Published in The Ploughshares Monitor Volume 35 Issue 1 Spring 2014
Canada’s Bill C-6 needs amending to fully implement the Convention on Cluster Munitions
The Convention on Cluster Munitions (CCM) is “an international treaty that addresses the unacceptable harm to civilians caused by cluster munitions, through a categorical prohibition of the weapon and a framework for action” (UNDP 2014).
Adopted on May 30, 2008 in Dublin, Ireland and opened for signature on December 3-4, 2008 in Oslo, Norway, the CCM entered into force on August 1, 2010. Currently the Convention has 113 signatories, of which 84 are also States Parties.
Canada has signed, but not yet ratified, the treaty.1Bill C-6: An Act to Implement the Convention on Cluster Munitions is now awaiting third reading in the House of Commons.
In April 2012 legislation to implement the Convention on Cluster Munitions (Bill S-10) was tabled in the Canadian Senate, where it was subject to Committee review. The Bill passed the Senate without amendments and was sent for consideration in the House of Commons.
In October 2013 the bill, now C-6, passed second reading and was sent to the Standing Committee on Foreign Affairs and International Development. They completed their work before Christmas, removing one word—“using”— in Section 11(1)(c), and sent the bill back to the House. Bill C-6 must now pass Third Reading in the House of Commons and return to the Senate for comprehensive review and approval.2
Earl Turcotte, who led the Canadian delegation throughout the negotiation of the Convention on Cluster Munitions, was one of many witnesses who appeared before the Senate Committee; he also sent comments to the Standing Committee (Turcotte 2013). Turcotte was highly critical of the draft legislation. Although Turcotte strongly supports Canadian accession to the Convention, he contends that the proposed legislation remains tragically and deeply flawed. In his view, Bill C-6 constitutes a reversal of many of the key commitments Canada made during negotiations and by signing the Convention in 2008, and is an affront to other states that negotiated in good faith. It could render Canada’s armed forces complicit in the continued use of cluster munitions and subject to prosecution in other jurisdictions.
In the Project Ploughshares Brief to the Standing Committee (Epps 2013), Senior Program Officer Kenneth Epps also expressed concern over the draft legislation and urged politicians “to consider the full range of international humanitarian obligations to which Canada has agreed. In this instance, the obligation to prevent the use of cluster munitions must be paramount.”
Responsibilities under the CCM
Article 1 of the Convention on Cluster Munitions sets out the primary responsibilities of States Parties:
Each State Party undertakes never under any circumstances to
- use cluster munitions;
- develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;
- assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.
Among other things, States Parties must also destroy stockpiles within eight years;
- clear contaminated areas within 10 years;
- assist the victims.
The purpose of the CCM is to ban, for all time, an indiscriminate and inhumane weapon that has a history of killing large numbers of civilians. The first article of the Convention also imposes a total ban on any form of assistance, encouragement, or inducement of anyone to engage in any activity prohibited to a State Party under this Convention. Article 21, which deals with relations with states not party to the CCM, further requires States Parties to “advance the norms of the Convention and make best efforts to discourage their use by non-party states.” Article 19 dictates that “the Articles of this Convention shall not be subject to reservations.”
Yet draft Bill C-6 seeks “exceptions” during combined military operations with non-party states that, among other things, would legally permit
- Canadian Forces to assist with logistics and the targeting of cluster munitions;
- the use of Canadian carriers to transport cluster munitions that belong to non-party state forces;
- Canadian pilots and artillery personnel to acquire, possess, and move cluster munitions while attached or seconded to non-party state units;
- Canadian commanders of multinational forces to authorize or direct non-party state armed forces to use, acquire, possess, import, and export cluster munitions.
Clause 11.3 proposes blanket ‘exceptions’ that permit Canadian Forces personnel
to aid, abet, or counsel non-party state forces to commit acts prohibited to States Parties;
to conspire with non-party state forces to commit acts prohibited to States Parties;
to assist non-party state forces that commit such acts to escape.
In the view of Turcotte (2013), the proposed Canadian legislation is “by far the worst tabled to date by any of the 113 countries that have signed the Convention. It is the antithesis of the balanced agreement that 108 negotiating states struck in Dublin in 2008.”
The Department of National Defence claims that other countries, including some of Canada’s NATO allies, are interpreting the provisions of Article 213 of the CCM in the same way. Turcotte indicates that Canada, Australia, France, Germany, Japan, the Netherlands, Spain, Switzerland, the United Kingdom, and a few others have actively sought provision on interoperability, in which States Parties and states not party to the Convention would combine their military forces in joint operations. Most signatories to the CCM, he contends, have adamantly opposed any such provision, “for fear it would be used as a legal loophole for the continued use of cluster munitions during such operations.”
Turcotte claims that no other country will allow many of the things that Bill C-6 deems legal in Section 11, where exceptions to the prohibitions related to use, outlined in Section 6, are set forth. Indeed, several of the proposed actions “could earn perpetrators up to 14 years in prison in the United Kingdom and serious jail time in many other countries” (Turcotte 2013).
Canadian security will not be compromised
In his testimony to the Standing Committee on Foreign Affairs and International Development, Turcotte (2013) denied that Canadian security could be compromised if we were not prepared to assist in the use of cluster munitions by non-party state forces:
In all the years Canada has possessed cluster munitions, we have never used them. NATO has acknowledged that a major factor in determining success of any military operation is the protection of civilians. There are many alternative weapons systems that inflict far less collateral damage, both at the time of use and post-conflict.
In his brief, Epps (2013) noted that there are currently no interstate wars and that the number of armed conflicts has been generally declining in the last 15 years. In his view, these two trends “provide an opportunity to reflect on, and alter, doctrines and tools of war that are based on traditional views of armed conflict.”
Turcotte (2013) warns:
Canada is poised to set a dangerous precedent that could well undermine the standards that have been painstakingly achieved in international humanitarian law and render our armed forces complicit in further loss of civilian life. This would betray the trust of other countries that negotiated the Convention in good faith and of Canadians who expect far better from our nation. Worst of all, Bill C-6, as currently constituted, would represent a complete failure to do everything we can to prevent more needless deaths and suffering.
Project Ploughshares (Epps 2013) calls for
political leadership and innovative thinking that would amend Section 11 of Bill C-6 to allow Canada’s military to maintain interoperability with allies while ensuring that Canada fully implements the CCM…. By reinforcing the full ban on cluster munitions, a revised Bill C-6 will advance civilian security and save human lives and limbs across the globe.
Sidear: Landmines in Laos
During the Vietnam war, the United States carried out intensive bombardment of more than one-third of Laos, primarily in an effort to cut off supply routes to the North Vietnamese.
In total, almost 3-million tons of ordnance—approximately one ton for every man, woman, and child living in Laos at the time—was dropped. Laos has the tragic distinction of being, per capita, the most heavily bombed country in history.
According to U.S. bombing data, among the ordnance were 270-million cluster submunitions, each with a kill range of more than 100 metres in all directions.
It is estimated that 80-million cluster submunitions remained unexploded and potentially lethal when the war ended in 1973. Since then thousands of people have been killed. An estimated 20,000 have been injured and now require varying degrees of physical, psychological, and economic support.
Clearing explosive cluster munition remnants is expensive and painstaking. After 40 years of intensive effort and with the support of the international community, the Lao Government estimates that it has cleared less than two per cent of the area that is potentially contaminated.
Cluster munitions deny safe access to valuable agricultural and development land and the most impoverished parts of Laos are often the most heavily contaminated by cluster munitions. (Source: Turcotte 2013)
1. For more on this subject, see Turcotte 2011.
2. Updates on the passage of Bill C-6 can be found on the Mines Action Canada Facebook page. Project Ploughshares is a member of MAC.
3. For more on Article 21, see Turcotte 2011.
Epps, Kenneth. 2013. Brief on Bill C-6: An Act to Implement the Convention on Cluster Munitions. November 13.
Turcotte. Earl. 2013. Bill C-6: An Act to Implement the Convention on Cluster Munitions, November 13.
_____. 2011. Long-term menace: International efforts to ban cluster munitions are under threat. The Ploughshares Monitor, Autumn.
United Nations Development Programme. 2014. The Convention on Cluster Munitions.