Omar Khadr deserves some justice
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.