Omar Khadr might be no angel, but Canada still violated his rights

Nobody’s asking you to be happy he’s getting $10.5 million

Kyle Carruthers

I don’t buy into the more extreme narratives that exist regarding Omar Khadr. He is neither an unrepentant bloodthirsty terrorist nor a morally blameless victim. But I do think that Canadians who angrily denounce him at every opportunity need to put his life into some perspective and move on from the demonization that surrounds his case.

The characterization of Khadr as a terrorist who murdered U.S. soldier Christopher Speers (who, contrary to popular mythology, was not acting as a medic at the time of his death) slipped so casually into the discourse in the moral panic following Sept. 11 that we have scarcely taken the time to think about how those words apply to his circumstances.

At the time of his capture, Khadr was on a military battlefield defending a compound against an assault by American armed forces. A point that doesn’t seem to get mentioned nearly enough is how unusual it is in modern western history for a combatant (of any age) to face criminal or criminal-like proceedings for their participation in an armed conflict.

In the normal course, a prisoner of war could be subject to a different set of rules. We typically reserve criminal-like proceedings for actions that are uniquely heinous — like intentionally targeting civilians or committing atrocities.

While I certainly don’t approve of the ideology he was fighting to defend, he was more like an enemy soldier than a terrorist. Even the vast majority of everyday German soldiers — who were fighting to defend the vile Nazi regime — were allowed to carry on with their lives after the end of World War II. They were not charged with “murder” because they might have caused the death of Allied soldiers.

The United States, in the wake of Sept.11, attempted to create the legal fiction that those who fight them militarily on the battlefield are unlawful combatants and not soldiers, and therefore are not entitled to the protections of the Geneva Conventions. These days anyone who fights for a sub-national force in opposition to western forces is blithely dismissed as a terrorist — even in the absence of evidence that he targeted a civilian.

These arguments are morally dubious and widely rejected by legal experts. Yet the discourse surrounding Khadr has seemed to legitimize them. His detractors say Khadr is guilty of murder and his supporters rarely contest that characterization.

Even if we assume that a soldier on a battlefield is “murdered” when killed by opposing forces, there is also the deeply problematic nature of both the process and the evidence that was used to convict Khadr. It is far from clear from the evidence that it was Omar Khadr who threw the grenade that killed Christopher Speers.

His guilty plea — which his detractors use to condemn him — was offered to a kangaroo court, under the threat of life in prison without trial. It is evidence of nothing and I suspect most of us would be wiling to admit to just about anything in those circumstances to see light at the end of the tunnel.

I don’t accept the argument that a mature child can’t be held morally accountable for their actions. But Khadr’s age at the time, his upbringing, and his apparent rehabilitation are certainly relevant considerations. It is remarkable how often his extremist family is raised in condemnation of Khadr as if we are all vicariously guilty for the sins of our parents and siblings.

If anything Khadr’s upbringing is a point of mitigation. Omar Khadr wasn’t some suburban teen who received a western upbringing who rejected the values he was raised with and opted to travel abroad to fight against his country. This is a young man who was raised in a situation where what he did seemed normal and right.

I won’t go so far as to say he didn’t have a choice — although I think that case could be made — but he was certainly put on the wrong path by the most influential people in his life from the beginning. Would I have been excited about the prospect of him returning to Canada in 2003 and let loose in society? No. But in light of his young age at the time, he was a prime candidate for rehabilitation.

If Khadr is guilty, he has already served his time in the worst possible circumstances. He didn’t just spend nearly a decade at Guantanamo Bay, a hellhole unfitting of a western democracy. He spent most of the time wondering if he was ever going to be released after being tortured by of his captors.

As for the settlement itself, in light of the various Supreme Court of Canada decisions finding that the government violated Khadr’s Charter rights, seeking to settle the matter out of court seems prudent. The cost of defending this case would have been astronomical and futile. I am disturbed by calls from some quarters to depart from the usual rational, calculating approach to such litigation by dragging it out and aggressively pursuing a losing defence in order to take one last dig at Khadr on principle. Nothing good would come from that.

I don’t like the idea of Omar Khadr getting $10.5 million and not convinced that such a sum is necessarily justice. But Canada being forced to pay it certainly is. We ought to be punished as a country for participating in the human rights travesty that is Guantanamo Bay. And we ought to remember this expensive and uncomfortable lesson the next time one of our allies proposes to dispense with the Geneva Convention and the rules of war.

And I think it is past time for us as a society to forgive Khadr —distasteful as it may seem — and move on with our lives.

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.

Omar Khadr