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When the Prime Minister won’t explain himself


 

Chris Selley finds someone willing to attempt an explanation of Stephen Harper’s position on Omar Khadr.

That wasn’t so hard, was it? It doesn’t change my opinion about Harper’s statement, mind you, or about Khadr. Since there is no hard-and-fast definition of child soldier, there’s nothing about the army or not-army status of the group Khadr was fighting for that would preclude Canada from treating him as a child soldier if it decided it should do so, which I think it should, because prohibitions against child soldiering don’t strike me as things governments should strive to interpret as narrowly as possible. But Harper brought it up, not Anglin. I merely asked if he could make the legal case, since the PMO wasn’t so inclined, and there it is. I present it here in hopes of furthering honest debate on the subject, a cause in which the Prime Minister seems to have little interest.

In February 2007, Canada participated in the Paris conference on children and armed conflict that resulted in Paris Principles and Guidelines on Children Associated With Armed Forces or Armed Groups. A consolidated version of the commitments made is here. The full extent of the agreement is here.

Included in those commitments is the following.

In particular, we commit ourselves … to ensure that children under 18 years of age who are or who have been unlawfully recruited or used by armed forces or groups and are accused of crimes against international law are considered primarily as victims of violations against international law and not only as alleged perpetrators. They should be treated in accordance with international standards for juvenile justice, such as in a framework of restorative justice and social rehabilitation.


 

When the Prime Minister won’t explain himself

  1. If only the former Australian Prime Minister had expressed the opinion rendered by Howard Anglin, Stephen Harper would not have been at a loss for words.

    Damn you, John Howard!

    • Ti-guy
      Yeah, Howard isn’t too fond of children, Vietnamese ones anyway. I’m not saying it was the colour of their skin, but boatloads of white folk can’t be induced to come ashore in Aussie anymore ; so what’s a PM to do?

  2. “armed forces or groups“….do you want to tell Anglin or should I?

    • Mr. Wells,

      I’m not sure what your post means. I never said that the Optional Protocol only applies to states or armies — in fact, Article 4 of that treaty expressly deals with non-state actors, many of whom do not fight in regularly constituted armies. The quote from the Paris Principles specifically refers only to “children under 18 years of age who are or who have been unlawfully recruited or used by armed forces or groups.” As the Paris Principles are not themselves binding law, one must look elsewhere to determine whether an individual “has been unlawfully recruited or used by armed forces or groups.” Under the Convention on the Rights of the Child and the Optional Protocol thereto, Mr. Khadr was not “unlawfully recruited or used by [an] armed force[] or group[],” and thus the Paris Principles do not cover his situation.

      I must stress that these are purely legal determinations. As such, they are one data point to be considered by the Government of Canada in deciding how to deal with Mr. Khadr. I don’t believe anyone who testified on Canada’s obligations under international law before the parliamentary subcommittee when it considered Mr. Khadr’s status argued that he could not be prosecuted for war crimes or that Canada was legally obligated to press for his repatriation. Again, this is just a reading of the plain language of the applicable international laws. Dura lex, sed lex, as the kids say! But “legal” is not the same as “wise” or “moral.” Those who advocate on behalf of Mr. Khadr usually claim he is a “child soldier” without citation to any commonly-agreed definition of that term (there is none under international law: http://www.child-soldiers.org/childsoldiers/questions-and-answers). They also typically argue that it is unseemly that he remains the last citizen of a western country in custody at Guantanamo Bay. That is an aesthetic judgment—a valid one—but not a legal judgment.

      The compelling arguments for Mr. Khadr’s repatriation are diplomatic and moral, rather than legal. His advocates should not waste their time with dusty legal arguments—they have sound political, moral and emotional arguments that are more compelling and much more interesting.

      Yours &c.,

      Howard

      • Sorry for the quick follow-up to my own post, but I just noticed that the Paris Principles actually define “Armed groups” by reference to Article 4 of the Optional Protocol, which was the basis for my original comment to the National Post. As confirmed by the working group notes on the negotiation of the treaty, Article 4 is precatory, not mandatory. There is no evidence that Mr. Khadr’s service in Afghanistan violated any international law solely by reason of his age. Cheers! ~H.

        • Cheers! Is an American allowed to say cheers? Ok i’m leaving now!

          • kc – not sure about Americans, but I’m Canadian, I just practice in Washington. And that’s all from me for now; I appreciate the chance to contribute to the debate. ~H.

          • Thanks again Howard just ignore me, everyone else does.

      • Thanks Howard. So Mr Harper is hiding behind a legal definition. Legal shmegal. Bring the kid home Mr Harper, he’s paid enough already!

        • kc: No. Harper hasn’t even come out of hiding on the issue to the extent of proffering legalistic defences: he said Khadr wasn’t a child soldier, then went quiet.

          The Post’s Chris Selley “requested [Howard Anglin’s] considered opinion on Harper’s statement,” because Anglin argued Khadr’s status before a parliamentary commission.

          I doubt Harper gives a damn who thinks Khadr is or isn’t a child soldier: this is an ideologist of the Reform party we’re talking about, for all that’s he’s obliged to impersonate a Canadian centrist.

          “Child soldier?” How about “unassimilated immigrant,” “young offender,” “muslim,” “islamist,” “terrorist,” and “person arguably guilty of treason?” If this were 1988 there’d probably have “Hang Omar Khadr” in the party platform. If he managed to be a Quebec separatist in favour of gun control their heads would all explode.

  3. This case shines a bright light up a piece of Harper’s anatomy that nobody should want exposed. But look we must. Because it allows us an opening [ shudder] into his thought processes [ more shuddering ] or at least proclivities [ lots of shuddering now ] He takes a narrow view of this case, which while correct is non-theless not his only option. There’s no upside to delaying this for us or for Khadr – well maybe a political one for SH. [so i should really stop there by rights ]
    There is another choice open to him, but he has consistently refused to take it, presumably because he doesn’t have to. Compassion, generousity of spirit, taking the broader view are choices he routinely rejects…well…because… he can. Needless to say this PM doesn’t look that appetizing under just about any light.

    • The man never makes a mistake so forgiveness — of anyone — is not an option.

  4. I think it’s clear by now that PMSH’s “not a child soldier” statement is wrong on many different levels. However, I wouldn’t hold my breath waiting for PMSH to explain himself or correct himself. It’s not exactly his style.

    • Obviously you’ve paid no attention to Howard’s comments.

      • Actually, sf, I made my comment before Howard made his comments. You should check out the little timestamp under our names. And for the record, Howard’s comments h

      • …have made me change my mind on the whole “child soldier” question. I’m very much open to persuasion.

        • OK, time stamps, I stand corrected.

          Howard’s not the first to make the point that the claim he is a “child soldier” has no legal basis, however.

          • Just the first person who knew anything about international law.

      • It’s just one legal opinion. It’s also, as Mr. Anglin stated, not a moral or diplomatic position.

  5. We’re always genuinely impressed, and more than a little surprised, when real people with interesting things to say show up here. Thanks to Howard Anglin for a nuanced and detailed argument in favour of his position. And at the risk of belabouring Aaron’s point, it’s a good thing somebody is making nuanced and detailed arguments…

    • It’s a bit like Islamofascist terrorism in its disregard for . . . well, everything? Well, everything except the majestic plural; Canada’s New Government.

      • Was it a -false- precatory statement? The repatriation of Omar Khadr is not the result of the International Legal Machinery churning its largely nonexistent gears and popping out a result depending on whether there’s a loophole in the Paris Principles which permits the interpretation that “some children who are soldiers are not child soldiers, although we wish that they were.”

        It’s a political process; and the preactory statement

        “we commit ourselves … to ensure that children under 18 years of age who are or who have been unlawfully recruited or used by armed forces or groups and are accused of crimes against international law are considered primarily as victims of violations against international law and not only as alleged perpetrators.”

        bears keenly on that political process. I’d like to note here that there is no way for an armed force to legally use a minor to serve – to use Mr. Anglin’s verb – as what the Americans themselves call an unlawful combatant.

        We aren’t one of those grinning autocratic nations that signs on to every human rights protocol in the world in between beating the opposition’s heads in; when we say “child soldiers should be treated as victims,” we had goddamn well better treat child soldiers as victims, not go hunting for ambiguous semicolons.

    • We’re always genuinely impressed, and more than a little surprised, when real people with interesting things to say show up here.

      Ouch.

    • Lots of commenters here have made similar arguments. Yes, yes, we know, the PM does not make enough speeches. But is it really necessary that such an argument come out of the PM’s mouth for it to have validity?

      The real reason Wherry and others want Harper to talk is not because they want to hear his position, he just wants to pillory him some more. They refuse to acknowledge that the other side actually DOES have a valid argument (many, in fact).

      • Do you ever stop whining?

  6. I’m so sick of these arguments that pit International Law against domestic laws. I notice that Harper always fall silent when this type of <a href=”http://www.jewcy.com/post/case_against_prosecutions”politicizing media trundles on. Of course it’s useful to know about international law whenever one of our laws is up for a change, but ultimately the best laws arise holistically out of domestic policy. We just don’t have alot of child soldiers here….Omar Khadr is in a big mess but really it’s not Harper’s fault now is it?

  7. So, legally speaking, not all soldiers are children, and not all children are soldiers; some children who are soldiers are child soldiers, and some are simply soldiers who happen to be children or vice versa.

    • Well, that may be Harper’s position: or Harper may have no specific position. It’s what I like to call an unknown unknown.

      And of course, there’s the argument above that the child soldier principles are meant to treat children unlawfully used as soldiers, wheras “[t]here is no evidence that Mr. Khadr’s service in Afghanistan violated any international law solely by reason of his age.”

      Since, of course, that service was as what is formally defined as an unlawful combatant, the premise would be that he doesn’t merit protection because he was a lawfully serving unlawful combatant.

    • I think we can all agree that people younger than 18 have been fighting in wars and killing each other throughout human history. You raise a valid point when you suggest that the international legal definition of child soldiers has been inconsistent, contradictory in some cases, and does not follow certain moral precepts. So what should the Canadian government do? The best political solution is probably to do what Harper is already doing and wait for the conclusion of the American tribunal. The best moral solution is (arguably) to try to repatriate Khadr post-haste and offer him the psychological help he needs, together with safeguards to ensure that he no longer poses a threat. It’s a complicated issue and there are no easy answers. We don’t even know for sure whether the Pentagon’s charges are legitimate, or just trumped-up.

      • The standards of war and law “throughout human history” are a bit of a misleading frame, since much of what’s been done “throughout human history” is now considered grossly inhumane. The legal and politic dimensions of war and war crimes since 1945 is what bears on the subject.

        I don’t see the political (or any other) benefit to leaving Khadr in the current process; I think it’s a question of preference, by the PM, his party, or both. Certainly those Canadians who think Khadr should rot are disproportionately in his party, but I quite doubt that’s guiding Harper’s judgment. I doubt we’d be where we are if Mr. Harper didn’t feel that Khadr was getting what he deserves.

        If there’s an alternative explanation, then what? The Americans would be upset because we took another warm body out of Guantanamo? Come now.

        As for the closing remarks on the nature of the charges, I’d say what’s really in doubt (and I have the strong feeling permanently so) is whether he can be found guilty in the grenade incident, which is based on a very sketchy narrative by witnesses and a confession that would get laughed out of court by Judge Judy. (And not merely as a technicality: I really have no idea if he threw the grenade or not. I can’t believe they’re going ahead with the case they have, however.) Trumped up isn’t precisely the word, but it certainly makes the psuedo-legal framework of the tribunals look rather sad. There’s a fair amount of background information on wikipedia, with the usual caveats about verification. Try reading it and imagining yourself prosecuting that case in a process with real live laws and constitutional rights and appellate courts.

        His being involved in the fight against multinational forces in Afghanistan seems, in a fact-finding sense, beyond any doubt. Legally perhaps there’s untainted evidence with which to charge him with participation in terrorist activities. But since he’s been in jail for 7 years and (because of his connections) subjected to torture-lite, it’d seem a little gratuitous. Unless we really, really think he materially aided terrorism more than the average POW-cum-Unlawful-Combatant over there, /and/ threw the grenade which killed a US serviceman.

  8. I for one do not find Howard’s brief compelling nor a vindication of what Harper has said in the past. It’s one person’s (learned admittedly) reading of the law.

    First off, according to Chris Selley, Harper’s original explanation was: “My understanding of international law is, to be a child soldier, you have to be in an army.” I see sf above claiming Howard’s brief supports Harper’s position. I would suggest it doesn’t.

    As I understand Howard, the distinction he made was that Omar Khadr, at 15 , volunteered or willingly joined an insurrection (my words) or as he states: ‘Under the Convention on the Rights of the Child and the Optional Protocol thereto, Mr. Khadr was not “unlawfully recruited or used by [an] armed force[] or group[],”’

    But, what about being brainwashed or coerced by his parents, or in the Madrassa schools etc he attended after being taken from Canada? The link Howard provided lays out that exception:

    Child soldiers, even those who have committed human rights abuses, should be treated first and foremost as victims of adult crimes – that is the prosecution should be prioritized of those who unlawfully recruited and used them.

    However, there will be cases where a child soldier was clearly in control of his or her actions, was not coerced, drugged, or forced into committing atrocities. In such cases, not holding children accountable may deny justice to the victims.

    Does Howard or do we know if Omar Khadr was not coerced? I would suggest that point is debatable, and not as definitive as he may suggest.

    And at the risk of belabouring Aaron’s point, it’s a good thing somebody is making nuanced and detailed arguments…

    • Is it even legally possible for a 15-year-old to volunteer to fight in an army? We don’t take 15-year-old volunteers, not even in the reserves. We also don’t allow 15-year-olds to get married. The principle is the same: a 15-year-old is not legally (or, IMHO, actually) able to make that kind of commitment. That’s before all the madrassa and parental brainwashing.

      • Well, I’m not sure this is completely equivalent, but my layman’s understanding is that in common law, contracts with minors are unenforceable, unless ratified once they reach the age of majority. Also, a contract can be unenforceable if one party entered the contract under duress.

        One point that would support the brainwashed and/ or coerced argument for Omar would be to look at the actions of his older brother (the one interviewed on The Fifth Estate and then 60 Minutes) who rejected all that he had been indoctrinated into once his father had been killed, and he grew older and more mature – able to think for himself.

        • I think the brother actually supports the opposite premise, that there was no brainwashing, that is was simply free will. One brother chose one path and the other brother chose a different path. Especially considering it was the older brother that is not sitting in Gitmo, and it is the older brother who was subjected to this purported brainwashing for a longer period of time.

          • Well, the point is, surely, that what you or I think is irrelevant. That’s what expert testimony, evidence, and trials are intended to resolve. Such as when the Supreme Court in the US ruled that the Gitmo detainees were entitled to due legal process.

            I didn’t mention this before, but wasn’t the Harper argument about “you have to be in an army” (the one you appear to have embraced) the basic rationale for the creation of Gitmo detainees, and the suspension of their “quaint” Geneva Convention rights?

          • Yes, and the fact of the matter is that it has been the appeal to the Supreme Court, then the Supreme Court decision, and now Obama’s suspension of the trials, all of that has delayed due process.

          • It is true – justice delayed is justice denied. Had the Bush administration not denied his right to due legal process from the beginning, he could well have been discharged by now – either through being found not guilty, or having been found guilty, served his sentence, and been discharged.

            That is why I am sypathetic to some of the Canadian politicians’ pleas – “enough already”.

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