Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue 15 - Evidence - Meeting of October 17, 2012
OTTAWA, Wednesday, October 17, 2012
The Standing Senate Committee on Foreign Affairs and International Trade, to which was referred Bill S-10, An Act to implement the Convention on Cluster Munitions, met this day at 4:16 p.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, today the Standing Senate Committee on Foreign Affairs and International Trade is continuing its examination of Bill S-10, An Act to implement the Convention on Cluster Munitions.
In the first session of this meeting, we have before us, by video conference from Virginia, Dr. Ken Rutherford, Director of the Center for International Stabilization and Recovery; and appearing also by video conference from London, Air Commodore Dr. William Boothby, Associate Fellow, Geneva Centre for Security Policy.
Welcome, Dr. Boothby and Dr. Rutherford. We would ask you to be brief in your opening statements in order to allow for as many questions as possible from the senators.
I will turn to Dr. Boothby to begin his presentation.
Air Commodore (Ret'd) Dr. William H. Boothby, Associate Fellow, Geneva Centre for Security Policy, as an individual: Thank you very much. I will take your guidance by covering the areas you want me to cover. Please steer me correctly if at any stage I am going off course.
First, I should introduce myself. I am Air Commodore Bill Boothby, retired. I retired from the Royal Air Force last year, as deputy director of legal services. I took a doctorate in the subject of weapons and the law of armed conflict and published the resulting thesis in 2009.
Where cluster munitions are concerned, I was initially not actually involved in the matter of cluster munitions but as a member of the U.K. delegation that negotiated the Ottawa Treaty on Anti-Personnel Landmines and, subsequently, as a member of the U.K. delegation to the conventional weapons convention negotiations, which resulted in the adoption of a treaty on explosive remnants of war. I ceased with those duties in 2006. I have therefore not been part of the ongoing negotiations before the weapons convention in relation to cluster munitions; neither was I involved in the negotiations giving rise to the treaty that you are discussing, the one adopted in Dublin in 2008.
I will now move on to the question of the actual treaty. The U.K. has ratified the treaty and did so initially by passing a piece of legislation — the Cluster Munitions (Prohibitions) Act 2010.
I imagine that, during the course of the discussions, you will wish me to refer to elements of that legislation, and I will be guided by you as to the directions in which you wish me to go.
I have also been sent, in last couple of days, a copy of the draft legislation that you are considering, which I have certainly read parts of. Feel free to direct me again to the parts that you would wish me to consider.
One thing I would point out in opening is this: As a matter of international law, it seems to me that the treaty, as it applies to any particular state planning to become a party to the treaty, will be a product firstly of the treaty text itself and secondly of any stated position that the state concerned decides to put in when ratifying the treaty.
Important in that respect is Article 19, which makes it clear that a state is not permitted to make reservations. Reservations are statements made at the time of agreeing to be bound by a treaty that have the affect of altering the legal effect of the treaty for the purposes of that state, so Canada would not be able to do that because of the express provision in the treaty concerned. Canada would, of course, be able to make an interpretive statement describing its interpretation of particular provisions.
That may be of some interest to you when it comes to looking at particular aspects of Article 21(4). Article 21, as you are probably aware, is the article that deals with interoperability. Article 21(4) uses the word "itself." We may come down to looking at that level of detail, the language involved in the treaty, and we may be asking ourselves what the significance is of the reference to the word "itself" in Article 21(4). It may be that Canada would wish to consider whether it would wish to make an explicit statement of its interpretation of the impact of that word on the meaning of the provisions in that particular paragraph of the treaty.
At this stage in an opening statement, it is probably inappropriate to go too far down into the weeds — nay, I should say the roots — and therefore I will refrain from going into any greater detail at this point and be guided by you as to what you wish me to deal with in due course. Thank you.
The Chair: Thank you, Dr. Boothby.
Ken Rutherford, Director, Center for International Stabilization and Recovery: Thank you very much for allowing me to present. I was not instructed to have an opening statement, so I will be very brief.
I was part of the negotiations representing the CMC, the Cluster Munition Coalition, on specifically Article 5, which is the victim assistance obligations. I also had experience during the Ottawa negotiations from the ICBL side, the International Campaign to Ban Landmines, also on victim assistance obligations.
In terms of the purposes of the current legislation, I was in Dublin when it was negotiated. By all accounts, there was an understanding about the purpose of the treaty. Even though there are arms control elements within it, there is a humanitarian intent to forever ban the use, stockpiling, production and transport of cluster munitions. Therefore, the convention should be seen in its entirety. Article 21, question of interoperability, should be read with the lens of Article 1, which is really the intent of the treaty. It is to prohibit the use, stockpiling and transport of cluster munitions. Any other interpretation, in my opinion, would lead to a de-stigmatization of the weapon, which is contrary to or contravening the purpose of the convention.
Thank you.
The Chair: Thank you. You have certainly complied with brevity. I will turn to senators for questions.
Senator Hubley: Thank you for your presentations. I would like to pose my question first to Mr. Rutherford.
You mentioned that the Ottawa treaty or the Ottawa accord on the abolition of the land mine set high standards. It seems those high standards were linked to the success of the treaty. Might I have your opinion on whether you feel that the standards set out in the Convention on Cluster Munitions are equally high?
Mr. Rutherford: The Ottawa convention did set a high standard in terms of banning the conventional weapon. I was in Ottawa when that happened, in December of 1997, and also in October 1996 when foreign minister Axworthy launched the Ottawa process. The standards were high. I believe that the Oslo convention, otherwise known as the cluster munition convention, also sets equally high standards, which is why this discussion is important.
A huge element of the Ottawa convention, which lent to its incredible success, was the stigmatization element. It was a clear, unambiguous statement that land mines should be forever banned without exception. Many of the same actors, both from the NGO world and the government or diplomatic corps that were in Ottawa, were also in Dublin when this treaty was negotiated, the cluster munitions treaty, and signed in Oslo in 2008. It was mirroring the success of Ottawa for Oslo.
I am sorry I am being so detailed. I was in both places. Ottawa was land mines, and Oslo was cluster munitions. The guts of your question are exactly right. The cluster munitions convention sets an incredibly high standard for prohibiting these weapons, much in the same way as the Ottawa convention bans anti-personnel land mines.
Senator Hubley: The Canadian ratification legislation, Bill S-10, presents some questions, certainly in my mind, that in fact the integrity of those standards has been maintained. Have you any comment to make on that? I would be referring specifically to clause 11.
Mr. Rutherford: I do not have clause 11 before me. Do you mind reading it?
Senator Hubley: I do not mind. Clause 11(1) begins by saying:
Section 6 does not prohibit a person who is subject to the Code of Service Discipline . . .
It then has a lot of exceptions, including:
(a) directing or authorizing an activity that may involve the use, acquisition, possession, import or export of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state or that may involve moving that munition by those armed forces from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it.
The exceptions would indicate that there are very few circumstances where they would not be disallowed under certain circumstances.
Mr. Rutherford: My interpretation of the convention boils down to Article 1, which includes (a) prohibiting the use of cluster munitions; (b) the stockpiling of cluster munitions; and, most important for this discussion, (c) prohibiting assisting, encouraging or inducing anyone in any activity related to cluster munitions at all. In terms of my interpretation, the purpose is to deter the use, which would include planning for use, agreeing to any rules of engagement that would include cluster munitions, accepting orders to use cluster munitions, determining that there is a military benefit to using cluster munitions, training others in using cluster munitions, and providing stockpiling or transportation assistance for cluster munitions. In that whole discussion, I am referring to non-state parties, because Canada, if it is a state party, should not be active in encouraging the use of cluster munitions.
Senator Hubley: Thank you very much.
Mr. Rutherford: I hope I answered your question.
Senator Hubley: Yes, I think you did. Thank you very much.
I did have a question perhaps for Dr. Boothby. I do not want to overextend my time.
The Chair: I will let you know. You are well within your time.
Senator Hubley: Dr. Boothby, could you tell us about how other NATO members who have ratified the convention have interpreted Article 21 in their legislation, and what the ramifications will be for future NATO missions or combined operations with the United States?
Air Commodore Boothby: You hit on the point, ma'am. That is one of the principal reasons for Article 21 in the first place. My reading of it is that Article 21 was a sine qua non — an essential — for a number of states to be in a position to participate in the resulting text.
I think one has to look at Article 21 very carefully and recognize from the outset its critical status. Its critical status really arises from the combined nature of many military operations that are, in practice, undertaken these days. For instance, in a combined headquarters, the mission planning process is undertaken not by individuals from a single state very often but by individuals from a number of states.
An individual on the battlefield, so to speak, can be calling in fire support, and that individual can be from one nation and the fire support can very easily be coming from another nation. For instance, an individual from one nation can be providing targeting intelligence to another nation in connection with the operation in an alliance or coalition or whatever. You can have logistic support; so you can have, for instance, air-to-air refuelling by personnel from one nation of an aircraft that is from another nation and that may be carrying cluster munitions, for example, and so on and so forth.
With that context in mind, it seems to me that it was critical that the resulting treaty text should reflect those underlying military realities and should enable that coalition working, if you like, to continue effectively in a context in which one state may be a party to this treaty and another state may not.
Have I answered your question? I think I have.
Senator Hubley: Yes, you have and thank you for the answer.
Would you share with us how you have dealt with Article 21? Also, what sorts of activities are you permitted during combined operations with states not party to the convention?
Air Commodore Boothby: I think in headline terms there are certain activities that are not permitted; from recollection, those activities are personal use by the U.K., effectively, or transfer by the U.K. Let me refer you to Schedule 2, I think it is, of the U.K. legislation. It essentially says that there is a defence if, in the course of or for the purposes of international military operations, certain activities are undertaken. The exclusion applies to the activities listed, as I say, in Schedule 2 of the U.K. act. Therefore the specified offences are — bear with me a moment if you please.
It is in section 2(1)(e). The specified offences that are relevant here are having a prohibitive munition in a person's possession, or transferring a prohibited munition or making arrangements under which another person transfers a prohibited munition. In relation to those offences, if a person is charged with that offence — bear with me — where the section 9 defence, as we call it, is raised on a crime relating to use or transfer, the accused has to show that the use or transfer is only by members of a non-party state or by other persons acting under the authority of that state, or that he had reasonable cause to believe that was the basis of the transfer.
Therefore, the person accused has to show that the actual use or transfer is by someone from — in the situation you hypothesized — the United States.
Senator Hubley: Thank you very much.
[Translation]
Senator Fortin-Duplessis: I thank our witnesses for their presentations. My first question is to Mr. Rutherford.
The Convention on Cluster Munitions was adopted in 2008 and took effect in 2010. Could you describe for us the events that led to the adoption of the convention?
[English]
Mr. Rutherford: Thank you for the question. Where to start? When I was working on land mines in the 1990s, we rarely heard the term "cluster munitions." Cluster munitions really became an international legal issue at the CCW negotiations in 2002-03 and all that. It really came to a head when Norway was frustrated with the negotiations in Geneva, and then in mid-2005-06 when the Israelis used cluster munitions in southern Lebanon. Some of those cluster munitions were also in the arsenals of Norway. The malfunction rates were much higher in conflict than they were by what the cluster munitions industry promoted.
Several studies were done of the cluster munition attacks in south Lebanon — and also in Kosovo in 1999, but that was not so big then, only becoming big later. In the studies of south Lebanon, the malfunction rates of cluster munitions were extremely high — upwards of 30 per cent — and a cluster munition does not go off as effectively as a land mine. A piece of unexploded ordnance is sometimes more dangerous than a land mine.
Therefore, Norway decided in 2007 to invite the world to Oslo to discuss ways or paths forward in terms of curtailing and stigmatizing this weapon. Out of that meeting resulted the Oslo process, which was a short time period of negotiations taken around the world based on the Ottawa process that Canada launched in October of 1996 on land mines. The ultimate result was the treaty negotiated in Dublin, Ireland, and then signed several months later in Oslo, Norway, with the object of stigmatizing the weapon.
That is the brief history. It is really light years in international humanitarian law in terms of the negotiations that happened very fast, but that is the brief history. I hope I answered your question.
[Translation]
Senator Fortin-Duplessis: I have another question. Everybody knows that the U.S., China, Russia, Israel, Egypt, India and Pakistan did not take part in the discussions or sign the Convention on Cluster Munitions. What were the main objections raised by those nations concerning the convention, and how much do they use cluster munitions?
[English]
Mr. Rutherford: That is another excellent question. The countries that we just outlined are also absent from the Ottawa convention. A majority of the world has signed the land mine convention out of Ottawa and they have signed the cluster munitions convention out of Oslo. These same countries are the minority of non-signatory parties on both. Every country has its unique reasons for not signing.
Let me just step back for about 15 seconds and share with you that even those countries that did not sign the land mine convention established unilateral domestic legislation restricting the use of land mines in various ways. For example, the United States has banned export of land mines. They banned the production of land mines. They have not used land mines since the early 1990s. They no longer are planning to use land mines in certain operations. There were reasons for the U.S. not to sign that. China has domestic legislation on land mines, and so do Pakistan and India. I wrote a book on that, which was published a couple of years ago.
On cluster munitions, the United States did not engage in the negotiations for various reasons, part of which is that they believe that these negotiations should take place inside the United Nations where there is a consensus voting on it. They did not like how the process developed and they would also like to continue the negotiations on weapons issues within the CCW, the Convention on Conventional Weapons, in Geneva, which is more of a consensus. It is a consensus voting format.
One of the principal objections the U.S. has to this — and they have many — is the negotiating forum. They prefer to use existing international structures and develop international laws regarding weapons.
[Translation]
Senator Fortin-Duplessis: Thank you very much. Do you have anything to add to that, Dr. Boothby?
[English]
Air Commodore Boothby: Not an enormous amount because, as I indicated in my opening statement, I was not involved in the negotiation process that led to Dublin. I do recall some of the objections that the United States had in relation to anti-personnel land mines specifically, as well as the form of the global ban.
I particularly recall that the United States would have much preferred there be what some saw as a loophole and what others saw as an exception in relation to what you might call "smart anti-personnel land mines," which would have had self-destruction and self-deactivation facilities associated with them, such that according to the available technology only one in one thousand anti-personnel land mines that were deployed for use would have remained live and dangerous, as I recall, 120 days after deployment. However, in the tide of opinion that developed in favour of a global ban, I know that that view did not carry broad acceptance.
I am also aware that there were certain issues associated, for instance, with the maintenance of the security of South Korea, which rendered it very difficult for the United States to agree to a ban on anti-personnel land mines.
Other than that, I am afraid I cannot assist you particularly in relation to the later thought processes associated with the Dublin text. Earlier on, in the CCW process, certainly when I was taking part I do endorse what Dr. Rutherford has said. CCW is a consensus-based process for certain states. That gives them a degree of comfort in knowing that their particular concerns perhaps are going to carry greater weight than may be the case in a different environment — a negotiating environment where consensus is not required.
Clearly, as I understand it, the CCW process in relation to cluster munitions continues. It has not actually formally been ended. However, those discussions have been going on now for a considerable period of years, and I do not believe at the moment there is an immediate prospect of a treaty emerging from CCW.
[Translation]
Senator Fortin-Duplessis: I thank you both. And Dr. Boothby, I must tell you that I was unaware South Korea might have pressured the U.S.
[English]
Senator Dallaire: Thank you, gentlemen. First, Dr. Rutherford, if I may, in Article 5, with the overwhelming argument of humanitarian intent that is interpreted as victim assistance obligations, nations that actually use them in their conflict area and then as the conflict has evolved where civilian or non-combatant casualties are due to these weapons, is there an international responsibility that can be applied to the nations that deliver those weapons to compensate victims?
Mr. Rutherford: That is a great question. Article 5 is very detailed. I was in Dublin when this was negotiated. Let me step back and talk about the Ottawa Mine Ban Treaty. The first time victim assistance was negotiated for any weapon under international law was in Ottawa. Article 6, paragraph 3, of the Ottawa convention banning land mines says that all states in the position to do so will help socially and economically reintegrate their land mine victim populations. That was adopted in 1998.
We found that many countries refused to support their land mine victim populations even though they are parties to the Ottawa convention. They said it was an international obligation to help land mine victims in their own countries and that it was not under other sections of the Ottawa treaty. We applied those very hard and difficult lessons learned to the cluster munitions treaty and we created a separate article for cluster munitions victims, which is Article 5. These are domestic responsibilities for host governments to take care of their cluster munition disabled populations. We also have language in Article 6 that is international cooperation to support the victims of cluster munitions.
A third difference is in the preamble of the cluster munitions convention, where we have a very broad definition of what is a victim. It is the victims themselves, it is their families and it is their communities. Under the Ottawa convention we did not have that, so victim assistance was very limited under the land mine ban treaty for the victim himself or herself, and limited in one sentence. In the cluster munitions treaty it is very broad and we are calling for the creation of new mechanisms for cluster munitions victims if none exist, but the mechanism does exist for health infrastructure such as a prosthetics facility to incorporate cluster munitions.
The heart of your question is compensation for cluster munition victims, and there is no compensation for the victims from a party using cluster munitions or who had used these cluster munitions. There are political reasons for that and there are other reasons for that not being included.
Did I answer your question, sir?
Senator Dallaire: You are doing well. Commodore Boothby, let me put a more legal dimension to this.
We create the interoperability exceptions to legally protect potential commanders or staff who might be engaged in an operation where one of the nations has decided or is opting to use cluster munitions and, because they are part of that chain of command, we do not want them to be thrown in jail for having aided and abetted the use thereof, so we put in a significant series of exceptions to protect these people.
However, if we have all these exceptions to protect them and the cluster munitions are used, and if you are looking at Article 5, reinforced by Article 6, if this is implemented in the most positive way, would we not end up also being held accountable for their use and ultimately for their cleanup and compensation since we were part of the decision process and agreed to give exception to our people to be able to be engaged?
Air Commodore Boothby: If one is talking about compensation in the sense of compensation for a breach of international law, then there are two provisions that I am aware of. One is Article 3 of Hague Convention IV of 1907, and the second is Article 91 of additional protocol 1 dated 1977. Both of those imply a legal obligation to compensate for a breach of the law of armed conflict where the circumstances so demand. My interpretation of your question is that you are talking about not so much that legalistic version of compensation as a generalized treaty-based obligation to put matters right under the treaty in accordance with these provisions.
To a degree, it is a self-answering question in the sense that if you have participated in the action that gave rise to the injury, then any provision that says that a participant has an obligation subject to certain caveats, I suspect, to compensate is going to apply in those circumstances. However, my reading certainly of Article 21 is that there is a clear distinction being drawn there between the state that is actually using and the state that finds itself in a command situation or in some other interoperability situation of the sort I outlined earlier and which, as a result, has in some way become involved in the process that ultimately culminated in the use of the munitions.
In those circumstances, you could probably draw a sensible distinction between a state that actually uses, which may then be interpreted as having the obligations under the treaty to compensate, and the state that finds itself in the command structure sort of situation you have described, which may not have that liability attached to it.
I suspect the final answer is going to be very context-dependent. It will depend very much on who exactly did precisely what in what circumstances.
Senator Dallaire: It still leaves the scenario of a force commander who has forces under command and is overall responsible for the rules of engagement, which can in fact include the banning of the use of cluster munitions. If they have a country that is participatory in this force that says, "That may be in your rules of engagement, but we are not abiding by it because we believe we need to use those munitions potentially, or we want to keep that option open," the force commander has two options. He can accept that unit and the possibility that they will use cluster munitions, which he ethically thinks is wrong, or he can refuse that that unit be part of his force. If he has that option of refusing that unit's being part of his force and does not do so, then he should be held accountable. In the context of this convention, he should still be held accountable for the use and ultimately could still be held accountable or should still be held accountable before the law.
Air Commodore Boothby: I am not sure I entirely agree with you, sir. Ultimately it will be the state that uses that would have certainly the primary accountability. It would be a question of close interpretation of precisely what happened on the occasion in question as to whether secondary accountability attaches to the commander that you are describing.
As I see it, the interoperability provisions are there to deal not just with commanders. I appreciate that you have chosen your example by reference to a command situation, but I am thinking, for instance, of a rather more subordinate member of the armed force of a state party to the conflict who finds him or herself in a situation of great difficulty on the battlefield and who calls in air support, and the air support takes the form of cluster munitions delivered by a state non-party to the convention. I cannot imagine that if that junior individual unadvisedly said something over the radio connection in relation to cluster munitions, that it would generally be thought appropriate that national responsibility of the sort you are describing ought necessarily to attach.
I am therefore saying to you that I think that, in the end, it should be a somewhat context-dependent interpretation. Of course, these are all things that could be the subject of national interpretation, on ratification, provided that any such national interpretive statement does not have the effect of altering the legal effect of the treaty provision.
Senator Dallaire: We have junior officers in the field calling in fire and ending up with the cluster munitions. That is one case. We have staff in different headquarters who are working with nations that have cluster munitions and the possibility of their use happening. That is another thing. I am far more interested in the command structure and in commanders who are to be held accountable for decisions that revert to them ultimately, which they can influence and are not doing so by the guise of interoperability. I am arguing that, in my opinion, both ethically and legally, if those commanders did not take action to prevent the use thereof and if the use does happen and if they have been imposed forces that use them, then they could be held accountable for their use ultimately. That is the level that has me far more worried than a captain calling in fire and ending up with cluster munitions either from artillery or air or whatever.
Air Commodore Boothby: They would certainly not be held accountable in terms of a legal breach of the convention on the basis of Article 21 provided that the ultimate choice over the use of the cluster munitions rests with the state not party to the treaty, i.e. the user state.
If the arrangements are such that effective choice of the user state is taken away by virtue of the command arrangements such that the decision of the commander is decisive, then I think you would be absolutely right in the sense that the commander would effectively have breached the treaty provision under Article 1 because you could argue that Article 21 does not apply because the decision has been made by the commander in circumstances such that the Article 21(4) exemption is of no effect in those circumstances, which is why I was saying to you that in the end it will be very circumstance-dependant.
Senator Dallaire: When you have —
The Chair: Only one more question, please. There are other questioners. I can put you on a second round after you put forward your question.
Senator Dallaire: In effect, the area we should be very concerned about is at the command level in regard to their responsibilities and their possibilities of ending up in command positions with these ethical problems. No matter what force — be it a NATO force or wherever we would be in command — the commander still has the prerogative in the end of accepting that command or not in regards to certain provisions, professionally and ethically, like, for example, the belief in the convention of non-use of cluster munitions.
In having forces that have not signed and will use them, he could refuse to use those forces. If it is the case that those forces are not taken away, he could resign. If that option is there, but he does not resign and instead stays, he could be held accountable. Do you not agree?
Air Commodore Boothby: I come back to the basic question in that much depends on what you mean by "accountable." If you mean accountable for a breach of the treaty, I do not believe that is correct, no. If you mean that his decision may bring on his nation certain subsidiary or consequential responsibilities and obligations under the treaty, then, yes, potentially.
Senator Dallaire: Yes, that is why Articles 5 and 6 are there. I would like to go on the second round.
Senator Wallace: Mr. Rutherford, you made a comment that interested me. It relates to the idea that the basic question that we have to be satisfied with is whether Bill S-10 is in conformity with the provisions of the convention. As a state party, Canada would have to conform to the convention.
I thought you were saying that the overriding provision in the convention is Article 1, which is the prohibition. The heading of Article 1 describes it as general obligations. As you know, there are numerous provisions outlined there. The exception in the interoperability clause in Article 21 — in particular section 3 — always has to be read in the context of Article 1; the prohibitions in Article 1 are what govern, and Article 3 has to be read in that context.
That is very important because when we look at Bill S-10, as Senator Hubley pointed out, the exceptions in clause 11 of Bill S-10 really build on the interoperability provisions in the convention.
When I look at the wording of section 3 of Article 21 of the convention, it starts off by saying, "Notwithstanding the provisions of Article 1." Therefore, regardless of the provisions of Article 1, certain activities can take place in a joint military operation with a state that is not party to the convention. In the wording of the section, that would involve activities that are prohibited to a state party, which Canadians would be prohibited from participating in.
When I look at that, is Article 1 really the governing provision? It would seem to me that the wording of the exception in Article 21(3) more or less says that notwithstanding that, in joint military operations there is a different set of rules. Would you agree with that?
Mr. Rutherford: I did not say it was the overriding principle of the convention, but I agree with everything you said. However, I am not sure what your conclusion is or what your question is.
Senator Wallace: The suggestion I had from your comment was that somehow the wording of section 3 of Article 21 of the convention was somehow qualified by Article 1. Alternatively, to me the answer simply is that we can look at the wording of section 3 of Article 21; it says what it says and it carves out, I would say, a very broad exception to the general prohibition. That is my point.
Mr. Rutherford: One reason the land mine ban convention was so successful was there was clear and unambiguous terms in the treaty and the spirit of the treaty. I think the basis for the cluster munitions convention is the same in that the majority of the world has agreed that cluster munitions are an immoral and indiscriminate weapon and that broad exceptions undermine that goal.
Senator Wallace: Yes, however we have exceptions in the convention and we have exceptions that are being proposed in Bill S-10. I would suggest the exceptions in Bill S-10 build on the exceptions in the convention; they are not something new. Again, the issue for me is whether our Bill S-10 exceptions are consistent with the provisions of the convention. From your response, I do not see a fundamental difference.
Mr. Rutherford: To go to the heart of it, I think the exceptions that are outlined in Bill S-10 detract from the purpose of the convention, which is to put to an end for all time the use of cluster munitions, which cause unnecessary suffering and casualties. It is an indiscriminate and immoral weapon, and I think the majority of world has agreed to that.
By carving out exceptions, I think the overall threat to the treaty is that other governments will make unilateral decisions to carve out their own exceptions. Therefore, the spirit of the treaty is really in the heart of Article 1, which is to end for all time the use of cluster munitions.
Senator Wallace: I do not mean to be argumentative on that. I agree with the general intent. I would take not take exception at all with what you are saying, but the issue we are talking about here are the exceptions. Whether, individually, we would agree with it or not, the convention provides for specific exceptions. The issue for us is whether the exceptions in Bill S-10 dovetail and whether they are consistent with that.
You are right: On the general, overall cluster munitions idea and if it is something we should rid the world of, I do not think there is any disagreement on that. However, we have to deal with the words of the convention, so I was interested in your interpretation of it. I think I have that, and I thank you.
I have one final question for Dr. Boothby. I was interested in your comments regarding Article 21(4)(b) and (c), and the reference to the word "itself." The exception in the previous section 3 would not authorize a state party — in this case Canada — to "itself" stockpile cluster munitions and to "itself" use.
What are your thoughts on what that word "itself" means in the context of a joint military operation, where there are very few occasions where any of the participants are unto itself because, by the very nature of a joint operation, it is joint. What does that mean to you in the context of a joint operation?
Air Commodore Boothby: This is where I have to restrain myself enormously in order not to go into some sort of deep international law seminar, which I am sure none of you requires. There are provisions issued by the International Law Commission dealing with notions of state responsibility. They talk about the responsibility of a state being attributed as a result of the actions of, for example, organs of the state, such as members of the armed forces. Under normal circumstances, the activities of members of armed forces are attributable to the state to which those armed forces belong.
I am wondering whether the reference to "itself" in this text, and in particular in this part of this text, is casting a sideways glance at that legal proposition and seeking to draw a distinction between a situation in which responsibility might be attributed under those arrangements and a situation in which the state itself is actually undertaking the activity. I look at that in the context of letter (c) of paragraph (1) of clause 11 of your draft legislation, where you are excluding from liability a situation where an individual:
using, acquiring or possessing a cluster munition, explosive submunition or explosive bomblet, or moving that munition from a foreign state or territory to another foreign state or territory . . . .
In other words, transfers it —
. . . with the intent to transfer ownership of and control over it, while on attachment, exchange or secondment, or serving under similar arrangement, with the armed forces of that state.
Again, I promise I am not going to go down into the weeds of the state responsibility, but the general proposition is that state responsibility applies where the individual is operating under the direction or control of a state. On one interpretation, if a member of the armed forces has been, shall we say, detached to a unit of another state, say he is on exchange to the United States Air Force, that individual is operating under the direction or control of the receiving state — that is the United States and thus its air force. Therefore, because he is not under the direction or control of the United Kingdom or Canada, he would be regarded as incurring state responsibility for his receiving state, that is, the U.S. I wonder whether that is what "itself" is hinting at in the way in which it is used in this clause.
However, as I indicated before, I stress that I was not involved in the negotiations. I can only go by the words that I see on the page. I would remind you that the international law provisions, as they apply to Canada in this convention, will be the product of the words on the page of the convention and any interpretation that Canada chooses to make when ratifying.
Senator Wallace: Thank you. That was helpful.
The Chair: I have a quick question to either of you. It seems to me that we always have this dilemma when we are negotiating internationally that we end up with a compromise. The compromise in the cluster munitions is the fact that we are facing the principle that we do not want cluster munitions used, they are abhorrent and should not be used, but then there is the reality situation that some countries will not sign on and will use them. We are in an interim position using the convention to convince others that they should sign on and be on that side of the issue.
Consequently, I saw the interoperability sections phrased and I am wondering whether the drafters took the time there, because they see it eventually as interim if we can persuade the world community. Therefore I think Article 1 is in place but practicality drove the exceptions, which then leads every state to implement it according to their own national law. There will inevitably be some differences of interpretation because you have to comply with the law.
Am I correct in how this process evolved?
Mr. Rutherford: I think you are absolutely right. I believe Article 21 was put in there on a Thursday. It was a 10-day negotiation in Dublin — 10 business days — and I believe it was on the Wednesday or Thursday of the second week. There is no doubt that the purpose of this convention is to ban the use of cluster munitions. We saw this interoperability question in the land mine ban treaty. The U.S., which is a non-state party to the mine ban convention, and all of its NATO allies that are state parties to the Ottawa convention, worked very well together in many different situations around the world. In addition, the chemical weapons convention has similar language on not supporting the use of chemical weapons. Therefore I do not think anyone would ever command chemical weapons being used.
There is no doubt that almost every country that has signed the cluster munitions convention believes that Article 21 should override Article 1. At this moment the only other country carving out exceptions would be Australia, which has recently passed domestic legislation and has been heavily criticized by the international community.
Air Commodore Boothby: Somewhat whimsically, my first comment would be to quote an eminent British lawyer, who is now a judge on the international court, to the effect that a treaty is an international disagreement reduced into writing.
Underlying that remark is an inner truth, which is very reflective of what Dr. Rutherford has just said, in the sense that individual states come to these treaty negotiations with their own red lines and their own preferred outcomes. After the treaty negotiation process they convince themselves that that is exactly what they succeeded in achieving, in what you correctly describe usually as being compromised text. In the ratification process those states then produce their own legislation, which will reflect their own interpretations and positions. Where this process will lead, in terms of the relationship between Article 1 and Article 21, remains to be seen.
Stuart Casey-Maslen has written a commentary on this convention in which he expresses the view that in due course Article 21 will become moribund because enough states will have become party to the main treaty and therefore Article 1 will take centre stage. I am not so sure. I am not so sure because I have a feeling that there are certain vital states out there that will never become a party to this treaty — certainly not in the foreseeable future.
Senator Dallaire: We did assist nations in signing by finding, or assisting them in finding, alternate systems to use of mines to guarantee the same level of security. As we move this convention forward, has there been any effort by any agency to convince the nations that have these stockpiles of munitions that there might be others just as effective, if not more effective, and certainly less collateral damage-oriented weapons systems than cluster munitions? Has there been any effort, research or whatever?
Mr. Rutherford: I do not know of any. Under any other land mine convention, I do not know if there is an active part to find alternatives to land mines other than what Dr. Boothby just said about the U.S. trying to find or marshalling exceptions to their smart mines.
I do not know if there was a case of Ottawa signatories trying to find alternative weapons for other countries. The U.S. tried to make an exception for its smart mines and failed. I think they failed because they came too late to negotiation. They came to Oslo four months before the Ottawa signing, but in cluster munitions it is a much different issue from land mines. Many countries have land mines and use land mines, but in the case of cluster munitions, the use of cluster munitions is very minimal. For example, in the past year, only two countries have used cluster munitions. More countries have used land mines in the past year than cluster munitions, and I think that has been true over all. I am rambling now but, in answer to your question, I do not think there has.
Air Commodore Boothby: I am not aware of any specific steps in that direction, but then I would not necessarily be aware because I have now retired. I would say as a general proposition that the march of technology in the field of weapons is sometimes very rapid, and I would not be surprised if some effective alternative would be found for the provision of the capability that in the past has been provided by cluster munitions. However, I do not have specific information to offer, I am afraid.
The Chair: Dr. Rutherford and Dr. Boothby, thank you for participating today. You certainly have given us insights into international law in a way that will be very helpful to our committee. You have shed light on some of the issues we are grappling with here on cluster munitions. Thank you for appearing before us today.
Honourable senators, we ran a little late on the first session, so I will ask everyone to be efficient with the time we have. We do have to vacate this room on time as another committee will be coming in. We do not have the luxury, as we sometimes do, of utilizing another 10 or 15 minutes. We have to finish on time. It is no disrespect to our witnesses; it is just what happens in Parliament. It is very difficult to keep on track on the times.
We now have before us Stephen Goose, Director, Arms Division, Human Rights Watch. He is before us by video conference in New York. Here in person is Bonnie Docherty, Senior Researcher, Arms Division, Human Rights Watch, and also Senior Clinical Instructor and Lecturer on Law, Harvard Law School International Human Rights Clinic.
Stephen Goose, Director, Arms Division, Human Rights Watch: I guess you are glad to have a human being before you instead of seeing everyone on television.
In addition to my position with Human Rights Watch, which I have had for almost 20 years now, I am also the chair of the Cluster Munition Coalition and the International Campaign to Ban Landmines, the Nobel Prize Laureate. I was one of the founders of both of these civil society movements. I was deeply involved in the development and negotiation of both the Convention on Cluster Munitions and the Mine Ban Treaty, as well as two other international instruments, the ban on blinding lasers and the protocol dealing with explosive remnants of war. I spend almost all of my time monitoring and promoting the full compliance with and implementation of the cluster convention and the Mine Ban Treaty.
I would like to note that I have had an excellent and very close and cooperative relationship with many Canadian officials for nearly two decades — from Foreign Affairs, National Defence and CIDA, and from the ministerial and ambassadorial level on down.
I regret very much to say that this bill is the antithesis of my experience with the Canadian government, an experience that has been characterized by Canada's bold leadership, creative diplomacy and, above all, its commitment to humanitarian values and its determination to do everything possible to prevent and reduce civilian suffering during and after armed conflict.
Our view is that this legislation is contrary to the Convention on Cluster Munitions and could well undermine the integrity and the long-term success of the convention. This view is shared by many key state parties to the convention, such as Norway, as well as by the International Committee of the Red Cross and UN agencies, as we heard at the recent third meeting of states parties to the convention, where the dangers of this draft bill were the hottest topic of conversation, both in the hallways and in the plenaries.
This convention is simply far too important to be put at risk by seriously flawed domestic implementation legislation. From a humanitarian perspective, in terms of protection of civilians, this convention has very far-reaching potential. It is largely a preventive instrument aimed at ensuring that the huge existing global stocks of cluster munitions — millions of cluster munitions with billions, perhaps, of submunitions — never get used. The purpose is to avoid a global crisis that would far outstrip the land mine crisis of the 1980s and 1990s, the land mine crisis that Canada has played such a leadership role in addressing.
The best way to ensure the success of the Convention on Cluster Munitions is to stigmatize the weapon as we have done successfully with anti-personnel mines. We have had great success with that already, with most of the world signing up; with a country like Syria just in the past couple of weeks and by Libya last year being condemned by the international community, including some of those who are not even part of the convention; and with many of the states who are not part of the convention yet moving toward a ban, including the United States.
Regrettably, the draft legislation works against the stigma and against the comprehensive ban that is dictated by the convention. A straight reading of the legislation indicates that it is aimed at facilitating future use by others, as well as allowing stockpiling on and transit through Canadian territory and even envisioning future use by Canadian Forces seconded on joint military operations with non-signatories.
It may not be Canada's intent to undermine the ban convention. However, with these provisions, the legislation could have that effect. It is understandable that Canada wants to offer legal protections to Canadian armed forces during joint operations with non-signatories, but this legislation goes way too far, and unnecessarily so. Why unnecessarily so? Canada's approach to this issue with the Mine Ban Treaty, which allows participation in joint operations as long as the participation does not amount to active assistance in a prohibited activity, would suffice. You do not need all the additional provisions that show up in clause 11 and other places. Several other nations have adopted this approach for both the Mine Ban Treaty and the Convention on Cluster Munitions, allowing near participation but not adding all these additional loopholes.
We have been told by some Canadian officials that what worked for the Mine Ban Treaty will not work for the Convention on Cluster Munitions simply because they think the U.S. is more likely to use cluster munitions. We think this is flawed reasoning, in part because the U.S. is moving toward a virtual ban on these weapons by the year 2018, but, more to the point, the emphasis must be on preventing and stigmatizing use, not facilitating it. This legislation sends a message that Canada expects the U.S. to use these weapons in the future. We think that, in fact, given the strong stigma that already exists, not only is the U.S. unlikely to use but that Canada is extremely unlikely to take advantage of the loopholes that are contained in this legislation — extremely unlikely to assist or to use itself, given this stigma, which makes all of these provisions really unnecessary.
We have criticized two other states' drafts that are now actual implementation legislation for their approach on joint operations and on Article 21, most notably Australia and to a lesser extent the United Kingdom. However, Canada has earned the dubious distinction of being the worst in terms of implementing legislation. We know that some states parties are concerned not only about the effect of Canada's legislation on the Convention on Cluster Munitions but also the potential negative impact on treaty law as a whole, setting a precedent of a state signing and ratifying an international instrument but adopting national legislation that clearly is at odds with it.
In summary, let me just say that the objectionable provisions of this draft legislation — and not all provisions are objectionable by any means — are contrary to the letter and the spirit of the convention. The objectionable provisions could undermine the effectiveness of the convention as a humanitarian instrument. They are unnecessary and wildly excessive in terms of allowing Canada's continued participation in joint operations with non-signatories and offering legal protections to Canadian Forces during such operations. Also, these provisions will undercut Canada's leadership position in the Convention on Cluster Munitions, in the Mine Ban Treaty and on humanitarian issues and international law, more generally.
We strongly urge that the Senate amend this bill in line with the specific recommendations that are in our written testimony and that my colleague, Ms. Docherty, will summarize for you now. Thank you.
The Chair: Thank you. Ms. Docherty, please.
Bonnie Docherty, Senior Researcher, Arms Division, and Senior Clinical Instructor and Lecturer on Law, Harvard Law School International Human Rights Clinic, Human Rights Watch: Thank you for the opportunity to testify before your committee today on Bill S-10.
Implementation of the Convention on Cluster Munitions has personal resonance for me because I have done extensive field research of the effects on these weapons on civilians. I have interviewed dozens of victims in Afghanistan, Iraq, Israel, Lebanon and Georgia who have been harmed by cluster munitions at the time of attack and afterwards.
One story from Lebanon particularly stands out for me. A 14-year-old boy had been throwing pinecones at his 12- year-old brother, Rami `Ali Hassan Shebli. Rami picked up something to throw back, but it was a submunition. A neighbour yelled at him to put it down. As he reached behind his head to toss the submunition away, it exploded, killing him instantly. We arrived at the scene two hours later and deminers detonated about 15 nearby submunitions during our visit. We also observed two men shoving Rami's final remains into a box. After they left, his finger remained on the ground.
This story and many others underlie my grave concerns about Bill S-10. The bill has some good elements, such as its absolute prohibitions in clause 6. However, it contains major loopholes that would allow Canadians to assist with the use of cluster munitions that could kill other civilians like Rami. Most of the problems with Bill S-10 stem from clause 11. For example, under clause 11, Canadian military commanders may direct or authorize the armed forces of another state to use cluster munitions. They may also "expressly request" the use of cluster munitions by a state not party, if the choice of cluster munitions is not within Canada's exclusive control. Canadians on secondment to states not party may even use cluster munitions themselves.
Each of these activities directly contravenes the object and purpose of the convention: to eliminate cluster munitions and the suffering they cause. Clause 11's loopholes also run counter to the letter of the convention. Article 1 prohibits assistance to anyone with any ban activity, under any circumstances, which should encompass joint military operations. Article 21 should be understood as a clarification that the article allows mere participation in joint military operations instead of as a qualification that creates exceptions during such operations.
An alternative interpretation of Article 21 would make the article internally inconsistent. It cannot logically be read to require Canada to discourage use, as it says under paragraph 2, and at the same time allow Canadians to encourage use as permitted under Bill S-10. At least 35 states, including 11 NATO members, have said that Article 21 does not create exceptions to the absolute ban. Norway explained in a commentary through its legislation that "the exemption for military cooperation does not authorize states parties to engage in activities prohibited by the convention."
We recommend the Senate amend the bill by deleting subparagraphs under section 11 and changing the chapeau to specify that mere participation in joint military operations is allowed. New Zealand and Guatemala have both adopted this approach.
Clause 11 allows for Canadians to contravene the convention's ban on assistance in two other ways. First, it seems to allow Canadian personnel to direct or authorize the stockpiling of cluster munitions by states not party on Canadian territory. At least 28 states, including 10 NATO members, have stated that the convention bans the hosting of foreign stockpiles. To address this problem, we recommend that clause 11 be amended as described above, and encourage the insertion of an explicit prohibition on facilitating foreign stockpiling in clause 6.
Second, clause 11 permits Canadian personnel to assist with the transit of cluster munitions by a state not party through Canadian territory. At least 31 states, including 10 NATO members, have said they believe the convention bans transit. Three states, including Australia, Germany and Switzerland, have explicitly banned transit in their implementation legislation. This shortcoming could be resolved by amending clause 11 as discussed, and explicitly prohibiting transit in clause 6.
In conclusion, we encourage the Senate to add two elements to the bill that would allow it to implement the convention more comprehensively. We recommend the Senate insert explicit rather than an implicit prohibition on investment in cluster munitions. We also call on Canada to implement the convention's positive obligations through legislation supplemented by other administrative measures.
For example, the bill could include requirements that Canadian military personnel discourage use of cluster munitions and notify armed forces to which they are seconded of Canada's obligations under the convention.
Thank you again for the opportunity to testify today. Our written submission provides more details on our position. I would be happy to answer any questions at the appropriate time.
The Chair: Before I go to all the questions, I want a clarification. Mr. Goose, you indicated that some states have spoken out against Canada's legislation. Could you name them?
Mr. Goose: During the plenary at the third meeting of states parties held last month in Oslo, Norway and Austria, as well as the spokesperson for the ICRC and for the UN family, all raised concerns about this legislation.
The Chair: Thank you.
Senator Dallaire: In your mind is there a requirement to go beyond what Ms. Docherty has stated because the legislation, Bill S-10, has such a terrible clause 11? Do we not feel we should be amending it also? We use our military, our diplomats and other agents who are engaged in these conflicts. It is not just the military, but we have diplomats involved, we have development people, we have soldiers and so on, who are all in there at the same time. Should the legislation articulate that it wants its people to specifically encourage those who might want to use these weapons in theatres of operations to not use them and to look for alternative means?
Mr. Goose: Yes, that is among our recommendations. In fact, it is an obligation under this convention to discourage use by non-signatories. This is a unique provision in international law that I am aware of, where you actually have in the treaty itself an obligation to discourage use by others. This is one of the reasons for us to think that Article 21 indeed does not override Article 1, because Article 21 also includes this requirement to discourage use.
In general, we think that Canada's legislation, and the legislation of others to implement this convention, should include these positive obligations to promote universality of the convention, to discourage use and to destroy stockpiles. We think this is important as well.
Ms. Docherty: I would agree, but only add that I think this preventive approach is very important. We need to prevent the situation where Canadians on secondment get in a position where they are in the awkward position where they may be assisting in the use of cluster munitions. There should be notification in advance to allies of their obligations by discouraging the use of cluster munitions, so their allies do not think they can put them in the awkward position of being forced to decide whether to assist with the use of cluster munitions.
Senator Dallaire: That is a good theory. However, if you are seconded as a company commander to the British or the Americans you are held accountable for the lives of those soldiers in accomplishing the mission. If in their doctrine they use cluster munitions and you do not use them, you could be court-martialled and held accountable for those lives and the failure of that mission.
We cannot go down that route of saying, "No, we do not want you to be employed with people who use it." We have to find other means by which we do want to protect them, but try to convince people at a much higher level not to use them. I believe that is what this legislation is not doing.
In clause 11, the bill went into such massive detail to protect the junior people from being thrown in jail should they even be close to cluster munitions. The bill does nothing for this country in trying to engage its military and its diplomats in attempting to stop the possibility of use or looking for alternative weapon systems. Do you agree?
Ms. Docherty: We would certainly agree 100 per cent that there should be some statement in the law that articulates the positive obligations expressed under Article 21(2) to notify your allies to discourage use. I think that is essential at the higher levels to which you refer. Our goal is not to see lower-level military personnel prosecuted for inadvertently assisting with the use of cluster munitions. That is not our concern. Our concern is to prevent any assistance with the use of cluster munitions.
Senator Dallaire: This country believes in ethics and it has values. It keeps telling everyone it has values. However, it is potentially creating a law here to protect people but put them into a scenario where they are in a dilemma where they might be acting legally but ethically they are going against the basis of what this nation wants us to do, which is to ban the use of this system.
Do you feel that in the way this bill is written we are setting up these officers to in fact be facing such a dilemma? Yes, you are protected but you are ethically in terrible error in relation to what this nation really believes we should be doing with this convention.
Mr. Goose: I would say you are absolutely correct that you are putting them into a very difficult ethical and moral position, one that they should not be put into, but I would go beyond that. You are saying what they are doing is legal. Well, it might be legal under Canadian law because of the loophole that has been written in there, but that does not mean it is legal under the convention itself. I would fully expect that if Canadian Forces on secondment used cluster munitions, you have many states parties who would say that Canada has just violated the convention. They may not have violated their domestic law but they have violated the convention and they would institute the proceedings that are called for in terms of compliance with the convention.
Senator Dallaire: We created a law here where it is legal in Canada to respond to what we have established here, but it is sinning against the convention. Could the International Criminal Court hold these individuals accountable and call upon the country to release them to the court to be held accountable before it?
Mr. Goose: Cluster munitions, like land mines, are not explicitly covered under the ICC. If the weapons were used in such a way that they were considered crimes against humanity, then in that particular instance it could go to the ICC, but any use of the weapon is not automatically covered by the ICC.
Senator Dallaire: Operational research has proven, technically and doctrinally, that use of these weapons in built-up areas is a direct violation because you are totally and completely surrounded by civilian targets, including hospitals and other means. Any targeting within an urban area could be identified as being a crime against humanity because of an illegal use of a weapon system. Am I wrong?
Mr. Goose: That is entirely possible, yes, and one Serb official has been charged with that before the ICC.
Senator Dallaire: Good. Thank you very much for that.
[Translation]
Senator Fortin-Duplessis: Mr. Goose, I listened carefully to your presentation, and if I understand correctly, you are opposed to all the provisions in Bill S-10 that would allow for interoperability between our troops and those of a non- party state. Is that right?
[English]
The Chair: The sound was not coming through. Could you start your answer again? Thank you.
Mr. Goose: We do not mind a provision such as we find in — just from what I am seeing, she seems not to be getting translation, but I will go forward. We do not mind a provision that would allow for the mere participation in joint military operations with non-signatories. That has been a common thing under the mine ban treaty. It is already seen in the legislation of several other states parties to the Convention on Cluster Munitions. It is the provisions that we think go far beyond what is permitted in the convention to allow intentional assistance with use, to allow foreign stockpiling, to allow transit and to allow actual use when on secondment. These go far beyond what is allowed by the convention, and that is what we object to. We certainly have no desire to prevent any state party in the convention from operating with its allies even if they have not signed the convention, just as we did not in the 15-year history of the Mine Ban Treaty.
[Translation]
Senator Fortin-Duplessis: Ms. Docherty, as a Human Rights Watch representative, could you tell us which countries are currently using cluster munitions? I have put this question to other witnesses, and they told me that your organization could give me an answer. You mentioned Lebanon as an example, but I imagine it is not the only place where cluster munitions are in use.
[English]
Ms. Docherty: I would be happy to. Most recently, the Syrian government has used cluster munitions. There has been recent reporting by Human Rights Watch just over the last week of increased use of cluster munitions. Gaddafi's forces used them last year, which shows that currently rogue states are the most common ones to use cluster munitions. Over the past decade, the U.S. has used them in Afghanistan. The U.S. and U.K. have used them in Iraq. Israel used them in Lebanon. At the same time, Hezbollah, a non-state armed group, used them in Israel, although to a smaller degree. It shows the danger of proliferation of these munitions. Russia and Georgia, both sides, used them in the conflict over South Ossetia in 2008.
[Translation]
Senator Fortin-Duplessis: Which countries are producing cluster munitions, in your opinion?
[English]
Ms. Docherty: The U.S., Russia and China are probably the three major producers. There are some others, but the most significant producers are those, and Israel as well, sorry. I should mention that.
Senator Wallace: Mr. Goose, you referred to the fact there were other countries that are party to the convention that have been critical of Canada, taking a different viewpoint of the matter than what is addressed in Bill S-10. Is that really all that surprising? I suspect that with all of the countries in the world, some are states to the convention and some are not, but each of those countries would have differing military arrangements and agreements with other countries, would they not? Depending on their own circumstances and the commitments that the countries have made to combined military operations, it may well be that Canada's military commitments to its other allies may be quite different than what Norway is committed to. Because of that, would it not seem reasonable that the way in which the bill would deal with the convention could be different in Canada than in other countries? Could that not well drive the end result?
Mr. Goose: I think the answer is no. First, I question whether Canada's arrangements are all that different than other NATO members'. Other armed forces that work closely with the United States have not found it necessary to carry out these provisions. Ultimately, it gets back to what the purpose of the convention is and the proper way to implement the convention, not about the nature of the relationship. If Canada believed that it was important for it to continue to use cluster munitions, I do not see why it engaged so intensively in the process to ban the weapons and made the commitments it did to a comprehensive prohibition on the weapon.
As well, we have seen from the Mine Ban Treaty experience that Canada can fulfill its role with the United States, carry out its combined force operations, even though one of them has banned a weapon and the other has not. The U.S. and Canada have fought together in quite a few conflicts since the Mine Ban Treaty was negotiated and entered into force over 15 years ago. The lack of an Article 21 or the lack of the kind of loopholes that are in this bill has not at all affected their ability to operate together.
Senator Wallace: I listened to your comment. I do not think there is any question that no one will tout the benefits of cluster munitions. Certainly Canada has committed under the convention to not do that itself. Again, those are words that are in Article 21. Is the issue you raise really not more of an issue of section 3 of Article 21 of the convention itself? It seems to me that, for good reason, you take real exception with the fact that there are exceptions in the convention that provide a different set of circumstances potentially in combined military operation, for all the good reasons you have given us. The fact is that is what the convention says. That is what the convention allows. Is that really not at the heart of your concern, that those exceptions should not be in the convention at all and therefore you would resist any attempt for any country that will interpret those and try and work within those provisions?
Mr. Goose: It is true that during the negotiations and at the end of the negotiations, we criticized Article 21 as the worst part of the convention, and we did so on several grounds. One was that we thought it was politically motivated, not motivated by humanitarian concerns. We thought it was very poorly drafted, and drafted in a rather non- transparent and rapid fashion, without full agreement by all of those who were taking part in the negotiations. What we have focused on since the adoption is for states to make clear their interpretation of this article and what it means, because it does have inconsistencies. It is poorly drafted. We see that nearly all of the states parties who have provided us with their interpretation of the relationship between Article 21 and Article 1 all say that Article 21 in fact does not override the absolute prohibition on assistance.
Canada is an outlier on this. Australia is an outlier on this. There are sometimes different interpretations by states parties of provisions of treaties. That is true. What is so objectionable here is that we are talking about a fundamental issue, and an interpretation of something that is not so fundamental is less disturbing. In this case, for a country that has shown such leadership on humanitarian issues of this nature to be one of the outliers is very disturbing for us, and we think misguided.
Senator Wallace: Yet when you say that, the bill has to be within conformity and within the bounds of the convention.
I thought you were saying that Article 21 does not create an exception; it does not qualify or water down Article 1, which is the prohibition against cluster munitions. Yet, the opening words —
Mr. Goose: That is our belief.
Senator Wallace: Well, the opening words of section 3 of Article 21 are:
Notwithstanding the provisions of Article 1 . . . States Parties . . . may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.
"Notwithstanding the provisions of Article 1." Therefore, notwithstanding what the overall prohibition says, the exception applies. Those are the words.
I guess in drafting the bill, that is what the government has to deal with. I understand the moral ground you take and I would not say I differ with that, but the fact of the matter is that the convention says that, like it or not, and I would suggest that is what the government has to stay in conformity with. I do not see the inconsistency that you point out when I read the words.
Mr. Goose: With all due respect, we think you are misreading that, and we think that is the wrong kind of interpretation. I could ask my colleague, who is the lawyer between the two of us, to elaborate on that. However, that is not the interpretation or the reading that most states parties — with very few exceptions — have adopted.
Ms. Docherty: To add to that, in terms of a little reading of the provision, it says, as you noted, "Notwithstanding the provisions of Article 1," but all it says in the second half is that states parties may engage in military cooperation. We do not dispute that, but it does not say that, in the course of that cooperation, they may go against the prohibitions in Article 1. Our argument is that this is merely a clarification that, notwithstanding Article 1, they may engage in these operations. It does not say they are exceptions.
I would just add one more point. It also says "in accordance with international law" and international law, under the Vienna Convention on the Law of Treaties, as well as customary international law, requires states to follow the object and purpose of the convention. In this case, that is to eliminate cluster munitions and the suffering they cause. It would be against that objective and purpose to read Article 21 as an exception rather than as a clarification. Thank you.
Senator Wallace: I would not get hung up on whether it is an exception or a clarification; the fact of the matter is what the words seem to say, to me, is that a state party may engage in military operations with states that are not a party to the convention, that might engage in activities that would otherwise be prohibited.
Whether it an exception or a clarification, I do not know, but it seems to me to be fairly broad in what it says. Maybe it should not be, but those are the words we have.
Ms. Docherty: Yes, with all due respect, I agree with what the letter of it says. I think it is a question of what you think "may engage" means. In our perspective, "may engage" means "merely participate" but not to go so far as to assist with non-state parties' use of cluster munitions.
Senator Wallace: Thank you. I appreciate that.
The Chair: On a supplementary, you are saying that your interpretation is different than that of Senator Wallace's. I back off and say that, when the government drafted this, following very closely the cluster munitions discussions, we made the outright claim that cluster munitions are horrendous and should not be used. However, practicality came into play. I think we did receive some evidence from some witnesses that a country must balance it. We have the exception or condition in the bill because, on the one hand, we want to save lives from cluster munitions; on the other hand, if we find ourselves in an operation where Canadian soldiers on behalf of Canadians could lose their lives, we want to ensure that if they are doing their duty — they are part of an engagement — that they will not be vulnerable and be put in the position that they are endangered or could not act in an appropriate way for fear of violating this convention.
I saw the struggle of Canada, knowing its operation, going further than other countries in enumerating the list of exceptions in order to be sure that we did not have a broad, general mandate to get engaged with other countries, but that there were some specific things that would be allowed for our armed forces. This is protecting the forces. Perhaps we could have drafted it another way and left it more general, but then we would be catching everyone having to go to the courts, tribunals or military courts to establish the rules.
Therefore, this is an attempt to establish it to give more certainty from a Canadian perspective.
You do not agree that this is a good approach; is that what I am hearing?
Ms. Docherty: No, I would not exactly say that. First, I want to clarify that we completely respect the balance in terms the military side of things. Joint military operations are perfectly acceptable. Our concern is that the humanitarian side must not be forgotten, which is the driving force behind the treaty, looking at the preamble and so forth.
Also, I want to reiterate that we are not trying in any way to put responsibility on the Canadian soldier trying to protect his or her own units. That is not our concern. We believe that clause 11 as written is overly broad to capture that situation. For example, the second two paragraphs of clause 1 refer to any person, not just any Canadian military official or government official. Therefore, that is already creating a blanket exception for prohibition on assistance beyond just the military and government.
Cluster munitions are a poor choice of weapons in situations where, for example, you are pinned down and calling for close air support, because your troops have to move into that vicinity. Cluster munitions leave duds.
There are both practical and legal issues here. Certainly, we do not want to create more risks for Canadian soldiers, either for legal liability or from military operations, but we believe that this clause as written is overly broad to deal with that situation.
The Chair: Thank you.
Senator Hubley: Again, I think we are perhaps at the crux of this whole matter. It will be a debate on what is said and allowed in the bill versus what is Canada's international reputation on advocacy for peace and security. Also, at what point will these exceptions begin to erode the whole intent of the cluster munitions convention? That is also a concern.
Ms. Docherty: I think that the creation of exceptions is dangerous for the future of the Convention on Cluster Munitions because the stigma that it creates is so important. The convention itself is an absolute ban on the use, production, transfer and stockpiling, as well as on assistance with those activities. However, it is also important not just as a legal document but as one that creates stigma such as the kind that is leading the international community to condemn the use of cluster munitions by Syria and Libya in recent years.
Having domestic legislation that undermines that absolute position on cluster munitions, waters down some of that stigma, we think is of great concern.
Senator Hubley: The Minister of Foreign Affairs told this committee that policies will be put in place to ensure that Canadian Forces on exchange or secondment with a state not party to the convention will be prohibited from using cluster munitions. Is this use of policy instead of legislation consistent with the Convention on Cluster Munitions?
Ms. Docherty: Article 9 of the convention requires implementation in terms of legislation, administrative measures and others, so policy is an important part of implementation. However, penal sanctions are also required, which are a legislative measure. Our concern is that there are exceptions to the prohibitions in this bill. I would also note that while we welcome such policy statements as the one you just quoted, the legislation seems to counter those proposed policy measures. If that is going to be the policy, why should that not be instituted in the legislation at this point rather than having legislation and then changing it later through policy?
Senator Johnson: You mentioned a ban by 2018 of cluster munitions by the United States. Can you elaborate on that? They have not done anything in engaging in these talks or signed the convention along with many other major countries. Where is this information found, and what is the progress in that direction?
Mr. Goose: It has been U.S. policy since the Bush administration to ban all but a tiny percentage of the U.S. stockpile of cluster munitions by the year 2018. They are going to ban all cluster munitions that have a failure rate of more than 1 per cent. That means they will be banning 99.999 per cent of existing U.S. stocks by the year 2018. That is their domestic policy. It has been in place under both the Bush and Obama administrations.
The U.S, as well as Russia and China and Israel and India and Pakistan, went through an exercise in recent years to create an alternative law to the Convention on Cluster Munitions under a different framework, called the convention on conventional weapons, which ultimately failed. We thought that was good because the proposed law had so many loopholes in it. However, as part of that exercise of trying to come up with this alternative law, we got on record that all of these states that have not signed the ban convention all agree that this is a weapon that has to have a special regulation and has to have some kind of prohibition on it. The prohibition they were talking about did not go far enough for us, but even those states that have not yet come on board the ban convention are clearly moving in that direction and accepting that this is a weapon of special humanitarian concern that cannot just be treated like any other weapon. The U.S. has an export ban in place for any number of years, and the U.S. has not produced these weapons since 2004, so they are moving in the right direction. We wish they were there already.
Senator Johnson: That is good information to know. What about China, Russia, Israel, Egypt, India and Pakistan? Where are they?
Mr. Goose: They were all part of these discussions on the convention on conventional weapons. They also have acknowledged these are weapons of special concern. They are not ready to ban the weapon. They want to talk about doing it over a very long period of time, 20 years or more. However, they have also acknowledged that there are special dangers that these weapons pose to civilian populations that need to be addressed.
This is where the stigma comes into place. All those countries you just named are also not part of the Mine Ban Treaty, and yet almost all of them are acting in accord with the Mine Ban Treaty — not using, not exporting, and even some of them destroying stockpiles — because the stigma is so strong. The new international norm is being established, and they do not want to get the kind of international condemnation raining down on them that would come from new use or new production.
Senator Johnson: Why are they objecting to moving more quickly? What is the essence of it?
Mr. Goose: They do not want to give up something that their military has had in their arsenals for decades and that their military wants to keep around, at least as an option to use in the future. We think it is highly unlikely these states will be using cluster munitions again because of the new international standard that we are establishing, but in many of these countries it is hard for the political leaders to get the militaries to do the right thing.
Senator Dallaire: You can use the same exercise with nuclear weapons too, and the same stupidity there.
However, in regard to the question of how far we have gone in clause 11 to protect our soldiers, and I raised this with you, of all the nations that were enumerated that use them, the only ones we will consistently work with, and we have got it in both doctrine and policy, are the Americans. We will function with the Americans and in fact rarely will we function without the Americans in any combined operations, so the one we are really worried about is the Americans. Do you not believe that because of that, and because maybe people are going overboard in trying to ensure our American colleagues do not see us as maybe not fully compliant with their concepts of operations, that might in extremis use these weapons, that we have created in clause 11 such a monster that they would be very satisfied with it but in our case would simply create enormous limitations in the application of the spirit of this convention?
Mr. Goose: Yes, I think you have hit the nail on the head. The U.S. undoubtedly is very happy with this draft bill and with clause 11. It is the Canadian Forces that should be unhappy about it because of the difficult position that it puts them in. Our hope is that this is an issue we are not going to have to worry about because the U.S. will be constrained from using these weapons and Canada will be constrained from utilizing the loopholes because of the stigma. The question is, especially if the political realities are that these weapons are unlikely to be used, why create something as objectionable as clause 11?
Senator Dallaire: In pushing it one more step, we know doctrinally and within the concepts of operations that the Americans will not use them, so why do we have to go so overboard and in such depth in creating an atmosphere that is putting at risk a bit the spirit of this convention by trying to be overcautious and in fact creating at-the-goal frameworks that are putting those officers in difficult scenarios? We could have put it in a far less constraining way and still have achieved the aim and in fact include an atmosphere in which we want to work with the Americans, because that is what this is focused on, and ensuring that not only we do not use them and they do not use them but also other people do not use them. Would you not think that would have been a different spirit for this legislation?
Mr. Goose: Yes, that is what it should do, and what you said about there being a different way to do it is the key. Certainly Canada should offer legal protection and still be allowed to engage as deeply as it wants to with the United States, but it does not have to have something as flawed as clause 11 to give it those safeguards and privileges. There are other ways to do it, such as how you did it with the Mine Ban Treaty. You should go back to those ways. It is not too late.
Senator Dallaire: Human Rights produced a good paper. It is my assessment that the JAG bench in National Defence has actually gone berserk in trying to cover every angle and has in fact put this whole legislation and our belief in the convention at risk by trying to cover all these angles, far beyond what is required to meet the requirement of officers and troops in combined operations anywhere in the world. Would you not agree?
The Chair: I am sorry, Senator Dallaire. I am sure you did not mean that anyone in our forces went "berserk." I think you perhaps meant to say "overboard."
Senator Dallaire: Next time I will use my French terms, but "overboard" is an understatement by the JAG bench at this point.
The Chair: Would you like to answer that?
Mr. Goose: Many are surprised and shocked that Canada, which played such a leadership role on land mines and indeed has played a very important leadership role in the first few years of the existence of the convention on cluster munitions, has now put forward draft legislation that seems to be directly at odds with the letter and spirit of the convention, and we hope that that can be remedied.
The Chair: Mr. Goose and Ms. Docherty, thank you for coming and sharing your perspectives and noting that you think that the exceptions are overcautious. You are suggesting a different approach. We appreciate hearing all views here, and we will take them into account in our committee as we study Bill S-10.
Senators, tomorrow I will be filing our reference on Turkey. The steering committee has agreed to the actual wording, which is the spirit of what the committee had asked for, and given time tomorrow I hope that I can conclude on the Brazil report.
With those informational items, the meeting is adjourned.
(The committee adjourned.)