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Smoke rises behind houses after shelling in the breakaway Nagorno-Karabakh region's main city of Stepanakert on Oct. 7, 2020, during the ongoing fighting between Armenia and Azerbaijan over the disputed region.ARIS MESSINIS/AFP/Getty Images

The department of Global Affairs has been asked to investigate whether Canadian-made target-acquisition gear is being used in the Azerbaijan-Armenia conflict, and whether this contravenes arms-control law. Critics, however, question whether the ministry can conduct an impartial review.

Such a probe, as announced last week by Foreign Affairs Minister François-Philippe Champagne, amounts in part to a reflection on whether the department has been doing its job properly when it comes to stopping exports that are being used to harm civilians, breach international law or have been diverted from their intended customers.

The investigation will include Ottawa’s decision in May to approve targeting devices for shipment to Turkey, a staunch ally of Azerbaijan, despite an arms embargo against Ankara announced by Canada in late 2019.

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Arms-control advocates argue that there are competing interests inside Global Affairs – export promotion versus export control – and that this undermines the department’s ability to conduct an effective review.

“There is an obvious conflict of interest because they are pursuing two contradictory policy objectives: the selling of weapons and the protection of human rights,” said Cesar Jaramillo, executive director of Project Ploughshares, which is based in Waterloo, Ont.

Peggy Mason, a former Canadian ambassador for disarmament to the United Nations, and now president of the Rideau Institute, a policy and advocacy group, said an independent agency would be better able to handle arms exports

“Essentially they’re being asked to conclude they were wrong,” she said of the investigation. “How likely, really, is that?”

At the heart of Global Affairs' mandate is promoting sales of Canadian goods and services abroad. The department’s annual plan talks of its responsibility to “foster the expansion of Canada’s international trade and commerce.” Separately, the Export Controls Division inside Global Affair has a potentially conflicting duty: to scrutinize exports of restricted goods such as military equipment and to stop these shipments where necessary.

Arms-control advocates point to two past investigations into arms exports conducted by Global Affairs, one that began in 2017 and one that commenced in 2018. Both focused on exports of military goods to Saudi Arabia – one of them on shipments from the $14-billion deal to ship combat vehicles to Riyadh – and both ended by concluding nothing was amiss.

This time, Global Affairs is looking into allegations that targeting systems manufactured by L3Harris Wescam, based in Burlington, Ont., are being used in drones operated on behalf of the Azerbaijani military to attack Armenia in the growing conflict over the disputed territory of Nagorno-Karabakh. Footage of missile strikes by the Azerbaijani military posted on the internet contain a graphical overlay on the video that bears a strong resemblance to the proprietary graphical overlays of systems manufactured by L3Harris Wescam.

Earlier this week Ottawa suspended permits enabling exports by L3Harris Wescam to Turkey, including one from May, 2020, for seven MX-15D target-acquisition devices.

Toronto-based trade lawyer Cyndee Todgham-Cherniak believes Global Affairs is capable of undertaking reviews of export permits and conducting thorough investigations into allegations that arms exports are being misdirected or misused.

She pointed to changes to the Exports and Imports Permits Act – passed into law in late 2018 – which she said toughen rules governing exports of military goods. This includes a “substantial risk” clause that says the Minister of Foreign Affairs would be legally required to refuse an export-permit application in cases where the goods or technology are being used, or diverted to another user, to commit serious violations of international humanitarian or human rights.

In particular, Ms. Todgham-Cherniak said the changes effectively restrict the ability, meaning the discretion, of the Minister of Foreign Affairs to issue a permit, or where applicable, to remove the suspension on an export permit.

“They create a mandatory requirement on the minister to not issue an export permit when goods are going to be used for improper purposes,” Ms. Todgham-Cherniak said.

This means that during an investigation into arms exports, if public servants discover problems with the exports, the end user, how the goods will be used or diversion of the shipments, the “substantial risk” clause makes it harder for the minister to overlook their findings.

“Based on this provision, the bureaucrats … can actually tie the ministers' hands,” Ms. Todgham-Cherniak said.

Mr. Jaramillo said he doesn’t know whether Ottawa will end up reinstating Wescam’s permits. But, he said, if history is any indication, they will.

“The pattern has been that they make these big announcements of investigations when it’s hot in the media and then when it cools down and the dust settles they close their investigation and export permits continue – as has been the case with Saudi Arabia.”

Conservative foreign affairs critic Michael Chong said the government “has failed to provide oversight over Canadian military exports to Turkey” and he called on Ottawa to make public the full investigation.

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