Omar Khadr: Why Canada Should Take Back Its Troubled Child

When President Barack Obama meets Prime Minister Stephen Harper on February 19th , he may be surprised to learn that Canada has changed. Sure, we still have the iconic loonie on our currency, the maple leaf on our flag, and the snowmen in our front yards, but these things belie our newly hardened, cynical interior. As Obama inspires millions with his promise of possibility, respect and unity ("yes we can!"), north of the 49th parallel has wrested itself into an identity crisis ("no we can't!").

No, we can't deploy peacekeepers to Darfur, the world's worst humanitarian crisis, even if we 'invented' the concept. No, we can't reach the United Nations target of 0.7% of our gross national wealth as a contribution to overseas development assistance -- we can't even get half way there -- even though that target was set by lauded former Canadian Prime Minister Lester B. Pearson forty years ago. And no, we can't repatriate Omar Khadr, even though we helped draft and were among the first to ratify the Optional Protocol on child soldiers.

In fact, the ink was barely dry on Canada's signature when Omar Khadr was arrested at the age of fifteen and sent to Guantanamo Bay as an "enemy combatant" (Geneva Convention notwithstanding). So no, we can't -- nor can Canadians continue, in any real way, to lay claim to reason, compassion or diplomacy around the global power tables because we've simply lost that moral legitimacy. Which all leads to the question that the newly inaugurated president might dare to beg when he steps off Air Force One in two weeks time, namely, "where am I?".

The years of George W. Bush weren't just challenging for Americans -- they were challenging for Canadians as well. We weren't entirely sure how to behave as the years progressed. At first, we agreed with our friend and closest ally to the south (on Afghanistan). Then, we disagreed (on Iraq). And then, we agreed to disagree (on nuclear nonproliferation, soft wood lumber, Maher Arar, etc). But now, Canada is knee deep in a moral quandary that had greater deniability under George W. In short, the new kid is making us look bad.

President Obama wants to close Guantanamo Bay. That, in and of itself, isn't really an issue for Canadians. What is at issue is that one of our citizens, Omar Khadr, has been incarcerated there for the past six years and he will need to go somewhere. The question is, where? Should he be transferred to a U.S. federal prison? Should the military tribunal be allowed to proceed? Or should Khadr face his accusers in a U.S. court of law? He is, after all, accused of murdering U.S. Army Sgt. Christopher Speer during a fierce gun battle in Afghanistan. Or should our government ask for Khadr to be sent home, so that we can sort this mess out ourselves? Canadians are deeply divided on this issue--

Khadr's plight reads like one of those double negative, multiple choice questions first year Biology profs are so fond of: there is a right answer, but damned if we can find it.

On January 26th, 2009, Prime Minister Stephen Harper stated that the Canadian government will wait for the U.S to decide what to do with the charges against Khadr. He went on to say that "my understanding of international law is, to be a child soldier, you have to be in an army" - creative spin, indeed.

The closest thing to a universally accepted definition of what constitutes a child soldier is outlined in the Optional Protocol to the Convention on the Rights of the Child, and even that doesn't come with a list of criteria as to what constitutes a child soldier. Instead it calls on State Parties to ensure that children less than eighteen years of age under their jurisdiction do not become child soldiers. It also insists that any child exploited as a soldier in war be provided with "the appropriate assistance for their physical and psychological recovery and their social reintegration" (Article 6.3). Not the kind of service GITMO is renowned for.

Both Canada and the US signed and ratified the Optional Protocol. This means, like it or not, "guilty" or not, both countries must recognize that -- as a fifteen year old at the time of his arrest -- the Optional Protocol applies in Khadr's case.

Second, Prime Minister Harper's claim that Khadr wasn't a child soldier at the time of his arrest because "you have to be in an army" is categorically false. Article 4.1 of the Optional Protocol confirms that it is illegal for "armed groups that are distinct from the armed forces of a State" to "recruit or use in hostilities persons under the age of eighteen years". The vast majority of child soldiers worldwide are used by non-state actors (rebel militias, irregular forces, etc) who look nothing like an "army". So, whether Khadr was wearing an identifiable military uniform or not, and whether he was officially part of any recognizable army, are irrelevant in this case: he was a fifteen year old actively used in armed combat.

So where does this leave us? Omar Khadr is a Canadian citizen and a child soldier whose rights have been summarily denied, despite international law. When our respective Heads of State meet in two weeks' time, it is incumbent upon Prime Minister Harper to make the decision much easier for the newly minted American President: give Canada back its problem child. And if the Canadian government isn't sure how to sort through a responsible judicial and rehabilitative process for this troubled young man, there are many Canadian aid agencies with expertise in this area who've worked with child soldiers all around the world and who'd be more than happy to help sort it out. Otherwise, President Obama would be right to ask, as a follow-up to his first question, "Oh, Canada...what do you stand on guard for again?"

Dr Samantha Nutt is a medical doctor, and the Founder and Executive Director of War Child Canada.