The Ploughshares Monitor Autumn 2011 Volume 32 Issue 3
Earl Turcotte was the Senior Coordinator for Mine Action at the Canadian Department of Foreign Affairs and International Trade (DFAIT) from 2005 to early 2011. He led the Canadian delegation throughout the negotiation of the Convention on Cluster Munitions. In February 2011, he resigned on principle from DFAIT to protest what he believes are seriously flawed joint recommendations from DFAIT and the Department of National Defence on legislation designed to enable Canada to ratify the Convention on Cluster Munitions. This article is based on a June 2011 presentation by Turcotte to the Group of 78 in Ottawa.2
The extensive use of cluster munitions during the last three days of the conflict between Israel and Hezbollah in southern Lebanon in the summer of 2006 provided new impetus for the international community to work toward their ban.
Cluster munitions are conventional weapons designed to release or disperse explosive submunitions over a wide area. Each weapon typically contains hundreds of submunitions; an average cluster bomb can cover one square kilometre. In addition to causing often extensive ‘collateral damage’ at the time of use, many submunitions fail to detonate on impact and remain a potent threat to civilians for decades after peace has been restored.1
For years, the international community was unable to secure a mandate to negotiate a legally binding instrument on cluster munitions in the traditional UN forum for conventional arms discussions, the Convention on Certain Conventional Weapons (CCW). As a result, Norway, with strong support from Austria, Ireland, New Zealand, Mexico, and the Holy See, led a process outside the CCW, beginning in early 2007, which resulted in the negotiation of the Convention on Cluster Munitions. This process mirrored the model Canada had established a decade earlier with anti-personnel mines. In both instances, the weapon in question has been banned and States Parties have assumed obligations to destroy stockpiles and clear contaminated areas within a specific period of time, and to rehabilitate victims.
States Parties are also required to impose legal penalties for the commission of acts forbidden by the Convention. Countries including France, Ireland, and the U.K. have legislated prison sentences of 10 years or more.
Troubling questions about Canada
Although Canada was not among the six states that led what became known as the Oslo Process on Cluster Munitions, it participated actively from the first formal meeting in Oslo in February 2007 and was among the first states to sign the Convention on Cluster Munitions when it opened for signature on December 3, 2008. To date, Canada has not ratified the Convention and so is not yet legally bound by its provisions.
Throughout negotiations Canada worked closely with likeminded states to ensure the highest possible humanitarian standard in the Convention while, at the same time, ensuring that Canada and participating allies could continue to engage effectively in combined military operations with allies who have chosen not to become party to the Convention. This last concern led to the development of Article 21 of the Convention, which makes explicit provision for continued military interoperability with non-party states. Paragraph 3 of this Article states:
Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.
At least 77 states, including several NATO members, possess cluster munitions. Although Canada currently has cluster munitions in its military arsenals, it has never used them.
Other countries such as the U.S., which used cluster munitions most recently in the early days of the conflict in Afghanistan, believe that these weapons have great military utility and will likely continue to use them in certain circumstances for the foreseeable future.
Given this reality, Article 21 is an essential element of the Convention. It preserves military alliances between States Parties and non-party states that are vital to Canada’s national interest and to global peace and security. Without this Article, NATO and similar military alliances would be at some legal risk and it would not have been possible for many states to ban cluster munitions and to assume the many other legally binding obligations contained in the Convention.
However, Article 21 clearly does not allow activities during combined military operations with non-party states that would diminish the object and purpose of the Convention. Significant prohibitions are still in place, as are positive obligations of States Parties, including: to notify non-party states of obligations under the Convention, to encourage non-party states to become party to the Convention, to promote the norms it establishes, and to make best efforts to discourage states not party to this Convention from using cluster munitions. Article 21 is intended mainly to ensure that the armed forces of States Parties are not held legally liable for activities contrary to the Convention that may be carried out by the forces of non-party states, despite the best efforts of States Parties to discourage them.
Canada will likely ratify the Convention during the next session of Parliament. The process has been delayed since 2008 by an intense and protracted debate among government officials to determine which military activities would be legal or politically and morally acceptable during combined military operations with non-party states.
To ratify the Cluster Munitions Convention, the government is preparing legislation that, among other things, will specify penalties for the commission of acts prohibited by the Convention. Although I cannot disclose the specific recommendations that have been agreed by the Department of Foreign Affairs and International Trade and the Department of National Defence, it is my considered judgment that if the legislation as recommended is adopted, some of the activities that would be permitted during combined operations with non-party states would be inconsistent in the extreme with the object and purpose of the Convention. In some instances, Canada would be deliberately and significantly aiding and abetting the use of cluster munitions.
If these recommendations are passed into Canadian law, I believe that Canada will be isolated among the 109 signatories for its unacceptably broad interpretation of what is permitted under the Convention. Should Canadian Forces personnel undertake the activities in question, they would be vulnerable to prosecution in other jurisdictions and by the International Criminal Court. Most disturbingly, Canada could be complicit, if not responsible, for more civilian deaths from the use of this indiscriminate and inhumane weapon.
Threat on another front
Numerous members of the Convention on Certain Conventional Weapons, including the U.S., Russia, China, India, Pakistan, and Brazil have expressed no interest in becoming party to the Convention on Cluster Munitions. The CCW established a Group of Governmental Experts that has been negotiating a separate instrument on cluster munitions for almost four years, but with no agreement to date. As the CCW operates on the basis of consensus decision-making, any one state can, and often does, prevent agreement on substantive measures.
Unlike the Convention on Cluster Munitions, the latest Chair’s draft text under consideration in the CCW contains:
i) a complete ban only of cluster munitions produced before 1980;
ii) no required technical measures to ensure greater accuracy of such weapons, beyond a general statement that states should strive for greater accuracy;
iii) only one fail-safe feature to ensure greater reliability (that has proven inadequate to date);
iv) no limitation on the number or weight of submunitions; v) no deadline for stockpile destruction;
vi) no definition of a cluster munition victim;
vii) a deferral period of up to 12 years, during which any cluster munition produced after 1980 can be used.
If widely adopted, this text could lead to the fragmentation of international humanitarian law and possibly undermine the Convention on Cluster Munitions. Moreover, it will be of negligible humanitarian benefit.
It seems, then, that the Convention on Cluster Munitions is under some threat, from within and without. People of conscience must do everything possible to ensure that States Parties and countries such as Canada, which aspire to become a state party to the Convention, reflect their very real international legal obligations in their national laws, policies, and actions. They must also ensure that lesser international instruments such as the draft text under negotiation in the CCW do not weaken the high standards achieved in the Convention on Cluster Munitions. The innocent victims of war deserve nothing less.
1. More information on cluster munitions can be found in the Autumn 2007 Ploughshares Monitor.
2. Further information about this event and cluster munitions can be found on the Group of 78 website.