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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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.
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
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
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
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
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
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.
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.
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
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
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
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
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
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
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
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
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
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
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
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.
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?
Mr. Collins: I do not know in detail other Commonwealth countries'
Senator Fortin-Duplessis: I am talking about those that have already
ratified their legislation.
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
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
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.
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.
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
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
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
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
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
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
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
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.
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.
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
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
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.
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
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.
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
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
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.
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.)