Friday, August 11, 2017

The Case for Khadr: Reflections and Other Possibilities

加拿大政府应该付给卡德尔1050万加币吗?

介绍

20027月,美军在阿富汗进攻塔利班,美军中的莫里斯被手榴弹炸伤,一眼失明,战友斯皮尔被炸死。15岁的卡德尔当时是塔利班的翻译,他被指控扔出来那颗手榴弹。美军攻下塔利班之后,发现并抓获了严重受伤的他。后来他被关在关塔纳摩监狱受审并囚禁了8年。其间,美军关塔纳摩军事委员会(注,不是军事法庭)判处卡德尔犯有战争罪。8年后因卡德尔承认有罪,才被引渡回加拿大。不久前,美国犹他州法院判决卡德尔应向斯皮尔的遗孀和莫里斯赔偿1.34亿元。20101月加拿大最高法院第三次判决加拿大政府在卡德尔一案上违宪(请注意加拿大情报官员参与了对卡德尔的审讯),侵犯了其公民权。卡德尔的律师据此要求2000万元的加币赔偿,特鲁多决定停止已经耗费500万元的官司,实行庭外和解,道歉并赔偿1050万加币,并且已经付诸实施。美国方面要求冻结卡德尔的财产,以便支付对斯皮尔遗孀和莫里斯的赔偿,但是这一请求因不能证明卡德尔欲藏匿或者花光有关资产而被安省高级法院驳回。

日前,在一次最新的安格斯雷德民意调查结果显示,71%的加拿大人认为加拿大政府赔偿和道歉,并且64%的加拿大人认为卡德尔仍然是一个潜在的威胁,虽然74%的加拿大人也认为,卡德尔在15岁被俘时还是一个小孩,从一开始就应该按照国际公约将其视作未成年人处理。

争论

卡德尔是否犯有战争罪和叛国罪?

根据对史料的重新查询与审阅,专家并不能确定是否是卡德尔扔出的手榴弹炸死了斯皮尔,而且多伦多大学的法学教授奥黛丽麦克林指出,在战场上参战者互相致死不属于战争罪,况且,卡德尔自身也受伤,不能美国军人受伤是战争罪,而美军致对方受伤就不是战争罪。

不过,有人辩论说,斯皮尔是一名军医。 军医(手无寸铁的平民)一直被认为是冲突中的“受保护人”。 自从日内瓦公约的起草以来,杀死一名军医是一种战争罪。

此外,2008年,渥太华法律学生在克雷格福赛斯教授的指导下,向参议院人权委员会提交了一份153页的报告。 他们后来在下议院委员会作证说,有充分的理由相信奥马尔可能因加拿大法律被起诉叛国罪。 遣返并不等于有罪不罚。 如果加拿大要求Khadr在被捕之后立即遣返,那么他在这里被成功起诉的可能性更大。

卡德尔是否应该赔偿?

按说,卡德尔的事跟加拿大没有关系,因为打仗是在阿富汗,关押是在古巴的关塔纳摩监狱,诉讼一开始是在美国。但是卡德尔作为加拿大人的权利受到伤害,所以卡德尔后来在律师的帮助下控告了加拿大政府。卡德尔是加拿大公民,被俘时是15岁,而且在关塔纳摩监狱受到了逼供和虐待。在关塔那摩美军基地关押的犯人被非法拒绝了“habeas corpus 即人身保护令。故此其非法流程违背了日内瓦公约。再则,在2008年判例中,加拿大最高法院援引了2007R v. Hape [2007]的案例,明确了国家之间在原则问题上的相互尊重,其中包含了加拿大外交人员在海外对国外[美国]法律和流程的接受,但是这种接受在他国政府[美国政府]明显违背国际法和基本人权的时候终止。最后,2010年加拿大最高法院关于Omar Khadr的第二个案子Canada (Prime Minister) v. Khadr [2010] SCJ No.3中,法庭同意由于Khadr在受审过程中被剥夺睡眠的权利,有权获得宪章241款的补偿。实际上,美军有关对卡德尔用身体清洗地板的要求也是严重违法的。


赔偿是否应该为1000万加币?

19701月,萨省的大卫米尔卡德因对护理学生盖尔的强奸杀人罪被误判终身监禁,因其母亲的坚持和反对党的攻击,最终该案重新审理,19995月加拿大政府被判赔偿1000万加币。但是,那一个是明显的怨假错案,加拿大政府在里面负有不可推卸的责任。而在卡德尔一案上,卡德尔是站在阿富汗攻击盟军的一方,身上有一死一伤的血案(可能性比较大),如果给他巨额赔偿,这将引起人们对价值导向和法律惩罚机制的困惑。同时,美国正在重开与加拿大的贸易谈判,这个时候给予一个被认为是恐怖主义分子的人一笔巨额赔偿,将会极大地激怒美国人。而且,私下和解虽然可能会减低有关法庭费用,但是却在一定程度上扭曲了法庭精神,践踏了公平与正义。另外,有人质疑,该巨额赔偿可能会为不够廉耻的律师开放绿灯(据悉,卡德尔的律师为其辩护超过10年,甚至提供住所)。

还有其他选项吗?

如果不即刻赔偿1050万加币,加拿大政府可以让法庭走正常程序,这样既保护了法律的威严,规范了法律秩序,又缓冲了紧张的加美关系。而且,即便法庭费用可能上升,这也在一定程度上也是应该的,更何况赔偿金额不一定会是1000万加币。而且,卡德尔可以因叛国罪被追诉,这样,两者将在一定程度上相互抵消。

另外,即使庭外和解,有人指出,把一千万都给卡德尔也是不应该的,因为从源头和恢复原理来看,卡德尔一事的起因是手榴弹爆炸事件,那么如果要按照古老的综合解决方案圆满解决这一问题,应该给莫里斯和斯皮尔的遗孀各付出一部分,例如斯皮尔遗孀400万,莫里斯300万,卡德尔300万。这样在一定程度上既解决了伤害问题,又缓解了加美矛盾。

结论

加拿大政府私下对卡德尔单方面赔偿1000万加币是错误的。

注释:照片来源于https://en.wikipedia.org/wiki/Omar_Khadr

Should the Canadian government pay C$10.5 million to Khadr?

Introduction

In July 2002, the US military attacked the Taliban in Afghanistan, the US military sergeant Layne Morris was wounded by grenades, with one eye becoming blind, while his comrade Christopher Speer was killed. The 15-year-old Omar Khadr was then a translator for the Taliban, who was accused of throwing out the grenade. After the US military attacked the Taliban, they found and captured the severely injured Khadr. He was later imprisoned at the Guantanamo prison for 8 years. While in prison, the US military committee of Guantanamo (note, not a military court) sentenced Khadr guilty of war crimes. When he admitted guilty 8 years later, Khadr was extradited back to Canada. Not long ago, the US Utah Court ruled that Khadr should pay C$ 137 million to Speer's widow and Morris. In January 2010 the Supreme Court of Canada ruled that the Canadian government was unconstitutional in the case of Khadr (note that Canadian intelligence officers participated in his interrogation), violating his citizenship right. Khadr's lawyer accordingly asked for C$20 million in compensation, and Trudeau decided to stop the lawsuits which already cost the government C$5 million, to execute an out-of-court settlement, apologize and compensate C$10.5 million, and this was immediately carried out. The United States demanded the freezing of the property of Khadr in order to pay compensation for Speer's widow Tabitha and Morris, but the request was dismissed by the Ontario Supreme Court for failing to prove that Khadr wanted to hide or spend away the assets.


A few days ago, at the latest Angus Reid poll, 71% of Canadians considered the Canadian government should not compensate and apologize to Khadr, and 64% of Canadians thought that Khadr was still a potential threat, though 74 % of Canadians also thought that Khadr should be treated as a minor from the beginning in accordance with international conventions when he was
captured at the age of 15.

Debate

Should Khadr be charged of war crimes or treason?

According to the re-inquiry and review of the historical data, the experts cannot determine whether Speer was killed by a grenade thrown out by Khadr, and the University of Toronto law professor Audrey McLean pointed out that in the battlefield, the deaths caused by the warriors to each other do not belong to war crimes. Moreover, Khadr himself was injured. If the injury made to the US military is a war crime, the injury made by the US military to others should also be a war crime.

However, there is a debate over the fact that Speer was a medic. Medics (unarmed civilians) have always been considered “protected persons” in conflict. Since the drafting of the Geneva Conventions, killing a medic is punishable as a war crime.

Furthermore, in 2008, Ottawa law students, under the supervision of Professor Craig Forcese, wrote a 153-page report given to a Senate Committee on Human Rights outlining the law. They later testified before a House of Commons committee saying that there was good reason to believe that Omar could be prosecuted of treason under Canadian law. Repatriation was not tantamount to impunity. If Canada demanded Khadr’s repatriation immediately after his capture, there was a greater possibility he could have been successfully prosecuted here.

Should Khadr be compensated?

Someone may say Khadr's case has nothing to do with Canada because the war was in Afghanistan, the detention was held at the Guantanamo prison in Cuba and the lawsuit was initiated in the United States. But Khadr’s right as a Canadian citizen was infringed upon, so Khadr later sued the Canadian government with the help of a lawyer. Khadr was a 15-year-old Canadian when he was captured and was abused and forced to confess at the Guantanamo detention camp. The detainees at the US military base in Guantanamo were illegally rejected "habeas corpus". So its illegal process is contrary to the Geneva Convention. Furthermore, in the 2008 case, the Supreme Court of Canada cites the case of Rv. Hape [2007] in 2007, which clarified the mutual respect among different countries on the issue of principle, which included the acceptance of foreign (such as American) laws and processes for Canadian diplomats abroad, but this acceptance is terminated when other governments [like the US government] are clearly violating international laws and fundamental human rights. Finally, in the second case of the Supreme Court of Canada on Omar Khadr, Canada (Prime Minister) v. Khadr [2010] SCJ No. 3, the court agreed that Khadr was deprived of the right to sleep in the course of the trial, and he was entitled to compensation under the Charter 24:1. In fact, the request by the US military for him to use the body to clean up the floor is also a serious violation of the law.

Should the compensation be C$10.5 million?

In January 1970, David Milgaard was wrongly sentenced to life imprisonment due to his being charged of raping and killing a nursing students Gai. Because of his mother's insistence and the opposition party’s attack, the case was finally re-examined, and the Canadian government was ordered to compensate him for C$10 million. However, that one is a clear resentment; the Canadian government has an inevitable responsibility. In the case of Khadr, Khadr is standing in Afghanistan on the side against the Allies, with the blood of one wounded and one dead (more likely though still not certain). If he is awarded huge compensation, it would cause people to feel confused about their value orientation and legal punishment mechanism. At the same time, the United States is re-opening trade negotiations with Canada, at this time making a huge amount of compensation to someone considered a terrorist, will greatly anger the Americans. Moreover, private reconciliation may likely reduce the court cost, but to a certain extent, this may distort the spirit of the court, trample on fairness and justice and put the law system at risk. In addition, it was questioned that the huge indemnity might open a green light for unscrupulous lawyers (it is learned that Khadr's defense lawyers have defended him for more than 10 years and even provided shelter).

Are there any other options?

If it does not make an immediate compensation of 10.5 million Canadian dollars, the Canadian government can let the court go through the normal process, which not only protects the majesty of the law, regulates the legal order, but also cushions the tension between Canada and the United States. Moreover, even if the court costs may rise, which to some extent should be, the amount of compensation may not be necessarily 10 million Canadian dollars.

In addition, even if the reconciliation outside the court is used, it was pointed out that Khadr should not be given C$10 million, because from the source point of view and based on the reinstitution principle, the cause of the problem is the event caused by a grenade, thus the successful solution to this problem, should include those involved in the event, Morris and Speer’s widow Tabitha. Thus, a more reasonable payout should be, Tabitha 4 million, Morris 3 million, Khadr 3 million. In this way, we can both solve the problem of injury and death, and ease the contradiction between Canada and the United States.

Conclusion

It is wrong for the Canadian government to unilaterally compensate Khadr for $ 10.5 million.

Note: Pictures are from https://en.wikipedia.org/wiki/Omar_Khadr.


Wednesday, August 2, 2017

Selected Top Canadian Songs











k.d. Lang—"Constant Craving"
Anne Murray—"Snowbird"
Joni Mitchell—"The River"
Gordon Lightfoot—"The Wreck of the Edmund Fitzgerald"
Tom Cochrane - Life Is A Highway
Ian and Sylvia - Four Strong Winds (CBC TV 1986)
Mashmakhan-As The Years Go By
Spirit of the West – Home for a Rest (#1 on Global 50 Legendary)
Joni Mitchell – Big Yellow Taxi (#3 on Global 50 Legendary)
Kim Mitchell – Patio Lanterns (#7 on Global 50 Legendary)
Terry Bush – Maybe Tomorrow (The Littlest Hobo theme, #9 on Global 50 Legendary)
Neil Young – Hey Hey, My My (Into the Black, #14 on Global 50 Legendary)
Sarah McLachlan – I Will Remember You (#31 on Global 50 Legendary)
Carly Rae Jepsen – Call Me Maybe (#31 on Global 50 Legendary)
https://youtu.be/fWNaR-rxAic
Neil Young –  Harvest Moon
https://youtu.be/n2MtEsrcTTs