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] Draft implementation legislation, an “Act to Implement the Convention on Cluster Munitions,” was first introduced to the Senate on 25 April 2012 as Bill S-10 and approved on 4 December 2012. It was then introduced to the House of Commons and reintroduced again on 25 October 2013, as Bill C-6, where it was approved on 19 June 2014.[2] After a House of Commons committee made a small amendment, the amended draft legislation was referred back to the Senate, where it will be reviewed when Parliament resumes in September 2014.[3] The draft implementation legislation has been strongly criticized by CMC co-founder Mines Action Canada (MAC) and others, particularly the section on “interoperability” or relations between States Parties and states that have not joined the convention, including during joint military operations[4] (see Implementation legislation section below).

Canada has submitted three voluntary Article 7 transparency reports for the Convention on Cluster Munitions, most recently on 30 April 2013.[5]

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.[6]

Canada has continued to engage in the work of the Convention on Cluster Munitions despite not ratifying. It has participated in every Meeting of States Parties of the convention, including the convention’s Fourth Meeting of States Parties in Lusaka, Zambia, where it provided updates on stockpile destruction and national implementation legislation. Canada has attended all of the convention’s intersessional meetings in Geneva, including in April 2014, where it gave another update on stockpile destruction.

A representative from Canada’s embassy in Chile attended a regional workshop on the Convention on Cluster Munitions held in Santiago in December 2013.

Canada has voted in favor of a UN General Assembly (UNGA) resolution condemning the Syrian government’s use of cluster munitions, Resolution 68/182 on 18 December 2013, which expressed “outrage” at Syria’s “continued widespread and systematic gross violations of human rights…including those involving the use of…cluster munitions.”[7]

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

Implementation legislation

The Cabinet approved ratification of the Convention on Cluster Munitions on 19 January 2012 and referred it to Parliament for approval.[8] The governing Conservative Party introduced an “Act to Implement the Convention on Cluster Munitions” or in short the “Prohibiting Cluster Munitions Act”—Bill S-10—in the Senate on 25 April 2012, where it passed its first reading.[9] Bill S-10 was debated for a second time on 22 June 2012 and then referred to the Senate Committee on Foreign Affairs and International Trade.[10] The committee held hearings in which the CMC, MAC, and other organizations and individuals recommended several changes to the draft legislation.[11] The committee did not, however, recommend any amendments to the draft legislation in its report presented to the Senate on 8 November 2012.[12] Bill S-10 was debated for a third time on 4 December 2012 and adopted by the Senate without amendment, then referred to the House of Commons for approval.[13]

Bill S-10 was introduced to the House of Commons on 6 December 2012 and read for the first time. A second House of Commons debate took place on 12 June 2013.[14] 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.

The Canadian Parliament was “prorogued” in September 2013, which concluded the Parliamentary session and deleted all pending legislation, including Bill S-10. When Parliament resumed in October 2013, all pending legislation was reintroduced at the stage it was when Parliament prorogued. On 25 October 2013, the Minister of Foreign Affairs John Baird reintroduced the draft “Prohibiting Cluster Munitions Act” as Bill “C-6” and it was referred to the Standing Committee on Foreign Affairs.[15]

Section 6 (prohibitions) of Bill C-6 prohibits the use, acquisition, transfer, and possession of cluster munitions. It also prohibits “aid[ing], abet[ting] 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 C-6 does not explicitly address transit or foreign stockpiling of cluster munitions and could be read to implicitly allow these activities.[16] 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.”[17]

Bill C-6 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.”[18] On 29 May 2013, Member of Parliament (MP) Deepak Obhrai, Parliamentary Secretary to the Minister of Foreign Affairs, spoke on then Bill S-10 and 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.”[19]

Section 7 of Bill C-6 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 C-6 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 C-6 would also permit Canadian Armed 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.

The original text of Section 11(1)(c) would have also allowed Canadians themselves to use, acquire, possess, or transfer cluster munitions if they are temporarily assigned to the armed forces of a state not party. The word “using” was deleted from that clause of the bill by an amendment proposed by the Parliamentary Secretary to the Minister of Foreign Affairs during committee hearings on 10 December 2013. The amendment was approved by all members of the committee.[20]

According to Section 11 of Bill C-6, 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.

Senator Romeo Dallaire of the opposition Liberal Party actively engaged in efforts by the Senate opposition to amend Bill S-10, specifically Section 11.[21]

During the second House of Commons debate in June 2013 on then Bill S-10, 19 MPs spoke about the need to amend the draft legislation.[22]

In November and December 2013, the Standing Committee on Foreign Affairs reviewed the legislation over six sessions. On 19 November 2013, the Minister of Foreign Affairs testified before the Committee and stated that “No Canadian soldier will use cluster munitions, ever. I want to repeat that: no Canadian soldier will use cluster munitions, ever. A directive from the Chief of the Defence Staff will see to that.”[23] The committee heard from civil society organizations and other witnesses from outside the government who all suggested amendments to the bill.[24] During two sessions of clause-by-clause review of the draft legislation, opposition parties (the New Democratic Party, the Liberals, the Green Party, and the Bloc Québécois) proposed at least 15 amendments to the bill in an attempt to address concerns.[25] The Conservatives proposed one amendment to Section 11(1)(c) on 10 December 2013 that was passed unanimously.[26] The Standing Committee on Foreign Affairs concluded their study of Bill C-6 and the amended bill was referred back to the House of Commons on 10 December 2013.

When Bill C-6 returned to the House of Commons in 2014, three opposition parties put forward amendments to delete the problematic Section 11 in its entirety as well as amendments to delete the short title of the bill and delete Section 4 outlining the purpose of the bill. The report stage began on 29 May 2014. In a late night debate, eight MPs spoke in favor of amending C-6 while two members spoke in defense of the bill.[27] The final five hours of report stage debate on 16 June 2014 saw 19 MPs speak in favor of amending Bill C-6 and only two members make substantial statements supporting the current text.[28] On 17 June 2014, the proposed amendments were defeated in the House of Commons by a vote of 127 in favor to 148 against. Bill C-6 passed report stage with 147 votes for and 127 against.

Third Reading debate started on 18 June 2014, concluded the next day, and saw 10 MPs speak in favor of amending Bill C-6 and two MPs speak in support of the legislation as drafted.[29] Both the report stage and third reading debates saw an overwhelming majority of speakers call for amendments to the bill, particularly to Section 11. The House of Commons passed Bill C-6 on 19 June 2014 with 130 votes for and 98 votes against.[30]

Due to the amendment made to delete the word “using” from Section 11(1)(c), Bill C-6 has been referred back to the Senate for further study when Parliament resumes in September 2014.

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.[31]

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.”[32]

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.[33] 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.[34]

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.”[35]

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.”[36]

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.[37]

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.”[38] Canada has declared that it has never produced cluster munitions.[39] 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.[40]

In April 2012, 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).[41] The entire inventory was declared surplus in January 2007 and removed from operational service for destruction.[42]

Canada has committed to destroy its stockpile of cluster munitions within the eight-year deadline provided by the Convention on Cluster Munitions.[43]

In April 2014, Canada announced that the stockpile destruction process was to due to commence the following week and expected to be completed by September 2014.[44] Previously, Canada estimated that it would likely take 12–24 months to complete destruction of the stockpile.[45]

Canada has noted that the stockpile destruction must be carried out in compliance with stringent laws and regulations, including Canadian Controlled Goods regulations.[46]

Retention

Canada has reported that it is not retaining any cluster munitions for research and training purposes.[47] In July 2013, a government official said, “The Canadian Armed Forces currently have no plans to retain any cluster munitions for purposes permitted by Article 3 of the Convention on Cluster Munitions.”[48]