Thank you.
Indeed, I think there has been much novel interpretation of the Law of Armed Conflict by the U.S. government over the last five years. This concept of unlawful enemy combatant was unknown to the Law of Armed Conflict before 9/11.
What I can generally say is that the government's position that we went to war with al-Qaeda after 9/11 seems to have been accepted by the U.S. courts. Contrary to the government's view, the Geneva Convention does apply to that conflict and provides a minimum standard of protection, even for what the government terms unlawful enemy combatants in that war. There are any number of very complex legal issues, both with respect to the U.S. Constitution and with respect to the Law of Armed Conflict, raised by the U.S. position on the war on terror.
What I can say to you is that, leaving those issues to one side, there is a separate strand of the Law of Armed Conflict--particularly reflected by the Optional Protocol, or the child soldier protocol that I mentioned--in which, whatever you think of the unlawful enemy combatant concept, whatever you think of some of these novel legal positions that the government has taken to justify aggressive detention and interrogation of people like Khalid Sheikh Mohammed and their trial by military commission, those arguments have no application in the context of a 15-year-old boy who is alleged to have thrown a hand grenade in a firefight, essentially as an act of self-defence.
So what I would say is that all the very difficult rule of law questions that are raised by Guantánamo and the military commissions process are on the one hand, and if Khalid Sheikh Mohammed was a Canadian, this country would have a very difficult moral dilemma to face concerning its commitment to the rule of law. But he is not, and you don't. Omar Khadr was a 15-year-old child, and his rights under international law are very clearly defined and protected, and there is no need for this subcommittee to take on the larger question of Guantánamo Bay and the war on terror in order to recommend that the Canadian government do the right thing with respect to Omar Khadr.