Foreign Affairs Committee on Nov. 26th, 2013

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

Ms. Chayer, would you like to comment?

[Amélie Chayer]

Mr. Garneau, I missed part of what you said because of technical problems.

What Canada is trying to do with clause 11 is an aberration. Canada is on its own with the current wording of clause 11. The Cluster Munition Coalition is very concerned.

Let's take the example a step further. If all the states seeking to adhere to the convention prohibiting cluster munitions wanted to keep an opening like the one in clause 11, cluster munitions would not be eliminated. The goal and purpose of the convention would not be achieved. That is why any small crack like that is prohibited. Reservations about the treaty are not permitted. That is why the reaction to the Canadian bill is so strong.

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

Thank you very much.

Mr. Drolet, ideally, we would have heard from cluster munition victims. There aren't any on our list of witnesses. In your view, what would they have to say about Canada's position and Bill C-6? Have you included that in your comments or do you have something to add?

[Marc Drolet]

I will give the floor to Jérôme.

[Jérôme Bobin, Manager, Communication and Mobilization, Handicap International Canada]

I have been working with Handicap International for eight years. I have had the opportunity to meet a number of cluster munition victims. I think the Oslo treaty, the Convention on Cluster Munitions, was received by the victims as a true window of hope for the future. It is one of the first times that assistance to victims has really been discussed. That is their main concern. The eradication of those weapons was also discussed.

When we talk about victims, we must remember the circumstances. People lost their limbs, but there are also the families of people who were killed by those weapons. As a result, the communities of those victims are also victims. For them, the Convention on Cluster Munitions signed in Oslo is a window of hope. In my view, anything that might close that window, whether it be this bill or any other provision or declaration that could make us backtrack, will completely shatter all the hopes of victims, hopes raised by the convention.

[The Chair, Conservative, Dean Allison]

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

We'll move on to the second round.

Ms. Grewal, five minutes.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Thanks, Chair.

Thanks to our witnesses today for their time and their presentation.

Many countries have not signed the Convention on Cluster Munitions, including Russia, China, Egypt, India, Pakistan, and our close ally the United States. Last week Minister Baird said that he was really stunned that U.S. President Barack Obama had not ratified the convention.

From your knowledge, why have these countries not signed on to the convention? What are their objections?

[Marc Drolet]

I would like to complete my answer because I can link your question with what Mrs. Brown was asking me earlier on what we do to try to influence. We have national offices in eight countries. We have an office in Washington, and we do try to convince our American friends to ratify the Oslo accord and the Ottawa convention as well. They are reticent to do that. They have shown that they are not using submunitions and haven't for six to eight years already. I think the major countries are not the ones that are using them right now.

What is really a concern for us are the countries that are using them right now, like Libya and Syria, as mentioned by my colleague. Also, the other concern is that the United States has used these submunitions in the past and they are still a heritage in Cambodia, in Laos. Thirty years later, those countries are still polluted by those weapons. We can only try to move them, but I think there might be economic interests behind that. By endorsing it in our Canadian law, by sending signals, for instance by funding and adding those financial elements to the law, I think we can signal to our friends and maybe be strong, as Monsieur Garneau was mentioning, and be brave, and show the world that we need to take a lead in that.

Our perspective, as Jérôme was mentioning, is really from seeing the victims and trying to help them through. We can only bring them to the table, have them testify, tell how their lives are being affected, and hope that those people will have the compassion to ratify, sign, and go as far as they can within the spirit of the convention.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

The Canadian Armed Forces often work with the American military in combined operations. While the Americans have not signed the conventions, have they made efforts to kind of address the issue on cluster munitions?

[Marc Drolet]

I can't talk from an American perspective. I can certainly hope that from a Canadian perspective we would have the spirit of the convention, which Canada has signed, so we agree in its essence. I think we should send a clear message to our soldiers that they should promote that, as is mentioned in article 21 of the convention, to discourage the use of them. I think that giving a stronger version of this project would encourage our soldiers to do so.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

It is my understanding, as I have said in previous questions, that the United States is not a signatory to the convention but strongly supports negotiations on cluster munitions within the framework of the convention on certain conventional weapons. What is your opinion of this alternative approach to addressing the use of cluster munitions?

[The Chair, Conservative, Dean Allison]

Just a very quick answer, as we're almost out of time. We have about 30 seconds.

Go ahead, Ms. Chayer.

[Amélie Chayer]

Thank you, Ms. Grewal.

I would like to say something about the Convention on Certain Conventional Weapons,

which you're referring to.

A few years ago, some states took the initiative and hoped that a protocol on cluster munitions would be adopted under the Convention on Certain Conventional Weapons (CCW). The CCW is a framework convention with provisions on the disarmament of certain weapons. However, the negotiations and talks on the protocol took place after the Convention on Cluster Munitions was in place. They were a failure because it was clear for the international community that the standard for cluster munitions was the one set out in the Convention on Cluster Munitions, which fully prohibits their use. Any protocol trying to regulate the use of those weapons under CCW was deemed unacceptable by the state parties to the convention, and as a result, that protocol failed. That was a few years ago, in 2011.

[The Chair, Conservative, Dean Allison]

Thank you very much.

Thank you, Ms. Grewal.

We're going to go over to Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

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

Mr. Drolet, I'm going to start with you and then I'll go to our friend in Geneva.

The convention itself, not the legislation, is intended to completely ban the use of cluster munitions so that we can prevent the horrific damage they do, like the damage referred to in the compelling witness statement we heard from Madam Chayer. I've been receiving tweets. I don't know if my colleagues have also been getting them from people who are affected saying, “Fix this bill”. It's compelling, so that's the convention.

As to the legislation, what we're dealing with now is to make sure that the convention is implemented properly. In your view, does this bill completely ban the use of cluster munitions by Canadian Forces personnel?

[Marc Drolet]

Clause 11, as it is construed right now, has at least three paragraphs that do not show that.

[Paul Dewar, NDP, Ottawa Centre, ON]

I want to underline that. We've seen some movement in words from the government. It is important to put what the convention says in the clearest possible way. We've heard goodwill from everyone around this table and from witnesses. The goal is to prevent horrific harm to individuals and human beings, but the challenge we face right now has to do with clause 11, which doesn't completely ban the use of these munitions by our forces.

I want to go to Madam Chayer. You mentioned the Red Cross. I want to read something into the record. They gave us a brief and I was quite surprised that, as you said, the ICRC went public with their concerns. The ICRC, for those who don't know, almost never takes such a position. On the ground, they are concerned about what's going on, but they are usually quiet about it.

With regard to the legislation, they say this:

the exceptions in clause 11 are broad and, if adopted as presently drafted, they could permit activities that undermine the object and purpose of the convention and ultimately contribute to the continued use of cluster munitions rather than bringing about their elimination.

In other words, what the ICRC is saying is that, as the legislation exists right now, it could actually work against the intention of the treaty.

First of all, could you give your comments on how unusual it is for the ICRC to comment, and second, do you agree with the statement? Give us your explanation if you agree with this statement. If you don't agree, tell us why.

Madam Chayer.

[Amélie Chayer]

Yes, absolutely.

The Cluster Munition Coalition shares the serious concern of the International Committee of the Red Cross. It is true that the ICRC does not often go out of its way to make those types of comments.

When we read clause 11 of the bill, we clearly see that its current wording allows the Canadian Forces to direct or authorize activities prohibited by the convention in joint military operations. It authorizes the Canadian military personnel to expressly request the use of cluster munitions. It expressly authorizes Canadians to use, acquire, transfer and possess cluster munitions. Finally, it expressly allows them to assist others in carrying out prohibited actions. It is therefore a clear violation of the integrity of the convention. In that sense, we share ICRC's concern.

[Paul Dewar, NDP, Ottawa Centre, ON]

I was as compelled as anyone by Minister Baird's testimony. He has gone to Laos. He has seen the victims. What we are hearing here is that we have to fix the bill. Clause 11, as we've heard from both of our witnesses, will, perhaps accidentally, undermine the intent of the treaty we signed. I hope that we'll have willing partners on all sides of the table to fix the bill.

Thank you.

[The Chair, Conservative, Dean Allison]

Thank you.

Thank you very much, Mr. Drolet and Mr. Bobin, for being here. At 10:30 at night over in Geneva, Ms. Chayer, I thank you for staying late today. I see lots of coffee to try to keep you awake there. No, you're wide awake. Okay. Thank you very much.

To our witnesses again, thank you very much for being here today.

[Amélie Chayer]

Thank you very much, Mr. Chair.

[The Chair, Conservative, Dean Allison]

We're going to suspend for a couple of minutes just to get our next witnesses in and set up.

We'll get started now.

We have with us the Right Honourable Malcolm Fraser, former Prime Minister of Australia.

Mr. Fraser, welcome. We're glad to have you with us from Melbourne. As I understand it, it's around 8:30 in the morning there, so thank you for participating with us.

We also will have, from Minneapolis, Minnesota, Professor Wiebe, whose testimony we're going to hear momentarily.

Why don't we start with Mr. Fraser?

Thank you for taking the time to join us today. We're going to have you start with your opening testimony, and hopefully we'll get wired in via video conference our next witness and hear Mr. Wiebe after we've had a chance to hear from you, Mr. Fraser.

The floor is yours, Mr. Fraser. You have 10 minutes for your opening statement, please.

[Malcolm Fraser, As an Individual]

Thank you very much indeed, Mr. Chairman, and thank you for making time available for me to speak with you briefly.

I asked my office to send over a press article that appeared in 2011, at a time when Australia was passing cluster bomb ratification legislation. I hope you have copies of that because it will save me from going back to it, and I think the arguments there are relevant to what Canada is doing at the present time.

Cluster bombs represent about the most indiscriminate of all weapons. If you want to kill women and children, cluster bombs would be the weapon of choice. If you want a precise military weapon, a cluster bomb is the last thing one would go to, and I can't really believe that in modern warfare cluster bombs are going to be the choice of any civilized power.

The 2008 treaty was a most significant humanitarian treaty, and most allies of the United States have signed on to that treaty—major allies, such as Britain, France, and Germany. The prohibitions in the treaty are emphatic and absolute that cluster bombs should just not be used, but for some reason, the military, especially in the United States, want to keep the power or capacity to use cluster bombs. The United States has not signed on. Of all the NATO powers—I hope it's not an offence to any other country—the United States is the only significant country that has not signed onto the treaty.

The exceptions in the Canadian legislation are substantial and would enable Canadian military forces to use cluster bombs in a much wider range of circumstances if a state not party to the convention, the United States, wanted to use them. But the Canadian exceptions go beyond that because for transport or an activity that would help the United States, there are unprecedented powers in subclause 11(3) of Bill C-6 to help the United States in the use of cluster weapons. The exception is also given to direct or to authorize or to request the use of cluster bombs. I would have thought this really goes to the heart of the convention and undermines it in a major way.

Article 21.3 of the Convention, I would have thought, as other testimony has indicated, gives all the power to the Canadian military, or to the Australian military, to work with the United States, because that's really what we're talking about, that, is whether allies of the United States can continue to work with them. I make the point that Canada, I think in its wisdom—and that's not meant in a critical sense, but in a praiseworthy sense—had the very good sense to keep out of the wars in Vietnam and Iraq, which Australia was involved in with America. That's a mark not only of Canada's judgment but also of its capacity for independence in relation to a close ally. Article 21.3 gives us, or you, all the authority we need to work with the United States were we ever to have the circumstances in which the United States wanted to use cluster weapons in the future.

I can't really conceive of any circumstances in which it makes technical or strategic sense, in any likely war that the United States might be involved in, to use cluster weapons. Where they have been used relatively recently, whether in Lebanon or Kosovo or wherever, it has made no sense and has led to a great many civilian casualties.

One of the things that I believe must concern Canada, Australia, and most countries around the world is that as time has passed and military weapons become more and more precise, we've come to a stage where the greatest number of casualties by far are in fact civilians. Wars used to be fought directly between armies and it was armies who suffered the casualties but now it's not, it's civilians. Keeping cluster weapons on the agenda will only exacerbate that point. In this case in particular, because of the characteristics of the weapons, more children will be killed or maimed in future years.

The exception in New Zealand is probably the best worded piece of legislation, which, I'm sure, has been brought in front of you. Australia went backwards, having listened to the United States' objections, I suppose, to the treaty. With all respect Canada's gone a little further backwards than Australia on this issue.

From my perspective over a long period in public life, it seems to me to be contrary to Canadian tradition because, amongst western powers, Canada has over many decades taken an enlightened view of world affairs as expressed in a degree of independence from the United States over a number of issues. That has not affected the closeness of your relationship and has not affected the capacity of Canada to work cooperatively in support of common objectives. But the only reason for the strength and depth of the amendments seems to me, really, to please the United States, and quite unnecessarily.

I indicated that Canada kept out of Vietnam and Iraq. I think many Australians would argue that although you're closer geographically, the second in charge of American troops throughout the Pacific is in fact an active Australian major general. I don't think we should have him there, but we do. That shows the depth of the integration and interoperability of Australian forces with the United States, which I would believe is just as great as Canada's.

So why not ratify the treaty with a New Zealand kind of exception? I mean, article 21.3 gives all the power a country needs to operate with an ally that's not a state party to the convention. Why go beyond that? Why break down the strength of a very good humanitarian treaty that was a major plus for the world?

I'm sure you have all the background needed, ladies and gentlemen. If you wish to ask questions I'll do my best to answer them.

[The Chair, Conservative, Dean Allison]

Thank you very much, Mr. Fraser.

We are now going to turn to Virgil Wiebe who is a professor of law at the University of St. Thomas School of Law, coming to us from Minneapolis Minnesota.

Mr. Wiebe, thank you very much for taking the time. We're glad to have you here. We'll turn it over to you for your opening statement of about 10 minutes please.

[Prof. Virgil Wiebe, Professor of Law, University of St. Thomas School of Law, As an Individual]

Thank you very much for the opportunity to testify today.

My name is Virgil Wiebe. I'm a professor at the University of St. Thomas School of Law here in Minneapolis. I appear in my personal capacity.

As a Mennonite, I’ve been blessed to walk in the steps of people who have been raising their voices about cluster munitions since the 1960s and 1970s. By 1975, when the Vietnam War ended, the threat from unexploded ordnance like millions of this small “bombie” or bomblet was already becoming clear throughout the region. I commend the written submission of Mennonite Central Committee Canada as it recounts their experience working with people most affected by unexploded bomblets, especially in Laos. In particular, their calls for legislative implementation of positive obligations should be heeded. Also, as a board member of Mines Advisory Group America, I have travelled to Lebanon and seen firsthand the aftermath of massive cluster munition use there.

As a scholar, I followed the Oslo treaty process closely, including attending the final negotiations in Dublin. I then joined a team of scholars and diplomats to write the Oxford commentary on the Convention on Cluster Munitions, published in 2010. I focused my efforts on the history of cluster munition use and article 1 of the treaty. I also contributed to the chapter on article 21 of the treaty.

Now, to get quickly to a few points. First, clause 11 of Bill C-6 is not simply a restatement of article 21 of the treaty, but it veers in the direction of violating both the letter and spirit of the treaty. The provisions of clause 11 are not unquestionably allowed by the convention. They go beyond any other national legislation in implementing protections for national service members. Quite breathtakingly, clause 11 sanctions the use, stockpiling, and transfer of cluster munitions by Canadian Forces in certain circumstances. A written submission I made last week and also an open letter that was submitted to Minister Baird last year by 26 Canadian scholars spelled out how clause 11 goes well beyond the text of the convention, its context, its object, and its purpose.

In particular, it's important to note that article 21.1 and article 21.2 require Canada to encourage other states to join the treaty and to make best efforts to discourage other states from using cluster munitions.

The principles of treaty construction call for a much narrower interpretation of articles 21.3 and 21.4 than is done in Bill C-6. One example of treaty interpretation tools is that names matter. Article 21 is named “Relations with States not party to this Convention.” During the negotiations in Dublin the drafts of what would become article 21 were called “Proposals on Interoperability.” It was therefore no accident when the final name of the article became “Relations with states not party”. The emphasis was not on interoperability; indeed, that word appears nowhere in the treaty, but on relations with states not party and how to pull them into compliance and even membership in the treaty as well as how to discourage them from using cluster munitions.

Second, existing Canadian law already provides protection for unknowing or unwitting actions by Canadian Forces in joint operations. Last week, General Walter Natynczyk was asked a great question: what would happen to Canadian service members who were in a joint operation and unknowingly or unwittingly participated in the use of cluster munitions if this legislation did not exist? His reply was that:

...Canadian Forces must abide by the law of the land and the code of service discipline applies with criminal law. So therefore that individual or individuals could be subject to prosecution.

With all due respect to the general, I submit that he was wrong. Someone in that situation would not have needed section 11 in order to avoid prosecution. Under both the Code of Service Discipline and the Canadian Criminal Code, offences with the prospect of imprisonment require some mens rea element.

My reading of the prohibition section of Bill C-6, in the context of existing Canadian law—and I'm reading clause 6 of the bill—is that a prosecutor would have to prove that the person in question had the purpose, intent, knowledge, or at least recklessness to commit an offence spelled out in clause 6 of the bill. That person would have been protected from criminal prosecution for his or her unknowing and unintentional assistance in the use of cluster munitions under existing law, without the protection of clause 11.

Thirdly, creating exceptions for the use of cluster munitions may have long-term negative effects on the service members who use or assist in the use of cluster munitions. On the one hand, to, as a nation, condemn cluster bombs while on the other hand then allowing some to use them may well create a profound moral dilemma for those persons during and following conflict.

A colleague of mine has studied the early medieval church and how it grappled with this notion of legally sanctioned but morally repugnant acts. It did so by creating elaborate systems of penance following a soldier’s return from war. We have similar situations now. Some of those who have used and assisted in the use of cluster munitions have later experienced profound guilt and regret. Some have sought absolution and redemption by engaging in the equivalent of penance, including engaging in unexploded ordnance clearance, even decades after the events in question.

Fourthly, there is state responsibility. Excusing individuals for otherwise criminal activity does not necessarily excuse Canadian state responsibility for acts carried out by a Canadian state organ. Principles of state responsibility attribute to Canada actions by representatives of Canada where Canada maintains direction and control of those personnel.

To conclude, I have learned a few terms from the psychologists and social workers with whom I work.

One of those words is “enabler”, which has been defined as one who enables another to persist in self-destructive behaviour by providing excuses or by making it possible to avoid the consequences of such behaviour.

Through clause 11 of Bill C-6Canada is enabling potentially destructive and unhelpful behaviour by its allies, like the United States, and maybe even by Canada.

On the other hand, a “psychological intervention” has been defined as a concrete action that tries to introduce some changes in a given situation, usually planned and devised according to some previous theory, and adapted to the here-and-now peculiarities.

Canada’s cluster munition legislation should act as the intervention needed for states not party to the convention. It should embrace article 21 in its entirety and use paragraphs 1 and 2 of article 21 to pull countries like the United States in the right direction.

As for what should be done, I can offer some specific suggestions in response to questions. Many of these responses, I acknowledge, I will take from the written submissions from groups like Mines Action Canada, the Harvard human rights clinic, the Canadian Red Cross, and others.

Thank you very much.