Justice demands that we now repatriate Omar Khadr

by Allan Rock and Jasminka Kalajdzic

This commentary was first published in the Globe and Mail on January 26, 2009.

President Barack Obama extended America's hand to the world last week, affirming his nation's commitment to returning to multilateralism and co-operation. He also spoke of "our common defence" and rejected "as false, the choice between our safety and our ideals." He declared, in a subtle rebuke of George Bush's anti-terrorism policies, that "our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint."

Prime Minister Stephen Harper may wish to consider these words carefully as he ponders the troubling case of Omar Khadr, who is accused of killing an American soldier in Afghanistan. Mr. Obama has clearly signalled that national security imperatives will not justify breaches of international and domestic law. In one of his first executive actions, he obtained a stay of the trials of five Guantanamo Bay detainees, including Mr. Khadr, and, on Thursday, ordered the closing of Guantanamo within a year on the basis that shutting down the facility "would further the national security and foreign policy interests of the United States and the interests of justice."

So, too, does Mr. Harper have the singular opportunity to advance Canada's national security and foreign policy interests, as well as the interests of justice, by seeking Mr. Khadr's immediate repatriation.

There can no longer be any serious doubt that Mr. Khadr's six-year detention in Guantanamo did not accord with either international law or the U.S Constitution. On three occasions, the U.S. Supreme Court has rejected various aspects of the military tribunal's process. Our own Supreme Court ruled last year that the circumstances in which Mr. Khadr was being held in 2003, when Canadian officials interviewed him, violated international legal obligations to which Canada was bound.

By allowing Mr. Khadr to remain in Guantanamo under a regime whose legal basis has been discredited, Canada implicitly condones the use of illegal means to combat terrorism. Mr. Obama has now repudiated the false dichotomy between upholding the rule of law and protecting national security interests; we should do the same, or risk falling seriously out of step with our country's most important ally.

Closely related to the national security imperative are the foreign policy interests that a request to repatriate Mr. Khadr would serve. The New York Times has reported that Mr. Obama will begin extensive international efforts to resettle as many as 150 or more of the 250 remaining detainees. Portugal and other European countries have reportedly agreed to work with the new administration by possibly accepting detainees who cannot be sent to their countries of origin because of the risk of torture.

Mr. Harper would buy considerable goodwill and begin cultivating a stronger relationship with Washington than Canada saw under Mr. Bush by being among the first to offer a solution in respect of one of Guantanamo's most well-known detainees. Repatriating Mr. Khadr to Canada, either for rehabilitation or prosecution in accordance with international juvenile justice and fair trial standards, is a legally sound and politically viable resolution of the dilemma that Mr. Obama faces in this case.

Finally, relying on the example that Canada has set on the world stage so often in our history, we respectfully urge the Prime Minister to seek Mr. Khadr's repatriation because justice demands it. Canada and 65 other countries have endorsed the Paris principles and guidelines on children associated with armed forces or armed groups. These principles state that children who are accused of crimes under international law allegedly committed while they were associated with armed groups should be considered primarily as victims of offences, not perpetrators.

Mr. Khadr was a child when the relevant events occurred. He has already spent six years in prison, in conditions far worse than he would have experienced in a domestic criminal detention facility, and for a longer period of time. Justice demands that Canada abide by its international commitments and reassert its persuasive authority on the world stage.

Closing Guantanamo is the right thing to do. Mr. Obama has said he is doing so because it serves justice and his country's security and foreign policy interests. Seeking Mr. Khadr's repatriation will do the same for Canada. At a time when the new President is extending his hand to the world, Mr. Harper should be the first to take it.

Allan Rock, president of the University of Ottawa, is a former Canadian ambassador to the United Nations. Jasminka Kalajdzic is a graduate student in law at the University of Toronto.