Khadr de­served some jus­tice

Cana­dian suf­fered eight years of il­le­gal de­ten­tion, tor­ture

The Hamilton Spectator - - COMMENT - AZEEZAH KANJI Azeezah Kanji is a le­gal an­a­lyst based in Toronto. Her com­men­tary ap­pears in Torstar news­pa­pers.

The news that Omar Khadr is re­ceiv­ing an apol­ogy and set­tle­ment from Canada has evoked pre­dictable ou­trage, par­tic­u­larly from Con­ser­va­tive quar­ters. Khadr has been widely con­demned as a “con­fessed ter­ror­ist,” and the set­tle­ment called “dis­gust­ing” (An­drew Scheer), “rep­re­hen­si­ble” (for­mer Stephen Harper ad­viser Jenni Byrne), “ab­so­lutely wrong” (Tony Cle­ment), “of­fen­sive” (a Cana­dian Tax­pay­ers Fed­er­a­tion pe­ti­tion with more than 50,000 sig­na­tures), and “odi­ous” ( Ja­son Ken­ney).

There are many things in Omar Khadr’s story that merit de­nun­ci­a­tion, but the fact that he has fi­nally re­ceived some jus­tice is not one of them.

It is “dis­gust­ing” that the “con­fes­sion” crit­ics re­fer to was ex­tracted af­ter eight years of il­le­gal de­ten­tion and tor­ture, start­ing when Khadr was 15 years old.

In­stead of be­ing re­ha­bil­i­tated af­ter cap­ture — as pre­scribed by in­ter­na­tional law on child sol­diers — he was kept in pro­longed soli­tary con­fine­ment, ex­posed to ex­treme cold and con­stant light, de­prived of sleep, threat­ened with rape, shack­led for hours in painful po­si­tions, and used as a hu­man mop to clean the floor af­ter be­ing forced to uri­nate on him­self.

It is “rep­re­hen­si­ble” that the U.S. im­pris­oned Khadr and more than 700 other men at Guan­tanamo Bay, in a mil­i­tary camp built to lie out­side the pro­tec­tions of both do­mes­tic and in­ter­na­tional law.

De­tainees at Guan­tanamo were kept in what one Bri­tish House of Lords judge called a “le­gal black hole:” a place where they could be held for years with­out charge and with­out ac­cess to lawyers (Khadr was de­prived of le­gal coun­sel for more than two years); where they could be sub­jected to se­cret tor­ture and se­cre­tive tri­als, in mil­i­tary com­mis­sions where the usual rules of jus­tice didn’t ap­ply (the pros­e­cu­tion could use “ev­i­dence” ob­tained through tor­ture, for ex­am­ple); and where the U.S. claimed the author­ity to de­tain cap­tives in­def­i­nitely, even if they were legally ac­quit­ted.

This was a “heads I win, tails you lose” setup “de­signed not to pro­duce jus­tice, but to se­cure con­vic­tions,” wrote Univer­sity of Toronto law pro­fes­sor Au­drey Mack­lin.

It is “ab­so­lutely wrong” that the U.S. rewrote the laws of war at Guan­tanamo to retroac­tively crim­i­nal­ize its en­e­mies: a laws of war of in­ter­na­tional law, which for­bids pros­e­cut­ing peo­ple for crim­i­nal of­fences in­vented af­ter the fact. Khadr was charged as a war crim­i­nal for al­legedly killing Amer­i­can sol­dier Christo­pher Speer — but killing an en­emy sol­dier in com­bat is not a war crime. Un­der the in­ter­na­tional laws of armed con­flict, sol­diers can be killed be­cause they are al­lowed to kill.

“The govern­ment as­serts U.S. com­bat­ants had the right to shoot Khadr on sight (he was shot twice in the back … yet crim­i­nally pros­e­cute him for fight­ing back,” ob­served pro­fes­sor of in­ter­na­tional law and for­mer U.S. navy of­fi­cer David Glazier. “This ap­proach … at­tempts to trans­form the law from one even-hand­edly reg­u­lat­ing the con­duct of both par­ties into a uni­lat­eral shield for one side.”

Khadr was ac­corded all the vul­ner­a­bil­i­ties of be­ing a sol­dier, but none of the priv­i­leges. As se­nior of­fi­cials in the Obama administration pointed out at the time, if Omar Khadr could be con­victed of war crimes for “mur­der­ing” Sgt. Speer, then so could the CIA for its drone op­er­a­tions in coun­tries such as Pak­istan. But this was vic­tor’s jus­tice, meted out only against the van­quished.

It is “of­fen­sive” that Cana­dian of­fi­cials knew Khadr had been tor­tured in Guan­tanamo, and in­stead of help­ing him, took ad­van­tage of the sit­u­a­tion to in­ter­ro­gate him mul­ti­ple times.

Canada’s com­pen­sa­tion to Khadr is not an act of largesse; the Supreme Court of Canada has re­peat­edly found that Canada vi­o­lated Khadr’s rights, and the UN Con­ven­tion Against Tor­ture obliges states to pro­vide rec­om­pense to vic­tims of abuse. (The con­ven­tion also re­quires states to pros­e­cute of­fi­cials com­plicit in tor­ture, which Canada has so far failed to do.)

And it is “odi­ous” that some ide­o­logues are now us­ing Khadr’s co­erced con­fes­sion to fab­ri­cate crimes in a sham le­gal process to in­sist he should have no re­dress for the se­vere crimes com­mit­ted against him. This is not the logic of in­ter­na­tional jus­tice, which gives pro­tec­tion to all, re­gard­less of iden­tity, but the logic of mob vengeance, which de­nies some their most ba­sic rights by brand­ing them “en­e­mies” or “ter­ror­ists.”

Those de­ter­mined to see Omar Khadr as an un­de­serv­ing “ter­ror­ist” can’t pre­tend to be cham­pi­oning any­thing no­ble; the only thing they are de­fend­ing is the power to use vi­o­lence with­out con­straint, and com­mit abuses with­out con­se­quence.

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