Small Favours

Big questions at root of Khadr issue

With Barack Obama set to come into office in one week, one should be less than shocked that leaders around the world -- including in Canada -- are lining up to do him favours.

Case in point: with Omar Khadr's trial in the United States slated to begin on January 26, Liberal Senator Romeo Dallaire is eager to see Canada take Khadr off of the new President's hands. In fact, Dallaire insists, it would be doing Obama a favour.

"If we take Omar Khadr back, we take one of his problems away. We alleviate a situation for him where he doesn't have to look at a case of a Canadian child soldier being prosecuted in a process that is considered to be inappropriate, if even legal in international law," Dallaire announced. "So I think the opportunity is there to assist the new president in moving down the road of human rights and applying the international conventions like the Geneva convention."

Feeling that he's exhausted his options within the Canadian political system to bring Khadr back to Canada, Dallaire has taken his show on the road to Washington, DC, where he directly lobbied the American government to deport Khadr.

For his own part, Michael Byers seems to believe that Obama is eager to be rid of Khadr, but that political interference north of the border is preventing it.

"The Obama team may be discovering that the reluctance on the part of certain allies to take Guantanamo detainees is actually causing some delay in their plans," Byers noted. "Obviously, one of those allies who could and should be helping the Obama team is Canada, in terms of requesting and accepting the repatriation of Omar Khadr."

But while Dallaire insists that judicial proceedings are inappropriate against Khadr -- who he quite accurately describes as a child soldier -- Byers quite properly notes that Khadr should undergo a psychological evaluation upon his return to Canada. The question to be decided by that evaulation, according to Byers, is whether or not judicial proceedings are appropriate.

But whether Dallaire likes it or not -- and the reasons why he doesn't like it are understandable, valid and even commendable -- this is an important question to answer. And whether or not Byers likes it -- and his reasons for not liking it would be perfectly valid as well -- there remains a possibility that the United States would prefer that this question be answered in one of their courts.

The question could turn out to be pivotal in the war on terror: whether individuals such as Khadr should be treated as child soldiers, criminals, or as prisoners of war.

The implications of each are fairly obvious. If Khadr is treated as a child soldier, the proper course of action is to keep Khadr in custody while giving him psychiatric care and counselling. If Khadr is treated as a terrorist, he will fall into a very nebulous area of international and criminal law. Whether terrorism suspects should be treated as criminals or prisoners of war has never been absolutely clear because it has never been clear if terrorism is better treated as a crime or as an act of war.

At stake could be the issue of whether or not individuals like Khadr could, in future, be treated as assets in future terrorism investigations and how far investigators -- be they law enforcement or military intelligence officials -- can go in regards to interrogation.

It also has obvious implications for the kinds of rights that individuals such as Khadr would have under each circumstance. As child soldiers, individuals such as Khadr have the right to treatment and, eventually, freedom. As criminals, they would have the right to a speedy trial. As prisoners of war they would enjoy the full protections of the Geneva Convention.

What is absolutely clear is that the legal definition of "enemy combatants" will no longer cut it. While those in favour of prosecuting the war on terror under the most vigilant pretences certainly loathe to admit it, the detention of such individuals in full denial of any rights whatsoever is as contrary to international law as it gets.

Even Obama himself -- with his own keen interest in the war on terror -- may prefer that the answer to this question be decided in American, rather than Canadian, courts.

If Canada accepting Khadr is a favour to Obama, it's certainly a small one. Considering some of the larger questions at play in the matter, it may also be a favour too small for Obama to accept.




Other bloggers writing on this topic:

Mike Oldham - "Omar Khadr"

The City Gal - "Senator Romeo Dallaire on Khadr"

Archiblog - "Obama's Flip Flop and Child Soldiers