Reversal on Military Tribunals Could Affect Guantánamo Trial of Canada’s Omar Khadr

May 28, 2009

by Huguette Young

Prime Minister Stephen Harper has steadfastly refused to press Washington for the transfer of Omar Khadr from the infamous U.S. detention center in Guantánamo Bay, Cuba, to Canada.

And he’s not about to give in.

On May 7, he announced he would be appealing a Canadian court ruling calling for the return of Omar Khadr to Canada. The case is to be heard before the Federal Court of Appeal on June 23 in Ottawa.

In a compelling ruling released on April 23, Justice James O’Reilly of the Federal Court of Canada granted Khadr’s request to be tried on Canadian soil. He wrote that the prisoner’s constitutional rights to a fair trial had been violated and that Canada had ignored international child rights laws, especially those of child soldiers. And he called on Ottawa to press Washington for Khadr’s return to Canada “as soon as practical.”

Central to the debate is Khadr’s status as a child soldier, an issue recognized by the Federal Court but dismissed by the Canadian government.

Khadr was just 15 years old when he was arrested in Afghanistan in July 2002. He is alleged to have thrown a grenade in the midst of a battle that caused the death of a U.S. soldier. He maintains that he did not. After being treated at a U.S. army base for bullet and shrapnel wounds, Khadr was transferred to Guantánamo Bay in October 2002 on charges of murder, conspiracy, spying, and support of terrorism.

Seven years later, Khadr is the only Westerner still imprisoned in Guantánamo. He was scheduled to go on trial before a military tribunal in January but that process was halted by U.S. President Barack Obama’s decision to close the disgraced prison within a year, pending a review. After years of waiting and many missteps along the way, a military judge announced at the end of April that Khadr is scheduled to be tried by a military commission on June 1 in Guantánamo, confirmed one of his lawyers, Edmonton-based Dennis Edney.

But according to professor Wesley Wark, an expert on intelligence and security matters at the Munk Center for International Studies at the University of Toronto, in light of recent decisions by the Obama administration, a decision on how to move the Khadr case forward has not been reached. It’s possible, he says, that Khadr will face a military commission, “the rules of which have not been set down” or that he could be transferred to a district court in the United States “or he may be released.”

President Obama reaffirmed his intention on May 21 to close Guantánamo by year’s end and to review “each of the detainee cases at Guantánamo to determine the appropriate policy for dealing with them.” He vowed to prosecute detainees in U.S. federal courts when feasible, to transfer some detainees to “highly secure prisons” within the United States and to bring military commissions “in line with the rule of law.”

Obama’s decision to reverse course and to continue with the Bush-era military commissions’ process, albeit with some reforms, adds another layer of complexity to the problem. To Khadr’s benefit, the trial procedures will be changed to likely ban all statements obtained by cruel treatment and to give prisoners some flexibility in choosing their military counsel.

Omar Khadr’s case has raised eyebrows in Canada’s House of Commons and abroad. Canadian Senator Roméo Dallaire, the much-acclaimed author of Shake Hands with the Devil: the Failure of Humanity in Rwanda, claims Khadr “as a child soldier should be rehabilitated, not prosecuted,” he wrote in an opinion piece. The former commander of a UN mission in Rwanda, Dallaire, says Khadr “had no choice in his recruitment” to fight with Islamic militants.

Harper “conveniently overlooks the fact that in the 1990s, Canada led international efforts at the United Nations to draft the Optional Protocol on the Involvement of Children in Armed Conflict which prohibits the recruitment of children by armed groups and militias,” Dallaire claims.

But so far, Harper has refused to budge on the Khadr case, saying he is facing “serious charges” and that the American process should play itself out. The arguments in his appeal case have not been filed. But the grounds to appeal specify that the Federal Court was wrong to conclude that Khadr’s constitutional rights had been violated and to urge his return to Canada.

In January, the prime minister said he didn’t buy the argument that Khadr was a child soldier and saw no reason to ask for his transfer to Canada. “My understanding of international law, is, to be a child soldier, you have to be in an army,” he said in an interview to Global TV.

Those arguments don’t hold water.

For one, the very raison d’être of military commissions is shaky on legal grounds, says the head of Lawyers without Borders in Canada, Pascal Paradis, in an interview for this blog post.

In an open letter to the Prime Minister, he denounced the military tribunals as a “travesty of justice” because they don’t respect minimal standards in international law or Canadian and U.S. domestic laws. Paradis says Khadr has been subjected to inhumane, degrading and abusive treatment—like long periods of solitary confinement—while in U.S. custody.

Beyond that, Justice O’Reilly pointed out that the Canadian government failed to recognize Khadr’s special status “as a minor” even though he was 15 years old when he was arrested and 16 when he arrived at Guantánamo. Khadr had no counsel for over two years and no access to his family.

But as a signatory to the Convention on the Rights of the Child (defined as a child under 18 years old), Canada had a duty to ensure Khadr did not face torture or other cruel treatment, wrote the Federal Court judge. Further, the Canadian government failed to recognize under another convention that Khadr, as a child, was “vulnerable to being caught in armed conflict as a result of his personal and social circumstances in 2002 and before.”

True, Khadr’s family has a long history of alleged involvement with Islamic extremists. Khadr’s father, Ahmad Sa’id Khadr, is said to have been an al-Qaeda sympathizer. He was killed in a gunfight with Pakistani forces in October 2003. But whether Omar Khadr voluntarily participated in a gun battle with U. S. Forces is a matter for debate and up to the courts to decide. In a response to questions from The Canadian Broadcasting Corporation (CBC), he claims that he had no choice in the matter and vowed to rebuild his life “with the (right) bricks.”

The Federal Court ruling is crystal clear. Khadr’s rights have been violated and he should be brought back to Canada where he would likely get a trauma assessment and face independent and impartial courts under the rule of law. Of course, security concerns would have to be addressed.

Harper’s refusal to grant Khadr’s request to face justice in Canada is not defensible. On this point, the prime minister is isolated.

The Canadian Bar Association, Amnesty International and countless organizations have urged Ottawa to bring Khadr home on the grounds that he has a right to a fair trial. Other countries such as France, Belgium, the United Kingdom., and Germany have repatriated their nationals. Of the roughly 775 prisoners who have been held at the U.S. prison in Cuba since 2001, about 525 were released without charge and three have been convicted. In Canada’s House of Commons, opposition parties have sent a letter to Harper and Obama asking for Khadr’s transfer to Canada.

A strong supporter of the War on Terror (now officially called Overseas Contingency Operation), Harper is uneasy about the case. As Conservatives once wrote in a June 2008 dissenting report of a parliamentary subcommittee on human rights, “Mr. Khadr could become a litmus test on Canada’s commitment to impeding global terrorism and the results of our actions today could result in consequences that are not in the long-term interest of the country.”

According to professor Wark, the Canadian government has “a visceral dislike for the Khadr family as a whole” and doesn’t want to be saddled with Omar Khadr back in Canada.

That would mean deciding whether to put him on trial or if that were not feasible, to create “some kind of regime of surveillance and rehabilitation for him,” he said. “Can they simply allow him to go free? None of the options are palatable with them.”

Politically, Obama’s decision to revive the military commissions may give Harper a little more breathing room while the U.S. administration sorts out what to do with the 240 prisoners or so still at Guantánamo.

But dragging out this issue by appealing the Federal Court decision will only prolong the injustices Khadr has suffered during his seven-year detention.

The Canadian government is running out of excuses. The rule of law should prevail.

 

*Huguette Young is an americasquarterly.org contributing blogger based in Ottawa, Canada. To reach a blogger, send an email to: aqinfo@as-coa.org

Tags:: Canada, Guantanamo, Harper

---

---