Presentation at MCC Student Seminar: Cluster Munitions and Bill S-10

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February 14, 2013

Today I had the pleasure of participating in the Mennonite Central Committee‘s student seminar “Peacebuilding in a Dangerous Time.” Alongside Erin Hunt from Mines Action Canada, I spoke to university students from across Canada about cluster munitions and my experience with bill S-10. I was very impressed with the students’ enthusiasm and knowledge on the subject and wish them the best for a successful conference.

These were my remarks:

Good morning. I’m delighted to be here with you today to discuss Canada’s support for the Convention on Cluster Munitions and the current situation with Bill S-10.  My interest in landmines and cluster munitions first began when I became a Senator in 2001 and met landmine survivors through my involvement with the Canadian Landmine Foundation. I was inspired by the survivors’ courage and determination to lead productive and fulfilling lives in spite of their terrible injuries. One of the victims I met was a young girl from Cambodia named Vanna Minn. She was six years old when she stepped on a landmine while tending to her family’s chickens. The landmine exploded and Vanna lost her leg. Vanna said that when she was a child it was her dream to become a dancer, but after the landmine accident, she couldn’t walk, let alone ever dream of dancing again. Vanna was a teenager when I met her and by this time had replaced her old dreams about dancing with new ones about education. Today Vanna has successfully recovered from her injuries and is now pursuing a university degree. But while Vanna had the determination and support to move on, so many other victims of landmines and cluster munitions do not.

 These indiscriminate weapons are still killing and maiming too many people around the world. Their civilian victims lose not only lives and limbs, but the ability to participate in the workforce and be productive members of their families and communities. Fortunately, the Ottawa Treaty banning landmines has successfully stigmatized the weapon, decreasing its use and prevalence. Cluster munitions, however, still pose a significant threat to civilians around the world. That is why the Convention on Cluster Munitions is so important. If we want to successfully stigmatize cluster bombs the way we did with landmines, we need a strong treaty that countries can agree to abide by.

 Canada has supported the Convention on Cluster Munitions from the get go. We were one of the first to sign the Convention in Olso, Norway in December of 2008 and have never ourselves used or produced cluster munitions. We are also currently destroying the minimal stockpiles we do have. Bill S-10, an Act to Implement the Convention on Cluster Munitions is the next step in this process. With this legislation we will finally be able to ratify the Convention and become a full state party, agreeing to, among other things, never use, produce, stockpile, import, or export cluster munitions.  

 Bill S-10 was introduced in the Senate in April of last year. As lead opposition critic, it was my job to review the legislation and then lead the debate.  As I read the bill, it became clear to me that there were problems and that this legislation would require thorough contemplation and robust discussion. Although the Senate is usually referred to as the “Chamber of sober second thought”, this particular bill had its first reading in the Senate and so it would be up to us Senators to ensure we gave it a sober first thought before sending it on the House of Commons for a second review. 

 From my familiarity with the Convention, previous research, and discussion with experts in the field, I knew that other countries had had difficulty in interpreting Article 21 of the Convention. Unfortunately, after seeing the Canadian legislation, it was clear to me that Article 21 was once again going to pose a problem and lead us into a difficult fight. Bill S-10, like its Australian and British counterparts, interprets Article 21 of the Convention in a way that cannot help but to inspire controversy and complaint.

 Article 21 of the Convention deals with military interoperability between states party to the Convention and those not party. Essentially, it allows a state that has signed and ratified the Convention to work together with a non-State party, such as the United States, on a joint military operation even if that non state party may itself use cluster munitions. As Canada now almost exclusively participates in joint operations with the United States and other allies such as NATO, Article 21 was considered to be an essential safeguard to protect countries like us who want to sign the Convention but also need the freedom to work with allies who have not yet signed the Convention and who may continue to use cluster munitions. This way, our Canadian soldiers could not be held responsible or liable for something Americans might do.

 That said Article 21 was not designed to act as loophole or an escape clause that would give a country a back door way of using or helping others to use cluster munitions. The problem is, right now, the way Bill S-10 is written, it does give the impression that the government has interpreted Article 21 as a type of loophole and would like to leave that backdoor open for Canadian Forces to help Americans to use cluster munitions in certain situations. While I don’t think this would ever be Canada’s intention, the specific wording of the bill could leave others to think that.

 Clause 11 in Bill S-10 lists the exceptions to the prohibitions on the use of cluster munitions as outlined in clause 6. These exceptions apply only to combined military operations with states not party to the Convention. For example, clause 11 would allow a Canadian commander to expressly request the use of a cluster munition and to direct or authorize an activity that may involve the use of a cluster munition. Moreover, clause 11 also allows Canadian Forces on exchange, attachment, or secondment to use, acquire, possess, or transfer a cluster munition and allows Canadians to aid and abet a non party state in using cluster munitions. These exceptions suggest that Canada is leaving the door open for Canadian Forces to possibly help American Forces to use cluster munitions.

 I find these exceptions to be very troubling. To my mind, Canada needs to set a strong international example with its ratification legislation. If we believe cluster munitions are a terrible weapon, then we should be clear about our intentions to ban Canadians from using them or helping others to use them. Needless to say, when it came time for me to speak in the Senate Chamber at second reading of Bill S-10, I had no shortage of concerns to raise with my colleagues.  I pointed out that many experts have called Canada’s Bill S-10 the worst ratification legislation in the world for the way that it implements Article 21. I suggested that we would be putting our Canadian Forces in an unfair ethical bind if we allowed them to be involved in the use of a weapon that Canada has banned and deemed harmful to civilians.

The government’s position in second reading was that the bill struck the necessary balance between security and humanitarian concerns. Senator Suzanne Fortin-Duplessis, who was the Senate sponsor of the Bill and who spoke at second reading, suggested that the government’s interpretation of Article 21 is in keeping with international standards and is necessary for maintaining Canada’s military obligations. When I spoke in rebuttal at second reading I argued that in fact, Article 21 is in and of itself the balance between humanitarian goals and international security that the government is looking for. We could have drafted a bill that more closely resembled New Zealand’s legislation and permitted military interoperability generally, without going so far as to explicitly define the sorts of activities that are allowed. Unfortunately, as it is written, Bill S-10 sends mixed messages to our soldiers and our citizens. On the one hand it prohibits Canadians from using cluster munitions while on the other, it allows Canadian Forces on a joint mission to actively participate and aid in their use. I believe this places an unnecessary moral burden on our Canadian Forces.

 In my second reading speech I also highlighted other issues that I felt deserved further debate and consideration, such as the need for clear prohibitions on investment in cluster munitions manufacturing and on the transfer of cluster munitions.  After I spoke and raised my concerns about the exceptions in clause 11, Senator Romeo Dallaire spoke a few days later to raise some of his own concerns.  He argued that cluster munitions are an obsolete and unreliable weapon and their impact on civilians cannot be justified. He also felt that the exceptions in Bill S-10 contravened the spirit of the Convention.

After Senator Dallaire finished his speech, Bill S-10 passed second reading and was referred to the Standing Senate Committee on Foreign Affairs and International Trade for further study.  Since by this time it was the end of June and the Senate was set to rise for the summer break, the committee hearings did not take place until early the following October. Most Senators would agree that committees are really where the intense scrutiny and consideration of legislation takes place.  Committees are made up of between 8 and 12 Senators from both the government and opposition parties. We meet once or twice a week and invite expert witnesses to appear before us to discuss proposed legislation or to discuss topics of interest for Canadians. Once we have heard all of the witness testimony, Senators will then propose and discuss possible amendments to bills, carefully review the bill one more time, and then report the legislation back to the Senate for final debate and third reading.

The Standing Senate Committee on Foreign Affairs and International Trade met seven times over two months in October and November 2012 to study bill S-10. We heard from almost thirty witnesses, including the Minister of Foreign Affairs and International Trade, department officials from DFAIT, DND, and Justice Canada, NGOs, independent legal experts, and individuals involved with the negotiation of the Convention on Cluster Munitions. Throughout this process the overwhelming message from most witnesses (essentially everyone except the government officials who drafted the bill) was that bill S-10 was seriously flawed and must be fixed.  The witnesses stressed that the exceptions listed in clause 11 of the bill were too broad and undermined the spirit of the Convention, which is of course, to eliminate for all times the use of cluster munitions and the suffering they cause. These witnesses felt that the Canadian Forces were being given too much leeway to aid and abet the use of cluster munitions while on a joint military operation.

During these hearings, Senators certainly heard the witnesses’ concerns about the legislation, but we also learned a great deal about cluster munitions more generally; about the damage they cause, victims’ stories, the history of the Convention and how it was drafted, what other countries are doing to pass their ratification legislation, and how Canada’s legislation compares internationally. Senators depend on the knowledge and experience of experts in the field to help us make the best policy decisions possible. We were lucky in considering bill S-10 that we had such a strong and willing group of witnesses who were able to articulate their experiences with cluster munitions and their hopes and concerns for bill S-10 in such a compelling way.

Unfortunately, this excellent witness testimony was ultimately not enough to sway government Senators when it came time for the Committee to review the legislation clause by clause.  During this meeting, as we looked at each line of the bill, I suggested a number of amendments. These amendments primarily centred on rewriting clause 11 to prevent Canadian Forces participating in a joint operation with a state not party to the Convention from aiding or abetting in the use of cluster munitions. At the same time, my amendments would have ensured that Canadian Forces could continue to complete joint operations without fear of liability if the other state used cluster munitions.  Nevertheless, the Committee voted to retain the legislation as it was written and it was then passed back to the Senate for third reading.

Third reading of Bill S-10 began in the Senate on November 20th with a speech by the sponsor of the bill, Senator Fortin-Duplessis. She again repeated the government’s position that the bill struck the right balance between humanitarian and security concerns and that clause 11 and the exceptions for joint military operations were appropriate and necessary. She urged Senators to accept the bill as it was and to pass it on to the House of Commons. I then spoke the following week in response and argued that from the evidence presented to the Standing Senate Committee on Foreign Affairs and International Trade, it was clear that Bill S-10 was flawed. I proposed an amendment that would have eliminated the worst parts of clause 11 and replaced them with new language that would have ensured the Canadian Forces’ continued participation with allies on joint military operations, but without compromising our commitments to the spirit of the Convention on Cluster Munitions. Following further debate from other Senators, including Senator Dallaire, the Senate voted against my amendments and in favour of passing the bill on to the House of Commons for further study.  It was given first reading there on December 6th and is now awaiting second reading, which should happen sometime this spring.

Although my proposed amendments were not adopted and despite the fact that neither the excellent committee hearings nor passionate speeches from opposition Senators at second and third readings failed to inspire the government to withdraw the bill or introduce amendments of its own, I was nevertheless  proud to be a part of this important debate.  Many people worked very hard and contributed their time and energy to trying to change the government’s mind on this Bill. It was a team effort and we succeeded in bringing our concerns to the forefront and sharing them with Canadians by generating media attention on the issues. This bill will no doubt undergo another round of intense scrutiny in the House of Commons and perhaps there, amendments will be introduced that will eventually stick.

Utimately though, I am pleased to see Canada finally doing the necessary work to ratify the Convention on Cluster Munitions. Though I may disagree with my colleagues about the wording used in this specific bill, we nonetheless agree on the principles and importance of this Convention. No one wants to see any more lives destroyed by cluster munitions or any more children like Vanna Minn having to give up their hopes and dreams for the future. 

Thank you for your attendance and participation here today. I always appreciate the opportunity to speak to young people about the Senate, the parliamentary process, and current issues. I encourage you to stay informed on topics that interest you and to get involved in whatever way you can. Don’t shy away from writing to your MP or Senator, feel free to watch committee hearings on the Internet or to read the debates of the House and Senate. Canada needs your ideas and enthusiasm. I wish you all the best for the future. 

Thank you

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