It is amazing how much importance is placed on the Geneva Conventions by Western publics, considering how seldom soldiers from our nations encounter any adversary who respects them. It’s also amazing that many Canadians think that these laws should be applied to Omar Khadr.
On the first point, the last opponent that Canada fought who abided by the laws of war was Nazi Germany – who only observed them (with numerous violations) with respect to Western militaries. The British and Americans have a similar experience. Of all the hostile forces engaged by the British since 1945, only Argentina in the 1982 Falklands War observed the Geneva Conventions. The Americans haven’t encountered an enemy since 1945 who respects those laws.
Nobody else, in that long list of opponents faced by military personnel from Western Nations in conflicts stretching from 1946 to this very moment has bothered to apply the Geneva Conventions and other laws of war to their conduct; but we still expect our military personnel to abide by them. Sometimes, we really should wonder why.
The question is pertinent again, not least for Canadians, because of the hullaballoo being kicked up over the pending trial of the tenuously Canadian Omar Khadr in American hands, some six years after his fortunate capture in Afghanistan in 2002.
When one calls Khadr fortunate, one should remember the circumstances of that capture. Even the most disciplined and well-behaved Western soldiers tend not to take prisoners when an enemy resists right to the end. However, in the case of Omar Khadr, the American Special Forces who captured him had wanted one prisoner to question in the aftermath of their attack on an al Qaeda hideout in rural Afghanistan.
Describing Omar Khadr as ‘tenuously’ Canadian speaks to another point. Those unfamiliar with Omar Khadr perhaps may wish to review his family history:
- Ahmad Said al-Khadr came to Canada from Egypt in 1975. After the Soviet invasion of Afghanistan he became involved in relief work albeit with a seeming preference for Islamic Fundamentalist causes. By 1985, Ahmad had met Osama bin Laden and was soon drawn into the inner circles of what was to become al Qaeda. By 1994, Ahmad had brought his family to the al Qaeda camps in Afghanistan. Following 9/11, he spent two years on the run before being killed in a firefight with Pakistani troops.
- His wife, Maha Elsamnah, was born in 1957 and has never refuted the family’s involvement in al Qaeda. At times openly disdainful of Canadian society, she was quick to claim its advantages when her fourth son Abdul Karim became a paraplegic.
- His oldest daughter, Zaynab Khadr, was born in 1979 and was married to a member of al Qaeda in a ceremony attended by Osama bin Laden. When she returned to Canada in 2004, the RCMP said they believed she was carrying messages for al Qaeda in her laptop.
- Abdullah Khadr was born in 1981; was trained by al Qaeda in Afghanistan and reputedly fought among its forces after the Coalition invasion. He was also captured in Pakistan in 2004, while procuring weapons for al Qaeda. He has since been repatriated to Canada, but is now battling extradition to the US.
- Abdurahman Khadr was born in 1982; and was also introduced to al Qaeda by his father – from all accounts, it didn’t take. Frequently at odds with his father and brothers, he ended up in a Taliban militia (which, unlike al Qaeda, is under the purview of the Geneva Conventions). After his capture in 2001 he was eventually sent to Guantanamo Bay. He was repatriated to Afghanistan in 2003; from there he somehow surfaced in Bosnia and returned to Canada.
- Omar Khadr was born in 1986 and was still 15 when captured by US Special Forces Soldiers in Afghanistan, and has been in Guantanamo Bay since then. During his capture, it appears that though already wounded, he threw a grenade that partially blinded one US soldier and mortally wounded a medic.
- Abdul Karim Khadr was born in 1989 and was crippled (paralyzed from the waist down) during the 2003 firefight with Pakistani troops that killed his father.
- Another son died at the age of three from a chronic heart defect, and the youngest child (now aged 17) is a daughter.
From any reasonable viewpoint, this is a family that views Canadian citizenship as a convenience, in contrast to the vast majority of immigrants here. It would appear that the Khadrs have long since exhausted their credit with most Canadians. Many of us would probably prefer it if our government expends no further effort on their behalf.
There have also been arguments from some Canadians that Omar Khadr deserves our charity because he was a child soldier. Others feel that because he was fighting American troops, this excuses his conduct somehow. Both of these arguments are fallacious.
Omar Khadr was 15 when he was captured in Afghanistan. So? This writer’s grandfather was 15 when he successfully lied about his age to join the Canadian Army in 1916, and soldiered in France for two years.
Canadians should reserve their sympathies for the poor miserable child-soldiers who were unwillingly seized from their families and homes by the Tamil Tigers, or the Lord’s Resistance Army, or some West-African warlord. Omar Khadr wasn’t forcibly conscripted from his family; they probably gave him every encouragement to volunteer for al Qaeda.
Moreover, in the Islamist mind-set, a boy becomes an adult man with the onset of puberty. Both Omar Khadr and his parents probably thought he was making an adult decision to join up.
Omar Khadr as a child soldier? It doesn’t wash.
Other people insist that Canada should remove Omar Khadr from American custody and jail him here instead. On what charges, pray tell? How could we hold him?
He was a member of al Qaeda by many accounts, but the only concrete action that can be attributed to him was his membership in a band of al Qaeda who fought against American troops in Afghanistan.
There is only one law in the Criminal Code of Canada that Omar Khadr may have violated: Technically, he committed treason. Many Canadians also forget that our soldiers have been fighting in Afghanistan for seven years now. Instead of encountering Americans, Omar Khadr could quite easily have been killed or captured while fighting against the Princess Patricia’s Canadian Light Infantry or our JTF-2 special forces.
This begs two questions. Firstly, do we really want to try somebody for treasonable acts when they were – by our reckoning – a teen-aged boy? Secondly, would the charge actually hold up in court? Judge for yourself:
According to Section 46 of the Criminal Code of Canada:
High treason
(1) Every one commits high treason who, in Canada,
- kills or attempts to kill Her Majesty, or does her any bodily harm tending to death or destruction, maims or wounds her, or imprisons or restrains her;
- levies war against Canada or does any act preparatory thereto; or
- assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.
One need not be a lawyer to notice the fatal flaw in this charge. Omar Khadr was not in Canada when he fought against soldiers of our ally in the field. The closest precedent to a Khadr treason trial would be that of Kanao Inouye, the “Kamloops Kid”. Inouye was hung in 1947 for his deeds with the Japanese Army in the Second World War; and a somewhat elastic definition of treason was used to fit the charges (and the rope) around his neck.
The next problem concerns al Qaeda’s place with respect to the Geneva Conventions, and whether Omar Khadr is an ‘illegal combatant’ or a prisoner of war.
With the late 19th and early 20th Centuries, the customs and best practices in war became codified in a series of conventions and agreements which the World’s nations agreed to respect. Various Hague and Geneva Conventions came into force, and were more or less respected until the Second World War. After this war ended, the worst abuses of the conflict were sorted out in the definitive 1949 Geneva Conventions.
During the Second World War, while the Germans had generally honored the conventions regarding prisoners of war from the militaries of Western nations; the German Army’s traditional disdain for Francs-tireurs and guerrillas was clearly evident and they were merciless towards them. Guerrillas, spontaneous resistance movements, and even bands of tribal warriors were frequently involved in that conflict and it was clear that the protections afforded to regular combatants also needed to cover them.
In order to be given coverage by the Geneva Conventions, an armed force of any kind needs to have a recognizable authority that they answer to; carry its arms openly; and abide by the laws of war themselves in their conduct. That recognizable authority could be a government-in-exile, traditional tribal leaders; or even self-appointed officers of a self-formed militia unit under some circumstances.
In today’s world, Western governments apply the laws of war to most of the irregular non-state actors who have popped up. Not that these give much thought to the laws of war themselves. However, while the framers of the 1949 Geneva Conventions were familiar, at least intellectually, with the idea of terrorism – they didn’t mention it. This is natural considering that the terrorism experienced by most of the world up until the 1970s could be safely held in check by civilian police and justice systems. Something like al Qaeda was quite beyond their comprehension in that happier time.
It is this point which takes us to the disposition of al Qaeda prisoners who have been captured by military forces in Afghanistan. The Taliban was an irregular militia that was tenuously under the control of some manner of political authority, and it is even possible for the current government of Afghanistan to attempt (largely fruitless) negotiations from time to time with those figures. Also, most of the Talibs of 2001/2002 were originally Afghan citizens. The Taliban forces in Afghanistan in 2001/02 constituted an irregular force which came under the purview of the 1949 Geneva Convention.
Omar Khadr’s older brother, Abdurahman, had refused to follow his father’s orders to join al Qaeda and was instead serving with the Taliban when captured in 2001. This is why he was released in 2003 and is living as a free man in Canada; he was a POW and could be repatriated.
Whether or not the Taliban of 2008 would merit the same protection is a debatable point. Many of its members are Pakistanis or volunteers from elsewhere in the Islamic world, who have entered into the meta-network of al Qaeda and the Jihad movement. They aren’t a political militia or a tribal force.
Al Qaeda has no business address; no leadership that can be held accountable for the actions of members of the group should a treaty ever somehow be made. Its members seldom carry arms openly or wear a distinctive dress. They also certainly do not abide by the laws of war. When al Qaeda members are captured inside a particular country, committing an offense therein, then that country’s criminal justice system might suffice. However, in areas like Afghanistan or Iraq, where that system is in disarray (often through the efforts of al Qaeda) and these terrorists are fighting as guerrillas, then what is there to do once they have been captured?
Al Qaeda prisoners do not merit the treatment of prisoners of war. They certainly do not come under the aegis of the Geneva Conventions. By the laws of war and international agreements that long predate the Bush Administration; they are “Unlawful Combatants”, warriors outside of the laws of war.
As an international terrorist network that has actually fielded its own military forces, al Qaeda is a new phenomenon. The world has not seen its like before. The closest analogy might be at the dawn of the Laws of War in a maritime environment, and the regulations that allowed naval officers to capture, judge and execute pirates in the 18th Century. Otherwise, as so often happens in this world when unforeseen gaps are found in law and regulation, all we can really do is try to puzzle things out as we go.
The best thing to do in Omar Khadr’s case is to let him stay right where he is, awaiting trial as an unlawful combatant in Guantanamo Bay. The Geneva Conventions don’t apply. As for Canadian criminal law, perhaps a treason charge could be considered – but this is a law that has been badly revised and might not apply in any event. We can’t do one thing or another, and so might as well do nothing for the moment. Hard luck for Khadr, but it is not as though he or his family merits much of our sympathy anyway.
