After years of interruption, the trial of Omar Khadr began Tuesday at Guantanamo Bay. Khadr, the youngest of the 176 men interred at Guantanamo, is a Canadian citizen. His story has become well-known: he was born in Toronto in 1986, moved back and forth between Pakistan and Canada and, after he moved with his family to Afghanistan in 1996, was captured by American soldiers following a firefight in 2002. In Afghanistan the Khadr family frequented Osama Bin Laden’s compound. Khadr’s father was arrested but released on insufficient evidence for the 1995 bombing of the Egyptian embassy in Pakistan.
Khadr was captured after being shot in the back twice. He allegedly threw a grenade after the firefight had finished which killed an American soldier. For the past seven years he has been held at Guantanamo Bay as two American presidents and no less than four tribunals have attempted to establish the legality of holding prisoners of war (though that title is avoided) and determine what ought to happen to them whether found guilty or not.
Khadr must be sent to Canada where he can receive psychological treatment and, if possible, be released. The Canadian Supreme Court found last January that Khadr’s human rights had been violated. His treatment at Guantanamo Bay has, along with the other prisoners, come under intense scrutiny. Members of the Canadian Intelligence Security Service were told by Khadr and his lawyers that he had been tortured. (Indeed, Joshua Claus, who interrogated Khadr at Bagram airbase before he was sent to Guantanamo Bay, later plead guilty to abusing other detainees.) Also, information that was gathered by CSIS agents during interrogations was passed to American authorities without pursuing guarantee that they wouldn’t seek the death penalty. Canadian Federal Court judge Richard Mosley ruled that Canada had violated international law by doing so.
While the majority of Canadians are in favour of having Khadr repatriated, the Canadian government has spinelessly done nothing to have him sent to Canada. Meanwhile, America has pressed the legal opacity of Guantanamo Bay to the breaking point. Both governments are complicit in interfering with proper justice– American president Barack Obama failed to keep his promise to close Guantanamo Bay by last January and Canadian prime minister Steven Harper needed to be told by the Supreme Court what constitutes a human right. Even if Canada does the right thing and demands that America repatriate Khadr, they must go further to ensure that the dubious legality of the trials are called into question by the international community.
A much more troubling fact is being overlooked: Khadr was 15 years old when he was captured. This makes him the first person in the history of war crimes to be tried for an act he did as a child. Whether or not he did cause the death of an American soldier– and the evidence suggests that he did– he should not be held legally culpable for it. Child soldiers are victims and, as the United Nations special envoy for children in armed conflict Radhika Coomaraswamy states, a dangerous precedent is being set in this case.
There is little doubt that Khadr desired to kill American soldiers. Video footage recovered from the attack site shows him making explosives and planting landmines with other men. Yet he is not responsible for this desire, nor should he be tried for his actions. Those responsible are the people who indoctrinated him from a young age to fight for an immoral cause. Khadr has been let down twice. Once by the Islamic fascists who programmed him to kill, his father and Bin Laden among them, and once by the justice system that has failed to recognize it.
It isn’t clear what should happen to Khadr. It’s possible that, given his mental state, being released into society will lead to his continued association with extremists. It could be years before he receives the help he needs to function in society and that help may never rehabilitate him. Canada didn’t cause this tragedy, but it has also done little to help it.