On April 25, the Canadian government tabled long-awaited national legislation that will finally enable Canada to accede to the Convention on Cluster Munitions. Unfortunately, the legislation is tragically, shockingly flawed.
The legislation stems from 2007, when Norway, with strong support from Austria, Ireland, New Zealand, Mexico, and the Holy See, initiated the Oslo Process leading to the negotiation of the convention.
Like the Ottawa Process on anti-personnel landmines initiated by Canada a decade earlier, the convention produced a powerful, international legal instrument that imposes a total ban on an indiscriminate weapon.
Cluster munitions have become known as the poor man's weapon of mass destruction. They disperse explosive sub-munitions over a wide area, can be air-dropped or launched from the ground, and can saturate a vast area in a short period of time and at relatively low cost.
There are currently an estimated 500 million cluster sub-munitions in existence, and the weapon has been used in 37 countries or territories to date. But they have no guidance system and are notoriously inaccurate. They also have high dud rates, up to 40 per cent, depending on type and battlefield conditions.
In addition to causing extensive collateral damage to civilians at the time they are used, sub-munitions that fail to detonate on impact pose an ongoing danger to life and limb, and deny access to valuable land for many decades after conflicts have ended.
Thousands of people die each year and 98 per cent of all recorded casualties from cluster munitions have been civilians—most of them children who are attracted to unexploded sub-munitions that are often brightly coloured.
The Convention on Cluster Munitions is vitally important. It obliges the states that have signed on to destroy stockpiles, clear contaminated areas within a specified period of time, and rehabilitate victims.
These states are also required to impose significant legal penalties for the commission of acts forbidden by the convention. Some countries, including France, Ireland, and the United Kingdom have legislated prison sentences of 10 years or more.
Canada was an active participant in the Oslo Process since the first formal meeting in February 2007, and was among the first states to sign the Convention on Cluster Munitions when it opened for signature on Dec. 3, 2008.
I was honoured to lead the Canadian delegation throughout the negotiations. Our delegation worked closely with like-minded states to achieve the highest humanitarian standard in the convention.
At the same time, we ensured that we could continue to engage effectively in joint military operations with allies which have chosen not to become party to the convention.
This led to the development of Article 21 of the convention, which makes explicit provisions for continued military interoperability with states who have not signed.
Article 21 was—and remains, in my view—an essential element of the convention to protect state party forces from legal liability for any activities carried out during joint operations with forces of states outside the convention.
It was never intended, however, to allow activities during these joint military operations that would diminish the fundamental object and purpose of the convention—to be a legal loophole, as it were.
To safeguard against this, the 108 negotiating states included in Article 21 key categorical prohibitions reflecting the ban. As well, it included positive obligations to notify states outside the convention of our obligations, to encourage them to become a party to the convention, to actively promote the norms of the convention and to make best efforts to discourage non-party states from using cluster munitions.
The legislation in each state must reflect the standards agreed during negotiations. Which brings us to the shocking shortcomings of Bill S-10, An Act to implement the Convention on Cluster Munitions.
The Harper government is seeking exceptions that, among other things, will allow a Canadian commander of a multinational force to authorize or order forces outside the convention to use, acquire, possess, import or export cluster munitions.
As well, Canadian pilots or artillery personnel can use, acquire, possess or move cluster munitions while on secondment or attachment to outside states. Canadian Forces can also transport non-party state cluster munitions on Canadian carriers.
The legislation further proposes blanket exceptions that permit Canadian Forces to, in their words, "aid, abet, conspire, counsel and assist non-party State forces" to carry out or escape from acts prohibited to convention states.
All of this is notwithstanding the fact that the convention bans any form of "assistance, encouragement or inducement of anyone to engage in any activity prohibited to a State Party to this Convention."
It is also notwithstanding the fact that Article 21, as mentioned, also requires participating states to advance the norms of the convention and to make best efforts to discourage their use by others, and that Article 19 disallows any reservations from any article of the convention.
In what world could any reasonable person claim that any of the foregoing is consistent with a total and unequivocal ban on cluster munitions and states' legally binding obligation to promote the norms of the convention, and to make best efforts to discourage non-party States from using cluster munitions?
What contortions of law, logic and morality would be required to come to such an outrageous conclusion!
In my view, the proposed Canadian legislation is the worst of any country that has ratified or acceded to the convention, to date.
It fails to fulfill Canada's obligations under international humanitarian law; it fails to protect vulnerable civilians in war-ravaged countries around the world; it betrays the trust of sister states who negotiated this treaty in good faith, and it fails Canadians who expect far better from our nation.
This bill needs to be strengthened, significantly, before it is passed into Canadian law. The innocent victims of cluster munitions deserve nothing less.
Earl Turcotte was the senior co-ordinator for mine action at the Department of Foreign Affairs and International Trade from 2005 to early 2011. After leading the Canadian delegation throughout the negotiation of the Convention on Cluster Munitions, he resigned in order to be free to advocate publicly for stronger legislation on cluster munitions than is proposed by the Harper government.
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