Just about everyone has heard of Omar Khard: the one Canadian languishing in Guantanamo Bay detention camp.
Most people – whatever their views and opinions are on the circumstances that lead to his current predicament – agree that his situation is quite tragic. The kid never had a chance to grow up ‘normally’.
Born into a family which was legally in Canada, emotionally in Pakistan and philosophically in 8th century Arabia, his childhood could not be considered ‘normal’ by any standards.
Both his parents were religious fanatics (his mother still is, his father gave his life to conduct violent jihad). He was physically bumped around, from living in the ‘Secular West’ at some points to a Muslim school in Pakistan to terrorist training camps. His sister was given in marriage at the age of 15 to an Al-Qaeda buddy of her father (the wedding is said to have been attended by Osama himself), his brothers actively conducted violent jihad (not all survived), and so on.
It really is a sad story. I can understand why it pulls at all our collective heartstrings!
Currently, the public debate is focused on what is to be done with young Omar now?
This is a very, very important decision: whatever action is taken (on not taken) on behalf of Omar Khadr will set THE legal precedent for future situation that are similar.
So, let us get it right!
In order to make the best possible decision, we must objectively examine what Omar Khadr is – and what he is not.
This is an essential step, because it will define under which circumstances the legal precedent set by the ‘Omar Khadr case’ will be applicable.
The most common description of Omar Khadr one hears in the MSM (mainstream media) – as well as one often repeated by his defense lawyers – is that Omar Khadr is a ‘Child Soldier’.
So, let us examine if this is the case:
Is Omar Khadr a ‘Child Soldier’?
The definition of ‘Child Soldier’ has two parts: ‘Child’ and ‘Soldier’.
First: is Omar Khadr a ‘Soldier’?
No, he is not.
At least, not according to the UN laws on the matter (or any other law I am aware of which defines who is, and who is not, a ‘soldier’).
The UN laws were written in order to protect the innocent civilians who get in the way of a war first, then the protection of legitimate soldiers second. And, they are very clear on who is and who is not a ‘soldier’ (again – basic Wikipedia search provides clear answers – but much more material confirming this is easily available through any major search engine…):
‘To qualify under the Third Geneva Convention, a combatant must have conducted military operations according to the laws and customs of war, be part of a chain of command, wear a “fixed distinctive marking, visible from a distance” and bear arms openly.’
Omar Khadr, unfortunately, does not satisfy these qualifications.
Not only was he not a part of a recognized military ‘chain of command’, and not wearing any ‘badges’ or ‘distinctive markings’ that could, even remotely, be construed as ‘uniform’ or ‘fixed distinctive marking’: the crime he is accused of having committed is against the laws and customs of war. ( I can expand on this, at length, if asked, in the comments sections.)
Therefore, Omar Khadr DOES NOT satisfy the qualifications of having the status of a ‘soldier’. Therefore, he cannot be treated as a ‘soldier’: a ‘Child Soldier’, an ‘adult soldier’, or any other kind of ‘soldier’.
But, even if Omar Khadr were a ‘Soldier’: would he qualify as a ‘Child Soldier’?
This is a more difficult question – but there is a legal answer!
Omar Khadr was aged 15 when he was detained by UN troops and when the premeditated murder of a UN non-combatant medic, which he is accused of having committed, occurred.
Different people mature at different rates: at 15, some people really are still children while others are quite adult. Both individual maturing rates and cultural influences are important in determining if a 15-year-old is ‘an adult’ or ‘a child’. What does the law say?
Omar Khadr straddled two cultures:
- In Canada, a 15-year old is, legally, a child.
- Still, 15-year-olds are able to become emancipated, and legally become adults.
- Under some circumstances, non-emancipated 15-year-olds are charged with crimes as adults – so the ‘legal precedent’ can be applied both ways: it is a bit of a legal ‘gray area’ in Canada.
- In Islamist culture, a 15-year-old is considered to be an adult, without any reservations.
- The Khadr family certainly considers 15 years of age to be ‘adult’ – that is the age at which their daughter was given away in marriage!
It is obvious that in his own eyes, as well as according to the culture of his family, Omar Khadr is ‘an adult’. And, in our multicultural society, would it not be offensive to dismiss Omar Khadr’s minority cultural view of his status at that time?
OK, ok – so, the ‘multiculturalism’ thing is kind of messed up – and we all know it. Let’s look elsewhere:
What does the International Human Rights Law have to say on the subject? (The following is a cut-and-paste of what Wikipedia has to say on this: I usually like to paraphrase things, but I could not hope to make it more clear than they had…)
International humanitarian law
According to Article 77.2 of the Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977:
‘The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.’
Well, that seems rather clear: once a person has reached the age of 15, he/she cannot be considered to be a ‘Child Soldier’ – even though it’s better to recruit people who are over the age of 18…. 15-year-olds are ‘regular soldiers’!
Omar Khadr HAD ‘attained the age of fifteen years’ – so he IS, according to international law, ‘regular soldier’!
In other words, legally, Omar Khadr CANNOT be considered a ‘Child Soldier’, because he is not a ‘Child’: he would have had to have been FOURTEEN years of age or younger in order to be considered a ‘Child Soldier’!
OK – so we are nowhere closer to the answer of what Omar Khadr actually is: but, I have (hopefully) demonstrated that whatever he is, he is NOT a ‘Child Soldier’!
I know – the facts of the situation are unlikely to affect the direction of the public debate…. I have no illusions about it. People who point out the laws and the rules are nowhere near as interesting – and nowhere near listened to – as people who play on our emotions…
But, we MUST TRY, mustn’t we?