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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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.)