Bill C-6 : An Act to Implement the Convention on Cluster Munitions

Transcription

1 Bill C-6 : An Act to Implement the Convention on Cluster Munitions Comments submitted to the House of Commons Committee on Foreign Affairs and International Development by Earl Turcotte, (Former) Senior Coordinator for Mine Action at DFAIT and Head of Delegation for the Negotiation of the Convention on Cluster Munitions Foreword I am grateful for this opportunity to comment on Bill C-6. I do so strictly in an individual capacity, as a Canadian citizen and the Head of Canada s delegation throughout the 15- month period of negotiation of the Convention on Cluster Munitions. I would have much preferred to appear before the Commons Committee in person as I did the Senate Committee, but am working in Laos and cannot get back to Canada at this time. For the past 18 months, I have been UNDP s Chief Technical Advisor to the Government of Laos in the Unexploded Ordnance (UXO)/ Mine Action Sector. I would like to begin with a few words about cluster munitions in Laos, where Minister Baird was recently, to illustrate the impact of these weapons. Laos From 1964 to 1973, during the Vietnam War (known here as the Indo-China War), the United States carried out intensive bombardment of more than one-third of Laos in an effort to cut off supply routes to the north Vietnamese the so-called Ho Chi Minh Trail. The US dropped the equivalent of the payload of one B-52 Bomber (which can hold lb. bombs) on Laos every 8 minutes - 24 hours a day - for 9 years. In total, almost 3 million tons of ordnance - - more than was dropped on Germany and Japan during WW II and approximately one ton for every man, woman and child living in Laos at the time. This has left this small country with tragic distinction of being, per capita, the most heavily bombed country in history. 1

2 The weapon of choice was cluster munitions, which saturate large areas in a short period of time, and at relatively low cost. Cluster munitions have often been referred to as the poor man s weapon of mass destruction. According to US bombing data provided to the Lao government in 2010, among the ordnance were 270 million cluster sub-munitions, each with a kill range of more than 100 meters in all directions. The impact on the civilian population at the time of use in the decades since, has been devastating. It is estimated that 30% - 80 million - cluster sub munitions remained unexploded and potentially lethal after the war ended in Thousands people have been killed over the past 40 years since the war ended and there are also an estimated 20,000 cluster munition survivors who require varying degrees of physical, psychological and economic support. As recently as 2008, there were still more than 300 casualties per year. Almost all were children and farmers. Clearing explosive cluster munition remnants is expensive and painstaking. After 40 years of intensive effort, with support of the international community from the mid-1990s that currently averages US$30 million a year, the Lao Government estimates that is has cleared less than 2% of the area that is potentially contaminated. How long will the danger persist? No one knows. The technology is formidable and there is no sign that these deadly remnants of war will become benign any time soon. Equally devastating is the indirect but no less deadly impact of cluster munitions as an obstacle to development, by denying safe access to valuable agricultural and development land. It is no coincidence that the most impoverished parts of Laos are those that are most heavily contaminated by cluster munitions. Perhaps many times more people have suffered and/or died due to poverty caused or exacerbated by the presence of cluster munitions, as have from the direct impact of the weapon. The Convention on Cluster Munitions 2

3 The Convention on Cluster Munitions is a remarkable diplomatic and humanitarian achievement that imposes a categorical ban on cluster munitions. Article 21 of the Convention on Cluster Munitions preserves States Parties capacity to engage in combined operations with non-party States, without allowing them in any way to aid or abet the use of this weapon. Article 21 is not - and never will be - a loophole to allow States Parties to abrogate the very clear prohibitions contained in Article 1 of the Convention. Indeed, Article 21 itself re-invokes the entire Convention which categorically bans the weapon, and adds positive obligations on States Parties to make best efforts to discourage their use by non-party States. Any claim by DND that there are exceptional circumstances where assisting in or even directing the use of cluster munitions by Non-party State s armed forces would be legal under the Convention, is utter and complete nonsense. If there was any suggestion during negotiations of the CCM that such activities could be allowed by Article 21, it would never have been accepted by other negotiating States, and I would never have put it forward. As Head of Delegation, I made all statements for the Canada during plenary negotiations. I know what I said on behalf of our country, with political and official-level support at that time. I also know how it was understood and ultimately agreed by all 108 negotiating States. Bill C-6 constitutes a reversal of many of the key commitments Canada made during negotiations and by signing the Convention in 2008 and is an affront to other States that negotiated in good faith. It could render our Armed Forces complicit in the continued use of cluster munitions and subject to prosecution in other jurisdictions. As mentioned during my testimony to the Senate Committee a year ago, I have great respect for Canada s Armed Forces. My father fought in Europe with the Canadian Army for 3 years during WW-II. If he were alive today, I know that, as a former soldier, he would fully support my position on this Bill. Indiscriminate weapons that kill and maim the very people countries such as ours should be trying to protect, are not worthy of soldiers of honour. 3

4 I wish to leave you with one final thought on Laos before moving on to the body of my testimony. That is --- that the last child to die from cluster munitions dropped on this small country almost half a century ago, has not been born yet and may not be born for at least another generation. Why in God s name, would anyone not want to do everything possible to stop such carnage? Is Bill C-6 really Canada s best effort? Please stand firm with our 20 NATO allies and more than 90 other countries that have vowed never, under any circumstances, to allow such a horrible weapon to be used again. ( and please consider the body of my testimony, which follows. Thank you.) Sincerely, Earl Turcotte Vientiane, Laos November 15, The Weapon There are over 200 different types of cluster munitions. Each typically contains dozens to hundreds of submunitions. They can be dropped from the air or launched from the ground and can saturate vast areas in a short period of time. (They are, in effect, the opposite of a precision weapon.) They were initially designed for use during the cold war in the event of attack by masses of enemy combatants. If it ever was, it is virtually impossible to use them responsibly in the modern day given: i) the asymmetrical nature of most conflicts with combatants often indistinguishable from civilians or embedded in civilian populated areas; 4

5 ii) and the fact that cluster munitions are notoriously inaccurate and have high dud rates - anywhere between 10 and 40% depending on type and battlefield conditions. Cluster Munitions have been used in 37 countries and territories to date, including in Afghanistan, Vietnam, Cambodia, Laos, the former Yugoslavia, Southern Lebanon, Israel, in Libya by the Gadhafi regime and very recently, in Syria by the forces of Bashir Al Assad. More than 95% of all recorded casualties from cluster munitions have been civilians, most of these children who are often attracted to unexploded submunitions The extensive use of cluster munitions during the last 72 hours of the conflict between Israel and Hezbollah in southern Lebanon in the summer of 2006 provided impetus among states to tackle the cluster munitions issue and Norway, with strong support from a core group of countries including Austria, Ireland, New Zealand, Mexico and the Holy See, initiated what became known as the Oslo Process outside the traditional UN architecture for such discussions, in early 2007 just as Canada had done so successfully with anti-personnel landmines a decade earlier. Both processes had to be moved outside the traditional Conventional Arms Forum of the CCW because the established practice of consensus decision making gives every country in effect a veto and it is virtually impossible to negotiate anything of real value under such circumstances. To that point, the international community had been unable even to get a mandate to negotiate an instrument to address cluster munitions in the CCW. (A year or so later negotiations did take place, but ended a few years later without agreement.) Preparatory conferences in the CCM Oslo Process were held in Oslo, Lima, Vienna and Wellington and the formal negotiations took place in Dublin over a 2 week period in May 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. 5

6 Article 1 of the Convention sets out the primary responsibilities of States Parties: Each State Party undertakes never under any circumstances to: a) Use cluster munitions; b) Develop, produce otherwise acquire, stockpile, retain or transfer to anyone directly or indirectly, cluster munitions; c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention. Among other things, States Parties must also: destroy stockpiles within 8 years clear contaminated areas within 10 years; assist the victims. Moreover, all obligations obtain immediately upon the entry into force of the Convention for a state party, i.e. there is no transition or deferral period. The impact of the ban promises to be quite profound both as a preventive as well as a remedial measure. Canada s Role Though 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 on December 3, Throughout the negotiations, our delegation worked very closely with the UK, France, Germany, Australia and many others 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 US who have chosen, at least for the time being, not to become party to the Convention. 6

7 With significant effort, we succeeded in negotiating into the text of the Convention an article - 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 the early stages of negotiations in Dublin. As one of its authors and one of those who fought hardest for it s inclusion in the final text, I think I understand its provisions and restrictions as well as anyone in the international community. I believed then and continue to believe that this provision for continued interoperability is an essential element of the Convention. It preserves military alliances between State Parties and non-party States that are vital to Canada s national interest and to global peace and security. Without this Article, 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 it in its entirety and within the context of the broader Convention. Article 21 States: 1. Each State party shall encourage States not party to this Convention to ratify, accept, approve or accede to this Convention, with the goal of attracting the adherence of all States to this Convention. 2. Each State Party shall notify the governments of all States not party to this Convention, referred to in paragraph 3 of this Article, of its obligations under this Convention, shall promote the norms it establishes and shall make its best efforts to discourage States not party to this Convention from using cluster munitions. 3. Notwithstanding the provisions of Article 1 of this Convention and in accordance with international laws, States Parties, their military personnel 7

8 or nationals may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party. 4. Nothing in paragraph 3 of this Article shall authorize a State Party: a) To develop, produce or otherwise acquire cluster munitions; b) To itself stockpile or transfer cluster munitions; c) To itself use cluster munitions; d) To expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control 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, 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 State Party in the Convention. This is not the case. Among other things, Article 31 of the Vienna Convention on the Law of Treaties states that 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 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 itself 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

9 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 who feared that it might be used as a loophole agreed, with great reluctance, to include this Article in the final text There are now 113 signatories to the Convention, of which 84 have ratified or acceded to the Convention, including many of Canada s allies. Throughout 2009 and 2010, officials in DFAIT, myself included, were embroiled in an intense debate with the department of National Defence regarding which specific military activities 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 which would be permitted 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 DFAIT and DND to reconsider the matter and, a few months later, resigned in protest and in order to be able to advocate publicly for stronger legislation than was envisioned at that time

10 In April 2012, the legislation Bill S-10 - was tabled in the Senate where it was subject to Committee review. I was one of many witnesses who appeared before the Senate Committee. The Bill passed the Senate, unamended, and is now under consideration in the House of Commons as Bill C-6. Though I strongly support Canadian accession to this Convention, I regret that the proposed legislation remains tragically and deeply flawed. Recalling that: (i) (ii) (iii) (iv) the object and purpose of the Convention is to ban, for all time, an indiscriminate and inhumane weapon that has a history of killing large numbers of civilians; the first article of the Convention also imposes a total ban on any form of assistance, encouragement or inducement of anyone to engage in any activity prohibited to a State Party under this Convention Article 21 further requires States Parties to advance the norms of the Convention and make best efforts to discourage their use by non-party States, and and keeping in mind that Article 19 of the Convention dictates that the Articles of this Convention shall not be subject to reservations Incredibly, the draft legislation seeks exceptions during combined military operations with non-party states that, among other things, would legally permit all of the following: (i) (ii) (iii) 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; 10

11 (And to my mind, the most egregious and potentially deadly scenario of all ) (iv) A Canadian commander of a multinational force authorizing or directing non party state armed forces to use, acquire, posses, import or export cluster munitions; (In this case, Canada is not only assisting the use of cluster munitions but is in fact the originator or author of the order - and non-party state forces are our agents in the continued use of a weapon we claim should be never be used again.) Clause 11.3 goes further and proposes blanket exceptions that permit Canadian Forces personnel: (i) To aid, abet or counsel non-party state forces to commit acts prohibited to a State Parties; (ii) To conspire with non-party states forces to commit acts prohibited to States Parties; (iii) To receive, comfort or assist non-party state forces to escape, knowing that that other person has committed, aided or abetted in the commission of acts prohibited to States Parties In what world could 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? As I have said before, it would take contortions of law, logic and morality to come to such an outrageous conclusion! In my view and the view of many others around the world, the proposed Canadian legislation is by far the worst tabled to date by any of the

12 countries that have signed the Convention. It is the antithesis of the balanced agreement that 108 negotiating States struck in Dublin in (Canada is not in good company ) The Department of National Defence may claim that Canada is in good company, 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 UK and a few others actively sought provision on interoperability. Virtually all of the other countries at the Conference adamantly opposed any such provision, for fear 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 states; --or will allow their pilots or artillery personnel on exchange with non party states to use cluster munitions. And, I challenge the Government to identify any other State Party or signatory that is giving its forces carte blanche to in its own words aid, abet, conspire and assist non-party forces with the commission of acts prohibited to States Parties. 12

13 Have any of your witnesses from DND or DFAIT produced examples of other States legislation that would allow these things? ---They have not, because they can not. They do not exist. NATO allies Germany and the Netherlands won t even allow a non-party State to transit their territory with cluster munitions aboard, let alone any of the scenarios this draft legislation deems legal, and several of the proposed actions will earn one up to 14 years in prison in the United Kingdom and serious jail time in many other countries. The Government has indicated that it is prepared to impose policy prohibitions on transporting cluster munitions on Canadian carriers and on Canadian pilots and artillery personnel using them while on exchange. Policy prohibitions are little more than window dressing. They can change in an instant and have no associated legal penalties. If the Government truly wishes to prohibit these acts, put it into law, as the Convention requires. It is also interesting to note that the Government has offered no such policy prohibition on Canadian commander(s) of a multinational force directing the use of cluster munitions by non-party State forces Canadian security will not be compromised I would also challenge any claim that such interpretations are required to maintain effective interoperability with non-party states, including the United States, in effect, suggesting that Canadian security could be compromised if we were not prepared to assist in the use of cluster munitions by non-party State forces. In all the years Canada has possessed cluster munitions, we have never used them. Even as we had brave soldiers dying in Afghanistan, this weapon was never deemed to be appropriate for use by Canadian forces. NATO has acknowledged that a major factor in determining success of any military operation is the protection of civilians. There are many alternative weapons systems that inflict far less collateral damage, both at the time of use and post-conflict. Lt. General Charles Bouchard, who commanded NATO forces in Libya, has noted that modern asymmetrical warfare requires more accurate bombs even 13

14 than the unitary bombs they used, let alone cluster munitions which are the absolute opposite of a precision weapon. Conclusion Ladies in Gentlemen, Canada is poised to set a dangerous precedent that could well undermine the standards that have been painstakingly achieved in international humanitarian law and render our armed forces complicit in further loss of civilian life. 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 we have in the past, I believe that Canada must strive to set the highest not the lowest - standards in international humanitarian law. I would recommend, therefore, that: The Committee embrace Clause 6 of the draft legislation and reject Clause 11 in its entirety in order to reflect the balance contained in the Convention and in the instructions that our delegation received from Cabinet which held constant throughout the Oslo Process; If you are unprepared to do away with Clause 11completely, I would endorse all of the amendments proposed during the Senate hearings 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 end my testimony 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 yet again by many other states, international organizations and NGOs. 14

15 I do so to give you a clear idea of how 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 December Dublin, May 2008 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 the 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 the 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 our 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 fine fabric of the Convention a powerful and, to us, a disturbing image. Others have referred to Article 21 as a loophole. 15

16 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, ended export, and are phasing it out of their arsenals; 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 the 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; 16

17 We want to join forces with affected States to help 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 action. 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: Quote: 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 requirements. 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 (Drafted and delivered by Earl Turcotte, Head of Delegation) And thank you, Members of Canada s House of Commons. Earl Turcotte Vientiane, Laos November 15, 2013 Contact: Earl.turcotte@gmail.com Telephone (N.B. Vientiane is 12 hours ahead of Ottawa.) 17