Omar
Khadr Should Be Repatriated Now: Canada's Participation In
Guantanamo
6 February 2010
Human Rights Watch
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.
Omar Khadr, Guantnamo child detainee
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.
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