USA vs. Khadr – Judicial Quote of the Decade

We haven’t talked much about the killing of Osama bin Ladin here on Slaw, and there is considerable debate in international law over it. Contrary to what Jonathan Kay has said in the National Post, international law is still relevant, and even more so when the tables are switched.

Although it was completely unplanned, the Ontario Court of Appeal released a timely decision on Friday in United States of America v. Khadr dealing not with the more infamous Omar Khadr, but his brother, Abdullah Khadr, on extradition proceedings seeking to have him turned over to the United States.

In the unanimous decision denying the extradition, Justice Sharpe stated what could be the most pertinent judicial statement on the topic, not just for international law, but domestic law as well,

[76] …the rule of law must prevail even in the face of the dreadful threat of terrorism. We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values. For if we do not, in the longer term, the enemies of democracy and the rule of law will have succeeded. They will have demonstrated that our faith in our legal order is unable to withstand their threats….

In my opinion this summarizes the struggle the legal community has had over the past decade with the so-called War on Terror.

I’ve noted here before that the Supreme Court of Israel has looked to Canada’s Charter of Rights and Freedoms to help determine between individual rights and national security interests. In this Khadr case Justice Sharpe cited the Supreme Court of Israel for guidance, an intriguing example of legal cross-pollination,

[75] Another powerful judicial voice defending the rule of law against erosion from threats to national security is that of President Aharon Barak of the Supreme Court of Israel, who stated in Public Committee Against Torture v. Israel (1994), HCJ 5100/94, that it is “the destiny of democracy…not [to] see all means as acceptable”: at para. 39. Adherence to the rule of law means that a democracy “must sometimes fight with one hand tied behind its back”; but this does not deprive a democracy of “the upper hand” as, at the end of the day, the rule of law and individual liberty “strengthen its spirit and this strength allows it to overcome its difficulties”…

Notwithstanding Kay’s law degree from Yale University, those of us who truly cherish the rule of law will insist on the continuing relevance of international law and resist the erosion of our civil liberties. It’s the only way a democracy can truly survive.

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