Skip to main content

Audrey Macklin is director of the Centre for Criminology and Sociolegal Studies at the University of Toronto.

Should the government of Canada apologize and compensate Omar Khadr for its complicity in human rights violations committed against him? Nothing I say is likely to change the minds of those committed to the view that he is a terrorist who deserves whatever he got. Recent U.S. experience teaches that some politicians don't care much about the facts, and exposing their dishonesty doesn't always matter much to those who support them. But here goes anyway.

A good place to start is former Conservative minister Jason Kenney's tweet about the settlement. "Odious. Confessed terrorist who assembled & planted the same kind of IEDs [improvised explosive devices] that killed 97 Canadians to be given $10-million. Mr. Khadr confessed to murdering Christopher Speer, a medic who rushed to his aid."

Read more: U.S. soldier, widow to seek injunction to halt Ottawa's payout to Omar Khadr

"Confessed": I attended the military commission hearing in Guantanamo Bay where Mr. Khadr's chief interrogator, Joshua Claus, testified by video-conference from an undisclosed U.S. location.

The documentary film Taxi to the Dark Side raised evidence that Mr. Claus tortured detainees, and tortured some to death. In 2005, Mr. Claus accepted a plea bargain before a court martial, where he admitted to forcing water down a detainee's throat, twisting a hood over his head until he choked, and to abuse of an Afghan taxi driver who died in custody from his injuries. Mr. Claus was discharged from the army.

During his testimony, when asked whether he shone excruciatingly bright lights in Mr. Khadr's eyes after surgery on those eyes, whether he put a bag over Mr. Khadr's head and choked him, whether he threw him off a hospital stretcher hours after major surgery, whether he bound Mr. Khadr's hands over his head and hung them from the ceiling for hours, whether he subjected him to prolonged sleep deprivation and stress positions, whether he threatened Mr. Khadr with rape in a U.S. prison by "big black men," Mr. Claus mostly shook his head, or smirked and replied that he couldn't remember. Pause to consider what it means to say that one can't recall systematically torturing a human being daily over a period of several weeks. I don't know whether Mr. Khadr threw the grenade, but I know that a confession extracted through torture doesn't prove that he did. The same goes for a confession coerced through the plausible fear of indefinite detention in Guantanamo Bay.

"Murder": Under the laws of war, a combatant who kills another combatant cannot be charged with murder. That's called combatant immunity. Non-combatants who kill a combatant can be charged with murder, and they are entitled to the procedural protections owed to a criminal accused. Mr. Khadr was treated neither as a combatant nor as an accused criminal. Instead, the United States invented a new war crime called "murder by an unlawful alien enemy combatant." The new offence made it lawful for U.S. soldiers to kill Mr. Khadr, but made it a war crime if he killed a U.S. soldier. This ersatz war crime was invented by the United States after his capture and then applied to his actions retroactively. No system governed by the rule of law does this.

"Medic": It is a war crime to kill a medic. Sergeant Speer was indeed training to be a medic. But he was not acting as a medic during the battle in which he was killed and he was not rushing to Mr. Khadr's aid when he died. Not even the U.S. military prosecutors alleged this. Sgt. Speer's death as a combatant, a tragic loss to his family and his country, was not a war crime.

"IEDs": Mr. Khadr was indeed filmed assembling IEDs. And, as we know, he was 15 years old and in the company and control of adults when he did so. From child soldiers in Sierra Leone to15-year-old Canadians accused of violent crimes, the United States and Canadian law regards minors differently than adults – except for Mr. Khadr.

The government of Canada is wise to apologize and compensate him because its actions and omissions were morally wrong and reprehensible. Instead of protecting a citizen and a minor, they exploited the opportunity to interrogate him, indifferent to his abject pleas for help. Instead of seeking his repatriation – as every other government of every other Western country successfully did for their nationals – the government obstructed his return, long after the U.S. signalled its willingness to act.

The government is prudent to settle. The Supreme Court of Canada ruled back in 2010 that the government violated Mr. Khadr's Charter rights by interrogating him and handing over the evidence to the United States. That relatively narrow decision provides the starting point for civil liability but does not exhaust it. Litigation would be protracted, ugly and force disclosure of conduct by Canadian officials that would publicly disgrace the government, and potentially lead to liability and a damages award that would dwarf the amount of a settlement, especially when added to the staggering costs of litigation.

There are similarities and differences between Mr. Khadr's case and those of Maher Arar, and Muayyed Nureddin, Ahmad Abou-Elmatti and Abdullah Almalki, each of whom received apologies and compensation. But all have this in common: The Canadian government was complicit in the commission of grave human rights violations against them at the hands of foreign governments, and did little or nothing to protect them. That is the justification for apology and compensation.

Sources say the federal government has reached a $10.5-million settlement with former Guantanamo Bay prisoner Omar Khadr. In Dublin Tuesday, Prime Minister Justin Trudeau would not confirm the settlement.

The Canadian Press

Interact with The Globe