With the news that the Omar Khadr legal settlement has been enforced the Conservatives and their supporters have worked themselves into quite a lather.
Naturally, they are blaming Prime Minister Trudeau for this but they seem to forget that Mr. Trudeau really did not have any other option. To let the case go to trial would have been most irresponsible on many levels. If Mr. Harper would have won the last election it would have been his government that would have had to reach and implement a settlement. I am certain that the Conservatives not mentioning this fact is just an oversight and that they are not trying to spin this situation in the worst possible way in order to attempt to take political advantage.
Taking the politics out of the situation we need to look at why a legal settlement was needed to begin with. Generally speaking when the defence in a civil legal process decides to settle it usually means that they do not believe that they can win if the case goes to trial. The settlement is a way to mitigate any damage of a loss by limiting any payout and there is usually a stipulation in any settlement agreement that they are not admitting to any wrong doing.
So why would the Candian government need to agree to a settlement?
Omar Khadr is accused of killing an American soldier when he was 15 years old. When he was captured the Americans incarcerated him in their prison in Guantanamo Bay.
After many years they finally released him, he returned to Canada and he proceeded to sue the government of Canada. Did he have a case?
Well, there are several UN resolutions and other international protocols, of which Canada is a signatory, which states that child soldiers generally get involved with wars as a result of brainwashing, drugs given to them by those who would have them fight or straight up coersion. As a result, these same international agreements indicate that in most cases child soldiers are not to be held responsible for the action they are forced to take. Instead they are to be rescued from their situation and measures are to be taken to rehabilitate them and reintegrate these children back into the respective societies. Of course this did not happen.
None of the international agreements on child soldiers are treaties or international laws. They are really just statements of good intent. So, if Canada did not want to follow them in this case they could have made a good argument as to why.
However, that would leave them with two other options. Treat the 15 year old Mr. Khadr as a regular soldier or treat him as a terrorist, which means treat him as a criminal.
For both choices Canada would have been compelled to treat Mr. Khadr much differently than he was actually treated.
If Mr. Khadr was treated as a soldier then, after his capture, he would have had the right of the protection of the Geneva Conventions. This is a treaty on how countries are to conduct war, including the treatment of prisoners of war and Canada is a signatory to that treaty. It is stated in the Conventions that the torture of prisoners of war is forbidded. Mr. Khadr was sent to Guantanamo Bay where he was tortured. Mr. Khadr is a Canadian citizen, by birth, so when the Canadian government found out the US Army was torturing Mr. Khadr they were legally required to protest to the US government and begin a process to have Mr. Khadr removed from the situation where he was being tortured. Instead, the Canadian security agencies actually sought to benefit from his torture.
If Mr. Khadr would have been treated like a criminal then he should have been sen to the United States or he should have been repatriated to Canada and forced to face the criminal justice systems in either country, which amongst other things, includes the presumption of innocence until proven guilty in a court of law.
Considering all of that Mr. Khadr's lawyers probably believed that they had a strong case that the Canadian government violated international and domestic laws. Shamefully, they may be right.
Many argue that Mr. Khadr was a terrorist and terrorists should not enjoy the same rights as the rest of us. The problem I have with that argument, and that I have always had with that argument, is that if you allow governments to deny basic human and legal rights for some where do you draw the line? Not everybody has the same definition of terrorist so the line becomes rather fuzzy. As an illustrative aside I was looking at an American news aggregation site a few days ago and there was story in their that some elements of the Trump Administration would like to define some environmental advocacy groups in the US as terrorist organizations.
In general I find the reaction to terrorism to be an over reaction.
For over 40 years the West was threatened by the Soviet Union and its vassal states. They had millions of men under arms, sitting on the border of Western Europe, and they had thousands of nuclear weapons pointed at us. The Soviet Union was a politically powerful state and it and its Communist ideals were an existential threat to our way of life. What was our reaction? We strengthed our democracies. We made our democratic institutions more robust. Any politician who would have suggested otherwise would have been lynched (politically speaking of course).
Some of the more liberal estimates of the number of terrorists out there is 100,000, if you are only counting the Muslim terrorists. That is 100,000 out of over a billion. They have no major government that supports them, they have no heavy weapons and they can barely move from their places of origin. Crucially, they have absolutely no political power. Indeed that is why the resort to terrorism to begin with. They are not an existential threat to our way of life. They can kill a few of us but they cannot bring down our democratic institutions or our society.
What is our reaction to them?
A large portion of the populations of the western democracy have collectively and figuratively wet their pants and they are demanding actions from their governments to protect them. Governments, which in the history of civilization have never given up an opportunity to grab more power for themselves, have been happy to oblige with increasingly draconian laws which erode our basic and legal rights.
It is ironic that the Soviet Union could not convince us to give up our rights and freedoms despite 40+ plus years of effort to do so. However, the actions of a relative handful of religious extremists, in less than half of that time, have some parts of our society demanding that the government take those rights and freedoms away from us because they see terrorists under their pillow.
Fortunately, our democratic institutions are much stronger than that and the Omar Khadr settlement has managed to demonstrate that nicely.
One final note, I read today that the family of the soldier that was said to be killed by Omar Khadr is looking at going after some of the money that he won in his settlement. That is interesting. The only way they will be able to do that would be to launch a wrongful death lawsuit against Mr. Khadr in a court of law. It is another irony in all of this that Mr.Khadr might be forced to finally defend himself and his alleged actions in a court of law, not because any government is making it happen, but because the family of his alleged victim might make it happen. Mr. Khadr might have come full circle.
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