on the world: a view on human rights
In the twenty-first century, basic legal rights many take for granted remain almost completely beyond the reach of others. Former Guantánamo Bay prisoner Omar Khadr, a 27-year old Canadian who has spent almost half of his life behind bars without due process, is one such person. He is currently incarcerated in Canada.
Aged 15 in 2002, Omar Khadr was captured in Afghanistan by the US military, tortured and threatened with rape at Bagram, and held in Guantánamo for over a decade where he was convicted as an adult of war crimes committed as a minor under a secret plea bargain. He was released to Canada in September 2012, almost two years after his conviction before a US military court. In the intervening period, it quickly became clear that the Canadian authorities were very much responsible for the delay. Once the US had a result in convicting Khadr of the murder of a US military officer in highly improbable circumstances, using a confession coerced through torture, it had no further use for him. It was keen to repatriate him to prove that it kept its side of the plea bargain; Khadr pleaded guilty as it was his only realistic way out of Guantánamo.
Disregard for the rule of law and gross human rights violation have been par for the course throughout the Guantánamo prison’s 12-year history, with even US President Barack Obama calling it a “misguided experiment”. Canada’s treatment of Khadr, on the other hand, has possibly tarnished its image as a champion of human rights and of the rights of war children irreparably.
Canada did not act on its obligations to protect Omar Khadr, a Canadian citizen, under domestic and international law. A video emerged in 2008 showing Canadian interrogators at Guantánamo Bay in 2003 interviewing a 16-year old Khadr following sleep deprivation, a form of torture. These interrogators helped the US to build its case against him. A breach of his human rights under the Canadian Charter of Rights and Freedoms, his Canadian lawyers sued the government and in 2010, the Canadian Supreme Court, while upholding the violation of Khadr’s constitutional rights, stopped short of agreeing with the Federal Court judgment the Canadian government was appealing by demanding his repatriation as a suitable remedy for the breach. Commenting on this decision, Cris Best stated: “Despite the unique circumstances surrounding Khadr, the rule of law should be considered paramount. Mr. Khadr has been tortured (contrary to trite law), was a child soldier, is a Canadian citizen, and has been denied due process.”
Little has improved since his repatriation to Canada in September 2012. Part of the plea bargain was that Khadr would serve the remaining 7 years of his sentence in Canada. Upon return, he was promptly imprisoned in the maximum security Milhaven Institute, also known as “Guantánamo North”. Allowed briefly into the general population, it was the first time he had met real convicts; there have been less than a handful of convictions at Guantánamo Bay.
Classified as a minimum security prisoner at Guantánamo, until recently he was a “maximum security” prisoner in Canada on the basis of a points-based system that took his Guantánamo murder conviction into consideration. This meant that he was not allowed parole which would have otherwise become due in March 2013, granting him day release. At Milhaven, he spent all but three weeks in solitary confinement, which itself is considered a form of torture by the UN Special Rapporteur on Torture.
In a more positive move, however, Khadr’s prison situation and quest for justice has improved and been expedited by his reappointment of Dennis Edney QC as his lawyer in January 2013. Edney had represented him in the 2010 Supreme Court case. Within a year, this has seen Khadr moved to another maximum security prison in Edmonton. Although Khadr has suffered attacks and threats at both prisons, the opportunities for rehabilitation are better at this facility. Through his lawyers’ efforts, in December 2013, Khadr was reclassified a medium-security prisoner, even though it had previously been reported that his status would not be reviewed until December 2014. On 7 February 2014, he was transferred to the Bowden Institution in Innisfail, where rehabilitation and counselling should be available.
As well as improving his prison conditions, his lawyers have galvanised the process of righting the wrongs he has suffered at the hands of both the US and Canadian authorities. After almost 11 years, on 23 September 2013, Omar Khadr had his first real day in court when he appeared before an Edmonton court for it to consider whether he should be moved from a maximum security jail to a provincial prison, given that the offences that he was convicted of at Guantánamo Bay took place when he was a minor and that such a facility would be more conducive to his reintegration into society. The case hinged on whether the judge deemed Khadr a minor or an adult in serving his sentence as the US had not been specific during his trial.
Ultimately, Khadr lost the case a month later, with the judge ruling he had to remain in a maximum security prison, but more importantly backtracking on the legal issues the case hinged on, by disregarding Khadr’s pre-Canada detention and stating it “simply and purely, is about statutory interpretation.” His lawyers have launched an appeal.
It was not a complete loss. More importantly than that, it was Khadr’s first public appearance since the start of his ordeal. It was an opportunity for him to come face to face with two sets of people: the journalists who vilified him and the staunch supporters of his human rights, over 120 of whom packed out the courthouse. For many, it was an emotional moment and Khadr was nothing like the image portrayed by journalists who had never met him before.
On 18 December, without Khadr present, his lawyers brought a second case before the Canadian courts, this time reviving a petition originally made in 2004, when Khadr was still at Guantánamo, suing the Canadian government for damages for violations of his human rights at Bagram and Guantánamo. The original claim was for CA$10,000,000 but has now risen, with additional claims added, including a claim that the Canadian government was not a passive bystander to Khadr’s ordeal but conspired with the US and “willingly co-operated with the U.S. in violation of Canadian and international laws”. In new documents filed as part of the case, Omar Khadr publicly stated for the first time that he only pleaded guilty because he was in a “hopeless situation”, and that the agreement in the plea bargain, and the facts as laid out in the case, were put together entirely by the US government. In court, the judge did not accept the Canadian government’s argument to dismiss the claim entirely, but instead asked for the claim to be rewritten.
The case was adjourned to be heard later this year. With the original claim amount having doubled, the media focused on the amount claimed, “Khadr’s millions”, as if a citizen bringing his or her government to account for crimes against humanity is somehow a trifling matter that can be reduced to dollars and cents. Omar Khadr has lost far more than a partial loss of sight, use of one shoulder, or all of his adult life thus far: the abuses he has faced so far and continues to go deeper. There is no financial compensation for that. As with all victims of miscarriages of justice, justice is an integral part of his freedom.
His lawyers have thus also launched an appeal in the US against his conviction by the military tribunal, following similar successful claims made by other prisoners. If successful, Khadr would have to be released. Yet, according to official government correspondence following the filing of the appeal, it appears that innocence or guilt is irrelevant to a Canadian government eager to deflect its own established abuses of power and the law: the Canadian authorities will decide whether or not to continue incarcerating Khadr regardless of the decision the US courts reach.
At the end of 2013, the case hit a snag, when the US appeal court decided to delay the procedure by first considering whether or not the case can be brought. The US claims that in signing the plea bargain, Khadr waived various rights, including the right of appeal. He claims that he did no such thing. After nearly 12 years, and the many obstacles to the truth and justice in his case, this has not dampened the resolve of Khadr and his legal team in any way.
The Canadian media often describe Khadr as being “polarising” and speak of a “polarised debate”. The truth is there is no debate. Fear mongering and vilifying Khadr as a convicted terrorist without an explanation of the facts has had the effect of stifling debate. If Khadr is really guilty of all the things he is accused of, then surely his critics should welcome his court cases to allow the matter to be settled once and for all by a judge in an open and fair court of law?
While the Canadian media and political establishment demonise him, Khadr spends his time engaged in the more benign pastime of studying. Having been denied such a basic opportunity, as the US not only tried him but held him in the same conditions as adult prisoners, he is making up for lost time and studying for his high school diploma. He wants to become a doctor. Supporters have helped him in his endeavour by supplying books for the prison library when he was at Edmonton. An expert and highly skilled team of university teachers provide his education. Khadr is looking ahead.
Given that the Canadian government did violate his human and constitutional rights, it may not find that as easy. Human rights pitch the individual and their rights against the state, yet this one-on-one combat is not played out on an even field; the state has an enormous power advantage. On the other hand, it is not just about what those rights represent to that individual, but to all individuals who could and can find themselves in the same or similar position. That states can abuse their powers to trample the rights of their citizens underfoot and in full view of the world with impunity and without question is a terrifying thought.
Since Canada will not have the debate, the London Guantánamo Campaign is pleased to be hosting Omar Khadr’s Scottish-Canadian lawyer Dennis Edney QC for a speaking tour to raise awareness in the UK on 12-18 March 2014. For a full itinerary, please visit the website: http://londonguantanamocampaign.blogspot.co.uk/2014/02/12-18-march-2014-lgc-speaking-tour-with.html
We are a completely voluntary organisation, so we appreciate donations to help us make this happen: http://www.gofundme.com/OmarKhadr
Dennis Edney QC represents Omar Khadr pro bono and is not in receipt of legal aid or other funding. Justice is a lengthy and costly process. Please consider making a donation to the Omar Khadr legal fund: http://freeomarakhadr.com/2014/01/25/helpfreeomar/
For the latest news and more details and analysis of Omar Khadr’s case, please visit: www.freeomarakhadr.com