THE STANDING SENATE COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
EVIDENCE
OTTAWA, Thursday, February 15, 2024
The Standing Senate Committee on Foreign Affairs and International Trade met with videoconference this day at 11:29 a.m. [ET] to study foreign relations and international trade generally.
Senator Peter Harder (Deputy Chair) in the chair.
[English]
The Deputy Chair: My name is Peter Harder, and I’m the deputy chair of the committee. Our chair is attending the Munich Security Conference, probably with a less distinguished group than we have around this table, but it’s my opportunity then to chair. Before we begin, could we have senators introduce themselves, and just to show a difference, we’ll start from the right.
Senator Richards: Dave Richards from New Brunswick.
Senator Boniface: Gwen Boniface from Ontario.
Senator Woo: Yuen Pau Woo from British Columbia.
Senator MacDonald: Michael MacDonald, Cape Breton, Nova Scotia.
Senator Ravalia: Mohamed Ravalia, Newfoundland and Labrador.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia.
Senator Cardozo: Andrew Cardozo, Ontario.
The Deputy Chair: Thank you very much. We are meeting today under our general order of reference to cover two topics. For the first part, we’ll be discussing the situation in the Red Sea. To discuss this matter, we have with us, whom we already know from other issues, Assistant Deputy Minister Alexandre Lévêque from Global Affairs Canada.
[Translation]
We also have Eric Laporte, executive director, Security and Defence Relations.
[English]
From the Department of National Defence and the Canadian Armed Forces, we’re pleased to have Major-General Greg Smith, Director General of International Security Policy.
I would like to note for the audience who is watching that Senator Deacon from Ontario has joined us.
Before we hear your remarks, witnesses, and we proceed to questions, I wish to ask members in the room to refrain from leaning too closely to the mics or removing your earpieces when doing so, as that will avoid sound feedback that could negatively impact committee staff and others in the room who may be wearing an earpiece for interpretation.
We’re now ready to hear the remarks of our witnesses. We’ll hear from Mr. Lévêque, followed by Major-General Greg Smith. They will each have five minutes of introduction, and then we will move on to questions from senators.
Alexandre Lévêque, Assistant Deputy Minister, Europe, Arctic, Middle East and Maghreb, Global Affairs Canada: Thanks very much, Mr. Chair.
[Translation]
Mr. Chair, honourable senators, thank you for inviting me today to brief the committee on the situation in the Red Sea.
My remarks will focus on three points: how we got here, the response of Canada and its partners and finally some thoughts on what we might expect in the weeks ahead.
[English]
Since the Hamas attacks of October 7, and the pursuant war in Gaza, we have witnessed the emergence of several theatres of escalation across the Middle East. These have largely been instigated by Iran and its aligned armed groups, the so-called Axis of Resistance, as part of a cynical effort to exploit the current crisis, sow further instability and threaten Israel and the United States.
[Translation]
One such theatre has emerged in Yemen and the surrounding coastal waters, at the hands of the Houthis, a militant group long supported by Iran. As members of the Foreign Affairs and International Trade Committee will recall, the Houthis are one of the main belligerent groups in the Yemeni conflict and have been waging a brutal 10-year campaign to wrest power from the hands of Yemen’s internationally recognized government.
[English]
After announcing their support of hostilities against Israel in late October, the Houthis began a range of UAV and ballistic missile attacks, including attempted strikes against Israeli vessels and even Israeli territory, and later expanding to include commercial vessels and naval assets in the Red Sea and the Gulf of Aden.
While the Houthis have presented these attacks as acts of solidarity with the Palestinian cause, their motivations are also deeply self-interested. Specifically, the Houthis are trying to bolster their domestic popularity and distract from the very poor conditions faced by Yemeni citizens in the territory under their control. They are also trying to build their international profile and boost their standing among comparable resistance movements within Iran’s network.
[Translation]
Since October 2023, the group has carried out more than 30 such attacks, each of which constitutes a serious violation of international law, a significant breach of international peace and security, and a blatant attempt to hold global trade hostage in this strategic waterway.
[English]
The global shipping industry has been significantly impacted. Most major container carriers are rerouting ships away from the Red Sea and are instead sailing south around the Cape of Good Hope toward Europe and elsewhere, adding one to two weeks to such voyages and driving up related costs of fuel and personnel. Some estimates indicate the cost of an average shipping container has doubled since December. Naturally, insurance premiums across the industry have also risen.
These effects have also been felt in Canada. Flows of container traffic have been impacted, with the Port of Halifax reporting in January that a majority of its slated arrivals would be delayed.
More broadly, these attacks represent an affront to the principles underpinning Canada’s foreign policy, such as ensuring the free flow of goods through global commerce, upholding freedom of navigation and rejecting the unlawful use of force by a non-state actor.
Faced with this challenge, the international community has sought means to respond to Houthi aggression and deter further attacks. In December, the United States launched Operation Prosperity Guardian, a multinational maritime force operating in the Red Sea. This operation is defensive in nature and distinct from the U.S.- and U.K.-led strikes, which are aimed at degrading the Houthis’ capabilities to launch attacks.
[Translation]
At present, the Houthis are sticking to their guns and are determined to continue their attacks.
I’ll pause at this point to share some thoughts on what to expect in the weeks ahead, and to highlight some of the rather thorny foreign policy dimensions of this challenge.
First of all, if the Houthis were to cease their attacks in the current context, they could resume them without warning in the future, as they will probably always have the ability — and perhaps also the intention — to blackmail the international community, whether over Gaza or other issues. This threat is therefore likely to remain with us.
[English]
Therefore, it is difficult to effectively exert diplomatic or economic leverage against the Houthis. Iran has been emboldened by the Gaza crisis and is currently instigating a multi-pronged confrontation with the United States and Israel, which significantly raises the risk of a wider regional escalation. While some have looked to a role for China, Beijing appears squarely focused on securing passage for its own vessels and has not sought a greater diplomatic role on this issue.
In light of this challenging outlook, Canada intends to continue to demonstrate its resolve, in concert with our international partners, to halt this destabilizing action.
Thank you.
Major-General Greg Smith, Director General, International Security Policy, Department of National Defence and the Canadian Armed Forces:
Mr. Chair, members of the committee, I am honoured to appear before you today.
[Translation]
Thank you for this opportunity to update the committee on recent events in the Red Sea, including Houthi attacks on commercial and naval vessels, and Canadian contributions to multinational efforts to reduce the impact of those attacks on commercial shipping.
[English]
I would like to outline three lines of effort the Canadian Armed Forces has undertaken to contend with the Houthi threat. First, the Canadian Armed Forces has been a long-time contributor to Combined Maritime Forces, or CMF, a multinational naval partnership based in Bahrain. As part of a planned rotation in January, Canada took command of CMF’s Combined Task Force 150, which allows for Canada to enforce UN resolutions related to weapon smuggling, upon which the Houthis rely.
[Translation]
Second, also through Combined Maritime Forces (CMF), Canada deployed three additional personnel to support Operation Prosperity Guardian, which defends merchant and naval vessels from Houthi attacks in the Red Sea.
Finally, Canada has provided planning support to joint U.S.‑U.K. strikes on Houthi positions in Yemen, which degrade and disrupt their capabilities.
[English]
Mr. Chair and members of the committee, Canada, working in concert with allies and partners, will continue to leverage these existing operations to defend this transitway and provide support to allied operations to disrupt and degrade Houthi capabilities in Yemen. Thank you.
The Deputy Chair: Thank you very much, witnesses.
Colleagues, we’ll now go to a period of questions. As a reminder, senators will have four minutes in the first round for questions and answers, and I have a list here. Before I call on Senator MacDonald, I would like to note that Senator Greene has joined us for this session.
Senator MacDonald: Thank you, gentlemen. Mr. Lévêque, good to see you again. I’ll direct my first question to you.
Canada has imposed sanctions, including asset freezes and travel bans, against individuals or entities that threaten the peace, security or the stability of Yemen under the United Nations Act. Will Canada impose autonomous sanctions against Yemen-based individuals or entities under the Special Economics Measures Act or the Sergei Magnitsky Law? Who will be sanctioned and when?
Mr. Lévêque: Thank you for the question. What I can say, obviously not wanting to pre-empt a decision that will be made by the government, is that all options are on the table, and we are currently studying the possibility of applying sanctions, along with other tools that we have in our tool box, against some of the Houthi aggressors.
You mentioned two pieces of legislation, the Special Economic Measures Act, or SEMA, and the Justice for Victims of Corrupt Foreign Officials Act, or JVCFOA. We’re looking at the various triggers under each of these mechanisms. You will know that recently the interpretation of SEMA was expanded to be able to sanction individuals without necessarily having to identify an offending country regime. That’s part of the consideration. We have already used this to be able to sanction members of Hamas. This is among the things we are studying right now, but no decision has yet been made.
Senator MacDonald: The Houthis are one of several armed non-state actors in the Middle East, a group of parties that also includes Hamas and Hezbollah, which receive military and financial support from Iran.
Is Canada still considering listing the Houthis as a terrorist entity? What is the progress now? Is there any update? Does Global Affairs have a timeline when you would list the Houthis as a terrorist entity?
Mr. Lévêque: As I’ve said, all potential tools are being looked at right now. In considering whether to use our terrorist listing legislation, we need to obviously look at the broader set of circumstances to see what the consequences would be for regional peace and security, for the national Yemeni dialogue and the efforts led by the UN Special Envoy for Yemen.
All of this needs to be taken into account when considering whether to use that very blunt tool, which is a terrorist listing under the Criminal Code, but everything is currently being assessed.
Senator MacDonald: According to Global Affairs Canada regarding Canada-Yemen relations in 2022, Canada provided $62.5 million in humanitarian assistance to Yemen. Global Affairs indicates that Canada contributes this assistance to a variety of multilateral organizations, including the World Food Programme and so on.
Is there any report listing how the money is spent? How do we ensure it doesn’t get into the wrong hands, such as the Houthis?
Mr. Lévêque: Thank you. Indeed, if you look at the socio‑economic indicators of Yemen, it lists among the lowest in the world, so the humanitarian needs are indeed very grave.
In working with reputable international partners like the World Food Programme and other UN agencies, we have built in mechanisms to ensure that the humanitarian assistance really is humanitarian assistance: essential medicine and food, so really, survival elements that are necessary for civilian population. We built that into the agreements that we have with these organizations so as to minimize, if not eliminate, the chances of any of these goods being given to an offensive regime.
Senator MacDonald: Thank you.
Senator Ravalia: Welcome back, gentlemen. It’s a pleasure to see you again.
In March 2023, Saudi Arabia and Iran agreed to restore diplomatic ties seven years after they had been severed. Saudi Arabia and Iran have traditionally been regional rivals and have provided material support to opposing sides in the Yemeni civil war.
How have the Houthi attacks in the Red Sea region affected ties between Saudi Arabia and Iran? Does violence in the Red Sea, in your opinion, risk derailing the Saudi Arabia–Iran détente and, furthermore, the current work towards enhancing relationships between Saudi Arabia and Israel?
Mr. Lévêque: That’s a very complex question. I think you’re putting your finger right on the root of the tensions, particularly in the Arabian Peninsula.
As you know, and as suggested by your question, Saudi Arabia and Iran have been fighting a proxy war in Yemen for the better part of the last decade. Up until not that long ago, the Houthis were launching drone and missile attacks directly deep into Saudi territory as well as into Emirati territory.
I think that’s the reason for which Saudi Arabia is aggressively pursuing their negotiations directly with the Houthis, to attempt to de-escalate and to keep things as calm as possible in the Arabian Peninsula, first of all, to protect its territory. Saudi Arabia has a very ambitious agenda. They label it Vision 2030 to develop and diversify its economy, modify its society and really divert away from the pure revenues of oil and become a touristic destination. Tourists don’t tend to like to go to countries where there is a risk of missile attack on a daily basis. That has been an enormous driver for Saudi Arabia, first and foremost, to negotiate with all members of the different factions wanting to form government in Yemen, including the Houthis.
As to how that is affecting their relationship with Iran, I would say that is always a relationship that is fraught with risk. They remain strategic rivals in the region, and therefore even the announced détente is always at risk of slipping back. When we see the destabilizing effect of Iran by supporting their other proxies in the region, whether it’s Hamas or Hezbollah, this all risks derailing any chance at peace in the region.
All this is to say you’re absolutely right; there is a risk. That’s why the phrase or the word being used more often than not is “de-escalation” in the region.
Senator Ravalia: Thank you. As a follow-up, in terms of the relationship between Saudi Arabia and Israel, in the context of what is happening in Gaza as well, do you have any opinions on that?
Mr. Lévêque: My apologies, I had omitted that part of your question, senator.
Saudi Arabia has, for some time and with the facilitation of the United States, been looking to normalize its relationship with Israel. The Hamas attacks of October 7 and the following response by Israel in Gaza has had a chilling effect on this. Saudi Arabia has even said publicly that the cost, if you will, of resumption of that process would need to be an end of hostilities in Gaza.
We know that many countries in the region — Egypt, Jordan and, of course, through the facilitation of the United States — are still very much aiming for that rapprochement between Israel and Saudi Arabia, but of course, the volatility of the region and the situation in Gaza has set that back a couple of steps.
Senator M. Deacon: Thank you. I just wanted to, first of all, thank you three for being here. It’s very important information to keep up to date on.
I’m going to ask a question about the effect that the Red Sea situation might have on Egypt. The country’s Suez Canal Authority reported a 40% drop in receipts during the first two weeks of 2024 compared to a year earlier. President Abdel Fattah el-Sisi has held an iron grip over politics since the military coup d’état, but it’s becoming a tenuous one in the face of the struggling economy. There is also strong domestic support for Palestinians in Gaza that isn’t reflected in government policy.
I’m wondering whether this crisis in the Red Sea might be another breaking point that sees Egyptian politics plunged into more instability yet again.
Mr. Lévêque: Your question is very apropos and something I was hoping to be able to raise today, senator. Thank you.
All I will say on this is that when I alluded to the fact that this crisis has multiple ramifications, of course, we think of the cost of shipping and the security of naval vessels, maritime transport and crews on board.
You’re right that there is also a strategic element to this. Depending on the assessment, the Suez Canal sees between 10% and 13% of global maritime traffic in a given year, representing about $1 trillion worth of trade. That’s about half the GDP of Canada, to put it into perspective. Ultimately, this goes through the Suez Canal, particularly the traffic that goes between Asia — so China and Southeast Asia — and Europe.
The revenues that are collected by Egypt are an important source of their government income. Egypt is already going through a significant economic crisis, so there is no doubt this is having a deep impact and, I would say, is further strategic encouragement for Egypt to play a role in the de-escalation.
At the same time, with the recent re-election of President el‑Sisi, there is no reason to believe that this will lead to domestic instability. However, it does mean more economic hardship and, therefore, more dissatisfaction on the part of the population in Egypt.
Senator M. Deacon: You mentioned China near the end of your messaging, and I want to come back to that. I heard what you said. As time rolls on, is there a role that China might have? They rely on international trade as much as any country does. I wonder if they might get to the point where they say that enough is enough and use their influence in Tehran to get the Houthis to stand down in the Red Sea.
Mr. Lévêque: Again, I think you’re bang on, senator. We haven’t seen this overtly take place to date. We also know that China’s diplomacy tends to be much more behind closed doors, so big flashes of public statements are probably not to be expected here.
We have seen their interventions in the UN Security Council, not yet suggesting a desire to increase public pressure on Iran, calling for de-escalation and for a reduction of the strikes.
What is going on behind closed doors is something we don’t have complete visibility on. I would say that given, first of all, the vulnerability of their economy when it comes to global trade and shipping, especially to European markets, combined with the fact that these strikes by the Houthis are indiscriminate, I would venture to bet that they will increase their quiet pressure on Iran in the not-too-distant future.
Senator Coyle: Thank you very much to all of our witnesses today.
My first two questions are for Mr. Lévêque, and then, if I have time, for Major-General Smith.
I’m trying to dig in and understand everything that’s at play here with the Houthis. They are being portrayed as an instrument of Iran. We know they are being equipped, resourced, et cetera, by Iran. They also have their own interests.
I’m trying to understand the balance between who is calling the shots here, Iran or the Houthis. You talked about the Houthis trying to improve their credibility among the like-minded “other Hs” — Hezbollah, Hamas, et cetera — but what about beyond the Hs? Are they also trying to curry favour with others? Who is coming on board in support of the Houthis? Those would be my questions for you.
Mr. Lévêque: Thank you, senator. Those are important strategic questions.
One common element we can point to between the Houthis, Hezbollah and Hamas is the fact that, despite having been propped, trained, equipped and supported by Iran, they are not complete puppets of Iran. They have their own independent decision-making structures and probably strategic goals, some of them more obvious than others.
If you think of Hezbollah, the political wing of Hezbollah forms part of the government in Lebanon. They have at least a couple of cabinet seats in the government. There is plenty of evidence that shows that the political wing of Hamas was not aware of the October attack before it happened.
This is not exactly an integrated vertical chain of command, and the Houthis would fall into that category too. First of all, they control a large part of Yemen’s territory. Their goal is to govern, to ultimately be the government of that country. They are the only party among the other factions that refuses to negotiate with the rest in order to come to a ceasefire and an agreement on how to govern Yemen.
Secondly, they still consider themselves a resistance movement. Just like with any resistance movement, exploits, grand gestures and presence increase their credibility — first and foremost, domestically — and, honestly, detract from their inability to govern a people in desperate need of structuring and governance.
I wouldn’t put the Houthis in the category of the most rational of actors. It’s difficult to anticipate what their end goal might be. However, drawing attention, garnering credibility among the three big players of the so-called Axis of Resistance and wanting to garner their own credibility domestically are all part of the equation.
Senator Richards: Thanks for being here again.
What is the chance of ever degrading Iran’s supply line to the Houthis? Because unless we do, they can act in concert with whatever they want. We can get rid of their drones one day, and they will have drones four days later. We have seen that.
I’m wondering if there’s any chance — as the bugaboo says, without engaging in a direct conflict with Iran — of degrading their supply lines.
Mr. Lévêque: That’s a difficult question to answer. We have with allies a kind of a strategic outlook on how to degrade capacity of the Houthis themselves. To degrade the supply line is a lot more challenging given, as you said, the fact that I think the world wants to avoid an outright direct conflict with Iran. Iran continues to be an actor that is trying to destabilize the region, weaken the United States as a superpower and weaken Israel, which it sees to be its sworn enemy.
I turn to my colleagues to see if they would add something on this. I would venture to say that the military route is not something that’s being contemplated right now. It comes down to diplomacy and building alliances to bring down the temperature in the Middle East.
MGen. Smith: I could offer that I think the characterization is not just about trading supply lines; it’s re-establishing deterrents: You have to stop doing these things or else there will be repercussions, be those either — not to get academic here — denying that what you’re doing will have no effect or striking back.
Those are some of the operations we’re seeing in the region. I described in my opening statement some of the different operations in which the Canadian Armed Forces are participating. I go back to re-established deterrence.
Senator Richards: Thank you. We all know the world is in a desperate spot right now. The United States is really fighting proxy wars on four fronts. I wonder how able Canada is to support them. I know they’re trying. I know they’re in the Red Sea. We just decided to send more troops into Latvia in the last little while, which is great.
As good as our military men and women are, our military resources are not even up to a division. I’m wondering if we look at that with some consternation with what’s going on not only in the Red Sea but in Ukraine and everywhere else in the world. Sooner or later, we might be called upon to give help that we don’t have. Are we concerned about that?
MGen. Smith: I will not chew up your time by describing what the Canadian Armed Forces are doing around the world. That being said, number one, we must keep Canada safe. We’ve seen that with forest fires, et cetera, and we are very involved in that. Second, we have the new contributions to the modernization of the North American Aerospace Defense Command, or NORAD, and the extensive work there; we must get that correct.
Equally — you mentioned Europe — yes, we are contributing more forces into Latvia but more broadly contributing to NATO. We have an Indo-Pacific Strategy with very specific requirements from the Canadian Armed Forces as well. What else is out there? Important things are being contributed to the Middle East, to Africa, to a certain extent to the western hemisphere. I would not say Canada is the only nation looking at its broad military resources and saying there’s a lot to do right now.
The Chair: Thank you very much, Major-General.
Senator Boniface: Thank you for being here.
Mr. Lévêque, thank you for being here again and again.
I want to follow up on previous senators’ questions on the deployment to the U.S. mission in the Red Sea. You say three staff officers are involved. Maybe you can elaborate on their responsibilities. How will their input affect or help steer the mission itself?
MGen. Smith: Chair, again, I don’t have a lot of details, but, yes, as I described, there are three extra staff officers who are contributing to what is being called Operation Prosperity Guardian, which is about the protection of all naval assets in that region. They’re plugged into the regional security structure I talked about, the Combined Maritime Forces; they’re a part of that. They’re helping to contribute, just to see what they can do. That’s three. There are much bigger military headquarters than that, but I think they’re valued for what they do. They’re doing an important job to contribute and continue to protect both the civilian and the military assets that are using that waterway.
Senator Boniface: You may not know the answer to the question, but I’m curious what other countries would be contributing to that.
MGen. Smith: That is a good question. I’m aware that CMF had 37 countries involved, last I checked. It is very big number. It’s obviously not just NATO; it’s much broader than that. I would just say it’s a very broad contribution.
Senator Boniface: Great. Thanks so much. My next question is to Mr. Lévêque.
You’ve covered the global economic impact of this issue. Is it possible to talk about all the issues you must weigh? I’m sure this changes by the day or perhaps by the hour, in terms of Canada’s considerations of sanctions. I’m assuming there are economic issues, stability in the region. Can you talk a little bit about how you weigh those things as you move along?
Mr. Lévêque: Do you mean when we are determining how to position ourselves?
Senator Boniface: Yes.
Mr. Lévêque: Yes, obviously, we have a very wide set of considerations. We always start with looking at the safety and security of Canadians, both here at home and for Canadians who travel and live abroad. The kind of “do no harm” philosophy applies first and foremost. For example, we estimate between 45,000 and 50,000 Canadians are living in Lebanon. When we decide on our policy instruments and how to counsel friends in the region, including Israel vis-à-vis its border skirmishes with Lebanon, we have in mind the peace and security in the region as well as the safety and security of Canadians, of people who hold our passports. It has been the same with Gaza. That’s always consideration number one.
Then, of course, we have a long history of being, if not always present with boots on the ground in any given conflict, at least a helpful convener, an actor who advocates for diplomatic solutions, for dialogue. In the case of Yemen, for example, we don’t have a presence there. We cover our diplomatic relations there out of Saudi Arabia. Our levers then are limited, but through the UN, through our friends and allies that have special envoys, like the United States, we get messages and express support through them. That includes Saudi Arabia. We’ve resumed our thawed diplomatic relations with Saudi Arabia not long ago. We now have an ambassador based there, and the relationship has proven to be very productive. That gives you a few examples.
The Chair: Thank you, Mr. Lévêque.
Senator Cardozo: Mr. Lévêque, you mentioned your view that the Houthis are not the most rational. I don’t mean to criticize you personally, but oftentimes we are used to a certain way of looking at things, and when a new political force comes along, we tend to think of them as not being rational. Whether we’re looking at BRICS or Donald Trump or the Houthis, they are rational in their minds and in their approaches. They are unpredictable to us, and we don’t understand them. It’s really important to figure out their rationality because it’s just a different way of looking at things than the old world order that we’re used to. I just leave that as a comment. You can comment on that, if you like.
My question is if you could provide us with more information on where things stand now in the Red Sea, subsequent to the measures taken by the U.S. and the U.K. in the last couple of weeks.
Mr. Lévêque: I’ll make a quick comment on your first observation and then turn to my colleagues for the operations in the Red Sea.
I don’t disagree, senator, that we always need to put on different thinking caps to figure out where different players are coming from. I referred to the Houthis as an irrational group because we see actions taken by them that are actually going against their own interests and against the interests of the people whom they say they want to represent.
There’s a big difference between a non-state actor who is trying to destabilize a region and hurt its own people and the emerging countries, emerging economies which are very much rational. Maybe they apply a different lens, maybe a different set of rules, or they are wanting to challenge rules that were set by others. We absolutely respect that and try to better understand where they’re coming from and to create some bridges between the two. But those are state actors with a rational approach versus a non-state actor who is irresponsible, in our opinion. That’s just a nuance I wanted to inject.
MGen. Smith: I will speak to how we are going to get the Houthis to stop what they’re doing. I’ll go back to that term “deterrence.” I guess this is linked to rationality. We have to make them understand that they must stop doing this because, first, they won’t be successful, and, second, it’s going to hurt them. But that will take time. It’s not an insubstantial force. Again, it doesn’t mean we need to dismantle the Houthis. We need them to understand that they’re not going to get what they are trying to achieve and it’s going to hurt them while they’re trying to do it.
Senator Cardozo: Where are things at now? Have things calmed down at all in the last two weeks?
MGen. Smith: I don’t have an exact readout of the operation or how it has been going. There have been multiple rounds of strikes, so I would suggest it’s still an operation in process.
Mr. Lévêque: Chair, if we still have a few seconds, I’d like to turn to my colleague, Mr. Laporte, who may have an answer to this.
Eric Laporte, Executive Director, Security and Defence Relations, Global Affairs Canada: Thank you, chair. Over the past few weeks, we have seen a slight decrease in attack rates. Part of that, we understand, is on the U.S. side moving to more dynamic targeting as opposed to deliberate targeting. The ability, if you see things being loaded up onto rails and being prepared to be fired, those are being hit more frequently, which is having an impact on the ability of the Houthis to launch.
Senator Woo: The Houthi actions in the Red Sea are cynical, illegal and hugely destabilizing for the world economy. Is my perception correct, though, that all of that cynicism, damage and violence, notwithstanding the view on Arab street — to put it broadly — that they are getting a lot of support, even in Saudi Arabia, for example, and the Gulf states? Can you reflect on what’s happening here?
The real question is this: Is this support from Arab street, broadly, ephemeral — a rush of adrenaline — or structural? If it’s structural, then it’s a different ball game.
Mr. Lévêque: That’s an excellent question. There’s probably a distinction between how these attacks are viewed on Yemeni streets, the rest of the Gulf and the rest of the Middle East. On Yemeni streets, what you say is correct by our analysis and interpretation. There’s a bit of a “ra-ra” movement, which, again, only reinforces our belief that it’s part of the reason why the Houthis are targeting these ships — because they can bolster their own reputation domestically and not be criticized for or accused of neglecting their own people.
There are gradations, from what we observe, of dissatisfaction on Arab streets. There’s dissatisfaction in every corner of the world.
Senator Woo: It’s a horrible term; I’m sorry for using it.
Mr. Lévêque: There is a lot of dissatisfaction with leadership in the world right now. In the Middle East, in particular, the kind of lightening rod for this dissatisfaction and anger has been the conflict, generally the plight of the Palestinian people, the conflict between, in recent months, Hamas and Israel and the images we see on TV. It’s important not to conflate the two because different regions will have different gripes or different areas of dissatisfaction, but there’s no doubt, if you look at the Jordanian population and the Egyptian population, that there is a feeling of solidarity towards Gazans and Palestinians in general that is exacerbated by the current war that has been ongoing in Gaza for the last three or so months.
The Deputy Chair: This question is to Mr. Lévêque: What do the Saudis and the United Arab Emirates want the U.S. to do?
Mr. Lévêque: There’s what they’re going to say publicly and what they’re going to say privately.
The Deputy Chair: I’m inviting you to reflect on the private.
Mr. Lévêque: I think, first and foremost, they are driven by self-interest and stability in their own countries. They will always encourage their partners to do whatever is necessary to de-escalate and minimize the impact on Saudi streets and on Emirati streets. More than that, it’s about the message it sends to the world, the inbound investment and the vision they have for the development of the region.
I suspect what they ask of the United States — I have to say, “I suspect,” because I’m not in those conversations — is, “Help us help you. Help us negotiate things.” The Saudis are the only government that we know of that has a direct negotiation with the Houthis, an entity that we have been at war with for a number of years. And they — speaking of rationality because it seems to be the theme of the day — decided it was better to negotiate with that entity, and I’m directly quoting some Saudi counterparts that I have met in Riyadh who qualify Houthis as “irrational beings.” Nonetheless, they’ve concluded that it was better for their stability to negotiate with them, and they’re probably asking partners to help along with that by not exaggerating the escalation.
At the same time, they too have commercial interests. They too have an interest in seeing freedom of navigation protected. If their ships and those of others are being targeted indiscriminately, there’s a certain tolerance for allowing allies and partners to reduce and degrade that capacity for Houthis to attack.
The Deputy Chair: It’s an interesting situation where the problem is more than an American problem, but the only solution is American, or at least American-led. That, I guess, is the burden of being a G1 nation.
Major-General, there are reports of a Houthi attack on an Iranian ship. Can you confirm that? Was that an accident or a strategy?
MGen. Smith: I can’t, chair, and I don’t know. You’re ahead of me on that one.
Senator Coyle: Maybe I’ll just put out two quick questions. One is for Mr. Lévêque, and one is for Major-General Smith. Just to build on my previous question, Mr. Lévêque, I was also wondering about the Houthis. Yes, we know they’re playing to their counterparts — Hezbollah, Hamas — and Iran, of course, and back into their own people. Who else even beyond that region might they be trying to curry favour with? That’s a question for you.
Then my question for Major-General Smith is this: Regarding the planning support that Canada provides to the U.S. and the U.K. on the strikes, could you maybe help us understand how that gets triggered, where Canada makes the decision to provide that kind of support, on what basis? Thank you.
Mr. Lévêque: Thank you. What I would say is, in our assessment, it’s not so much that the Houthis are trying to curry favour for other groups or countries. I think it’s more about establishing their credentials as a resistance movement.
Senator Coyle: Among resistance movements?
Mr. Lévêque: Among resistance movements, yes, so very much staying within the orbit of Iran, ultimately, with the goal — in our best assessment — of being the only legitimate government of Yemen. That is definitely an aspiration of theirs.
MGen. Smith: I’ll try to respond to that question. As I said, as far as the strikes go, this is under what we call “Operation FOUNDATION.” We’ve had people in both the forward parts of the headquarters of United States Central Command, which is based out of Tampa and has been for years, at least since 2001. I know for sure we plussed up in 2001. They’ve been in that targeting chain since that time. Therefore, they are now in that headquarters. These people are physically in the staff. They’re assisting through planning. As the targeting system starts working up, they’re assisting in that. I couldn’t tell you person by person how it works. Therefore, they are part of the allied command that is Central Command, particularly the air force element mainly.
Senator Cardozo: I have two questions. I’ll put them out now, and you can take however many minutes you need to answer them, if you don’t mind.
First, perhaps, Mr. Laporte, you would be the one. How exactly do the Houthis operate with these drones? Do they send them out from shore? Do they have boats that go out on the sea? Looking at the map, are they primarily operating in the part of the Red Sea adjacent to Yemen?
My next question is about China and Russia. Perhaps, Mr. Lévêque, you could answer it. Are they playing a role in this conflict? Are they playing a role in terms of international aid to countries along the Red Sea? We know that they’re playing an increasing role in Africa. Are they part of what’s happening in that area?
Mr. Laporte: To answer the question in terms of Houthi capabilities, we’ve seen that they’re able to launch fairly long‑range missiles, but also drones and maritime sea drones.
They control a portion of the territory of Yemen, which is mostly on the western side, which is along the Red Sea that leads into the Bab el-Mandeb Strait. That’s where they physically operate.
What we’ve seen for strikes from allies have been those positions that are either along the coast or further-back missile launch sites and storage sites, et cetera.
Senator Cardozo: If the ships travel closer to Eritrea and Djibouti at that point, are they any safer or not?
Mr. Laporte: They’re still within range.
Mr. Lévêque: Some missiles launched from Yemeni territory by the Houthis have actually reached Israeli territory. Some of these are medium to long range. The narrowest portion of the Bab el-Mandeb Strait is only 25 kilometres, so it gives you a sense of the capacity they have.
MGen. Smith: Just in case we have a mental image of the Houthis as being a two-bit force, they have shown very robust capabilities, as was described by my colleague — attack drones, naval attacks, anti-ship ballistic missiles, attacks against Israel itself. They have proven themselves extremely capable, and there have been high-end naval assets in the region defending themselves and defending the ongoing container ships going by to protect them. It’s a very robust capability in that region.
Mr. Lévêque: To the other portion of your question, senator, I can’t say I have concrete details or extreme fidelity on what sort of assistance Russia or China would be bringing to countries in the neighbourhood.
They have differing approaches as to how to strategically position their assistance. Russia tends to do it in a way that fills a void, as they have done, for example, in Syria for a number of years. China tends to do it through commercial assistance, development of infrastructure, but I can’t say that I have the sort of details to be able to say they’re providing this to Eritrea or this to Djibouti or this to Yemen.
Senator MacDonald: Just out of broad curiosity about what’s going on over there with the American naval presence, is there ample expansion there? As the Houthis get more aggressive, do you think there is a real danger of escalation?
MGen. Smith: I’ll say it this way: The West, writ large, does not want to get into a war in the Middle East. We have the situation in Ukraine with the illegal attack of Russia, and that has drawn a lot of attention.
Canada has an Indo-Pacific strategy; the U.S. does. A number of nations recognize the economic and people-to-people importance and future in that region. I could go on.
I think we’re all trying to just stop it. That’s why I used the term “deterrence” several times. We want to deter the Houthis to say, “This is not worth doing. Stop attacking commercial shipping, anything going through. This isn’t a fight you want to get involved in, and we don’t want to do it either.” I think that’s a common stance in the region, and I think Canada follows that.
The Deputy Chair: With that, I want to thank our witnesses, Major-General Smith, Assistant Deputy Minister Lévêque and Executive Director Laporte, for your testimony and your willingness to come back from time to time as the issues evolve. Thank you very much.
We’re proceeding to our second panel to discuss Canada’s commitments and obligations under the International Criminal Court and the International Court of Justice regimes. To discuss these international legal frameworks, we are pleased to welcome, from Global Affairs, Louis-Martin Aumais, who is the Acting Assistant Deputy Minister, Legal Affairs — Alan Kessel, the Assistant Deputy Minister, is not available today — and Rebecca Netley, Executive Director, Accountability, Human Rights and United Nations Law Division. The opening statement is from Mr. Aumais.
You have five minutes, followed by questions from the participating senators. The floor is yours.
[Translation]
Louis-Martin Aumais, Acting Assistant Deputy Minister, Legal Affairs, Global Affairs Canada: Thank you very much, Mr. Chair.
[English]
I am pleased to appear before you today with my colleague to provide you with background information on the International Court of Justice, the ICJ, and the International Criminal Court, or ICC, which are pillars of the international legal system and which serve different purposes. I will also briefly touch on Canada’s obligations under these accountability frameworks.
[Translation]
Let me begin by giving you an overview of the International Court of Justice, which is the principal judicial organ of the United Nations. The court was established by the Charter of the United Nations and is based in The Hague, Netherlands. The court has a dual mission which consists, on the one hand, in settling legal disputes referred to it by states in accordance with international law and, on the other, in giving advisory opinions on legal questions submitted to it by UN bodies and UN agencies duly authorized to do so.
[English]
Canada was a founding voice of the ICJ and remains a strong proponent of the court’s independence and its critical role in the peaceful settlement of disputes between countries.
The court can entertain a dispute between states only if the states concerned have accepted its jurisdiction in one of three ways: first, through declarations recognizing as compulsory the jurisdiction of the court; second, by virtue of a jurisdictional clause allowing a party to a treaty to refer a dispute over the interpretation or application of that treaty to the court; third, by entering into a special agreement to submit a dispute to the court.
[Translation]
Of the 193 member countries of the United Nations that are also parties to the Statute of the International Court of Justice, 74 have submitted declarations — often with reservations — recognizing the court’s jurisdiction as compulsory. Canada has submitted such a declaration.
[English]
By signing the UN Charter, UN Member States undertake to comply with the decisions of the court in any case to which they are a party. A state that considers that the other side has failed to perform its obligations under a judgment rendered by the court may bring the matter before the UN Security Council, which is empowered to recommend or decide upon measures to be taken to give effect to that judgment.
As for advisory opinions, they are responses delivered by the ICJ to legal questions on international legal matters raised by UN organs and specialized agencies. Contrary to judgments in contentious cases, advisory opinions issued by the court are not legally binding. Nevertheless, governments, lawyers, academics and civil society organizations often regard its opinions as clarifying or developing international law as well as guiding foreign policy and international relations.
Before turning to the ICC, I should note that Canada is currently involved in a number of cases before the International Court of Justice, two as an applicant, one as a respondent and two as an intervenor. These include one seeking to hold Syria to account for its heinous violations of the Convention against Torture, and another case, as you probably are aware, seeks justice for the families of the victims of Ukraine International Airlines Flight 752 unlawfully downed by Iran.
I will now turn to the ICC, which is a permanent court of last resort with jurisdiction to investigate and prosecute individuals for crimes under the Rome Statute, the founding treaty of the court, in situations where states parties do not have either the will or the capacity to investigate and prosecute domestically crimes under the jurisdiction of the court. These crimes include crimes against humanity, war crimes, genocide and the crime of aggression.
The ICC prosecutes individuals, with the aim of establishing their individual criminal responsibility. States have no role to play in investigations or trials which are before the court.
Canada played an important role in the negotiation of the Rome Statute, which came into force on July 1, 2002. Canada was the first state to implement the Rome Statute into its domestic law, primarily through the Crimes Against Humanity and War Crimes Act. Today, there are 124 countries that are party to the Rome Statute.
Allow me to briefly describe the ICC investigation process, which usually begins with a preliminary examination of a situation by the Office of the Prosecutor of the court. This can be seen as a filtering process to distinguish events that warrant investigation from those that do not.
If the prosecutor believes there is a reasonable basis to open an investigation of his own initiative, he must seek an authorization from the court’s Pre-Trial Chamber. If there is a situation referred by a state party or the UN Security Council, the prosecutor may open an investigation without Pre-Trial Chamber authorization. At the investigation stage, the Office of the Prosecutor may collect and examine evidence and seek cooperation from any state or intergovernmental organization. In this regard, states parties have an obligation to cooperate fully with the court.
At any time after the opening of an investigation, the Office of the Prosecutor may request the issuance of an arrest warrant against an individual under investigation, and once the investigation is complete and the charges are confirmed by the Pre-Trial Chamber, the matter proceeds to trial before the court.
Mr. Chair and senators, I will conclude with a few words on Canada’s engagement with the ICC. As a strong supporter of the ICC, Canada supports its independence, including the independence of its prosecutor and the decisions taken with respect to the conduct of the prosecutor’s investigations in all situations.
As part of our commitment toward the court, we work closely with other states parties to strengthen the court in its important work to combat impunity. Canada supports the court financially, through its assessed contributions, and through the deployment of Canadian personnel and voluntary contributions to the court’s Office of the Prosecutor Trust Fund, which aims to increase the court’s capacity to investigate sexual and gender-based crimes and crimes against children. We also contribute to the Trust Fund for Victims.
[Translation]
We’ll be very pleased to answer any questions you may have.
The Deputy Chair: Thank you very much, Mr. Aumais.
[English]
We will begin our questioning. Again, colleagues, we will start with the first round of four minutes.
Senator Ravalia: Thank you very much for being here.
I was hoping you may be able to elaborate further on the recent case of South Africa’s ask of the International Criminal Court to order Israel to immediately stop its current conflict in Gaza and the ICC’s response.
I believe in my own heart that this process has led to polarity in our globe — those who are pro and those who are against — and at the end of the day, these processes take a significant amount of time to arrive at some sort of conclusion.
In your opinion, what do you see as the value of these courts in truly bringing justice to situations that are brought before them?
Mr. Aumais: Senator, thank you very much for your question. I will take it in two aspects. I might start with your last question about the value that we attach to the court.
The peaceful settlement of disputes between states is fundamental. It cannot be more important today than it has been before. It is a pillar of our rules-based international order that we are able to bring disputes between states in a structured, predictable framework, such as the ICJ. That’s why the ICJ has been established at the same time as the UN Charter.
As a good friend and colleague would say to me, “The wheels of justice turn slowly, but grind fine,” in the sense that the judgments of the court are well informed. The timelines for procedures — I agree with you, senator — are not the shortest, as it is the case for the current case that was presented by South Africa, and I would be happy to explain in detail the broader timeline if I’m allowed.
But it is a system that works very well. As I mentioned, Canada is very much involved in the work of the court these days and will continue to be for quite some time. For my colleague and me, being at the Peace Palace on a regular basis, we can admire the efficiency of those operations, so it is something to note here.
On the South African application — I’m just speaking as a legal adviser for the department — the matter that is before the court will be there for some time. An initial step was immediately requested by South Africa upon filing its application to ask the court to make provisional measures to preserve the rights of the parties while the matter reaches the merits stage. From our best estimation, it will take at least two to three years before the matter is heard on the merits, so you can understand the motivations of South Africa in making that request very quickly.
The threshold that the court had to meet was very different from the threshold or the legal test that it will have to apply at the merits stage. It is very much like an injunction argued on the basis of affidavits. The court had to go on the basis of the facts as alleged by South Africa, which is different from a regular merits process, where the information and the evidence is tested by either side.
The court had to make a determination of what, if any, provisional measures it needed to take to ensure that the judgment it may make in the future, at the merits stage, could be applied. The court did not have to make any findings about the obligations or rights under the convention. It had to meet a much lower threshold to determine whether the rights that South Africa was seeking to see protected in the interim period were related to the Convention on the Prevention and Punishment of the Crime of Genocide. The test was a test of plausibility.
The Deputy Chair: Thank you. We’ll stop there and come back to it if you wish in the second round.
Senator MacDonald: Mr. Aumais, thank you for being here.
I have one question regarding the ICJ and one regarding the ICC.
Canada submitted a new declaration accepting the compulsory jurisdiction of the ICJ on August 28, 2023. This declaration adds a new reservation to the reservations in the declaration submitted on May 10, 1994. The new reservation states that Canada does not accept as compulsory ipso facto and without special convention the jurisdiction of the ICJ where Canada has not been notified in writing six months in advance of the submission of the dispute or claim to the ICJ, attesting the intention of the state to submit the dispute with Canada before the court.
This reservation seems to complicate and potentially obstruct the timely resolution of international disputes.
Can Global Affairs Canada explain why we did this and how it fits with Canada’s bigger goals for dealing with other countries fairly and following the rules of international law?
Mr. Aumais: Thank you, senator.
I believe you also had a question on the ICC?
Senator MacDonald: I’ll give that one next.
Mr. Aumais: Very well. On the declaration, you are correct, senator. A new declaration of compulsory jurisdiction was filed by Canada in 2023. The previous one was filed in the 1990s.
It is a trend among countries — including like-minded ones — to review the declaration from time to time and see if it compares with the declarations of other countries that we consider ourselves to be like-minded with.
The addition of the clause that you mentioned is in no way meant to make it more difficult to find peaceful settlement of disputes. That would be my assertion. In fact, it encourages states to sit down and have a period of time to discuss the object of the dispute before going to the court immediately.
You have to understand that the court is an institution that has, in its entire history of 75 years, issued only 200 judgments on the merits. The docket is not all that big, and the resources of the court are quite limited.
The court wouldn’t be able to express that view, but countries like Canada are, obviously, mindful of protecting the integrity of the jurisdiction of the court to make sure that it is able to play its role when it’s time for it to play its role. The belief is that it’s time for the court to play its role when the parties have not been able to have a negotiation or a discussion prior to bringing the matter to the court itself.
The court itself has in its jurisprudence the notion of dispute. There has to be a dispute between the parties, and there is no better way to ascertain that than to have that period of time.
Other countries have a similar clause. I can recollect Australia has the same, as does New Zealand and the U.K. We are drawing from best practices when it comes to that. I can assure you, senator and the entire committee, that it’s far from our intention to make it more difficult to ensure the peaceful settlement of disputes.
Senator M. Deacon: Thank you, and thank you to my colleague Senator MacDonald. I was trying to understand the reservations and the rationale behind the reservations.
Two of my key questions have already been asked, so I will jump in and do a quick pivot here on something that I actually spoke about this week in the Senate. It’s in our Foreign Affairs Committee report on the recommendation that Global Affairs Canada should maintain a legal affairs bureau and a legal adviser at the assistant deputy ministry level within the department.
I don’t know but suspect you might agree with that assessment. Can you elaborate — it’s not disconnected — on the niche role that you fill in this bureau and why it needs to be maintained? Thank you.
The Deputy Chair: Mr. Aumais? But remember Alan Kessel is listening.
Mr. Aumais: Thank you, senator. I am a foreign service officer, but I’m also a lawyer, a member of the bar in Quebec. Mr. Kessel recruited me into the legal bureau all those many years ago, in the previous millennium, as my colleague.
It is important to underscore that the legal bureau in the Foreign Affairs Department is an integral part of diplomacy, of the conduct of foreign relations. Many rules that frame relations between states — just embassies, consulates, how we deal with all that — are based on international law. Many foreign policy decisions are based on international law. What we’re discussing about the International Court of Justice is part of international relations.
We are in support of the mandate of the Minister of Foreign Affairs under the Department of Foreign Affairs Trade and Development Act. It is the mandate of the Minister of Foreign Affairs to promote the development and the application of international law in Canada’s external relations, so that is the function that we support.
As for the recommendations that you referred to, in many countries that we have close international legal relationships with — Mr. Kessel, for instance, is the Legal Adviser of the department; it is the formal title for the top legal officer in the Foreign Affairs Department.
[Translation]
In French, we say jurisconsulte.
[English]
His partners are at his level, which is Assistant Deputy Minister, which enables that pillar of international relations to be fully reflected in how we carry out our diplomacy abroad.
I am aware of the recommendation. Obviously, I will not be able to discuss or comment on its implementation by the department, but I can assure you that the bureau as it currently operates delivers incredible value for Canada, not as an aside but very much as a pillar of Canada’s diplomacy.
Senator M. Deacon: Thank you.
Senator Woo: Good afternoon, Mr. Aumais and Ms. Netley. I would like to ask you to explain more about the ICJ preliminary — I don’t know if “judgment” is the right word — statement that they made. When they took on the case from South Africa, they could have rejected the case, in which case they wouldn’t have made this preliminary statement about a one-month revisiting.
By making the one-month statement and proceeding with the case, they have accepted there is a plausible case for genocide; is that accurate to say?
Mr. Aumais: Thank you very much, senator, and allow me to clarify. The court has not formally accepted jurisdiction in this matter.
Senator Woo: Okay.
Mr. Aumais: The actual issue of jurisdiction of the court will be decided at a later stage; we estimate between 12 and 15 months. But because an application was filed by South Africa, and South Africa asked for provisional measures, like emergency measures, while the matter follows its process, it had to make some basic determinations, what we call prima facie jurisdiction. On the face of the file, as it is presented in front of them, is there enough for them to at least assume jurisdiction for the purpose of the provisional measures order that they were entitled to make under the statute of the court?
The plausibility element that you mentioned was a plausibility between the rights that South Africa was seeking to see protected during the interim period and the convention itself. The court had to ask itself: “Do I see a sufficient link, a plausible link, between the rights South Africa wants to see protected under provisional order measures and the convention?” The court is very clear in its order, and actually two judges who also made separate statements were very clear about that: The court did not make any determinations about the rights or obligations under the convention. It is waiting for the matter to be dealt with at the merits stage, once the two parties have submitted their briefs and their evidence and each side has had the opportunity to test each other’s evidence, which was not possible at this very preliminary stage.
Senator Woo: The court could also have not taken the case further, correct?
Mr. Aumais: Correct. You’re absolutely right. There was a scenario, low likelihood, but it could have — and Israel, I believe, asked the court to strike the case off its list, but the likelihood of that we estimated would have been very low.
Senator Woo: And then, very quickly, what happens after the one month? Because they have said Israel needs to do certain things and so on. What can we expect? When does the one month come up? It must be very soon.
Mr. Aumais: The order was January 26, so 30 days from that. The 31st day of January maybe trips me, so I don’t know if it’s February 25 or 26, but it’s in those waters. The court has asked Israel to report on the measures it has taken to give effect to the order that the court issued on January 26.
The Deputy Chair: We have to move on to the next question.
Mr. Aumais: All that to say, the filing of the report will be made to the court. It’s a document. It will be filed with the court; it will be shared with South Africa. South Africa will be given the opportunity to review and comment, probably, on the document, and after that, the court will advise as to what it wants to do with that report. Remember that South Africa could be asking for more provisional measures in the future. It’s not a one-off deal. It can ask for more.
The Deputy Chair: Thank you.
Senator Boniface: Welcome and thank you for coming. Can you speak to the historical or perceived difficulties that come along with certain states not being signatories to the Rome Statute, such as China, or not ratifying it, such as the U.S.? Just give us a sense of how that works in the broader context.
Mr. Aumais: Thank you, senator. The International Criminal Court, as I mentioned in my remarks, is a mechanism that comes into play in a complementary way — i.e., the states that are party to the court also have an obligation to do their work and investigate and prosecute. If, for some reason, a state doesn’t want to, for whatever reason, or it doesn’t have the capacity to do it, then the court can come in.
The court will only consider situations for which it has jurisdiction, and the jurisdiction will be very dependent on whether the territory where it wishes to investigate is the territory of a state party. Again, it’s a general principle in international law that dispute settlement mechanisms require the consent of a state. It’s a general principle. I’m cognizant that for the ICC — we’re talking about individual criminal responsibility — actual people are before the court and could be found guilty and go to prison.
The fact that some countries have decided not to become party to the Rome Statute — you mentioned two — is based on matters they have carefully considered. We are, from the get-go, supporters of the court. We want to see the number of countries that are party to the statute increase. In the early days of the court, we were very active in increasing, by building capacity for countries, but ultimately the court depends on the consent of states. I think that’s how I would characterize it.
I would invite my colleague to add a few words, if she may.
Rebecca Netley, Executive Director, Accountability, Human Rights and United Nations Law Division, Global Affairs Canada: Thank you. I would just add that the one instance in which a non-state party can be brought before the jurisdiction of the International Criminal Court is, of course, when you have a UN Security Council referral of the matter. In the two examples that you provided, senator, of course, this would never occur, but the provisions of the court do allow for that. That, of course, is acceptable because it would be under Chapter 7. It would be the UN Security Council operating with binding authority that would make such a referral, but I agree with all the remarks that my colleague made.
Senator Boniface: On the UN Security Council — that was my other question — in what cases have they done that?
Ms. Netley: The case that comes to mind for me is Sudan. In the case of Sudan, that happened. I’m not familiar with whether there have been other instances, but we can certainly get back to you on that.
Senator Boniface: Okay. Thank you.
Senator Cardozo: Thank you. I just wanted to follow up on the questions around the role of the court, in part following up on your discussion with Senator Woo.
I just want to understand, in the case that South Africa brought to the court, why was it South Africa? Could Hamas or the Palestinian authority have brought the case? I understand it’s not unusual for a third party to bring a case forward. Does it have to be a state actor who brings a case to them?
What are the next steps? You mentioned the merits stage. Between now and over the next year or two, can parties add information to the case as the war develops?
Mr. Aumais: Thank you, senator. Only member states of the court can take cases to the court. The State of Palestine is not a member state of the court or the entity that you mentioned. That is the reason why they could not file and why other countries have decided to file in their own right. South Africa filed its case in their own right. It’s not doing so on behalf of somebody else. It’s asserting its own right. What was your other question? My apologies.
Senator Cardozo: Between now and the next year or two, can parties bring other information to the court?
Mr. Aumais: Absolutely. There is a process for that. There will be a very well-structured process run by the court in its registry office to enable both sides to submit information and evidence.
As I mentioned, there’s nothing that prevents South Africa as the applicant from submitting additional requests for provisional measures, bringing in new information to the court as the situation may evolve.
Senator Cardozo: Can other countries intervene as well? Would Canada consider intervening at any point? Are we able to?
Mr. Aumais: There are two provisions under the statute of the court for intervention. One is called Article 63, which relates to countries that are party to a convention; they can intervene strictly on issues of interpretation or application of that same convention.
In this instance, for the South Africa application, the registrar of the court has already informed, I believe, all states parties to the Genocide Convention that this matter raises an issue relating to interpretation or application of the Genocide Convention.
Even though there are only two states that are mentioned at the moment in that case, because they are dealing with a convention that has many more countries that are party to it, those countries can say, “Hey, I want to have something to say because I am also bound by that convention. I want to express my view about the interpretation or the application of the convention.” That’s the first way you could intervene.
There’s also an application under Article 62, where a state could also ask to intervene, but in this case, it would intervene as a party. It has to get the permission of the court to do that, and I understand that in the case of South Africa, I believe Nicaragua has made a formal request for intervention under Article 62.
Senator Cardozo: Thank you.
Senator Richards: My question was kind of asked. I was going to ask — and I think this might be the case — if Israel made a countersuit against Hamas for genocide in any way when they made their case to the international court.
Mr. Aumais: Thank you very much, senator. That is a very good question.
Because the entity that you mention is not a state, it could not be brought as a respondent to an application. That said, the entity you mention is subject to the same rules of international law concerning armed conflict and international humanitarian law, and it has to abide by those rules.
Seeing as we also talk about the International Criminal Court here, well, it is a matter that is already under investigation by the prosecutor of the court. It could also decide, in the context of its investigation of the situation relating to Palestine — the situation in Palestine, as mentioned by the court itself — to investigate acts committed by Hamas.
Senator Richards: And a quick question I just jotted down: Because so many of the major players, for obvious reasons, don’t recognize this as legitimate, does that tear apart some of the credibility of the international court rulings?
I’m talking about the fact that the United States, China and other major players do not recognize this as legitimate — and it’s for obvious reasons that they don’t. Does this, at times, undermine the legitimacy of the decisions made by the International Criminal Court?
Mr. Aumais: The countries that you mentioned have known views about the International Criminal Court. They’re on record for their views on that. They’re not part of that court. I don’t think it affects the legitimacy of the institution. It is an institution that has 124 parties to it. It has a very active investigation docket at the moment in many parts of the world, so I think its credibility is well established.
With respect to the International Court of Justice, all member states of the United Nations have the highest respect for the ICJ as the principal judicial organ of the UN.
Senator Richards: Yes, thank you, but you know why countries like the United States and China can’t sign onto this. If they did, they would be continually under the gun. They know it, and we know it. I’m not saying they’re right. I’m just saying that’s the reason, isn’t it?
Mr. Aumais: Yes.
Senator Richards: Thank you.
The Deputy Chair: Thanks very much. We’ll now go to the second round, and we’ll continue with four-minute rounds.
Senator Ravalia: To continue with Senator Richards’ theme, what implications, in your opinion, does the plausibility ruling of the ICJ in the South African case mean for Israel’s Western allies when we’re talking in the context of a rules-based order? Are we creating further polarity between different parts of the world in terms of thinking and philosophy?
The Deputy Chair: To whom are you addressing this, senator?
Senator Ravalia: To both.
The Deputy Chair: I was trying to get you off the hook.
Mr. Aumais: You’re very kind. Thank you.
As I mentioned in the previous answer, the court’s task, when it heard the parties on January 11 and 12 for the provisional measures order, was very targeted and specific. It got the world’s attention, no doubt about that. The court is not a court that seeks that attention, but it inevitably received it.
How individuals, organizations, entities or states position themselves in relation to those hearings belongs to them. The court has a job to do, namely, to hear the case as it’s presented by them. In that instance, it had to make a difficult determination about provisional measures. The plausibility element is part of the provisional measures order process. It’s strictly for that. It’s like in a domestic court at the emergency injunction stage. You don’t have much information to rely on, but you have the party in front of you that tells you, “Judge, you have to do something or else you won’t have much to judge on later.”
It is not on the full evidence docket that the court needs to make a determination. My view and the view of the court itself — and two judges who made separate statements, Judge Nolte and Judge Bhandari, were specific about that — is that it has not made any determination about the rights and obligations under the convention. It’s prudent to say that. Clearly, that doesn’t mean it can’t order provisional measures. It did. But it’s also sending a signal to the parties and, because its judgments are public, to the broader world that it is taking it one step at a time.
Senator MacDonald: A lot has been touched upon in the last four questions, but this segues nicely into it, I think.
Given that Canada took a major role in both the establishment of the International Criminal Court and the early ratification of the Rome Statute, why has Canada chosen not to ratify the 2010 amendments concerning crimes of aggression? These amendments were finalized in 2018. They define the international court’s jurisdiction over such crimes. Canada’s non-ratification gives the impression it limits the International Criminal Court’s authority in addressing potential crimes of aggression involving Canadian territory or nationals.
Can Global Affairs elaborate on the strategic thinking or reasoning behind this stance and provide insight as to how it reconciles this decision with Canada’s historical commitment to promoting international accountability and upholding human rights standards?
Ms. Netley: This is one for me, so thank you, senator, for your question.
While it’s true, as you say, that we have not ratified the Kampala amendments that adopted the crime of aggression and would include it as a crime that would bind us in the Rome Statute, it’s not true that we’ve made a concrete decision never to do so. We continue to study the question. Discussions will have to occur in due course with various colleagues around town at different departments. It may be a step that Canada takes in the future, but at this point we have not yet taken that step.
Senator MacDonald: That’s just kicking it down the road. What’s the reason? Why is it taking so long to make this decision?
Ms. Netley: There’s no one reason. In one sense, there are many things to accomplish, and we haven’t yet gotten to a full contemplation of that particular step because there is some complexity around taking that step and recognizing the crime of aggression. Again, it will require a dialogue around town, and we have not yet been able to move to the full consideration of that step.
Senator MacDonald: I guess that’s the answer.
Senator Woo: I’m trying to get a better understanding of this plausibility question. You have been very nuanced, and the judgment was nuanced. You’ve said that the interim order does not confer plausibility of the case of genocide. It simply establishes that it’s relevant to what might be considered later, sort of a step before a step.
What is the point at which we can say that the court has accepted that there is a plausibility, even though it hasn’t actually ruled if, in fact, genocide took place. You’ve said the case will take two or three years. Some time before then, are we able to say that the court has made that acceptance of the plausibility?
Mr. Aumais: I’ll preface my answer by saying that the “plausibility” term is used at the provisional measures stage. It’s not going to be part of the test that the court will have to make at the merits stage. That’s different. At the merits stage, it will grapple with the issue of whether there have been breaches of rights and obligations under the convention. When I talk about the merits, it’s determining if there have been breaches of rights or obligations under the Genocide Convention. It will make that determination at the final stage.
Senator Woo: When it’s making the determination, it said it’s plausible, then. Is that not correct?
Mr. Aumais: The court takes many pages to explain how it comes to the conclusion that it can make a provisional measure order. Part of that test is South Africa had to demonstrate that there are rights that need to be protected for the interim period until the merits stage, until the end of the case, actually. It’s not just an end when they argue the merits; it goes all the way to the final judgment.
The court is very specific in saying that they are not making any decision to establish existence of breaches of obligations under the Genocide Convention. They’re very clear about that. But they still understand there’s an emergency request to make some orders. They’re not prejudging their judgment. Sorry for the poor grammar. They’re not anticipating their judgment on the actual breaches of the convention, but there has to be a rational link between the rights that South Africa believes are in need of protection and the convention, which is the object of the case that South Africa has brought. It has to create that link between the two so as to enable itself to make an interim order. But again, in at least four places in the decision, it says, “We’re not making any judgment as to the breaches of the obligations.”
Senator Woo: I’ll just put the question on the record. You may not have time to answer. If and when it proceeds to the merits stage, looking at whether violations of the convention were made, does it also look at complicity of other actors in aiding and abetting these violations of the act through military sales, aid, failure to constrain, et cetera?
Mr. Aumais: Thank you, senator, for your question.
The Deputy Chair: Very briefly.
Mr. Aumais: Right now, the application is between South Africa and Israel. It relates to obligations that those two states have concerning the Genocide Convention. Other countries that are not a party to that case are not a subject of that matter at the moment.
Senator Woo: Thank you.
The Deputy Chair: If I could ask one final question, late November, we had the Prosecutor General of Ukraine, Andriy Kostin, before this committee. He spoke to us about the work that is already under way in Ukraine and the assistance that he was receiving from Canada. I wonder if you could just inform this committee as to how your bureau may or may not be implicated in the support Canada is giving to the Ukraine and the gathering of prosecutorial evidence.
Mr. Aumais: The Public International Law Bureau at the department is not involved in matters related to international criminal law investigations, although we play a role in giving effect to Canada’s leadership on the ICC and other tribunals. With that being said, I will turn to my colleague to speak to the interface we have with the Office of the Prosecutor in Ukraine.
Ms. Netley: Thank you. My colleague was correct in that we don’t provide any assistance. It’s not the role of the Global Affairs Canada legal bureau to provide any assistance to the Prosecutor General’s office in Ukraine. That said, there may be a role for the Department of Justice. They may be in more direct contact, particularly the war crimes unit, with colleagues at the Prosecutor General’s office.
That said, we are very much working with other colleagues in Ukraine who are involved in the consideration of other mechanisms. In particular, there’s a discussion around the creation of a potential special tribunal for the crime of aggression. Prosecutor General Kostin is not the lead with respect to the discussion in Ukraine, but his office has been involved and sometimes attends the meetings of the groups involved in that particular exercise.
We are very much working with Ukrainian colleagues on a range of accountability initiatives, including the potential creation of a special tribunal, but not with respect to supporting investigations in the purview of the Prosecutor General’s office itself.
The Deputy Chair: Thank you very much for your testimony today. It is appreciated. It gives credence to our report’s recommendation with respect to your bureau, and I appreciate your informing us on these matters, which are highly complex. We’re delighted to know that they’re in the hands of people who are very capable and professional.
(The committee adjourned.)