Foreign Affairs Committee on Nov. 29th, 2023

[Dr. Mark Kersten]

Thank you very much for the question.

Indeed, Canada played an absolutely indispensable role in creating the International Criminal Court. The recent deputy prosecutor of the ICC, James Stewart, is also a Canadian.

When I spoke of this idea of creating an international justice ambassador, it's because we have such a great wealth of international lawyers and people who are committed to the prosecution of international crimes.

In response to your question, I think the most appropriate body to currently investigate and prosecute international crimes in the Middle East conflict is the International Criminal Court. However, if Canada does not believe that is possible, that should not be the end of the story. It can't be that just because the ICC can't investigate, then there should be impunity for war crimes and crimes against humanity.

There are potentially other options. In my recommendations, which I'd be happy to share in written or expanded form if they would be useful to the committee, I noted that it could be possible to create an additional tribunal, a hybrid court, which mixes international staff and staff from Palestine and Israel. It would be difficult, but it's worthwhile exploring, to investigate and prosecute additional international crimes.

One thing that is critically important to remember is that the ICC, in the best of circumstances—and it never gets the best of circumstances—can investigate and prosecute maybe five, six or seven people. There are more than that who are responsible for international crimes in this conflict. An additional comprehensive justice and accountability effort would be worth exploring.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

One of your suggested recommendations was that there be a hybrid court for Israel and Palestine. Are you saying that should be the case, given that this is a long-standing conflict that we've just recently seen erupt? Is that the reason for the hybrid court? Are there other reasons?

[Dr. Mark Kersten]

I think it's the number of allegations that have been made.

The ICC is not an especially well-funded court. It gets, I think, the equivalent of an hour of military expenditure from the Iraq war, less than sports teams get on this continent, and it has all of its jurisdiction to deal with and so many different situations.

Again, under the best of circumstances, it might be able to prosecute a handful of individuals, but the litany of war crimes, crimes against humanity and other allegations that we're seeing, I think demand something in addition to just the ICC. Again, a hybrid court would be difficult to create because it would need the buy-in of the Palestinians and the Israelis, but I think it's worthwhile exploring.

Indeed, Canada has done this similarly for Ukraine. Canada understands that in Ukraine, the ICC is not enough. It has supported Ukrainian prosecutions of war crimes in their own domestic system, which is very important. It is also supporting, or is at least engaged in, the creation of an additional tribunal to investigate and prosecute crimes.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Thank you.

Do you think that would further peace and security and the development of a two-state solution?

[Dr. Mark Kersten]

It is my view that a lot of the hostilities, a lot of the acts of terrorism and the international crimes in this conflict are fuelled in part because of an extreme amount of humiliation and shame. We know that humiliation and shame often lead people to various forms of violence.

This may sound romanticized, but I believe that justice and accountability can let some people off of that road to further shame and further humiliation through further levels of violence. It's never been tried in this conflict. I just think that this conflict demands justice, and the victims and survivors do as well.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

I ask you to submit your written statement, as you alluded to in your remarks.

[Dr. Mark Kersten]

I would be happy to.

[The Chair, Liberal, Ali Ehsassi]

Thank you.

We now go to Mr. Bergeron for two and a half minutes, please.

[Stéphane Bergeron, Bloc, Montarville, QC]

It's a shame we're running out of time. It's absolutely fascinating.

Mr. Chapnick, some diplomatic appointments can sometimes seem surprising. We can think of Stéphane Dion, Canada's ambassador to Germany, France and the European Union, or Bob Rae, Canada's ambassador to the United Nations. These are positions that sometimes go unfilled for months, particularly in France and China.

In an article published in December 2022, The Future of Canadian Foreign Policy: Why Diplomacy Must Matter Again, you noted two critical points: partisan appointments and the appointment of deputy ministers who sometimes lack training. What would you expect in terms of potential changes to those appointments?

[Adam Chapnick]

Thank you very much for the question.

On partisan appointments, I understand the purpose of a partisan appointment. There are times in Canadian history when the Government of Canada wants to be represented on an issue that matters by someone with the ear of the prime minister directly.

For example, when Canada was on the UN Security Council in 1989-90, Prime Minister Mulroney thought that it was a very important role, and he wanted to make sure that the Canadian permanent ambassador could speak to him directly and not have to go through a foreign minister or any other bureaucracy. He appointed Yves Fortier, a personal friend.

Mr. Fortier had his cellphone number—and we didn't have a lot of cellphones back then. As a result, when Canada was trying to make a difference on that file, which mattered personally to the prime minister, the prime minister had better access than he would have had otherwise.

I am comfortable with partisan appointments like that. I do not believe that any prime minister could have six, seven, eight or nine files that are that important on the international stage at the same time.

As a result, when the number of partisan appointments starts exceeding two, three or four, all I see is a diplomatic core that becomes disillusioned with the fact that the best diplomatic appointments in the country are not available to them. This undermines morale, and it undermines the idea, which I believe in, that generally speaking, an experienced diplomat is much better able to handle a mission and advance Canada's interest than a partisan appointment is.

I am hopeful that at some point, some government of some stripe will make an active effort to limit its diplomatic appointments to one, two or three. The recent trend is not in that direction, but I will retain my hope.

On the deputy minister file, I do personally believe strongly that managing an element of the public service that has to travel and often lives outside of the country requires a different skill set than managing people who spend their careers in Ottawa. There are issues with your spouse, if you have one, and so on.

[The Chair, Liberal, Ali Ehsassi]

Thank you.

We next go to MP Mathyssen.

You have two and a half minutes.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Thank you.

Certainly, Dr. Kersten, I appreciate those additional recommendations and would like to see them submitted to this committee as well.

On this additional tribunal that you speak of, that hybrid court idea, how would Canada start that process? What would that look like?

[Dr. Mark Kersten]

I think the first thing to do is to start the conversation with allies, including our allies and partners in the Middle East itself. Of course, in my view, the best institution to work with would be the United Nations, to set up a court based on an international treaty that would be mandated to investigate and prosecute these crimes. Importantly, that would be hybrid in the sense that both Palestinian and Israeli judges, perhaps, as well as international judges from abroad would partake, and prosecutors as well.

This is difficult. It has never happened in an interstate conflict, but just because it has not happened before, of course, doesn't mean it's not worth exploring now.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Does Canada currently have a standing to do something like that or would we have to partner up?

[Dr. Mark Kersten]

I think it could work with its allies. I think it would require a multilateral effort. Canada could not set up this kind of tribunal alone, and it would be most legitimate if it had the buy-in of both Israel and the Palestinian Authority in order to create this. Hybrid tribunals are best created when the parties to a conflict themselves accept it.

Again, I think that justice and peace negotiations have not been in the equation in this conflict. Whether it's a hybrid court, the ICC, universal jurisdiction prosecutions or the International Court of Justice, whatever it may be, this is the kind of conflict where justice deserves a chance.

[The Chair, Liberal, Ali Ehsassi]

Next, we go to MP Epp.

You have five minutes.

[Dave Epp, Conservative, Chatham-Kent—Leamington, ON]

Thank you, Mr. Chair.

Thank you to the witnesses for their excellent testimony today.

I'd like to begin with Dr. Chapnick.

We heard about the status of Canada's soft power today. Recently, a number of us had the opportunity to hear one of Canada's leading international voices in response to the question of Canada's status, internationally. This voice chided us and said that Canada should do less preaching and uphold its international commitments if it wants to secure a greater voice internationally.

Dr. Chapnick, would you agree with that statement?

[Dr. Adam Chapnick]

I would agree that we've had a habit over the last 15 to 20 years of using rhetoric as foreign policy. I don't think that is effective, at all.

However, I don't think the reason to cut back on the rhetoric is so that we have more influence. I think the reason you cut back on the rhetoric is that this is not how diplomacy works, and it's not helpful. If we end up with more influence, wonderful, but the point is that it's just bad diplomatic practice for any government to toot its own horn and criticize when it's unwilling to take the same criticism itself. It's just not good practice.

[Dave Epp, Conservative, Chatham-Kent—Leamington, ON]

Dr. Welsh, I have the same question for you.

[Dr. Jennifer Welsh]

I'd largely agree that it is much more important for us to be on the ground making a difference than relying on rhetoric and being concerned about our place in the world. Sometimes I like to say that we've made it too much about us: Are we part of this club? Are we being neglected? Are we getting credit? This is not the behaviour of a grown-up power. I think we need to be much more focused on the results and the pursuit of our interests and values. That's also a matter of having a certain amount of consistency, as Professor Kersten talked about.

I'll say one thing in closing. I find it curious that we continue to talk about the rules-based order and preserving it. That particular rhetoric risks putting Canada on the side of the status quo. There are many countries around the world that feel the rules-based order has, at times, served up injustice, inequity and hierarchy. I think it's much more important to talk about a rules-based order, one that involves some of our current rules and also reforms.

If we spoke more in that open-ended way, inviting discussion about how the system can be improved, I think it would get us much further.

[Dave Epp, Conservative, Chatham-Kent—Leamington, ON]

Thank you.

I'll follow up on that.

Canada's investment in its international footprint is considerably lower than that of many of our allies. We are involved in many multilateral fora. In an ideal world, we would just increase our investment. If there's too much pressure to go that route, would you shrink our presence multilaterally and be more focused, or would you insist on further investment in the various places where our feet can tread?

I'll start with Dr. Welsh and then go to Dr. Chapnick.

[Dr. Jennifer Welsh]

I think we need more investment, as the report indicates. We need more of a multilateral presence at the tables that matter. Of course, choices have to be made about where to engage most heavily. As I intimated, we need to be very alert to the new institutional forums that are starting to pop up and that, frankly, we also see the U.S. being very interested in.

The reality is that some of the traditional multilateral processes are not going to deliver results in a timely way. For example, those of you following the negotiations in Geneva on the so-called pandemic treaty may know it's a very slow process that may not yield a better system of responding to the next pandemic. We might need to look at something much more innovative.

[Dave Epp, Conservative, Chatham-Kent—Leamington, ON]

I'm sorry to cut you off, but let's get Dr. Chapnick's response as well, please.

[Dr. Adam Chapnick]

I recognize there probably won't be more money, so I won't tell you that I would just ask for more money.

My concern is about our ability to pivot. Events take place that are outside of our control. We don't control much about the world order today. As a result, I want to be everywhere. I want to be everywhere with good people, even if it's not as many people as I would like to have. I don't want to trust other states' intelligence when something happens in a place where we didn't expect it to happen.

We can pick winners, but historically, governments haven't been very good at picking winners on just about any issue. I would rather maintain as broad a presence as possible with professionals who are good at assessing situations and feeding back in so we can pivot on a dime.

[The Chair, Liberal, Ali Ehsassi]

Thank you.

For the last round of questions, we go to MP Chatel.

You have five minutes.