If Omar Khadr were afforded the full protection of established international rights to which everyone is entitled, the law would prevent both further prosecution and continued detention. Further prosecutions before a properly constituted court, in the U.S. or in Canada, would end in a stay of proceedings or a dismissal of charges because of the irremediable harm caused to Khadr by prolonged violation of his internationally protected rights. The reputed actions of U.S. officials to falsify (inculpatory) and withhold (exculpatory) evidence would also operate to prevent further prosecution and detention. While there is now no credible evidence of wrongdoing by Khadr, proof of wrongdoing against him continues to increase.

The U.S. Supreme Court has confirmed on three occasions that the rights of GB prisoners are being violated. The Supreme Court of Canada (SCC) and the Federal Court of Canada (FCC) have both confirmed that Omar Khadr’s rights are being violated. On May 28 2008 the SCC ruled unanimously that “…the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.” The SCC concluded that participation, by Canadian officials with the ‘Guantánamo Bay process’ was “contrary to Canada’s binding international obligations.” On June 25, 2008, the FCC ruled, “The practice described to the Canadian official in March 2004 [of steps taken by U.S. officials to prepare Khadr for a scheduled DFAIT interview] was, in my view, a breach of international human rights law respecting the treatment of detainees under UNCAT [CAT] and the 1949 Geneva Conventions. Canada became implicated in the violation when the DFAIT official was provided with the redacted information and chose to proceed with the interview.”

Rights Violations

U.S. detention and treatment violates Khadr’s rights to, inter alia: liberty, freedom from torture and other cruel, inhuman and degrading treatment and punishment; freedom from arbitrary detention; freedom from prosecution for ex post facto offences (offences created after the acts are alleged to have been committed); habeas corpus; due process; timely and confidential access to counsel of choice; trial before an independent and impartial tribunal; a fair trial and the right to be treated as a child. Many of these violations are themselves crimes under both international and Canadian law. A few of the international instruments violated by U.S. detention and treatment of Khadr since July 2002 are: the Convention Against Torture (CAT), the Convention on the Rights of the Child, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, The Paris Principles: Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, the Hague Regulations of 1907, annexed to Hague Convention No. 4, the Geneva Conventions, the International Covenant of Civil and Political Rights; the Universal Declaration of Human Rights and the Rome Statute of the International Criminal Court.

Detention

On July 27, 2002, at the age of 15, he was captured after a four-hour ground and air assault by U.S. forces on a compound in the village of Ayub Khey, Afghanistan and has been imprisoned since that time. The U.S. detained Khadr, first under the purported authority of the orders of then U.S. President Bush made November 13 2001 and February 2 2002, and, since October 2006, under the authority of the Military Commissions Act 2006 (MCA). Khadr’s detention is not sanctioned by any international law. During his imprisonment, he has never been segregated from adults or otherwise been afforded the special treatment to which children are entitled by law.

Treatment

Full details of Khadr’s treatment at Bagram and GB are not yet known because of U.S. secrecy that has prevented proper review by courts and the public. Available evidence indicates that Khadr has suffered physical and psychological injury as a result of prolonged and relentless exposure to torture and other intolerable and illegal treatment. It is noteworthy that while at Bagram, Khadr was subjected to the ‘interrogation techniques’ of Sgt Clause: techniques that killed one Bagram prisoner and severely injured two others. Manfred Nowak, United Nations Special Rapporteur on Torture, has confirmed that prolonged sleep deprivation, such as used on Khadr at GB, is torture as defined and prohibited by CAT.

Charges

In November of 2005, more than three years after his arrival at Guantánamo Bay, Khadr was charged, as an ‘unprivileged belligerent’ with: conspiracy, murder, attempted murder and aiding the enemy. U.S. claims that Khadr was the sole survivor of the U.S. attack and had been witnessed throwing a grenade that killed a member of the U.S. military have since been proven false. Before the charges could be heard, the U.S. Supreme Court ruled, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) that the military commission process violated both the U.S. Uniform Code of Military Justice and Common Article 3 of the all four Geneva Conventions. Following Hamdan, the MCA was enacted and in April 2007, Khadr was charged under the MCA, this time as an ‘unlawful enemy combatant’, ‘without combatant immunity’, with murder, attempted murder, providing material support to the enemy, conspiracy and spying. The April 2007 charges were secretly withdrawn December 17 2008 and believed to have been re-laid January 13 2009. The categories of ‘unprivileged belligerent’ and ‘unlawful enemy combatant’ and ‘person not enjoying combatant immunity’ are arbitrarily determined labels not recognized in law.

There has been no hearing of these charges due to a variety of factors: non-disclosure by the prosecution, leaked documents indicating falsification of evidence by the U.S. military, dismissal of the charges and sacking of the military ‘Presiding Officer’, Col. Peter C. Brownback originally assigned to hear the Khadr case. On June 4 2007 Brownback dismis
sed all charges against Khadr on the basis that there was no jurisdiction under the MCA to try the charges. That dismissal was overturned by a hastily convened Court of Military Commission Review. When the case reconvened in November 2007, Brownback ordered both the prosecution and the defense to disclose all the evidence they intended to rely on and refused to set a trial date until disclosure had been provided. On May 22 2008 Brownback threatened to suspend the proceedings if prosecutors failed to provide disclosure of: copies of the Detainee Management System records related to Khadr’s treatment, investigators’ notes of witness interviews and details of ‘militants’ killed in the July 2002 military assault. On May 28 2008 Brownback was summarily removed from the Khadr case by the Pentagon. The MCA proceedings have been widely discredited as illegal and illegitimate. Former MCA prosecutor, Lt. Col. Darrel Vandeveld, recently declared that “…it is impossible for anyone involved (the prosecutors) or caught up (the detainees) in the Commissions to harbor even the remotest hope that justice is an achievable goal” The MCA proceedings are now suspended until May 12, 2009 at the request of U.S.President Obama.

The law requires Canadian and U.S. to take measures to effectively and immediately protect Khadr’s rights and to prevent and punish violations against him.

Gail Davidson is the founder and Executive Director of Lawyers Rights Watch Canada and the Chair and co-founder of Lawyers Against the War.
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