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Defending Omar Khadr

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So Omar Khadr is finally back from the Guantanamo Bay detention centre and in Canada, or to be more accurate, a Canadian jail. The Conservatives, after years of vilifying him as a terrorist and stating he was not welcome back, were forced to accept Khadr into Canada by the United States. Judging by Public Safety Minister Vic Toew's barely suppressed indignation when announcing Khadr’s return, the Conservatives are none to pleased about it.

The supporters of Khadr have been quick to jump to his defence upon learning of his return. Anyone who was following the Khadr case in the media this week was treated to endless storylines about a divisive figure who some saw as a terrorist and others saw as an exploited child soldier.

Considering that Omar Khadr is in Canada for the foreseeable future and that the debate over Khadr’s actions and future are not going away anytime soon, I thought it might be useful to try to understand the ways in which people have been trying to defend him and the implications that they carry.

The first and most common defence of Khadr is that he was a child soldier.  He was 15 when he was detained by American troops and accused of his crimes. This defence rests on the fact that he was not responsible for any crimes as laid out in the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. This is the defence proffered by Senator Romeo Dallaire. Khadr was a child; he was not responsible because he was forcibly recruited by his father.

The second defence is somewhat intertwined, though not completely, with the first. This is what I will call the procedural defence: he was tortured, he was detained without trial for many years, he didn’t have proper access to lawyers, he was mentally incapacitated by his conditions, the trial was structurally unfair and so forth. Of these claims there cannot be any doubt, Khadr was the subject of torture almost immediately after his capture. He was threatened with rape and attack dogs, subjected to stress positions, to sleep deprivation, denied medication and a litany of other abuses. There can also be no doubt that he had no due process. He languished in Guantanamo for approximately ten years; his plea agreement cannot be taken seriously because of it. In this defence the torture and violations of any due process by the American government invalidate any possible legal conclusion of guilt.

The third defence is that he simply didn’t do it, or that there is not the evidence to conclude that he is guilty of the crimes he is accused of (specifically the killing of an American soldier). He is therefore innocent. Part of this defence rests upon the violations of due process and torture in explaining Khadr’s plea agreement. But there is also a deeper questioning of the events that led to his capture.

What we do know is this, after a firefight between American forces and approximately five ‘militants’, Apache helicopters and Warthog planes bombed and gunned the compound where Omar Khadr was. American troops then threw in more grenades. As the Americans entered, a couple of grenades were thrown at them as well as some more gunshots. They proceeded to kill one more militant. When they came across Khadr he was already wounded by shrapnel, blinded in one eye. Still they proceeded to shoot him twice in the back. One of the grenades thrown over a wall by the militants killed Sergeant Speer, a medic with the American army. The conflicting eyewitness accounts by the surviving soldiers makes it very unclear when the grenade was thrown and by whom.

So in short the three, sometimes interrelated, lines of defence of Khadr are: he was a child solider, his access to due process was violated (torture, kangaroo court, etc.) and he is innocent. While all three of these lines of defence are in some manner true they miss a more fundamental truth. There was no overriding crime. Killing a soldier in the course of a war when your country has been invaded and is occupied is not a crime. I know some of you will say that he allegedly killed a medic in violation of the Geneva Convention. Now I am no legal scholar but it seems this particular killing of an Army medic is not a violation. A grenade was thrown over a wall, after the Americans had done the same. No one is claiming that the grenade was directed specifically at the medic or more importantly that the thrower could clearly identify the medic’s insignia.

The other tricky question is that of the status of resistance fighters. Are they soldiers, combatants, militants or terrorists? Rather than get bogged down in semantics it is easier to look at this question from an anti-imperialist stance. Those who resist foreign invasion and occupation have a right to do so. If we are to only accord legitimacy to recognized armies than we certainly would have to write off the partisans fighting fascism during the Second World War as simply terrorist thugs seeking to subvert authority. The point is not whether to agree with the aims of the resistance but whether people subjected to an invasion and occupation have a right to resist. The American invasion of Afghanistan was declared legal ex post facto. However, the ability of powerful nations to warp legal reality around their actions does not make their invasions any more just or resistance to them any less credible.  

When we defend Omar Khadr as a child soldier denied due process who may or may not have killed a soldier, it is important to not cede the ground that armed anti-imperial resistance is a right, not a crime. Omar Khadr is not innocent, because declaring so means that there was even a possibility he could have ever been guilty.      

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