Undermining the rule of law: The case of Omar Khadr

The Canadian government has continually claimed that Khadr was given due process in the U.S., and many Canadians believe that his plea bargain arose from properly made charges in a legitimate court. But this is far from the truth.

In fact, Omar Khadr was never charged with U.S. criminal offences or internationally recognized war crimes. Years after he was captured on the battlefield in 2002, he was charged with newly minted offences under the 2006 Military Commissions Act, even though international law forbids prosecution for offences created after the fact.

For years, UN human rights bodies have expressed concerns about U.S. military commissions’ lack of legal safeguards, and about classifying children used in armed conflict as “unlawful enemy combatants” and subjecting them to ill-treatment, denial of access to education, and prosecution in military tribunals. Such treatment violates the protocol on children in armed conflict, which requires the U.S. and Canada alike to treat a youth like Khadr as a child soldier and work to rehabilitate and reintegrate him into society.

In 2008 the Supreme Court of Canada condemned Canadian officials’ participation in the Guantánamo Bay process as a violation of international law. A second ruling in 2010 excoriated Canadian officials, saying their behaviour “offends the most basic Canadian standards about the treatment of detained youth suspects.” Indeed, the court declared Khadr was entitled to a remedy, but left it to the government to decide how best to act. In response, Canada sent a diplomatic note asking the U.S. not to use information Canadian agents gave to U.S. officials. The U.S. replied that it was up to the military judge to decide what evidence to allow. Canada did nothing more to remedy the abuses. As a result, in August 2010, the U.S. military commission ruled all Khadr’s statements admissible, including those made as a result of torture and ill-treatment.

On the eve of Khadr’s plea bargain in October 2010, Radhika Coomaraswamy, then the UN Secretary-General’s Special Representative for Children and Armed Conflict, urged Canada to repatriate Omar Khadr for rehabilitation as required by the child soldier protocol. She said Khadr represented “the classic child soldier narrative: recruited by unscrupulous groups to undertake actions at the bidding of adults to fight battles they barely understand.”

Our government ignored her, too. Instead, Canadian officials agreed to Khadr’s plea bargain, saying it would be “inclined to favourably consider” repatriation to Canada after he had served a year of his sentence. The year came and went.

Then, in June this year, the UN Committee Against Torture urged Canada to repatriate Khadr and to redress the human rights violations found by the Supreme Court of Canada. Public Safety Minister Vic Toews disparaged the committee, saying: “When there are serious concerns regarding human rights violations across the world, it is disappointing that the UN would spend its time decrying Canada.” Minister of Foreign Affairs John Baird acknowledged that Omar Khadr’s repatriation occurred only after pressure from the U.S.

Imprisoned for more than a decade, Khadr has never been tried by any properly constituted court that afforded the judicial guarantees recognized as indispensable by civilized peoples. This is in direct violation of the Geneva Conventions. In addition, his rights have been systematically and flagrantly violated under the protocol on children in armed conflict, the International Covenant on Civil and Political Rights, and the Convention against Torture.

Now that Omar Khadr has returned home, some Canadians are expressing public safety fears. Although public safety is a valid concern, it can be served only by respecting the law. Public safety is to be determined by evidence, not by public fear and hatred fomented by derogatory, inaccurate characterizations by ministers and other public officials.

The behaviour of the government in the case of Omar Khadr demonstrates a profound lack of respect for Canada’s courts and the United Nations human rights system. Our government’s continued vilification of Omar Khadr undermines public respect for law and thwarts the fulfilment of Canada’s obligations under the child soldier protocol to ensure Khadr’s rehabilitation and reintegration into Canadian society. Canadian ministers and officials must stop ignoring the courts and flouting international law, and start treating Khadr — and all persons in Canada — according to Canadian and international law.

Catherine Morris teaches international human rights at the University of Victoria. She teaches on peace and conflict at universities in Europe and Asia. She monitors human rights in several countries for Lawyers’ Rights Watch Canada.