Epic injustice for child soldier
ROGER FITCH ESQ • TUESDAY, OCTOBER 2, 2012
After 10 years at Guantánamo Omar Khadr is transferred to prison in Canada ... Convicted of a war crime for lawful actions against an opposing uniformed soldier in a war ... Perversion of the law of war ... Roger Fitch reports from Washington
Omar Khadr: then and now
THE Guantánamo prisoner Omar Khadr has been repatriated to Canada, after more than 10 years of patently unlawful American detention. Here's a chronology of his life.
After a year of stonewalling, the Canadian government has agreed to the return of a citizen who is apparently the first person convicted in a military trial for simply killing an enemy combatant - an act that has always been regarded as lawful in war (see post of November 2010).
Omar Khadr's offences seem as much political as military.
In 2002, a child of 15, he found himself, at his father's direction, in an Afghan house that exchanged fire with US soldiers. He had little choice but to defend himself, but an American died.
That a Canadian should actively resist American soldiers offended both governments: he must be punished, and so he was sent to Guantánamo.
All "terror" detentions at Guantánamo have been unlawful, one way or another.
No prisoner has been provided the independent prisoner of war determination required by both the Geneva Conventions and the US Uniform Code of Military Justice.
All have been detained and/or treated in ways that violate multiple international treaties. Omar Khadr's case is one of injustice on an epic scale.
It's hard to know where to start.
First, he was a 15 year old boy caught in a war on his father's initiative. Both Canada and the US seem to have forgotten they are signatories to the "Child Soldier Protocol" that provides that children engaged in war should be regarded as victims whose rehabilitation is paramount.
While much has been made of Omar's purported status as a child soldier and the procedural unfairness of his military commission, what seems to have passed without notice is that he may be the first person ever convicted of a "war crime" for the classic act of war - killing an opposing uniformed soldier.
Khadr had a legal right to resist US attack in a war zone.
Not only did he have a right to self-defence, but, even if he was no more than a civilian who had taken up arms, he was perfectly entitled to shoot at soldiers (including a CIA operative unlawfully involved in the attack on Khadr's compound), so long as no treachery or illegal weapon was involved.
A grenade, which Khadr may or may not have thrown, is not illegal under the Law of Armed Conflict.
Did Khadr even throw the grenade that killed the US special forces soldier?
The initial US military reports said that another defender who was shot in the battle had thrown the grenade. But he was killed in the attack, and the report was changed to implicateKhadr, the only survivor.
In fact, the American soldiers may have committed war crimes in capturing Omar Khadr. He was shot twice in the back while badly injured, possibly unconscious, and hors de combat.
It's true that US medical care saved Khadr's life, setting him up for the first-in-history "murder" charges he later faced.
Those charges relied almost entirely on Khadr's "confessions", including the one he gave up under interrogation while lying gravely wounded on a stretcher.
Eventually Omar was taken to Guantánamo where, unlike other juveniles, he was given no special treatment or educational assistance, and held in brutal conditions no different from those of the oldest and most hardened terrorists, often in solitary confinement.
* * *
AT Guantánamo, Omar was questioned by Canadian security officials and the information was shared with the US, a practice stopped by the Canadian courts.
Canada's Supreme Court strongly criticised the refusal of the government to intervene inKhadr's behalf, in violation of that country's Charter of Rights, but stopped short of ordering his repatriation, as a lower court had done.
Khadr was first charged in one of George Bush's executive military commissions but that system was thrown out by the US Supreme Court.
A new military commission was brought against Khadr under the statutory scheme introduced by the Military Commissions Act 2006, and he was charged with five "war crimes" variously unknown to the law of war (e.g. murder) or inapplicable to Khadr (spying).
As soon as the military judge departed from (Pentagon) script - by ruling favourably on a number of Khadr's motions - he was summarily removed, retired and replaced.
A more amenable Pentagon judge later ruled that all of Khadr's "confessions", even those made while wounded, would be admitted.
Assuming Omar's actions were actually war crimes, these "confessions" would have been enough to convict him.
His lawyers, like those of David Hicks, were forced to accept a deal involving a guilty plea for invalid crimes.
In pleading guilty, Omar Khadr was obliged to provide from his own mouth all the jurisdictional requirements necessary to sustain such a plea - had the charges themselves been valid.
Part of the plea involved a diplomatic note from the Canadian government stating that it would be inclined to favourably review a transfer of Omar to a Canadian prison after he had spent one further year at Guantánamo.
In fact, after that year, the Canadian government obstructed transfer for another year, so that it was not completed until September 28, 2012.
Khadr returns to Canada where over 60 percent of the citizens believe he is a depraved terrorist, incapable of rehabilitation and dangerous to Canadian society, a man unentitled to return to his own country.
Perversely, he's now a danger because he was "radicalised" by his mistreatment.
It's a sad victory for Omar Khadr.
Soon, however, he should be free, notwithstanding the six years of "sentence" he still faces in Canada.
Next year he will be entitled to parole. Should the matter be tested judicially, Canadian courts are unlikely to uphold convictions based on offences unknown to international or Canadian law.
Khadr could even receive an apology and compensation from the Canadian government.
After it allowed the US to render another citizen to Syria for torture, Canada had a formal inquiry, apologised to Maher Arar and paid him over $10 million.
Omar Khadr deserves no less.
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