*Joseph McQuade [2013] is a Gates Cambridge Scholar doing a PhD in History on the transformation of laws of sedition into laws of 'terror' in both international and British imperial law from the beginning of the First World War until the end of the 1930s and the origins of terrorism as a legal category and a global idea. Picture credit: Wikipedia.
The decision of Prime Minister Justin Trudeau's Liberal government to offer an apology and financial compensation to Omar Khadr, a Canadian citizen held for more than a decade by the US for his connection to al Qaeda, has triggered a highly polarised debate within Canada regarding the justice or wisdom underlying this settlement.
Much of the debate surrounding this decision has centred on the apparently exorbitant fee of $10.5 million that will be paid out to Khadr. This is understandable. Many Canadians (as many as 71%, according to one survey) are unhappy at the idea that such a significant amount of taxpayer money is being paid out to someone widely labelled as a 'convicted terrorist'. However, to characterise this payment as some sort of gift or capitulation awarded personally by the Trudeau government to an enemy of the state is to grossly mischaracterise the facts and the legal standing of this case.
Omar Khadr, according to the definitions set out by international law, was a child soldier at the time of his initial detention at the age of 15.
Under international law, forcibly or 'voluntarily' recruiting child soldiers is a war crime and the victims of this crime - the children deployed as combatants - are entitled to clearly defined rights
When Khadr was first detained by the US, American officials were legally obligated to provide rehabilitation, as well as resources for psychological recovery and social reintegration. Instead, despite being badly wounded at the time, Khadr was allegedly threatened with rape, painfully shackled, sleep-deprived and threatened with deportation to Syria, Jordan or Egypt for more extended torture. When Khadr accidentally urinated on the floor of his interrogation room, he was allegedly used as a human mop.
The Canadian government, despite being aware of Khadr's mistreatment and of America's failure to protect his rights as a child soldier and a Canadian citizen, allowed him to rot in Guantanamo Bay for over a decade.
Retracted confession
The death of Sergeant Christopher Speers during the firefight in which Khadr was captured and several al Qaeda operatives were killed was an appalling tragedy. But it has become an emotional barrier to many Canadians viewing the Khadr settlement in a rational way.
First of all, the fact that Khadr's confession to throwing the grenade that killed Speers was extracted under duress and has since been recanted raises serious questions regarding its validity. But even taking this confession at face value, the fact remains that the settlement made by Ottawa has nothing to do with what Khadr did or did not do while acting as a child soldier and has everything to do with whether the Canadian government did or did not protect Khadr's charter rights as a Canadian citizen.
The overwhelming weight of legal opinion, including the Supreme Court of Canada and monitoring groups such as Human Rights Watch, is that Canada violated the charter rights of one of its citizens. Based on legal precedent such as the case of Maher Arar, another Canadian citizen who was ultimately awarded a $10 million settlement by the previous Conservative government following his illegal detention, this entitles Khadr to sue the Canadian government for damages. For those intent on blaming the current government for the settlement with Khadr, it is worth noting that both the refusal to recognise Khadr's charter rights and the amount that was, quite rightly, paid out to Arar were likely two of the key factors that influenced the $10.5 million sum that was ultimately decided upon. Both of these earlier decisions occurred under the previous Conservative government of Stephen Harper.
A debt, not a gift
Those who are understandably angry at the way that their tax dollars are being spent should direct their anger more productively by recognising that the $10.5 million is not a gift being given to a terrorist, but rather a debt that we are collectively being asked to pay as a result of our government's failure to protect the rights of a fellow citizen.
Had the government continued fighting Khadr in court, the most likely result would have been further taxpayer expenditure in legal fees (the total to date is around $5 million) and a larger settlement, perhaps even the full $20 million demanded by Khadr's lawyers. More importantly, the settlement and the apology that came with it help to show the world that Canada is prepared to uphold the rights of its citizens and live up to its obligations to child soldiers under international law.
If Khadr had been given due process and was convicted in a fair trial of killing Sergeant Speers, then by all means he should have faced consequences, although his status as a child soldier would still have meant that these consequences should have been rehabilitative rather than punitive.
By instead violating the rights of one of its citizens, the Canadian government (both Liberal and Conservative) set itself up for a future lawsuit. Now that this lawsuit has been settled, the most productive thing that we can do is to move on and to work towards ensuring that a scenario such as this one, horrible on every level, never happens again.