Later today, Foreign Affairs Minister John Baird will appear before the Standing Senate Committee on Foreign Affairs and International Trade to defend Bill S-10, Canada’s ratification legislation banning the use of cluster munitions. He will be flanked by civil servants Alan Kessel, John MacBride and Christopher Ram, who will field technical questions on the Bill, and most importantly, its exceptions.

Bill S-10 didn’t have to be controversial. The legislation is rooted in the 2008 Convention on Cluster Munitions, an international humanitarian treaty that comprehensively bans the use, production, transfer, and stockpiling of cluster bombs.

I was part of the process that created the treaty — working with African states and civil society to built regional support — leading up to the signing ceremony in Oslo. Canada was one of the first to place its signature on the document, joining what is now a total of 111 countries.

We know that cluster bombs “cause widespread damage and indiscriminate harm, particularly when used near populated areas.”

We know they “injure, mutilate and, too often, kill innocent people and that 98 per cent of reported casualties have been civilians.”

We know this because Conservative Senator Suzanne Fortin-Duplessis (who is quoted in the preceding sentences) told us so when she introduced the legislation last spring.

She’s right. Cluster bombs are grossly inaccurate, indiscriminate weapons that litter the landscape, covering areas the size of football fields. What’s worse, since many of them fail to explode on impact — as much as 30% — they remain in the soil for decades, forming de facto minefields, long after peace agreements are signed and implemented.

The problem with Bill S-10 is that as Senator and retired lieutenant general Roméo Dallaire said in June, the legislation’s “promise is undermined by its exceptions — exceptions that water down and weaken the treaty, perhaps even critically.”

Like the international treaty, it prohibits the use, transfer, stockpiling, and production of the weapon. But the latter half of the Bill lays out a wide array of exceptions, effectively paving the way for Canadians to facilitate the continued use of the weapon.

Clause 11 in particular exempts Canadian Forces from many of these prohibitions, so long as they are engaged in a combined operation with a state not party to the Convention (e.g., as part of NATO or UN forces). In other words, Bill S-10 could allow for Canadian Commanders to authorize, encourage, help, and even request the use of cluster bombs by allies.

Using indiscriminate weapons does not only go against our principles — it goes against our promise not to use them, a promise made in Oslo.

What it comes down to is this: When Canada signed the Convention on Cluster Munitions, we did so because we knew the damage they cause far outweighs any military benefit they could possibly offer.

Proponents of the exceptions argue that an outright ban on the weapon could jeopardize Canadian leadership of NATO missions, but this argument has no force. We have led — and will continue to lead such missions, as General Charles Bouchard has in Libya last year, long after we signed the Convention. (It should be noted that the only use of cluster bombs in Libya was by the Gaddafi regime.)

Canada has been down this road before. In 1997, we led the world — again, alongside civil society — banning the use of landmines. It was one of our great foreign policy achievements of the 20th century, leading to a Nobel Peace Prize and a new model for disarmament. The landmine treaty has neither prevented nor hindered Canada’s participation in any joint military operation. We didn’t need broad exceptions then, and we don’t need them now.

Over the next few weeks, the 12 members of the Senate Foreign Affairs Committee will be tasked with studying the legislation in detail. This provides us with the opportunity to amend the Bill accordingly.

That Bill S-10 was first introduced in the Senate could be a considerable advantage. There, partisanship often takes a backseat; versus the House of Commons, where co-operation often is seen as a liability. Given this, the Senate may be our first and last hope to fix this legislation.

Fortunately, we have reason to be optimistic: There are many level heads on the committee, willing to put principle ahead of party.

Failure to do so may serve to undermine this important humanitarian treaty — or, worse, put the lives of innocents at risk.

Originally published in the National Post »