Subcommittee on International Human Rights Committee on May 13th, 2008

[Prof. David Crane]

I think it's important that we consider what Canada can do for Omar Khadr, and that is to bring him home and have his case fairly and openly considered in a Canadian court. The courts are open in Canada, and whatever the judgment is, I think the Canadian people could handle that. But I think that's the appropriate place where Omar Khadr can be judged, and that is by his own citizens, not in Guantanamo.

[The Chair, Conservative, Scott Reid]

You have a bit more time, Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

One other question that comes to mind revolves around his age. You mentioned earlier that you had the opportunity to prosecute 16-, 17-, and 18-year-olds, but I noticed that 15-year-olds were missing on your list. Presumably that's because they are, as you're saying, less able to formulate the plans and the deeds that would bring them to prosecution.

[Prof. David Crane]

There's a practicality here. I think the international community has made some judgments here. Even though the definition of a child is anybody under the age of 18, they also recognize the fact that military forces recruit people younger than that.

But they certainly have come to a consensus that anybody who's 15 years of age and younger is a child, and it doesn't matter what the situation is. There is a floor. In fact, it's important for this esteemed committee to consider the case of the prosecutor versus Hinga Norman, the prosecutor being me. They ruled in the appellate decision that the concept of the unlawful recruitment of children under the age of 15 is now customary international law and has been--since crystallizing their customary international law--since 1994, and it has said it is a crime against humanity.

Of course, all of the international tribunals follow each other's jurisprudence. So we now have a legal standard by which we now review these cases, and the international tribunal--the Special Court for Sierra Leone--was the first of those tribunals to do that. It was a clarion call stating that individuals who cause these children to be placed in situations to kill should be held accountable as a crime against humanity.

[The Chair, Conservative, Scott Reid]

All right. Thank you very much.

From the government side, Mr. Kenney, please.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Thank you.

Senator Dallaire, correct me if I'm wrong, but I believe you said in your testimony that what the United States is doing is exactly what the terrorists are doing. You also said, I believe, that the United States is no better than the other guy. I assume when you said “the other guy”, you were referring, inter alia, to the terrorists, or al-Qaeda. Is that actually your position?

[Roméo Dallaire]

My position is that the minute you start playing with human rights, with conventions, and with civil liberties in order to say you're doing it to protect yourself--and you are going against the fundamentals of those rights and conventions--you are no better than the guy who doesn't believe in them at all. We are slipping down the slope of going down that same route and using the argument that these conventions and these methods are in fact preventing us from protecting ourselves. I would argue that, on the contrary, they are in fact a guarantee that we can protect ourselves. It's a matter of us knowing how to use them and to be innovative in trying to provide our protection in this complex era.

[Jason Kenney, Conservative, Calgary Southeast, AB]

So when you said “the terrorists”--there are different terrorists from different movements--I presume, in the context here, you are principally talking about al-Qaeda-style terrorists, jihadi extremists. Those are the terrorists you were referring to?

[Roméo Dallaire]

In this case, yes, that's what we're working with.

[Jason Kenney, Conservative, Calgary Southeast, AB]

So would you contest the fact that this category of people is responsible for things such as capturing and beheading innocent civilians, and, in one instance recently, capturing teenage girls with Down's Syndrome, strapping them with suicide belts and sending them into a child's pet market in Baghdad, and calling for the destruction of all the Jewish people? Would you contest that these are some of the tactics and aspirations of the terrorists to whom you referred?

[Roméo Dallaire]

I notice you just threw in the last one there to give yourself a whole context.

First of all, it is the same as those adults who use child soldiers in Rwanda, Sierra Leone, Burundi, Uganda, Sudan, Darfur, and Sri Lanka. In so doing, it is the child soldier who is being used, and we are using illegal means to try to try them.

[Jason Kenney, Conservative, Calgary Southeast, AB]

So is it your testimony that al-Qaeda strapping up a 14-year-old girl with Down's Syndrome and sending her into a pet market to be remotely detonated is the moral equivalent of Canada's not making extraordinary political efforts for a transfer of Omar Khadr to this country? Is that your position?

[Roméo Dallaire]

If you want it in black and white, then I'm only too prepared to give it to you: absolutely. You're either with the law or you're not with the law. If you wish to fiddle with the law and say, well, we're going to go a bit this way and we're going to go a bit this way, then fine. But in the process of what we are looking for, you're either guilty or you're not. You're either a child soldier or you're not.

If you like, you can use the extreme scenarios under which I'm articulating my position, which is that you are not allowed to go against those conventions, and if you do, you're going down the same road as those who absolutely don't believe them at all.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Sir, I submit the only thing extreme here is what you're saying.

You said you've raised several questions very nobly in the Senate in recent months. Were you appointed to the Senate in the spring of 2005?

[Roméo Dallaire]

Yes.

[Jason Kenney, Conservative, Calgary Southeast, AB]

And did you avail yourself of the opportunity to raise this matter with the Attorney General, the Minister of Foreign Affairs, the Prime Minister, or any representatives of the government in 2005?

[Roméo Dallaire]

In 2005 I was doing just like the opposition is: on one side ignoring it and on the other side not being aware of it.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Is that a no? You did not raise it with them?

[Roméo Dallaire]

I was not aware of it. I said that in my testimony.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I see.

You weren't aware of the Khadr affair in 2005?

[Roméo Dallaire]

I was not aware of it.

[Jason Kenney, Conservative, Calgary Southeast, AB]

You were not aware of Omar Khadr being--

[Roméo Dallaire]

I was in the United States, at Harvard at the time.

[Jason Kenney, Conservative, Calgary Southeast, AB]

You were not aware of Omar Khadr. You had never heard of the case, the Khadr family, in 2005?

[Roméo Dallaire]

No, I was...well, to be quite honest, you couldn't even get a Globe and Mail at Harvard, so I'm not sure. I don't remember seeing the Khadr case when I was there, no.