Wednesday, August 26, 2009

"Harper's utter indifference" on Khadr case

There are a few points of interest in Tonda MacCharles' backdrop piece today on the Harper government's decision to appeal the Omar Khadr case to the Supreme Court. First, a bit of a crack in the Conservative facade is noted that suggests Harper's stubbornness on Khadr is not universally shared in his party:
Even some Conservatives privately admit they have been taken aback by Harper’s utter indifference to pleas about Khadr’s plight.
Shocked are they? Join the rest of us out here. That seems like rather big news. Some Conservatives at least are willing to say on background that they're not down with the Harper policy. But why haven't we heard anything about this until now? Where have they been? Nice to hear at this late date but these Conservatives clearly haven't thought enough of their differences with Harper on the issue to act in any respect to push him on the issue before now, when the stubborn policy is finally edging toward its resolution. And sure would like to know who the shocked souls are.

Secondly, it appears that MacCharles has reviewed the court filing and has this statement of the government's position, that is expected:

In its written brief, Ottawa says the lower court decisions have created an untenable situation - that of judges dictating foreign policy to the executive branch of government.

The notion that a government has a positive “duty to protect” citizens like Khadr abroad does not exist in international law, is rejected by courts in the United Kingdom and Australia, and goes further than courts in South Africa, where a government must only “carefully consider requests for diplomatic protection,” the brief states.

While that latter paragraph suggests that the upshot of the Federal Court rulings is to have created a sweeping new "duty to protect" that will be imposed on the federal government, as has been argued here before, that's stretching the interpretation of the lower courts' rulings. Khadr's status as a child soldier was key here, with Canada as a signatory to the international convention a determinative factor. So too was the implication of Canadian officials in Khadr's mistreatment by their interrogation of him at Guantanamo. Two very unique circumstances which narrowed the judgment and are unlikely to mean that it has broad application for future cases.

Let's hope that the Supreme Court acts quickly on this and dismisses the appeal. That would be a very powerful message to the indifferent Mr. Harper.