Shameless: Canada’s cluster bomb policy

Walter Dorn

Originally published online by iPOLITICS on 6 December 2013.
This article is based on testimony provided to
Canada's House of Commons Standing Committee on Foreign Affairs, Trade and Development
on 21 November 2013 (transcript: En, Fr).

In December 1997, Canadian leadership on the international stage rose to new heights with the signing by over 100 nations of the Ottawa Treaty, which comprehensively banned anti-personnel mines.

Eleven years later, and five years ago this week, Canada signed the next major disarmament treaty, the Convention on Cluster Munitions, to help end the suffering caused by those inhumane weapons. Like landmines, cluster munitions are infamous for killing and maiming civilians not only during conflicts but for many years afterwards.

But Canada has yet to ratify the ban — five years after signing it. The implementing legislation is now before the House of Commons after passing through the Senate last year.

The long delay was due, in part, to a struggle between officials in the newly named Department of Foreign Affairs, Trade and Development (DFATD) and the Department of National Defence (DND). The latter wants to make sure that Canadian soldiers working with the United States can still retain the ability to carry out activities that most countries agree are prohibited by treaty.

The current legislation contains an astonishing section that undermines the goals of the treaty. Bill C-6 is now in the committee stages where, hopefully, amendments can remove this flaw in the legislation. Because of Section 11, the current legislation is contrary to both the spirit and the letter of the Cluster Munitions treaty. Thus, the draft legislation will not achieve Canada’s goal of a total ban on cluster munitions unless it is amended.

All Canadian political parties agree that it is high time for the world to send cluster munitions to the trash bin of history, there to languish beside horrendous tools of war like chemical weapons, biological weapons and dum-dum bullets. Civilians make up the vast majority of cluster bomb casualties (98 per cent of recorded casualties, according to Handicap International).

To achieve this much-needed ban, the treaty is categorical and direct in its obligations: a state party may “never under any circumstance” use or assist in the use of these inhumane weapons. Given the indiscriminate nature of cluster munitions and the extraordinary threat posed to civilians from the unexploded bomblets that these weapons regularly leave behind, all political parties should agree upon a total ban. But they do not.

The Conservatives have backed the lawyers from the Judge Advocate General (JAG) and so far have supported the completely out-of-place Section 11 of the bill. The government has called a special session of the Foreign Affairs Committee to hear arguments on Section 11. Having testified before this committee, I strongly hope that they will eliminate or amend the paragraphs that would undermine Canada’s full implementation of the Convention.

The current wording in Section 11 allows for exemptions to be made in cases of “cooperation” with an ally not obligated by the Convention, assumed to be the United States. Thus, under Bill C-6, members of the Canadian Forces are, in the words of the legislation, not prohibited from “aiding and abetting”, “directing or authorizing”, “conspiring with” or “requesting” the use of these abhorrent weapons during operations with a non-party. The inclusion of this section, as it stands, presents two major problems.

First, it takes an extreme interpretation of the treaty. The Convention on Cluster Munitions only re-affirms that states parties “may engage in military cooperation” with states non-party. It allows parties to serve in a coalition in which some members might use cluster munitions but it does not give any authorization for the use or assistance in the use by the state parties. This understanding of a complete prohibition “under any circumstance” is the view of a great many states, international lawyers, civil society organizations and Canada’s main negotiator of the convention, who resigned in protest over the re-interpretation.

The second problem is that the exceptions in Section 11 are fundamentally unnecessary. The scenarios involving cluster munitions are exceedingly limited, especially since the Convention is signed by most members of the international community, and of NATO. More importantly, difficult scenarios could be dealt with in ways that do not contravene the convention.

In testifying before the Foreign Affairs Committee, I reminded the committee that individuals in a multilateral chain of command can recuse themselves (that is, temporarily remove themselves) so that an order to use cluster munitions would avoid involving and implicating Canadian personnel. Also, in combined operations, Canada may enter a national caveat to prevent direct assistance with cluster munitions. Such caveats are common and are routinely dealt with by commanders to ensure respect for national prerogatives.

Some specific scenarios can be considered: If Canadians were in a coalition operation, the U.S. might have to ensure that any U.S. aircraft that might be needed for close-air-support do not carry only cluster munitions but other munitions as well. Logistical issues such as air-to-air refueling in such situations could be covered by U.S. means rather than by Canada, and training exercises can be designed so that any cluster munitions used are not done as part of combined operations but are completely separate. In all cases, under the Convention, Canada already has an obligation to notify the U.S. and others of Canadian commitments regarding cluster bombs.

For these two primary reasons, Section 11 should be amended or removed. By taking such action, Canada will not only fulfill the provisions of the Convention it signed, but will also encourage non-parties to accept or accede to the Convention, something that I hope US will do in the near future.

The concerns and difficulties raised in the paragraphs of Bill C-6 are not new to Canadian efforts in humanitarian disarmament. A workable solution was found for landmines. Sixteen years ago, following the signing of the Ottawa Treaty (which the United States never signed), Canada passed legislation to allow it to participate in military activities with non-parties, so long as Canadians were not “actively assisting” in prohibited activities. That legislative model has worked in the case of the landmines treaty, and it can work for Canada on cluster munitions.

There is a purpose behind the clear and uncompromising wording in main prohibition (Article 1) of the Convention on Cluster Munitions, which obligates countries that ratify to never under any circumstances use cluster munitions. Like anti-personnel mines, these are indiscriminate and barbaric weapons. There can be no room for loopholes or half-measures.

I strongly hope that Parliament will amend Bill C-6 to reflect a Canadian commitment to both the spirit and the letter of the Convention and help the world finally put these devices into the trash bin with history’s inhumane most weapons.

Dr. Walter Dorn is a professor of Defence Studies at the Royal Military College and the Canadian Forces College.

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