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 bill.

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 Munitions.

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 submunitions.

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 law.

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 remedial measure.

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 discourage them.

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 states.

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 parties.

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 most appropriate.

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 of.

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 at play.

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  "a 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 job done.

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 process.

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 Munitions.

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 on board.

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 National Defence.

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 allowed.

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 was.

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 munitions.


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 in Dublin.

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 whole?

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 the money.

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 easily transferable.

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 negotiations, senator.

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 enthusiasm?

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 convention.

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 are today.

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 two issues.

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 that.

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 objectionable.

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 positions.

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.

(The committee continued in camera.)