THE Supreme Court of Canada agreed Canadian officials violated Khadr’s human rights and that he continues to be threatened by the effect of those violations. The Court unequivocally condemned Canada’s participation in Khadr’s interrogations at Guantanamo as violations of Khadr’s human rights, Canada’s constitution, and “basic Canadian standards about the treatment of detained youth.”
The Court Friday condemned Khadr’s treatment in the strongest terms.
In a unanimous ruling of all Judges released Friday, the court declared that Canadian officials breached Khadr’s right to life, liberty and security of the person under the Charter of Rights and Freedoms.
However, the Supreme Court of Canada declined to order the Canadian government to seek Khadr’s repatriation because doing so would intrude upon the executive’s discretion in foreign affairs. However, the court held that the effects of US and Canadian violations continue into the present and that the Canadian government must, in exercising its foreign affairs powers, take this into account.
“We … leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs and in conformity with the charter,” the ruling said.
Khadr, 23, has been imprisoned at Guantanamo Bay, Cuba, since he was arrested in Afghanistan at age 15 (in 2002), accused of throwing a grenade that killed a U.S. soldier. However, the evidences contradict the charge. He is scheduled to be tried in July by a U.S. military court on charges of murder, conspiracy and support of terrorism.
Human Rights Watch said Friday that The Canadian government should immediately request the repatriation of Canadian citizen Omar Khadr from Guantanamo even though Canada’s Supreme Court did not order it to do so.
“Canada was complicit in some of the abuse Omar Khadr faced at Guantanamo” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “Canada’s Supreme Court condemned Khadr’s treatment in the strongest terms. The Harper government should now work to bring Omar Khadr home to Canada.”
During his more than seven years in US custody, both at the US-run Bagram prison in Afghanistan and at Guantanamo, Khadr was reportedly subjected to abusive interrogations. He told his lawyers that he was subjected to sleep deprivation, shackled in painful positions, threatened with rendition to Egypt, Syria, or Jordan for torture, and used as a “human mop” after he urinated on the floor during one interrogation session.
In 2003, Canadian officials, including Canadian Security and Intelligence Service (CSIS) agents, interrogated Khadr at Guantanamo even though they had been informed that he had been subjected to three weeks of sleep deprivation in order to make him “more amenable” to talking to them.
Khadr, a native of Toronto, is slated for trial by military commission for allegedly throwing the grenade that killed US army medic Christopher Speer in 2002. In 2005, Khadr was charged with murder and conspiracy and is slated for trial by military commissions at Guantanamo that do not meet international fair trial standards.
Every other Western country whose nationals were detained at Guantanamo has successfully requested their return, Human Rights Watch said. Canada stands out as the sole exception.
“The United States was clearly Khadr’s primary abuser, but Canada was complicit in his mistreatment,” Prasow said. “The Canadian government should do the right thing and seek Khadr’s return home.”
A Canadian federal court first ordered Ottawa to request Khadr’s return in April 2009, after finding that Canada had violated its constitution and was likely in violation of its international human rights obligations by cooperating with the United States’ abusive interrogation regime. The court said requesting Khadr’s repatriation was the only remedy it could offer to address the serious and ongoing human rights violations of a Canadian citizen.
The Canadian government appealed the ruling, and in August 2009, an appeals court upheld the lower court ruling. The government again appealed, and Canada’s Supreme Court heard the case in November 2009.
Human Rights Watch, in conjunction with the University of Toronto law faculty’s human rights clinic, appeared before the court on Khadr’s behalf as one of nine interveners in the case. Arguing that Canada had become complicit in US treatment and abuse of Khadr, Human Rights Watch said the only reasonable remedy would be for Canada to seek his repatriation.
“The court’s ruling puts the ball in the Canadian government’s court,” Prasow said. “Canada should now act to protect Khadr’s rights as an ill-treated Guantanamo detainee and as a former child soldier. The best way to do this would be to make a real effort to return him to Canada.”
The American Civil Liberties Union pointed to the decision as affirmation that the U.S. should reverse its decision to try Khadr before a military commission and should repatriate him to his home country for rehabilitation.
“This decision underscores the need for the U.S. to reverse its decision to prosecute Omar Khadr before an illegal military commission,” said Jamil Dakwar, Director of the ACLU Human Rights Program. “As a teenager, Omar Khadr was subjected to abusive interrogations and sleep deprivation by U.S. officials without access to court or counsel, and with no regard for his status as a juvenile. It is encouraging that the Canadian justice system has found that this is no way to treat youth in detention, and recognized that Omar Khadr’s rights continue to be violated. Omar Khadr should be sent back to Canada where he can be rehabilitated.”
The U.N. Optional Protocol on the Involvement of Children in Armed Conflict, which the U.S. ratified in 2002, obligates the U.S. to ensure special safeguards for children under 18 who are taken into U.S. custody. This week, the U.S. government issued a report in response to the U.N. Committee on the Rights of the Child, which had criticized U.S. non-compliance with the protocol with respect to the detention and treatment of juveniles in U.S. military custody abroad. The U.S. report did not adequately address the fact that current policy fails to take into account obligations of the Optional Protocol, especially regarding U.S. prosecution of suspected child soldiers before a military commission. According to the report, as of December 2009 only five juveniles remain in U.S. military custody in Iraq and Afghanistan.
“The U.S. is bound by international law to consider the age of prisoners when they are captured and to give juveniles certain protections regarding their treatment, detention and prosecution,” said Jennifer Turner, human rights researcher with the ACLU Human Rights Program. “Canada has found that Omar Khadr, who has spent a third of his life in Guantánamo, was denied these basic rights. The U.S. must finally grant him the rights he has been denied for so long, and enact comprehensive policies regarding the treatment of juveniles still in detention so that no child has to grow up in a military prison ever again.”
The U.S. government which, since the Obama administration came into office, has talked a good talk for the inmates of Guantanamo has completly lost its way on its plans for corrective actions. Fundamental justice for the victims of Guantanamo is part of the wreckage of America’s ineffective policies in correcting the horrors of previous American policies on terrorism.
Khadr’s future is now left to the mercies of the Canadian federal government which has not yet demonstrated either mercy or compassion. Opposition Liberal leaders rhetoric of human rights, social justice and liberty should also be judged and tested now.
The Canadian Supreme Court’s decision can be read at the following link: scc.lexum.umontreal.ca/en/2010/2010scc3/2010scc3.html
KEY DATES IN KHADR MISERIES
July 27, 2002: Omar Khadr, 15, is shot three times by American troops in Afghanistan.
April 24, 2007: Khadr is officially charged with murder, attempted murder, conspiracy, spying and providing material support to enemy.
May 11, 2007: Federal Court of Appeal orders Canadian intelligence officials to hand over all material on Khadr to a judge, who will determine what can be released to his lawyers.
June 4, 2007: An American military judge drops all charges against Khadr.
Sept. 24, 2007 Military review court overrules June 4 decision.
May 23, 2008: The Supreme Court of Canada rules unanimously Ottawa must hand over documents and transcripts of his interrogations to Khadr’s lawyers.
Dec. 12, 2008: A U.S. soldier’s report casts doubt on the Pentagon’s claim Khadr threw a grenade that killed Sgt. Christopher Speer.
Aug. 14, 2009: Federal Court of Appeal upholds an earlier ruling ordering the federal government to ask U.S. to return Khadr to Canada.
Jan. 29, 2010 The Supreme Court confirms Canadian officials violated Khadr’s constitutional rights, but leaves it up to federal government whether to ask U.S. to return him.