Thank you, Mr. Chairman.
Ladies and gentlemen, I am grateful for the opportunity to appear before you today.
As I believe I'm the first witness who is not recommending that Canada repatriate Mr. Khadr, and the only witness testifying this hour, I hope you'll indulge me if I take some time to briefly lay out my position.
First, I want to make it clear that I do not presume to tell Canada what action to take, nor do I carry a brief for the United States government, with whose policies I frequently disagree. International law imposes no binding legal obligations on Canada in this case. I'm here only to clarify some of the factors that I believe the Canadian government should consider in formulating its policy.
I will make three primary points today. First, contrary to the claims of some of the earlier witnesses, the prosecution of Mr. Khadr is neither unprecedented nor contrary to international law. Second, I will examine the actual text of the applicable law to correct what has hitherto been an extremely shoddy presentation of that law by previous witnesses. The third point I will make is that U.S. policy, far from being lawless or in violation of international law, more than satisfies the minimum requirements of due process set out in the Geneva conventions.
On the first point, as Mr. Khadr's own lawyer, Lieutenant Commander Kuebler, has stated, there is nothing in the optional protocol, customary international law, U.S. federal law, or Canadian law that bars the prosecution of a juvenile for war crimes. Mr. Lorne Waldman of the Canadian Bar Association confirmed Lieutenant Commander Kuebler's position in his testimony before this committee when he said:
In terms of the question with respect to the child soldier, it's not our intent to say that it would be a violation of the convention...there's no specific provision that precludes prosecution.
That point is worth repeating. There is nothing in international law, Canadian law, or U.S. domestic law that prohibits the prosecution of Mr. Khadr by the United States.
Professor Crane, a previous witness, agreed with this assessment. The furthest he went was to venture that in his opinion, no child under the age of 15 can commit a war crime. Professor Crane's age cutoff does not help Mr. Khadr.
Professor Crane was admirably candid when he acknowledged no bar to the prosecution of a soldier as young as 15 under international law. Although he testified that he declined to prosecute any soldiers under the age of 15 when he had the choice, that was a matter of prosecutorial discretion. He was clear, however, that the United Nations mandate under which he operated permitted him to prosecute soldiers under the age of 18 for war crimes. If the United Nations explicitly permits the prosecution of soldiers under the age of 18, it is absurd to claim that doing so violates international law.
For my second point I would like to focus on the applicable international law itself; not the law as many previous witnesses appeared to wish it were written, but the law as it's actually written.
Contrary to the testimony you have heard, there is good precedent for prosecuting soldiers under the age of 18 for war crimes. I can provide specific examples if the committee likes. Nor does international law say that those between the ages of 15 and 18 can never be soldiers. General Dallaire testified that the optional protocol concerning the involvement of children in armed conflict is the “only binding international instrument that concerns child soldiers”. So let us look at what the optional protocol actually says.
Article 1 in its entirety says:
States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.
There are two key terms employed here that I would like to focus on. The first is the phrase “take all feasible measures”. This is emphatically not an absolute bar to the use of soldiers under the age of 18. The phrase has an established meaning under international law that pre-dates the optional protocol. It means:
those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.
This is the definition of “all feasible measures” that Canada used in its adoption of protocol 1 to the Geneva conventions.
The International Committee of the Red Cross acknowledged this meaning in its working group notes during the negotiation of the United Nations Convention on the Rights of the Child. The Red Cross wrote:
In other words, the text which was finally approved means that voluntary participation by children is not totally prohibited.
This meaning was also reflected in the position statements of various nations when they ratified the optional protocol. For example, the United Kingdom expressly reserved the right to use soldiers under the age of 18 when there was a genuine military need.
The second key term in article 1 of the optional protocol on child soldiers is the word “direct”, as used in the phrase “take a direct part in hostilities”. Contrary to General Dallaire's claim, the use of “direct” means there's no prohibition concerning forward deployment of soldiers younger than 18 in non-combat roles.
Again, as the Red Cross explained in its working group notes:
...the Working Group could have strengthened protection by removing the word “direct”. The ICRC suggested this too during the Diplomatic Conference but the proposal was not approved. This being the case, it can reasonably be inferred...that indirect participation, for example gathering and transmitting military information, transporting weapons, munitions and other supplies is not affected by the provision.
Finally, article 3 of the optional protocol lays out the conditions for voluntary recruitment of soldiers between the ages of 15 and 18. The first condition is that the recruitment be genuinely voluntary. So the idea that a soldier under the age of 18 can never really be a soldier, and to claim that a 15-year-old is not capable of genuinely consenting to serve, are directly refuted by the text of the only applicable international instrument, in the words of General Dallaire.
When Lieutenant Commander Kuebler says that “children are never soldiers; they are children”, or General Dallaire says that “no one is allowed to use young people under the age of 18 in any way whatsoever”, their opinions are flatly contradicted by the official position of the United Kingdom, the UN Security Council, and the text of both the Convention on the Rights of the Child and the optional protocol on the involvement of children in armed conflict.
Turning to my final point, almost every witness so far has been eager to denounce the United States policy as illegal or in violation of international law. But I have yet to see any convincing evidence that it is so. Assertions and claims are not arguments.
It may come as a surprise to many Canadians who have not spent significant time in the American legal system--and this is a very important point--that the United States does not do show trials. The combatant status review tribunals and the military commissions are modelled on procedures that would satisfy the U.S. Constitution for the treatment of its own citizens. A fortiori they are adequate for members of al-Qaeda.
The error committed by most critics of the combatant status review tribunals and military commissions is that they will accept nothing less than the full protections of a civilian criminal court, even for unlawful combatants captured on the battlefield, and they denounce anything short of those protections as lawless. But theirs is a specious comparison, not only because such protections would be impractical for dealing with accused terrorists, and not only because battlefield detainees have never been accorded such expansive rights, but also because that is not what international law requires. For unlawful belligerents such as Mr. Khadr, the Geneva conventions require only the minimum or indispensable protections of due process. Those requirements are, as one would expect, much more limited than we require in a civilian court.
So what is the evidence that the process in place violates the minimum standards of due process under the Geneva conventions? It can't be the use of hearsay testimony. That's a common practice in war-time prosecutions, even of a nation's own soldiers. Indeed, it's a virtual necessity given the circumstances under which battlefield arrests take place. Many witnesses are dead, there's no forensic detective squad to document the scene, and most of the surviving witnesses are serving overseas at the time of trial. For all these reasons, military commissions throughout history have not applied the same evidentiary standards we demand of a civilian criminal trial. If they were required to do so, it would be virtually impossible to ever try detainees.
Nor can it be the withholding of sensitive information that makes the tribunals somehow unlawful, because again it's impossible to conceive of a process that permits full disclosure of classified information to the enemy. The Canadian Supreme Court's recent decision to permit a limited release of information relating to the interrogation of Mr. Khadr accepted this limitation.
The folly of a contrary system was demonstrated in the trial of Sheikh Omar Abdel-Rahman, the mastermind of the first World Trade Center bombing. In that case, brought under the regular U.S. criminal system, the prosecution was forced to turn over to the defence a list of people whom the U.S. government thought were involved in the bomb plot but had insufficient evidence to charge. Within weeks of the disclosure of this list, it was in the hands of Osama bin Laden.
Nor can there be any objection to the limited right of review by a civilian court. First, every country that recognizes a right to habeas corpus--and many western civilized countries do not--also recognizes that it can be suspended. Even the Canadian charter permits the suspension of habeas corpus, as does the U.S. Constitution. And most countries that allow habeas corpus to be suspended have actually done so.
Prime Minister William Pitt, “the younger”, suspended habeas corpus for seven years. Abraham Lincoln suspended habeas corpus during the American Civil War. And Prime Minister Trudeau suspended habeas corpus during the October Crisis in 1970. Indeed, Trudeau sent tanks into the streets of Montreal and rounded up hundreds of Canadian citizens and detained them without charge for weeks over the kidnapping of two persons and the death of one. We can only be thankful that the full devastation of 9/11 did not take place on Trudeau's watch. If habeas corpus can be suspended for suspected sympathizers of the FLQ, there can be no objection to suspending it for members of al-Qaeda and similar terrorist groups.
Besides which, the United States has not completely abolished the right to legal review. Detainees have a right of appeal first to the U.S. Court of Appeals for the District of Columbia, which is a civilian court, and thence to the Supreme Court itself. Moreover, whether detainees at Guantanamo Bay have a full constitutional right to habeas corpus is still an open question before the U.S. Supreme Court that will be decided next month.
Most observers expect the court to require some form of habeas review. If it does grant such a right, if the court does say that detainees at Guantanamo Bay are entitled to some form of habeas review, the United States will confer rights on enemy combatants that are unprecedented in the history of warfare.
So at best, it's premature to object to a U.S. policy based on the lack of a right to habeas corpus. At a minimum, Canada should await the decision of the U.S. Supreme Court in Boumediene v. Bush next month before formulating any policies.
A previous witness, Ms. Hilary Holmes from Amnesty International, objected to the indefinite nature of detainment at Guantanamo Bay and offered that as a compelling reason to press for Mr. Khadr's release. But even if Mr. Khadr were a lawful combatant, he could still be detained under the Geneva convention, at least as long as there is active combat in Afghanistan.
No one alleges that Mr. Khadr and his ilk are lawful combatants entitled to prisoner of war status. It is therefore illogical to expect them to be accorded protections greater than those that would be accorded to prisoners of war.
In any case, the CSRTs and the military commissions at Guantanamo Bay actually exceed the requirements of an article 5 tribunal under the Geneva convention. I'd be happy to expand on this point, with specific examples if the committee is interested.
Were Mr. Khadr being held by China or Saudi Arabia or Indonesia, the Canadian government would be rightly concerned about whether the minimum requirements of due process were being met, but he is not. The terms of his detention and trial are being supervised by all three branches of the United States government, which are constantly refining their procedures to reach the optimal balance between the rights of the accused and the requirements of national and international security. There is probably no country in the history of this world more committed to the preservation of individual liberty than the United States of America.
I hear sniggers on that point and I can address them; I can address them.
No fewer than four appeals by detainees have reached the Supreme Court, resulting in significant changes to the detainment regime already. This is how a civilized country, committed to the rule of law, operates. Everyone agrees that the detention of a fanatical and zealous enemy desirous of martyrdom imposes a new challenge for traditional and often anachronistic military and legal procedures. The United States has risen to that challenge, perhaps more slowly and hesitantly than most of us would like, but it indisputably has done so.
The rule of law that must reconcile many compelling and competing interests is not always neat and tidy. The compromises of our domestic legal system were worked out over centuries. It should not be surprising that the United States has taken several years to develop a reasonable and workable process, but the system now in place is working, it satisfies the minimum requirements of the Geneva conventions, and exceeds them in many regards, and there is no legal obligation for Canada to interfere with it.
I am happy to take questions on any of these matters or any other questions or sniggers that members of the committee might have.
