Foreign Affairs Committee on April 27th, 2021

[The Chair, Liberal, Sven Spengemann]

Welcome to the 30th meeting 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 continuing its study on the granting of arms export permits, with a particular focus on permits granted for exports to Turkey.

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

I would like to welcome our witnesses for the first panel. With us this afternoon, we have Michael Byers, professor with the department of political science at the University of British Columbia. Welcome back, Professor Byers. It's good to see you.

We also welcome Christopher Waters, professor with the faculty of law at the University of Windsor; and Peggy Mason, president of the Rideau Institute on International Affairs and former ambassador. It's good to see you, Ms. Mason.

Professor Byers, the floor is yours, for five minutes.

[Dr. Michael Byers, Professor, Department of Political Science, University of British Columbia, As an Individual]

Thank you. It's a great pleasure to be here.

I'd like to begin by applauding Foreign Affairs Minister Marc Garneau's decision to cancel 29 export permits on April 12 of this year. It was a decision that was required under the Arms Trade Treaty. It was the right decision, and good for Minister Garneau for taking that step.

I've been involved in this file since 1992, when I briefly worked in the legal office of what was then External Affairs Canada. Barbara McDougall was the minister, and the Mulroney government was pushing hard for a meaningful arms trade treaty to be negotiated at the United Nations.

A treaty did not come into effect until 2014, but it was in large part as a result of continued Canadian diplomacy and strong multipartisan support. This is not a partisan issue. We've been pushing for a meaningful arms trade treaty for three decades across all governments.

At the same time, as we seek to advance the Arms Trade Treaty, to protect human rights, and to protect international peace and security—

[The Chair, Liberal, Sven Spengemann]

Professor Byers, may I interrupt you for 30 seconds. We can hear you, but interpretation requires a slightly louder sound. If you could raise your microphone closer to your mouth, that will make all the difference.

Please continue.

[Dr. Michael Byers]

I'm sorry. The clerk warned me that this would happen.

We also have a significant arms industry in this country, and arms exports contribute to the Canadian economy, and that is fair enough.

The problem is that some of the main markets for our arms and arms systems are autocratic, or at least not fully democratic countries like Saudi Arabia and Turkey, and so a lot of careful monitoring and tough decision-making are needed to ensure that we fulfill the two goals of promoting the Canadian economy and fulfilling our obligations under international law.

The problem in Canada is that we've given the same department the responsibility of doing those two important tasks—promoting arms exports, and protecting human rights and international peace and security. That department is Global Affairs Canada.

I feel a great deal of sympathy for the civil servants who have to implement those competing goals within that one department. It's an almost impossible task. As a result of that, they end up making decisions that don't fulfill either task fully, and they fail, in particular, as far as my main concern goes in the fulsome application of the Arms Trade Treaty. They fell short in their recommendations for implementing legislation. Thanks to this committee and its colleagues in the Senate the resulting improvements in that draft legislation have brought us closer to full implementation.

In terms of the actual implementation, they also make mistakes. They interpret the implementing legislation very narrowly. For instance, they're telling you that there is not a diversion when we're talking about these Wescam targeting systems for drones, because they regard the camp targeting system as simply a component and not the weapon system itself. That's a very narrow interpretation when, in fact, the targeting system is the eyes of the machine. It is the central component in making these drones operative and effective, but they are trying to tell you that, no, they're not actually the weapon system. They are just a part like a widget on a larger machine.

They are also looking at circumstances in a very narrow temporal and geographic scope. A narrow sliver of northern Syria is the focus of granting an exemption to a suspension of licences when these drones could operate for half a day, and can fly thousands of kilometres. A drone that's on a mission protecting civilians in northern Syria might then be diverted by the operators to fulfill a different mission just 100 kilometres away in northern Iraq. They are looking at narrow geographic and temporal scope; thinking about these drones, and their operations, and these targeting systems in terms of a month, or maybe a year; and not realizing that the operators or the assistants will be operating them for a decade or more.

We have all these kinds of problems that arise. As a result of this, we're missing out on the big picture. We're selling weapons to countries that are engaged in adventurism abroad, maybe engaged in human rights violations, maybe doing so for decades into the future; and we're not thinking about patterns. We're not thinking about whether this is a good idea. We're focused on the narrow here and now because of this competing set of goals that the civil servants face.

I have some ideas as to how we might solve that.

Thank you.

[The Chair, Liberal, Sven Spengemann]

Thank you very much, Professor Byers.

Professor Waters, we will now turn the floor over to you for opening remarks, for five minutes, please.

[Christopher Waters, Professor, Faculty of Law, University of Windsor, As an Individual]

Good afternoon, and thank you for the invitation.

I have worked on and in the South Caucasus, namely Armenia, Azerbaijan and Georgia, since 1998. This includes legal research, law teaching and election monitoring in all three countries. I've also visited Nagorno-Karabakh for my research, albeit some years ago.

International humanitarian law or the law of armed conflict is my main field of study and it is within that regional and legal framework in mind that my comments are framed.

Let me start by welcoming the decision by Minister Garneau earlier this month to cancel the export permits to Turkey that were suspended earlier in the fall. It was the right decision and a decision of integrity. However, contrary to demonstrating how robust our arms export control regime is, the entire episode shows that our controls fall short. My conclusion is that there was no basis for Canada to trust the Turkish regime with Canadian-made weapons in the first instance, and that we need to move towards a more proactive way of assessing our arms exports.

As you know, the ATT and Canada's implementing legislation is the directly applicable legal framework. One of the problems as we learn to apply the framework, however, is that relevant considerations for determining whether a substantial risk exists that Canadian-made weapons could be used to commit serious violations of international law are not spelled out.

Global Affairs Canada has set out a definition of substantial risk, but relevant specific considerations regarding risk assessments are not identified. Nonetheless, there is best practice out there. For example, the International Committee of the Red Cross, even before the ATT, provided a list of proposed indicators states could use in assessing the risk that arms exports might be used in the commission of serious violations of international humanitarian law. In other words, the substantial risk test or the value of mitigating measures need not be so open-ended as is currently the case.

Practical questions to ask as suggested by the Red Cross include whether the recipient maintains strict control over its arms and their further transfer, whether a recipient has committed serious violations of IHL—international humanitarian law—or has taken all feasible measures to prevent violations, and whether the recipient country has in place the legal, judicial and administrative measures necessary for the repression of violations of IHL.

Let's apply some of these suggested criteria to Turkey. For starters, we know from Libya that Turkey has not maintained strict and effective control over its arms. Second, while the drafters of Global Affairs' final report on the review of export permits suggest that "the Turkish military is a professional army that acts in accordance with its international obligations", military coups, attempted coups and purges are regular features of Turkey's modern history. Further, as the Erdogan regime becomes more bellicose at home and abroad, credible reports of IHL violations by Turkish and Turkish-backed fighters have been revealed in recent years, including in Syria in the fall of 2019.

Now perhaps all of this would lead us to a proceed-with-caution type of approach rather than a red flag if there were democratic oversight of the Turkish military domestically. After all, every country has challenges when it comes to military oversight. Nonetheless, Turkey is in the hands of an authoritarian government with little respect for human rights. The judicial harassment of civil society actors is well known and the judiciary itself has been compromised through purges. There is no true domestic oversight of the Turkish military or executive.

Let me turn back now squarely to the Nagorno-Karabakh conflict. The conflict was never frozen. It was a simmering one that frequently boiled over, and, in most years, left scores of casualties. It was also a conflict with long-standing Turkish support for Azerbaijan. The Turkish state has proven itself intransigent in terms of any real desire to repair the relationship with Armenia, and meanwhile, the relationship with Azerbaijan has only been strengthened in recent years for cultural and strategic reasons. Turkey trains officers of the Azeri armed forces; it supplies weapons to Azerbaijan and it holds military joint exercises with Azerbaijan.

If the arms sales to Turkey, and Saudi Arabia as well, reveal weaknesses in our control mechanisms, how can we do better? It's clear from previous testimony before this committee that Global Affairs engages in consultation with industry partners. What about consultation with human rights or other civil society groups? Why is it up to journalists, NGOs and diaspora communities to bring violations of end-user agreements to Canada's attention?

In the case of the South Caucasus, part of the problem is that we have no real presence on the ground, no embassies and, frankly, little diplomatic capital. But the absence of local intelligence should make us even more vigilant in assessing regional partnerships and the likelihood of armed sales or transfers.

Other witnesses appearing before the committee have noted that there are competing interests. Some have labelled it a “conflict of interest” between promoting Canadian-made defence products and abiding by our global commitments.

One thing is clear: The current system can lead to diplomatic setbacks when permits are suspended or cancelled. And hurt feelings in significant diaspora communities, in this case the Armenian diaspora community, surely are not good for Canadian business or good for our multicultural polity.

Possible solutions include routinized parliamentary scrutiny, independent oversight or expert opinions and, at the very least, structured consultations with civil society groups and more concrete criteria to apply the substantial risk test.

Thank you.

[The Chair, Liberal, Sven Spengemann]

Professor Waters, thank you very much.

We'll now turn the floor over to Ambassador Mason.

You will have five minutes for opening remarks. Please go ahead.

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

Thank you very much.

Let me first express my deep dismay and solidarity with the people of India as they struggle with this terrible pandemic.

Let me next associate myself with the remarks of the two previous speakers.

Today I want to briefly look at how Canada assesses substantial risk, looking first at Saudi Arabia and then at Turkey.

Many allies have now suspended or banned their arms exports to Saudi Arabia because of their potential use in the devastating Yemen conflict, with the Biden administration being the latest example. Going by Canada's now infamous April 2020 report ending the ban on new export permits for LAVs to Saudi Arabia just when the existing permits were running out, Canada would no doubt respond, if they had publicly responded, which they did not, that the U.S. case is different because they were providing weapons being used in Saudi air strikes that are implicated in so many human rights abuses, up to and including war crimes, while conveniently ignoring all the evidence of grave human rights abuses against innocent civilians involving ground forces, including Saudi-led forces.

How does Canada explain the 2019 Belgian government ban on the export to Canada of gun turrets, extended in February 2020, because they were destined for incorporation into Canadian armoured vehicles, or LAVs, headed for Saudi Arabia? Clearly, Belgium does not subscribe to Canada's cynical analysis of substantial risk. Canada is trying to ignore the meaning of a substantial risk of facilitating serious human rights violations, pretending that there must be direct evidence of the use of a Canadian export to commit an atrocity rather than direct evidence of a substantial risk that Canadian exports will be used to commit or to facilitate such atrocities.

To help export control agencies in their national assessments—the second professor today referred to this as well—there is a growing body of international best practices being developed. He mentioned the ICRC. I would refer to very recent collaborative work by Harvard Law School, in which Global Affairs officials were consulted. They specifically reference in their report the use of armoured vehicles to transport women and girls to places of sexual violence and abuse.

They go on to say the following:

“Facilitate” is a broader concept than commission. To facilitate [gender-based violence] means to make an act of [gender-based violence] easier to commit or occur. Facilitation can encompass a wide range of acts, in some cases several steps removed from the harm itself.

Canada's fundamental misunderstanding of what is required for a proper assessment of substantial risk in relation to human rights violations is glaringly indicated in this response given by Assistant Deputy Minister Bruce Christie on April 13 before this committee regarding the Wescam exports to Turkey:

However, when we assessed the permit applications and whether they had contributed [to human rights violations], we didn't look at whether human rights violations had been impacted in the region. We looked at whether the Canadian technology contributed to any human rights violations, or any violations of international humanitarian law. In the Export and Import Permits Act and the Arms Trade Treaty criteria that are now enshrined in the act, we do not have the legal right to look into human rights violations writ large. We look at whether human rights violations were caused as a result of the Canadian export of military technologies.

That is completely wrong. It is necessary, in assessing risk, to look at the overall situation of human rights violations. Without doing this, it is impossible to assess the risk of potential Canadian violations. All Canada is doing is assessing evidence of direct past use with Canadian equipment, and this is not the proper test. It's like trying to determine if Canadian exports will be destabilizing in a vacuum without looking at the overall conflict situation. What stronger evidence could there be of the need for a completely different approach?

In summation, I refer members of the committee back to my first appearance before you on this study. I concluded my presentation with a call for an independent expert agency to impartially administer our arms exports in full accordance with Canadian and international law. In the meantime, immediately and finally begin consultations on the creation of an arm's-length advisory panel of experts promised in April 2020 and 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 very much.

I'd like to thank all three of our witnesses for their opening statements. I'll just give a quick reminder as we go into the discussion that for those of you who are using in-line microphones, keep them as close to your mouth as possible. We're doing quite well on sound quality this afternoon. There are no major concerns if we just keep doing what we have been.

We will now go to our first round of questions. They consist of six-minute segments. The first one goes to Mr. Chong.

Please go ahead.

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

Thank you, Mr. Chair.

My first set of questions is for Professor Waters.

I'd like to ask him about what we knew in September last year about the conflict in the Caucasus. There was a briefing note to the Minister of Foreign Affairs in mid-September in preparation for his meeting with his Turkish counterpart.

What was interesting to me was that in the briefing note there was mention of Turkey's actions in the eastern Mediterranean. There was mention of Turkey's role in the region with Syria and other actions that Turkey had conducted, but there was no mention of the previous summer's conflict in the Caucasus.

Personally, I found that surprising, so I wanted to ask you if there were any signs that previous summer that Azerbaijan would seek to recapture territory in Nagorno-Karabakh in 2020 and that Turkey would provide material support to that.

[Christopher Waters]

Mr. Chair, thank you for the question.

Let me give one really concrete indicator. Arms sales from Turkey to Azerbaijan increased sixfold the year prior to the conflict. There were certainly movements on the ground in terms of troop build-up. There were increased joint exercises with Turkey in the lead-up to the conflict. Like other observers of the south Caucasus situation, there have been so many flare-ups of that conflict over time that I think it was difficult to say that this was going to be the one where Azerbaijan would make its major offensive.

I think that actually goes to my larger point, which is that this has been a tinderbox for some time. As you'll recall, Turkey cut off the border with Armenia in 1993 and there has been little substantive change to that since. Aside from a brief attempt at rapprochement in Armenian-Turkish relations in the first decade of this century, Turkey has been arming Azerbaijan and participating in joint exercises in Azerbaijan.

To some extent, I think the bigger question is.... This was going on for a couple of decades now and it really wasn't about one military offensive, but a pattern of aggression back and forth, frankly, along the line of demarcation.

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

There were reports of drones being used during the summer clashes along the border between Armenia and Azerbaijan. Was that fairly widely known as well?

[Christopher Waters]

I'm not in the position to comment authoritatively on that, to be honest with you.

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

My other question concerns something you referenced in your opening remarks. The Canadian embassy in Moscow is responsible for Armenia; the Canadian embassy in Turkey is responsible for Azerbaijan. The documents that we received from Global Affairs indicated that there were challenges that Global Affairs had in getting information on the ground.

Do you think we should have a locally established mission in those two countries?

[Christopher Waters]

One hundred per cent, Mr. Chair.

I recall being at a state dinner for a visiting Canadian dignitary. This is going back to the late nineties. I think it was for a Speaker of the Senate. The deputy prime minister of Jordan stood up at the banquet, and his initial remark was, “Where's Canada?”

It's sad to say that this many years later it's still the case that there's no real diplomatic presence on the ground. Even if it's expensive or cumbersome to put in three new embassies all at once, at the very least we should have a real diplomatic representation in Tbilisi, the capital of Georgia, which is, if you like, somewhat neutral ground for the South Caucasus. We're essentially absent from the South Caucasus despite the strategic importance of the area, despite the large Armenian diaspora within Canada and despite real opportunities.

Just to give an example, it's an untapped market for universities in terms of recruiting from that area. I know that this is taking us far beyond the discussion today, but it's a really important region. We don't understand it here in Canada, and we've never made any real attempt to come to grips with it. In that context, when assessing substantial risk, as Ms. Mason referred to, we're somewhat blind in this regard. In the absence of real intelligence, I think we should be taking a really precautionary approach.

Thank you.

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

Those are all my questions for this round. Thank you.

[The Chair, Liberal, Sven Spengemann]

Thanks very much, Mr. Chong.

We will now go to Dr. Fry, please, for six minutes.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you, Chair, and thanks to everyone for excellent and very thought-provoking presentations.

I think we've heard from Ms. Mason about the conflict of interest. We've heard from Michael Byers about the conflict of interest, and we've heard from Mr. Waters about the conflict of interest. I think this is complex, and conflict of interest is inherent in almost everything. I wondered if you could give me some answers.

There's one question that I'd like Mr. Byers to eventually answer if he can, because I'm trying to keep my questions as short as possible so you can get an opportunity to answer. What are your suggestions for dealing with the conflict that you mentioned in your presentation?

I also wanted to ask Mr. Waters and Ms. Mason a question about conflict. We think that Turkey is an essential ally when it comes to fighting Daesh and when it comes to dealing with all of these issues, so there's that piece: Turkey is a good ally and Turkey is working with us to defeat Daesh. When we see that Turkey goes after Syria in terms of its leader, Assad, we are all happy for this, and then Turkey goes ahead and does something that we don't necessarily agree with as consistent with our values.

The big question is, how do we resolve that essential conflict? That is a big part of the conflict. Turkey is the good guy here but a bad guy there and whatever, and it is a conflict that has to be reconciled. How do we do that?

I wanted to comment on the Nagorno-Karabakh issue. I'm the Canadian head of delegation for the OSCEPA, and I can tell you that we—all of us on the OSCE Parliamentary Assembly—kind of [Technical difficulty—Editor] every meeting, it would be Armenia saying “blah” to Azerbaijan and Armenia saying “blah” to Azerbaijan. Everyone saw this as an ongoing animosity, anger and a banging of shoes on the table, etc., so no one was prepared in terms of what is called a “frozen conflict”—which really isn't a frozen conflict—for this flare-up to occur when it occurred in the summer.

I think therein lies that conundrum: How do you pay attention to some people who continue to shout at each other and threaten each other while nothing happens and then suddenly something happens?

How do you resolve these inherent conflicts in how this plays out in the region?

Mr. Byers, if you don't mind, can you tell me your recommendations for the economic versus values conflict?

[Dr. Michael Byers]

Thank you, Dr. Fry. It's very good to see you again.

[Hedy Fry, Liberal, Vancouver Centre, BC]

It's nice to see you, Michael.

[Dr. Michael Byers]

I have a couple of recommendations. One is that the Minister of Foreign Affairs has to clearly instruct his civil service that Canada's obligations under international law have to be kept foremost. They must be given a robust interpretation, consistent with 30 years of Canadian foreign policy in pursuit of a meaningful arms trade treaty, so ministerial instruction that the Arms Trade Treaty comes first.

I would also strongly endorse Ambassador Mason's recommendation that an independent agency be built to remove this conflict of interest from these civil servants who try very hard and are not successful in balancing these goals.

I think it's really important that we develop expertise, not only in the Caucasus, but also in these new weapon systems and the considerable impact and difficulties they will raise in the years and decades ahead. These Wescam targeting systems are among the very best in the world. They are the only ones that are not made in the United States or Israel that a country like Turkey has access to. They are really, really good, and they are the heart of these drone systems.

These drone systems are proliferating. We've seen them in Nagorno-Karabakh, in Libya, in Yemen. Wescam sells these targeting systems to Saudi Arabia, so it's possible that they are being used in Yemen.

We have a proliferation issue here, and Canada is at the heart of it, because these extraordinary systems are being built in Ontario.

The foreign ministry has to get on top of this and has to have experts in weapons systems in the region. It has to have people on the ground. We have to do this properly, because otherwise, we will be contributing to suffering and destabilization.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you, Michael.

Chair, do I have a little bit of time to hear from Mr. Waters and Ms. Mason on the conflicts?

[The Chair, Liberal, Sven Spengemann]

You have a minute left, Dr. Fry.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Well, I don't have a minute. I will shut up.

I think Mr. Waters and Ms. Mason can share that minute, if they can quickly cut to the chase.

[Christopher Waters]

Go ahead, Ambassador.