I admit to being conflicted when it comes to the case of Omar Khadr. Among my friends and associates, my doubts appear to make me a minority of one.
They all seem to see the Khadr controversy in shades of black and white. The water cooler talk on Khadr was dominated this week by unequivocal opinion — most of it disapproving of the $10.5M settlement, none of it nuanced.
Some blame the settlement entirely on Justin Trudeau, others on Prime Minister Stephen Harper — who delayed Khadr’s repatriation, which may have contributed to the ultimate cash settlement. The reality is that the Khadr affair has gone on for so long that the file bears the fingerprints of four different prime ministers. If you’re looking for someone to blame, spread it around.
It has been 15 years since that infamous Afghan firefight. Every prime minister since Jean Chrétien has had some involvement in Khadr’s detention and interrogation, his eventual repatriation and compensation. But the interventions of 2003 and 2004 did not occur on Stephen Harper’s watch — nor were they Justin Trudeau’s fault.
“Some blame the settlement on Prime Minister Stephen Harper — who delayed Khadr’s repatriation (over 10 years), which may have contributed to the ultimate cash settlement. The Conservatives’ simplification ignores the fairly obvious distinction between what happened in Afghanistan and what happened in Gitmo. Like it or not, prisoners have rights. Those rights cannot be abused. When they are, there are consequences. And they are costly.”
Most of the claims in Khadr’s $20 million lawsuit are based on allegations that Canadian officials violated his rights when he was interrogated by them in Guantanamo over 2003 and 2004. Khadr alleges Canada interrogated him, knowing that he was a minor, and knowing he was without legal representation.
There’s been much debate over whether Khadr could be called a child soldier or a terrorist. It’s not an easy question to answer; certainly both sides can find arguments to support their positions.
The UN Convention on the Rights of a Child requires signatories to adopt measures so that those “who have not attained the age of 15 years do not take a direct part in hostilities.” It is well known that Khadr was 15 years old fifteen years ago. However, a UN Optional Protocol expands on the convention by requiring that states ensure that youths below the age of 18 “do not take direct part in hostilities and that they are not compulsorily recruited into their armed forces.”
The problem with those conventions is they apply to ‘State Parties’, not terrorist organizations. The sanctions are against the recruiters. It is unclear if the convention offers protection to a child soldier accused of a war crime. They contemplate sanctions against states that compulsorily recruit, as opposed to those that accept voluntary recruits over the age of 15. It is also arguable that a terrorist organization is not an “armed force”, given its lack of command structure and uniforms.
However, following Khadr’s guilty plea in 2010 to murder in violation of the laws of war, the UN Secretary General’s Special Representative for Children and Armed Conflict stated that the case was a “classic child soldier narrative — recruited by unscrupulous groups to undertake actions at the bidding of adults to fight battles they barely understand.” He urged the authorities to release Khadr from Guantanamo Bay into a youth rehabilitation program.
The entire conduct of Khadr’s prosecution and eventual plea arrangement was curious. Sgt. Christopher Speer, the U.S. soldier who died in that firefight, was a decorated soldier and a medic. Medics have always been considered protected persons in war zones since the first Geneva conventions. Killing a medic is considered a war crime.
But that is not how the Pentagon chose to deal with Khadr. He was charged under the ‘Military Commissions Act’, passed by Congress following 9/11; it includes the offence of “murder in the violation of the laws of war.” By prosecuting Khadr under American — rather than international — law, U.S. authorities maintained custody and control over Khadr.
Procedural safeguards implicit in the International Tribunals can be circumvented by the U.S. Military Commission. Any confession extracted from a Guantanamo detainee ought to be regarded with suspicion.
Thousands of U.S. service members have been killed in Iraq and Afghanistan — but Omar Khadr is the only captive to have been charged with killing a soldier under the Military Commissions Act.
Once you know the facts, it’s easy to be conflicted about Omar Khadr — to be unable either to defend his actions or to justify his treatment at the hands of his American captors … and the Canadian government officials tasked with dealing with him.
Which brings us to that $10.5 million out-of-court settlement. I agree with Public Safety Minister Ralph Goodale on one point: A unanimous 2010 Supreme Court ruling that said Khadr’s rights had been violated meant his lawsuit was likely to succeed. But you still have to prove your damages. We seldom see courts in this country award sums like the $134 million won by Speer’s family in a Utah court in a lawsuit filed against Khadr. Canadian courts are reluctant to award much in the way of aggravated or punitive damages.
I also question Goodale’s claim that the government has spent $5 million in legal fees fighting three losing battles against Khadr to the Supreme Court level. The Department of Justice employs a team of salaried civil and constitutional lawyers. The feds may have retained outside counsel as well, but $5 million buys a lot of billable hours.
What really offends me about the entire Khadr saga is how it is being used as a political football. The Conservatives are going to use the settlement to hammer the Liberals in fundraising drives, using such disingenuous comms lines as “those who commit crimes should not be able to profit from those crimes.” That simplification ignores the fairly obvious distinction between what happened in Afghanistan and what happened in Gitmo. Like it or not, prisoners have rights. Those rights cannot be abused. When they are, there are consequences. And they are costly.
It is true, however, that Stephen Harper would have preferred to spend an infinite amount of public money on lawyers to giving Omar Khadr a nickel (ironic, since Harper doesn’t like lawyers either). It might have been the politically prudent thing to do at the time, however.
And that’s why I suspect this settlement was reached when it was. Resigned to the fact that they were going to have to pay Khadr something eventually, and approaching the midway point in their mandate, I’m sure the Liberals thought it best to take a political hit in the dog days of summer, when few people are paying attention and the House of Commons is on summer recess.
This football needed to be punted. The Conservatives are not going to let it go, however. The war against the niqab and the ‘barbaric practices’ snitch line turned out to be dead ends, politically. But neither came with a $10.5 million price tag.