The Omar Khadr Controversy:
Child Soldiers in Canadian and International Law

By Madeline Torrie, J.D. candidate, University of Toronto Faculty of Law

One of the biggest controversies of 2017 was the Trudeau government’s decision to pay $10.5 million in compensation to Omar Khadr, a Canadian citizen and former child-detainee at Guantanamo Bay. Khadr had sued the Canadian government for violation of his s.7 Charter rights while in U.S custody, where he had been interrogated by Canadian officials. Supporters of the payment highlighted Khadr’s age ­­­— he was 15 years old at the time of the alleged grenade attack which killed U.S. soldier Christopher Speer — and role as a child soldier. Opponents of the payout – including the vast majority of the Canadian public – argued that, at best, the government should have waited for the courts to decide on the lawsuit. According to Shelly Whitman of the Roméo Dallaire Child Soldiers Initiative, this may have related to the idea of Khadr as “child terrorist”: the public believes there is less responsibility owed to children who were “recruited for terrorism”, compared with those abducted as child soldiers.

In an official statement on Khadr, Senator Roméo Dallaire wrote “International law and norms, which Canada is signatory to, are put in place so as to protect those children who are unscrupulously used as weapons of war and to hold those who recruit and use them to account.” In an interview for Global News, War Child founder Dr. Samantha Nutt stressed the importance of rehabilitation and reintegration, even for child soldiers who have done worse than Khadr, who have “raped, killed dozens of people, who have slaughtered villages and wiped out entire communities.” A Globe and Mail editorial echoed these sentiments, pointing out that our justice system “gives special protection to children, because of the diminished moral and mental capacity of youth, rather than singling them out for special forms of mistreatment.”

On the other side of the debate, Jenni Byrne, a Conservative Party political advisor, drew a sharp distinction between the teenaged Khadr and, i.e., the seven-year-old children who were kidnapped and drugged during the Sierra Leone Civil War. For Byrne, Khadr was “no child soldier.” In a commentary for Global News, radio host Andrew Lawton cited Howard Anglin, a former policy advisor to Stephen Harper, to argue, “no international law or treaty prevents the prosecution of minors for war crimes.”

Child Soldiers in Canadian Law

In the 2010 decision Canada (Prime Minister) v. Khadr, the Supreme Court of Canada specifically noted Khadr’s status as a minor to highlight the severity of the breach to fundamental justice caused by Canada’s role in interrogating him while he was detained in Guantanamo: “Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel […] offends the most basic Canadian standards about the treatment of detained youth suspects.”

Section 7 of the Canadian Charter of Rights and Freedoms clearly protects the right to “life, liberty and security of the person” except in “accordance with the principles of fundamental justice,” which the Supreme Court concluded were violated in the case of Omar Khadr. Furthermore, while the crime took place outside of Canada’s criminal law jurisdiction, the treatment of Omar Khadr in Guantanamo did not align with the values that Parliament outlined for young offenders in the Youth Criminal Justice Act. The Act requires that convicted and detained youth be separated from adults, and places a strong focus on rehabilitation rather than detention.

Canada’s military became the first in the world to adopt a doctrine issuing guidelines on how to address child soldiers in combat on March 2, 2017. The doctrine instructs that a detainee under the age of 18 must be “immediately removed from the adult population,” again emphasizing separation and rehabilitation. While the doctrine also acknowledges the right of soldiers to use force to protect themselves, even against child soldiers, it is a meaningful policy step towards addressing the reality of child soldiers in international conflict while also respecting their status as minors.

Child Soldiers in International Law

The treatment of Khadr contradicts Canada’s long history of supporting protections for child soldiers in international law and treaties. The 1977 Additional Protocols to the Geneva Convention prohibited the recruitment of children under the age of 15 in armed conflict and stipulated protection for child detainees which included separation from adults. This was followed by the 1989 Convention of the Rights of the Child which also included the 15-year-old age limit. This age limit of recruitment was raised to 18 in the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which Canada helped create and ratified, and was adopted by the UN General Assembly in 2000. However, the recruitment of soldiers between the ages of 15-18 is still debated in some jurisdictions.

The Supreme Court wrote in Khadr (2010), that since Khadr was 16 at the time of his detention and he had no access to counsel, that “Canada’s Participation in the illegal process in place clearly violated Canada’s binding international law obligations.” Canada has chosen to recognize children recruited younger than 18 as child soldiers. As such, its participation in the interrogation of Khadr without proper counsel contradicts Canada’s commitments to international treaties protecting the rights of child soldiers.

That said, child soldiers are not immune from war crimes prosecution. Dominic Ongwen, who was abducted by the Lord’s Resistance Army in Uganda at age 10, is currently facing 70 counts of crimes against humanity and war crimes at the International Criminal Court, for crimes he is alleged to have committed as he rose through the LRA’s ranks. The Ongwen indictment raises difficult questions about whether to see child or youth soldiers as victims or perpetrators. Like Ongewen, Khadr was a victim of his circumstances, but who also allegedly committed a war crime.

In the end, the decision to settle, though politically unpopular, was informed by a combination of legal factors, including the Canadian Charter of Rights and Freedoms, the earlier Supreme Court decision, the Youth Criminal Justice Act, and decades of international law. These all point to the conclusion that Khadr was deserving of the rights and protections Canada affords to minors, and the reintegration and rehabilitation Canada has committed to provide to child soldiers.

What’s next for Khadr?

Khadr’s legal troubles are not over, however. Although out of prison, he was only released on bail from his eight-year prison sentence, under conditions which have affected, for example, access to his controversial family. In 2015, a Utah court ordered Khadr to pay out US$134.2-million in a wrongful death lawsuit filed by the widow of Christopher Speer. Khadr has so far refused to pay, and analysts are skeptical that it will ever be enforced in a Canadian court.

MT