To be a soldier fighting a war is to be forced to kill or be killed. While the only sensible description of warfare is organized mass murder, few would seriously argue that individual soldiers should be prosecuted for homicide when they kill the enemy in combat. And yet, when Omar Khadr walked out of an Edmonton courtroom on May 7 on bail pending appeal of his conviction in the United States, it was just the latest twist in his decade-long legal ordeal over accusations of war crimes—accusations based on his having allegedly thrown a grenade at uniformed American soldiers during a firefight in Afghanistan.
Khadr had the misfortune of being born to parents who, by most accounts, were abysmal role models. His father was a confidant of Osama bin Laden and died in 2003 alongside Taliban and al-Qaeda members. His mother has railed against the supposed wickedness of Canadian society, explaining that she had to take her son abroad to avoid him becoming a drug-addicted homosexual before he hit puberty. By the time 9/11 occurred, Khadr had been living in Afghanistan for five years and, on July 27, 2002, found himself in the middle of a battle with American troops. While the exact sequence of events is unclear, the battle ended with the Americans bombing the house in which the 15-year old Khadr and his companions were holed up and then sending in troops to inspect the damage. At that point, a grenade landed at their feet and killed Sargent Christopher Speer, an army combat medic.
After being treated for serious wounds, Khadr was eventually taken to Guantanamo Bay where in 2010 he pled guilty to several charges, including “murder in violation of the law of war”—a previously unknown war crime created by the United States after the events that led to Sgt. Speer’s death. Traditionally, soldiers cannot be prosecuted for murder because of the “combatant’s privilege.” But since international law only recognizes uniformed soldiers as privileged combatants, a person in civilian clothes who kills a soldier is liable to prosecution like a common murderer. In Khadr’s case, however, invoking the existing rule would have meant giving him an ordinary criminal trial, with the associated procedural and evidentiary standards. Given the torture regime in place at Guantanamo Bay and the lack of evidence against him, such a trial was unlikely to produce a conviction. So the American government instead charged Khadr with war crimes and prosecuted him under military law.
It is difficult to know where to start with the government’s “reasoning.” First, retroactive criminal legislation is totally incompatible with the rule of law, and “murder in violation of the law of war” was not a crime under US law when Sgt. Speer was killed. Second, if Khadr was not a protected combatant then by what right did the American troops use force against him? The government’s argument amounts to “we can shoot him, but he can’t shoot back.” Third, there is no evidence that Khadr actually threw the grenade that killed Speer other than a confession that Khadr very plausibly claims was tortured out of him at Guantanamo Bay (and one that he has since retracted). Fourth, of course, Khadr was all of 15 years old in 2002. Too young to drink, too young to smoke, too young to vote, too young even to drive—yet somehow old enough to be prosecuted for hitherto unheard-of war crimes.
Omar Khadr’s treatment over the past 13 years exemplifies the arbitrary, cruel and unjust nature of the war on terror. The killing of a uniformed soldier in battle is, objectively, no less outrageous than any other act of murder. But, for whatever reason, it has been the universally-accepted norm for several millennia that killing a man in combat is not a crime. There are exceptions, but there is nothing about Khadr’s case—never mind the lack of evidence that he actually committed the “crime”—that cries out for applying them. Instead, much of the case against him seems to be built on the sheer infamy of his family, which is deservedly notorious for its anti-Western and anti-freedom discourse, as well as his father’s personal association with arch-terrorist Osama bin Laden. While such a claim may seem like a straw man argument, the case made by Khadr’s self-appointed prosecutors is weak beyond the point of ridicule. To Google the terms “Omar Khadr terrorist” is to take a peek at the seedy underbelly of Canadian society, where Khadr’s culpability is based largely on his other-ness, on Islamophobia and on guilt by association.
Now that Khadr is a free man—of sorts—perhaps he will have a chance to demonstrate whether he is indeed a victim of circumstance or the caricature of evil described by his critics. In his first public appearance after his release, he came across as articulate, thoughtful, and entirely unthreatening. If Khadr manages to build a normal life for himself and becomes a productive and peaceful member of Canadian society, it could go a long way toward changing the minds of those who see the war on terror as a Manichean conflict between the US and its allies who can do no wrong and the forces of darkness who are pure evil. If Omar Khadr—the poster-child for Dick Cheney’s shameless lie that Guantanamo Bay housed the “worst of the worst”—turns out not to have horns and cloven feet, then perhaps the entire edifice of the war on terror is rotten. And maybe—just maybe—the best way to prevent terrorism and keep us safe is not to pursue endless war and adopt draconian legal codes, but simply to mind our own business and engage with foreigners not through violence but instead only through voluntary cooperation.
* Adam Allouba is a business lawyer based in Montreal and a graduate of the McGill University Faculty of Law. He also holds a B.A. and an M.A. in political science from McGill.