Their questions represent a significant addition to a growing list of international organizations and foreign governments that say a loophole in Canada's bill would undermine the Convention on Cluster Munitions.
Canada signed the convention in 2008, but the legislation to ratify it was only introduced last year and is still before Parliament. Canada led the international effort beginning in 1996 to spearhead the treaty known as the Ottawa Convention that banned landmines.
Cluster bombs are the grim cousin of landmines in the arsenal of anti-personnel weapons. A single large bomb scatters hundreds of smaller, baseball-sized bomblets over a wide area. They pose a massive hazard to thousands of innocent civilians, especially children, who have been maimed or killed in some two dozen post-war countries. An estimated 10 to 40 per cent of the brightly coloured submunitions fail to explode immediately, lying dormant but deadly, in some cases, for decades.
Canada's languid ratification of the CCM follows its world-leading performance on banning landmines. That raised questions about the country's commitment to the process at a recent international meeting in Geneva on the cluster bomb convention.
But the sharpest criticism has been reserved for a loophole in the bill that allows Canadian Forces personnel to be involved in the use of cluster bombs through joint operations with countries that haven't agreed to the ban — primarily the United States, which also stayed out of the landmines treaty.
Lou Maresca, a senior ICRC lawyer, told The Canadian Press that its biggest concern centres on a provision that would allow the Forces to transport or stockpile the banned bombs in joint operations.
"The biggest concerns we have about the legislation are linked to the provisions on interoperability," Maresca said during an interview at the ICRC's headquarters overlooking Lake Geneva.
"For us, that raises serious questions about the legislation and how that goes in parallel with the object and purpose of the convention, which is to eliminate any use of cluster munitions."
Norway, the country leading the cluster bomb ban and the first to sign and ratify the new convention in Oslo in 2008, also raised questions about Canada's pending legislation.
"We would normally not comment on the internal processes in other countries," Norwegian Ambassador Steffan Kongstad, whose country holds the presidency of the CCM process, said in an interview.
"But I can say that we would not present such a law in the Norwegian parliament. It seems somewhat inconsistent with the purpose of the convention."
Canada signed the convention in 2008, but the legislation to ratify it was only introduced last year and is still before the Commons after passing through the Senate last fall. It does not appear that the ratification will be completed before Parliament rises for the summer in the days ahead.
Defence Minister Peter MacKay and Foreign Affairs Minister John Baird declined to be interviewed. But both have vigorously defended the bill publicly.
MacKay did so last week, when the bill finally wound its way through the House of Commons for second reading.
Baird appeared before a Senate committee last fall and defended the need for Canada to be able to co-operate militarily with the United States. Baird said Canada would never use the banned weapons, but has to preserve its ability to co-operate with its key military ally.
Along with the U.S., major military powers such as China, Russia and Israel have taken a pass on the CCM. They are among the 80-plus states that are not signatories to the convention, which now boasts 112 members, 83 of which have ratified.
Canada has a stockpile of weapons that is has never used and is in the process of destroying them. Baird said the Canadian Forces would issue a directive that would forbid the use of cluster munitions.
In his testimony, Baird said he did not want to see senior Canadian military officers barred from postings to high-profile U.S. positions because of the convention.
Two former chiefs of defence staff — retired generals Rick Hillier and Walt Natynczyk — were each named deputy commander of the U.S. Army's III Corps in Fort Hood, Tex., where the generals helped lead a base of 60,000 personnel — roughly the size of the entire Canadian Forces. Baird suggested those kinds of prestige postings would be jeopardized by a more toughly worded CCM bill.
"I simply think it would be rather presumptuous of Canada to say, 'We are sending one person to work with these other 60,000 people, and here is a long list of things that we want to impose on you,'" Baird testified.
"In our existing military co-operation, obligations in NATO, we have a small number, less than 0.001 per cent of Canadian Forces on secondment or training missions with non-party state convention countries," he added.
Baird said Canada's proposed bill was in line with other allied countries such Australia and the United Kingdom.
But Maresca said: "The Canadian one goes further than some of the other ones in terms of alleviating responsibility for their troops."
Maresca said other parties to the CCM have already raised concerns directly to Canada about the legislation. He said some countries are privately urging Canada to amend the bill to rule out any possible involvement in a cluster bomb operation.
Several organizations urged Canada to toughen its bill to close that loophole on interoperability at the recently completed third intersessional meeting on the Convention to Ban Cluster Munitions in Geneva. This year's conference in April brought together more than 70 countries and international agencies to measure progress on the adoption of the convention.
The ICRC did not name Canada in its formal submissions, but expressed a broad concern about the pending laws that several countries were considering to ratify the convention.
Unlike some countries that dispatched ambassadors or foreign ministers, Canada sent three officials from Foreign Affairs to monitor several days of proceedings. They were not authorized to speak to reporters.
Canada's only formal comment at the meeting came when Julie Croteau, an Ottawa-based Foreign Affairs policy analyst, told the gathering that the "next step in Canada's ratification process" would be second reading of the bill in the House of Commons, "which we are hopeful, will occur this spring."
The bill has since been referred to the Commons foreign affairs committee for further hearings.
Croteau did not address the call for amendments to Canada's bill in her statement.
The Holy See, the sovereign entity of the Catholic Church in Rome, was one of the first states to sign and ratify the convention. Rev. Antoine Abi Ghanem, attache to its Geneva embassy, would not comment directly on Canada, but was well versed in the legal issues of international ratification.
He urged "all governments preparing legislation to stick to the convention" when they ratify it.
"If they will go the other way around, really it will not be so helpful for international humanitarian law," he said in an interview.
"It means that we adopt and then sign conventions and later on when we would like to ratify, we weaken what we signed."
In a public statement at the Geneva meeting, the Cluster Munition Coalition urged Canada, by name, to change its proposed legislation.
"We hope that Canada will amend its deeply flawed bill before enacting it," the coalition's Maria Eugenia Villarreal told a major panel attended by hundreds of delegates.
Steve Goose, the CMC's chair and head of the arms division at Human Rights Watch, said the coalition wants Canada to adopt the same language as the landmines treaty, which allowed for joint operations as long as landmines were not used.
"That hasn't been a problem with landmines. Canada has engaged in a whole lot of operations with the U.S. over time and has never been in trouble."
He said the collation has "no objection to Canadian Forces engaging in combined operations with U.S. forces," it's just that they want cluster munitions to be ruled out.
"Canada's implementing legislation is nothing short of a disaster. It's by far the worst implementing legislation of any country that has signed the convention," Goose said in an interview.
Canada led the world in banning anti-personnel mines with what became known as the Ottawa Process. The coalition of non-governmental agencies that pushed for the landmines ban won the Nobel Peace Prize.
Norway, which is at the forefront of the cluster bomb push, notices Canada's absence.
"We all observe that Canada has over the last years has had different priorities, so there is less emphasis on multilateral work and also on disarmament," said Kongstad.
American political scientist and landmine ban advocate Ken Rutherford said the convention owes a debt of gratitude to Canada because of the groundwork done with the landmines treaty in the 1990s.
"Unfortunately on cluster munitions, Canada abdicated its moral leadership," Rutherford said in an interview. "Everybody was modelling the negotiations based on the Ottawa negotiations."
Rutherford said if Canada doesn't amend its bill, it is better off not ratifying the CCM at all because "the whole purpose is stigmatization.
"If this treaty's going to work, everybody that signs it needs to abide by the integrity of that convention. Otherwise, don't bother signing."
— This story was written with financial support from the R. James Travers Foreign Corresponding Fellowship.Suggest a correction