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

Issue 15 - Evidence - Meeting of October 18, 2012


OTTAWA, Thursday, October 18, 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.

[English]

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

In this first session of the meeting, we have before us from the Canadian Red Cross, Ilario Maiolo, Senior Legal Advisor; from the International Committee of the Red Cross, Louis Maresca, Legal Advisor; from the World Federalist Movement - Canada, the Honourable Warren Allmand, National President; and appearing on their own behalf, Mr. Robin Collins, as well as Dr. Walter Dorn, who is Chair of the Department of Security and International Affairs at Canadian Forces College.

We have a full house. I think some of you are well aware of how committees operate, but if you do have an opening statement, could you make it as short as possible? We accept written briefs. We want give to the senators enough time to interact with you by way of questions and answers.

I will then start with the Canadian Red Cross, Mr. Maiolo.

Ilario Maiolo, Senior Legal Advisor, Acting Director of Policy and Humanitarian Law, Canadian Red Cross: Thank you for agreeing to hear from the International Red Cross and Red Crescent Movement today. Before I begin, I would like to remind the committee briefly on the composition and mandate of the Red Cross Movement.

We are the world's largest humanitarian organization and network. We are non-partisan and our mandate is to provide assistance to people affected by conflict and natural disasters in a neutral and impartial way, independent from governments.

The International Red Cross and Red Crescent Movement is made up of nearly 100 million members, volunteers and supporters across the world. It has three main components, 187 national societies in each country, either a Red Cross or Red Crescent Society: the International Committee of the Red Cross and Red Crescent Society and the International Committee of the Red Cross.

The Red Cross has first-hand experience and has witnessed the extent of the problems caused by cluster munitions. At least 21 states and the four areas of Africa, the Middle East, Asia and Europe are affected by cluster munitions or have been in the last five decades. In some countries, cluster munitions were used extensively for a long period of time and in other countries they were used intensively for a shorter period of time. In both cases, the effect on the civilian population has been quite tremendous.

People who survive an explosion of a submunition are likely to have serious, often multiple blast fragments or injuries. Such injuries include not only damage to vital organs but also the loss of hands and feet. Eye injuries are also quite common. Submunitions also tend to kill or injure several people in a single accident, more so than any other explosive remnants of war.

The Red Cross Movement has been engaged in helping the victims of cluster munitions to rebuild their lives. With the support of the ICRC, national Red Cross and Red Crescent societies have been providing prosthesis and rehabilitation services, microcredit and other livelihood programs to victims of cluster munitions, risk education to areas affected by cluster munition, as well as strengthening community networks to ensure sustainability of their programming.

The ICRC was the Red Cross Movement's lead component in Oslo and has followed the negotiations from their onset. The Canadian Red Cross was very pleased when Canada signed the convention in Oslo in December 2008. We believe this treaty achieves the balance between considerations of security and humanitarian considerations.

As ICRC President Jakob Kellenberger mentioned on that historic occasion:

. . . the road to Oslo does not end in Oslo. It ends when use of these weapons has ceased, when stockpiles are eliminated, when contaminated areas have been cleared and when victims have been helped to rebuild their lives.

Part of this continued engagement to this goal is to ensure that strong national legislation is put in place to ensure that such weapons are never used again. We are glad to see that earlier this year the Government of Canada introduced Bill S-10 to implement the Oslo convention in Canada. We are very pleased to see that the bill will further the goals of the Convention on Cluster Munitions by creating offences for acts prohibited under the CCM, but we have some concerns with respect to the exceptions to the offences created in clause 11, namely the issue of interoperability.

To this end, I am pleased to be joined today by my colleague from the ICRC, Mr. Louis Maresca, who serves as a legal adviser to the Mines Arms Unit and has worked extensively on this file from the beginning of the Oslo process. He will be able to provide the committee with more specific comments on the bill.

The Chair: We will turn, then, to the legal adviser for the International Committee of the Red Cross.

Louis Maresca, Legal Advisor, International Committee of the Red Cross: The International Committee of the Red Cross would like to begin by congratulating Canada for its efforts to become a party to the Convention on Cluster Munitions. By signing the convention on December 3, 2008, and by preparing Bill S-10, Canada has demonstrated its support for the treaty's goals to end the use of cluster munitions and to address the serious impacts that these weapons have on civilian populations in affected countries.

The ICRC is here today to offer its views on Bill S-10, and I would like to thank the committee for giving us this opportunity to testify today.

This national legislation is an important element of implementing international treaties at the national level, and this is particularly true of treaties of international humanitarian law. Overall, we believe that Bill S-10 would help further the goals of the convention in several important areas. It would establish acts prohibited under the convention as offences in national law. It would also allow exceptions for certain activities that are consistent with the convention's objectives, such as the acquisition, retention and transfer of cluster munitions for the purposes of destruction, the development of countermeasures and training in detection, clearance or destruction techniques.

Like several of the speakers before us, we would like to draw attention to clause 11 of the bill, which establishes exceptions for certain actions linked to military cooperation and operations with states not party to the convention. As explained in the submission that will be transferred to the committee later today, the scope of these exceptions concerns us. In our view, the exceptions in clause 11 are broad and, if adopted as presently drafted, they could permit activities that undermine the object and purpose of the convention and ultimately contribute to the continued use of cluster munitions rather than bringing about their elimination.

As indicated in the legislative summary, clause 11 of the bill has its basis in Article 21 of the convention, especially paragraphs 3 and 4, yet Article 21 was never intended to leave military cooperation and operations unaffected. Although the article recognizes that military cooperation and combined operations with non-party states can continue, it also seeks to ensure that the humanitarian goals of the convention are not undermined through such cooperation. This is reflected firstly in the list of activities prohibited to a state party in all circumstances, as seen in paragraph 4 of Article 21, and also in the treaty's requirements that each state party promote the norms of the convention and use its best effort to discourage other states from employing cluster munitions.

In the view of the ICRC, the exceptions must also take into account the object and purpose of the convention as an important reference in applying and/or interpreting Article 21. The goal of the convention, to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use when they fail to function as intended or when they are abandoned, can only be fulfilled when states parties are working to end all use of these weapons, including use in the context of military cooperation and operations.

One example reflecting the ICRC's concerns in this area is clause 11(1)(c), which would allow Canadian Forces to be directly engaged in the use of cluster munitions when attached or seconded to the forces of a non-party state. This provision has the effect of suspending the application of the main prohibitions of the convention to such forces and also appears to conflict with paragraph 4 of Article 21, which clearly prohibits the use, development, production, stockpiling and acquisition of cluster munitions by a state party, even when involved in military cooperation and operations. This, in our view, raises questions about the compatibility between the exceptions and the convention's overall goals.

In closing, the ICRC urges this committee to ensure that the exceptions contained in Bill S-10 are construed as narrowly as possible so as not to run the risk of undermining the objectives of the convention itself. The brief that we will submit to the committee offers some recommendations in that direction.

The Chair: Our next speaker will be the Honourable Warren Allmand from the World Federalist Movement. Welcome to Parliament again and to this committee.

Hon. Warren Allmand, P.C., O.C., Q.C., National President, World Federalist Movement — Canada: Thank you very much, Madam Chair. As President of the World Federalist Movement — Canada, I am grateful for this opportunity to present our views on Bill S-10. The World Federalists are a long-standing, national membership organization that is part of a worldwide movement with national and regional member organizations in 26 countries. The World Federalists seek to strengthen the international rule of law and the international framework of global governance institutions, particularly the United Nations system. The World Federalists played a leading role in Canada and internationally on mobilizing support for the new International Criminal Court.

Our primary concern with Bill S-10 is with clause 11. We believe that the exceptions provided in clause 11 would place Canada in contravention of the principal objects and purposes of the treaty and therefore have the effect of undermining the entire treaty regime. In other words, what the treaty outlaws in Article 1 is substantially subverted in clause 11 of Bill S- 10, and these exceptions are not saved or justified by the provisions of Article 21 of the treaty. Your committee, of course, has heard these concerns from others.

I should point out that the presentation we are providing today includes a detailed analysis of Bill S-10 by eminent legal experts in the form of an open letter to Foreign Minister Baird regarding the interpretation of the convention's Article 21 and their condemnation of clause 11 of Bill S-10. The letter has been signed by 24 legal experts, the majority of whom are professors of international law, and that letter is attached to the remarks that I have had distributed to the committee. As I am one of the signatories, I undertook to present this text to you today on behalf of this group of legal experts, and I will be happy to address any questions you may have with respect to the analysis it presents.

To summarize, the open letter focuses on Article 1 of the Convention on Cluster Munitions and Article 21. It assesses the various possible interpretations of Article 21 and comes to the conclusion that the best interpretation of Article 21 and Article 1 is that, in accordance with subsection 3 of Article 21, states parties may engage in joint operations with the armed forces of non-states parties who are also using cluster munitions, but in a manner that falls short of direct involvement or assistance in the deployment of cluster munitions. In other words, the exception in Article 21(3) is limited by subsection 4 of the same article. This is explained more fully in the open letter.

Consequently, clause 11 of Bill S-10 allows for precisely the sort of direct involvement or assistance that is forbidden by Article 1 of the cluster munitions convention in Article 21(4). The unanimous conclusion of these legal experts is that clause 11 of Bill S-10 manifestly contravenes both Articles 1 and 21 of the convention. Therefore, in order to comply in good faith with Canada's international obligations, we recommend that it is necessary to remove or radically revise clause 11.

A secondary concern regarding Bill S-10 is the lack of any indication of the positive steps called for in Article 21 of the convention in subsections 1 and 2, steps that state parties are required to take to encourage other states to ratify or accede to the convention, to promote the norms of the convention, to discourage the use of cluster munitions and to notify non-party allies of our obligations. Therefore, we are also recommending that, in the course of revising Bill S-10, provisions should be included that fulfill Canada's responsibility to work towards universalizing the convention, promote its norms, discourage the use of cluster munitions and so on.

I would remind the committee members that the development of state practice implementing the cluster munitions convention can usefully draw upon the international community's experience implementing the Anti-Personnel Mines Convention, the land mines convention. That closely analogous international instrument allowed Canada to contribute significantly to a robust regime that has reduced the use of land mines and saved thousands of lives. Canadian troops have been and continue to be capable of functioning interoperably with our allies, including the extensive Canadian and American forces deployed for over a decade in Afghanistan.

Canada's 1997 Anti-Personnel Mines Convention Implementation Act contained no provisions similar to clause 11 of Bill S-10. There were no exceptions to Canadian compliance with the land mines treaty in the manner that clause 11 of Bill S-10 creates exceptions to and therefore undermines the munitions convention.

As presently drafted, Bill S-10 contains provisions that are contrary to the treaty's objects and purposes. It makes no sense for Canada to join a treaty regime whose purpose is an absolute prohibition on the use and transfer of cluster munitions on the one hand and, on the other hand, to promulgate national legislation that creates exceptions allowing Canadian personnel to carry out precisely the types of activities that are proscribed or forbidden by the convention.

Therefore, if it becomes clear that the Canadian Parliament is unable or unwilling to amend Bill S-10 by removing the offending article, we feel that this committee should recommend that Bill S-10 be returned to the government to be redrafted in accordance with its obligations under the treaty.

I thank you for your attention to these opening remarks, Madam Chair.

The Chair: Thank you.

Now we will turn to Mr. Collins.

Robin Collins, as an individual: Honourable senators, Madam Chair, my perspective is as a former chair of the coalition Mines Action Canada, someone who was actively involved since 1996 in policy recommendations towards the ban on anti-personnel land mines and focused on cluster munitions since late 2000.

I was the principal author of the coalition's early position paper on cluster bombs, and the recommendations were adopted by Mines Action Canada as a coalition in 2001.

The Convention on Cluster Munitions is a tremendous step forward and a success for all those governments and organizations that worked long days to develop a legal framework to ban a horrendous weapon type. A majority, 111 countries, signed on. There are many left that need to take up the challenge.

My view on Bill S-10, the cluster munitions implementation and ratification legislation here, is shared by many others. We believe that in its present form, because of the implications of clause 11 that allow exceptions destructive to the spirit and text of the treaty, Bill S-10 must be amended by the Senate and House of Commons.

One of the planks that we advocated in 2001, a key one for this discussion of Bill S-10, was that the Canadian military must refuse participation in alliance exercises or campaigns where these weapons continue to be used by allies. We held this view because we did not want Canadian troops involved in the use of a weapon we deplored, and we wanted Canadian leadership and influence to be clear so that allies would substitute other weapons and other methods.

Minister Baird was correct when stating in his comments to this committee on October 3 that cluster munitions are terrible and horrible weapons and should be destroyed. He said he hopes that Canada's support for the treaty puts a stigma on their use and reduces their use by non-state parties.

Those were the right positions he was taking: Prohibit our own use and act to deter the use by others who have not signed the treaty.

It is not a secret that the international Cluster Munition Coalition, while pleased with the treaty as a whole, was not happy with the interoperability, section 3 of Article 21, and how it might be interpreted or manipulated to permit continued use of cluster munitions in combined operations. We cannot be put in a situation where allies enable use of cluster munitions through a cynical management of tasks.

For example, we cannot permit Canadians to drive the airplanes while Americans pull the switch to drop the cluster bombs. Many others have pointed out how the Canadian draft legislation, Bill S-10, explicitly enables violations of the prohibition on all forms of assisting in the use of cluster munitions. This is in clear conflict with the spirit and text of the treaty.

Campaigners did not like Article 21, section 3, the segment that activists described as a stain on the treaty. It was a compromise article, but it was not to be used to allow Canadians in conflict to enable, induce, direct or engage in actions enabling allies or Canadians to use cluster munitions. To the contrary, the treaty requires signatories, by example and by encouragement, to lead allies away from those weapons and towards signing the treaty, those who have not already.

Foreign Minister Baird has also said that it would be naive to suggest that we could put one Canadian soldier in with 60,000 U.S. troops and say, ``You will adopt Canadian rules on this.''

With respect, I say that signing a treaty banning an odious weapon that everyone here agrees causes grave humanitarian harm means we are obligated to request no use of that weapon in any theatre we participate in with allies, or we must move our one Canadian soldier on to another task. This is the case with chemical, biological and nuclear weapons, blinding lasers, anti-personnel mines and cluster munitions. Sometimes we have to do better than our friends.

In our legislation, Canada should write unambiguously that the interoperability clause will never permit collaboration in cluster munitions use.

I would like to end by reflecting on the special responsibility that Canada has with respect to this bill and this treaty and why it is so important. What Canada does matters because the sister treaty, the convention to ban anti-personnel land mines, is still this country's treaty. In 1996-97 we were leading a small group of like-minded countries toward an eventful and historic conclusion. The Convention on Cluster Munitions is a direct offshoot of the Ottawa treaty effort, and the world is watching again.

The current Canadian draft legislation, Bill S-10, as you may know, is considered by many to be the worst legislation proposed by any signatory or state party to the convention. Adopting it as is would be a stain on our reputation, with possible repercussions if other countries were convinced to follow suit.

I hope you can remove the problematic clauses. I see no useful or ethical purpose that they contribute. Clause 11 of Bill S-10 is inconsistent with a complete ban on cluster munitions. Without this revision happening, I would recommend that the bill be held back or opposed.

Thank you for your time and for your consideration.

The Chair: Thank you, Mr. Collins.

Our final presenter, Dr. Walter Dorn.

[Translation]

Walter Dorn, Chair, Department of Security and International Affairs, Canadian Forces College, as an individual: Thank you so much, honourable senators, for this opportunity to meet with you.

[English]

The Convention on Cluster Munitions is a major achievement, coming after what I call a decade of darkness, the period after the signing of the 1997 Ottawa convention until this one, the 2008 Oslo convention.

This convention's comprehensive ban deserves to be implemented with the strongest measures of support. Arms- control treaties like this one enhance both national and international security, and I am glad that Canada is finally ratifying the 2008 convention. However, similar to other testimony you have heard this morning, I have three grave concerns about clause 11 in Bill S-10.

On legality, clause 11 deals with Canadian military operations in conjunction with nations not party to the treaty. Unfortunately, this section opens a gaping loophole, one big enough to send planeloads of cluster bombs through. In effect, it allows Canadian soldiers in such combined operations to ``assist,'' ``direct,'' ``aid and abet'' and ``conspire'' with others to use cluster munitions. These are all words from the clause or section itself.

This section is clearly in contravention of the treaty, even under the widest possible interpretation of the treaty in Article 21. That article allows parties to engage in combined operations with non-parties — perfectly natural — but it does not allow a state party to assist or cooperate in using cluster munitions. Canadians in a U.S. chain of command, or fighting alongside, cannot legally, under this treaty, use cluster munitions or assist other nations to do so.

Clause 11 of the bill constitutes, in effect, a reservation to the treaty which is not permitted under article 19 of the treaty itself. Furthermore, the section is in contravention of the object and purpose of the convention, so it is prohibited by the 1969 Vienna Convention on the Law of Treaties.

My second point is about morality. As someone who works daily with those who have deployed in combined operations and who might do so myself as a civilian under the Code of Service Discipline, I have to say that the current draft legislation could put us in a compromising position.

Those deployed on behalf of Canada do not want to be forced to violate the treaty or be associated with violations. The terms of the bill would oblige Canadians to accept orders which they might consider illegal. It would then put them in a legal limbo between national and international law. Soldiers are trained to obey ``lawful orders.'' This would create confusion because the laws are contradictory. A complete prohibition, as obliged by the convention, would be much clearer.

Other troublesome moral questions arise. Would we want Canada to be considered an accomplice in the use of cluster munitions? Do we want Canada to apply double standards: one for solo missions and another for combined operations? Would we have accepted any kind of exemption like this when we ratified the torture convention or the Geneva Conventions?

My third area is about the norms we are establishing. When state parties apply reservations and narrow national interpretations to a treaty, the entire treaty regime is weakened. The convention needs to be reinforced, not weakened.

For norm creation, we can apply a Kantian test: Would Canada want other nations to apply these clause 11 reservations? In combined operations with other groups in which one country is not a signatory, would we want this to give licence to all state parties, friend or foe, in the group to participate in the use of cluster munitions? Aggressive states could apply this type of provision in an attempt to justify violations of the treaty during their own combined operations.

Beyond that, would we want other parties to include their own exemptions and loopholes that go beyond the outer bounds of the treaty? Once having given a self-serving interpretation, will Canada be in a position to criticize other nations who have their own self-serving interpretations of other provisions in this treaty?

In conclusion, clause 11 of the current draft legislation seems to be in legal contravention of the treaty. It gives rise to serious moral dilemmas and weakens the norm against the use of these terrible weapons. It should be removed or amended.

To end on a positive note, this Senate committee has an opportunity to build on this new and strong international norm. Your bill provides a special opportunity for the Senate to demonstrate sober, first thought, as it shows leadership in advance of the house. Hopefully, by putting the bill through the Senate first, the government is showing a willingness to consider senatorial input and improvements. The development of a strong, fully implemented treaty is now in your hands.

The Chair: Thank you, Dr. Dorn.

For clarification, Mr. Collins, I know you have been involved in many of these negotiations. I want to be sure I understand your testimony. You are indicating that it was a flawed treaty. You would have preferred one that did not have to put in any interoperability devices or sections in the convention. As a result of that, your comments about clause 10 really go back to the fact that the convention allows for the use of cluster munitions in certain cases.

Mr. Collins: To clarify, I was not involved in negotiations; I was chair of the Canadian coalition for a period of time. Yes, to part of your question, namely that activists, the Cluster Munition Coalition and international organizations believe that Article 21 of the treaty was flawed. ``A stain,'' was the phrase that was used on occasion. The treaty is what it is. I know that the Canadian who was involved in writing part of that for Foreign Affairs, Earl Turcotte, believed that that article was written in such a way that it would not enable use by Canadians, in collaboration with allies, of cluster munitions. It was written to allow allies to work together, not necessarily to work together where, for instance, the Americans would be using cluster munitions over there, and the Canadians, having no contact, no assistance whatsoever, would be not using them over here. That is possibly a scenario that Article 21 thinks about, but if you look at the phrasing, it does not actually say that. It just sort of hints that that is a possibility. It is a bit ambiguous. The point is that other states, when they have supported a treaty and taken a proper position on Article 21, have made it quite clear that this does not allow a violation of Article 1 of the treaty, the prohibitions.

Senator Hubley: Thank you all for your presentations this morning. They are really important presentations. The information must be heard, and it must be repeated.

I would like to begin by saying that we are dealing with a weapon that is terrible; it is horrendous. About 98 per cent of the victims are civilians. It destroys lives, families and communities, and the destruction goes on well after the conflict has ended.

I was pleased that we did speak about the Land Mines Treaty, the Ottawa accord, because its great success internationally was not only in its direction, but it did not have an interoperability clause in it, which I think challenged countries of the world to come to the plate. They each had to contribute and to keep the humanitarian aspect in mind when they drew up their legislation.

Having looked now at our cluster munitions convention, and in particular, of course, Bill S-10, our ratifying legislation, I am wondering how our interpretation of Article 21, as it appears in Bill S-10, in clause 11, will have on the universality of this treaty. I will let that question go to whoever would like to comment on it.

Mr. Maresca: If it is okay with others, I will give our perspective on that issue.

The International Committee of the Red Cross is an organization that works extensively through its delegations around the world in more than 80 countries, and also through the national societies of the Red Cross and the Red Crescent Movement, to encourage adherence to the movement and promote its ratification and full implementation. This issue of universality and universalization is important to us and we engage with governments in this dialogue regularly.

We do have some concern that as legislation such as this is developed in a number of countries, with these kinds of exceptions, it gives a perception to other states that it is somehow okay to ratify the treaty, but, at the same time, allow forces to continue to be associated with cluster munitions. If you are a country that is not involved in combined operations, you may be somewhat reluctant to sign on to such a treaty because you feel that you are getting the raw end of the deal, so to say. We have a concern about the perception that these kinds of broad exceptions for interoperability, when they are drafted and applied to national law, have to other states and how it might affect their consideration to ratify and join the treaty. We do have concerns about the impact on universalization.

Senator Hubley: If the argument is — and we have heard this argument — that the treaty language as it is contained in Article 21 forces countries to create their legislation in the manner that Canada has, is there any credibility to that statement? Is there anything in Article 21 that forces a country to accept a very broad definition undermining the intent of the convention? Is there anything in Article 21 that would suggest that?

Mr. Allmand: No, I do not think so at all. You could completely delete clause 11 and ratify the treaty and you would still be bound by all the provisions of Article 21 of the convention, including subsection 3, which allows a country like Canada, a states party that ratified, to have joint operations militarily with states that have not. However, as I pointed out, and others did as well, in the land mines treaty, there is no such section as clause 11. We take part in joint operations with countries that have not ratified the land mines treaty. It does not prevent us from working with other countries, but it means that we totally respect the convention. As we respect the land mines convention, we would respect this convention.

In the open letter that I tabled with my remarks, put together by 25 legal experts, mostly international law professors, they feel that the way you can interpret Article 21 and Article 1 is that you can take part in joint operations with, let us say, the United States, but still fully respect all the provisions of the treaty, and you do not need clause 11. Clause 11 opens the door to undermining the treaty altogether. There is no reason for clause 11.

Senator Hubley: Obviously, other countries feel the same way. Other than Australia, the Canadian interpretation is probably the worst that we have seen to date. I believe other countries have found better ways of interpreting Article 21.

If we feel we are right in this broad interpretation and others are wrong, are we not obliged to act against their legislation? Have we in any way taken exception to other countries' legislation?

Mr. Allmand: I was going to refer to New Zealand. New Zealand does not have any article like clause 11, but they have an article in their legislation that says that a member of the armed forces does not commit an offence against section 10(1) merely by engaging in the course of his or her duties in operation, exercise or other military activities with the armed forces of a state that is not a party to the convention and that has the capability to engage in conduct prohibited by section 10(1).

Other countries, in their implementing legislation, have made sure that, in taking part in the provisions of Article 21(3), their armed forces members do not violate the general intent of the convention.

Senator D. Smith: I have a comment that I will ask you respond to. It is kind of a question. I did look at that list of legal experts. I think I recognized about 10 of them. It is heavy-duty. We did have the minister here. He was the first witness. Many of these questions were not on our minds at the time. I note that Warren Allmand's letter was just dated yesterday. Presumably there has been no reply.

Have any of you had any dialogue with the minister directly, or senior government officials, as to their response to this? When I heard these arguments, I thought I would keep an open mind, but then I thought of that old phrase, ``Where there is a will, there is a way.'' Have any of you had direct dialogue with the minister or his officials about this? I would certainly like the committee to be informed of any reply you get, and I hope you will forward it to us when you get it so we know.

Mr. Allmand: Senator Smith, the letter was dated yesterday because, although it was sent earlier, we continued to collect signatures of law professors up till the last moment.

Senator D. Smith: I see. Has there been any response?

Mr. Allmand: No, there has been no response. I checked with the executive director of our office. He says there is no response.

Senator D. Smith: If and when there is any response, I would ask that you forward to us a copy of it, please.

[Translation]

Senator Fortin-Duplessis: My questions will be for Ilario Maiolo, who represents the 100,000 members of Red Cross worldwide. Welcome.

The Government of Canada has been acting in good faith when it comes to this legislation. Since 1999, $370 million has been given to states — and I will tell you why afterwards. In 2010-2011, an additional $30 million was earmarked and, more recently, $1 million was allocated to Laos to try to destroy those cluster munitions. Canada provided that money to states to help them clean up contaminated zones, destroy stocks, rehabilitate victims and help states that are in need.

I saw that you were concerned by the implementation of plans for destroying cluster munitions. I think that Canada is currently developing such plans, and I think those plans will certainly be unveiled before anything is ratified. I see that Canadian Forces have already begun the process of destroying stocks, and the inventory of remaining cluster munitions has been removed from operational ammunition stocks. So, all methods are currently being examined.

According to you, what measures has the government not yet taken regarding this plan you talked about?

Mr. Maiolo: I want to begin by explaining that the problem is multifaceted. Of course, current legislation contains an aspect that criminalizes the provisions of the convention. I did not want to insinuate in my testimony that measures have not been adequate so far. For Canada, we have been able to use donations made to the Canadian Red Cross to support ICRC operations multilaterally with national organizations that help rehabilitate victims of cluster bombs. I did not mean to say that the measures were inadequate. We will always be open to contributions to the Red Cross and Red Crescent movements in order to help victims. It was not my intention to criticize the fact that efforts involving victims have been insufficient so far. I do not know whether my colleague from the ICRC has anything to add.

[English]

Mr. Maresca: I do not have anything specific to add other than perhaps, if I understood the point correctly, that Canada has indeed taken many important steps to implement and bring about the end of cluster munitions, at least domestically. What I mean by that is, as you have heard, I am sure, even before being a state party, it has taken cluster munitions out of its operational stocks. It has started to destroy them. Canada also, as a signatory state, played a very important and useful role in the beginning of the operationalization of the convention, meaning that, as a signatory state, it was active in discussions with the meeting of states parties in helping to develop the mechanisms at the multilateral level to bring about implementation and encourage our states to adhere to the treaty. Canada has aligned itself with the aims and purposes of this treaty in many ways, outside of this legislation. As I indicated in my remarks, for the most part, the legislation contributes to the objectives of the convention. It is really about the interoperability issues that we have our greatest concern.

I would also point out that the goal of this treaty in many respects is preventative. Yes, a lot of work has been done in clearing cluster munitions and in trying to improve the lives of victims, but equally important is ensuring that the weapons are never used again so you do not have to keep spending more money in the future to clear unexploded cluster munitions or to assist victims in the future. I hope that helps add a little more to my colleague's response.

Mr. Collins: I would reiterate especially the last comments. The bulk of Bill S-10 is to be applauded. We are discussing, many of us, the problems with that section on interoperability. The bulk of it is very good, and the treaty is a good treaty.

Canada is not really a user of cluster munitions. We have never used them. Our sole interaction with them, therefore, would be in combined operations with allies. That highlights the problem of legislation that not only enables our use of cluster munitions through allies but actually can allow us to direct Canadian soldiers or allies in combined operations to use cluster munitions. It is entirely a contradiction with the purposes of the treaty.

I wish to draw another comparison on the issue of victims. We want the treaty to prevent victims. It is true that Canada and many other states have helped victims of land mines too. The best example is that the American government has contributed more money than any other state to help victims of land mines, but they have not signed the treaty. They still allow themselves to use land mines. There are two different issues here. One is stopping the use and one is helping the victims. We do not want victims. We want to prevent use so that there are no victims.

The Chair: Senator Fortin-Duplessis, would you like to go to your second question or have an answer?

Senator Fortin-Duplessis: Yes, I would like an answer.

Mr. Dorn: The Government of Canada could provide leadership in international fora on this issue, just as we did with the land mines convention. It could help establish an effective verification system, which is one of the weaknesses of this treaty. It could support NGOs in doing investigations. It could help with victims' assistance and setting up international programs for that. Most pertinent to this committee, it could provide model legislation that we want other nations to emulate.

Senator Wallin: I think we are all in agreement here that cluster munitions have a horrific impact in war. I think Canada has taken a principled stand on their use in leading by example and by encouragement, as we are required to do.

Here is my concern about your concerns: What you are asking for, to me, I think if people were asking of us, you would be sitting on the other side of the table, on the other side of this issue. The implication that rather than by example and by encouragement and through leadership, somehow we should be willing to forfeit our sovereignty, our right to defend ourselves, in order to make a point with others. If other countries said, ``You must use cluster munitions,'' and they were trying to influence our defence, security, and foreign affairs policy, we would all be screaming. However, you are asking us to do the same and to tell other countries what to do. We are acting by example and encouragement.

This requires a simple yes or no answer from everyone, just so we have it on the record. Are you asking us to forfeit our sovereignty, our right to defend our own interests, our own ideas, our own values, by making it impossible for us to engage in any kind of military or security operation with any friend or ally who might share our same concern or interest?

Mr. Allmand: The answer is no. The land mines treaty does not have any section like clause 11, as I said. We have for the last number of years worked with the Americans in Afghanistan. We did not need a clause 11 to allow us to work with them. I do not see why we need a clause 11 that says:

Section 6 does not prohibit a person . . . .

(b) expressly requesting the use of a cluster munition . . . .

(c) using, acquiring or possessing a cluster munition . . . .

That article is in complete contradiction with Article 1 of the treaty.

Senator Wallin: My point is — and I really need to focus on this — other countries will do what they will. In almost all situations I can think of, we will be working under the auspices of NATO or the UN or a coalition of the willing or two countries that are interested. Are you actually saying that we should not do that; we should not work with others who use cluster munitions in any way, shape or form, even if our own domestic interests are at stake?

Mr. Allmand: I say no.

Senator Wallin: Does everyone agree, then, that we should not work with others?

Mr. Allmand: To do that, to further the use of cluster munitions.

Senator Wallin: I mean in a security or military operation. If we deem something is in Canada's national interest and we must defend against an enemy or defend a value or a right, and we are in some military operation with our allies, are you saying it would be better to stay home than to go into that operation with people who still use cluster munitions?

Mr. Maresca: If I may.

The Chair: I will turn to Mr. Collins. He indicated he wanted to answer first.

Mr. Collins: The question is kind of loaded because it implies things. First, defending our sovereignty could mean defending our right not to use cluster munitions. That would be my first position.

Second, the treaty that we have signed does allow us to work with allies who have the option of using cluster munitions. We are not saying we should not work with allies who have the option of using cluster munitions. I would say that a demarcation here — there may be disagreement — would be whether the Americans can use them over there in a battle and we have no connection with them whatsoever and we refuse to use them over here. That might be the scenario the treaty enables. I would have to look at a legal argument. I think it would be difficult to have that scenario legally.

I would say that Canada should not participate in any actions with an ally who uses cluster munitions, because we want to use our influence to stop them using a weapon that we all agree is abhorrent.

The Chair: Dr. Dorn, you wanted a quick response, and Mr. Maresca.

Mr. Dorn: No. We can still go into a combined operation with the United States, which has not signed the cluster munitions convention. Article 21 actually allows for us to join in combined operations. What it does not allow is for us to actually use munitions within that operation. In military terms, we might have a caveat in the operational plan saying that when it comes to making decisions about dropping cluster munitions, Canadians will not be involved. The problem is that the provisions of clause 11 suggest that Canadians can do that, and that is what we feel is in contravention of the treaty.

Mr. Maresca: I have two points. One is that I do not think it is an all-or-nothing approach. What would be expected is that Canada perhaps use its obligations to discourage use, to engage with its coalition partners, to find alternatives to cluster munitions, particularly in combined operations.

I would also offer the view that this issue of cluster munitions and interoperability is not unique. This is not the only issue where concerns about interoperability in combined operations arise with allied and coalition partners. It occurs with many other treaties as well. There are many instances where NATO countries are states parties to some treaties and their partners are not.

With regard to Canada and the United States, I would just point out that the 1977 additional protocol to the Geneva Conventions is a pretty extensive document and it is pretty much the codification in many respects of existing international humanitarian law. Canada is a state party to that protocol; the United States is not. These deal with very fundamental issues, such as what is a military objective; what is indiscriminate attack? There are differences of views as to how those are interpreted. Violations of those provisions can in some cases be considered a war crime. However, this has not affected the interoperability of Canada and the United States. They have continued to engage and find solutions to their differences of views regarding these very fundamental rules of international humanitarian law. My point is that this is not just an issue for cluster munitions, but Canada, with its allies, has worked out this issue for many years in a variety of different contexts.

The Chair: There are apparently two supplementary questions, one from me and one from Senator Smith. We will try to make our questions quick and if we can get your answers quickly, probably to Dr. Dorn and Mr. Collins.

Article 21 is the article that you feel gives an out and does not make the absolute prohibition of cluster munitions. It allows for use. That was the negotiation. That is the point of the convention — people had to either sign or not sign. Then we go to clause 11.

Australia has taken an approach that is different from New Zealand. New Zealand acknowledges Article 21 but leaves it to future interpretation what a soldier or what the military can do. In clause 11 — and I am not as conversant with the Australian one — they are enumerating when it can be acceptable so that a military person will not be charged.

Those are the acceptable uses contemplated up front, trying to limit, saying we understand there is Article 21, so clause 11 says this is how we will interpret it and those will be the exceptions. Some will argue that is narrowing Article 21 and the New Zealand approach saying that soldiers will not be charged is a broader exemption, and time will tell whose approach will be most conducive to furthering the full abolition of cluster munitions.

That is sort of a follow-up position of the militaries that have obviously fed into the process of developing the ratification processes in each country.

Do you want to put your supplementary, Senator Smith, and they can answer both?

Senator D. Smith: It is very simple, and I thought maybe you could just confirm. My interpretation of what Mr. Allmand said is that Canada should do the same thing you did in the land mines treaty: just do not have a clause 11. It works for the land mines and it should work for this. That is pretty simple. Is that what you are saying?

Mr. Allmand: That is what I am saying, yes. I would go on to say that clause 11, in my view, goes much further than the New Zealand one. It allows, in joint operations, a complete use and direction and requesting of the use of cluster weapons, which I think is against subsection 4 of Article 23 of the treaty, as well as Article 1. Clause 11 really is a huge gap, and it is not necessary for joint operations. You could have joint operations without clause 11.

Mr. Dorn: Article 21 of the Convention on Cluster Munitions is not an out. It does not allow for the use of cluster munitions. What it simply says is that if you are in a combined operation with non-state parties, you can continue to participate in that combined operation. It does not say that you can use cluster munitions within that operation. It just allows countries to feel more easy about working with countries that are not parties to the treaty —

The Chair: It allows interoperability. That is what I was trying to say.

Mr. Dorn: It is a form of interoperability.

Mr. Collins: If I may, I would say Article 21 on its own does not, and that is what the legal opinion is, allow Canadian use or direction of use during combined operations. The criticism of Article 21 is that there is some ambiguity, but the legal opinion on it is that, in light of what states said at the time of writing Article 21, there was no ambiguity about it.

Some people are raising it, Canada is one, saying this is a loophole basically for us to contravene the treaty. Approximately 35 states stated at the time of the writing of the article that this was not to be a loophole allowing violation of Article 1 of the treaty, the prohibition clauses.

New Zealand probably has the gold standard legislation, which is basically a reiteration of Article 21's point, and that would be acceptable for Canada as well. Leaving out clause 11 in Bill S-10 entirely is acceptable. Putting in something similar to New Zealand's is acceptable. I would argue that the best situation is if Canada took a position not to participate in any activity with allies who use cluster munitions.

The Chair: I was trying to put the counter-argument. If you do not attempt to put a Canadian perspective of the interpretation, you leave the ambiguity.

Mr. Collins: Absolutely. What I suggested in my comments is that Canada should write, unambiguously, that the interoperability clause will never permit collaboration in cluster munitions use. That should be put in Bill S-10.

The Chair: Honourable senators, I am in your hands. We have run over time. I have a second round, Senator Hubley and Senator Fortin-Duplessis. It will shorten the other witnesses, unless you can be extremely brief.

Senator Hubley: I just reviewed Article 1. It is very explicit, and it does not hurt to hear it again:

Each State Party undertakes never under any circumstances to:

(a) Use cluster munitions;

(b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;

(c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

This is what Canada signed.

We do have the reality of an interoperability clause, but I think we must be very vigilant in how we interpret it. I would like to thank you, but I do not want to take more time.

The Chair: All right. I am taking that not as a question but as a statement.

Senator Hubley: Okay.

The Chair: I think we can leave that for our discussion of the bill.

Senator Fortin-Duplessis, may I move to the next panel?

Senator Fortin-Duplessis: My question is short, but the answer may be long.

The Chair: Maybe you could put your question. If the answer is long, I would ask the witnesses perhaps to reply to us in written form.

[Translation]

Senator Fortin-Duplessis: The question is for any of our witnesses. Are you familiar with other common law countries' implementing legislation and their approach in terms of extraterritoriality? How do other countries' laws measure up to Bill S-10 when it comes to that?

[English]

Mr. Collins: I do not know in detail other Commonwealth countries' positions.

[Translation]

Senator Fortin-Duplessis: I am talking about those that have already ratified their legislation.

[English]

Mr. Collins: Yes. I can say that there are five states that are weak, Canada being one of them, on the interpretation of Article 21. Among them are the United Kingdom, the Netherlands, Japan, Australia, and Canada is the fifth. That compares to 35 countries that are very strong on Article 21, including New Zealand.

Mr. Maresca: I can perhaps be quick on the extraterritoriality point. As far as I know, and I think I am fairly correct here, all of the state parties which come from a common-law tradition apply their laws extraterritorially to their nationals. Therefore, whether they are citizens abroad or members of the armed forces, those laws apply to their nationals when they are outside of their own territory.

Senator Fortin-Duplessis: Thank you very much.

The Chair: I thank all of you for coming. I think you have helped us crystallize the debate around Bill S-10. We appreciate your point of view on the interpretation of Bill S-10 and your suggestions. We will take them into account as we continue our study.

Honourable senators, for the second part of our meeting, we have before us, by video conference, Ms. Tamar Gabelnick, Policy Director of the Cluster Munition Coalition; and before us in person, representing Mines Action Canada, Mr. Paul Hannon, Executive Director, and Ms. Erin Hunt, Program Officer. We also we have with us Mr. Ken Epps, Senior Project Officer, Project Ploughshares.

We have started a little late, so in turning to Ms. Gabelnick, I would ask for short opening statements, leaving time for interaction with the senators' questions and answers.

[Translation]

Tamar Gabelnick, Policy Director, Cluster Munition Coalition: Thank you, Madam Chair. The Cluster Munition Coalition wants to thank this committee for the opportunity to speak to Bill S-10.

The Cluster Munition Coalition brings together members of the international civil society that are working in about a hundred countries, including Canada, on eradicating cluster munitions. The Cluster Munition Coalition and the International Campaign to Ban Landmines have been working in close collaboration with the Canadian government for many years on humanitarian disarmament issues. Canada's leadership in the Doha convention is recognized worldwide. Now, the world is counting on Canada to play an equally significant role in the Convention on Cluster Munitions.

[English]

We are now pleased to see Canada moving closer to becoming a state party. At the same time, the CMC is deeply concerned about key elements of Bill S-10 that we find are contrary to both the letter of the treaty and its underlying aim, and we urge the Senate to amend them.

The CMC recognizes that Canada's close military relationship with the United States requires regular participation and military exercises and operations with a state not party. Indeed, Article 21 of the convention was included in order to enable such military cooperation. At the same time, our view, and the view of the vast majority of states that have spoken on the matter, is that Article 21 does not constitute an exception to Article 1's prohibition on assistance for banned activities, which applies under any circumstances.

We see the purpose of Article 21(3) as clarifying that mere participation in joint operations is permitted and that the state party is not legally responsible for the activities undertaken by a state not party during the course of such operations, but not as an authorization of assistance for those activities.

Clause 11 of Bill S-10 implies, however, that Article 21(3) does provide such an exception. Such logic is flawed for two major reasons.

First, under the Vienna Convention on the Law of Treaties, when treaty language may be unclear, an article must be interpreted in light of the object and purpose of the convention, which is to end the use of cluster munitions and the suffering they cause.

Second, paragraphs 1 and 2 of Article 21 require states parties to promote the norm of the convention and to discourage states not party from using cluster munitions. Therefore, it would be inconsistent and illogical for the same article to require such efforts to end use while at the same time authorizing assistance with use.

Clause 11(1)(c) of Bill S-10 goes the furthest by exclusively permitting Canadian nationals to themselves use, acquire, transfer or possess cluster munitions when on exchange with another state's armed forces. This provision appears to permit a direct violation of article 1 of the convention. It also seems impossible to reconcile it with Article 21(4), which recalls nothing in the article can authorize a state party to itself acquire, transfer or use cluster munitions. It also begs the question: Is Canada banning the use of cluster munitions or not?

We certainly understand the need to protect Canadian soldiers from the risk of prosecution for inadvertent use of cluster munitions, just as it needed to do with anti-personnel mines, but several other states parties have the same requirement and do not have laws with such broad and detailed exceptions to the ban. We could encourage Canada to look at those laws, such as New Zealand's or Norway's, or even Canada's own law to implement the Ottawa convention.

Moreover, behind clause 11 is an implicit expectation that Canada's allies will continue to use cluster munitions, but future use is no longer a certainty given the international stigma that now exists against such use. Since 2006, only a handful of states have used cluster munitions, and each occasion prompted a strong international outcry. The U.S. itself criticized use of cluster munitions in Libya in 2011, and it appears to be moving away from the use of cluster munitions, especially in the context of joint operations.

We are concerned that Bill S-10 risks undermining this established stigma, a stigma essential not only for preventing future use but also for universalizing the convention. If states outside the convention see the stigma reinforced at every possible occasion, they will realize future use is not politically feasible and will have no reason to stay away from the convention. On the other hand, if states parties continue to facilitate the use of cluster munitions, the stigma will be less evident and the motivation to join will be reduced.

In closing, we would like to underline that the CMC's interest in Bill S-10 is not theoretical or legalistic. It is about preventing real harm to real people, terrible harm that we have observed first hand via our members working in the field and through our campaigners, including someone who lost both hands, legs and much of his hearing when demining in Serbia; someone whose son was killed clearing cluster munitions as a U.S. soldier in Iraq; someone who lost part of his arm to cluster munitions when he was 8 years old; and a man whose son was killed in Lebanon on his fifth birthday. This is a real and horribly painful impact that cluster munitions inflict when used and for long decades afterwards. The prevention of such harm is why the convention was created and it is what we want to see Canada's national law unequivocally reinforce.

We ask you once again to consider revising Bill S-10, and we look forward to continuing our close partnership with Canada when it becomes a state party.

Paul Hannon, Executive Director, Mines Action Canada: Thank you, Madam Chair and senators, for the opportunity to address the committee today. I hope it will come as some comfort to you to know that although I will talk about clause 11, that is not all I am going to talk about. I will talk about other things as well.

As I am Executive Director of Mines Action Canada, I have been working on the cluster munitions issue since 1999. I have seen the human suffering caused by cluster munitions, and I have seen the international community come together to balance humanitarian concerns with the need for security through the Oslo process that brought us the Convention on Cluster Munitions. As a member of civil society's negotiating team, I was pleased to see Canada join 105 states to adopt the convention. As a Canadian, I was immensely proud to witness Canada become one of the first countries to sign the convention in 2008. Having worked on this issue since 1999, watching our ambassador sign this treaty was a highlight of my career.

After Canada's leadership on the Ottawa treaty and the land mine issue, we were pleased to see Canada demonstrate similar leadership and wisdom throughout the Oslo process. The Canadian government should be congratulated for their role in ensuring that we have a strong definition of cluster munitions and for the groundbreaking, expansive definition of a victim in the convention. Canada started stockpile destruction before ratifying the convention, and Canada again showed leadership by being the first country to voluntarily submit an Article 7 annual transparency report. Canada's leadership thus far should be commended, and I have done so on many occasions.

However, because this draft legislation could undermine that fine record, we do have a number of concerns with it. We welcome the penal sanctions included in Bill S-10, as they help us meet our obligations under Article 9, but we do have four main areas of concern with the draft legislation.

First, there are some aspects of Article 21 of the convention that are not reflected in Bill S-10. Some call Article 21 the interoperability article, but I prefer to call it the universalization article. Canada has positive obligations under Article 21 to help universalize the convention and to discourage the use of cluster munitions, but the legislation is silent on these topics. The positive obligations to inform our allies of our responsibilities under the convention and to discourage use are necessary for the legislation to reflect all of the obligations we undertook when we signed the treaty.

Second, Bill S-10 does not comment on investment, transit and foreign stockpiling. There is an understanding that investment in cluster munitions producers is considered a form of assistance and is therefore banned, but the legislation needs to make this clearer. We have met with all of Canada's major financial institutions and, while they are supportive of disinvestment, clarity from the government in the form of legislation will make the process much easier. The legislation would be also be strengthened by prohibiting the transit of cluster munitions through Canadian territory. Finally, while it may fall under the prohibition on possession, we would like explicit reference to a prohibition on foreign stockpiling of cluster munitions on Canadian territory, even during joint operations. Including disinvestment, transit and foreign stockpiling would contribute to reaching Canada's goal of an end to the suffering caused by cluster munitions.

Third, the convention's cooperation and victim assistance provisions are not mentioned at all in our legislation. While I am confident that Canada will work internationally to support risk education, clearance and stockpile destruction and to assist the victims of cluster munitions, I believe it would be beneficial for government agencies such as CIDA and DFAIT to have their mandates in the legislation. It will make their work easier and more straightforward.

Finally, we have strong concerns about the interoperability provisions in Bill S-10. Before I discuss those concerns, I would like to clarify some earlier discussions on interoperability. The Ottawa treaty does not have provisions for interoperability, and it has never prevented Canada from working with our closest allies who have yet to join that treaty. Additionally, Canada's signature on this convention has not prevented our men and women in uniform from taking on leadership roles in joint operations, including those in Afghanistan and Libya. I am very aware that conflict, military cooperation and joint operations are complex, but I would remind the members present that we are here to discuss legislation that implements a comprehensive ban on a weapon that has caused horrific damage to individuals and communities in 24 countries and three other areas both at the time of use and in the decades after the conflict. The convention is very clear about its goal:

. . . put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned . . . .

Mines Action Canada has serious concerns about clause 11 of Bill S-10. In essence, we believe that the defences found in clause 11 are inconsistent with the purpose and object of the treaty. We disagree with the interpretation of Article 21 that is reflected in clause 11. Mines Action Canada, our members and many colleagues around the world do not believe that Article 21 allows states to avoid their obligation to never under any circumstances assist with prohibited acts found in Article 1 of the convention. Although 35 states, including many of our NATO and ISAF allies, agree that the prohibition on assistance applies even during joint operations, Canada appears to be taking a contrary view.

The specific issue of secondment and exchange is one that many of our allies have to face. It has been stated that the exceptions in Bill S-10 are necessary to deal with the reality faced by Canadian Forces personnel.

Based on the prevalence of state parties to the convention in NATO and our other alliances, and on the rate of ratification, we believe that the reality is that the ban on cluster munitions is the new normal. In this new normal, our allies who are outside the convention at this time are well aware of our obligations and responsibilities to not use or assist with the use of cluster munitions. They know that Canada has banned cluster munitions and this ban will apply to all our men and women in uniform.

We underestimate our allies if we think they are unaware of the provisions of the convention and are unable to adapt to the new normal. Fifteen years ago, because of Canadian leadership, the new normal became a ban on land mines. Those allies outside the Ottawa treaty adapted to that new normal, and I have confidence they will with this new normal.

As the legislation is currently drafted, the defences and loopholes in clause 11 present a danger to the treaty. It undermines the prohibition on assistance with large loopholes rather than narrowing the language to ensure that the clarity needed for the standard of Canadian criminal law is met. If Canada ratifies the convention with this legislation, it will become much more difficult to convince other states to join.

When read outside of Canada, this legislation, as it is currently drafted, looks like Canada is trying to have it both ways: We want to look like we are a humanitarian leader by banning cluster munitions but still condone use by states not party to the convention.

Minister Baird appeared before this committee two weeks ago and spoke about the art of the possible. We live the art of the possible every day. For years we were told that it was impossible to ban land mines and then we were told it was impossible to ban cluster munitions, but we all proved it was definitely possible.

The Convention on Cluster Munitions has shown us that it is possible to balance security concerns and humanitarian concerns and achieve a comprehensive ban on cluster munitions. The convention itself is that balance. There is no need for Canada to try to find a balance in our legislation when it already exists. Today, what is possible is that you can ensure Canada takes on a leadership role and stands with the victims of cluster munitions to say ``never again'' by amending the legislation to close the loopholes and show that we meant what we said back in Dublin when Canada agreed to a treaty text that aims ``to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned.''

Our written brief, which we will submit later today, will offer more details and suggested language, where applicable, and we would be happy to answer any questions. Thank you for your time.

The Chair: Thank you, Mr. Hannon.

I presume, Ms. Hunt, you are here to assist Mr. Hannon in the question period.

Erin Hunt, Program Officer, Mines Action Canada: Yes.

The Chair: We will now turn to Mr. Ken Epps, please.

Ken Epps, Senior Project Officer, Project Ploughshares: Thank you to the standing committee for the invitation to appear as a witness today. I represent Project Ploughshares, the ecumenical peace agency of the Canadian Council of Churches. My responsibilities include research and policy development on conventional weapons issues, including disarmament treaties like the land mines and cluster munitions conventions and arms control treaties, such as the anticipated international arms trade treaty.

Since 1987, Project Ploughshares has published an annual report on armed conflicts throughout the world. Tracking wars over a 25-year period points to trends in recent armed conflicts that are relevant to the committee's deliberations of Bill S-10. Most strikingly, today almost all the wars in the world are intra-state, not interstate, conflicts. They involve governments fighting internal opponents, as we currently see in Syria. While there are international dimensions to many armed conflicts, such as ISAF forces fighting in Afghanistan, currently there are no instances of states fighting other states.

We also see that the number of armed conflicts has generally declined over the past 15 years, from a high of 44 conflicts in 1994 to a low of 24 conflicts in 2010. This, of course, is a welcome trend that indicates the world community has increased its ability to end conflicts and prevent them from recurring. Together these two trends — the changed nature of war and the decline in the number of wars — provide an opportunity to reflect on, and alter, traditional doctrines and tools of war.

Despite the striking decrease in the number of wars, what has not changed is the disproportionate impact of intra- state armed conflicts on civilians. Across the globe every year, tens of thousands, even hundreds of thousands, of men, women and children are killed, injured and displaced as a result of armed conflict, and of particular importance when considering cluster munitions in the aftermath of armed conflict.

The devastating impact of cluster munitions on civilians during conflicts and for years after is the primary motivation for adopting and comprehensively implementing humanitarian disarmament treaties such as the Convention on Cluster Munitions.

It is understandable that military leaders may argue for certain weapon systems and arrangements they believe are necessary to train or protect their troops or fulfill other military objectives. As the committee has heard in earlier testimony, the Department of National Defence supports Bill S-10 and its clause 11 in part because it wants to maintain the status quo on training and interoperability with certain allies. However, it is the duty of political leaders to take a wider view. You also need to consider the full range of international humanitarian obligations to which Canada has agreed. In this instance, the obligation to prevent the use of cluster munitions to protect civilians must be paramount.

We invite the members of the committee to take this wider view. We are concerned that Bill S-10, and especially clause 11, contains loopholes and invites uncertainty that will undermine the spirit and purpose of Canada's commitment to implement the CCM. We call on the committee to consider the changed nature of modern warfare and to recognize its disproportionate impact on civilians, especially the impact of cluster munitions. We call for political leadership and innovative thinking that would amend Bill S-10 to allow Canada's military to maintain interoperability with allies while ensuring that Canada fully implements the CCM.

Through an amended Bill S-10, Canada can demonstrate leadership that achieves results. By reinforcing the full ban on cluster munitions, a revised Bill S-10 will advance civilian security and save human lives and limbs across the globe.

I thank you for your attention.

The Chair: Thank you, Mr. Epps.

Senator Hubley: Welcome to you all. This definitely is an important issue.

I would like to thank you, Mr. Hannon, for bringing up some other issues that we probably should be looking at as well, although the focus on clause 11 is pretty riveting for everyone.

Does Bill S-10 allow for the stockpiling or retention of cluster munitions on Canadian territory under any circumstances? I would like to follow up. That extraterritorial question would be there as well. Would it also apply to Canadian nationals and permanent residents abroad who may be employed in private companies? Do you have any comment?

Mr. Hannon: In our written submission we have suggested that language be added to Bill S-10 to reflect Canada's obligation to destroy its stockpile. We know that Canada has already begun to do so, that an RFP has been put out, or at least a request for expressions of interest, and is well under way. We think Canada can and will destroy its stockpile long before its deadline. We certainly welcome that, and we would certainly welcome taking that kind of ambitious approach in our legislation and show that we really mean what we are saying.

We have heard, both here in this committee and elsewhere, that at the moment Canada does not intend to retain any cluster munitions for training or research purposes. We also welcome that, as most humanitarian organizations that do clearance do not use live ammunition to train with. They do not feel it is necessary. We welcome that as well.

We do think, though, it is important that Bill S-10 state that foreign stockpiling on Canadian territory, whether it is our sovereign territory or territory that we may hold during a conflict, should be prohibited. We think it fits under Article 1 and all the elements of assistance, and we would like to see that expressly stated so there is no ambiguity whatsoever of where we stand.

Every munition destroyed is a munition that will not take a life or a limb. That is part of the preventative elements of the treaty and part of the humanitarian aims of the treaty and all the effort that has gone into it. We would certainly welcome additional language on that.

Senator Hubley: I would also like you to answer the question of whether Bill S-10 allows Canadian Forces to transport cluster munitions belonging to states not party to the convention on Canadian territory.

Mr. Hannon: Our reading of it is that it is relatively silent on that. We believe that no Canadian should be involved in the assistance of the use, production or transfer of cluster munitions at anytime, anywhere, for any reason, for anyone. We need to make that perfectly clear. The treaty that this legislation is designed to implement is a comprehensive ban, and its aim is to end the use of this weapon for all time. The only way we will do that is to ensure no one has it or has the opportunity to use it and we make our values clear to others and express that to them. Our view is they will respect that.

Senator Hubley: Are there additional steps that Canada should take to bring itself into compliance with the convention's positive obligations? This could relate to the destruction — and we have heard that has begun — and the clearance of cluster munitions. Are there educational aspects that Canada should be involved in for risk education, and certainly victim assistance plans regarding Canada's reporting obligations under the convention? Do you have any comment on those?

Mr. Hannon: I do. As I said in my verbal statement, Canada has so far shown excellent leadership in the area of annual reporting. We think that should be listed in the legislation. It is an easy obligation for us to live up to. Staff change, governments change, but if it is in the legislation, it is clear to all that we continue that excellent standard in the future.

In terms of victim assistance, stockpile destruction and clearance, we think it would be helpful in the legislation if the two departments and agencies that would normally be involved with that — Foreign Affairs and CIDA — are indicated in the legislation so they understand there is a clear mandate for them to support this. They do it in many ways now, but in my view DFAIT does it much more than CIDA, and I would like to see more from CIDA. We view these as lethal barriers to development, and we feel it is totally natural for it to be in CIDA's mandate. Again, governments change, officials change, department heads change and ministers change. If it is in the legislation, it is clear; it is an obligation that we understand and that we are committed to living up to.

Senator Hubley: I have another short question that might take me off the second round. I would like a comment from both Ms. Gabelnick and Mr. Hannon.

The third Meetings of States Parties took place in Oslo last month. What did other countries have to say about Bill S-10 and the Canadians' ratification legislation, if anything?

Mr. Gabelnick: A number of countries explicitly mentioned Canada or Australia, but that was clear what they were talking about, and it was also the ICRC and representatives of the United Nations, Norway and Austria, I believe. They all were concerned that the national implementation law would not be in uniformity with the letter and the spirit of the Convention on Cluster Munitions. The fact they said that out loud was pretty powerful. Normally states are quite silent about other states' internal matters such as national law. It was quite a powerful message, and it was clear that it was targeted to those countries — Australia, that just passed its law, and Canada, which hopefully still has time to make changes.

Mr. Hannon: Yes. In addition to that, I was approached by representatives of numerous countries who said to me, ``You must be happy that Norway and others are expressing concern about the Canadian legislation.'' I had to frankly say, ``Actually, I am not happy about that because I wish we would not be talking about Canada's national legislation.'' I want to fix this bill. I think we can fix this bill and achieve what we all want to achieve.

It is clear to us that there is no interest in Canada to use these weapons. What we need to do is make sure our legislation supports that, protects our Armed Forces personnel who may be involved in a joint operation with a state that may not agree with that, make sure it is clear that we cannot assist them in use because we feel this weapon is indiscriminate and needs to be banned. Then we can fix the bill and go on being the leader that everyone expects us to be and the leader we have been.

There was a lot of concern expressed, both directly to us and in the plenary sessions. Now that the draft legislation is out, people are seeing what they thought Canada would be doing and saying it is quite different than what the legislation says. Those who have read it and looked at it generally are quite surprised and shocked.

The Chair: Mr. Hannon, is your position that there should not be a clause 11 in the bill, or are you indicating that there should be some consideration of parts of it or changes?

Mr. Hannon: I think the legislation we have on the land mines treaty, the Ottawa treaty, offers us a template on how to deal with the interoperability. It has a clause that deals with interoperability, which I think could easily be used for this legislation. There are certainly other countries that have dealt with this in different ways. There have been suggestions by the law clinic at Harvard, Human Rights Watch; I believe the ICRC has made written recommendations for language. I think there are many different ways you could handle it.

The Chair: I appreciate that, but I was getting a little unclear. Are you indicating clause 11 should be removed from the bill? Is that your position?

Mr. Hannon: The way clause 11 is written now, we are trying to open up the possibility that we could support use or even use ourselves. I do not believe personally that must have been the intent, but that is the way people are seeing it. If it can be rewritten so it is crystal clear that no Canadian will ever be involved with the use of or assist with the use of this weapon, then that is fine. However, if it cannot, then maybe you should just remove it.

The Chair: You are equating it to land mines where in fact cluster munitions, deadly as they are, are utilized differently than land mines. However, you say that the treaty should be equal, even though the weapon may be different?

Mr. Hannon: Both weapons are being banned for the same reason. They are indiscriminate and have inhumane effects.

The Chair: However, in their operations, they are different within military. Land mines are a different concept than a cluster munition. Their deadly effect is the same, though.

Mr. Hannon: I am not sure I would agree with that. There are ``scatterable'' mines that can be delivered by air, by artillery and implanted by soldiers themselves. Cluster munitions cannot be implanted by soldiers, but they can be delivered by artillery or air. They are generally seen as a more sophisticated weapon, but I think that sophistication has been called into question because of the fact that it is civilians that are being killed and injured by the weapon, not military. To date, and I have been to many fora, no one has ever made the case that, in this conflict, cluster munitions were absolutely essential to the outcome.

[Translation]

Senator Fortin-Duplessis: Thank you very much, Madam Chair. I have something to say to our four witnesses. It is a pleasure to hear your reports and hear what you have to say on the topic.

The worst ordeal my husband and I have been through in our marriage was when our son Claude stepped on a land mine and had his leg blown off. I should not be telling you about this because it is very upsetting for me. You will understand that I am extremely sensitive and would like all land mines and cluster munitions in the world to be eradicated.

Here is my first question. To your knowledge, has the ban on cluster munitions become a priority for certain countries and non-governmental organizations? You do not know? When did your organization become concerned about this? I assume that is at the basis.

[English]

Mr. Hannon: My organization is a coalition of Canadian NGOs. It came into being in 1994 when other NGOs got together and created the International Campaign to Ban Landmines. At the time, I was working at Oxfam. With our colleagues in Oxfam Quebec, Oxfam U.S., Great Britain and elsewhere, we were seeing great impact on the work we were trying to do in countries. People were being killed and injured with land mines. They could not go to their fields, to school, to church, or to hospitals.

I got involved personally after inadvertently finding myself in a minefield in Rwanda. I came back and got involved with Mines Action Canada.

Our organization felt that we needed to deal with this issue. There had been many attempts through the decades to try to regulate or control the use of land mines. Everyone came to the conclusion that the only way you will effectively deal with the problem is to ban the weapon. We took the same view.

We started our concerns in 1999 with the Balkans conflict. In 2001, we decided that we would work on this weapon. We went to Geneva and joined other NGOs to go to the Convention on Conventional Weapons and say that we need new international law to deal with this weapon, because when it fails, as it does, it creates de facto minefields; it prevents people from going about their daily life.

Through that work, and through the decade, we have certainly come to learn that the only way to effectively deal with that problem and that issue is to call for a comprehensive ban. It is not a weapon that can be used responsibly because it is indiscriminate by nature and it has inhumane effects. The best way to stop that from happening is to have a comprehensive ban, strong national legislation, and clear implementation.

We have seen with the land mines treaty that you take the highest standard possible that you can get, and people will come and adhere to it. Eighty per cent of the world has joined the land mines treaty, and it is not because we negotiated down to a compromise; it is because we fought for the highest standard possible.

This convention is the highest standard possible right now on cluster munitions. If we support that, in the spirit that it was written and that countries have joined it, others will adhere to it and join it, and they have started to do so.

I predict that 15 years from now we will be exactly where we are now with land mines with clusters. Very few countries will have them. We will reserve the right to use them and we will not have very many casualties from them.

[Translation]

Senator Fortin-Duplessis: Here is my other question, but I am not sure you will be able to answer it. Perhaps you will. The Convention on Cluster Munitions is one of the two current major international initiatives aimed at regulating cluster munitions. The other initiative was the United Nations convention on the banning and limitation of use of certain conventional weapons. In 2007, the states that participated in that convention made a commitment to negotiate a proposal aimed at alleviating the humanitarian impact of cluster munitions.

Why did the states feel it necessary to negotiate the convention outside the framework of the United Nations convention? You would need to know what the United Nations convention involved, but can you answer my question?

Ms. Gabelnick: I will try to speak in French to change things up a bit. As Paul said, the issue comes from the fact that people saw the real suffering of others and said that the only solution was to completely abolish cluster munitions. At the Ottawa Convention, we saw that in the context of that other convention, the CCW, if I have understood your question correctly — the CCW includes states like the United States, but also Russia, China, Pakistan, India, Israel — the only solutions proposed were technical changes whereby those weapons would be used less, but only in some cases.

However, as several states were involved, the civil society and the ICRC decided that this would not be enough to resolve the issue. Therefore, they decided to begin another process where countries would have control, as that was not a consensus forum, so that they could decide exactly what they wanted and raise the bar fairly high.

So the idea behind a convention like that is to allow the states that are ready to participate in abolishing, banning, those weapons to do so when ready. Others can wait. In the meantime, what is important is that those weapons are being stigmatized. We have serious concerns about Bill S-10 because we think it reduces the stigmatization. I hope I have answered the question and that you were able to understand my fairly limited French.

Senator Fortin-Duplessis: My question was simply why they did not follow the United Nations convention and why it was necessary to have another convention to be able to resolve this issue.

[English]

Mr. Epps: The quick response is that the CCW, the Convention on Certain Conventional Weapons, operates under consensus, which means that all states effectively have power of veto over decisions. Both the land mines process and the cluster munitions process were attempted through that and failed because of the consensus process. This is a problem generally in the United Nations when consensus is brought to bear, and certainly we are finding it now in the arms trade treaty process as well.

Senator D. Smith: Canada has a very good record, given what happened with the Liberal government in 1997 and the Conservative government in 2008. The reason I mention that is that if there is any chance of getting an amendment here, we have to deal with this in a non-partisan way. I think the more thorough it is, the less likely it is to happen. If there is a chance of a little fine-tuning or amendment, it has to be simple.

Mr. Hannon referred to a number of changes, and we also heard from Mr. Epps about a number of loopholes. Ms. Gabelnick said she could live with what Norway or New Zealand did.

Here is my simple question. We also heard from Warren Allmand to just delete clause 11. If you delete clause 11, it is the same as the land mines. If we are going to try a simple approach, as between, say, those three — not a purist approach where you fix everything, but a simple one — would you go for the ``just delete section 11'' or the New Zealand one or the Norway one? Which would you go for?

Mr. Hannon: I guess I should take that.

Senator D. Smith: You can all take it.

Mr. Hannon: I appreciate your point about all the parties.

Senator D. Smith: Keep it simple.

Mr. Hannon: We have worked with all parties on land mines, and all parties supported land mines treaties. We worked with all parties on cluster munitions, and we are convinced that all parties support a ban on cluster munitions.

To amend this legislation to deal with interoperability, given the preoccupation that has come up with that issue in this committee and obviously was tried to be addressed in the legislation itself, I would suggest that we either use the New Zealand legislation as a model or our own land mines legislation in section 6(3) as a model rather than eliminating clause 11 in total. Concern has been expressed. Interoperability is a major concern and the treaty in Article 21(3) acknowledges that we would be active with a state non-party who might reserve the right or might actually use them. I think it would be more palatable to everybody to have something in. My preference would be not to have it in at all if it stays the way it is.

Senator D. Smith: I am not sure what your answer was.

Mr. Hannon: Sorry, I apologize.

Ms. Gabelnick: I think what Mr. Hannon is trying to say is that New Zealand probably gives the best option for Canada because it does at least allude to the fact that these joint operations will take place but no assistance is allowed. Alternatively, why not look at Canada's own legislation on land mines?

Senator, I like what you said in the previous session about where there is a will, there is a way. We really hope that there is a will. If you are looking for language suggestions, we would be happy to present very simple ones for you. Thank you.

The Chair: Thank you. We have run out of time. You have helped us in the debate. We will look at the balance that needs to be struck between the safety and security that is the responsibility of the government for its citizens and operations that we may undertake, both at home and around the world, and the continued commitment by all. I have not heard from anyone who advocates any use by Canada of cluster munitions. Our debate is how to implement the convention in the best possible way, taking into account national law and the balance that needs to be struck by the responsibilities of the government.

We will continue with other witnesses, but we very much appreciate your input today. If you wish to add any more suggestions, please do so by addressing them to the clerk, and they will be disseminated to the committee members. Thank you for taking this time with us and sharing your opinions.

(The committee adjourned.)