Canada stands by torture of child

[Mr.Moto]

@Muffin

Unless he is brought back to Canada as a prisoner of war, he can only be dealt with as a young offender under the Youth Criminal Justice Act, s. 14. That is the governing legislation. It applies based on the age of the accused at the time of the commission of the offence, not on how vile the offence was.

How is that the governing legislation? He was not in Canada when he committed his offenses.

Please explain in detail how Canadian statutes are the controlling ones here. The fact that Khadr is a Canadian citizen isn’t the answer - when I lived and visited abroad I had to obey the domestic laws in numerous countries. And capture on a foreign battlefield would complicate that situation considerably.

[Really_Not_All_That_Bright]

@Mr. Moto

How is that the governing legislation? He was not in Canada when he committed his offenses.

Please explain in detail how Canadian statutes are the controlling ones here. The fact that Khadr is a Canadian citizen isn’t the answer - when I lived and visited abroad I had to obey the domestic laws in numerous countries. And capture on a foreign battlefield would complicate that situation considerably.

He’s a Canadian citizen, and he’s not accused of a crime against an American national; if he were tried for a criminal offense, it would be by the Afghan courts (not bloody likely!) or a Canadian court. Under whatever legislation was in place in Afghanistan at the time of the invasion, I highly suspect he’s committed no crime at all.

The United States can’t claim jurisdiction unless it is willing to assert that Afghanistan is part of its sovereign territory.

[Sophistry_and_Illusion]

Somebody clarify a point of law for me. Suppose you are a citizen of a sovereign nation, and your nation is invaded by a foreign power. Either because your nation doesn’t have a standing army, or for some other reason, you fight as a civilian or part of a civilian militia (say, kind of a rag-tag affair, lacking uniforms and stuff) against the foreign power. Are you violating any international law or recognized law of war?

[Really_Not_All_That_Bright]

@Sophistry and Illusion

Somebody clarify a point of law for me. Suppose you are a citizen of a sovereign nation, and your nation is invaded by a foreign power. Either because your nation doesn’t have a standing army, or for some other reason, you fight as a civilian or part of a civilian militia (say, kind of a rag-tag affair, lacking uniforms and stuff) against the foreign power. Are you violating any international law or recognized law of war?

Scroll up and see Geneva Convention on the treatment of POWs, Articles 4 and 5.

In short, you get POW status if you fight under a clearly identifiable fixed symbol, ie. a flag; you obey the law and customs of war, you carry your arms openly, and somebody is in charge.

[Mr.Moto]

@Really Not All That Bright

The United States can’t claim jurisdiction unless it is willing to assert that Afghanistan is part of its sovereign territory.

Bullshit. Taking prisoners on a battlefield is standard procedure - during WWII when we captured Germans or Italians we weren’t staking claims on French or Italian territory, were we?

The fact that these prisoners are classified later as legitimate POWs or unlawful combatants has no bearing on their capture in the first place.

[Really_Not_All_That_Bright]

@Mr. Moto

Bullshit. Taking prisoners on a battlefield is standard procedure - during WWII when we captured Germans or Italians we weren’t staking claims on French or Italian territory, were we?

The fact that these prisoners are classified later as legitimate POWs or unlawful combatants has no bearing on their capture in the first place.

You asked “how is that the governing legislation?” I gave you an answer.

I’m not saying we had no right to take prisoners; I’m saying we can’t try him in an American criminal court because he’s not an American, he didn’t commit a crime against an American, and the offense wasn’t committed on American soil.

[Sophistry_and_Illusion]

@Really Not All That Bright

Scroll up and see Geneva Convention on the treatment of POWs, Articles 4 and 5.

In short, you get POW status if you fight under a clearly identifiable fixed symbol, ie. a flag; you obey the law and customs of war, you carry your arms openly, and somebody is in charge.

I see. So if Canada invades the US, Joe Sixpack either has to join the US military or a well-organized militia if he wants to shoot Canadians. He can’t just go Rambo guerilla on them.

[Really_Not_All_That_Bright]

@Sophistry and Illusion

I see. So if Canada invades the US, Joe Sixpack either has to join the US military or a well-organized militia if he wants to shoot Canadians. He can’t just go Rambo guerilla on them.

Well, not a well-organized militia necessarily, just one with a clearly defined leader. Guerilla tactics are perfectly legal, too- you can attack convoys and then run and hide in the woods, or wherever- you can’t run and hide in your house, though.

Note that you may be violating the laws of your own country if you do this, though.

[Mr.Moto]

@Really Not All That Bright

You asked “how is that the governing legislation?” I gave you an answer.

I’m not saying we had no right to take prisoners; I’m saying we can’t try him in an American criminal court because he’s not an American, he didn’t commit a crime against an American, and the offense wasn’t committed on American soil.

He didn’t commit a crime against an American? He chucked a grenade at some of them - and wasn’t a soldier allowed to do so.

The controlling legislation here is Convention IV, Article 5, Geneva Conventions:

  Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
  Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
  In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

So yeah, we can detain them and try them.

[elucidator]

We got the detaining part down! Nobody can fault our detaining, when it comes to that aspect of “detain and try”. Got it covered.

[Sophistry_and_Illusion]

@Really Not All That Bright

Well, not a well-organized militia necessarily, just one with a clearly defined leader. Guerilla tactics are perfectly legal, too- you can attack convoys and then run and hide in the woods, or wherever- you can’t run and hide in your house, though.

Note that you may be violating the laws of your own country if you do this, though.

So has it been established that this kid (or the other ‘unlawful combatants’ currently being held) were not part of such units? If they were, that would have obvious legal ramifications for our treatment of them.

[Muffin]

@Mr. Moto

How is that the governing legislation? He was not in Canada when he committed his offenses.

Please explain in detail how Canadian statutes are the controlling ones here. The fact that Khadr is a Canadian citizen isn’t the answer - when I lived and visited abroad I had to obey the domestic laws in numerous countries. And capture on a foreign battlefield would complicate that situation considerably.

Canada does not have the jurisdiction to take him away from the Americans if the Americans do not agree. If he lands up back in Canada (for example, if the Americans agree to return him here), then Canada has the jurisdiction to prosecute him for whatever he did outside of Canada.

Criminal Code of Canada, s. 481.2 http://www.canlii.org/ca/sta/c-46/sec481.2.html

Subject to this or any other Act of Parliament, where an act or omission is committed outside Canada and the act or omission, when committed in those circumstances, is an offence under this or any other Act of Parliament, proceedings in respect thereof may, whether or not the accused is in Canada, be commenced, and an accused may be charged, tried and punished within any territorial division in Canada in the same manner as if the offence had been committed in that territorial division.

Also have a boo at extra-teritoriality of the recent terrorism sections of the Criminal code at s. 83.25 http://www.canlii.org/ca/sta/c-46/sec83.25.html and 83.01(1)(b) http://www.canlii.org/ca/sta/c-46/sec83.01.html that came into effect shortly prior to the material time.

Here is a nice explanation of how extraterritorial jurisdiction works from the Supreme Court of Canada: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii802/1998canlii802.htmlhttp://www.canlii.org/en/ca/scc/doc/1998/1998canlii802/1998canlii802.html

Any discussion of territoriality begins with the fundamental distinction between a purported enforcement of domestic law in the territory of a foreign state (jurisdiction to enforce), and an attempt to give effect in domestic law to actions, people or things outside of the territory governed by domestic law (jurisdiction to prescribe). Attempts to enforce domestic law directly in the territory of a foreign state are prohibited in all but the most exceptional circumstances. In the words of Professor Brownlie, discussing “Extra-territorial Enforcement Measures”:

The governing principle is that a state cannot take measures on the territory of another state by way of enforcement of national laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given.

See Ian Brownlie, Principles of Public International Law (4th ed. 1990), p. 307. It was in this sense that the Permanent Court of International Justice observed in The Case of the S.S. “Lotus” (1927), P.C.I.J., Ser. A, No. 10, pp. 18-19:

Now the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.

But in the very next sentence, at p. 19, the International Court makes it very clear that the term “territoriality” has an entirely different meaning where a legal system merely purports to prescribe effects within its own legal system to events taking place abroad:

It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.

These two passages clearly illustrate the gulf that separates the principle of territoriality with regard to the jurisdiction to enforce, and territoriality as it might constrain the prescription of juridical consequences within the domestic legal system.

[Really_Not_All_That_Bright]

@Mr. Moto

He didn’t commit a crime against an American? He chucked a grenade at some of them - and wasn’t a soldier allowed to do so.

The controlling legislation here is Convention IV, Article 5, Geneva Conventions:

So yeah, we can detain them and try them.

sigh

Read that more carefully. It protects the right of the prisoner; it has nothing to do with jurisdiction.

[Paul_in_Qatar]

He was, arguably, part of a levee en masse and so counts as a soldier. Besides, at this point the evidence is most likely so inadmissible that it would have been better to treat him as a POW from the get-go.

Anywho, if an Afghani tosses a grenade at an American in Afghanistan, is that not a matter for the Afghani government to handle? Trying the guy like a crook is just more trouble than it is worth.

[Princhester]

@kingpengvin

While agree a trial should be done and soon. I have little sympathy for this boy and especially for his family, who we generously allow to stay in our country despite the fact they openly hate our country and joined up with our enemies to fight our allies.

@kingpengvin

Now if he is found innocent and that he was merely in the wrong place at the wrong time… well then he should try to get what he can to make up for this.

As if you haven’t already made up your mind…

[Mr.Moto]

@Really Not All That Bright

sigh

Read that more carefully. It protects the right of the prisoner; it has nothing to do with jurisdiction.

It has everything to do with jurisdiction - it deals with occupied territory. Now, which country was the occupying power in Afghanistan, at least in this particular area?

I’ll be the first to admit that the Geneva Conventions are problematic here - they were written for countries organized along Western lines with a clear demarcation between the civilian and military spheres. In the Arab world and probably in much of Africa these distinctions are considerably blurrier, and during a conflict may nearly disappear.

Be that as it may, these are the rules we have to deal with at the present time.

[elucidator]

Who are we now? Who are these people? There was a time when we wouldn’t be poring over law books to find a loophole that would permit us to torment and degrade a fifteen year old boy. It would have been unthinkable. But now?

And what, pray, do we imagine we might gain from such interrogations? Do we imagine that 15 year old boys have prominent positions in our enemies power structure, that they are privy to the secrets, the codes?

And how come we can’t seem to grasp the bleeding obvious, that after a matter of no more than weeks, any info he might have has lost all relevance.

What sort of vengeful and vindictive creeps are we turning into?

[smiling_bandit]

@elucidator

Who are we now? Who are these people? There was a time when we wouldn’t be poring over law books to find a loophole that would permit us to torment and degrade a fifteen year old boy. It would have been unthinkable. But now?

Chill, Shirley. There was also a time when even out worst enemies had the balls enough to stand up and proclaim themselves soldiers instead of sneaking suicide bombers into mobs of women and children.

And what, pray, do we imagine we might gain from such interrogations? Do we imagine that 15 year old boys have prominent positions in our enemies power structure, that they are privy to the secrets, the codes?

Actually, he might. They train 'em young out there. But regardless, he won’t be doing anything any more.

[quote]
And how come we can’t seem to grasp the bleeding obvious, that after a matter of no more than weeks, any info he might have has lost all relevance.

What sort of vengeful and vindictive creeps are we turning into?

You maybe. I’m not going to lose any sleep over a coward receiving much less punishment than he deserves. Frankly, we;'ve been doing hima a kindness. We could have just shot him down then, or maybe really sent a message by cutting off his nose, eyes, fingers and feet.

And even that wiould not have vengeance. It would have been a warning. Because for us it ain’t about vengeance. The whole reason we’re into this issue is because we’re not cold-hearted enough to just take them out on the spot. But they can’t be tried. We certainly have no jurisdiction and in any they comitted no crimes, because acts of war, even by evil people, even hen not in accordance to the generally accepted rules of war, are not crimes.

Some people just can’t accept that their precious laws, with which they stroke themselves to sleep every night, are not the laws of the world and that they are little more than self-protective bullshit written by one people to gratify their own egos.

[VinylTurnip]

@smiling bandit

Some people just can’t accept that their precious laws, with which they stroke themselves to sleep every night, are not the laws of the world and that they are little more than self-protective bullshit written by one people to gratify their own egos.

Sounds familiar. Jefferson? Either him or Scalia.

[Really_Not_All_That_Bright]

@smiling bandit

You maybe. I’m not going to lose any sleep over a coward receiving much less punishment than he deserves. Frankly, we;'ve been doing hima a kindness. We could have just shot him down then, or maybe really sent a message by cutting off his nose, eyes, fingers and feet.

You can call the kid a lot of things, but calling him a coward just makes you sound like a moron.