Standing Senate Committee on Foreign Affairs and International Trade
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Proceedings of the Standing Senate Committee on 
Foreign Affairs and International Trade

Issue 14 - Evidence - Meeting of October 4, 2012

OTTAWA, Thursday, October 4, 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 A. Raynell Andreychuk (Chair) in the chair.


The Chair: Honourable senators, today the Standing Senate Committee on Foreign Affairs and International Trade is continuing its examination of Bill S-10, An Act to implement the Convention on Cluster Munitions.

We have before us, from the Department of National Defence, Martin Green, Director General Policy Planning; Major-General Jonathan Vance, Director of Staff, Strategic Joint Staff; Colonel P.K. Gleeson, Deputy Judge Advocate General/Operations, Office of the Judge Advocate General; and Lieutenant Colonel Chris Penny, Directorate of International and Operational Law, Office of the Judge Advocate General. As you can see, we have an array of professional information and expertise before us.

Mr. Green, I believe you are leading off. Do you have an opening statement and will yours be the only statement?

Martin Green, Director General Policy Planning, National Defence: I do and it will be.

The Chair: Thank you. We will then go to questions.

Mr. Green, the floor is yours.

Mr. Green: We are pleased to be here today to discuss the role of the Department of National Defence and of the Canadian Forces in supporting Canada's efforts to ratify the Convention on Cluster Munitions. To begin, I would like to underscore an important fact; that is, the Canadian Forces have never used these weapons in any of their operations. National Defence has contributed to and strongly supported the convention from the pre-negotiations through the Oslo discussions to efforts now to ensure Canada becomes a state party to this important convention.

In fact, we have already put in place important measures to ensure that we respect Canada's obligations under the convention. Please allow me to briefly outline some of these as well as what we intend to do as Canada moves forward with the convention's ratification.

Our first significant effort in this work began in 2006, two years before Canada signed the convention, when the Canadian Forces began removing their cluster munitions from their inventories of ordnance available for operational use. Shortly thereafter they began disposing of their stocks. In a few weeks from now, Public Works and Government Services Canada will publish the last disposal contract, allowing the forces to completely rid themselves of this type of weapon from their stocks. Again, I would like to highlight that this process began before Canada's signature of the convention.

In 2008, when Canada signed the convention, the Chief of the Defence Staff took a second concrete step in our fight against cluster munitions when he issued a directive prohibiting the use of these weapons in any of the Canadian Forces' operations. I think it is transparent that the Department of National Defence and the Canadian Forces have clearly and firmly committed to the letter and spirit of the convention and have been since the beginning.

This agreement highlights the importance of international cooperation for the defence of Canada and for the creation of a more secure world. As we know, this cooperation extends well beyond our arms control efforts. That is why we have struck a careful balance that respects our treaty obligations while preserving critical cooperation with our defence partners. Indeed, international defence cooperation has been central to Canada's security for generations, and it will remain so for the foreseeable future. This collaboration takes many forms: information sharing, joint exercises, combined operations, to name a few. It is crucial in meeting our broader defence needs. This is true vis-à-vis a whole range of our allies, but nowhere more so than in our bilateral defence relationship with the United States. In recognition of this fact, the Canada First Defence Strategy directs the Canadian Forces to remain a strong, reliable partner with the United States in the defence of North America and to work alongside a variety of like-minded states, including the U.S. again, in contributing to international security.

Our vibrant partnership with the U.S. also brings us considerable benefits in terms of defence capabilities and opportunities, access to strategic information and decision makers, and it paves the way for industrial cooperation between our two countries. Preserving these key operational relationships and defence partnerships was a priority for Canada and for our closest allies during the convention negotiations. Because of this, we strongly contributed to the elaboration and adoption of a provision within the convention that addresses signatories' military cooperation with states that are not party to the agreement. It strikes a necessary balance between humanitarian obligations and security imperatives.

This provision, found in Article 21 of the convention and reflected in clause 11 of Bill S-10, does just that. It will allow Canada to cooperate meaningfully with its partners who have not yet signed the convention while at the same time complying fully with the letter and spirit of the convention and our obligations therein.

When put into practice, Bill S-10 will safeguard our bilateral relations with the United States and allow the Canadian Forces to remain fully interoperable with the U.S. military, a strategic advantage that few countries in the world can claim. They also preserve liaison and exchange positions that the Canadian Forces share with its most important ally and defence partner. They do so while ensuring that no Canadian Forces member will ever directly use cluster munitions or specifically ask that one be used when the choice of munitions is in our exclusive control.

In short, we have will be scrupulously meeting our convention obligations. Clause 11 of Bill S-10 was written in a clear and unambiguous way to ensure that members of the Canadian Forces understand these obligations. Direct use of cluster munitions during Canadian Forces operations will be banned, without exception.

At the same time, these two legal documents, the convention and Bill S-10, will give our men and women in uniform and the civilians working with them the legal protection they need to do their jobs without facing undue liability. This includes when they are participating in combined military operations, multinational exercises, training opportunities and military cooperation away from the battlefield with states that are not party to the convention. This is important and can be a matter of life and death on occasion.

Think for a moment of a Canadian patrol pinned down by enemy fire. Article 21 of the convention and Bill S-10 means that these men and women can ask for life-saving help from our allies, be they signatories of the convention or not, without fear of being disciplined or put on trial. This includes circumstances when our allies may choose to drop cluster munitions, actions which are not within the exclusive sovereign control of Canada.

Should the choice of munitions be given to the Canadian forces, which may happen in rare occasions, we will prohibit the specific request of cluster munitions.

Finally, in permitting us to continue cooperating with non-signatory states, these measures enhance our national security by protecting all the benefits that the Canadian Forces derive from a wide range of collaboration, from the laboratory to the battlefield. They allow Canada to continue contributing meaningfully on the international stage, and they do so, we believe, in a responsible way.

Nothing in Article 21 or Bill S-10 detracts in any way from Canada's existing obligations under international humanitarian law. This means that the Canadian Forces and its personnel will, at all times and during all operations, remain bound by obligations prohibiting the authorization, assistance with or participation in an indiscriminate attack, including one using cluster munitions, whether they are acting on their own or in concert with foreign partners.

As we move forward, the Department of National Defence and the Canadian Forces will build on the work we have done to date and on the recently introduced implementing legislation by issuing additional directives from the Chief of the Defence Staff. These will prohibit Canadian Forces members on exchange with allied armed forces from directly using cluster munitions and from giving or receiving training in their use. These directives will also prohibit the transportation of cluster munitions by the Canadian Forces. These restrictions go above and beyond the convention's requirements and will be implemented as soon as Canada ratifies the agreement.

Let me conclude by summarizing some key points. National Defence has already taken concrete action on cluster munitions. We have prohibited their use in our operations. We have removed them from active service, and we have all but completely destroyed our remaining stock.

Canada's active participation, along with National Defence and Canadian Forces experts, in the delegation in the 2008 negotiations was a testament to our commitment to the purposes and provisions of this convention. We are committed to its ratification and to its universalization. We are committed to our broader efforts to foster domestic and international security, and we recognize that neither of these is possible without close cooperation with our partners and allies, some of which have yet to sign the convention.

Until our goal of universalizing the convention is fulfilled, the interoperability provisions of the convention will enable us to remain a strong and reliable ally while ensuring that Canada meets its humanitarian obligations as agreed to in Oslo in 2008.

With that, we would be happy to take your questions.

Senator Hubley: Welcome. Thank you for your presentation. It was encouraging to hear, of course, that Canada has never used cluster munitions. They are what might be considered an obsolete weapon at this time, and, when they are used, the destruction is horrendous. Your remarks were very encouraging.

I would like to focus on clause 11 of Bill S-10 which, in addition to Bill S-6, would seem to give Canadians opportunities to use these cluster bombs, even though in your remarks I got the impression that perhaps that was not the case. The interoperability clause in the Cluster Munitions Act is what I would consider the careful balance of humanitarian issues versus security. That is why it is there. I think Canada negotiated with other state parties, and that was included to reflect the reality of today's operations.

Having said that, clause 6 deals with the prohibitions, which I think are pretty much in keeping with what you have mentioned to us this morning. When we move to clause 11, just as an example — and I will not go into all of the wording because it is repetitive, and it should be — it says that section 6 does not prohibit a person in the course of a military operation or combined military operations involving Canada and a state not party to the convention from, in subparagraph (1)(a), "directing or authorizing activity that may involve the use . . ." in (1)(b) "expressly requesting the use of a cluster munition . . ." and in (1)(c) "using, acquiring or possessing" or "moving that munition from a foreign state or territory to another foreign state or territory."

Subclause (2), under clause 11, says that section 6 "does not prohibit a person . . . from transporting or engaging in an activity related to the transport of a cluster munition." Subclause (3) goes on to aiding, abetting or counselling. Clause 11 seems to be of great importance within this act, and it somehow belies the fact that this is a fairly straightforward ratification bill to bring into force the Convention on Cluster Munitions.

In your view, are the exceptions in clause 11 of Bill S-10 consistent with the intent and purpose of the Convention on Cluster Munitions?

Colonel P.K. Gleeson, Deputy Judge Advocate General/Operations (DJAG/OPS), Office of the Judge Advocate General, National Defence: Senator, I would certainly be happy to respond to that. The bottom line answer is yes. The legislation does in fact enact the convention. It does so in a way that both identifies the prohibitions the convention requires state parties to implement, and it also implements the exceptions to those prohibitions, which are found in Article 21.

Senator Hubley: Some would say that this presents a loophole within the act, that it takes so much out of the act as to render it useless. On one hand, it is great that Canada is signing this convention, but when you look at the ratification legislation and find that it permits the use of cluster bombs and cluster munitions in many instances, you have to question what kind of a situation that presents.

Given what we heard from the minister yesterday, when Canada is working with the United States and other countries on a combined mission, it seems as though the Americans get to decide the terms. It is, in other words, the American way or not. Is this true? If we were to voice our objections to the use of cluster munitions and place restrictions on what our Canadian soldiers could and could not do, would the Americans turn their back on us? Would they refuse to cooperate on combined missions?

Major-General Jonathan Vance, Director of Staff, Strategic Joint Staff, National Defence: We can answer jointly. The JAG can answer from the perspective of what the U.S. obligations are.

From our perspective, it is essential that we follow the provisions of the bill and that the bill follows the provisions of the convention. That allows for the necessary mechanics to conduct operations. By being involved in the operations in the first place, in positions of high command, staff or independent command inside of a coalition, we retain, throughout, full command of the Canadian Forces and full command of their actions. It has been my experience that it is never one nation's way or the highway. It is always a cooperative effort. The very nature of a coalition, in many cases, is compromise, so by being there and being a party to that compromise we are able to continue to perform the duties that the nation would have us do in whatever the security situation is. Moreover, it allows us to bring to bear the necessary influence on the conduct of those operations as a good alliance or coalition partner.

Col. Gleeson: If I may add, Article 21 of the convention certainly recognizes the requirement of the state party to encourage states that are not parties not to use cluster munitions. The article goes on, in paragraphs 1 and 2, to indicate that those norms shall be promoted. These are truly strategic obligations that state parties assume when they ratify the convention.

Article 21 then goes on to recognize that despite those obligations that a state may pursue in good faith, it will not necessarily be successful in doing so with respect to non-state parties and may continue to choose to use cluster munitions. Paragraph 3 goes on to deal with that very tactical situation that may arise when that occurs. As a result, when looking at the implementing legislation we have here in these situations, it ensures we do not criminalize that conduct vis-à-vis Canadian Forces members who will be operating with those non-state party forces.

It is really a situation of strategic obligations but recognizing, in a world where not all states have the same view on this particular convention with respect to their own internal security decisions, that we will operate with those states. In operating with those states, there must be an interoperability capability that does not put our individuals at risk of criminal conduct when working with those forces.

Senator Hubley: I could not agree with you more. That is why the interoperability clause is there; it does recognize a reality. However, my point is that that is in the convention itself, but it is well covered in clause 6 of Bill S-10. Clause 11 goes on to what I think takes the integrity completely out of the ratification process in that it allows, under almost any circumstances, a Canadian to use cluster munitions.

I believe the minister had answered my question by saying that if a deputy commander, perhaps in a combined operation with the United States, was ordered to use cluster munitions he would have to follow that order. My question back to him was this: Knowing that Canada is a signatory to the Convention on Cluster Munitions and with whoever was in command knowing that, would it not be out of order, then, to order a Canadian deputy commander to use them?

Maj.-Gen. Vance: In that relationship of embedded exchange, I cannot think of a circumstance where a commander would order a deputy commander to use a specific munition. At that level we determine the effects that are to be achieved on the ground. The actual "weaponeering" and the detailed determination of the best munition for the target are done at a tactical level well down the chain.

It is germane in this case to refer back to what both the minister and the JAG have said here, which is that we are obliged to represent Canada. In the course of our duties, we may be authorizing operations within which a non-state party may well use cluster munitions. That is what this is talking about.

Senator Hubley: Yes, exactly.

Maj.-Gen. Vance: That allows one to perform an active and useful role in a broad range of things that a deputy commander would do, which covers far more than simply the "weaponeering" of a specific incident or event. In fact, it is a huge responsibility. Canada plays a vital and important role, and indeed a shaping role, in the decisions that would lead up to any particular tactical act.

As an operation unfolds and any party is making decisions about how to arm and prepare their troops for battle, that is a national responsibility, as it would be for Canada. I find it difficult to imagine. Perhaps it takes what is being said here in the bill and puts it in a light that is probably not an accurate representation of how the flow of operations, information and orders would proceed at that level.


Senator Fortin-Duplessis: Thank you very much, Madam Chair. First of all, welcome. I am going to ask you about transportation. Of course, I understand that transporting cluster munitions on Canadian soil is prohibited. But transport is permitted by a state that is not a party to the convention. With our nearest neighbour being the United States, I imagine that, when that section was put in, it was for the Americans.

If cluster munitions are to be transported on Canadian soil, is the non-state party required to warn the Canadian government that it will be entering our territory and transporting cluster munitions?

Maj.-Gen Vance: I will answer that in English because I would like to be absolutely clear.


I suspect that the judge advocate will also want to weigh in here.

If the U.S. military is going to transport hazardous cargo into Canada via our air space or sea space, it does indeed alert Canada that it has hazardous cargo on board, and we would know the nature of that cargo. I think that answers the specific aspect of your question of whether we would be advised.

Col. Gleeson: Essentially this bill in no way imposes an obligation, but it certainly does not change any of the obligations that currently exist. As General Vance said, under other mechanisms and processes notice would be given, but not pursuant to this piece of legislation.


Senator Fortin-Duplessis: Could you also tell me whether, in the interest of Canadian defence, you accompany the transit, or does it just happen, without you being there?


Maj.-Gen. Vance: It depends on the situation. Generally speaking with our allies, the Canadian air transport or sea transport procedures do not require them to be accompanied or escorted, if you will.


Senator Fortin-Duplessis: No escort.

Maj.-Gen Vance: No escort in Canadian air space.


I suspect that there would be times when you would see Canadians and their allies moving together on an exercise or on a deployment in Canada, but it is not for the purpose necessarily of monitoring. It would probably be for the purpose of the exercise itself.


Senator Fortin-Duplessis: My next question is shorter. Which countries have used cluster munitions? Where and when?


Maj.-Gen. Vance: I do not know all of the nations that have ever used cluster munitions and when and where. We know of instances on NATO operations in the Balkans, on U.S. operations in Iraq and on coalition operations in Afghanistan where cluster munitions have been used.

At this point, I would like to inject a piece of information that I think is useful to reflect on. All nations, certainly in this last 10 years, where we have been in different conflicts, and certainly reflecting back on the Balkans, we pride ourselves as being learning institutions. We and our major allies try to learn from the results of tactical action as they reflect back upon the capacity to create winning conditions.

In the past, when cluster munitions have been used and have been determined after the fact to have been perhaps not helpful in the prosecution of an operation, that is a lesson learned. Therefore, just because a nation has used cluster munitions in a particular circumstance in the past is not necessarily an indication that it will do so without any learning occurring into the future, if that helps. They have been used and Canada has not used them. The Canadian Forces have not used them, but we have all been witness to the conflicts where they have been used, to both good and bad effect.


Senator Fortin-Duplessis: Do you know whether countries continue to manufacture cluster munitions?


Maj.-Gen. Vance: I am not aware of the manufacturer of them. We are aware of nations that are neither signatories nor parties to the convention. Lieutenant-Colonel Penny could run you through a short list. I do not know where or if production is truly under way.

Lieutenant-Colonel Chris Penny, Directorate of International and Operational Law, Office of the Judge Advocate General, National Defence: With respect to specific production in countries, I would recommend for detailed information the Landmine & Cluster Munition Monitor, which is a report put together by non-governmental organizations. It gives detailed overview of the states that have companies that produce these weapons. States that have them in their inventories would certainly include allies like the United States or South Korea, Israel, Turkey and a number of other states on that list as well.


Senator Fortin-Duplessis: Russia too, I imagine?


Lt.-Col. Penny: Yes.

Senator Wallin: We have worked for the last 10 years with coalitions and partnerships in Afghanistan. At any point have any of our allies or partners who still condone the use of cluster munitions refused to do an operation with us or reprimanded us or chided us or given us any trouble because we refused to participate in operations where they might be used?

Maj.-Gen. Vance: No. That has never occurred.

Senator Wallin: We worked in Afghanistan alongside people that had huge caveats, like they could not fight, so I am assuming there is recognition that in some situations we play by different rules and there are no repercussions from that inside a coalition.

Maj.-Gen. Vance: In fact, that does point directly to the dynamics of coalition operations, which is germane to why the convention was written the way it was. Coalitions are, by their very nature, a compromise. A coalition is put together with a range from the weak and less willing through to those who are stronger and more willing. All nations that are party to a coalition want their forces to reflect their policies — that is why there are many nations with caveats the way they are — their values and, ultimately, to succeed in the security situation that is before them. Afghanistan is a case in point.

It is customary in coalition operations, and by their very nature alliance operations — NATO, of course, is exactly like this — that when the coalition that is put together is faced with the security problem that they are dealing with, they compromise and get over those compromises or get through them by issuing the appropriate orders and directions that account for the caveats.

In a case where a nation would not use a particular weapon, you would not eliminate them from the coalition. You would simply employ them in the coalition in such a way as to not cause them to violate a principle or a domestic law.

Senator Wallin: On the munition itself, it has been around for a while. Are there other pieces of ordnance that actually are as effective or do things in a different way?

You talked, General Vance, about lessons learned and that in some situations you might employ the use of this — not Canada but some ally might. You seem to be suggesting that somehow there are other ways and, in many circumstances, better things to do or more effective things. What is your thinking about that? What is the current thinking in Canada — and it may be even larger — about the usefulness of this weapon and whether there are other things that we can use that are more effective?

Maj.-Gen. Vance: You are right; we have learned and there are circumstances where you can use different means to achieve an end. The old saying "there is more than one way to skin a cat" comes to mind — my apologies to cat lovers.

We have learned in the past, in operations that are population centric — where the ultimate objective seeks to achieve an improved status in a country and where you are operating in close proximity to populations that are not party to the conflict but, perhaps, a hostage to the conflict — that you are faced with choices as to what you do to prevent the hostile actions of the enemy or the party to the conflict. For example, to try to prevent movement, you may use something like mines or this kind of ordnance; or you could deploy there and stop movement; or you could put up ISR and detect, or any combination thereof. We have learned that where there is a potential for harm to come to a population that could be moving in and around the remains of ordnance, and that would in and of itself harm the strategic objectives that you are there to achieve, then the learning kicks in and we say that there may be a better way to do this.

You would have seen, in the early days of Afghanistan, where there was a protracted fight against the movement of Taliban and al Qaeda through specific laneways and movement corridors in Afghanistan, a variety of weapons brought to bear to try to prevent that or to try to deal with that. There were a small number of forces on the ground at that time in Afghanistan, in the immediate aftermath of 9/11, trying to deal with what was essentially a terrorist threat.

As the operation progressed and as we started to do a more population-centric approach, I dare say you saw no cases of the use of cluster munitions to try to deal with what had become a counterinsurgency that needed different tools and techniques. That does not mean to say that there are no tactical circumstances ever where cluster munitions and the various types of them may be the preferred weapon of choice. I would think of large movements of tanks or vehicles attacking you, but it does not mean it is the only option. Canada has within its arsenal the ability to deal with that threat in other ways without using cluster munitions.

Senator Wallin: We have not put our men and women in harm's way by removing this option from our arsenal, if you will.

Maj.-Gen. Vance: No. They are in harm's way anyway, and we have ways to train and deal with the weapons and munitions that we have effectively.

Lt.-Col. Penny: To add briefly to those comments, the Canadian Forces has made commitments not to use these weapons and will, of necessity, find alternatives to deal with those situations. The challenge we are faced with is that other states that we work with, within their sovereign right, have made the decision that they will not necessarily use those alternatives. The issue is not obviously that we will use them, but that we still need to work with those states that have not made the same decisions that we have made.

Senator Wallin: That goes back to the point of compromise in coalitions and working alongside allies. As long as we are not asked to do it and as long as they do not reject us from the coalition for our points of view and our value systems, we will, in turn, not reject theirs, just not participate.

Lt.-Col. Penny: Yes.

Maj.-Gen. Vance: Finally, by being in the coalition, particularly in senior command positions, one can influence. Again, we do not necessarily talk about the specific "weaponeering" of a given act, to reference your last question, but you can influence how you see the situation broadly from senior command levels and give the appropriate planning guidance as to how one would deal with things. In terms of the coalition structure, there is an advantage to being in a position of influence. We do not use that inappropriately, but Canadian values and the approach we take in conflict come through. That is why we are a valued member.

The Chair: Before turning to Senator Dallaire, I have a supplementary to this point.

The act is structured to indicate that we want to be in full compliance with the convention. That is its intent as I understand from the material and the witnesses so far. However, there is an exception not to criminalize our forces when they are in a joint operation of some sort.

Our personnel are subject to scrutiny, however, through the forces, from your professional mechanisms to your own judicial processes — your own military courts and assessments. Does that all stay in place irrespective of the fact that we are in a joint operation? Is there some reassurance to the general public in Canada that your eye is still on Canadians to ensure that they are not using cluster munitions or being subject to any decisions and that the line is drawn such that they are there in theatre only when they have to be and there is no positive reinforcement of cluster munitions in any way? In other words, is our policy being furthered through them, and you are scrutinizing it and have mechanisms within your military tribunals to address any wrongdoing?

Maj.-Gen. Vance: Both the JAG and I can answer this from the perspective of how we maintain control over forces that are not acting directly under Canadian Forces control. We have absolute authority over them. The Chief of the Defence Staff never relinquishes full command of his forces, no matter the circumstances. They are obliged to follow the laws, the rules and the regulations. One reason this act is so specific is that it does make it clear so that there is no chance of stepping across the line. Then, the CDS supplements that with directives, orders and theatre orders to people who are away in these sorts of positions.

The answer is yes. They are beholden to Canadian law throughout. The CDS will prohibit the use of cluster munitions. In other words, we cannot use cluster munitions even if we are on exchange. We might be a part of the headquarters that is planning an operation within which a state or non-state party would use them. We might be in the chain of logistics that eventually resulted in an operation where they might be used, but we will not use them ourselves.

Should anyone contravene a CDS order, which is, in its own right, a legal right to issue orders that they are legally beholden to follow, they are subject to the Code of Service Discipline and, in this case, to the laws of this act. I think the JAG can further explain that part.

Col. Gleeson: I will simply reinforce the notion that Canadian Forces members deployed anywhere in the world are subject to the Code of Service Discipline and Canadian laws and values through that code, regardless of who their operating with, in what part of the world. When you look at this legislation, clause 6 is actually a criminal prohibition piece of legislation criminalizing activity. It sets out activities that are subject to penal consequences within the Canadian judicial structure and Canadian society. Clause 11 provides exceptions to that to recognize the fact that Canadian Forces members may find themselves in situations, as they deploy around the world, where they would otherwise be subject to these criminal sanctions. It is to ensure that they are not inadvertently subject to that situation as they work with allied parties that have not made the same policy and executive choices that we have made with respect to the use of this particular weapon.

Maj.-Gen. Vance: To drive the point home, I reflect on Minister Baird's testimony yesterday. It is an imperfect world. If all of our coalition and allied partners were signatories and states parties, this would not be an issue, but that is not the case. To be able to operate to pursue Canadian national interests in a coalition where there may be non-state parties at play, we want to ensure that even though we would rather not have our people in this situation, if they find themselves in that situation, they will not be held criminally liable for something beyond their control.

Senator Dallaire: Assume you have a company that is under attack, and it is calling for fire. Fire is either coming from artillery or air, and the fire control centre issues the target to an American aircraft or an American artillery unit. It is the fire control centre that decides what type of munition is used. Although our system is different, it is the fire control centre that decides if it is HE, white phosphorous or cluster munitions. They decide to fire cluster munitions in front of our position to protect us. Will the commander on the ground be held accountable for the fact that his forces were protected or in operations where cluster munitions were used to achieve his mission?

Maj.-Gen. Vance: This bill and the provisions that we have amplified by the CDS directives seek to prevent a situation beyond our exclusive control. If we have a choice on the ground, we will not direct the use of weapons.

Senator Dallaire: I have got all that.

Maj.-Gen. Vance: If we do not have a choice and we call for fire, the system has changed. The fire control centre does not have control. The forward air controller has the control. The JTAC has control of the ordnance that is dropped.

The situation that you have described is a rapidly evolving situation, not a planned target. No "weaponeering" has occurred; it is now an urgent call for fire. In that urgent call for fire, it is the forward air controller or the JTAC on the ground. The young master bombardier is the one who describes the target effect to be achieved and the preferred ordnance. No Canadian would ask for a cluster munition.

If the airplane is the only one in the sky and it reports in and says to the master bombardier on the ground, "The only thing I have on board is this," and the master bombardier still needs that fire for a lifesaving act to achieve his mission, then he would not be held liable or criminally responsible under the law for that act because it is beyond his control. He does not have exclusive control of the ordnance, yet he still must achieve it.

The stark reality for him will be to call for fire and get the effects needed or to risk his life and the lives of the soldiers that he is calling the fire in to protect.

Senator Dallaire: The question is in extremis, and that is what I was looking for.

Col. Gleeson: Without clause 11 of this bill, there is a distinct probability that he would be held criminally accountable under clause 6 of the legislation.

Senator Dallaire: Correct. We still have countries that are using them and have significant inventories of them, which is certainly a factor in their decisions.

Mr. Green, the argument that you presented this morning was very much based on the fact that we have not only worked in coalitions and as allies but also are particularly engaged in bilateral defence arrangements with our U.S. partners. Is that not correct? We know that the Americans are using cluster munitions and have significant inventories. You argued that in order to permit full interoperability with the Americans, we must continue to strengthen our bilateral defence arrangements and not put any other element of our bilateral arrangements at risk. You argued that it is advisable that we bring forward these amendments so that the Americans, in particular, will not raise concerns that their Canadian allies will not play with them or will not be able to function with them because they are using cluster munitions. Is that correct?

Mr. Green: I think so, if I am following you.

Senator Dallaire: That is the essence of why this whole amendment is there. It is our ability to have American forces under command, and we do not use cluster munitions but they do. They want that exception to be potentially used by mostly their forces using cluster munitions to protect their own forces, so that could be a factor in them putting their forces under our command, as has happened in Afghanistan.

It is the same thing as us having command of a coalition but we absolutely refuse to see those munitions in an inventory. That might influence the decision of whether we get command of a coalition force, because we are not playing with a full deck of cards. We have put that restriction on cluster munitions. Is that not correct?

Maj.-Gen. Vance: We are not the only signatory to this. There are 111. It has been recognized in the process of developing the convention that it is not simply a matter of the Canada-U.S. relationship that this convention was designed the way it was. It is to take into account that coalitions of the willing extend beyond the Canada-U.S. bilateral arrangement, although that is one important factor for us, but it means nothing to the other 110 signatories to this convention. The fact is the convention was written that way and therefore all of the nations that are going from signatory to state party status are doing the same work we are for the various reasons that affect them. In this case, the Canada-U.S. relationship is one to identify but it is not the only one. There will be many other potential coalition nations in the future of Canadian security in the decades to come that may very well need us to be able to operate multilaterally.

Senator Dallaire: General, I am well aware of that fact. However, the argument was presented here particularly with the bilateral arrangement and interoperability with our closest ally. I am responding to that fact.

I am also pushing it to the point that we have established that bomblets, mines and cluster munitions are not essential weapon systems within our inventory. We have decided that; we have signed it and we have agreed with it. However, I find it difficult to comprehend why we would then accept that for any other operation in which we are involved with allies who feel it is essential, we should be putting amendments to our position where we consider these things nonessential. We are adding amendments to allow us to work with them so they can use them. It would be possibly much more logical, if the weapon system is not essential, to be arguing with them that the weapon system should not be essential. If we are talking interoperability with our colleagues, we should be trying to influence them and others to get rid of that weapon system.

Why argue so strongly to put these exceptions here when we really do not want to play with those weapon systems? We do not think of them as essential. Why do we want to even engage in scenarios where those weapons are creating collateral damage of an extensive nature on the battlefield?

Mr. Green: I do not think the argument is that clear-cut. We were talking about a balance and we do see as a priority and as a kind of bottom line requirement that we are interoperable with our U.S. allies. They are certainly the key ally. By virtue of this exception, I do not think we actually increase the possibility of the use of cluster munitions. I think probably, although it would be hard to prove, we would go some way to making sure that there was a more considered approach to their use by our allies. There is no question that there is a balance. Is the suggestion, by virtue of the fact that we do not use them, that we should not be interoperable with the U.S.?

Senator Dallaire: Interoperability covers much more than cluster munitions. We are not interoperable with every element of our operations; we are not necessarily totally interoperable with our doctrine in tactics. In fact, we are not plagiarizing what they are doing. We hope that we are building our own concepts of operations, our own philosophy of war and our own doctrinal base that we hope is interoperable, but not plagiarized with them. There are other elements within our forces that are not necessarily interoperable. Incidentally, with NATO, we never achieved full interoperability either, but that did not prevent us from being functional and operational.

I am arguing that if we have a capability that we consider to be nonessential to achieving our mission, and to the extent where we actually destroyed the weapon — because the projectile is the weapon, not the delivery system — and then we put in here the need to keep the door open for interoperability with someone who has not made that decision yet, I cannot see how that will make them think twice. On the contrary, that will just make them use up their inventory and potentially use it in front of us and possibly create a scenario that we do not want. Why not have this exception and force them and encourage them to be more interoperable with the 110 other countries and get rid of that munition?

Maj.-Gen. Vance: You stated an opinion. We have explained —

Senator Dallaire: I am asking you why we have not gone that route instead of the route that you have established.

The Chair: Senator Dallaire, he started to answer. I would like to hear the full answer.

Senator Dallaire: No, but he asked me a question.

The Chair: He had not finished.

Maj.-Gen. Vance: I made a statement. I said, "You stated an opinion." That is not a question.

Our job here is to explain what this means to DND and the Canadian Forces. I think we have done that.

I remind you that this is more than just Canada-U.S.; it is a multinational, 111-nation effort through the Oslo process, where the convention resulted in the recognized need by those nations who are signatory to it to have these exceptions to allow internationalism to foster. Even though we abhor their use and would prefer they were not used, and indeed we hope that we could influence against their use where it makes sense to do so, we would retain a good alliance partner and coalition partner status.

Sir, to bring it down to just the Canada-U.S. dynamic is unfair to the wider efforts. I do not think the choices are as stark as you would suggest. I think the desire to maintain an international interoperable posture, which does not just mean tactical interoperability but the ability to even be in the same theatre of operations.

Senator Dallaire: Exactly.

Maj.-Gen. Vance: We see here that we can be in the same theatre of operations and operate with multiple allies, some of whom may or may not be parties to it. The specifics are to allow that to happen without compromising our forces who are in place and putting them in jeopardy of breaking Canadian law, or for the other nations that have signed up to break their own national laws, and we are able to continue.

The very purpose of this is to do exactly what is intended, which is providing some international leadership and bringing pressure to bear through the process to try and encourage the elimination of this weapon. In the process of doing so, we must still be able to achieve the objectives that Canada may set for us internationally with the partners that come. Therefore, I would ask that we look at the wider issue and not simply the Canada-U.S. bilateral piece.

Col. Gleeson: The convention itself appears to recognize that the stark contrast is not quite as stark as suggested. Article 2 does talk about this obligation to promote the purposes of the convention, but it also recognizes that on a very practical level states that are party to this may not be successful in convincing their allies not to use these weapons or promote the aims of the convention. Therefore, it provides a mechanism to ensure that interoperability can continue in a manner that ensures those forces can operate. From the perspective of our legislation, you see that reflected in the exemption to the penalty clauses there.

There are choices here. There are definitely competing objections and aims, and the convention seems to recognize that in and of itself.

Senator Dallaire: I am not talking about just the U.S., but we know who the big players are and who they influence, in particular with interoperability and standardization, so let us not hide that. You are absolutely right; we are worried about other players in any type of coalition. That should not be negated.

With respect to the possibility of us keeping training stocks, do we anticipate the absolute need by the air force or artillery to have to use live munitions, or have those training stocks also been destroyed?

Maj.-Gen. Vance: We do not intend on maintaining any cluster munitions in our inventory.

Senator Dallaire: Any at all?

Maj.-Gen. Vance: Zero.

Senator Dallaire: The information may be erroneous, then.

Maj.-Gen. Vance: I think there are provisions in the conventions that nations may. Did you want to cover that?

Lt.-Col. Penny: That is correct, sir. There are provisions within the legislation that would permit that, should it be considered necessary, but at present there is no indication that we will need to rely on that.

Senator Dallaire: How can you say something like that when you say you will never use them?

Lt.-Col. Penny: The convention itself permits retention of stocks, not for use in training but for training with respect to clearance and development of countermeasures, which at this point there is no requirement for the Canadian Forces to maintain those stocks for those purposes. However, the convention would allow us to do so, if necessary, and the legislation leaves open that possibility, should it be required in the future.

Maj.-Gen. Vance: Sir, a future DPICM — dual-purpose improved conventional munitions — may have a fuse setting and a mechanism on it that may require our engineers, in the process of conducting their duties to do an operation, to dismantle that, if it was that kind of munition. Therefore, to retain the ability in the future, should the weapons evolve to the point where we would need to arrive at training schemes to ensure our soldiers were safe to either protect themselves or the citizens they are there to serve, that is why. It is not at all — at all — to use.

The Chair: How long have cluster munitions been around and used by any of our coalition forces?

Maj.-Gen. Vance: Since the 1970s. At least that is what I am familiar with. There may have been nations who were working on this for years before that, but I think the modern generation of DPICM have existed since the 1970s.

Does anyone know anything different?

Lt.-Col. Penny: I think the first reported use was around World War II, but it is my understanding as well that the weapons we are now talking about are largely weapons that began to see widespread use, or at least widespread inventorying, in the 1970s.

Maj.-Gen. Vance: The modern weapons.

The Chair: What I am having difficulty understanding, to get a convention, you need the public to understand the destruction a weapon causes and therefore public opinion that says it is an unacceptable way of defending ourselves. That is basically how I look at it from the public point of view. Land mines seem to have been the issue that has absorbed the attention of the public, and very recently, cluster munitions have been the subject of debate, other than certain NGOs that have tracked this.

Is there a role for Canada in Article 21 to really embrace public information about the use of cluster bombs? Today in technology, borders mean nothing. If we did more to advertise in a public way the horrific use of these weapons, would we be serving Article 21 better? Do you feel that is a public policy question? I did put it to the minister and the department as well.

Mr. Green: It was mentioned earlier that there are a number of NGOs that publish that information, quite accurately, as I understand.

In terms of a Government of Canada role in that, by virtue of what we are doing in ratifying the convention, I think that is a clear signal of this government's intent on this issue. I am not aware outside of that to what extent we might advertise or highlight this as an issue, but certainly by virtue of this legislative process and the design of the convention, I think that is the government's statement.

Then, as I say, there are the NGOs that highlight this on a frequent basis, where the stockpiles are, the types, et cetera.

The Chair: Will there be any public awareness campaign for the public to understand that it is a balance of our defence and capabilities against the horrific use of this particular weapon, cluster munitions, and that this convention comes down, recognizing that countries have an obligation to defend themselves, both individually and collectively in certain cases, but on the other hand, there are other means and that we have drawn the line on no cluster munitions?

Mr. Green: I am not aware of any specific program. As I say, by virtue of this process — the Department of Foreign Affairs would lead in that regard by virtue of our embassies abroad and our normal communications concerning what we are doing in this process. However, I do not think there is a big advertising project out there, not that I am aware of.

Senator Hubley: The Ottawa convention was mentioned a moment ago. Am I correct in saying there is no interoperability clause in the Ottawa convention that governs the use of land mines?

Lt.-Col. Penny: That is correct.

Senator Hubley: It has been a successful program, in my mind anyway. It is certainly going forward.

Lt.-Col. Penny: I am not sure how to respond. I would agree that it has been successful.

Senator Hubley: I just wanted to clarify that. I will make this as quick as possible, having listened to the debate this morning.

Could we have written clause 11 in Bill S-10 differently? Could we have written it in a way that could have allowed interoperability with states not party to the convention without such explicit language and so many exceptions? For example, could we have clarified that Canadians can not be held responsible for the actions of a foreign military during combined operations without giving Canadians such explicit right to use clusters, as is currently obvious in clause 11. Could it have been stated differently?

Maj.-Gen. Vance: It is not "explicit right to use." Nowhere in there is there an explicit right to use. If there is non- exclusive capacity — in other words, you are in a situation where there is no other choice, you still have a job to do and you are either in or working with an allied force, then — I do not want you to characterize it, senator, as "use" because Canadians do not intend to use cluster munitions.

Mr. Green: Just before going to JAG, with respect to these conventions, there is always a lot of discussion over the language going forward and there are all these options. I think this one has been through a particularly long process to bring some real clarity to where the exceptions might be so that there is no debate there.

Col. Gleeson: I will add to that and ask Lieutenant-Colonel Penny to do so as well.

The language in clause 11 is drafted to address the contents of the convention and, most important, clause 6 of the legislation, which provides for the prohibitions. Given that it is criminal in nature, it does need to be specific and clear with respect to what is authorized and what is not. "Authorized" is the wrong term because this is not authorizing legislation, but what will not fall within that prohibited conduct, which is broadly set out in clause 6.

The language has been generated in the manner we see it in the legislation to ensure there is absolute clarity with respect to what was previously provided in clause 6.

Lt.-Col. Penny: To amplify the point, this legislation does not authorize or direct any specific action at any specific time. It only establishes protections from criminal liability in those circumstances.

To address the more specific question, precise and detailed language is needed to ensure that the certainty for criminal law standards is met in order that it is very clear and known to the individuals who will be governed by this legislation what is captured and what is not.

Senator Hubley: You are probably aware that the ratification legislation that Australia is dealing with now is stuck because of the interoperability clause. There has been some suggestion that the Canadian legislation is still weaker than the Australian. That is why we are concerned with what exactly clause 11 does and does not do, what it allows to be done and how it reflects the character of the convention. That is my concern.

Mr. Green: My understanding is that Australia has recently passed their law and it has received Royal Assent.

Lt.-Col. Penny: That is my understanding as well.

Senator Hubley: I believe it was stuck in the Senate for something like a year getting it corrected.

Due to the exceptions that are stated in clause 11, do you believe that you are putting the Canadian Forces in any sort of a moral difficulty? Their country has banned the use of and declared that it will never use cluster munitions, and now they are in a combined operation where it is possible that they will have to in some way use them.

Maj.-Gen. Vance: Again reflecting on Minister Baird's comment, this actually strengthens the position both of the nation and the Canadian Forces. Real clarity is of great value to our soldiers. That which comes into law will be clear, and it will be made more so by the CDS, if necessary, through the issuance of orders and turning this into operational language with which soldiers can deal.

These clarifying provisions are exactly what is needed. They will give confidence to the troops on the ground. If Canada was a state party to this convention and there was a lack of clarity, that would be unfair to the soldiers on the ground.

Senator Wallace: General, as you have described, the bill outlines the prohibitions in clause 6 and then in clause 11 provides for the exception that would apply in combined military operations. The provisions of the bill, of course, must be consistent with the convention, and I believe you are of the view that it is consistent with our obligations under the convention.

Article 21 of the convention provides for these joint military operations. One of its provisions is that a state party may not use cluster munitions. Do you feel comfortable that if the operations of a non-convention state were under the command of a Canadian Armed Forces individual and that individual gave the direction to use the weapon, this would not be considered use by Canada but rather use by the state that had the weapon?

In other words, if we have command and control of the operation, is there any concern that that command and control could effectively be considered to be use by Canada, which obviously we do not want it to be?

Maj.-Gen. Vance: That is exactly why the bill is drafted in this way. It is to make it clear to that individual that, as far as Canada is concerned, they are compliant if they are performing their legitimate duties as a commander of an operation but not in command of Canadian Forces.

If you are exclusively commanding Canadian Forces, you may not use cluster munitions, and no Canadian Forces' asset will be used to do that. However, if you are individualized, as occurs when you are in a command or staff position in a coalition, and you are in a position to, by necessity, authorize the actions of a non-state party that are completely legal and legitimate under the laws of their country, you are within the law. Everyone brings their own nation's laws to bear as they prosecute coalition operations. I do not know of any nation that abrogates their laws when they go into an international arena. Therefore, we are required to continue to follow Canadian national law.

The exceptions in this bill make a provision for that. Therefore, you are in neither a legal nor a moral problem because that has been dealt with. It is that clear and that specific, and that is a good reason for it.

Senator Wallace: I understand that. I think you have answered the question. I was asking not so much about the individual as about the obligation we have as a state that has agreed to conform to the convention to not use these munitions. My point is that directing another country to use this weapon would not be construed as being our use. Do you feel comfortable that would not be the case?

Maj.-Gen. Vance: I do, sir. Again, at those levels, we are not necessarily directing that you use that weapon. We would not be telling a non-state party, with the range of choices that we all have, to use that particular weapon. We may be in a position of having to authorize what those state forces had chosen to do, because everyone retains full command. That is quite different from having the initiative and directing the use of these in the first place.

Senator Dallaire: I think we are facing a rather interesting ethical question here inasmuch as the bill permits the Canadian commander of a multinational force to authorize or direct a non-party state armed force to use, apply, possess, import or export cluster munitions.

You are the first commander of a coalition force; you may have Canadians with you or you may not. You are the one ultimately responsible for the rules of engagement of that force, and every nation that is in there negotiates with the force commander what they can and cannot do.

As the Canadian general officer in command of a coalition force, with our perception of that weapon system on the battlefield and with your professional knowledge of the value of that weapon system, do you feel that you could order that that weapon system not be used under your command?

Maj.-Gen. Vance: Thank you for the question, sir. It does speak to the heart of some of this, for sure.

I just want to make one point of clarification. Rules of engagement are always and solely the discretion of the nation providing their forces. A force commander is not permitted to adjust national rules of engagement. He understands the rules of engagement and the caveats that are brought to bear and then uses those forces appropriately. There was a time when force commanders tried.

Senator Dallaire: The ROEs are ultimately the responsibility of a force commander and his command, but each nation will give its caveats to rules of engagement, and a force commander cannot go against those caveats. That has never been in question.

Maj.-Gen. Vance: Okay, I just wanted to make sure that we got that.

As far as the ethical question is concerned, first and foremost, to be ethically sound, we have to be abiding by Canadian law and expectation. When this comes to fruition, the Canadian law and expectations will be extant and clear in it, and we will abide by it without question. There is that component.

As for Canada's abhorring the use of this weapons system and being in a position in a theatre of operations where another states party might use it, my take on it is that I would rather be there in a position of possible influence. I would rather be there in a position to say, "Hey, I have a better idea," particularly if I am in a position of authority. In the worst case, I would rather be there to know that they were used and to ensure that there were no duds and that it was cleaned up. If you are the force commander, you can say, "Okay, it was used, but let us put a big red box around that area, warn the public and do what we need to do to try to mitigate it." The danger of the stark contrast of not going to play because others are using that stuff is that if we were not in that international position of utility as an alliance partner, we might not be in a position to do the right thing after the fact or to try to see other ways of achieving a military objective without using these weapons.

A force commander — and, again, you know this better than I do — rarely directs the use of a specific weapon. He will ask a contingent to achieve an effect. If that contingent is a non-states party and it is completely within their law and they do not have the ethical challenge that you suggest, the force commander has the right to try to moderate how they might look at the situation. He could set the situation up in such a way that maybe they do not feel obliged to use that weapons system. In the end, if they do, at least the force commander is in a position to mitigate it and follow up. He is aware of the situation.

Senator Dallaire: With your answer and the previous ones, you are alluding to the fact that the possibility could exist, without these amendments, that Canada would not be called upon to be a commander of a coalition because of the position that it would be holding if we did not have these amendments. Is that correct?

Maj.-Gen. Vance: I do not think I am quite putting it that way. I am saying that with these amendments in place we would be able to function and not be held criminally liable in Canada for being what could be construed as a party to use.

Senator Dallaire: That is one side.

Maj.-Gen. Vance: That is simply what I am saying, sir. It allows the officer or people in question to be able to function effectively in a coalition without threat of legal action by Canada against them.

Senator Dallaire: It has nothing to do with interoperability, then?

Maj.-Gen. Vance: It has everything to do with interoperability.

Senator Dallaire: It does not. We do not need it.

The Chair: I gather you will agree to disagree.

Gentlemen, thank you for coming, answering our questions, putting your position forward and giving us more information on the convention, Bill S-10 and the criminal law consequences of the legislation. I thank you collectively for your time here.

(The committee continued in camera.)