Child soldier? War Criminal? Both? Omar Khadr

Omar Khadr’s trial may be over, but his ordeal is not. Here are some of the crazier details about the affair, now that Khadr’s sentencing is complete:

1. The facts remain unclear: The prosecution argued that since he was the only Al Qaeda fighter still alive at the end of the fight, it must have been him who threw the grenade that killed an American soldier. But another U.S. soldier who was present at the battle testified under oath that there were two fighters alive at the end of the fight.
2. The case is likely to affect child soldiers worldwide: The UN Special Representative for Children and Armed Conflict sent out a statement denouncing the trial, arguing that the prosecution was completely inappropriate since Khadr was a child soldier at the time of the battle. The statement said that charging Omar Khadr for war crimes would set a precedent that would endanger the status of child soldiers all over the world. Khadr is one of at least 12 (and as many as 21) people under the age of 18 who were held at Guantanamo Bay.
3. The jury’s sentence is purely symbolic: The plea agreement (which the jury was not told about) was for 8 years, the prosecutor asked the jury for 25 years, and the jury came back with 40 years.
4. Khadr’s living conditions are going to get worse before they get better: Now that he has pleaded guilty he will spent the next year in solitary confinement. As a compliant, non-violent prisoner at Guantanamo Bay he had for the past few years been kept in a communal, more open section of the prison. Khadr will probably not serve the full eight years, and after one year in US custody, his lawyers will seek to bring him back to Canada to serve the rest of his sentence. The Canadian government has told the American State Department that if Khadr requests to serve the remainder of his sentence in Canada that they would “favourably consider his application to be transferred.”
5. A book deal won’t save him: The plea agreements include small print which seek to prevent Khadr from benefiting financially from his ordeal. Profits from any book or film deal will be re-directed to—and how’s this for adding insult to injury?—the government of Canada.

The Charter represents the cornerstone of Canadian civil society: it proscribes the democratic, legal, equality and language rights that, together, make up the freedoms we enjoy.  It is the bill of rights that guarantees all of the civil and political rights that make Canadian society the open, free and generally tolerant place (the G20 aside) that it is.

The rights enshrined in the Charter–the right to “life, liberty and security of the person,” among others—are key to Canada’s national self-image, and so you would assume that they would amount to more then a mere trifling concern.  Yet the federal government’s failure to repatriate Omar Khadr is reinforcing a lesson hard learned by many Canadians during the G20: our government is entirely capable, and far too willing, to ride roughshod over our rights. And what’s even scarier is the public’s non-reaction to Khadr’s case, which proves just how complacent many Canadians will be while their rights are stripped.

And it is in this respect that the Charter and the rights it enshrines have been forgotten by many within Canadian society–and if not fully forgotten, then perhaps forcefully consigned a safe distance behind a barricade of riot police as our government elevates fear-mongering and ‘security’ over liberty and legality.

Despite numerous rulings from Canada’s courts, including a recent ultimatum from the Supreme Court demanding our government act to protect his rights during the trial or repatriate him for trial in Canada, Toronto-born Khadr is the last remaining Western citizen held at Guantanamo Bay.  While all other nations have repatriated their detainees—including England, France and most recently Yemen—Canada remains the holdout.

At question here is not Khadr’s innocence or guilt.  Even if we presume the worst of Khadr—that he is indeed guilty of throwing the hand grenade that fatally wounded American medic Christopher Speer in 2002, that he did so unprovoked, willingly and, at the tender age of 15, with complete awareness of his actions and that he is an unrepentant jihadist—his treatment since his arrest would make even those responsible for the Patriot Act blush.

Here are the facts. Khadr has been held for eight years without trial: so much for section 8, 9, 10 and 11 of of the Charter guaranteeing a presumption of innocence until proven guilty, a “fair and public hearing by an independent and impartial tribunal” in a “reasonable time.”  A pretrial hearing revealed that his initial questioning at Afghanistan’s Bagram prison occurred while he was shackled to a stretcher following his hospitalization for severe wounds suffered during the fighting and was sedated for pain.  His first interrogator, identified in a fittingly Orwellian manner only as “Interrogator One,” was later convicted of detainee abuse in a separate case; he threatened Khadr with gang-rape and death to coerce the 15-year-old suspect into talking.  For parts of his interrogation he was hooded and handcuffed with his arms restricted painfully above his shoulders, and he was systematically deprived of sleep before cycles of interrogation. This conduct clearly violates the Charter’s section 12 prohibition on cruel and unusual treatment or punishment.

Khadr’s case represents the first time a Western country will try someone for war crimes allegedly committed as a child since the Second World War, an act that has earned condemnation from the United Nations, Amnesty International, and many others.

The most recent court verdict placed the onus on the Federal Government to protect Khadr’s rights and bring him home; Ottawa, predictably, appealed the verdict knowing full well that with Khadr’s impeding trial set to begin next month they’ve dodged any legal responsibility to act.

So–what are we left with?  Well, for one, we’re left with Omar Khadr facing the grim prospect of a military tribunal in the United States with zero support or interest from Ottawa. But more pertinently we’re left with a government who has shown their true nature yet again—they prorogued Parliament when it raised unappealing questions on the Afghan detainee issue, they quashed civil liberties when people took to the streets to demand change, and they rebuffed the Supreme Court and the international community in what is set to be the first case in modern history of a child soldier standing trial.

All these events add up to a gradual erosion of our civil liberties and constitutional rights, and the blithe indifference of so many Canadians is ominous.

Written from Agu’s perspective, the boy speaks a kind of pidgin, free-association English, saying things like: “We are at the camp and I am watching how the sun is just dropping down behind the hill like it is not wanting to be seeing us anymore. All the color is leaking out of it and looking like flame from hell all over, eating up the top of all the tree, making all the leaf bright, bright.” Agu finds himself forced to join a rebel force in the midst of a civil war in an unnamed West African nation. Agu is therefore a composite of all the region’s young fighters.

With his own words, Agu describes the terrible things he does to innocent and unsuspecting villagers as well as to members of his own regiment. And yet, despite all this, the story offers hope of rehabilitation – both literally and figuratively. Just as the mind can be broken and transformed into something ugly and cruel, it can with patience be reformed into its former shape—into something recognizably human.