Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue 16 - Evidence - Meeting of October 25, 2012
OTTAWA, Thursday, October 25, 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 10:30 a.m. to give consideration to the bill.
Senator Percy E. Downe (Deputy Chair) in the chair
[English]
The Deputy Chair: Honourable senators, I would like to call this meeting of the Standing Senate Committee on Foreign Affairs and International Trade to order, as we continue our examination of Bill S-10, An Act to implement the Convention on Cluster Munitions.
I am the deputy chair of the committee. Our chair, Senator Andreychuk, is not here. She has been asked by Prime Minister Harper to head up the Canadian delegation on the Ukrainian election. She will return next week. It is a tremendous honour for Senator Andreychuk to be asked to do that, and we very much appreciate the effort she is making in the Ukraine this week.
We have two witnesses today who have opening remarks. I will ask them to briefly introduce themselves and who they are representing, and I understand the remarks are five minutes, roughly, each.
Allan Poston, United Nations Chief Technical Advisor, Mine Action, as an individual: My name is Allan Poston. I am the Chief Technical Advisor for United Nations Development Programme in Sri Lanka. Previous to that I was the Chief Technical Advisor for UNDP in Lebanon.
I actually have not prepared any opening notes. I believed that I was just asked to answer some questions. I have no opening comment this morning.
The Deputy Chair: This is fine. We will have many questions for you in a few minutes. I will call on the second witness, whom I understand has opening remarks.
Virgil Wiebe, Director of Clinical Legal Education, Professor of Law, University of St. Thomas School of Law, as an individual: Good morning, Mr. Chair. Thank you very much for the opportunity to appear before you. I would preface my comments by saying that as I was preparing last evening I was sad to receive news that Mr. Mohammed Ibrahim, an ordnance clearance supervisor of the Norwegian People's Aid in Lebanon, was killed by a cluster munition last Friday during clearance operations there. It is a sobering reminder of the issues we are facing today and that you are grappling with as you seek to implement the Convention on Cluster Munitions.
I also have to say I am appearing in large part at the behest of Dr. Jeff King, a lecturer at the University College in London. Dr. King is unavailable as he is in China. Professor King and other Canadian scholars prepared an open letter that was shared with the committee and the government last week. I was privileged to be the sole American asked to contribute to and sign the letter, and in some sense I was attached to the Canadian academic contingent and proud to serve my country in that way. I will do my best to represent the spirit and letter of that submission, but hasten to add that I am appearing in my personal capacity especially as much as we venture beyond the scope of that open letter.
I have a bit of information about myself. I am Professor of Law here at the University of St. Thomas in Minneapolis, Minnesota, where I have taught and practised law for the past 10 years. Here I am also the Co-Director of the Inter-professional Centre for Counselling in Legal Services and the Chair of the Department of Clinical Education. In addition to directing our immigration and refugee clinic, I teach immigration law. I have also taught courses on refugees and genocide and war and peace in ages of terror.
Since 1995 I have served as an international law consultant for the Mennonite Central Committee on issues directly related to cluster munitions. I have attended more meetings of the Certain Conventional Weapons treaty than I care to remember, and I have also followed the Ottawa treaty negotiations sessions when they were going on in the 1990s.
In 1995, at the behest of the Mennonite Central Committee, I commissioned a law firm in New York to draft a protocol banning the use of cluster munitions, almost two decades ago.
Since 1999 I have served on the board of Mines Advisory Group America, of which I am currently the treasurer. Along with our MAG U.K. partner, MAG America works to save lives from land mines, unexploded ordnance and other weapons that remain at the conflict.
In 2007 as part of a Mines Advisory Group delegation, I visited Lebanese towns and farms polluted with unexploded cluster munitions from the 2006 conflict and also saw sites from which Hezbollah fired cluster munition rockets into Israel.
As part of the Mennonite Central Committee, I helped found the Cluster Munition Coalition nearly a decade ago. I followed the process of the Oslo treaty closely. I attended the preparation conference in Vienna in 2007 and the final negotiating session in Dublin in 2008. Later, in 2008, while on sabbatical I served as a fellow at the United Nations Institute for Disarmament Research and co-authored or authored numerous articles and reports on the legality of cluster munitions both prior to and subsequent to the signing of the Convention on Cluster Munitions.
In 2009 and 2010 I joined a team of scholars and diplomats under the direction of Gro Nystuen and Stuart Maslen to write a commentary on the Convention on Cluster Munitions published by Oxford University Press.
In my comments today I do not address all the concerns I have with the proposed legislation. I have reviewed most of the comments made over the past several weeks and add my voice to those made by the International Committee for the Red Cross, Human Rights Watch and Cluster Munition Coalition and others who have raised serious concerns about, in particular, clause 11. I do wish to clarify a few points made earlier in the discussions and in the open letter both from a legal point of view and a policy standpoint.
The first point I would like to make is that a reminder that Article 21.3 of the convention permits engagement in military and cooperation by states parties only in accordance with international law — just a reminder on that point. In the open letter we concluded that Article 21.3 clarifies the general obligations laid down in Article 1. We should be reminded that regardless of whether one reads the notwithstanding language of Article 21.3 as creating clarifications or exceptions, it permits only military engagement and military cooperation in accordance with international law.
As our commentary points out, Article 21 cannot be interpreted as derogating from any other obligation under international law including relevant provisions that are international humanitarian or human rights law.
It should be noted that there exists a very real possibility of the use of cluster munitions becoming prohibited under customary and international law. Case law has been developing, both in the area of state responsibility and in the area of individual criminal responsibility, in that respect. In 2004, the Eritrea-Ethiopia Claims Commission held Eritrea liable for civilians killed in cluster munitions strikes on Ethiopia in 1998. Also, in 2007, the International Criminal Tribunal for the former Yugoslavia held the former president of the now defunct Republic of Serbian Krajina criminally liable for deaths and injuries resulting from cluster munitions rocket attacks on Zagreb in 1995.
The second point is that clause 11 of the bill, in proposing to allow such broad exceptions to Article 1, really positions Canadian personnel to downplay their national character to the detriment of Canada and hosting states and coalitions or international bodies. As I understand the term "attachment " in Canadian military terminology, it is out- of-Canada placement "where duty or training is of advantage primarily to Canadian Forces. " The Foreign Affairs Minister, in his comments on October 4, eloquently shared the benefits that accrue to Canadian commanders when attached as deputy commanders to U.S. units. The term "secondment " in Canadian military terminology, as I understand it, is "where the duty or training is not of advantage primarily to Canadian Forces. " Presumably, it is to benefit the host.
Clause 11 of the proposed legislation is what I think of as the "I'm just not feeling myself today " clause. The clause would allow for Canadian personnel, in some situations, to call in cluster munitions strikes while commanding other forces or to request cluster munitions in defensive situations where the ultimate control of the choice of weapon is not their own.
As a middle-size power, Canada has been a leader in moving the world's governments and militaries away from the use of indiscriminate weapons like land mines and cluster munitions. Canadians have also been at the forefront of developing principles in the areas of humanitarian intervention and the responsibility to protect. While I have reservations about humanitarian intervention, it would be painfully ironic if Canadians were involved in the use of cluster munitions in humanitarian military action.
As a refugee protection lawyer and someone interested in the issue of cluster munitions, I recall representing a Kosovar Albanian who had fled Serbia. He said to me that he was heartened when he saw NATO jets flying over the forest in which he and others were hiding.
However, I also heard a story from someone who has become a friend over the years. He is a Serbian police officer who was charged with clearing NATO-dropped cluster munitions and ended up losing his arms in the process. That irony is personally illustrated by those two individuals I met in the past.
The art of the possible as opposed to the art of perfection has been mentioned in these discussions. I have to say that Canada, by moving these issues forward, is really the Picasso of the art of the possible. I would hope that, rather than checking Canadian values at the border, Canada and its personnel continue to lead.
Speaking as an American, we on this side of the border need your wisdom and values and the push of those obligations in Article 21.2 to universalize the treaty.
The third point I wish to make is a reiteration of a point made in an open letter that paragraph 11(1)(b) of the bill, in light of the history of the convention and its object and purpose, violates the convention. It raises serious concerns about a breach of responsibilities under the convention because it proposes to read the language of Article 21.4(d) as allowing Canadian forces to expressly request the use of cluster munitions so long as the choice of munitions is not within the exclusive control of Canadian Forces. Our commentary rejected such a reading. The reason is that the drafters likely had in mind situations where a state party, perhaps through a force commander or a multinational force, does have exclusive control over the choice of weapons. This reading is supported by Ireland's implementing legislation. By expressly stating that the use of cluster munitions in that situation is off limits, the convention language is not implicitly authorizing the opposite situation — that a state party could just put in an order for the use of cluster munitions so long as it did not have exclusive control of those weapons. I believe that such a position is directly contrary to the object and purpose of the treaty overall.
The commentary indicates that what the drafters of the provision almost certainly had in mind were situations of joint military operations where the forces of a state party may have been requesting support, for example in the form of artillery or aerial bombardment of units belonging to the state non-party in order to secure the objective of a mission or defend their perimeters. Senators across the spectrum have noted the concern for front-line Canadian troops requesting protective support from states parties. That does not, however, support the notion that those troops requesting that support should be able to then say, "We would like cluster munitions " and then not face individual responsibility for that.
A final point is that, in my limited understanding — I have to stress my limited understanding — of both the Canadian Criminal Code and the Code of Service Discipline, it states that in order for a service person to be held criminally liable, they have to have the necessary intent and knowledge requirements. They have to have the requisite purpose to violate the law. It could be inadvertent or accidental that you request support and the people providing support use cluster munitions. To expressly request them would be something very different.
I would like to conclude by thanking you again for allowing me to share my thoughts on the implementation of the convention, and I will do my best to answer any questions you might have.
The Deputy Chair: Thank you very much, Mr. Wiebe, for that presentation. I have a list of senators who have questions. Could senators identify which witness they are addressing the question to? If it is to both, state that as well.
Senator Hubley: Welcome to you both. I will direct my first question to Mr. Poston, if I may. Although you did not have a presentation, I am wondering if you could tell us about your field of experience as it relates to cluster munitions. I would follow that by asking: What impact are cluster munitions having on civilians?
Mr. Poston: I will go back a little further in my history. I was an engineer officer in the Canadian Forces for 20 years. After my retirement, I joined UNDP and moved to Lebanon in January of 2005.
In the summer of 2006, there was the conflict in Lebanon with Israel. At the end of that conflict, of course, Lebanon was littered with hundreds of thousands of unexploded submunitions. One of the things that Lebanon was lucky to have was a pre-existing problem with both cluster munitions and mines. The reason I say they were lucky to have that is because the government, with support from the UN, had structures in place at that time to try to mitigate the impact of these cluster munitions. These measures included a National Mine Action Authority to organize and coordinate the clearances. They had a national policy, they had national standards, and they actually had the management body to support the clearances.
I think the biggest impact that cluster munitions have is the fact that they really deny access to vast areas of land that people need for their livelihoods. To me, although an unexploded cluster munition, which is a defective piece of ordnance, acts a lot like an anti-personnel mine, the biggest concern for everybody is that these cluster munition areas are unmarked.
In addition, nobody really knows the extent of the field of all the unexploded cluster submunitions. When the clearance teams go out to clear, they have to keep clearing to a certain point where the national authority says, "That is enough; the government will now take the risk, but there are no more cluster munitions in this area. " The biggest impact is the fact that people are denied the use of their land for their livelihoods, for years.
Senator Hubley: Would you suggest that cluster munitions are on the increase? Is the usage of cluster munitions increasing or decreasing?
Mr. Poston: I do not really have an answer to that question. I think the Landmine and Cluster Munition Monitor report has that type of information about the usage that has gone on in the past couple of years. I do not have that information.
Senator Hubley: In terms of the success of the Ottawa accord on land mines, we have had witnesses who suggest the fact that there is an accord and a convention creates a stigma that suggests that countries will not use it, so that there is sort of a positive effect just from having a convention in place that bans the use of cluster munitions. Do you feel that that stigma is real?
Mr. Poston: I do indeed. I believe that in the Landmine Monitor report it states the countries that have placed a moratorium on at least the transfer of the use of cluster munitions since the Oslo treaty was signed. These are non- states parties that have decided not to transfer, in essence, sell cluster munitions. I think part of it is due to the stigma that is attached to these weapons.
Senator Hubley: The Ottawa accord did not have an interoperability clause in it, as does the Oslo accord. Would you comment on that? The Ottawa accord has been successful, I think, by most standards. It does not have that interoperability clause, and yet it has not impeded states from working together. Would you see that happening with the Oslo accord?
Mr. Poston: I would think that anything is possible, and I see no reason why interoperability should be affected by nations saying that cluster munitions are evil and they should not be used.
Senator Hubley Mr. Wiebe, I am going to refer to your open letter, which we have all received. Your concern is noted in the first paragraph, namely, that clause 11 of Bill S-10, now before the Senate, will ultimately put Canada in breach of its international obligations under the Convention on Cluster Munitions, or "the Convention. " What would be the ramifications for a country whose legislation contravenes the spirit and the intent of the convention?
Mr. Wiebe: I do not have the relevant article of the Convention on Cluster Munitions at my fingertips, but it would allow for other states to really question Canada, to perhaps call them to account in that way. I am sorry that I do not have that particular provision at my fingertips.
Article 19 of the treaty does talk about reservations not being allowed. What this legislation does — at least arguably — is creep up to the edge of Canada trying to carve out reservations, even though they are not specifically called that.
Senator Segal: My questions are for Mr. Wiebe. I want to refer to the focus, which he was kind enough to share with us, on paragraph 11(1)(b) of the legislation before this committee. As he will know, when Canada's defence forces are engaged either in a joint UN operation or a NATO operation — an expeditionary proposition, peacekeeping, peacemaking, stabilization, as the case may be — with all the other expert command and technical people who travel with our forces, there is actually quite a robust legal crew who travel, so as to answer explicit questions on the part of our commanding officers, theatre officers and the rest, captains of ships, commanders, et cetera, in the field as to the legal implications of rules of engagement of other kinds of decisions that they may be facing on a day-to-day tactical basis.
I understand the concern being addressed in good faith about paragraph 11(1)(b), but it strikes me that if we were not to have that in the legislation, what we would be saying in fact to a Canadian commander in the field — let us assume he is in a circumstance where Canadian and other national peacekeeping forces are coming under attack by individuals who are not governed by anything, the Geneva Convention, this legislation, this treaty, and he has to call for support from allied countries who are in the circumstance with him. While we accept the premise that this legislation would mean that no Canadian armed force instrument or unit would wilfully deploy its own cluster munitions, because we would not have any as part of our kit, the notion that one calls for support in a delicate, difficult, life-threatening circumstance, one that may be in fact threatening to civilians under our protection, and then has to caveat out that, of course, we do not want that support in the next hour if any of the following stock of munitions might be the only ones available to you.
Does it not strike you that that would put forces on the side of good in a difficult circumstance, accepting the premise that all of us are opposed to the use of cluster munitions and that our first preference would always be not to invoke their use in any way, that that would not be what this treaty is about? Are you comfortable that proceeding in a way where the commanding officer in the field, of any of the signatory nations to this treaty, would lack the option of calling on allied aid in a difficult circumstance would be the right way to go forward in terms of discharging the mandates given to those multinational forces by either the Security Council of the United Nations, NATO, or other groups that may be acting with international support and authority?
Mr. Wiebe: I guess I would start by saying that in terms of the number of situations where that would be the case, it is hard to come up with that situation.
For instance, NATO has not used cluster munitions, as I understand, and has not done so for many years. The use of these weapons is declining.
At the same time, to call in support, it is hard to imagine where this would be the only munition available. If, in the example you gave, civilians under the protection of Canadian Forces are under threat, the reality with these munitions is that they are, themselves, a threat to civilians. It would be ironic, then, to call upon their usage in order to protect civilians.
I do agree that that would be a very difficult situation, but what the treaty allows for now, without clause 11(1)(b), is for a commander in that situation to say, "We need help. " If, as a consequence of asking for help, cluster munitions end up being used, that commander would not be held responsible.
Senator Wallace: Professor Wiebe, when I listened to your comments they seemed to fit into two categories, but they are both related. One relates to the policy issue of whether Canada should in any way, shape or form, involve itself with cluster munitions. The other aspect of it is if, as Bill S-10 would seem to indicate, Canada could in certain circumstances, whether that is consistent with the convention.
I heard your thoughts on your interpretation of the convention. I must say, having not been around to hear the discussions — I have read some of what took place at the time of the drafting of the convention — when I look at the words, I am having trouble applying your interpretation to what I read in the convention.
In particular, Article 21, paragraph 3, to me, is very specific. It says, "Notwithstanding the provisions of Article 1, " which outlines the specific prohibitions under the convention as they relate to cluster munitions. It says notwithstanding those prohibitions, or regardless of that, that state parties — which, if Canada enacts this bill, would be a state party:
. . . may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.
Therefore, that non-state party might engage in activities prohibited to a state party. Those activities, as I understand it, are those outlined in Article 1.
I am having difficulty understanding the wording of Article 3, which specifically deals with a circumstance where a state party could be involved in joint military or combined military operations with a non-state. To me, that is what the convention permits.
That being the case, how is clause 11 of Bill S-10 is not consistent with the convention? It seems to me that the fundamental disagreement you have — I am suggesting — is with the convention itself, that the convention is too broad. The convention created, whether you call it a reservation, exception or qualification, that you would consider to be too broad. Nonetheless, it is there.
As much as we try to put ourselves in the minds of the drafters of the convention at the time, there were numerous parties involved in the convention and each of them had some different thoughts in mind when these words were drafted. I am having difficulty looking at the wording of the convention and then convincing myself — regardless of the policy issue of whether Bill S-10 is good policy or not, but accepting the fact that is what the bill says — that it is consistent with the convention. I am having difficulty with the wording in the convention and concluding that it is not. What might you say to that?
Mr. Wiebe: I would have two, maybe three responses to that.
First, with respect to the language itself of the convention, there are six official texts of the convention. The convention was negotiated in English, French and Spanish. I just point out that there is some ambiguity in the Spanish text.
The beginning of Article 21.3 in Spanish reads, "Sin detrimento de lo previsto en el Artículo 1. . . " That can be translated in two ways, I will concede. It can be interpreted as "notwithstanding " the provisions of Article 1. It can also be translated as "without detriment or prejudice " to the provisions of Article 1. That really, then, has perhaps a different interpretation. If there is ambiguity in how the official texts are interpreted, then we need to look to the object and purpose of the treaty.
The object and purpose of this treaty is primarily to deal with the humanitarian impact of these weapons. That would be my first response.
Second, Article 21 needs to be read in its entire context, particularly Article 21.2:
Each State Party shall notify the governments of all States not party to this Convention, referred to in paragraph 3 of this Article, of its obligations under this Convention . . .
There is this tension, this balancing that is going on in Article 21, but Article 21.3, I do not believe, should be read as an escape clause from primary responsibilities under Article 1.
Senator Wallace: I agree with you: You have to look at the entire convention in that context to interpret any section of it. That certainly makes sense to me.
I suggest to you that, in interpreting paragraph 3 of Article 21, in particular, what is envisaged by that reference to a state party being able to engage in military cooperation and operations with a non-state party or these combined or joint operations and how far you can go with that, the answer to that is included in paragraph 4. Paragraph 4 is very specific in saying that a state party may not itself stockpile or transfer munitions, may not itself use or may not request the use of the choice of munitions within its exclusive control.
It seems to me the drafters of the convention were considering where a state party, in circumstances where it is under its complete control, will not do these things in relation to cluster munitions that would be inconsistent with the convention.
However, if it is not within its exclusive control, if it is not performing the use itself, then I think paragraph 4 is indicating very clearly that a state party would be permitted to do that. As I understand it, the realities of joint or combined military operations could involve states operating together, perhaps within their own silos but working together in a concerted way.
As you pointed out, it could also involve secondment, where the military officers of a country are seconded to provide leadership to another allied country. There can be different combinations, as I understand it, in determining what a combined or joint military operation is.
With all of that in mind, I would suggest to you that paragraph 4 of Article 21 indicates very clearly that, in those circumstances, what is prohibited is where the state party itself is using, stockpiling or requesting the use when it is within its exclusive control and not dependent upon any other ally. What would your comment be to that?
Mr. Wiebe: In one respect, Article 21.4 in some ways is simply for the comfort of some of the countries involved in the negotiations. In many ways, it is a restatement of international law as it existed prior to the treaty. In terms of state responsibility and the emerging law of responsibility of states during internationally wrongful acts, in situations where forces are seconded to another force, if that other force has effective control and does something that is deemed to be illegal, that is the state that is held responsible. It is not the force sending those officers.
In that respect, it may simply be a restatement of the international law of state responsibility. It does get trickier in terms of individual criminal responsibility, and that is where exceptions that I think go beyond Article 21(4) are found in clause 11. The example I gave, both in my statement and in the open letter, is that clause 11(b) reads way too much into Article 21(4)(d). If you look at the Irish implementing legislation, they have legislation about participation in situations of interoperability. Then they simply restate Article 21(4)(d) almost verbatim in their law. The implication of that is that Ireland is looking at Article 21 and saying that there may be times when their forces are seconded and their forces may be in charge. They might have a commander who is in charge. That commander cannot then expressly request cluster munitions. That is not saying where they have control of the choice of the weapon. It seems a stretch to say that Article 21(4) permits the inverse, that if I am in a bunker, I can specifically request cluster munitions.
Senator Johnson: Probably both of you could take a stab at answering my questions.
In terms of extraterritoriality, would you prefer that Bill S-10 go along with substantive lines as established by the U.K., Australia, New Zealand or Ireland?
Mr. Wiebe: I will take a stab at that. When military forces or other personnel of a state travel abroad, it is perfectly acceptable for that state to attach extraterritorial responsibility to them, and I do think that that would be a good idea.
Senator Johnson: Mr. Poston, do you have anything to add?
Mr. Poston: No. I agree.
Senator Johnson: My second question is this: In terms of investment prohibitions or disinvestments in cluster munitions, would you prefer that Bill S-10 go along this time with restrictive lines as established by New Zealand or Ireland?
Mr. Wiebe: I think the treaty can be read to include investment under the prohibition on assisting in the development and production of cluster munitions. It would certainly be acceptable, and I think a lot of them include prohibitions on investment in the legislation.
Senator Johnson: Mr. Poston?
Mr. Poston: That is not really my area of expertise.
Senator Johnson: These are questions, of course, relating to what is happening in the other countries that have signed on.
[Translation]
Senator Nolin: I do not know whether our witnesses understand French or whether they have access to translation. Mr. Wiebe, if I understand you well, by drawing the parallel that you establish between the Ottawa treaty and the Convention on Cluster Munitions, you are making the following argument: in the treaty, in the Ottawa treaty, there are not any clauses similar to Article 21 in the Convention on Cluster Munitions. This did not prevent member states from having military engagement and cooperation with non-member states, non-states parties I should say.
So why did the states parties decide this time to include an Article 21, if not for each one to enforce criminal legislation as they see fit, within their sphere of autonomy and sovereignty? This is what the Government of Canada decided to do with clause 11. What do you think?
[English]
Mr. Wiebe: I think that we can both go back to the negotiations of the convention and look at what has happened since the convention was signed.
There was concern, I believe, by some states that somehow land mines and cluster munitions were different and that more countries had cluster munitions in their arsenals. Therefore, there needed to be greater clarity on that point.
Subsequent to the treaty, the trend that was already in place at that time was a decline in the use of cluster munitions, and that decline seems to have accelerated. We only have sort of rogue states such as Libya, while Gadhafi was still in power, and Syria who are actively using these munitions.
Other states parties, since the treaty was signed, lend support to the idea that the model established by the Ottawa treaty is being followed by the majority of states as they implement the Convention on Cluster Munitions by using language about mere participation within multinational or international forces not being barred under this treaty. That practice has been followed by the majority of states parties to the Ottawa Treaty.
[Translation]
Senator Nolin: If I understand you well, time and usage will show whether Canada was right in using or developing clause 11 in Bill S-10. We cannot prejudge — if we compare the Ottawa treaty — why states act quite legally within their sphere of sovereignty. It is the way they interpret an article like Article 21 in the Convention on Cluster Munitions. Only usage and time will prove that Canada, while fulfilling its wish for this type of munition to disappear and fully respecting an international convention, will keep the door open to military relations with allied countries.
[English]
Mr. Wiebe: I guess I would say I have some — pardon the use of the word — reservations. It was heartening to listen to the statements of the foreign minister and the defence department a few weeks ago. They said, "We are not going to use these. We are not going to request their use when we are in the battlefield. " If that is the case, then why allow this in the law? If the policy and practice is that cluster munitions are not going to be requested in those very rare situations where this might arise, then why allow for it in the legislation?
[Translation]
Senator Nolin: I go back to your argument. You are saying that, if I compare the Ottawa Anti-Personnel Mine Ban Convention and the Oslo convention, in one case there is not an article allowing states parties and non-states parties to have military relations. Now we have an article like that.
So those the bill drafters wanted, in my opinion, to provide for a range of possibilities as full as possible. This why we have a paragraph like 11(1)(b). It is not because Canada wishes to breach the treaty, it is because Canada is interpreting Article 21(1) of the convention in its own way and is trying to foresee a range of possibilities, in order to protect its military personnel from criminal proceedings.
What do you think of my argument or my reading of your opinion?
[English]
Mr. Wiebe: I think you have accurately described how the drafters of the bill have made their arguments. I would respectfully disagree. For instance, with respect to paragraph 11(1)(b), that pushes the interpretation of the treaty beyond the spirit and intent of the treaty. To use that as one example, perhaps rather than cutting out an escape hatch, it cuts a much larger hole in the floor of the treaty.
Senator Nolin: Mr. Wiebe and Mr. Poston can help us on this one. When you read paragraph(b), it depends on what the position of a Canadian member of the Canadian Forces posted or seconded would be, using the word the minister used in his testimony. Let us say with the military, the American force, depending which position he or she occupies, they may be in a position to expressly request something if they are in a commanding position. Do you not agree? That is why the drafter decided to write such a subsection.
Mr. Wiebe: I actually think that Article 21(4)(d), as opposed to Bill S-10, says that if they are in that situation they cannot request the use of cluster munitions. If it is within their exclusive control and they are the commander, it says they cannot expressly request the use of cluster munitions. If they cannot do that, it seems odd that you would be able to do it when it is not in your control, that you are on the front lines and you get on the phone and say, "Please use cluster munitions in this situation; I know you have the final say, but this is what I want. "
Senator Nolin: However, you have to read Article 21(4)(d) entirely. Look at the end of that subsection:
To expressly request the use of the cluster munitions in cases where the choice of munitions used is within its exclusive control.
Mr. Wiebe: I understand that, and perhaps I am not being as clear. I can present this in writing after the testimony. I am saying that does not implicitly allow the opposite to be done.
The Deputy Chair: We have five minutes and three senators. If they can put their questions very briefly, hopefully witnesses can respond accordingly.
Senator Hubley: If we were to look at the scenario that was presented this morning where a commander in the field may be put in jeopardy in some way by a state not party to the convention, but the use of cluster munitions have been used, is there something we could put in our amendment to Bill S-10 to cover that off? It has been raised on several occasions and seems to be an issue. Do you see a way of amending Bill S-10 so that we may include some clarity for that?
Mr. Wiebe: One approach is to use the "mere participation " language as a catch-all for the entirety of clause 11. The Irish law has had a clarification by the government that a person cannot be prosecuted for an act or omission that might otherwise constitute assistance but is unintended or inadvertent or has only a remote or indirect relationship to the commission of a prohibited act. That may be one way to do it. It is really a restatement of what is, as I understand it, already in Canadian criminal law: the purpose, intent and knowledge.
Senator Wallace: The point I was going to make has been covered by Senator Nolin for the most part. It related to your comments around Article 21(4)(d). However, Professor Wiebe, I believe you said you would provide us something in writing that expands on your thoughts on that. I still have some difficulty with what I have heard you say today, so I look forward to receiving your further thoughts in writing.
Senator Segal: I have a brief question for Mr. Poston, who may want to avoid it. I respect your discomfort with any recent cluster munitions and mining reports in terms of the last couple of years. However, with respect to your present and most recent assignment in Sri Lanka, to your knowledge, is there a history of the deployment of cluster munitions either by the armed insurgency or by the government forces?
Mr. Poston: At this point, the government is saying that cluster munitions have never been used here and there have been no official reports stating that they have been.
The Deputy Chair: On behalf of the committee, I would like to thank our witnesses for their appearance and taking the time to brief us on their knowledge of this issue.
Honourable senators, we will continue our committee meeting on Bill S-10, An Act to implement the Convention on Cluster Munitions. I will ask the members of our next panel to introduce themselves. I understand they have a statement. We ask that the statement be no more than five minutes because, as you notice, the senators have lots of questions and we would like to leave lots of time for those.
We have Mr. Peachey on video conference and other witnesses are in the committee room. We will start in whatever order you would like from your end.
Marc Drolet, Executive Director, Handicap International Canada: Good morning. I am the Executive Director of Handicap International Canada. I am accompanied by Marion Libertucci, our Arms Advocacy Manager, who flew in from our Paris office specifically for this opportunity and who was a witness in Dublin and Oslo to the process leading to the convention. She was also witness to the ratification process in France.
A co-recipient of the Nobel Peace Prize, Handicap International Canada is an independent aid organization celebrating its thirtieth anniversary this year. Our organization also received the Conrad Hilton Humanitarian Prize in 2011 for the quality of its field operations. Handicap International Canada is on the front line in nearly 60 countries, including Haiti, Afghanistan, Sri Lanka, Iraq, Sierra Leone and Laos, working alongside disabled and vulnerable people experiencing poverty and exclusion, particularly in situations of poverty and disaster.
Cluster munitions are an unreliable and indiscriminate deadly weapon that kill and maim people long after the conflict has ended. Credible estimates establish the number of casualties directly attributable to cluster munitions at more than 50,000, most of them being innocent civilians. There is no control over the end target of these munitions and therefore no means to ensure a distinction between military and civilian targets. Accordingly, it is not surprising that research has shown that more than 90 per cent of the reported casualties are civilians, nearly half of whom are children.
Being with the victims in the field, offering them support with their disability, trying to facilitate their social reintegration and helping to clear the littered areas — a risky, time-consuming and costly task — means that we at Handicap International Canada realize on a daily basis how ominous this weapon is.
I have no doubt everyone in this room is aware of the devastating long-term physical, psychological and economic consequences of cluster munitions. I expect we also all agree on the critical importance of the 2008 Convention on Cluster Munitions and by all means the need for Canada to ratify it.
Handicap International Canada commends the Government of Canada for initiating the current ratification process as reflected in Bill S-10. We are pleased to note that several sections of the bill lay out clear and unambiguous prohibitions. At the same time, we are concerned with some exceptions and omissions that go against the very purpose the convention. Especially troublesome are exceptions in the bill for interoperability and the absence of prohibition for financing and investment.
With regard with interoperability, Handicap International Canada understands and respects the government's preoccupation for ensuring that Canadian Forces continue to be involved in joint military operations with Canada's allies, some of whom are not party to the convention. This legitimate preoccupation is explicitly addressed in the convention. Handicap International Canada's concern with the exceptions set out in the bill is that they might not only allow Canadian Forces to participate in joint military operations with allies not party to the convention, but they allow such participation even if cluster munitions are used and even give Canadian military personnel the latitude to expressly request or direct the use of cluster munitions.
The exceptions in the bill also grant Canadian Forces explicit permission to use, acquire and possess cluster munitions while on attachment, exchange on secondment.
The exceptions allow Canadians Forces to aid and abet persons using cluster munitions while in combined operations as long as it would not be an offence for the other person to commit the act. Proponents of this approach invoke Article 21 of the convention to reconcile positions with the treaty. This overlooks the fact that Article 21, while permitting military cooperation and operations between states party to and states not party to the convention, includes the paragraphs that place explicit obligations on states party to the convention to actively discourage the use of cluster munitions.
Article 21 must be construed so as to be consistent with and reflect the obligations spelled out in Article 1 of the convention to never, under any circumstances, assist anyone undertaking a prohibited act. After all, how could a convention both require the discouragement of the use of cluster munitions and at the same time allow facilitation of their use?
Handicap International Canada's position on this issue is based not only on the opinions of experts but also on legislative instruments developed by some 30 countries, including NATO allies such as France, Norway, Portugal, Hungary, Iceland and Belgium, as well as other countries such as New Zealand, Mexico, Switzerland and Sweden.
The legislative frameworks developed by these countries do not give their armed forces licence to engage in activities prohibited by the convention, thereby demonstrating that such licence is not at all necessary to enable effective participation in joint military action with states not party to the convention.
Also problematic is the fact that Bill S-10 does not specify the prohibition on assistance applied to direct and indirect investments in the production of cluster munitions and their components. More than 25 countries, including the United Kingdom, Australia, New Zealand and France, have taken the position that investment in cluster munitions production is a form of assistance prohibited by the convention. Canada should follow suit.
In conclusion, the Convention on Cluster Munitions represents a historic step in international humanitarian law, meant above all to prevent casualties among innocent civilian populations. Bill S-10 should be strengthened to ensure that everything possible is done to promote the spirit and achieve the purpose of the Oslo convention. Some qualifications may be necessary, but they should be narrow in scope and certainly not be contrary to the very objectives of the convention. As currently drafted, the bill paradoxically could very well contribute to the continued use of cluster munitions rather than their elimination, as intended.
The good news, as demonstrated by so many other countries, including some of Canada's closest allies, is that the exceptions and omissions we have flagged are not needed in order to achieve a truly balanced legislation that both protects innocent civilians and allows, among other things, Canada's participation in joint military operations.
Finally, Lynn Bradach was meant to testify with us but unfortunately could not make it today. She is the mother of a U.S. soldier who died in a clearing operation in Iraq, and is now part of Ban Advocates, a project put together by Handicap International to give a voice to direct and indirect victims of land mines and cluster munitions, whatever their background, because the suffering caused by these weapons is felt by all. We would appreciate if the committee would agree to let her testify at a later hearing.
On behalf of Handicap International Canada, I thank you for the opportunity today.
[Translation]
Marion Libertucci, Arms Advocacy Manager, Handicap International Federation: Mr. Chair, it is an honour to be able to take part in today's session. I am the Arms Advocacy Manager for the Handicap International Federation, and a member of the steering committee of the Cluster Munition Coalition. With my coalition colleagues, I took part in the launch of the Oslo process, in 2007, the negotiations for the Dublin treaty, in May 2008, and its signing by 94 states, including Canada, in December 2008.
In the field, with our teams, I have had the opportunity to observe how difficult and dangerous demining is, and I have had the chance to work closely with Ban Advocates, these survivors or families of survivors of cluster munition accidents, who endlessly tell us of their experiences: Thoummy, from Laos who lost his hand while looking for food for his family around his village; Raed from Lebanon whose son was killed by an unexploded cluster munition during a picnic organized to celebrate his fifth birthday; young Aynalem from Ethiopia who lost his leg when some cluster munitions were released on his school, and so many others. All appealed to the states for a total prohibition of these weapons that have such devastating effects on civil populations. To date 111 states have listened to them, including Canada, by signing the Oslo convention.
The states that decide to join the convention are the guardians of its spirit and letter. Its object is clearly indicated in the preamble: "to put an end for all time to the suffering and casualties caused by cluster munitions. "
It is therefore essential that states parties do everything they can to avoid future use. Article 21 of the convention says just that. And while it acknowledges the possibility for a state to take part in joint military operations with non- states parties, it does not give carte blanche to militaries to use or require the use of cluster munitions. This is the spirit in which this article was added during the negotiations in Dublin and this is what some 30 countries have so far recalled, including several members of NATO. This absolutely has not prevented them since then from participating in joint operations with non-states parties.
So allow me to present the approach taken by France: in 2009, the Minister of Foreign Affairs, Bernard Kouchner, stated:
Regarding interoperability, we obviously cannot promise that we would not defend ourselves alongside other forces if we were attacked and we had to do battle. However, we will do our utmost not to engage with countries prepared to use cluster munitions and whose practices are incompatible with this convention.
This does not prevent France from taking part in joint operations with non-states parties. Thus, in the multinational military operation in Libya in 2011, France took care to apply the positive obligations of Article 21, by writing to all non-states parties that were participating in the operation to recall its obligations, notably the ban on assistance, to discourage them from using cluster munitions and to appeal to these states to join the convention. We feel that this application of Article 21 is entirely in keeping with the spirit in which it was negotiated, and does not compromise the participation of the troops of a state party in joint operations with non-states parties.
We are delighted that Canada can soon become a state party, but we hope that the bill will be strengthened regarding the matter of interoperability so as to avoid creating a precedent in the implementation of the convention that would prejudice the goal pursued by all the states parties.
[English]
Titus Peachey, Director of Peace Education, Mennonite Central Committee (United States): I want to thank the Senate Committee on Foreign Affairs and International Trade for providing this opportunity.
The Mennonite Central Committee is the relief, development and peace building agency of Mennonite churches in Canada and the United States. For more than 35 years, MCC has had grassroots experience working on cluster munitions, including awareness raising, clearance work in Laos, victim assistance and advocacy. I am now the coordinator of peace education for MCC U.S., but I first began working for MCC when my wife and I went to Laos in 1980 in the immediate aftermath of the war.
We were not prepared for what we were about to see when we got there, for, as we later learned, the United States had dropped 260 million cluster boomlets on the country of Laos. In village after village we met the wounded survivors of cluster bomb accidents, and we saw cluster munitions in fields, gardens and schoolyards, sometimes by the dozens. We witnessed farmers carefully moving cluster munitions away from village paths with their bare hands, and we saw good land lie fallow because it was considered too dangerous to cultivate. We listened to parents tell of children whose play had turned to tragedy when they found a cluster bomb such as the model that I am now holding in my hands.
In 1981 my wife Linda visited a family in a village. The mother of this family of 11 children had been killed the day before while hoeing in her garden when she accidentally struck a cluster bomb that was hidden in the soil. The woman's husband gave my wife the hoe head, which I have here, and said, "Please take this hoe head back to America to tell our story so that other people in other countries will not have to experience this tragedy. "
Remarkably, in this simple request, this Laos villager understood the intention of the international treaty on cluster munitions: prevention. For this reason, we have carried this hoe head around for more than 30 years, retelling the family's story to churches, governments and civil society; but, sadly, what happened to that family has happened again and again, not only in Laos but in many other countries.
Our advocacy work over the last two decades has focused on prevention. I have represented MCC in meetings of the Convention on Conventional Weapons and have provided testimony to the U.S. government calling for a ban on cluster munitions as early as 1994. MCC is also a founding member of Mines Action Canada and of the Cluster Munitions Coalition.
One of the most meaningful experiences in my life has been to attend many of the Oslo process meetings where the Convention on Cluster Munitions was crafted and negotiated. During this process it felt like perhaps the world was beginning to understand and to keep faith with the request of that Laos villager made in 1981.
The Convention on Cluster Munitions is a comprehensive ban on a reprehensible weapon. One of the remarkable features of this humanitarian treaty is that it was crafted with the participation and insight of people from affected communities from around the world. Whenever this treaty was being negotiated and debated in places like Oslo, Vienna, Lima or Dublin, there were cluster bomb survivors in the room; some without limbs, some without eyesight, giving testimony with their words and with their presence on the need for a strong, comprehension humanitarian treaty that would prevent future tragedies such as they had experienced.
MCC warmly welcomes Canada's signature on the treaty and the current efforts to ratify this important treaty. I believe that Bill S-10 and all other ratification measures in other countries should pass through the same rigorous examination as the international treaty by people in affected communities who have already lost so much.
In this regard I fear that in its current form Bill S-10 may not pass the test in two significant ways: First, it fails to mention the many positive obligations of signatories to the Convention on Cluster Munitions, such as destruction of stockpiles, providing ongoing victim assistance and promotion of the treaty norms among non-signatories. Explicitly including these positive obligations would set clear and binding roles that would ensure Canada will continue to fulfil its treaty obligations with excellence going forward. Second, the exemptions in clause 11 of Bill S-10, if not attended, mean that at best Canada will preserve the status quo by facilitating the ongoing use of cluster munitions in certain circumstances and at worst will involve Canada's military directly in contributing to more human suffering. It threatens to weaken the force of the treaty as a comprehensive ban. If other states follow Canada's lead and implement the treaty in this particular way, people who are simply trying to feed their families will continue to experience tragedy; children will find newer but equally lethal cluster bombs, like this one, in their paths on the way home from school; new areas of land too dangerous to farm will continue to be created; brave de-miners around the world, such as the one mentioned in Mr. Wiebe's testimony, will continue to have to risk their lives in order to give land back to the communities; and soldiers, such as the 25 U.S. soldiers killed by U.S. cluster munitions during the Gulf War and noted in this U.S. government report, will continue to face risk from these weapons.
I respectfully urge the committee to ensure that Canada takes a principled approach to implementing the convention. Canada can help to ensure that the international community effectively prevents the use of cluster munitions rather than contributes to more human suffering. MCC's submission to the convention will lay out these concerns in greater detail.
In our travels throughout Laos in the 1980s, my wife and I were frequently hosted by Lao families. It is a hard thing as a private U.S. citizen to sit with a Lao family in their thatch-roofed home as representatives of the government that dropped the bomb that killed their child or their mother. It is my hope that no Canadian citizen will ever have to sit with a grieving family in another country with the knowledge that their government directed, requested or authorized the use of cluster munitions that belonged to a non-signatory to the Convention on Cluster Munitions.
In closing, I want to say that as a U.S. citizen I was so grateful for Canada's strong leadership in the successful effort to ban lands mines. I attended the land mine ban treaty signing ceremony in 1997 and was impressed by the strength of Canada's ability to mobilize a strong international coalition to bring about an end to the production, use, stockpiling and transfer of land mines. This was principled moral leadership at its best among competing political and military interest not only in Canada but also around the world. It is my hope that Canada will pass a bill ratifying the Convention on Cluster Munitions that is worthy of this positive legacy.
The Deputy Chair: Thank you.
Senator D. Smith: I would like to thank all three witnesses, who have been very helpful.
Mr. Peachey, your experiences in Laos reminds us that we want to do the right thing in Canada's legislation. I might just say that the Mennonite community in Canada is a group for which I have the highest respect for their principles.
It is not clear whether the government is prepared to accept amendments, but my gut instinct is that given we have open minds on the other side here, we have to keep it simple rather than rewrite the whole thing and have it totally perfect. I raised this point last week with our witnesses. Two examples seemed to be the simplest. Mr. Warren Allmand said that we could just delete clause 11, which would put it in the same category as the lands mines and they could live with that because there would be no opting out. Another witness said that several other countries had done things and the one they were most comfortable with was New Zealand's. Deleting clause 11 might be a little simpler because for the New Zealand example, you would have to rewrite a fair bit of stuff.
I am not asking the witness what would be perfect but rather what would be acceptable. What could you live with if we could get it to fly and be accepted by the other side, such as deleting clause 11 so that it is in the same category as the land mines or the New Zealand experience?
Mr. Drolet: Obviously, Handicap International Canada is not a legal organization. We are not here to give legal consultation or opinions.
Senator D. Smith: I am a lawyer; I just cannot help it.
Mr. Drolet: I understand, sir. It is not our decision to delete or not delete or to modify or not modify. The only important thing is that it needs to be strengthened.
You mentioned the New Zealand example, which we believe is a good and easier way to go about it. However, we need to stigmatize this. The Canadian government, by signing this treaty, has said no to cluster munitions. We agree with that and think that Canada should go ahead with the strongest possible bill. Whether something is to be adjusted or deleted is not our decision.
Mr. Peachey: I would simply follow those remarks in a similar vein. I am not an expert on legal treaty writing. I would say it needs to pass the test with the people who have experienced harm from cluster munitions, as I mentioned in my testimony. You need to sit down with Branislav Kapetanovic from Serbia who lost both hands and legs to a cluster munition. He was an army EOD expert and was blown up by a U.S. cluster bomb. You need to sit down with him and people like him who have experienced harm from cluster munitions, look them in the eye and declare that this legislation will ensure that this will not continue to happen.
As well, it needs to be consistent with other aspects of the treaty. How can you promote the norms of the treaty if at the same time you are authorizing the use of cluster munitions? That seems like an inconsistency. Whatever the language is, my hope is that it would have integrity and would affirm the intent of the treaty.
Senator Segal: Before I put my question to Ms. Libertucci, it strikes me just so, and I would like to correct the record. It is fair to say, Mr. Peachey, that there is nothing in this proposed legislation that authorizes, tolerates, encourages, aspires, or permits Canadian Forces under any circumstance to use the munitions that are proscribed in the specific treaty that we are talking about. However, it seeks to protect Canadian Forces in a circumstance where other forces that they are involved with make a decision that is not consistent with this treaty, perhaps because they are not signatories. I do not think it is inappropriate for a government to seek to do that when we ask our men and women in uniform to deploy in very dangerous circumstances, often on humanitarian missions, which the central committee would very much support.
[Translation]
Here I put my question to Ms. Libertucci concerning the quotation of Mr. Kouchner, who at the time was the Minister of Foreign Affairs. If I understand correctly what he said, he accepted the principle and fact that France will be entirely faithful to the content of this agreement, but he said that it was necessary to maintain France's right to cooperate from time to time with other nations that are not party to the agreement.
Have I correctly understood the quotation and the way you explained it?
Ms. Libertucci: Yes, that is quite right. In fact, it is the possibility for a state party to take part in joint operations with a non-state party. But in reminding states not party of its own obligations, that is, the prohibition to use or help use, to encourage non-states parties not to use and to appeal to states not party to join the convention.
Senator Segal: Thank you.
[English]
Senator Hubley: Mr. Drolet, you mentioned in your opening remarks that you were concerned that Bill S-10 is not explicit on the fact that the prohibition on assistance should apply to direct and indirect investment in the production of cluster munitions and their components. Would you like to comment on that and its importance? How does the Canadian bill compare with legislation from other states, if you have that information, with respect to direct investment in cluster munitions? Are there states that have prohibited the indirect provision of financing for cluster munitions?
Mr. Drolet: It is Handicap International's view that by investing in the making of or parts of any cluster munitions is helping the use of this industry. Therefore, the Canadian government should include something very specific to that effect.
Just to give you a few facts, there is a Belgian NGO called FairFin that creates a report called Worldwide Investments in Cluster Munitions. For 2002, 137 financial institutions in the world that invested about $43 billion U.S. in this industry, which is huge.
Regarding Canadian information, about 40 Canadian institutions have provided about $100 million in direct funding to these organizations.
Senator Hubley: Are the organizations that you are speaking of in the manufacturing of cluster munitions? Is that what you are telling us?
Mr. Drolet: Yes. The funding is directly to the manufacturers.
Senator Hubley: Is it well known that those manufacturers do in fact manufacture cluster munitions?
Mr. Drolet: Yes, it is widespread information. It is quite clear.
Senator Hubley: I see. Thank you for that.
Ms. Libertucci, I think in your remarks you mentioned that Article 21 in the convention was in fact okay; it remained within the letter and spirit of the convention. I think you challenged us as guardians to protect that in everything that we do, that, in fact, Article 1 must be the main or dominant focus of anything else that should appear in the legislation.
Ms. Libertucci: Yes. Being in Dublin for the negotiations, Article 21 was finally added to the convention because some countries, such as my country, France, and others such as Canada, were concerned that it would not be clear that states parties could be involved in a joint military operation. It was just to ensure that this would still be possible for countries to participate with non-states parties.
What was very clear during the negotiations and what is very clear for so many countries is that it does not overcome the general obligations of Article 1. I would like to repeat that Article 1 says that states "should never under any circumstances. " This is very clear, and it does not mean that because of Article 21 a state party could use or abet or aid for use of cluster munitions. I think it is very interesting to see that so many countries have adopted this position and it actually works. It works on joint military operations that are ongoing. We do not feel it is such a huge problem to overcome for states parties and non-states parties to work together.
Senator Hubley: Mr. Peachey, not many of us have experienced what you have experienced in your visits to Laos to see firsthand just how horrendous this weapon is. I was interested in your comment that during the Oslo convention, it was scrutinized by victims, and victims were present. It put a picture in our minds that that is something we should carry forward as we try to ratify the Canadian legislation. Are you familiar with clause 11 of Bill S-10, the Canadian legislation to ratify the convention?
Mr. Peachey: Yes, a bit.
Senator Hubley: It is clause 11 that seems to be the contentious part for most of this. Could you describe Bill S-10 as embodying the principled approach to the convention, which you had also mentioned?
Mr. Peachey: Are you talking now about Bill S-10?
Senator Hubley: Yes.
Mr. Peachey: Bill S-10 as a whole or clause 11?
Senator Hubley: Clause 11.
Mr. Peachey: My problem with clause 11 is it feels like it does not keep faith with the many people who have suffered from cluster munitions around the world who were present during the negotiations. Handicap International, as was mentioned, was very helpful in facilitating having people present, doing training in terms of helping those people become actively involved in presenting their situations and in suggesting how the treaty might affect their lives. It seems to me like clause 11 contravenes, contradicts or goes against many of the hopes that people who have survived cluster bomb accidents might have because it continues to make exceptions and opportunities for cluster munitions to be used.
My feeling, obviously, is that the lives of soldiers, whether Canadian or U.S., are just as important and precious as the lives of Lao villagers. I think the international treaty is saying there is a way to protect all lives without resorting to the use of cluster munitions. That is the new norm. That is where we want to get to. Therefore, we commit ourselves to operating in such a way that cluster munitions are no longer used so we do not take the lives of Lao villagers or villagers elsewhere and we also find a way, without using cluster munitions, to protect the lives of our soldiers, which are also very important. That is what I see the international treaty doing what I do not see clause 11 promoting.
Senator Wallace: Thank you to each of you for your contribution here today. When I hear your comments concerning Bill S-10, there is no question that for the three of you and, I am sure, all of us in this room, the objective of abolishing cluster munitions is where we should go. I do not think there is any dispute about that. You have voiced your concerns about Bill S-10 in that it seems to create exceptions. However, when I read the convention itself, in particular paragraphs 3 and 4 of Article 21, it seems very clear that the convention itself creates exceptions or qualifications. It allows the continued use of cluster munitions, at least as I read it.
Given the opinions that each of you have, do you have any objections, concerns or reservations about the convention itself? We have certainly heard your thoughts on Bill S-10, but the basis of Bill S-10 of course is the convention. Do any of you have any problems or reservations about the qualifications or exceptions that have been carved out in Article 21 of the convention itself?
Ms. Libertucci: As an NGO, we could have definitely lived without Article 21. I believe it was negotiated in good faith by the countries. There is a real possibility to make sure that Article 21, paragraphs 3 and 4, and especially paragraph 3, are used consistently with the objective of the convention.
Once again, the countries participating in the negotiations wanted to make sure that they would be able to work with non-state parties. This example was raised before. Non-state parties call for assistance because they are under fire and cluster munitions are used. It was to make sure that the militaries of the state parties that had requested aid would not be pursued as being responsible for the use of cluster munitions.
If you just take this, it is okay. However, I believe Article 21 should really be read not as weakening the convention but actually strengthening it with paragraphs 1 and 2. It really calls for discouraging the use and to work on universality. We should take it on as a role and make sure that it makes positions stronger for state parties.
Senator Wallace: To state the obvious, I take it you would agree that the convention itself does not amount to an abolition of cluster munitions. I am stating the obvious by saying that. The convention does allow for the continued use in certain circumstances of cluster munitions. Do you not agree with that?
Ms. Libertucci: I am sorry, but I do not really agree. It says that state parties should not use. It is very clear in all of the convention. What it does say is that sometimes you can be allied with countries that are non-state parties and you will do your utmost so that they do not use them. However, they may be used but you are not involved in the use of cluster munitions. This is completely different.
Mr. Drolet: I would like to add that we are at the ratification process. If we can make things better, we should. Although we mentioned there are a lot of good things already in there, such as prohibitions, we need to strengthen it on three points. First, Canadian Forces will never, under any circumstances, ever directly request, aid and abet in the use of cluster munitions. Second, Canada should give notice to the positive obligations of it. Third, Canada should actively discourage the use of cluster munitions and enforce its stigmatization.
It is going perhaps one step further; it is not a matter of commenting on the convention itself; it is how Canada can live up to its role and strengthen its project to include those three points.
Senator Wallace: Do you want to comment on whether you have any concern with the convention itself and whether it is consistent with the principles you stand for?
Mr. Drolet: I was not witness to the process and Ms. Libertucci voiced her opinion on that already. That is where we stand.
Mr. Peachey: My understanding of the convention itself — it has been some time since I have read it — is that the provision for cluster munitions to be used is limited to a very small, specific type of cluster munition, which is really quite different from the cluster munitions that have been used in the past. I have reservations that that provision is included in the convention, but we are not talking apples and apples when we compare the cluster munitions types described in the convention that are permitted to the types that have been used in the past. They are really quite different in terms of numbers, size, weight and all of those kinds of technical differences.
Senator Wallace: Mr. Drolet, you made comments about Bill S-10 not having a direct prohibition against direct or indirect investments in cluster munitions.
Mr. Drolet: Yes.
Senator Wallace: I am sure you are aware of this, but I believe clause 6 of the bill is quite clear, in that no person is able to aid, abet or counsel — which is very broad language and I am sure would encompass investment — in the use, development, acquisition, possession of cluster munitions. If I recall when the minister appeared before us, I thought either he or his staff said that their view of that clause 6 was that it would prohibit investment in cluster munitions. What your thoughts would be?
Mr. Drolet: Canada needs to be more specific in its project. More than 25 countries, including Australia, New Zealand, France and the United Kingdom, have taken a position on that that is quite clear. They consider it is aiding and supporting the creation and use, eventually, of cluster munitions; therefore, it should be very clear — specifically causing indirect and direct investments.
Senator Wallace: If I recall from the minister's evidence, the feeling was to have broader language in this context would perhaps provide a wider net to capture activity that the bill aims to prohibit. I did not sense there was any question about investment not being covered by that language.
Mr. Drolet: I will pass it to Ms. Libertucci, who has witnessed the ratification process and how the investment clause was played out in France, and how banks have actually started to disinvest, which is really helpful.
Ms. Libertucci: In France we had the discussion about the national legislation, that it should be made clear that investments were banned. The government decided not to put it in the legislation but to really have a clear statement that it was covered by the convention.
We think it is good because it gave a clear signal to banks and financial institutions in France that they would be in an illegal situation if they funded cluster munitions. However, we heard from different people and banks that they would have preferred a clear legislative framework because it would make it clear to everyone what they should do or not do.
Now we are restarting the process of evaluating whether to have a specific bill on that. At the time of the ratification in France this was debated and the government said that if they see it is not sufficient they would have specific legislation. I think we are going in that direction, so it makes much more sense to have it right now in the legislation in Canada if everyone agrees it is covered by the convention. At least it would be clear for everyone.
Senator Johnson: This question is for all of you to answer and it is with regard to the United States, China, Russia, Israel, Egypt, India and Pakistan, none of whom are participating in the talks or have signed the convention on munitions. To you knowledge, what if anything have these countries done outside the Convention on Cluster Munitions to address the concerns of the state parties to the convention?
Ms. Libertucci: The U.S. decided to put a moratorium on the export of most of their cluster munitions, which is a clear recognition of the problematic nature of these weapons.
It was interesting to see that when Gadhafi's forces used cluster munitions in Libya, there was condemnation by Hillary Clinton about the use of cluster munitions being proof of the inhumane nature of the regime. It was strong to see that.
I would say that of course not all countries are on board, but first, many countries say that they share the goals and objectives of the convention, even if they cannot join quickly.
Second, we are also seeing a stigmatization effect that works on these weapons. As was said before, very few countries use cluster munitions, including Libya and Syria, which do not follow international humanitarian law.
It is very good to see that countries are thinking about the consequences of these weapons. As you know, the U.S. has not used cluster munitions, from what we know and from what we have seen, for almost 10 years. We think that stigmatization has an effect on other countries, which understand the devastating nature of these weapons, both on the civilian population but also, as Mr. Peachey said, on the Armed Forces. It puts them at risk as well.
Senator Johnson: Does anyone else have anything to add?
Mr. Peachey: I do not really have anything to add other than what has already been said about the U.S.
The same thing has happened with the land mine convention. Since the signing of the land mine convention, to my knowledge, the U.S. has not used land mines, and it is my hope the same will apply here with cluster munitions.
Senator Johnson: Given that you say that only two countries are actually using cluster munitions, even though the other countries have not signed on, one witness told us that the United States will probably be moving to negotiate and sign on in 2018. Is this a realistic thing to hear for our study in terms of timing? Do you have any other countries saying anything like that?
Ms. Libertucci: Actually, the U.S. said they will stop using cluster munitions that have more than a 1 per cent failure rate, which are most of their cluster munitions. As I said before, they already put a moratorium on the transfer of cluster munitions.
Definitely it is a dangerous weapon, and we hope not to see future use of it.
Senator Johnson: It cannot happen soon enough.
Mr. Drolet: I think the key word we need to remember is "stigmatization. " That stigma was created and has stuck to land mines. We need to do this and do as much as we can. If we invite more countries to sign and ratify, I think it would be a good thing.
Senator Johnson: Keep up the work, then. Thank you.
The Deputy Chair: We would like to thank the witnesses for their participation today.
(The committee adjourned.)