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.

Some of these Canadians are not like the others. Left to right: Brenda Martin, James Loney, Omar Khadr, Maher Arar, Suaad Hagi Mohamud.

In November 2005, I travelled to Iraq in violation of a Foreign Affairs travel advisory. It was my third trip. Four members of an international delegation, including myself, were kidnapped and held by Iraqi insurgents for four months. One member of our group, an American named Tom Fox, was killed two weeks before we were released.

We knew the risks. The organization I belong to, Christian Peacemaker Teams, routinely sends people into dangerous no-go zones. It’s what we do: train international teams in the disciplines of non-violent, direct action to work with grassroots communities affected by violence.

Our work in Iraq included drawing attention to and documenting the arbitrary detention and torture of Iraqis, and supporting and training a Muslim Peacemaker Team. In the event of a kidnapping, CPT policy is very clear: no ransom will be paid and we will not accept or resort to using any kind of physical force to save our lives.

Thus, I expected nothing of the Canadian government when we were kidnapped. If we were released it would be through the non-violent efforts of CPT. If we were tortured or killed it would be our sharing in the terrible cost soldiers are routinely asked to pay in the course of serving their country.

I was astonished, then, to discover upon our release—a military rescue led by British special forces—that a team sent to Baghdad by the federal government had been working around the clock to secure our release, and Foreign Affairs and the RCMP had been in constant communication with my partner and family. The Canadian Forces sent a Hercules aircraft to fly me and my colleague Harmeet Singh Sooden out of Baghdad. Prime Minister Stephen Harper called to wish us well.

I couldn’t believe it. They came for me! Me, of all Canadians—an anarchist, a conscientious objector who had deliberately earned below the taxable income and not filed an income tax return for 10 years to avoid filling the military’s coffers. A government I would never vote for and completely disagreed with reached beyond politics to claim me.

Brenda Martin is another Canadian who knows what it’s like to be claimed. She was arrested in Mexico in 2006 and charged with participating in laundering and criminal conspiracy related to an online investment scam. She was found guilty on April 22, 2008, and sentenced to five years in jail. The Canadian government paid her $3,700 fine and flew her home in a chartered plane on May 1, at a cost of $82,727.

I am glad Brenda Martin was eventually helped by the federal government, just as I’m eternally grateful for the assistance provided to me and my family. But there’s a long list of Canadians in trouble abroad whom the Canadian government has either abandoned, ignored, or simply not seen.

There’s Omar Khadr, now 23, detained and tortured in Guantanamo from the age of 15, interrogated by CSIS, the only Western citizen who has not been repatriated. The government is appealing a court order requiring him to be brought home. There’s Abousfian Abdelrazik, detained and tortured by Sudan at Canada’s request, also interrogated by CSIS, and subjected to a six-year exile until a court order forced the government to let him come home. There’s Suaad Hagi Mohamud, stranded in Kenya for three months after immigration offi cials rejected her Canadian passport because her lips were “too thick.”

There’s Abdihakim Mohamed, a 25-year-old man with autism languishing in Kenya for the past three years because the government says he doesn’t match his passport photo. There’s Sacha Bond, a 24-year-old man with bipolar disorder, convicted of attempted murder in the United States for brandishing a weapon while off his meds and drunk. He was 19 at the time of the incident and no one was injured. And then, of course, there’s Maher Arar, Abdullah Almalki, Ahmed Abou El Maati and Muayyed Nureddin, all falsely labelled by CSIS and subsequently detained, interrogated, and tortured in Syria (in one case Egypt), with Canada supplying the questions.

They are part of an even longer list of Canadians in need of assistance. Who gets help and who doesn’t is a matter of “Crown prerogative.” That’s a fancy way of saying if the government likes you, if they see you as an upstanding citizen or a worthy innocent, they’ll go to bat for you. But if you have thick lips or dark skin, if you have a funny last name or you’re mentally ill, if you were born in a country with a bad reputation or if you yourself have a bad reputation, sorry, you’re out of luck. Some Canadian citizens count, it seems, and some don’t. Brenda and I must be among those who count.

My experience as a hostage has profoundly changed my thinking about the nature of government and citizenship. Governments matter immensely. What they do and don’t do, who they see or choose not to see, is of the greatest consequence—literally a matter of life and death. Governments at their best are powerful and essential vehicles of social solidarity. They exist to advance the common good, safeguard the environment, care for the sick and the elderly, nurture and educate the young—in sum, to serve and protect their citizens.

A citizen is a citizen, by definition an equal, subject of an inviolable covenant, entitled to the protection of the government. The integrity of citizenship is tested by its universality, and the test of its universality is in how well the least and most marginalized among us are protected.

It’s time that we reclaimed citizenship from the back rooms of Crown prerogative with legislation that obliges the government to offer consular assistance to every Canadian in trouble abroad.

The government needs be proactive and vigorously safeguard the rights of every Canadian, whoever and wherever they are. The lives of Khadr, Bond, Mohamed, and many more depend on it.

And, given that 4 million Canadians travel abroad each year, your life could well depend on it too.