Foreign Affairs Committee on Dec. 10th, 2020

[The Chair, Liberal, Sven Spengemann]

Welcome to meeting number 12 of the Standing Committee on Foreign Affairs and International Development.

Pursuant to Standing Order 108(2) and the motion adopted by the committee on Thursday, October 29, 2020, the committee is beginning its study on the granting of arms export permits, with a particular focus on permits granted for exports to Turkey.

To ensure an orderly meeting, I encourage all participants to mute their microphones when they're not speaking and to address their comments through the chair. When you have 30 seconds remaining in your questioning or speaking time, I will signal you with this now customary piece of yellow paper. Interpretation services are available through the globe icon at the bottom of your screen.

Colleagues, our witnesses have agreed to make themselves available until 5:45. That gives us a full hour with them. I propose we continue on that basis.

I would now like to welcome our witnesses.

We have with us from Amnesty International Canada, Justin Mohammed, human rights law and policy campaigner, as well as Stacia Loft, articling fellow. From Project Ploughshares, we have Cesar Jaramillo, executive director, and Kelsey Gallagher, researcher. From the Rideau Institute on International Affairs, we have with us Peggy Mason, president.

Without further ado, we will start with Amnesty International for five minutes of opening remarks.

The floor is yours.

[Justin Mohammed, Human Rights Law and Policy Campaigner, Amnesty International Canada]

Thank you, Mr. Chair.

I'd like to begin by acknowledging that I am joining the committee from unceded Algonquin territory in Ottawa, Ontario.

We would like to thank the committee for inviting us, particularly on International Human Rights Day. We wish all of the committee members a happy International Human Rights Day.

Mr. Chair, committee members, as you may know, Canada acceded to the Arms Trade Treaty, or as we will refer to it, the ATT, in September last year, after which it became binding on Canada at international law. It is an important convention that can help prevent the commission of serious international crimes, including genocide, war crimes and crimes against humanity. This is why Amnesty International has campaigned in Canada and around the world to encourage states to adopt domestic laws that fully implement its terms.

Amnesty International is encouraged by this committee's decision to study controls, protocols and policies around the granting and freezing of arms exports. However, we would respectfully remind the committee that these measures are, quite simply, not law. The starting point must be to ensure that Canada's legal framework fully implements all of its international legal obligations under the treaty.

Bill C-47, which amended the Export and Import Permits Act, or as I will refer to it, the EIPA, was introduced to implement the ATT, and it did strengthen Canada's export control regime. However, the legal and regulatory regime that it created failed to fully implement the treaty. Several civil society organizations provided written briefs about these deficiencies to the Senate foreign affairs committee in November 2018, and again when Global Affairs Canada undertook consultations to develop a regulations package to accompany Bill C-47 in April 2019.

Allow me to provide just two examples that were highlighted in those briefs. First, article 6 of the ATT contains an absolute prohibition on certain weapons transfers, such as those that violate UN Security Council arms embargoes or transfers where there is knowledge that the arms would be used to commit genocide, crimes against humanity and war crimes. The absolute prohibition on such exports does not exist in Canadian law.

Second, there are also deficiencies around the U.S. weapons export process. Through the use of a so-called general export permit, almost all U.S. weapons exports are exempted from the review mandated by article 6 and article 7 of the ATT. Such exemptions are not permissible under the treaty.

The consequences of failing to fully incorporate the ATT in Canadian law, as my colleagues will elaborate, is that Canada continues to export weapons where there are significant concerns about the possibility of their use in the commission of serious international crimes.

I'll now turn it over to my colleague, Stacia Loft, to continue our testimony.

[Stacia Loft, Articling Fellow, Amnesty International Canada]

Thank you.

Our understanding of Canada's export review process post-Bill C-47 is informed by Global Affairs Canada's final report on weapons exports to Saudi Arabia. The Minister of Foreign Affairs ordered officials to release the document earlier this year. While this exercise in transparency is to be commended, the final report displayed serious gaps in Canada's export evaluation process.

First, the final report improperly suggests that the definition of “substantial risk” should consider whether a pattern of repetitive behaviour can be identified with respect to human rights violations. This is not the correct metric under the ATT. The prospect of risk is, and that's what needs to be considered. While the pattern of repetitive behaviour could be an indicator of risk, it is not determinative of risk. It indicates a higher threshold than the treaty requires.

Second, the final report did not rely on reports authorized by human rights or civil society organizations, which have long documented Saudi human rights violations and possible violations of international and humanitarian law. It was also selective in its treatment of the UN group of eminent experts' report from 2019. Finally, the report made errors in interpreting international humanitarian law. For example, the report is dismissive of concerns about sniper rifles, saying that they are intended to support precision targeting and thus less likely to result in civilian casualties.

While a sniper rifle is a permissible means of warfare, this does not mean that the methods of their use have been compliant. A sniper rifle in the hands of someone using it to target civilians is no less an international humanitarian law violation. If this is the rigour that is applied to questions of international humanitarian law when Canada conducts arms exports, it is undoubtedly lacking.

Why does Canada need a more rigorous export control system, specifically one that fully implements the ATT? The Saudi case is illustrative. Saudi Arabia's human rights record is beyond debate. It is an established violator of human rights both domestically and internationally. These acts all raise questions. If such a record does not constitute a risk of Canadian weapons being used to commit serious international human rights and international humanitarian law violations, then what does?

In conclusion, Amnesty International offers two recommendations for the committee's consideration. I will be brief.

First, Canada should amend its domestic legislation to ensure that it is fully compliant with all of the terms of the ATT. In the interim, the Governor in Council could enact regulations that would give those obligations the force of law.

Second and finally, Canada should reassess export permits where violations of international humanitarian law, international human rights law and gender-based violence have been alleged by domestic and international investigative bodies or by human rights and civil society organizations.

I thank you.

[The Chair, Liberal, Sven Spengemann]

Thank you very much, Mr. Mohammed and Ms. Loft.

We will now turn the floor over to Project Ploughshares, also for five minutes of introductory remarks.

Please proceed.

[Cesar Jaramillo, Executive Director, Project Ploughshares]

Thank you very much. Thank you for the opportunity to present before this distinguished committee.

Distinguished members of the committee, contrary to government claims, Canada does not have one of the strongest export control systems in the world.

This is not a matter of opinion or interpretation. The annual reports on Canadian military exports prepared by Global Affairs Canada confirm an unassailable fact: Today, most Canadian arms exports help to sustain autocratic regimes, to perpetuate armed conflict or to enable the violation of human rights.

A recent example concerns Canadian military exports to Turkey. Optical sensors produced in Ontario by L3Harris Wescam have been found in numerous other conflict zones including Syria, Iraq and Libya. Most recently, they were used by Azerbaijan in attacks against Armenian targets in Nagorno-Karabakh. These exports pose a substantial risk of violations of human rights and international humanitarian law. In the case of Libya, they constitute a blatant breach of an arms embargo imposed by the UN Security Council.

Canada's suspension of arms exports to Turkey following reports of misuse was welcome and necessary, but if recent history is any indication, it could be short-lived.

This was the fourth time in just over three years that Canada has announced the suspension of export permits to a country accused of violating international law. Two of the incidents involved Saudi Arabia, the top destination for Canadian arms exports, and one of the worst violators of human rights on the planet. Each time the suspension was eventually lifted when the media scrutiny died down. In the case of the Saudi exports, the suspensions did not stop a single export because they only applied to future permits.

The troubling reality is that the Canadian arms industry has become alarmingly linked with disreputable regimes that are engaged in some of the world's most devastating conflicts. We are aware that this view clashes with the carefully crafted government discourse on the high standards of rigour and transparency that purportedly inform Canada's arms export decisions, but the evidence is sturdy and compelling.

The world is taking notice. In September of this year, the Group of Eminent International and Regional Experts on Yemen, mandated by the United Nations Human Rights Council, issued a report that confirmed not only the pattern of human rights abuses by all parties to the conflict but also the role that Canada and other arms exporters to the warring parties have played to perpetuate the crisis.

There is a clear gap between rhetoric and practice around Canadian arms exports. It is high time for strict parliamentary oversight of this important aspect of Canadian foreign policy. A place to start might be the establishment of a subcommittee of the Standing Committee on Foreign Affairs and International Development to ensure compliance with domestic and international law, including Canada's obligations under the Arms Trade Treaty.

I will give the floor to my colleague Kelsey Gallagher.

[Kelsey Gallagher, Researcher, Project Ploughshares]

Thank you, Cesar.

Thank you for having us today.

Members of the committee, in recent years Canada has exported large volumes of Canadian-made L3Harris Wescam surveillance and target acquisition sensors to Turkey for use by the Turkish military. These sensors are primarily attached to the underside of aircraft, including drones, and are used to surveil potential targets on the ground. However, they should not be mistaken for mere cameras. The variant of Canadian-made sensors exported to Turkey, the Wescam MX-15D, is also fitted with a laser designator. This component directs munitions toward their targets and is vital to launching modern air strikes.

The majority of Canadian-made sensors exported to Turkey are used on the Turkish Bayraktar TB2 drone and have seen extensive use in combat across several conflict zones. Turkey has also provided them to allied actors in Libya and Nagorno-Karabakh. Turkey's provision of Wescam sensors to its allies is a textbook example of diversion, which is the illicit transfer of weapons systems to unauthorized users. The case of Canadian weapons being diverted to the conflict in Libya is particularly troublesome, as this also constitutes a breach of the almost decade-old UN arms embargo against that country.

Diversion is prohibited under the Arms Trade Treaty, to which Canada is a party. As such, the Government of Canada is obligated under international law to stem the illicit diversion of weapons systems. This would indisputably apply to the case of Turkey. Whereas Canada's temporary suspension of arms exports to Turkey is a step in the right direction, the move is long overdue. According to a UN report published last year, since at least May 2019 Turkey has been diverting drones to Libya, including the Bayraktar TB2, which is invariably equipped with Canadian-made Wescam sensors. These findings alone should have made clear the substantial risk associated with these arms exports.

Given Turkey's brazen behaviour in Libya, it should have come as no surprise to Global Affairs Canada that the same Canadian weapons would also be found illicitly fuelling the war in Nagorno-Karabakh. By all accounts, Turkey's provision of weapons to Azerbaijan substantially influenced the outcome of that conflict.

To satisfy its obligations under international law, the Government of Canada should move to fully cease the further export of such weapon systems to Turkey, or run the risk of non-compliance with the international arms control frameworks it has voluntarily acceded to.

Thank you.

[The Chair, Liberal, Sven Spengemann]

Thank you very much.

Our final set of opening remarks will come from the Rideau Institute on International Affairs.

Ms. Mason, the floor is yours for five minutes, please.

[Peggy Mason, Former Ambassador and President, Rideau Institute on International Affairs]

Thank you very much for inviting me here today.

Canada needs an independent, impartial Canadian arms export control agency. Since I became president of the Rideau Institute in June 2014, we have been tracking the long and sordid saga of our continuing arms exports to Saudi Arabia, no matter what.

These exports have continued despite heinous internal repression in the Saudi kingdom, state-planned assassinations potentially reaching onto Canadian territory and, the ultimate black eye, a UN human rights expert report explicitly naming and shaming arms exporters, including Canada, Iran and the U.K. for “helping to perpetuate the conflict” in Yemen and the almost incalculable human suffering it has engendered.

Alas, there is much more.

As you have heard, Project Ploughshares has exhaustively documented evidence of Canadian drone technology exported to Turkey being used in conflicts in Libya, Syria and Iraq. The allegations of Turkey transferring this equipment to armed groups in Libya, contrary to a decade-long UN Security Council-imposed mandatory arms embargo, are particularly shocking.

Then there is Nagorno-Karabakh.

We have seen a cynical pattern of Global Affairs suspending new export permits under the glare of media scrutiny, announcing an internal investigation and then lifting the suspension when the media hype dies down, all the while in most cases continuing the actual exports anyway under existing permits.

The Global Affairs report justifying the lifting of the latest Saudi arms permit suspension even argued that despite repeated calls by UN experts for all countries to cease their arms exports, Canadian arms were somehow not implicated. This in turn led to the UN expert group in their next report, the September 2020 one, to explicitly name Canada. Never, as a former ambassador, did I ever imagine seeing the name of Canada in such a report.

I ask the question: What is the point of Global Affairs investigating itself?

There is an obvious conflict of interest, because Global Affairs Canada is pursuing two contradictory policy objectives: enabling sales of weapons to foreign buyers on the one hand, and adhering to international and national obligations designed to protect human rights and international security that require strict limits on those sales on the other. In addition, when the minister announces an investigation by Global Affairs, he or she is really asking officials to determine whether they gave him or her bad advice the first time round. How likely are they to do that?

The new regulatory framework in place that allowed Canada to accede to the Arms Trade Treaty puts hard legal limits on the discretion of the minister to approve exports, but the problem is not these provisions as written. The problem is the law as applied or, more accurately, as not applied.

How can the Government of Canada be compelled to act in accordance with Canadian law? Currently, the only recourse citizens have, aside from the court of public opinion, is to take the Government of Canada to the Federal Court, but such legal proceedings are lengthy and expensive and necessarily after the fact. That is why we need a new independent agency to impartially administer our arms exports in full accordance with Canadian and international law.

The arguments in favour include no conflict of interest on the part of the administrators between trade promotion and respecting human rights UN arms embargoes and other Canadian legal obligations; officials not being asked to review their own past recommendations; and independent, expert legal opinion based on all available evidence, together with other requisite expertise guiding the decisions. Also, a House of Commons committee could be mandated to provide parliamentary oversight, as recommended by Project Ploughshares here today. The ultimate benefit for elected officials is that of taking the domestic politics out of the equation.

In the meantime, there are two immediate steps that Global Affairs can take to improve its current dismal record. One, begin consultations on the creation of an arms-length advisory panel as promised in April 2020 and, two, mandate an independent expert legal opinion on compliance with Canada's international legal obligations as an integral part of the current Global Affairs export permit application process.

Thank you very much.

[The Chair, Liberal, Sven Spengemann]

Thank you, Ms. Mason.

We will now go to our first round of questions. This is a six-minute series.

Mr. Chong, the floor is yours.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Mr. Chair.

I'd like to talk about the authorities under the Export and Import Permits Act. I'd like Ms. Mason and the witnesses from Project Ploughshares to comment on this. My understanding is that a number of years ago these authorities were delegated into Global Affairs, below the ministerial level, and that several years ago, those delegated authorities were revoked and they were put back into the minister's office.

Do you have any information on that, Ms. Mason, Mr. Jaramillo or Mr. Gallagher?

[Peggy Mason]

I was involved in the last update to the export control guidelines in 1986, under the Mulroney government. At that time, unless they were very uncontroversial, the export permits had to go to the minister's office. As far as I'm aware, there has been for quite some time a requirement for the minister to approve the permits.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Is there anybody from Project Ploughshares on this?

[Cesar Jaramillo]

The minister used to have almost full authority to authorize any and all exports to any destination regardless of the human rights record of the recipient.

Recently, as part of Bill C-47, which is the legislation that was getting Canada ready to accede to the Arms Trade Treaty, that changed in a positive way. There is something now called the substantial risk clause, whereby in the risk assessment if Global Affairs Canada determines there is a risk or misuse of a certain export, the minister not only has the option but indeed the obligation to deny such exports. We are now in a much stronger position.

As my colleague, Peggy Mason, from the Rideau Institute said, that is the law. There remains a gap between the law as written and the law as implemented. It is the implementation of the law where we see severe shortcomings.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

To be clear, your understanding is that the authorities are no longer delegated and that they are with the minister.

[Cesar Jaramillo]

That is correct. That is our understanding.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

I have a quick question to follow-up on that.

Do we know what happened with the risk assessment conducted by Global Affairs officials in respect of these arms exports to Turkey? Do we know what the conclusion of that risk assessment was? Was it to recommend that the permits be approved or to recommend they be denied?

[Peggy Mason]

I'll respond first. So far as we are aware, it is still ongoing. We actually haven't heard anything. The last we heard of the investigation was The Globe and Mail report on October 30.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

I'm not referring to the investigation. I'm referring to the original risk assessment that would have been conducted by officials before the minister signed off on the permit.

[Peggy Mason]

Again, that's an excellent question about which we know nothing, because that really is the—

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

We don't either. That's why I'm asking.

[Peggy Mason]

But there's another aspect to this. That is the fact it was against the backdrop of a full embargo by Canada.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

I understand that.

Why did the government, on April 16, I believe, change its suspension of all arms exports to Turkey?

[Peggy Mason]

Officials will have to answer that question because no public information has been given.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

We haven't got it either. That's why I'm asking the question.

In Project Ploughshares' report, I noted that Canadian military exports to Turkey rose from $4 million in 2016 to $152 million last year. I know you don't know exactly the makeup of that, but is it safe to assume the vast majority of that are these optical systems from Wescam industries?

[Kelsey Gallagher]

Yes, that is our understanding. We can judge that by looking at the annual report on military exports tabled annually on May 31. The majority of exports to Turkey are under ECL group 2 category 2-15, which relates to optics, imagery and that sort of thing.