Foreign Affairs Committee on Nov. 26th, 2013

[The Chair, Conservative, Dean Allison]

Good afternoon everyone. Pursuant to the order of reference of Friday, October 25, 2013, we are resuming our consideration of Bill C-6, An Act to implement the Convention on Cluster Munitions.

I want to welcome our witnesses and introduce first those who are here with us at the House of Commons. From Handicap International Canada, we have Marc Drolet, the executive director. Welcome Marc, I'm glad to have you here today. Then we have Jérôme Bobin, the manager of communications and mobilization. Welcome, sir, to you as well.

Then, joining us via video conference from Geneva, Switzerland, we have Amélie Chayer, a policy analyst with the Cluster Munition Coalition. Welcome Ms. Chayer. I think you're six hours ahead, so you're well into the evening. You're at almost 10 o'clock, so thank you very much for joining us.

Why don't we start here, with Handicap International? Then we'll turn it over to Ms. Chayer. We will then go back and forth across the room asking questions and probably get in a couple of rounds.

So over to Handicap International for your opening statement.

[Marc Drolet, Executive Director, Handicap International Canada]

First of all, thank you so much for inviting us today.

Thank you very much for the opportunity to speak before you.

Co-recipient of the Nobel Peace Prize, Handicap International is an independent aid organization that celebrated its 30th anniversary last year. Our organization also received the Conrad Hilton humanitarian prize in 2011 for the quality of its field operations.

Handicap International is on the front line in over 60 countries, including Haiti, Afghanistan, Sri Lanka, Iraq, Sierra Leone, and Laos, working alongside the disabled and vulnerable experiencing poverty and exclusion, particularly in situations of conflict and disaster.

Cluster munitions are unreliable and indiscriminate deadly weapons that kill and maim people long after the conflict has ended. We call this the “war after the war”. Credible estimates establish the number of casualties directly attributable to cluster munitions at more than 50,000, most of them innocent civilians, as you know. There is no control over the end target of these munitions, and therefore no means to ensure a distinction between military and civilian targets. Accordingly, it is not surprising that recent research has shown that more than 90% of the reported casualties are civilian, and about half of them are children.

Our roles include being with the victims in the field, offering them support with their disability, trying to facilitate their social reintegration, and helping to clear the littered areas of unexploded munitions, a risky, time-consuming, and costly task. This means that we realize daily at Handicap International realize how horrendous this weapon really is.

I have no doubt that everyone in this room is aware of the devastating long-term physical, psychological, and economic consequences of cluster munitions. I expect we also all agree on the critical importance of the 2008 Convention on Cluster Munitions, and by all means the need for Canada to ratify it.

Handicap International commends the Government of Canada for initiating the current ratification process as reflected in Bill C-6. Handicap International is pleased to note that several clauses of the bill lay out clear and unambiguous prohibitions. At the same time we are concerned with some exceptions and omissions that go against the very purpose of the convention. Especially troublesome are exemptions in the bill for interoperability, and the absence of prohibitions on financing and investment.

With regard to interoperability, Handicap International understands and respects the government's preoccupation with ensuring that Canadian Forces continue to be involved in joint military operations with Canada's allies, some of whom are not party to the convention. This legitimate preoccupation is in fact explicitly addressed by the convention in the way that does not limit Canada's right to cooperate with other nations not party to it. Handicap International's concern with the exceptions set out in the bill is not that they might allow Canadian Forces to participate in joint military operations with allies not party to the convention, but rather that they are not necessary and would do the following.

Firstly, they would allow such participation even if cluster munitions were used, and even give Canadian military personnel the latitude to expressly request and direct the use of cluster munitions as per paragraph 11.1(b).

Secondly, they would grant Canadian Forces explicit permission to use, acquire, and possess cluster munitions while on attachment, exchange, or secondment as per paragraph 11.1(c).

Thirdly, they would allow Canadian Forces to aid and abet a person using cluster munitions while in combined operations as long as it would not be an offence for that other person to commit that act as per paragraph 11.3(a).

Proponents of this approach evoke article 21 of the convention to reconcile their position with the treaty. This overlooks the fact that article 21, while permitting military cooperation and operations between state parties to and state parties not to the convention, includes other paragraphs that place explicit obligations on state parties to the convention to actively discourage the use of cluster munitions.

Article 21 must be construed to be consistent with and reflect the obligations spelled out in article 1 of the convention to never assist anyone undertaking a prohibited act. After all, how could the convention both require the discouragement of the use of cluster munitions and at the same time allow facilitation of their use?

Handicap International is of the opinion, on the one hand, that it would be important to explicitly state that a member of the Canadian Armed Forces does not commit an offence against the law merely by engaging, in the course of his or her duties, in operations, exercises, or other military activities with the armed forces of a state not party to the convention, and which has the capability to engage in conduct prohibited by the convention. Such a statement is important to avoid criminal charges against members of the Canadian Armed Forces who have no knowledge that their action may result in the use of cluster munitions by other parties.

On the other hand, despite this qualification, it would also be important to explicitly state that whatever the circumstances, the men and women serving in the Canadian Forces will not direct, request, aid, and abet the use of cluster munitions or use, acquire, and possess such weapons.

Handicap International's position on this issue is based not only on the opinion of experts, but also on the legislative instruments developed by some 30 countries, including NATO allies such as France, Norway, Portugal, Hungary, and Belgium, as well as other countries such as New Zealand, Switzerland, and Sweden.

The legislative framework developed by these countries does not give their armed forces license to engage in activities prohibited by the convention, therefore demonstrating that such license is not at all necessary to enable effective participation in joint military operations with states not party to the convention.

Also problematic—and this is another issue completely aside from interoperability—is the fact that Bill C-6 does specify that the prohibition on assistance applies to direct and indirect investments in the production of cluster munitions and their components. More than 25 countries, including the United Kingdom, Australia, New Zealand, and France, have taken the position that investment in cluster munitions development or production is a form of assistance prohibited by the convention, particularly when there is an intention that the investment be used, or even the knowledge that it is to be used, for such a purpose. Canada should follow suit.

In conclusion, the Convention on Cluster Munitions represents a historic step in international humanitarian law meant above all to prevent casualities among innocent civilian populations. Bill C-6 should be strengthened to ensure that everything possible is done to promote the spirit and achieve the purpose of the Oslo Convention. Some qualifications may be necessary, but they should be narrow in scope, and certainly not be contrary to the objectives of the convention. As currently drafted, the bill could, paradoxically, very well contribute to the continued use of cluster munitions rather than their elimination as intended.

The good news, as demonstrated by so many other countries, including some of Canada's closest allies, is that the exceptions and omissions we have flagged are not needed to achieve truly balanced legislation that both protects innocent civilians and allows, among other things, Canada's participation in joint military operations.

On behalf of Handicap International I would like to thank you for this opportunity for your time and questions.

Thank you.

I can also answer your questions in French.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Drolet.

We're going to now move to Ms. Chayer, who is with us from Geneva.

The floor is yours.

[Amélie Chayer, Policy Analyst, Cluster Munition Coalition]

Thank you very much, Mr. Chair. I will do most of my presentation in French.

First, I would like to thank the Standing Committee on Foreign Affairs and International Development for the opportunity to take the floor. I represent the Cluster Munition Coalition. We are made up of non-governmental organizations that operate in some 100 countries, working to eradicate cluster munitions. Our task is to have all states join the Convention on Cluster Munitions and fully comply with its provisions.

We are the sister campaign of the international campaign to ban landmines, which has worked closely with Canada to adopt the Ottawa Convention on anti-personnel mines. This campaign won the 1997 Nobel Peace Prize for its efforts to eliminate those mines.

I come from Montreal, but I have been working for a number of years for the Cluster Munition Coalition and the treaty to ban anti-personnel land mines. I currently work in Geneva.

I would like to tell you about my friend Mr. Thi, whom I met in Dublin at the treaty negotiations. He is a farmer from Vietnam. In 1977, he was blown up by a cluster munition while digging up his field. Half of his arm was amputated. Over the next few decades, he has continued to work in the same field where he kept finding explosive submunitions just like the one that blew off his arm several years earlier. On a daily basis, he lives in terror because of those cluster munitions. That is not something we can relate to, where we are. This daily terror certainly does not compare to our farmers' experience in the Prairies. However, in a number of countries affected by cluster munitions, this is the daily reality, a reality that can be fully avoided through the Convention on Cluster Munitions.

The Cluster Munition Coalition thanks Canada for engaging in the ratification process of the Convention on Cluster Munitions. I would also like to say that I agree with all the comments our colleagues from Handicap International Canada made a few minutes ago.

In recent years, cluster munitions have been used only by regimes such as the armies of Bashar al-Assad or Moammar Gadhafi. It has been more than 10 years since the United States have used cluster munitions on a large scale. Since 2007, the few times cluster munitions have been used, the state that had seemingly used them refused to confirm it, because the use of cluster munitions is not well regarded at all.

As a result of a recent resolution by the United Nations General Assembly, the number of states that condemn the use of cluster munitions by Syria has gone up to 131. More or less two-thirds of all the countries in the world are expressing their disgust for those weapons. When Moammar Gadhafi used cluster munitions, U.S. Secretary of State Hillary Clinton described that use as disturbing. When Bashar al-Assad used cluster munitions, U.S. Ambassador to the United Nations Susan Rice added the use of cluster munitions to the list of atrocities under the Syrian regime.

For a number of years, the International Security Assistance Force in Afghanistan has had a policy against the use of cluster munitions. Those weapons were not used during the NATO operations in Libya in 2011.

Clearly, those weapons are unacceptable. This is where we are really at now. We are talking about a large group of countries and an international instrument that has been negotiated down to the last detail. It is the community of nations that raises its voice when those weapons are used by people like Moammar Gadhafi and Bashar al-Assad.

So many voices are being raised that almost no one has the audacity to use those weapons. That is called stigma. Every time a government rejects those weapons, the stigma becomes increasingly stronger. As a result, those weapons will be used less and less.

Canada's bill worries us because some of its provisions clearly seem to go counter to the stigma. We feel that some aspects fly in the face of the goal and purpose of the convention.

Given the time constraints, I will not go over clause 11 in great detail right now. Our concerns are fully outlined in our written brief. We feel that clause 11 of the bill is clearly a violation of the convention.

First of all, article 1 of the convention lists the prohibitions. For instance, it is prohibited to use, produce and stockpile cluster munitions. It is also prohibited to assist, encourage or induce anyone to engage in those activities. That is the fundamental prohibition in the convention.

Article 21 of the convention deals with the relations with the States that are not members of the convention. Among other things, article 21 states that the military personnel of state parties may engage in military cooperation and operations with States not party to the convention that might engage in prohibited activities. Article 21 of the convention is not an exception to the prohibition on assistance in article 1 of the convention. In fact, article 21 clarifies that joint operations are allowed and that neither the state parties nor their armed forces are liable for the prohibited activities undertaken by non-party states during joint operations. It therefore does not reduce the scope of the prohibitions under article 1, which apply at all times.

So far, 40 state parties to the convention have clearly expressed their opinion on the matter; 38 of those states explicitly said that article 1 is the basis of the convention, that the prohibition is essential, and that article 21 is not an exception and therefore it cannot allow anyone to assist someone who might engage in an activity prohibited by the convention. Many of those countries are NATO members, including Belgium, France, Germany, Norway, Portugal and Slovenia, to name a few. All those NATO members will continue to participate in possibly joint operations without letting their armed forces ever use cluster munitions.

Since Canada started drafting its bill, there has been some criticism in other parts of the world. I will mention a few. I will say this in English, because the original comments made by the states were in English.

Still in the context of Canada's draft legislation, Norway publicly noted that article 1 of the convention referred to “the absolute prohibition on any use of all cluster munitions”. It also noted that all countries had a responsibility to ensure that their implementation measures fully complied with the provisions set out in the convention.

Austria said publicly:

Austria attaches great importance to the obligation of all States Parties to fully bring into effect the international norms of the Convention and not to allow for any loopholes to exist in their national legal frameworks. In Austria’s view, exceptions in national legislation with respect to interoperability clauses risk to run counter to the object and purpose of the Convention.

The ICRC, coming out of its usual reserve, said that “The ICRC is increasingly concerned about the scope of the exceptions allowed in national legislation...”.

The Holy See said that “After showing strong resolve in Dublin when we adopted this Treaty, all of us, we should continue to show domestically the same will to implement all our obligations in good faith.”

The United Nations, via its coordination group on mine action, said that “the United Nations shares the concern over possible inconsistencies contained in national legislation that has either been adopted or is under consideration that may be contrary to the letter and spirit of the Convention...”.

New Zealand invited states to consider important issues, such as aiding and abetting, when drafting national legislation.

[The Chair, Conservative, Dean Allison]

Ms. Chayer, we're just over time and we want to have a chance to ask some questions. Could you just wrap up your comments, and we'll get to the questions?

[Amélie Chayer]

Yes, sure.

The Cluster Munition Coalition is concerned about other aspects of the Canadian bill as well. We particularly recommend an explicit prohibition on the stockpiling and transfer of foreign cluster munitions and an explicit prohibition of public and private investment in producing cluster munitions. We also recommend that the maximum quantity of cluster munitions be defined in the legislation in compliance with the article on stockpile destruction. Our other concerns are outlined in our brief.

In terms of the convention on the prohibition of anti-personnel mines and the Convention on Cluster Munitions, it is often said that a small group of people who are deeply committed can turn things around. With this bill, Canada's parliamentarians have the opportunity to do just that. The power to turn things around is in your hands.

Thank you very much.

[The Chair, Conservative, Dean Allison]

Thank you very much, Ms. Chayer.

We will start on my left-hand side with Madam Laverdière for seven minutes, please.

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

Thank you very much, Mr. Chair. I will be sharing my time with Ms. Liu.

Thank you very much, Mr. Drolet. I am happy to see you again. Your presentation was excellent and very useful. You really covered every aspect of the issue.

My thanks also go to Ms. Chayer for providing us with some very relevant additional information.

I really liked the comment that we should interpret article 21 with article 1 in mind, because article 1 defines the fundamental objectives of the convention. At previous committee meetings, the opposite was suggested, meaning that we should interpret article 1 with article 21 in mind. To me, that defies logic. So I was very glad to hear your comments.

In terms of implementing the convention, would you agree that the Canadian bill is the weakest or one of the weakest? Could you also comment on how you see the potential impact of that on other countries?

[Marc Drolet]

The current bill was submitted. We are very happy that, a number of years later, the government has taken this step. It is very important that the ratification takes place. We feel that clear prohibitions are already included, but they must be taken a little further, as we mentioned in our brief. They must be strengthened. Our points are very specific and they could simply improve things.

In terms of comparing things internationally, I am going to leave that to the treaty experts, which we are not. We are experts in what happens on the ground. So we are not going to comment much on that aspect.

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

What do you think, Amélie?

[Amélie Chayer]

As I said in my opening remarks, so far, 40 state parties to the convention have expressed their opinion on the interpretation of article 21. Of that number, 38 have said that it is very clear that article 21 is not an exception to the provisions under article 1.

So far, a number of states have passed national legislation and more states have made interpretative declarations on article 21. The vast majority of states, the consensus, feel that article 21 of the convention is not an exception.

It does not override the prohibitions of article 1.

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

Of course, I was referring to the proposed legislation.

I know that you are both in contact with people from Handicap International around the world. Is there a fear that, if the Canadian bill is not amended, it could weaken the convention as a whole and set a precedent for other countries in their ratification process?

[Marc Drolet]

It is always possible that the ratification of a bill that is not up to par can encourage other countries to follow the same path. Of course, that is one of our concerns.

The major goal of the convention is to eliminate those weapons and to make sure they are stigmatized. Clause 11 of the bill has three parts that need to be corrected, in our view. Some aspects need to be improved, particularly in terms of funding. If that is not done, companies or even the government could fund the manufacture of those weapons and, as a result, encourage their use. We really think that could be more harmful than useful.

[Amélie Chayer]

At the end of the day, a convention is strong only if every state passes strong legislation that clearly implements all the obligations and prohibitions of the treaty. That was the case when the convention on the prohibition of anti-personnel mines was signed. In that way, every state makes a commitment to follow the letter of the convention.

We are not the only ones concerned about a bill being passed with breaches. Many states are concerned as well. That is what I was referring to when I talked about the concerns expressed by Norway, Austria, the Holy See, the International Committee of the Red Cross and the United Nations Organization through its demining agency.

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

I will give the floor to Ms. Liu.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Thank you.

Mr. Drolet, you said that Canada has not taken a stand to say that direct and indirect investments in the production of cluster munitions and their components represent assistance.

Two weeks ago, I had the same question for the official from the Department of Justice. I asked him why Canada had not taken that stand. The witness said that it was because the Criminal Code and other provisions already applied.

Why do you think the part about investments needs to be included in the bill?

[Marc Drolet]

Any piece of legislation that can promote the stigma makes it possible to strengthen and affirm our position in a clear and direct fashion. In the convention as written, we feel that it is a form of encouragement.

A number of our allies have already done so. I named a few in my opening remarks. We feel that part should really be added, despite what some legal experts think.

[The Chair, Conservative, Dean Allison]

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

We'll move now to Ms. Brown, for seven minutes, please.

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

Thank you very much, Mr. Chair.

Thank you to both of our witnesses for being with us today. It's a very important discussion for us. I don't know whether you had the opportunity to read the transcripts of the minister's testimony last week, but obviously Canada finds these munitions reprehensible. We are going to do everything in our power to work toward seeing the world rid of these horrible things.

Mr. Drolet, you've got experience in the field and you know what you have to contend with when you're dealing with people who have been injured. The lives of people in some of these countries are already difficult, to say the least, and are compounded by the problems of children who have inadvertently picked up something they thought was a play toy but which then resulted in horrible handicaps. It is terrible that any child should have to go through that.

As you know, the minister has already spoken about the money Canada is contributing, particularly in Laos right now, to ensure that we help that country with the demining process. We want to do everything that we can. We are working toward those things.

First of all, I want to say thank you to Handicap International. I had the opportunity to meet with a number of stakeholders a year ago and to discuss the issues of people who are suffering from disabilities in other countries, and how they have to work within the context of their own country, so often stigmatized—that word is being used. It was an opportunity to discuss and find a way for Canada to move forward in helping to put in place some of the policies that will look first of all at development, with disabilities as part of the lens, and how we can work our development dollars so that we are inclusive of people who have disabilities. It was a very fruitful discussion, and I am pleased to say that we had some of those stakeholders meet with Minister Fantino after that discussion. Minister Fantino was putting those into place during his time in the ministry. I expect that we will move forward with those things.

I just have a comment. We heard from the general last Thursday about the responsibility we have to our military right now when we are working with our closest neighbour, the United States. I respectfully submit to our witness from Switzerland that even though the countries of Norway and Austria and the Holy See have made these comments, they don't have the same relationship that Canada has with the United States. We have a far different connection here.

We work with our closest ally in many ways that these other countries do not have to. We are in a rather unique position, being not only on the same continent but connected as we are to the United States in the relationship that we have.

My question would be to both of you, since you both are undertaking initiatives to speak to countries that have not signed on to the treaty. Obviously we would like to see everybody sign on to the treaty; that would be our objective in the long term. Can you tell us what negotiations you have had with and what representations you have made to countries that are not signatories to the treaty? How can Canada then come in and have those discussions, recognizing that we do have this very close relationship with the United States? How can we have discussions with the others that are not signatories to the treaty? What negotiations are you having?

[Marc Drolet]

Mr. Speaker, I would like Amélie to answer to that. As executive director for Handicap International Canada, my role is toward the Canadian government, trying to advocate our position toward our country.

I have attended international conferences and have mostly tried to influence our Canadian delegates, but have also talked to others to gain a sense of what their positions are. When you speak to the military, they don't like being confined or limited in their actions. I had a very strong exchange with a lawyer who works for the French army who was trying to convince me that some munitions and land mines were legitimate defensive tools and should be considered as such. We agreed to disagree on that, because from my perspective I just see the humanitarian consequences of these vile weapons.

From my perspective, I think that Amélie can speak about what is being done to try to influence the other countries.

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

Thank you.

[Amélie Chayer]

Thank you very much, Ms. Brown.

I am pleased to hear once again that Canada wants to do everything in its power to eradicate cluster munitions. In order to do so, the loopholes in the current bill must be closed.

I am also pleased to hear you talk about inclusive development. That is actually an important part of the restorative aspect of the convention, meaning assistance to those who were injured or maimed by those weapons.

According to the Cluster Munition Coalition, as well as many states, many of the NATO states and many witnesses you have heard from and will hear from, it is possible to maintain military cooperation with any allies, including the U.S., as long as no Canadian ever uses cluster munitions and as long as all Canadians fully respect the prohibitions of the convention.

In terms of the work of the Cluster Munition Coalition, we are working on ensuring that all states adhere to the convention. We are actually working with the member states on that. We will be very pleased to work with Canada on that issue.

The states are divided geographically. In terms of the work that goes into making the treaty universal and in terms of the committees that are set up, the states work together so that more potential states adhere to the convention. In terms of the states that we would like to see adhere to the convention, not only do we want them to adhere, but we also want them to scrupulously follow all the provisions of the treaty.

We would be delighted to have Canada's support.

[The Chair, Conservative, Dean Allison]

Thank you very much.

That's all the time we have, Ms. Brown.

We're going to move to the final questioner in the first round, Mr. Garneau.

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

Thank you, Mr. Chair.

On the one hand we have the government, as expressed by Madam Brown, saying that yes, we decry the use of cluster munitions, as we all do around the table here. But unfortunately it is not willing to reassess the interpretation of article 21 of the convention. Certainly my party has been very clear in taking the position that Canada should clearly state that it will not participate in a particular joint operation with an ally such as the United States that could use cluster munitions in a particular joint operation.

Yes, we will work with our allies, all the time, in lots of other things, but not if they say they could use cluster munitions in a particular operation. I don't believe that kind of caveat is going to harm our relationship with our allies in any way whatsoever. We're much stronger than that in our relationship with the United States, and have proven it over the years. We are a very stalwart and reliable ally. On top of that it would show dramatically that Canada is actively working to rid the world of this indiscriminate and horrible weapon. We all agree on that.

However, I have to say that it's my impression that the current government is unwilling to take that position of international leadership. That unfortunately is the situation. Therefore, it all boils down to the interpretation of article 21 of the convention. In his submission to the committee, Earl Turcotte, who was the Canadian chief negotiator for the Convention on Cluster Munitions, said that Bill C-6's interpretation of article 21, mostly reflected in clause 11 of Bill C-6, is complete and utter nonsense. This is the guy who helped write it for Canada.

In his view, article 21 does not allow Canada to use cluster munitions in joint operations. Again, this is coming from the guy who was part of writing the convention. This is the interpretation we took when we wrote the convention.

I'd like to ask our two witnesses, starting with Monsieur Drolet, what do you think of a country that makes specific commitments when it's negotiating the convention and then reneges on them when it's about to ratify the convention?

[Marc Drolet]

The Government of Canada, by signing the ratification of the convention, theoretically should stick to the essence of it in all of its articles. Article 1 is very clear. My colleague Amelie, in Geneva, mentioned the relationship between article 1 and article 21.

Our concern is really about clause 11 of the bill and about making some changes there. We believe there are paragraphs within that clause that need to be changed.

First, paragraph 11(1)(b) talks about “expressly requesting the use of a cluster munition, explosive submunition or explosive bomblet”. That doesn't make sense. The “using, acquiring or possessing” that's in paragraph 11(1)(c), right after that, doesn't make sense either. Finally, in paragraph 11(3)(a), “aiding, abetting or counselling” gives the latitude to our soldiers to do that.

I believe that creates an ethical and moral problem for our troops, who have on the one side humanitarian law, and then this clause 11, which sort of permits it.

We're hoping that this can be fixed, and we're hoping that other changes can be included as well.