Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue 16 - Evidence - Meeting of October 31, 2012
OTTAWA, Wednesday, October 31, 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 4:17 p.m. to give consideration to the
Senator Percy E. Downe (Deputy Chair) in the chair.
The Deputy Chair: Welcome to the Standing Senate Committee on
Foreign Affairs and International Trade where we are continuing our study on
Bill S-10, An Act to amend the Convention on Cluster Munitions.
I will ask our witness, Mr. Turcotte to introduce himself. He has an
opening statement that will be about 10 minutes, after which he has agreed
to take questions from senators.
Earl Turcotte, as an individual: I am pleased to have the
opportunity to address this committee. I will introduce myself in a moment
but I would like to begin by saying that I appear before you strictly in a
personal capacity. All views expressed are solely my own and should not
reflect upon any individual or entity with whom I am associated.
Between 2005 and early 2011, I had lead responsibility in the Department
of Foreign Affairs and International Trade for several arms control
instruments: The UN Programme of Action for Small Arms and Light Weapons,
for a few years when I first ran the department; the Convention on
Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate
Effects; the Anti-Personnel Landmine Treaty, more commonly known as the
Ottawa convention; and I had the great honour of leading the Canadian
delegation throughout the negotiation of the Convention on Cluster
As you know, cluster munitions are designed to disperse large numbers of
explosive submunitions over a wide area. If it ever was possible, it is
virtually impossible to use them responsibly in the modern day, given the
asymmetrical nature of most conflicts with combatants often
indistinguishable from civilians or embedded in civilian populated areas;
and the fact that cluster munitions are notoriously inaccurate and have high
dud rates of between 10 per cent and 40 per cent, depending on type and
battlefield conditions. They have been used in approximately 37 countries to
date. Between 94 per cent and 98 per cent of all recorded casualties,
depending on the year, from cluster munitions have been civilians. The
majority have been children, who are often attracted to unexploded
It was the extensive use of cluster munitions during the last 72 hours of
the war between Israel and Hezbollah in Southern Lebanon in 2006 that
precipitated the Oslo process initiated by Norway with strong support from
Austria, Ireland, New Zealand, Mexico and the Holy See in early 2007, a
process that was taken outside the traditional framework for conventional
arms discussions, the Convention on Certain Conventional Weapons, just as
Canada had done a decade earlier with respect to anti-personnel land mines.
Preparatory conferences in the Oslo process were held in Oslo, Lima, Vienna
and Wellington, and the formal negotiation took place in Dublin for 10 days
over a two-week period in May 2008. Fifteen months from beginning to end,
and the results were remarkable. Like the Ottawa convention, the Convention
on Cluster Munitions has set a gold standard in international humanitarian
You are familiar with Article 1 of the Convention on Cluster Munitions so
I will not repeat it here. It is in my written submission. Among other
things, states parties must also destroy stockpiles within eight year, clear
contaminated areas within 10 years, and assist victims. Moreover, all
obligations obtain immediately upon entry into force of the convention for a
states party; that is, there is no transition or deferral period. The impact
of this ban promises to be quite profound, both as a preventive and a
Although Canada was not among the lead states in the Oslo process, we
participated actively from the first formal meeting in Oslo in February
2007, and Canada was among the first states to sign the Convention on
Cluster Munitions when it opened for signature in December 2008.
Throughout the negotiations, our delegation worked very closely with the
U.K., France, Germany, Australia and many other countries to ensure that we
achieved the highest possible humanitarian standard in the convention. At
the same time, it was necessary for some of us to ensure that we could
continue to engage effectively in combined military operations with allies
such as the United States that have chosen, at least for the time being, not
to become party to this convention.
With significant effort, we succeeded in negotiating into the text of the
convention Article 21, which makes explicit provision for continued military
cooperation with non-party states. Article 21 happens to be based largely
upon text that I personally drafted and delivered in Dublin. As one of its
authors and one of the people who fought hardest for its inclusion in the
final text, I think that I understand its provisions and restrictions as
well as anyone in the international community.
I believed then and I continue to believe that this provision for
continued interoperability is an essential element of the convention. It
preserves military alliances between states parties and non-party states
that are vital to Canada's national interest and to global peace and
security. Without this article, NATO and similar military alliances may have
been at some risk and it would have been very difficult for countries such
as ours to ban cluster munitions and to assume the many other legally
binding obligations contained in the convention. However, Article 21 must be
considered in its entirety and within the context of the broader convention.
During negotiations there was grave concern among a significant majority
of participating countries as well as international organizations such as
the International Committee of the Red Cross and NGOs that comprise the
Cluster Munitions Coalition that the phrase at the beginning of paragraph 3
of Article 21, "Notwithstanding the provisions of Article 1, " would
nullify the categorical prohibitions contained in Article 1 against the
development, production, stockpiling, use, assisting, or in any way
encouraging or inducing anyone to engage in any activity prohibited to a
states party in the convention.
This is not the case. Among other things, Article 31 of the Vienna
Convention on the Law of Treaties states:
A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
Moreover, paragraph 3 of Article 21 indicates only that states parties
can continue to engage in combined operations with non-party states. This in
no way implies that states parties can themselves engage in acts prohibited
under the convention.
Consider as well that paragraphs 1, 2, and 4 of Article 21 themselves
impose categorical prohibitions on the activities of states parties during
joint operations as well as positive obligations on states parties to
promote the norms of the convention and make best efforts to discourage
states not party to this convention from using cluster munitions.
Article 21 clearly does not allow activities during combined military
operations with states not party that would in any way diminish the object
and purpose of the convention. Quite the opposite; it reinforces them while
at the same time ensuring that the armed forces of states parties are not
held legally liable for activities contrary to the convention which may be
carried out by the forces of states not party, despite our best efforts to
I and the heads of delegations of like-minded countries made this point
repeatedly during negotiations, and it was with our solemn assurances and
this shared understanding that other participating states that feared it
might be used as a loophole agreed with great reluctance to include this
article in the final text.
There are now 111 signatories to the convention, of which 77 have
ratified or acceded, including many of Canada's allies. After Canada signed
in 2008, throughout 2009 and 2010 officials in Foreign Affairs, myself
included, were embroiled in an intense debate with the Department of
National Defence regarding which specific military activities would be or
should be prohibited or permitted during joint operations with non-party
In late 2010, senior officials in the two departments came to agreement.
I believed at that time that some of the scenarios that would be permitted
in the draft legislation are illegal under the convention and are completely
inconsistent with our publicly stated desire and legal requirement under the
convention to protect civilians from this weapon. I issued a conscientious
objection and asked that my name be removed as the lead departmental contact
on the proposed legislation as I could not, in good conscience, defend it in
its existing form. I strongly and repeatedly urged colleagues in Foreign
Affairs and National Defence to reconsider the matter, and a few months
later I resigned in protest and in order to be able to advocate publicly for
stronger legislation than was envisioned at that time.
In April of this year, Bill S-10 was finally tabled. Although I strongly
support Canadian accession to this convention, I regret that the proposed
legislation remains tragically and deeply flawed. Incredibly, it seeks
exceptions during combined military operations with non-party states that,
among other things, would legally permit all of the following: assisting
with logistics and the targeting of cluster munitions; Canadian Forces
transporting on Canadian carriers cluster munitions that belong to non-party
state forces; Canadian pilots or artillery personnel themselves using,
acquiring, possessing or moving cluster munitions while on attachment or
secondment with non-party state units; and, to me the most egregious and
potentially deadly scenario of all, a Canadian commander of a multinational
force authorizing or directing non-party state armed forces to use, acquire,
possess, import or export cluster munitions. In this case, Canada is not
only facilitating, assisting, aiding or abetting in the use of cluster
munitions but is in fact the author of the order, and the non-party state
forces in this scenario become our agents in the continued use of a weapon
that we claim should never be used again.
Clause 11.3 goes further and proposes blanket exceptions that permit
Canadian Forces personnel to aid, abet or counsel non-party state forces to
commit acts prohibited to states parties; to conspire with non-party states
forces to commit acts prohibited to states parties; to receive, comfort or
assist non-party state forces to escape, knowing that other persons have
committed, aided or abetted in the commission of acts prohibited to states
I ask you, in what world would a reasonable person claim that any of the
foregoing is consistent with a total and unequivocal ban on cluster
munitions and with states parties' legally binding obligation to promote the
norms of the convention and to make best efforts to discourage non-party
states from using cluster munitions? In my view, it would take contortions
of law, logic and morality to come to such an outrageous conclusion.
Many others around the world and I regard the proposed Canadian
legislation as, by far, the worst tabled by any of the 111 countries that
have signed the convention. It is the antithesis of a balanced agreement
that 108 negotiating states struck in Dublin in 2008, and I believe the word
"antithesis " was used by Stephen Goose in his testimony, and I think it is
The Department of National Defence may claim that Canada is in good
company and that other countries, including some of our NATO allies, are
interpreting the provisions of Article 21 the same way. This is simply not
true. Of the 108 countries that participated in the negotiations in Dublin,
only Canada, Australia, France, Germany, Japan, the Netherlands, Spain,
Switzerland, the U.K. and a few others actively sought provisions on
interoperability. Virtually all of the other countries at the conference
adamantly opposed any such provision for fear that it would be used as a
legal loophole for the continued use of cluster munitions during joint
operations with non-party states.
Even among the very small group that, like Canada, sought provision for
military interoperability with non-party states, no other country will allow
many of the things that this legislation deems legal. I challenge anyone to
identify any other state party or signatory that will allow one of their
commanders of a multinational force to authorize or order the use of cluster
munitions by non-party state forces, that will allow its forces to transport
cluster munitions on its own carriers in order to assist non-party state
forces or that will allow their pilots or artillery personnel on exchange
with non-party states to use cluster munitions. I challenge the government
to identify any other state party or signatory that is giving its forces
carte blanche, in its own words, to aid, abet, conspire and assist non-party
state forces with the commission of acts predicted to states parties.
I would like to know if any of your witnesses from the Department of
National Defence or DFAIT have produced examples of other states'
legislation that would allow these things. They have not because they
cannot. They do not exist. NATO allies, Germany and the Netherlands will not
even allow non-party states to transit their territory with cluster
munitions aboard, let alone any of the scenarios that we have just spoken
Skipping ahead to my conclusions — and thank you for your indulgence —
Canada is poised to set a dangerous precedent that could well undermine the
standards that have been painstakingly achieved in international
humanitarian law and which could render our nation complicit in the
continued use of a weapon that has shattered the lives of thousands of
innocent people, mostly children, in different parts of the world. This
would be a betrayal of the trust of colleagues in other countries who
negotiated the convention in good faith, a betrayal of Canadians who expect
far better from our nation and, worst of all, a complete failure to do
everything we can to prevent more needless deaths and suffering among
innocent men, women and children.
As I have said in the past, I believe that Canada must strive to set the
highest, not the lowest, standard in international humanitarian law. I would
recommend, therefore, that this committee embrace clause 6 of the draft
legislations and reject clause 11 in its entirety in order to reflect the
balance contained in the convention and in the instructions, by the way,
that our delegation received from cabinet, which held constant throughout
the Oslo process.
If you are unprepared to do away with clause 11 completely, I would
endorse all the amendments proposed by the International Committee of the
Red Cross, Human Rights Watch and Harvard Law School's Human Rights Clinic,
which have already been endorsed by the Cluster Munitions Coalition, Mines
Action Canada and others.
I wish to end my opening remarks with a précis of my closing remarks at
the 2008 negotiating conference in Dublin, where I defended Article 21 for a
final time after it had been severely criticized by many other state,
international organizations and NGOs. I do this to give you a clear idea of
how we, Canada, and our like-minded colleagues presented this article on
interoperability to the world, to illustrate why, in the end, it was deemed
acceptable to other states, and to demonstrate how profoundly clause 11 of
Canada's draft legislation departs from what was actually negotiated and
endorsed by Canada when we and 107 other states unanimously adopted the text
at the end of the negotiating conference and by virtue of our signature on
the convention in Oslo in 2008. Remember, this is Dublin in May 2008, the
final day of a protracted and intense multilateral negotiation:
Mr. President, Ladies and Gentlemen,
It has been a great privilege and a pleasure for Canada to
participate in this negotiating Conference.
We should all be proud of what has been accomplished since February
2007 when this process began in Oslo.
It has been a great honour for each member of our delegation to
represent our country and to be among such august company.
Our negotiations have not been easy. We all care deeply about this
issue and various — some might say "competing " — considerations were
We believe that the right balance has been struck.
Nevertheless, it is inevitable in such circumstances that there is
some disappointment. We heard this in many of the remarks at the end of
the last session, particularly with reference to Article 21 on relations
with States not party.
Steve Goose of the Cluster Munitions Coalition referred to it as
stain on the fabric of the Convention ". . . a powerful and, to us, a
disturbing image. Others have referred to Article 21 as a "loophole.
We have referred to it as an essential element of legal protection to
accommodate situations in combined operations with non-party States
which may be beyond our control.
If these circumstances ever obtain, we believe they will be rare.
Why? Because we are in the midst of a major paradigm shift in how the
world regards cluster munitions; because this Convention, when it enters
into force, will render all cluster munitions illegal for States
Parties; . . . because some very large producers of this weapon have
already ceased production . . . ; because we know, and will ensure, that
our allies take our legal obligations seriously and will try not to put
us in situations where they might be abrogated;
Countries like ours that have fought hard for Article 21 want exactly
the same thing as those on the other side of this debate. We want to get
rid of this weapon; we want it never to be used again and to be
relegated to the dustbin of history; we want to universalize this
Convention and to advance its norms at every opportunity; we want and
will actively and forcefully discourage the development, production,
stockpiling, transfer and use of cluster munitions throughout the world;
we want to get on with the business of implementing all the provisions
of the Convention: from destroying stockpiles, to clearing land,
providing risk education and assisting victims; we want to join forces
with affected States and to help to generate the resources to get the
Ultimately, it is not only this legal document that will determine
how we behave day to day. It is also our intentions that shape our
actions. And I assure you that our intentions are honourable.
. . . Mr. President, I would like to end by reading the following
message received from my capital just a few hours ago:
This came from Ottawa.
Canada joins others in welcoming the text of this important
instrument that addresses the tragic humanitarian and development impact
caused by cluster munitions. The provisions in the instrument that
enable cooperation between States Party to the instrument and non-party
States demonstrate that the Oslo process recognizes both humanitarian
and security concerns.
The outcome is a significant achievement and the text is one that we
are proud to take back to our capital for consideration by the
Government and Parliament, in accordance with our domestic legal
Thank you Mr. President
Thank you, Mr. Chair.
The Deputy Chair: I would like to thank the witness for his
opening statement. I have a list of three senators to start questions.
Senator Fortin-Duplessis: First of all, welcome to our committee.
I took the time to read the statements that you made in the media and I
looked through the brief that you provided us with. Personally, I can assure
you that the Canadian government does not give carte blanche to military
members. I believe that the minister and the department assured us that they
will set up guidelines that will comply with the spirit of the Convention on
Cluster Munitions. I trust the minister when he says that the Canadian
forces will comply with the legislation.
You had the opportunity to be there and to actively participate in the
negotiations. That is sort of what I am going to ask you about, since, based
on what you have told us, you stayed quite a long time at the negotiations.
Was there a consensus whether a non-party state to the convention could
store cluster munitions on the territory of a state party?
Mr. Turcotte: Senator, shall I respond to part one first?
Senator Fortin-Duplessis: Yes, you can answer as you wish.
Mr. Turcotte: First of all, with respect to your preliminary
remarks with respect to the directives, I assume that you were referring to
directives that would be issued by the Chief of the Defence Staff that would
go beyond the draft legislation, in particular clause 11.
My response to that is that unless something is prohibited in Canadian
law, it is not prohibited as far as the convention is concerned. A policy
prohibition is meaningless. Policies can be changed at the stroke of a pen.
There is no due diligence. There is no involvement of Parliament in changing
of policy. A CDS directive can be changed by the Chief of the Defence Staff,
presumably, with the agreement of the Minister of Defence, possibly even
with the Minister of Foreign Affairs.
There is a requirement in the convention that legal penalties be attached
to prohibited acts. Therefore, if the government is serious about
prohibiting something, then embed it in the legislation. Make it transparent
and make it very clear that it is prohibited. If it is to be amended in the
future, then there is a very formal process that will have to be carried out
for that to happen.
With respect to your question as to whether there is ever a scenario
where non-party states could stockpile on the territory under the
jurisdiction of a state party, the answer is absolutely not. That is
absolutely prohibited under the convention.
Senator Fortin-Duplessis: As you know and as everyone knows, the
United States, China, Russia, Israel, India, Egypt and Pakistan have not
participated in the talks and have not signed the Convention on Cluster
Since you were right in the middle of the negotiations, were you aware of
the main objections those countries might have had to the convention?
Mr. Turcotte: Do you mean to ask for the primary objections or the
reasons they did not participate? I am sure each country has its own
reasons, and I certainly was not privy to them. I can only speculate.
You should know that the international community tried very hard to get a
mandate to negotiate an instrument within the traditional UN-facilitated
framework of the Convention on Certain Conventional Weapons, the CCW. We
could not get a mandate. The problem with that forum is that it operates on
the basis of consensus decision making, which has been misinterpreted, in my
view, to mean that every country has an effective veto so that it only takes
one country to say no and nothing happens. That is exactly what happened
when states, including Canada, advocated in the CCW to try to get a mandate
to negotiate, and it was only out of frustration that Norway and the five
other states that I mentioned finally took it outside that forum and invited
like-minded states to participate.
Do I know what the objections were? The short answer to your question is
that I do not. I speculate that it is quite simply that they are not
prepared to give up cluster munitions. There is a view that they have great
military utility. My response to that is that it depends on how you define
"military utility. " If you mean they have a great capacity to kill and
maim, the answer is yes. If you ask me if they have a great capacity to be
targeted and to distinguish between a legitimate target and innocent
civilians, the answer is no. They are an indiscriminate, inhumane weapon,
not worthy of soldiers of honour, in my view, and they deserve to be exactly
where they are, and that is outlawed by most of the international community,
already 111 states. As the convention is being universalized, more will come
Whether or not the countries you named will ever come on board remains to
be seen. I do not know. We can only hope.
Senator Fortin-Duplessis: I personally hope so, because, just like
you, I think those weapons are absolutely horrible and they should not
exist. I am going to let my colleagues ask you other questions and, if there
is a second round, I would like to have another turn.
Senator Nolin: Good afternoon, Mr. Turcotte. In your testimony,
you talked at great length about section 21 and that is exactly what I am
interested in. I understand that you represented Canada in all the stages or
in most of the important stages of the negotiations on this convention.
Could you tell me when the idea of having a section similar to what is now
section 21 started to form in the minds of the negotiating parties? In other
words, has Canada always imposed its will to have a section like that or did
the idea of having section 21 come up later?
Mr. Turcotte: Thank you for your question, senator. The
instructions that our delegation received from cabinet were quite clear. To
put it in a nutshell, we were mandated to negotiate a legally binding
instrument that would prohibit all cluster munitions that were deemed to
cause unacceptable harm to civilians while ensuring that Canada could
continue to engage effectively in joint operations with non-party states. It
was not until we got into negotiations, in fact all the way through the
preliminary conferences and to Dublin, when it was finally agreed that when
we finally came up with a definition of cluster munitions that was such that
we could agree to a total ban. Canada was one of the first countries to say
that if we came up with an appropriate definition that identified those
weapons that had no fail-safe features to ensure reliability, that had no
guidance system, either on the submunition or on the mother cluster munition
itself, those weapons that are inaccurate and indiscriminate and unreliable
would be defined as cluster munitions. When they were defined as cluster
munitions, we were able to say with great enthusiasm, we think all of these
weapons should be prohibited.
Interoperability, as is obvious from the mandate we were given by
cabinet, was foremost in our minds from the beginning. We were told that we
should negotiate text that dealt explicitly with interoperability if at all
possible, and we did manage to do that, so right from the start.
Senator Nolin: In your Canadian team, did you have representatives
from the Department of Defence?
Mr. Turcotte: We did, absolutely. Right from the beginning this
was a delegation comprised of Foreign Affairs, of course, being in the lead
for the negotiation of an international treaty, and the Department of
We had several individuals. I will not name any one, but there were
several, I think almost as many from DND as there were from Foreign Affairs.
Senator Nolin: At any point during the negotiations, did the
military people inform you of the range of interoperability situations that
the military was trying to protect?
Mr. Turcotte: Absolutely, and we started talking about scenarios
not just among the delegation but with other delegations from the beginning.
Everyone knew that if we were going to be successful in the end and get an
article that dealt with interoperability, we had to have in mind the types
of scenarios that would be prohibited and the types that would be
acceptable. You can be sure that all the states, non-governmental
organizations and international organizations participating in the
negotiations themselves raised various scenarios and asked if this would be
I will tell you what we had in mind. This is exactly the kind of scenario
that Article 21 was designed for. What happens if a Canadian commander of a
ground force calls in close air support, that air support is provided by a
non- party state, and that non-party state chooses to use cluster munitions?
Is our ground commander complicit? Is he liable legally? The answer to that
would be no, absolutely not. That is why Article 21 was designed the way it
The difference between that scenario and many of the scenarios that are
covered in clause 11 is that in one case there are circumstances beyond the
control of Canadians, of our Armed Forces. In the scenarios laid out in
clause 11, they are within our control. We have gone beyond being, if you
like, passive witnesses of acts carried out by non-party state forces, acts
that are prohibited to states parties, and clause 11 moves us right into the
camp of aiding, abetting, facilitating and even ordering those cluster
Senator Nolin: So you are saying that at no point in the entire
process of negotiation did anyone from Canada's Department of Defence talk
about the type of possibility described under section 11? So, when you
discussed scenarios with them — you talked to your colleagues from other
countries, but mostly to the Canadian military — no one mentioned that? Is
that what you are saying?
Mr. Turcotte: No, I am not saying that. They were presented. Many
of these things were discussed.
Senator Nolin: All of them, everything that we see in clause 11,
were presented to you while you were negotiating for Canada?
Mr. Turcotte: Various scenarios were discussed, both on the
margins with our allies, with like-minded states, with others, all these
scenarios. There were so many possible military scenarios that were brought
forward, in formal and informal discussions, that they were all discussed.
In the end what deemed Article 21 to be acceptable to the majority of
states, to all the states in the end that were there, is the assurance that
we provided that we would not be complicit, that we would not aid and abet,
that we would not be party to the continued use of cluster munitions; quite
the opposite. If you look at Article 21, we have a positive obligation to do
everything in our power to discourage their use and to advance the norms of
the convention, and that invokes Article 1. We invoke Article 1 in Article
21 itself. Article 21 does not nullify Article 1.
Senator Nolin: I have a lot of respect for your interpretation of
Article 21, but we are dealing with clause 11, and that is what we are asked
to accept or not.
I will wait for the second round of questions, Mr. Chair.
Senator Dallaire: First, I would like to clarify some terms with
you, Mr. Turcotte, so that we are on the same page with regard to
terminology. You have used the terms "Canadians on attachment " and
"Canadians on exchange, " in which they could be held accountable. Those
who are on exchange are usually in organizations such as staff colleges.
However, those who are seconded fall under the direct command of whomever
they are seconded to and are held accountable legally to that commander.
If a Canadian company commander is fighting in an American battalion and
commanding an American company, and cluster munitions are part of their
inventory and their forces deem them to be a weapons system, if he does not
follow that, and if people are injured, he will be held accountable and
court-martialled for the deaths of those soldiers.
In secondment we are on a different plane than in an independent command,
sending a battalion in with a brigade or something of that nature. Would you
agree with that?
Mr. Turcotte: Might I get clarification before I respond? Are you
saying that a Canadian Forces individual when on secondment is no longer
subject to the rules and regulations that apply to the Canadian Forces or to
the laws of Canada?
Senator Dallaire: No; I did not say that. I am saying that in that
command, he is responsible to that nation's command structure, including the
command of troops of that nation. In so doing he is bound by the doctrines,
training, procedures and orders of that nation to accomplish his mission, so
he could find himself in secondment in that scenario. He could. However,
that is not the same as us lending a battalion to an American brigade,
because their battalion commander has a different spectrum of assessment.
Mr. Turcotte: I understand that the government has offered policy
prohibitions that would restrict the actions of the Canadian on secondment.
You know far better than I how one would reconcile those policy prohibitions
from the Canadian Chief of the Defence Staff and the obligations that a
seconded soldier might have to the commander under which he is serving.
Senator Dallaire: I am saying that within clause 11, the covering
of secondment is correct. However, the rest of it is over the top.
I am trying to figure out what happened between Oslo and all of the
negotiations and then the people who produced clause 11 of this legislation,
amongst others. Obviously, the hands of many lawyers are involved in this;
the JAG branch has been heavily engaged. We can see certainly the heavy hand
of the Americans in there, who are the primary users of those weapons. We
are interoperable with them, but this case is pushing the argument of
interoperability beyond the concept of what it should be. To be
interoperable does not mean you need exactly the same ammunition that the
other guy is using. You simply need procedures, and so on, to do that.
Why did we go so far in not just protecting our soldiers in clause 11,
but in not even introducing the idea that should a commander at a senior
level have non-participatory forces under his command, he could, although
not being able to order them not to use it, at least attempt to influence
them not to use it? They did not even put that in there. What happened in
this shift of assessment that I think you are trying to describe between
Oslo and here?
Mr. Turcotte: I wish I had an answer for you. I think that
question should be put to the government. When we began to draft the
legislation, if I would have had my way, the legislation that is before you
now would look radically different. It would reflect the obligations that
apply to Canada as an aspiring state party.
You have a wonderful piece of legislation before you if you excise clause
11 completely. Clause 6 says what needs to be said with respect to
prohibitions. I would make other recommendations about the inclusion of our
positive obligations, including a prohibition on investment, et cetera.
However, for the most part, you have a good piece of legislation if you take
out clause 11 because it absolutely nullifies clause 6.
I understand that when Minister Baird was here, he almost boasted about
how this legislation prohibits aiding, abetting, facilitating, et cetera. I
wonder if he has read his own legislation. That is a rhetorical question. I
know he has because clause 11 undoes all the good clause 6 brings forward.
It is an absolutely contradictory piece of legislation. It is an
embarrassment to Canada, in my view.
Senator Dallaire: I will not chastise all of clause 11 because
there might be some room to manoeuvre, but there is a lot there where we are
indirectly aiding and abetting non-signatories to use the weapon, which we
could quite overtly not participate in and would not affect in any way,
shape or form either the operations or our interoperability with them. That
is where I see a lot of them going off the top.
I come back to an argument used by the JAG branch in which they responded
by saying we put this much detail in because we wanted to ensure — because
there is a criminal offence at the end of this — that soldiers, sailors and
commanders who are persons who are caught in these joint operations — they
are combined operations, but I will leave the term "joint " — not be held
accountable should weapons be used within the theatre of operations.
Do you feel they went too far in defending them? Did they have to put in
that much detail, or do you think there is something that we do not
understand but the lawyers do in regard to criminal responsibility here?
Mr. Turcotte: I think, senator, my former colleagues in JAG have
been very transparent in exactly what they want. What they want, I am
deducing, based on the evidence in front of us, goes way beyond protecting
Canadian Forces from engaging effectively in combined operations with
non-party states. What they want is business as usual with respect to
relations with the U.S. military. I ask myself what is different now, if
this legislation is passed, than prior to when the legislation is passed.
Canada has never used cluster munitions. It is not like we are giving up a
weapon that has been useful to us in the past. We have never used it. What
is this legislation forcing Canada to give up — nothing; no freedom that we
enjoy at this point. I think this is a disingenuous means to get through
domestic legislation what we did not get and did not pursue in negotiations
Senator Hubley: Mr. Turcotte, I think we have come again to the
crux of the issues here and it is embodied in clause 11. You have probably
had an opportunity to look at other legislation. Could you share with us a
country that has interpreted Article 21, the interoperability clause, in
their legislation that seems to respect the spirit of the convention as a
Mr. Turcotte: Yes, of the 111 signatories, there are 77 states
parties. I believe that around 20 have produced separate, independent
legislation with respect to this convention. The vast majority have simply
said that it speaks for itself and they agree to be bound by the convention.
In my view, that is not good enough because they have an obligation to
specify legal penalties for the commission of prohibited acts. Ideally, they
would go beyond that and include in their legislation the positive
obligations that are on states parties.
Certainly, New Zealand is a model that we should look to. It states
clearly that their forces can continue to engage in combined operations with
non-state parties. I cannot recall the exact wording, but the spirit is that
this in no way will allow their forces to facilitate in any way the use, et
cetera, of cluster munitions. You can look as well at Norway's legislation.
Please do not look at Australia because they have, next to Canada, the
worst legislation that has been brought forward. It is interesting that
Australian legislation allows non-state party forces to stockpile. It also
allows transit and, I believe, transfer, but it does not allow their own
forces to use cluster munitions or the Australian commander to order the use
of them by non-States Party forces. Relatively speaking, theirs is miles and
away much better than what is in front of you now; but it is still the worst
among the countries that have developed legislation, except Canada, which is
so bad that it is a whole different order of magnitude, in my view.
Senator Hubley: You said that it should all go. Clause 11 could be
taken out and we would have to replace it. We could look at other
legislation that might be available to us and perhaps find something
acceptable to put in its place.
Mr. Turcotte: I would say yes, and I would encourage you to look
at France, Germany, Ireland and Austria. Certainly, New Zealand is the best
and the cleanest.
I should mention also that the International Committee of the Red Cross
has developed model legislation. They are more than happy to provide
personnel who will provide technical advice for the drafters of legislation
free of charge. I have the greatest of respect for the lawyers who work for
the International Committee of the Red Cross; and I think they are right on
Senator D. Smith: We are on the same theme, I guess. I have asked
a number of our witnesses about what changes we need. More and more I am
coming to the conclusion that the simpler it is the better the chance is of
it being accepted. I do not know whether the government is open-minded, but
it might work if we delete clause 11. I understand that some people have
said to go the New Zealand route or the Norway route. We could simply delete
clause 11. What appeals to me about that is it would be in the land mines
category. The one for land mines is the same but does not have a clause 11.
The land mines thing is acceptable to the government. They have not tried to
amend it and put a clause 11 in there. It would be hard to say that the land
mines one works without a clause 11, so could this not work without a clause
11? My mind is focused on any chance for cooperation; and that might be the
easiest case. We could fine-tune everything to perfection for everyone
everywhere, but it will not fly. If you make it the same as a precedent that
they think is fine — the land mines — just by taking clause 11 out, then
maybe there is a chance. What is your thought on that?
Mr. Turcotte: Clause 11 is virtually impossible to fix because the
only way would be to undo it. Eliminating it is the simplest and best way,
so I would agree with you. Using the Ottawa convention on anti-personnel
landmines as a model is exactly the way to go. That is a fine piece of
legislation. It does everything that Canada needs it to do, and we could do
the same here with respect to cluster munitions.
At the crux of the matter is whether we are serious about banning this
weapon and about doing everything that we can to influence others to ensure
that it is never used again; or whether we really do not care and perhaps
should not have participated in the process to begin with if we were not
serious. I think we were serious.
Senator D. Smith: The senators on this committee are serious about
it too. Where there is a will, there is a way. The land mine precedent is
one that the government has already found acceptable.
Senator Wallin: I have a couple of comments. We have heard
testimony that spells out why land mines and cluster munitions are very
different kinds of weapons and used in different operational circumstances.
I am not an expert, so I will leave that aside, but I am not sure it is that
I have trouble with a couple of things, one being the notion that we
cannot be serious about prohibiting the use of these munitions. We have
never used them. We have been a signatory to this convention. We have
obligated ourselves as a country to convince others not to use this through
moral suasion, stopping at the line of infringing on other people's
sovereignty. We do not want to be told how to run our country or our
operations; and, therefore, we will not tell or demand of others. Rather, we
will try to persuade. That is the whole intent.
I am a bit troubled by your tone. You suggested in response to Senator
Dallaire that somehow Canada's military men and women are looking for a back
door to find a way to use these munitions. I just do not see that intent.
You seem to imply that. What would lead you to say that, when all the
testimony we have heard so far from people explaining clause 11 to us has
defended our men and women from being in situations and circumstances that
they cannot control or change and face prosecution, as Senator Dallaire
says, for actions that were inadvertent. When they looked at the rest of the
bill, it was not good enough and they had to come to some form of protection
for our men and women who have already put their lives on the line to defend
this country. Their intent is clear.
Mr. Turcotte: Please let me dispel the notion that I somehow think
our men and women in uniform want to continue to use cluster munitions.
Senator Wallin: Not "continue "; they have not used them.
Mr. Turcotte: I have the greatest respect for the Canadian Forces.
My father fought in Europe in World War II for three years. I have great
respect for our soldiers who put their lives on the line every day. In your
question, you have come right to the heart of the issue. You said that we
are going to prohibit this weapon, that we have agreed to use moral suasion
to try to influence our allies, and that we are not going to tell them what
to do; and moreover, we cannot control what they do. I agree with you — with
all of that. That is why article 21 was designed and that is why I fought so
hard to protect it.
What you have in clause 11 is radically different. That is a departure.
What you have in clause 11 are activities that can be carried out that are
not beyond our control — quite the opposite. It allows Canadian Forces to
engage in activities that will help, assist, aid, abet or even order the use
of cluster munitions. That is why clause 11 is so radically different from
the rest of the bill.
Senator Wallin: If they have engaged in any of those actions it is
because they are in a combined operation.
We heard testimony from our military folks about what it is like on the
ground and having to make a decision in a desert in Afghanistan. You have
forces from half a dozen countries involved and you have to make a decision
to react to a specific situation.
What they say this is for is, "Do not come back and get us in six months
and say it is our fault, we secretly wanted to do it and we used somebody
else to do it, or we turned a blind eye. " If you are part of a combined
operation, there may be an order given by some non-party state that might
involves an action that we do not abide, and we would say that. However,
what would you have us do on the battlefield?
Mr. Turcotte: You say it might involve an action by a non-party
state. We cannot control the actions of non-party states. That is the point.
What we can control, and we have said this time and again during
negotiations, are our actions and our choices. What is it that we will do?
Will we put a Canadian pilot in a U.S. airplane and say, "You can go and
use cluster munitions "? Will we allow Canadian artillery personnel to use —
press the button for — cluster munitions? Will we allow a Canadian commander
like Lieutenant-General Charles Bouchard to order the use of cluster
munitions by non-party state forces? I think those things are well within
our control, and the answer to that should be no.
With respect to interoperability, there are 28 NATO countries and 20 are
signatories to this convention. Interoperability works both ways. We have a
piece of legislation that is radically different from what the U.K., France,
Germany, the Netherlands, Belgium, Norway and many other NATO allies have.
Senator Wallin: And radically different from the United States.
Mr. Turcotte: The United States is not a party to the
Senator Wallin: Exactly. That is what I am saying: We are allowed,
with our largest friend and ally, to view the world differently. As a
Canadian, I do not want to forfeit that right to view the world differently
or use my moral suasion to change their mind.
I also do not want to be in a circumstance where I might inadvertently
put Canadian lives in danger or, furthermore, risk prosecution when they
come home for being involved in actions to which they were not directly a
party to, or to which they could not realistically stop.
Mr. Turcotte: Senator, there are many ways to fight a war, and I
have great faith in our military. They have used alternative means of waging
war when they have had to. I am sure they can find ways to continue to do
what needs to be done militarily and to continue to cooperate with our
closest friend and ally effectively without using a weapon that is
indiscriminate and inhumane.
Senator Wallin: I am sorry. I am not —
The Deputy Chair: Thank you, Senator Wallin.
Senator Wallin: I think you restated it incorrectly, but I will
stop at this point.
Senator Johnson: Senator Wallin covered some of my concerns.
You stated that we have produced the worst legislation of any of the 111
countries that have signed the convention, and you cite New Zealand,
Germany, France and a few others. Can you tell me what New Zealand did, for
example, that causes you to cite their legislation with such great
Mr. Turcotte: Yes, I can, though I do not have the legislation
with me. New Zealand made it very clear in their legislation that their
forces could continue to engage in combined operations with non-party
states. They made it clear as well that this in no way would allow their
forces to commit acts that are prohibited to states parties under the
In effect, the convention drives their legislation, and that is exactly
what should happen for Canada, as well: We should take our lead from the
convention itself. The convention struck the right balance between
humanitarian and security concerns. This draft legislation upsets that
balance; in my view, it destroys the balance.
Senator Johnson: You mentioned that it falls below "the minimum
threshold of legality in international humanitarian law. " Is that an
overstatement? Could you explain that to me?
Mr. Turcotte: First, I am not a lawyer. That is my personal view.
I believe that Canada's legislation would be inconsistent and would fall
below the legal obligations that pertain to states parties to the Convention
on Cluster Munitions. I believe previous witnesses have said that we can
legalize anything we like in Canadian legislation, but that does not mean it
is legal in other jurisdictions.
There are activities, in my view, that could be carried out in theory
under clause 11 that will be deemed to be illegal in other jurisdictions.
You talk about vulnerability in prosecution. I think that puts Canadian
Forces at risk.
Senator Johnson: Could you comment on the witnesses who talked
about the United States joining the convention in 2018? Do you have any
remarks to make on that? Do you know anything about that?
Mr. Turcotte: I think you are referring to a commitment that the
United States has made to phase out the current generation of cluster
munitions by 2018. I understand that is a hard commitment on their part.
However, please do not construe that as the United States giving up
cluster munitions by 2018, because that is not the case. The United States
has committed to developing a new generation of cluster munitions that will
have a "reliability rate of 99 per cent. " I am sure Senator Dallaire, as a
former military man, knows far better than I that 99 per cent reliability is
almost impossible to attain in any weapons system. We were told that many
times by our military advisers.
Be that as it may, the U.S. is technologically very sophisticated, so let
us assume they do. That does not mean they have stopped using cluster
munitions. What they have not done is committed in any way to reducing the
number of submunitions per cluster munition to under 10. Therefore, the wide
area effect of a cluster munition can remain the same, or it might even
expand. They also have not committed to introducing guidance systems, either
on a cluster munition or the submunition, such that it can detect and engage
a target objective. That means it can be as inaccurate as cluster munitions
Understand that cluster munitions are deliberately inaccurate at the
level of the submunition. They are fixed with fins, ribbons, parachutes and
all kinds of means to ensure that the submunitions disperse as widely as
possible. They are an area denial weapon. The military scenarios under which
a weapon like that can be used responsibly simply do not exist in modern
warfare. That is the problem with them.
I am based in Laos right now. During the Vietnam War, the equivalent of
the payload of a B-52 was dropped on Laos every eight minutes for nine years
between 1964 and 1973. A B-52 can accommodate 100, 500-pound unitary bombs.
That is almost 300 million tonnes of ordnance — 1 tonne of ordnance for
every man, woman and child in the country. At the current rate of clearance,
it will take 100 years or more to clear Laos. They have only cleared about 1
per cent of the ordnance in the last 38 years since the war ended.
The legacy weapons of cluster munitions kill people regularly. They deny
access to land regularly. They are preventing Laos from attaining its
development goals. They hope to pull their country out of poverty and the
Least Developed Country list, or LDC list, by 2020. It might be impossible
because cluster munitions deny access to a lot of very valuable land and
continue to kill people almost daily.
Senator Johnson: Yes, it is horrifying.
Senator Wallace: I listened to your comments and they seem to fall
into two broad categories, both of which are interrelated. One is with the
prohibitions that are included in clause 11 of Bill S-10 — you spoke
strongly against those — and whether those prohibitions should be adopted by
the government as a matter of policy. The other part of it is whether those
prohibitions and the bill are consistent with the convention. Those are the
On the first one, we have heard and our understanding is that those
activities that are set out in clause 11 of the bill are there to make it
clear and to provide protection for Canadian military personnel, should they
find themselves in those circumstances.
Together with that, the minister said it is a matter of policy and there
will be a policy statement issued to make it clear that these activities are
ones that certainly would not be supported or promoted by our government,
but it is there in case, in these combined military operations,
circumstances could arise that could put our military personnel at legal or
criminal risk. There is that side of it.
The other part of this, as I say, is whether the bill, in clause 11 in
particular, is contrary to the convention.
You, in the strongest of terms, make your personal position very clear on
that — your abhorrence of cluster munitions. We certainly understand that,
and I do not think there is any disagreement around this table.
However, I was interested in your comments. You made this statement: In
what world would a reasonable person claim that any of the foregoing — and
you were referring to the clause 11 prohibitions — are consistent with a
total and unequivocal ban on cluster munitions? A total and unequivocal ban
on cluster munitions. When I heard you say that, my impression is that you
believe that is what the convention amounts to, a total and unequivocal ban
on cluster munitions. Most of what follows is based on that.
With the interoperability clause that you are well familiar with in
Article 21(3), the convention itself provides for states parties engaging in
military cooperation and operations with states not a party to the
convention that might engage in activities prohibited, might engage, and I
would take from that those activities could be part of this joint or
combined military cooperation.
With that in mind, I do not understand how you can take the position that
the convention represents an outright and total and unequivocal ban on
cluster munitions when the interoperability clause is there and clearly
envisages the use of these munitions. Whether that is right, wrong or
whatever, that is what we have. I would be interested in your comment to
Mr. Turcotte: When I say a total and unequivocal ban, that is not
a ban for all states. That is a ban for states parties, and the convention
is extremely clear on that. Article 1 is extremely clear on that. Article 1,
as I mentioned earlier, is re- invoked in Article 21 itself. Article 21 goes
further and introduces the positive obligations to advance the norms of the
convention and to make best efforts to discourage their use. As I say, the
total unequivocal ban applies to states parties.
There is acknowledgement that non-party states may continue to use and
probably will continue to use cluster munitions. That is absolutely true,
and that is why we need Article 21. Paragraph 3 of Article 21 itself
specifies, if you like, the licence that is being given to states parties,
and that is licence to continue to engage in combined operation with states
not party. That is not licence to help them to use the very weapons you have
prohibited and say you never want to see used again. Do you see that
distinction? Am I being clear on that?
Senator Wallace: You are being clear, but I am not sure I agree
when I read Articles 21(3) and (4) of the convention.
We have encountered this before. You were part of the negotiations. We
are left with the words. We are left with the convention and trying to
understand what those words mean. Paragraph 3 of Article 21 says that party
states may engage in military cooperation and operations. What could that
entail? What could that involve in relation to cluster munitions?
I look at the following paragraph, paragraph 4. It says that for a state
party, which in this case would include Canada, nothing shall authorize the
state party to do certain things, and for the most part it tracks exactly
the same prohibitions that are included in Article 1.
Mr. Turcotte: Exactly.
Senator Wallace: To develop, produce, otherwise acquire, and with
the insertion of a word, it then repeats stockpile, transfer or use. Nothing
would authorize that. Interestingly enough, in paragraph 4, the word "itself
" appears. It says nothing will authorize a state party to itself
stockpile or transfer, to itself use, which makes me wonder in the context
of a joint or combined military operation, the drafters were distinguishing
the circumstance where the state party on its own does something but it may
find itself involved in that activity as part of the combined. In other
words, it is not itself.
Mr. Turcotte: Exactly, senator. That is exactly what this
paragraph does. It was to acknowledge the reality that, on the battlefield,
non-party states may well perform acts that are prohibited to a state party.
What we were saying here is while we can continue to work with them and be
in military partnership with them, we cannot ourselves commit these acts. It
is prohibited for us, although it is not for them. That is exactly why it
reads the way it does.
By the way, paragraph 4 of Article 21 was deemed roundly to be
indicative, not exhaustive, of the scenarios that would be prohibited to a
state party. In order to ensure that it was viewed that way, we introduced
paragraphs 1 and 2 that are unlimited in their requirements for states
parties to advance the norms of the convention and to make best efforts to
discourage the continued use of cluster munitions, an unlimited obligation
to do everything within our power.
I ask you this: Is clause 11 the best that Canada can do to discourage
the use of cluster munitions? Clause 11 does not prohibit anything. Clause
11 undoes the prohibitions that were introduced in clause 6. It nullifies
clause 6. That is what clause 11 does, and that is why I find it so
Senator Wallace: I understand your view of it. As I say, we are
left with the words that are included in the convention. I read paragraph 4
of Article 21 to limit Canada to what it may or may not do itself, and
paragraph 4 is in the context of paragraph 3, which is referring to joint or
combined military operations. In other words, Canada may find itself in a
combined or joint military operation where those weapons are being used by
one of its participating allies, and your view would be that Canada could
not be involved in that. I question that.
The other final point I would make is about paragraph 4 of Article 21,
listing the specific activities that the state party or Canada would be
prohibited in being involved in. The one concerning assistance, assisting a
party, in Article 1(c), that a state party is prohibited from assisting
anyone to engage in a prohibited activity, and interestingly enough, the
assisting reference is not included in the prohibited activities of
paragraph 4 of Article 21. I wonder why that is. Is it because the assisting
could be construed or could be part of a combined joint military operation
and the drafters wished to leave that open so that a country such as Canada
in that combined operation would not find itself offside with the
convention? That is what the words say to me.
Mr. Turcotte: Senator, I think that you are failing to include
paragraphs 1 and 2 of Article 21 in your broad understanding of Article 21.
As I just said, paragraph 4 was deemed to be indicative, not exhaustive, of
the scenarios that would be prohibited to a state party.
First of all, there was no agreement that Article 21 would nullify the
categorical prohibitions in Article 1 that remain to be contentious, and the
only way states were prepared to accept any text on interoperability was
with the inclusion of paragraphs 1 and 2 that make the disposition of states
parties crystal clear.
How do you reconcile license to assist in the use of cluster munitions
with a positive obligation to do everything in our power to discourage their
use? It is logically, morally and legally impossible to reconcile those two
Senator Wallin: Except if you are standing in a field.
Mr. Turcotte: Paragraphs 1 and 2 are perfectly clear. We drove
that point home time and again.
Senator Wallace: I understand that this is not easy stuff. I
realize that when you are negotiating with many countries and even within
your own team, there are many views, so you are trying to put words on paper
that reflect everyone's thoughts, and sometimes what you end up with can
mean different things to different people. Certainly I understand very
clearly where you are coming from.
On your point about the assisting and how that could be consistent at all
with paragraphs 1 and 2 of Article 21, I think it was deleted because it was
to be consistent with the interoperability clause of paragraph 3 is.
You are shaking your head. You were there.
Mr. Turcotte: I was there. I led the Canadian delegation, and I
can tell you that was certainly not the case. We believed that it was
covered in paragraphs 1 and 2, along with many other scenarios. We could not
even begin to list them. There are so many activities that would be
prohibited to a state party. We believe they were all covered with the
generic requirement of states to do everything in their power to discourage
the use of cluster munitions.
Senator Wallace: Well, it may be clear to you, but with the words,
it is not as clear to me. I certainly appreciate what you have provided.
The Deputy Chair: Honourable senators, we have exceeded our time.
I would like to, on behalf of the committee, thank the witness. He has
travelled a great distance to be here today to share his expertise, and we
very much appreciate it.
Honourable senators, we will suspend for five minutes and then have a
quick meeting about future business.