Gen Walter Natynczyk (President, Canadian Space Agency, As an Individual):
Mr. Chair, ladies and gentlemen of the committee, I would like to thank you for inviting me to appear today.
I am delighted to have this opportunity to share my personal views on Bill C-6, the Prohibiting Cluster Munitions Act. I am here today as an individual, as well as a former member of the Canadian Armed Forces and former Chief of the Defence Staff.
As many of you might be aware, I served in uniform for about 37 years. Over the course of my service, I deployed for three years on peacekeeping operations, on stability operations, and on combat duty. I've worn the blue beret with the United Nations in Cyprus, Bosnia, and Croatia. I've been a NATO commander in Bosnia, and I was deployed throughout 2004 as a deputy commanding general of a U.S.-led multinational force in Iraq, while on exchange duties with the U.S. Army. I participated in exercises in Europe, the Middle East, and South Korea.
With that perspective, I hope to be able to share my opinions and experiences as they relate to the convention's impact on the Canadian Armed Forces in conducting operations around the world with Canada's closest allies.
Throughout my military career, I saw how the relics of war, even after the guns had gone silent, killed and mutilated the most vulnerable: the young, the disabled and innocent civilians.
I spent my time in Bosnia and Croatia in 1994-95 and I saw the indiscriminate effects of landmines on civilians tilling their fields, children playing near schools, our own Canadian men and women and allied United Nations soldiers who attempted to bring peace and security to those troubled countries.
Similarly, unexploded cluster munitions have a devastating impact on civilian populations long after the conflict has ended. Countries like Vietnam, the entire region, in fact, continue to suffer the effects of cluster bombs dropped during the Vietnam War.
It's because of this heavy cost to civilians that the international community, justifiably, has created this international law to prohibit the use of cluster bomb munitions. I believe this convention is very right and very important to Canada and to the global community to save lives.
Even though the Convention on Cluster Munitions is not yet in force in Canada, the Department of National Defence and the Canadian Armed Forces adopted measures that were in line with the convention during my time as Chief of the Defence Staff.
You'll remember that in 2008, when I approved the interim order, Canadian service men and women were on a NATO-led combat mission in Afghanistan and participating on numerous other operations in the Middle East, Africa, Kosovo, and Haiti. Since then our soldiers, sailors, and airmen and women also participated in the United Nations-sanctioned and NATO-led mission to protect civilians in Libya.
In each of those theatres of operations, our men and women in uniform were asked to serve in conditions that could be described as unstable, uncertain, complex and ambiguous. And we expect our military leaders, from corporals to generals, to make sound and timely decisions that contribute to a mission's success in the most challenging situations. They are frequently called upon to make decisions in the face of serious time pressures and complex conditions.
I believe that Canadians can be justifiably proud of their armed forces. From my standpoint, man for man, woman for woman, unit for unit, they are among the most professional forces in the world. As a result, our allies want Canadians on their flanks. My experience has been that when a crisis erupts, our allies and partners are immediately requesting the participation of the Canadian Armed Forces.
The challenge is that some of our NATO allies, such as Poland, Turkey and Estonia, as well as some of our international partners, including South Korea and Israel, have chosen not to join the convention. Clearly, each of those countries is dealing with major geostrategic security concerns that we, in Canada, are not faced with.
The United States, our NORAD and NATO ally, also made the decision not to join the convention. While we cooperate closely with their armed forces across the defence and security spectrum, sometimes we must agree to disagree, as is the case with the cluster munitions convention.
I understand that during the negotiation of the convention, Canada and several of our NATO allies championed a clause, I believe it to be article 21 of the convention, that sought to safeguard our ability to cooperate on military operations with countries that are not party to the treaty.
If we had to enforce article 21 of the convention, the exceptions listed in clause 11 of Bill C-6 would protect our men and women in uniform against prosecution, because they would have simply been carrying out their military duties.
From my perspective, I believe article 21 enables our forces to remain fully interoperable with the U.S. armed forces. This comprehensive level of cooperation is a unique strategic advantage for Canada. It is the result of the reality of our joint defence of our continent and a reflection of shared trust, confidence, and values.
The interoperability clause of the convention strikes a fair balance between profound humanitarian principles on the one hand, and Canada's security realities on the other.
l believe it's important for Canada to retain full capability to participate in combined operations with our allies that enhance our national and collective security.
Many Canadian Armed Forces members are currently on secondment or taking part in exchanges with the U.S. military in places like Afghanistan or the continental U.S. These members occasionally support training activities for our Polish allies. They may be posted in Turkey under NATO command or under UN command in South Korea.
My assessment is that the fulfillment of their routine military duties should not expose them to prosecution, for example, for calling in aircraft to save the lives of our soldiers or allowing an aircraft to land on an airfield we control, for air-to-air refuelling of fighter aircraft, for sharing of intelligence, or for authorizing a port visit of a ship.
Having had the exchange experience as the deputy commanding general of the Multi-National Force - Iraq throughout 2004, l can say to you with confidence that l was never aware that cluster bombs were actually stocked in theatre or that l participated in planning for their use or, in fact, authorized their use. I had none of that experience whatsoever.
However, unwittingly l could have done so, and l could have participated in activities, without my knowledge, that assisted in the use of cluster munitions, but l would not have known it at that time.
Therefore, Mr. Chair, it is my personal opinion that these exceptions are necessary to protect members of the Canadian Armed Forces when they are sent into dangerous situations, with the expectation that they will fulfill their duties to protect Canada and its interests.
In my layman's opinion, Bill C-6, as currently drafted, appropriately reflects the Convention on Cluster Munitions prohibitions and exceptions.
l believe it strikes the right balance between our international obligations to rid the world of these destructive weapons, while recognizing Canada's unique security realities, and ensuring a specific legal protection for the men and women of the Canadian armed forces who continue to serve.
Prof. Walter Dorn (Professor, Royal Military College of Canada, Department of Defence Studies, As an Individual):
Mr. Chair, thank you for the opportunity to appear before this important committee.
I gave the same remarks in 1995 with respect to the Chemical Weapon Convention. In addition, I was present in Parliament when the Ottawa convention banning antipersonnel mines was ratified.
At the Canadian Forces College, I teach officers from 20 countries about arms control and international UN law. I work as a consultant for the UN and have taken part in peacekeeping operations.
As with landmines, we all agree it's high time that the world send cluster munitions to the trash bin of history. To achieve this ban, the treaty is categorical in its first article that a state party may “never under any circumstances” use or assist in the use of these inhumane weapons. Canada's long-overdue ratification of the 2008 convention is welcome as the country takes its place among the progressive nations demonstrating humanitarian concern, but the implementing legislation, Bill C-6, contains one completely out-of-place clause. I appreciate that the government is willing to hear the arguments against clause 11 and to consider eliminating or amending the obnoxious paragraphs.
Who would want Canadians to use cluster munitions, aid and abet, direct or request their use, or conspire with another person to use these indiscriminate weapons? Yet this wording is in the legislation itself to allow for the so-called cooperation with a non-party, which we know to be aimed at the possible cooperation with the United States. Besides being abhorrent, the problems with the approach are twofold.
First, it is against the spirit and I am convinced the letter of the treaty. Article 21, paragraph 3 of the treaty is not a basis for and cannot be used to justify the legislation's clause 11. The treaty article only reaffirms that “States Parties...may engage in military cooperation” with states non-party. It allows countries to be a part of a coalition in which some members might use cluster munitions, but it does not give any authorizations for their use by states parties. This understanding of a complete prohibition “under any circumstance” in the convention's primary article is the view of a great many states, international lawyers, civil society organizations, and Canada's main negotiator of the convention, Earl Turcotte, who is in fact one of the primary drafters of article 21.
Another reason to amend clause 11 is that it is not necessary. With deference to General Natynczyk, who has a great deal of experience, I can foresee scenarios whereby some of the problems he might have encountered in Iraq can be overcome. The various scenarios that have been advanced are really exceedingly rare, as we've just heard from him, and can be dealt with in ways that do not contravene the convention and do little damage to interoperability.
For instance, individuals in a chain of command can recuse themselves, that is, temporarily remove themselves, so that a cluster munitions order may skip or detour around the Canadian. General Lessard was telling me about this possibility for the Canadian Forces yesterday. Similarly, if Canadians are in planning or intelligence units, they can recuse themselves from assisting in specific parts dealing with cluster munitions.
Caveats can be entered before participating in a multinational coalition. Such national caveats are common. We were just speaking about this before the providing of testimony and you hear about how the commanders have matrices, Excel spreadsheets with national caveats. It's part of the routine business of working with multinational coalitions to ensure respect for national prerogatives. For instance, if Canadians were in a coalition operation, the U.S. might have to ensure that any U.S. aircraft that could be used for close air support, an example just provided, do not carry only cluster munitions but have other munitions as well, which is normal.
Logistics such as air-to-air refuelling of U.S. planes carrying cluster munitions, or landmines for that matter, can be provided by the U.S. rather than Canada.
Training exercises can be designed so that any cluster munitions used are not done as part of the combined operations, but are completely separate.
By taking these actions, Canada would fulfill the other provisions of article 21 to discourage the use of cluster munitions and to encourage non-parties to accept or accede to the convention, something we can hope the U.S. will do in the near very future.
In any case, under article 21 Canada has an obligation to notify the U.S. of Canadian commitments under the convention.
Since the instances of non-cooperation are very rare, and in fact, the minister the other day said they were infinitesimal, and the humanitarian principles are shared by most of the members of the international community and almost all members of NATO, it is not expected to be a serious impediment to the important military relationship between Canada and the United States. General Natynczyk said that we have full interoperability, yet we still agree to disagree on different issues. Interoperability can be maintained.
Article 21 does give Canada cover when the U.S. uses cluster munitions in a fashion that is beyond Canadian control. Merely being a member of a coalition does not mean Canada is complicit or is assisting with cluster munitions. That is the real value and meaning of article 21.
This approach suggests a better way to design the cooperation section of the implementing legislation, drawing on the standard-setting Canadian legislation passed for the Ottawa treaty. The anti-personnel mines legislation states that Canadians are not prohibited from “participation in operations, exercises or other military activities” with non-parties “if that participation does not amount to active assistance in that prohibited activity”.
This idea of active assistance is what should be the standard. This allows Canadians who are not actively assisting to be free from potential prosecution. That is a better way. It will allow Canada to be a stronger force for international humanitarian law, draw less ire from some of our colleagues and allies, and help the world to finally place these weapons into the trash bin of history's most inhumane weapons.
Thank you, on behalf of humankind.
Gen Walter Natynczyk:
Sir, I would say that the most unique and profound agreement is NORAD, and now we've surpassed 50 years of our relationship with NORAD.
Again, this is a relationship where, at the highest level of government, through the military structure, we have a seamless relationship in terms of operations and intelligence in order to protect this continent, whether it be the deputy commander of NORAD in Colorado Springs all the way through to any exchange of U.S. and Canadian men and women on both sides of the border.
It is one such that a few years ago, when the U.S. had a fleet of their fighter aircraft break down and they grounded their whole fleet of F-15 fighters, within 18 hours we had scrambled a squadron from Bagotville and we basically protected Alaska during that period of time. That half-squadron arrived and within hours was going up to intercept very large aircraft that were approaching the Alaskan territory without having filed a flight plan. They were very big aircraft.
All of this is to say that the U.S. in that instance, as is the case each and every minute of every day, had a relationship of great trust and confidence in us, as we do in them, and we take that relationship around the world. It's interesting when you go aboard a U.S. ship and they take you into their sonar room and say that the individual working the sonar is the most talented individual on the ship and that individual is a Canadian. It's the same thing in terms of intelligence. Again, the level of integration in military intelligence is so strong and is reinforced by this current experience in Afghanistan. The fact is the value goes both ways.
In answer to your question, NORAD makes it all different, because the reality is that we are joined at the hip with the U.S. No other country has the kind of security relationship that we do. Others wish they had that relationship.
Beyond that, obviously, we get into a NATO context, but for the most part, we're talking about dealing with our European friends.
Mr. Peter Goldring (Edmonton East, CPC):
Thank you very much and thank you for being here, gentlemen.
I might say that I believe I looked snappier in my uniform than I do today in my civvies.
I think it's well known that Canadian soldiers' reputation as peacekeepers was really built in the wars throughout the past century. We can look at the first one, with Vimy Ridge. You can go through Ortona. You can go through D-Day. Perhaps a more comparable one would be Korea. We're recognizing 50 years since the ceasefire in Korea. The PPCLI was engaged in one of the pre-eminent battles there, Kapyong, and in fact won a presidential citation for it.
My point here is I believe that our soldiers’ interoperability is saving lives and has saved lives, many lives. Having restrictions on that capability could keep them from helping out in different world situations that they have been in in the past. I certainly feel, as does everybody in this room, that cluster munitions are just obscene. They really should not be used. All attempts to ban them should be worldwide.
In the meantime, we have another responsibility and that's to the world. We have a responsibility to be engaged. As you said, General, we don't know where the next one is going to be. I hardly knew where Afghanistan was before that came up, but it was necessary for Canada to be on the pointy part of that confrontation with the United States. Whereas many other countries had exceptions to it, and they might not go out at night or they might not do it this way or they might not do it that way, Canada had none of those exclusions in acceptance. Canada was there predominantly with our American partners out in the field.
We owe these soldiers a great deal of respect and we want to protect their rights. I don't believe that we can make side deals with other countries that will better protect our soldiers than we have in this agreement here. In other words, it's our responsibility to protect our soldiers from litigation or possible blame on being involved, from here, not depending on another country whether they're going to or not.
When we're talking about being actively engaged in these units, there's no time for recusing oneself, no time to step out of this or step out of that. You're there to be involved and totally engaged. I think it would be destabilizing if your partners out in the field thought you were going to have these hesitancies from time to time. You said, General, that the way the circumstances are now, the soldiers will be hesitant, that they'll be uncertain, and that can interfere with a proper, solid commanding structure.
General, could you reinforce some of your beliefs to us? Number one, where is it best to have this understanding? To protect our troops, is it better to have the understanding in Canadian law or in foreign law to begin with? I would have hesitancy in our relying on our soldiers for litigation in other countries.
Could you comment on the importance of these clauses that protect our soldiers out in the field?
Gen Walter Natynczyk:
Mr. Chair, ladies and gentlemen, I guess what I would say to you is a line that I used when I was in Iraq, because of how complicated it was, that the further you are from the sound of the guns, the less you understand. When you're there on the ground and the situation is going really bad, and you're trying to relate what the heck is going on to a higher headquarters that is beyond the sound of the guns, beyond the sound of the impact, and you're trying to get as many tools as you can to save your people, and nothing's perfect, and the situation's awful, you need every tool you can get.
Sometimes you try to define what a theatre of war is, and you can't even define the theatre of war. The fact is you're in that box, and no matter where you are, whether you're inside the wire or outside the wire, it doesn't matter; you're in that theatre of war. Again, I've had chaplains wounded because they were there.
This idea that somehow you can compartmentalize this is really something that is back here at home, where we are so lucky, because Canada, with the U.S., is kind of an island. But once you leave our shores, and whether you're in Europe or whether you're in the Pacific, or whether you're in Asia, the situation is very complex.
I would say to you that when we send our men and women offshore, as we have in the past, and the government allowed me to go to Iraq, we go in with one assessment, one evaluation of what might occur, and then it changes. It changes on the ground. There's no one who's writing up the story. It just evolves. The enemy has a vote and they write the script. We're talking about the blood of the sons and daughters of Canada, whether they wear a uniform, whether they're civilian. How do we ensure that we give them the tools so they can achieve their mission to bring peace? That's what it's all about.
You started, sir, talking about Korea. Korea was a peacekeeping mission. It was a United Nations mission, and yet the 2nd Battalion of PPCLI were calling artillery on themselves in order to save the day.
There is no rhyme nor reason. What we're talking about is how to conduct ourselves legally in war.
Mr. Wayne Marston (Hamilton East—Stoney Creek, NDP):
Thank you, Mr. Chair.
General, I just want to say that 50 years ago tomorrow, when John Kennedy was shot, I was in basic training, marching around the parade square in Chilliwack. We saw the B-52s going overhead and we thought we had something very serious happening, but I don't want to digress too far.
In labour law when you negotiate a collective agreement, there's a thing called a notwithstanding clause, which is very similar in ideas, I think, to clause 11. From the notwithstanding clause, it says that according to the collective agreement, we must abide by the rules as stated in the collective agreement, notwithstanding article 1, which says we can't do this, but maybe in these circumstances we can.
What I'm concerned about here is if in theatre you had command of joint forces, and you had the pressures from below to use these munitions—not you yourself necessarily, but a future commander—what would this do to undercut your ability to say, “No, we won't use these”, if there's that kind of notwithstanding clause built into this?