Malcolm Mayes Cartoon - July 24

Photograph by: Malcolm Mayes, edmontonjournal.com

So Omar Khadr might be brought back to Canada over Rob Nicholson's dead body. It's another win/win.

Apart from the obvious advantages of not having Nicholson as Canada's Attorney-General, there is the obvious difficulty of what would happen if Khadr were returned to Canadian custody to serve out his "sentence."

Here's the Charter:

Proceedings in criminal and penal matters 11.
Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

[emphasis added]

So there you have it. As a Canadian citizen, Omar Khadr is guaranteed the right not to be found guilty of a crime unless "it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations".

Khadr was tried and convicted in a court that is not recognized under Canadian or international law, or the general principles of law recognized by the community of nations; that used evidence not admissible in Canada or under international law; and that does not meet the standards for a "military tribunal" defined by the Geneva Conventions of 1949, signed by the United States and Canada. Here's Article 5 of the Third Geneva Convention of 1949, regarding prisoners of war:

"Art 5.

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

It seems obvious that whatever went on at Guantanamo, Khadr and fellow prisoners did not enjoy the protection of the Convention and their status was never determined by a competent tribunal. Arguments that the Geneva Conventions don't apply to Khadr and his ilk are best answered in the words of the Nuremberg International Military Tribunal in their judgement on Field Marshall Wilhelm Keitel:

When, on 8th September, 1941, OKW issued its ruthless regulations for the treatment of Soviet POW's, Canaris wrote to Keitel that under international law the SD should have nothing to do with this matter. On this memorandum in Keitel's handwriting, dated 23rd September and initialled by him, is the statement: " The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore I approve and back the measures." ...

There is nothing in mitigation. Superior orders, even to a soldier, cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly and without military excuse or justification.

Keitel was hung at Nuremberg.

So if Omar Khadr is returned to Canada, he'll walk, as he should. Canada and the United States will look very stupid, and in breach of the international humanitarian law both have signed, and which the Supreme Court of Canada has said is binding.

Nicholson will, arguably, be complicit in a war crime.

Yessss. Myles Kirvan should resign, like Sims did.