Khadr Case Raises Broad Questions on Child Detainees

Omar Khadr

Canada's top judges expressed such concern in a Jan. 29 decision, arguing that Khadr has endured and continued to experience violations of his rights under the constitutional Canadian Charter of Rights after the U.S. military captured the then 15-year-old in 2002 and imprisoned him for the past eight years at Guantanamo Bay, Cuba where he was interrogated in 2003 and 2004 by Canadian government intelligence agents.

"The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects," the Canadian judges stated in their decision.

But the Supreme Court of Canada turned down orders from lower Canadian courts to have the Conservative government of Stephen Harper request the return of Khadr to face justice in a Canadian court system.

"Our first concern is that the remedy ordered [by the lower court] gives too little weight to the constitutional responsibility of the [Harper government] to make decisions on matters of foreign affairs in the context of complex and ever changing circumstances, taking into account Canada's broader national interests," Canada's top judges wrote.

Canadian justice minister Rob Nicholson hailed the Supreme Court's ruling, reiterating his government's line that "Omar Khadr faces very serious charges including murder, attempted murder, conspiracy, material support for terrorism, and spying." The minister told reporters in a statement that "the Government will carefully review the Supreme Court's ruling and determine what further action is required." A number of commentators have suggested that U.S. President Barack Obama's administration might respond favourably to a Canadian request.

"There is reason to believe the United States would like to be able to repatriate him if Canada would ask, but Canada refuses to ask," said Audrey Macklin, a law professor at the University of Toronto.

The circumstances of his capture in Afghanistan remain murky. He is accused of committing a war crime for allegedly lobbing a grenade and killing a U.S. military officer, following a shootout between U.S. forces and al Qaeda fighters in July 2002. (As a child, he had been taken to Afghanistan along with his sibling and his reportedly al Qaeda-leaning parents).

However, last fall, the Toronto Star obtained classified defence documents which indicate that "Khadr was buried face down under rubble, blinded by shrapnel and crippled, at the time the Pentagon alleges he threw a grenade that fatally wounded a U.S. soldier." Michelle Shephard, the journalist who broke that story, told IPS that Khadr's trial in July before a U.S. military commission will be the first held at Guantanamo Bay under Obama's watch, despite the U.S. president's initial pledge to close it following his election a year ago.

"I also think from a political standpoint that the Obama administration would not want to hold a trial at Guantanamo just for the optics of it," says Shephard, the author of "Guantanamo's Child", a book on the Omar Khadr case.

The U.S. military commission process, set up under former president George W. Bush to deal with alleged terrorists in the post 9/11 period, has been modified under Obama but it is still being described as "an illegal" process by U.S. civil liberties organisations, Shephard said.

She noted that Khadr's U.S. defence lawyers will attempt in a pretrial motion in April to have tainted evidence obtained during their client's interrogation excluded from the actual trial in July.

In contrast to other terrorism cases in the U.S., more reliable pieces of evidence on Omar Khadr, especially from Afghanistan, may be available to the prosecution, including a video allegedly showing the child soldier making improvised explosive devices, Shephard added. "I presume there is a lot of intelligence out there on the Khadr family," she said.

Meanwhile, security specialist Reg Whitaker suggested that the Canadian Supreme Court wanted to avoid a constitutional clash with Prime Minister Harper. The latter is keen to have Khadr stay in the U.S. to satisfy "his core conservative constituency," he explained.

Whitaker echoed other commentators who interpret the top judges' decision as a plea for Ottawa to set the stage for the amelioration of Khadr's situation, but without any specifics laid out in terms of appropriate action or a timeline.

"The implication is if the Canadian government does not come up with any effective remedy for the violation of Khadr's rights, that it might then be incumbent upon the courts to then impose a remedy, to say 'you failed to respond to our exhortations in this matter, then we will then have to take the next step,'" said Whitaker, a political scientist and professor emeritus at York University.

University of Ottawa law professor and human rights specialist Errol Mendes added that the court decision indicates that the judges did not order Ottawa to seek Khadr's return to Canada because the ex-child soldier's lawyers failed to demonstrate evidence of negotiations with the U.S. administration on Khadr's legal status.

"The Supreme Court was basically restrained from agreeing with the lower courts," Mendes told IPS. "I was blown over by the fact that Khadr's lawyers are saying this is the end of the line for them [in the Canadian courts]."

But one of Khadr's Canadian lawyers, Nathan Whitling, counters that the ambiguity of the Supreme Court decision leaves open the option for the Canadian government to essentially "do nothing" despite the illegal aspects of Khadr's incarceration.

"I suppose in theory I could start a whole new claim to review [the Canadian government's] decision to do nothing, but the Supreme Court has not said [Ottawa] cannot do nothing, right. There is nothing inherently wrong [from the judges' point of view] with doing nothing," he told IPS.

"We hope the Canadian government will do the right thing but we don't think they will. And there is nothing obliging them to do any particular thing," Whitling added.

The Supreme Court has essentially told the Canadian government that it has broken the law with regards to Omar Khadr, and that illegality is continuing, said University of Toronto law professor Audrey Macklin.

"Now, if the government decides that the law is just an obstacle that stands between it and the exercise of its power, to do what it wants to do, then it will say, 'hey, no court is twisting our arm, so we are free to do or not whatever we want,'" she explained.

Macklin told IPS she is not surprised by the Supreme Court of Canada's "extreme caution in any matters concerning national security [after] 9/11."

Canadian agents ignored their country's signature on international protocols which stipulate that child soldiers must be accorded separate, less severe treatment from that given adult combatants, said Reg Whitaker, noting that Khadr was 15 when he was captured and was still a teenager while under interrogation.

The security specialist says the Canadian government appears to be downplaying the whole notion of a child soldier in international law.

"Indeed, they have ordered the department of Foreign Affairs and International Trade to stop using the term 'child soldier' in any departmental communications. It's now a banned term in [Canadian Conservative party] discourse. The denial is logically and legally unsustainable, but they are unlikely to own up to this in public," he said.

Inter Press Service