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| Omar Khadr, Guantánmo Bay prisoner |
Omar Khadr is a Canadian citizen, born 19 September 1986 in Ottawa, Ontario. He was wounded and captured by the United States (US) 27 July 2002 during a US military assault in Afghanistan and has been imprisoned since then, first in Bagram prison in Afghanistan and later (on or about Oct.3/02) transferred to Guantánamo Bay prison. During the entire period of his imprisonment, Khadr has never been segregated from adult prisoners or afforded any special treatment as required by international instruments governing the treatment of children (people under the age of 18 years). US detention and treatment of Khadr violates US and Canadian law and many binding international human rights instruments, including, but not limited to the: Convention on the Rights of the Child, Optional Protocol to the Convention on the Rights of the Child concerning involvement of children in armed conflicts, International Covenant on Civil and Political Rights, the Geneva Conventions and the Convention against Torture and other Cruel, Inhuman and Degrading Punishment or Treatment. Some of the rights violated by the US are considered in law to be non-derogable (cannot be suspended or diminished under any circumstances by any government or authority): for examples the right to freedom from torture and other cruel, inhuman and degrading treatment or punishment, the right to due process and the right to freedom from prosecution for ex post facto offences. Many violations are themselves crimes.
On May 28, 2008, the Supreme Court of Canada in Canada (Justice) v. Khadr ruled unanimously that “…the [US] 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 Supreme Court of Canada concluded that participation, by Canadian officials with the ‘Guantánamo Bay process’ was “contrary to Canada’s binding international obligations.”
The US Supreme Court ruled on three occasions that the indefinite detention of Guantánamo Bay prisoners, including Khadr, violates US law. Specifically:
o On June 28 2004 the U.S. Supreme Court in Rasul et al v. Bush, President of the United States et al court found that “detainees at Guantanamo Bay are being held indefinitely, and without benfit of any legal proceedings to determine their status...”.
o On June 29, 2005 the U.S. Supreme Court in Hamdan v. Rumsfeld ruled that "the military commission at issue lacks the power to proceed because its structure and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”
o On June 12th 2008 the US Supreme Court in Boumedienne vs Bush et al again held that Guantánamo Bay prisoners were entitled to habeas corpus and observed that, “…security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”
Notwithstanding these decisions, on November 24, 2008 Judge John D. Bates of the US District Court for the District of Columbia in Omar Khadr et al v. George W. Bush et al refused to grant Khadr’s applications for habeas corpus, an injunction barring continuation of the military commission hearing, release from illegal detention and in the alternative, transfer to custody suitable for a juvenile, Bates J. ordered the claim for habeas corpus “stayed to the extent that it raises issues that have been, will be, or can be raised in the military commission proceedings against [Khadr] and the subsequent appeals process” and that other claims be held “in abeyance pending the completion of military commission proceedings.”
The ex post facto charges against Khadr and the military commissions procedures were created by the Military Commissions Act of 2006 (MCA). The MCA was passed by Congress in response to the US Supreme Court decision in Hamdan). The MCA trial procedures violate fair trial rights and standards guaranteed by inter alia, the Geneva Conventions.
Khadr is believed to be the first child combatant ever to face prosecution of alleged "war crimes". On February 2 2008 the United Nations Children’s Fund (UNICEF) issued a statement that Khadr's trial "…in front of a military commission not equipped to meet the required standards, would set a dangerous precedent for the protection of hundreds of thousands of children who find themselves unwittingly involved in conflict around the world,"
UNICEF’s conclusion was recently affirmed by Army Lt. Col. Darrel Vandeveld , former MCA prosecutor, when he gave evidence at the trial of Mohammed Jawad, on September 27, 2008, that the MCA process was not capable of delivering justice. Vandeveld was at least the fourth MCA prosecutor to quit in disillusionment with the tribunals. The former chief prosecutor, Air Force Col. Morris Davis, quit and later testified about alleged political interference.
The Canadian government has refused to exercise legal and/or diplomatic means either to protect Khadr’s rights or to secure his release and repatriation. Australia, Belgium, Demark, France, Russia, Spain, Germany, Sweden and the UK have all secured the release and repatriation of nationals through diplomatic means.
| | LRWC ACTION | August 13, 2007- LRWC letter calling on the government of Canada to secure the release and repatriation of Omar Khadr and ensure the protection of his rights signed by Paul Copeland, Gail Davidson, Leo McGrady Q.C., Catherine Morris. The office of the Prime Minister Stephen Harper wrote to advise that the Omar Khadr case was within the purview of Minister (then) of Foreign Affairs Maxime Bernier.
September 13, 2007 – LRWC wrote to Minister of Foreign Affairs Maxime Bernier offering to provide legal and factual information about the Omar Khadr case necessary to determining Canada’s response.
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