New federal legislation intended to cement Canada’s role in a major international treaty to ban lethal cluster bombs is weak and will make Canada deliberately complicit in the use of the weapons, say experts.
“It falls way below even the minimum threshold of legality under international humanitarian law and is an insult to colleagues in other countries who, seemingly unlike Canada, have negotiated in good faith,” said former Foreign Affairs arms negotiator Earl Turcotte, who led Canada’s negotiating team at the treaty negotiations.
“Most tragically, it will make Canada complicit in the use of a weapon that for good reason we have supposedly banned. Having led the delegation I can say that without doubt this legislation is the worst of any of the 111 countries that have so far ratified the treaty.”
Canada signed the cluster treaty in Oslo in December 2008 but has yet to ratify it. Ratification requires domestic legislation that the Conservative government quietly tabled last Thursday and, according to both Turcotte and the anti-mine advocacy group Mines Actions Canada, has been compromised by Canada’s military relationship with the United States.
The legislation signals that a turf war over the treaty between the Foreign Affairs and Defence departments was won by Defence, said Turcotte.
Cluster weapons, stockpiled in the tens of millions primarily by the U.S., China and Russia — none of which will sign the treaty — scatter small bomblets in war zones but leave a massive legacy of unexploded ordinance.
Clusters are designed to maim and typically result in victims losing arms and legs and suffering facial injury. An estimated 98 per cent of victims are civilians and the vast majority of those are children who often mistake the colourful bomblets for playthings.
Canada does not produce or use cluster munitions and short of its military relationship with the U.S. has no vested interest in the weapon.
“Canada should have the best domestic legislation in the world,” said Mines Action Canada executive director Paul Hannon. “We need to make it clear that no Canadian will ever be involved with this weapon again but from our reading this legislation falls well short of those standards.”
Canada garnered international praise and respect for its groundbreaking work in the late 1990s on legislation that banned landmines and resulted in the virtual eradication of the mines from the arsenals of most major countries.
The federal cluster legislation (Bill S-10) doesn’t come close to meeting that standard, according to Hannon.
“Unlike other ratifying countries, the Canadian legislation doesn’t prohibit direct or indirect investment in companies that produce the weapon,” he said. “It says nothing about other countries transiting cluster munitions through our territory.”
Hannon is most troubled that the legislation leaves open the option for Canadian forces personnel to assist countries that have not signed the treaty to use clusters.
“That’s a bad position to put our forces in,” he said. “We have never used the weapon so why would we be authorizing Canadian personnel to aid and abet others to use them? It makes no sense, other than to the U.S. which doesn’t like the treaty and wants to continue using the weapons.
“It seems very illogical and legally and morally strange. It is certainly contrary to the spirit and letter of the treaty.”
The ratification legislation, which will now go through Commons and Senate committees, appears on one hand to ban the weapon but on the other allow many exceptions including permission for Canadian commanders to order military personnel from ‘non signatory’ countries use clusters and for Canadian pilots on secondment to drop them.
“In what world could a reasonable person claim that any of these exceptions is consistent with a total and unequivocal ban on cluster munitions,” said Turcotte, who predicts a torrent of international criticism will soon be aimed at the proposed legislation. “It would require contortions of law, logic and morality to come such an outrageous conclusion.”
Joseph Lavoie, spokesman for Foreign Affairs Minister John Baird, brushed aside the criticism, saying the Conservative government is “proud” of its role in negotiating the Convention on Cluster Munitions.
“The proposed legislation fully meets our humanitarian obligations under the treaty,” he said, “while ensuring the Canadian Forces aren’t compromised in any way from working with our Allies and doing what we ask of them. We are committed to reducing the impact of armed conflict on innocent civilians around the world.”
Both Hannon and Turcotte are promising to rally support in an effort to change the legislation before it becomes law.
“This is not something people would expect from Canada,” said Hannon. “Our goal is try and improve this legislation. We think we can fix the bill and hope the government is prepared to listen to the humanitarian perspective.”
Eighteen countries, including Colombia, France, Georgia, Israel, Libya, Russia, Saudi Arabia, South Africa, Britain and the U.S., have used cluster bombs, which can be dropped from either aircraft or ground launched.
According to the Cluster Munitions Coalition (CMC), an international group campaigning for the elimination of cluster munitions, Israel’s use of clusters in Lebanon in August 2006 resulted in more than 200 civilian casualties in the year following the ceasefire. Most recently they have been used in Afghanistan, Iraq and Libya. The United States dropped 10,800 cluster bombs during the Iraq war and cluster residue is still killing Iraqi civilians.
The international outcry after the Israeli campaign in Lebanon was the catalyst for the 2008 cluster bomb treaty that was formally negotiated in Ireland before the official signing ceremony in Oslo.