Commitment to the Convention on Cluster Munitions

Policy

Canada signed the Convention on Cluster Munitions on 3 December 2008.

Canada must enact national implementation legislation before ratification “to ensure full compliance with any new international treaty.”[1] On 19 January 2012, the Cabinet approved ratification of the Convention on Cluster Munitions and referred it to Parliament for approval.[2] The implementation legislation, an “Act to Implement the Convention on Cluster Munitions” formally known as Bill S-10, was introduced in the Senate on 25 April 2012 and approved on 4 December 2012.[3] As of 10 July 2013, the draft legislation was still awaiting approval by the House of Commons.[4]

The draft implementation legislation has been strongly criticized by the CMC, Mines Action Canada (MAC), and others, particularly with the section dealing with “interoperability” or relations between States Parties and states that have not joined the convention, including during joint military operations[5] (see the Implementation legislation section below).

Canada has submitted three voluntary Article 7 reports for the Convention on Cluster Munitions, most recently on 30 April 2013.[6]

Canada participated in the Oslo Process that produced the Convention on Cluster Munitions and advocated for strong provisions on victim assistance and on international cooperation and assistance.[7]

Canada has continued to engage in the work of the convention despite not ratifying. Canada attended the convention’s Third Meeting of States Parties in Oslo, Norway, where it provided updates on stockpile destruction and national implementation legislation. Canada also participated in the convention’s intersessional meetings in Geneva in April 2013, where it provided an update on ratification.

Canada has not made a public statement at meetings of the convention or elsewhere to express concern at Syria’s cluster munition use. However in a 7 January 2013 letter to MAC, Canada’s Minister of Foreign Affairs, John Baird, stated, “Canada is very concerned about the reported use of cluster munitions by Syria against its own population … Such acts must cease immediately and the perpetrators must be brought to justice.”[8] In addition, Canada voted in favor of a UN General Assembly (UNGA) resolution on 15 May 2013 that strongly condemned “the use by the Syrian authorities of…cluster munitions.”[9]

Since 2008, MAC, a CMC co-founder and member, has advocated for Canada’s swift ratification of the Convention on Cluster Munitions and strong national implementing legislation including through a petition calling on the federal government to fix Bill S-10 “to make it clear that no Canadian should ever be involved in the use of cluster munitions for any reason, anywhere, at any time, for anyone.”[10]

Canada is a State Party to the Mine Ban Treaty. It is also party to the Convention on Conventional Weapons.

Implementation legislation

On 25 April 2012, Bill S-10—an “Act to Implement the Convention on Cluster Munitions” or in short the “Prohibiting Cluster Munitions Act”—was introduced in the Senate by Senator Marjory Lebreton of the governing Conservative Party, where it passed its first reading.[11] On 22 June 2012, Bill S-10 was debated for a second time and then referred to the Senate Committee on Foreign Affairs and International Trade for further consideration.[12] The committee held hearings in which the CMC, MAC and other organizations and individuals recommended several changes to the draft legislation.[13] The committee did not, however, recommend any amendments to the draft legislation in its report presented to the Senate on 8 November 2012.[14] On 4 December 2012, Bill S-10 was debated for a third time and adopted by the Senate without amendment then referred to the House of Commons for approval.[15]

On 6 December 2012, Bill S-10 was introduced to the House of Commons and read for the first time. A second House of Commons debate took place on 12 June 2013.[16] The bill was referred, after a vote of 186 in favor and 91 against, to the Standing Committee on Foreign Affairs and International Development for consideration, where it remained when the Canadian Parliament went into recess on 18 June 2013. After consideration by the committee, the bill will be returned to the House of Commons for its third reading.

Section 6 (prohibitions) of Bill S-10 prohibits the use, acquisition, transfer, and possession of cluster munitions. It also prohibits “aid[ing], abet[ing] and counsel[ing]” the commission of such activities. For violations of these prohibitions, section 17 (enforcement) contains penalties for persons “on conviction on indictment” of up to five years imprisonment or C$500,000 fine and “on summary conviction” of up to 18 months imprisonment or C$5,000 fine. The definition of person applies to both individuals and organizations.

Bill S-10 does not explicitly address transit or foreign stockpiling of cluster munitions and could be read to implicitly allow these activities.[17] According to a senior government official, the bill “does not allow stockpiling of cluster munitions on Canada’s territory, including by a State not party to the Convention, as it prohibits all forms of possession.”[18]

Bill S-10 contains no specific prohibition on investment in the production of cluster munitions. According to a senior government official, “an investment that is executed with the knowledge and intention that it will encourage or assist cluster munitions production would be captured by the legislation's prohibition on aiding and abetting any primary offence.”[19] On 29 May 2013, Member of Parliament (MP) Deepak Obhrai, Parliamentary Secretary to the Minister of Foreign Affairs, stated that “the convention does not require state bodies to criminalize investment. However, liability for aiding and abetting, as set out in the bill, would include investment scenarios in which there is sufficient intention and connection between the investment and the prohibited activity to meet Canadian charter and criminal law requirements.”[20]

Section 7 of Bill S-10 permits retention of cluster munitions for training and counter-measures, but it does not specify that only “the minimum number of cluster munitions absolutely necessary” may be retained, as the convention itself does. It also does not include any of the associated reporting requirements that are required by the convention.

Section 11 of Bill S-10 on “Joint Military Operations” contains problematic provisions that raise a host of concerns. During joint military operations, the bill would permit Canadian Armed Forces and public officials to “direct or authorize” an act that “may involve” a state not party performing activities prohibited under the Convention on Cluster Munitions. This interpretation could be viewed as running counter to the prohibition on assistance, encouragement, and inducement contained in the Convention on Cluster Munitions. Bill S-10 would also permit Canadian forces and public officials to “expressly request” use of cluster munitions by a state not party if the choice of weapons is not within the “exclusive control” of the Canadian Armed Forces. In other words, Canada could expressly request the use of cluster munitions as long as a state not party actually uses them.

Section 11 would also allow Canadians themselves to use, acquire, possess, or transfer cluster munitions if they are temporarily assigned to the armed forces of a state not party. On 29 May 2013, the Parliamentary Secretary to the Minister of Foreign Affairs Obhrai stated that, “[t]he Canadian Forces would also prohibit, as a matter of policy, the transportation of any cluster munitions aboard Canadian assets.”[21]

According to Section 11 of Bill S-10, during joint military operations with a state not party, a person would be allowed to do the following activities, arguably violating the prohibition on assistance:

·         Paragraph 2—“transporting” cluster munitions in the possession or under the control of the state not party;

·         Paragraph 3(a)—“aiding, abetting or counselling” another person with a prohibited activity if that activity is not prohibited to the other person;

·         Paragraph 3(b)—“conspiring” with another person to perform a prohibited activity if that activity is not prohibited to the other person; and

·         Paragraph 3(c)—“receiving, comforting, or assisting” someone who has committed a prohibited act if that act was not prohibited to the other person.

During the second reading of the bill in the House of Commons in May 2013, the Parliamentary Secretary to the Minister of Foreign Affairs Obhrai reiterated the government’s view that the Convention on Cluster Munitions “specifically allows state parties to engage in military co-operation and operations with states that are not party without breaching their obligations. As the convention allows this, the proposed legislation also contains exceptions that would allow Canada to engage in combined military operations and co-operation with states that are not party to the convention. Bill S-10 would preserve Canada’s ability to work alongside our allies, and it would provide Canadian Forces members and civilians with the assurances that they would not face criminal liability when doing their jobs.” According to Obhrai, “[f]or Canada, military co-operation and operations with other states that currently do not intend to ratify the convention, such as the United States, are of central importance to our security and defence policy.”[22]

During the third reading of the bill in the Senate in December 2012, Senator Suzanne Fortin-Duplessis stated, “[t]he government believes that the bill, in its current form, strikes the right balance, a balance that was negotiated when the convention was drafted. This bill includes the prohibitions that Canada must introduce into its criminal law and the exceptions with respect to military cooperation, and it protects Canadian Forces members against inappropriate criminal prosecution.” She noted, “[i]t has come up a number of times that Canadian Forces members participating in joint operations could get caught in an ethical dilemma. These ethical dilemmas come up often during the course of military operations, but we believe that it is not appropriate or required by the convention to use our own domestic criminal laws to resolve them.”[23]

Senator Romeo Dallaire of the opposition Liberal Party actively engaged in efforts by the Senate opposition to amend Bill-10, specifically clause 11. During the final Senate debate in December 2012, he opposed voting in favor of the legislation as drafted, noting, “I served for 37 years in the forces, and I bring that experience to this hallowed chamber. It is my responsibility to tell honourable senators of the ethical dilemmas that our lack of field experience can create, and it is my responsibility to rectify this legislation to prevent future Canadian Forces officers from bearing the same scars I do.”[24]

During the second House of Commons debate in June 2013, 19 MPs spoke about the need to amend the draft legislation. MP Ève Péclet cited messages she had received from groups around the world and asked, “[w]hat credibility would we have on the world stage if we enacted Bill S-10? We would have zero credibility.”[25]

MAC has expressed serious concerns over the draft legislations provisions, particularly those on interoperability.[26] It has urged that the Standing Committee on Foreign Affairs and International Development conduct a “full and detailed examination” of the draft legislation, including by calling expert witnesses.[27]

In 2011, United States (US) diplomatic cables made public by Wikileaks showed how the US sought to influence Canada’s draft implementing legislation after engaging with Canada throughout the Oslo Process.[28]

Interpretive issues

Canada’s interpretation of the Convention on Cluster Munitions does not only rest on its flawed draft implementation legislation. In September 2012, Canada defended the draft legislation as reflecting “all of the legal obligations called for” in the convention and emphasized that “we have gone even further by prohibiting other activities as a matter of policy, policy which will be translated in operational directives which are themselves legally binding for our soldiers under the military justice system.”[29]

Canada identified “interoperability” (joint military operations with states not party), addressed in Article 21 of the convention, as a key priority during the Oslo Process negotiations.[30] In June 2011, Canada elaborated its views on Article 21, stating that the provision was designed to protect activities that “might involve or relate to the continued lawful use of cluster munitions by states not party.” Canada stated that its adoption of the convention text in Dublin was based on the understanding that “Article 21, paragraph 4, expressly and fully delineates activities prohibited” in the context of joint operations with states not party.[31]

Canada stated that the positive obligations of Article 21, paragraph 2—to notify states not party of its obligations under the convention, to promote the convention’s norms, and to make its best efforts to discourage the use of cluster munitions by states not party—do not extend beyond the governmental level and are not ongoing obligations “at the operation or tactical levels for individual military personnel.”[32]

In May 2012, Senator Fortin-Duplessis said that “the Canadian Forces will prohibit their members, through official policies, from using cluster munitions, training themselves or others in their use when they participate in exchanges with the armed forces of another country. Moreover, the transport of cluster munitions by means of transportation belonging to or controlled by Canadian Forces shall be prohibited.”[33]

This statement contradicts section 11(2) of Canada’s proposed legislation, which allows Canadian forces to transport the cluster munitions of a state not party during joint military operations. It therefore creates confusion in Canada’s position on this issue.

In May 2012, Senator Fortin-Duplessis stated that “under the bill it is prohibited to assist, encourage or induce anyone to engage in any prohibited activity including knowingly and directly investing in the production of cluster munitions.” On 14 June 2012, MAC called on the Canadian government to ban investments in companies that produce cluster munitions and to amend the draft bill to specifically prohibit investment.[34]

Use, transfer, and production

On 1 May 2012, the government stated that “Canada has never manufactured cluster munitions and has never used them in its operations.”[35] Canada has declared that it has never produced cluster munitions.[36] Canada is not known to have ever exported cluster munitions, but it imported the weapons and has a stockpile.

Stockpiling and destruction

Canada has stockpiled two types of cluster munitions, both imported from the US: Mk-20 Rockeye cluster bombs, each containing 247 submunitions, and M483A1 155mm artillery projectiles, each containing 88 M42/M46 dual-purpose improved conventional munition (DPICM) submunitions. In its initial voluntary Article 7 report, Canada declared that a total of 1,026 Rockeye cluster bombs containing 253,422 submunitions were destroyed over a two-year period ending in September 2006.[37]

In the April 2012 and April 2013 Article 7 reports, Canada declared a stockpile of 12,597 M483A1 projectiles containing a total of 1,108,536 DPICM submunitions (806,208 M42 and 302,328 M46).[38] The entire inventory was declared surplus in January 2007 and removed from operational service for destruction.[39] In its second voluntary Article 7 report, Canada stated, “[t]hree projectiles [were] expended to develop a demilitarization standard operating procedure.”[40]

In May 2012, Senator Fortin-Duplessis stated on behalf of the government that “the last stocks [of cluster munitions] will be destroyed in the next few years, a process that is already well under way. We are convinced that their destruction will be completed within eight years of the convention entering into force for Canada, as prescribed.”[41]

In April 2013, Canada reported that stockpile destruction by “commercial demilitarization” was the “[p]referred way ahead” and stated that, “the Department of National Defence is working with Public Works and Government Services Canada, the contracting arm of the Government of Canada, to identify a solution to dispose of the [155mm] projectiles.” According to the report, “[c]ontracting procedures are underway; a Letter of Interest (LOI) for disposal was published by the Government of Canada on 5 July 2012, which will be followed by a Request for Proposal (RFP).”[42]

In June 2011, Canada estimated that it would likely take a year to complete the contracting requirements and roughly 12–24 months to complete disposal of all munitions.[43] Canada has noted that the stockpile destruction must be carried out in compliance with stringent laws and regulations, including Canadian Controlled Goods regulations.[44]

Retention

In July 2013, a government official said, “[t]he Canadian Armed Forces currently have no plans to retain any cluster munitions for purposes permitted by Article 3 of the Convention on Cluster Munitions.”[45] Canada has reported that it is not retaining any cluster munitions for research and training purposes.[46]

 

In 2012, Canada contributed C$6,762,110 (US$6,765,493)[1] mine action funding, a decrease of over C$10 million ($11 million) from that of 2011 and of C$24.3 million ($23.4 million) from 2010. Over two-thirds of Canada’s 2012 contribution went to Cambodia, South Sudan, and Colombia. Canadian mine action funding to Afghanistan was discontinued in 2012.

Contributions by recipient: 2012[2]

Canada contributed 93% of its funding in 2012 to clearance, 5% to victim assistance, and 2% to advocacy.

Contributions by thematic sector: 2012

Since the Mine Ban Treaty came into force in 1999, Canada had been one of the top 10 mine action donors each year. In 2012, for the first time, Canada was not among the top 10 donors.

Summary of contributions: 2008–2012[3]

N/A = not applicable