Convention on Cluster Munitions: Testimony on Proposed Canadian legisltation


Walter Dorn's testimony before the Senate Committee on Foreign Affairs and International Trade, Ottawa, 18 October 2012. Government website: En, Fr.


Senator A. Raynell Andreychuk (Chair) in the chair.


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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

The Chair: Thank you, Dr. Dorn.


Questions and Answers:


Senator Fortin-Duplessis: ... what measures has the government not yet taken regarding this plan you talked about?

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


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


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


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

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

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

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

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

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

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


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

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

Mr. Dorn: It is a form of interoperability.