The Case of Omar Kadhr:
Why Canada Should Take Back Its Troubled Child
by Samantha Nutt
When President Barack Obama meets Prime Minister
Stephen Harper on February 19th , he may be
surprised to learn that Canada has changed. Sure,
we still have the iconic loonie on our currency,
the maple leaf on our flag, and the snowmen in
our front yards, but these things belie our newly
hardened, cynical interior. As Obama inspires
millions with his promise of possibility, respect
and unity ("yes we can!"), north of the 49th
parallel has wrested itself into an identity
crisis ("no we can't!").
No, we can't deploy peacekeepers to Darfur, the
world's worst humanitarian crisis, even if we
'invented' the concept. No, we can't reach the
United Nations target of 0.7% of our gross
national wealth as a contribution to overseas
development assistance - we can't even get half
way there - even though that target was set by
lauded former Canadian Prime Minister Lester B.
Pearson forty years ago. And no, we can't
repatriate Omar Khadr, even though we helped
draft and were among the first to ratify the
Optional Protocol on child soldiers.
In fact, the ink was barely dry on Canada's
signature when Omar Khadr was arrested at the age
of fifteen and sent to Guantanamo Bay as an
"enemy combatant" (Geneva Convention
notwithstanding). So no, we can't - nor can
Canadians continue, in any real way, to lay claim
to reason, compassion or diplomacy around the
global power tables because we've simply lost
that moral legitimacy. Which all leads to the
question that the newly inaugurated President
might dare to beg when he steps off Air Force One
in two weeks time, namely, "where am I?".
The years of George W. Bush weren't just
challenging for Americans - they were challenging
for Canadians as well. We weren't entirely sure
how to behave as the years progressed. At first,
we agreed with our friend and closest ally to the
south (on Afghanistan). Then, we disagreed (on
Iraq). And then, we agreed to disagree (on
nuclear nonproliferation, soft wood lumber, Maher
Arar, etc). But now, Canada is knee deep in a
moral quandary that had greater deniability under
George W. In short, the new kid is making us
look bad.
President Obama wants to close Guantanamo Bay.
That, in and of itself, isn't really an issue for
Canadians. What is at issue is that one of our
citizens, Omar Khadr, has been incarcerated there
for the past six years and he will need to go
somewhere. The question is, where? Should he be
transferred to a U.S. federal prison? Should the
military tribunal be allowed to proceed? Or
should Khadr face his accusers in a U.S. court of
law? He is, after all, accused of murdering U.S.
Army Sgt. Christopher Speer during a fierce gun
battle in Afghanistan. Or should our government
ask for Khadr to be sent home, so that we can
sort this mess out ourselves? Canadians are
deeply divided on this issue-
Khadr's plight reads like one of those double
negative, multiple choice questions first year
Biology profs are so fond of: there is a right
answer, but damned if we can find it.
On January 26th, 2009, Prime Minister Stephen
Harper stated that the Canadian government will
wait for the U.S to decide what to do with the
charges against Khadr. He went on to say that
"my understanding of international law is, to be
a child soldier, you have to be in an army" -
creative spin, indeed.
The closest thing to a universally accepted
definition of what constitutes a child soldier is
outlined in the Optional Protocol to the
Convention on the Rights of the Child, and even
that doesn't come with a list of criteria as to
what constitutes a child soldier. Instead it
calls on State Parties to ensure that children
less than eighteen years of age under their
jurisdiction do not become child soldiers. It
also insists that any child exploited as a
soldier in war be provided with "the appropriate
assistance for their physical and psychological
recovery and their social reintegration" (Article
6.3). Not the kind of service GITMO is renowned
for.
Both Canada and the US signed and ratified the
Optional Protocol. This means, like it or not,
"guilty" or not, both countries must recognize
that - as a fifteen year old at the time of his
arrest - the Optional Protocol applies in Khadr's
case.
Second, Prime Minister Harper's claim that Khadr
wasn't a child soldier at the time of his arrest
because "you have to be in an army" is
categorically false. Article 4.1 of the Optional
Protocol confirms that it is illegal for "armed
groups that are distinct from the armed forces of
a State" to "recruit or use in hostilities
persons under the age of eighteen years". The
vast majority of child soldiers worldwide are
used by non-state actors (rebel militias,
irregular forces, etc) who look nothing like an
"army". So, whether Khadr was wearing an
identifiable military uniform or not, and whether
he was officially part of any recognizable army,
are irrelevant in this case: he was a fifteen
year old actively used in armed combat.
So where does this leave us? Omar Khadr is a
Canadian citizen and a child soldier whose rights
have been summarily denied, despite international
law. When our respective Heads of State meet in
two weeks' time, it is incumbent upon Prime
Minister Harper to make the decision much easier
for the newly minted American President: give
Canada back its problem child. And if the
Canadian government isn't sure how to sort
through a responsible judicial and rehabilitative
process for this troubled young man, there are
many Canadian aid agencies with expertise in this
area who've worked with child soldiers all around
the world and who'd be more than happy to help
sort it out. Otherwise, President Obama would be
right to ask, as a follow-up to his first
question, "Oh, CanadaŠwhat do you stand on guard
for again?"
Dr Samantha Nutt is a medical doctor, and the
Founder and Executive Director of War Child Canada
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