A Canadian perspective -  the case of Omar Khadr

Alim 17 April 2008, 01:08PM

Omar Khadr, a Canadian national, has been in US military detention for approximately 6 years, a quarter of his life. He was taken into custody in July 2002 by US forces in Afghanistan at the age of 15 and is charged with throwing a grenade that killed a U.S. soldier in a July 2002 firefight.

As a Canadian, it was most disturbing to learn that Mr.Khadr is the last citizen of a western country to be held at Guantanamo Bay. This is not to say that Mr.Khadr’s well-being and right to a fair trial is more important than those of other detainees simply because he is a Canadian. Rather, I am unable to comprehend why Canada, a staunch defender of human rights (The Canadian Charter of Rights and Freedoms was enacted in 1982) and signatory to the Convention on the Rights of the Child and its Optional Protocol would shy away from such serious responsibilities at such a pressing time.

Evidence indicates that U.S. authorities have, during the six years, violated essentially all Omar Khadr’s fundamental rights, namely his rights to: liberty, due process, freedom from torture, freedom from arbitrary imprisonment, freedom from prosecution and the right to equality before the law and equal access to the protection of the law. Many of these violations are themselves crimes. Mr. Khadr’s entitlement to these rights flows from his status as: a) a Canadian citizen protected by Canadian law, including the Charter; b) a child at the time of capture protected by the Convention on the Rights of the Child; c) a prisoner of war protected by the Third Geneva Convention; and d) a human being protected by the Convention against Torture and other Cruel or Inhuman Treatment or Punishment, the Criminal Code of Canada, the Crimes against Humanity and War Crimes Act and the Rome Statute of the International Criminal Court and the Universal Declaration of Human Rights.

Despite the overwhelming weight of authority against Mr. Khadr’s detention, Maxime Bernier, Canada’s Foreign Minister, told parliament that “discussions about Mr.Khadr’s return to Canada are premature until such time as the legal process, and the appeals process, have been exhausted.”

Amnesty International disagrees. Mr. Khadr cannot be said to be in the course of a ‘legal process’ because his fate will be determined by a Military Commission, not a civil court. Military commissions are fused to the executive branch of government and lack the independence required of a judicial organ. Furthermore, the right to be represented by a lawyer of the detainee’s choice is restricted, evidence that is obtained coercively may be used against the accused and the death penalty can be passed after a ‘trial’ that fails to meet international standards. That said, how can Mr. Khadr be said to be involved in a ‘legal process’?

Approximately ten years ago, I was seated in a high school ‘Social Studies’ class in Canada in which the teacher rehearsed the provisions of the Canadian Charter of Rights and Freedoms and assured us that Canada had constitutional safeguards in place to ensure that we were not arbitrarily deprived of our liberty. Had I known then what I know now, it would have been an opportune time to articulate the distinction between making grand pronouncements on one hand and actually living up to them, on the other.

Mr. Khadr deserves better. As a Canadian citizen he is entitled to be repatriated to Canada and provided with treatment that is consistent with the wide array of international instruments and treaties to which Canada is a party.

Canada has both the legal duty and capacity to secure the legal rights of Omar Khadr and to conduct appropriate investigations and proper prosecutions of acts allegedly committed by him.

By Alim Khamis

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