move back and forth over the rest of the hour with questions and answers.

Thanks again for being here. The floor is yours.

[Gen Walter Natynczyk, President, Canadian Space Agency, As an Individual]

Mr. Chair, ladies and gentlemen of the committee, I would like to thank you for inviting me to appear today.

I am delighted to have this opportunity to share my personal views on Bill C-6, the Prohibiting Cluster Munitions Act. I am here today as an individual, as well as a former member of the Canadian Armed Forces and former Chief of the Defence Staff.

As many of you might be aware, I served in uniform for about 37 years. Over the course of my service, I deployed for three years on peacekeeping operations, on stability operations, and on combat duty. I've worn the blue beret with the United Nations in Cyprus, Bosnia, and Croatia. I've been a NATO commander in Bosnia, and I was deployed throughout 2004 as a deputy commanding general of a U.S.-led multinational force in Iraq, while on exchange duties with the U.S. Army. I participated in exercises in Europe, the Middle East, and South Korea.

With that perspective, I hope to be able to share my opinions and experiences as they relate to the convention's impact on the Canadian Armed Forces in conducting operations around the world with Canada's closest allies.

Throughout my military career, I saw how the relics of war, even after the guns had gone silent, killed and mutilated the most vulnerable: the young, the disabled and innocent civilians.

I spent my time in Bosnia and Croatia in 1994-95 and I saw the indiscriminate effects of landmines on civilians tilling their fields, children playing near schools, our own Canadian men and women and allied United Nations soldiers who attempted to bring peace and security to those troubled countries.

Similarly, unexploded cluster munitions have a devastating impact on civilian populations long after the conflict has ended. Countries like Vietnam, the entire region, in fact, continue to suffer the effects of cluster bombs dropped during the Vietnam War.

It's because of this heavy cost to civilians that the international community, justifiably, has created this international law to prohibit the use of cluster bomb munitions. I believe this convention is very right and very important to Canada and to the global community to save lives.

Even though the Convention on Cluster Munitions is not yet in force in Canada, the Department of National Defence and the Canadian Armed Forces adopted measures that were in line with the convention during my time as Chief of the Defence Staff.

You'll remember that in 2008, when I approved the interim order, Canadian service men and women were on a NATO-led combat mission in Afghanistan and participating on numerous other operations in the Middle East, Africa, Kosovo, and Haiti. Since then our soldiers, sailors, and airmen and women also participated in the United Nations-sanctioned and NATO-led mission to protect civilians in Libya.

In each of those theatres of operations, our men and women in uniform were asked to serve in conditions that could be described as unstable, uncertain, complex and ambiguous. And we expect our military leaders, from corporals to generals, to make sound and timely decisions that contribute to a mission's success in the most challenging situations. They are frequently called upon to make decisions in the face of serious time pressures and complex conditions.

I believe that Canadians can be justifiably proud of their armed forces. From my standpoint, man for man, woman for woman, unit for unit, they are among the most professional forces in the world. As a result, our allies want Canadians on their flanks. My experience has been that when a crisis erupts, our allies and partners are immediately requesting the participation of the Canadian Armed Forces.

The challenge is that some of our NATO allies, such as Poland, Turkey and Estonia, as well as some of our international partners, including South Korea and Israel, have chosen not to join the convention. Clearly, each of those countries is dealing with major geostrategic security concerns that we, in Canada, are not faced with.

The United States, our NORAD and NATO ally, also made the decision not to join the convention. While we cooperate closely with their armed forces across the defence and security spectrum, sometimes we must agree to disagree, as is the case with the cluster munitions convention.

I understand that during the negotiation of the convention, Canada and several of our NATO allies championed a clause, I believe it to be article 21 of the convention, that sought to safeguard our ability to cooperate on military operations with countries that are not party to the treaty.

If we had to enforce article 21 of the convention, the exceptions listed in clause 11 of Bill C-6 would protect our men and women in uniform against prosecution, because they would have simply been carrying out their military duties.

From my perspective, I believe article 21 enables our forces to remain fully interoperable with the U.S. armed forces. This comprehensive level of cooperation is a unique strategic advantage for Canada. It is the result of the reality of our joint defence of our continent and a reflection of shared trust, confidence, and values.

The interoperability clause of the convention strikes a fair balance between profound humanitarian principles on the one hand, and Canada's security realities on the other.

l believe it's important for Canada to retain full capability to participate in combined operations with our allies that enhance our national and collective security.

Many Canadian Armed Forces members are currently on secondment or taking part in exchanges with the U.S. military in places like Afghanistan or the continental U.S. These members occasionally support training activities for our Polish allies. They may be posted in Turkey under NATO command or under UN command in South Korea.

My assessment is that the fulfillment of their routine military duties should not expose them to prosecution, for example, for calling in aircraft to save the lives of our soldiers or allowing an aircraft to land on an airfield we control, for air-to-air refuelling of fighter aircraft, for sharing of intelligence, or for authorizing a port visit of a ship.

Having had the exchange experience as the deputy commanding general of the Multi-National Force - Iraq throughout 2004, l can say to you with confidence that l was never aware that cluster bombs were actually stocked in theatre or that l participated in planning for their use or, in fact, authorized their use. I had none of that experience whatsoever.

However, unwittingly l could have done so, and l could have participated in activities, without my knowledge, that assisted in the use of cluster munitions, but l would not have known it at that time.

Therefore, Mr. Chair, it is my personal opinion that these exceptions are necessary to protect members of the Canadian Armed Forces when they are sent into dangerous situations, with the expectation that they will fulfill their duties to protect Canada and its interests.

In my layman's opinion, Bill C-6, as currently drafted, appropriately reflects the Convention on Cluster Munitions prohibitions and exceptions.

l believe it strikes the right balance between our international obligations to rid the world of these destructive weapons, while recognizing Canada's unique security realities, and ensuring a specific legal protection for the men and women of the Canadian armed forces who continue to serve.

Thank you.

[The Chair, Conservative, Dean Allison]

Thank you very much, General.

We're now going to move to Dr. Dorn.

The floor is yours, sir.

[Prof. Walter Dorn, Professor, Royal Military College of Canada, Department of Defence Studies, As an Individual]

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.

[The Chair, Conservative, Dean Allison]

Thank you very much, Dr. Dorn.

We're going to start our first round, which will consist of three questioners. We will have a chance to do a second round. We should be able to get in two full rounds, and we'll see if we can go a little bit past that.

I'm going to start on my left-hand side with Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Chair, and my thanks to our witnesses.

General, I would like to start with you. Let me start off by welcoming you to the committee and thanking you for your service. As I said, you look good in civvies.

In your experience in joint operations with the Americans, did the Ottawa treaty ever prevent you when you were in situ with them from serving with U.S. forces?

[Gen Walter Natynczyk]

Thank you very much for the warm welcome.

We arrived in Iraq in January 2004, and we thought we were on a peacekeeping stability mission. This became a combat operation after Easter of 2004, with operations in Fallujah and Sadr City. For that whole period, which was a peacekeeping stability operation that became a full-blown insurgency, you would not deal with putting down land mines from a tactical or operational standpoint. None of that was within the context.

In answer to your question, there was no exposure to mines in theatre other than mines that were left from the previous Iraq-Iran war and clearing those in the south-southeast of the country.

[Paul Dewar, NDP, Ottawa Centre, ON]

What about when you were working with the Americans? Were you ever in a situation where the U.S. was considering the use of cluster munitions?

[Gen Walter Natynczyk]

During my time in Iraq, there was no knowledge at all about cluster bombs being in theatre, nor was there any planning of that type of munition back in 2004.

[Paul Dewar, NDP, Ottawa Centre, ON]

We had the minister here just the other day, and he mentioned on article 21 that he would prefer to see it gone and work towards that, with the caveat that we'd be able to do joint operations.

One of the things that he was wanting to see, and I think we'd all like to see, is to encourage the other countries, particularly the United States, to join us on the ban of these horrific munitions. Would you concur with that?

[Gen Walter Natynczyk]

Absolutely. Having been on exercise in a lot of troubled areas, whether in the Middle East, the Korean Peninsula, or Europe, the scars are very deep, so dealing with our allies and trying to convince them to move to more modern times is very tough.

[Paul Dewar, NDP, Ottawa Centre, ON]

On joint operations, when you have different points of view, do you employ those caveats? I remember when I was in Afghanistan in 2007. You're at KAF and you see certain troops who are behind the wire and are not going out because of their caveats. These were things that were negotiated with the joint force through ISAF and the agreements between countries as to where people would go, what they would do, and how they would operate.

Would you not note that this is one of the differences between countries and how they train and also how they operate in the field, that it's pretty customary now to have caveats and certainly to be very explicit about what those differences are?

[Gen Walter Natynczyk]

I would say, sir, from my experiences in not only Iraq but Afghanistan, Bosnia, and every peacekeeping mission that I've either seen or followed, and I was chief of joint operations for two and a half years in Kosovo missions and Africa missions, that the level of and the nature of the caveats depends on the national interest of each of the respective countries concerned. What risks they are willing to take depends upon how important peace, stability, or victory on the battlefield is to their national interests.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you.

I wanted to clarify one thing, Chair. The last time we were here we were discussing whether Laos had signed on. I wanted to follow up for the record that they have signed and ratified. I know that was a question for the minister. I wanted to read that into the record.

We know, Mr. Dorn, that at least 11 of our NATO partners believe that this legislation, particularly clause 11 as cited, is something on which they disagree with us. Where the discussion was going the last time with the minister, and hopefully we're continuing that discussion, was on how we can amend it.

Do you see an amendment that would satisfy what you understand is the government's position and the integrity of this important agreement?

[Prof. Walter Dorn]

I sympathize with the government's desire to protect Canadian soldiers from prosecution if they're somehow involved, even peripherally, with cluster munitions, but I don't think you need such strong legislation. It goes the furthest of all legislation that's been passed by 84 ratifying countries in trying to say what soldiers can do.

In fact, I believe that provisions of this legislation are in contravention of the convention because they go so far in allowing Canadian soldiers to use cluster munitions and whatnot. A much reduced clause 11 in the legislation would be much more palatable to our NATO allies and to countries around the world and those like Norway that are really pushing for the Oslo convention to succeed in the widest possible measure.

There are other options. The landmine option is a viable one for me. It's no active participation and no active assistance with the use of cluster munitions. If you had this, for instance, under General Natynczyk's watch in Iraq, if the Americans had used cluster munitions but he wasn't even aware that they had them, he couldn't be prosecuted because he wasn't aware of that at the time. He wasn't actively participating in the use of cluster munitions.

You just need to be able to have legislation that puts the bar at a level whereby you're protecting Canadians from almost any conceivable scenario in which we've taken protection not to be part of the cluster munitions use.

[Paul Dewar, NDP, Ottawa Centre, ON]

That's all my time.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Dewar.

We're going to move to Mr. Anderson. Sir, you have seven minutes.

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

Part of our discussion the other day was on that issue of active participation and how that's defined. We had certainly some different positions at the table on what that definition might be.

General, I'd like to ask you about our interoperability agreements and how they work with other countries. Which ones are unique to Canada as compared to some of the other countries and the way they've set up their agreements?

[Gen Walter Natynczyk]

Sir, I would say that the most unique and profound agreement is NORAD, and now we've surpassed 50 years of our relationship with NORAD.

Again, this is a relationship where, at the highest level of government, through the military structure, we have a seamless relationship in terms of operations and intelligence in order to protect this continent, whether it be the deputy commander of NORAD in Colorado Springs all the way through to any exchange of U.S. and Canadian men and women on both sides of the border.

It is one such that a few years ago, when the U.S. had a fleet of their fighter aircraft break down and they grounded their whole fleet of F-15 fighters, within 18 hours we had scrambled a squadron from Bagotville and we basically protected Alaska during that period of time. That half-squadron arrived and within hours was going up to intercept very large aircraft that were approaching the Alaskan territory without having filed a flight plan. They were very big aircraft.

All of this is to say that the U.S. in that instance, as is the case each and every minute of every day, had a relationship of great trust and confidence in us, as we do in them, and we take that relationship around the world. It's interesting when you go aboard a U.S. ship and they take you into their sonar room and say that the individual working the sonar is the most talented individual on the ship and that individual is a Canadian. It's the same thing in terms of intelligence. Again, the level of integration in military intelligence is so strong and is reinforced by this current experience in Afghanistan. The fact is the value goes both ways.

In answer to your question, NORAD makes it all different, because the reality is that we are joined at the hip with the U.S. No other country has the kind of security relationship that we do. Others wish they had that relationship.

Beyond that, obviously, we get into a NATO context, but for the most part, we're talking about dealing with our European friends.

Thank you.

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

I want to follow that up a bit. The other day we heard that the numbers of Canadian soldiers who could possibly be involved in this would be extremely, extremely limited, if there ever were any. Then we have this discussion about active participation. We've talked about transit over Canadian airspace, and about the possibility of close air support in a combat situation.

I'm just wondering how practical it is for us to then say to one of our non-signatories, and I'm thinking particularly of the U.S., that they need to change their armaments in order to accommodate our desires and our requirements in a combat situation. Is that practical at all?

[Gen Walter Natynczyk]

Sir, from my understanding just in reading this over the last few days, that doesn't happen military to military. The kind of discussion you're talking about happens at a diplomatic government-to-government level.

While at any one moment we can assess that the probability is low of anything, we have been abject failures at predicting the future. Had you told me a few years ago that we were going to be in Afghanistan, I would have said, “Okay, where is that?” We've been to places like East Timor, Eritrea, and Kosovo. When they say that we're going to go to Kosovo, we cannot predict what's going to happen next. That's the challenge for the military. The men and women in uniform will always salute the flag, move out the door, and do the best they can, because they have no choice. They signed up. They volunteered. And they do an extraordinary job.

All of that is to say that when we have them in harm's way we have to give them all the tools to be successful because their lives are at risk. That again has been reinforced by the experience in Afghanistan. Really, since Korea, we kind of forgot that piece. Having worn the blue beret a number of times, we actually got into really hot situations in places like Cyprus and places like Bosnia.

I think we need to provide the tools so that the men and women can achieve their mission to bring peace and security to far-off lands, because it affects Canada. The defence of Canada starts 10,000 kilometres away in places like Kabul, Afghanistan.

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

I'm probably only going to have time for one more question. I think the committee here has been clear that we think the best thing would be for these things to vanish. The minister was clear the other day as well.

I'm just wondering if you have any suggestions for us as to how Canada might be able to work with non-signatories to convince them that it's time to sign up, that it's time for them to get rid of their cluster munitions. We know that the list of nations that have decided not to sign is fairly long. Can you think of things we could do that might encourage others, particularly our closest partner, to reconsider their position and to sign on to the treaty?

[Gen Walter Natynczyk]

Sir, the answer to all of this is diplomacy and dealing with those troubled lands to try to bring the friction to some level of resolution. We know the areas around the world where there is that turbulence and friction.

The solution is not military. The solution is diplomacy, dealing with the interests, and reconciling the interests on both of those sides.

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

Until that happens, are you comfortable with the exclusions we see in clause 11 in order to protect our troops in their operations?

[Gen Walter Natynczyk]

Sir, as I said in my statement, yes.