Subcommittee on International Human Rights Committee on April 29th, 2008

[Jason Kenney, Conservative, Calgary Southeast, AB]

Does the Optional Protocol prevent the prosecution of individuals if they committed their alleged crimes between the ages of 15 and 18?

[LCdr William Kuebler]

Not at all. In fact, it's our view that what the Optional Protocol does require is that in any action taken with respect to a child soldier, consistent with the general Convention on the Rights of the Child standard of being in the best interests of the child, any action, any rehabilitative objective, must be consistent with the best interests of the child. For example, I point you to the precedent of Sierra Leone, where even though, ultimately, no child soldiers were prosecuted, the prosecution was authorized, but only in that special chamber that was juvenile-appropriate and that had rehabilitative objectives. That's not a military commission. A military commission is a one-size-fits-all process.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Is there any requirement under that convention for the country of origin of the person in question to seek his penal transfer or judicial transfer should he be facing prosecution in another country?

[LCdr William Kuebler]

I think there is a general obligation that parties to the convention attempt to ensure that it is respected by other parties to the convention. I won't get into the fine points of international treaty law, but certainly, Canada's leadership on this effort should point in the direction of seeking to see that it's enforced with respect to one of its own citizens.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Finally, you said that Mr. Khadr was essentially--I'm paraphrasing--brainwashed by his family and victimized by them, and that essentially he is a victim. If he is a victim of having been pressed into service as a child soldier, who is guilty, and who do you suggest be prosecuted, and under what basis, for that crime?

[LCdr William Kuebler]

It's interesting you mention this, because there is actually a distinct international-law-based crime recognized under the Rome Statute for persons who employ those under the age of 15 as child soldiers. With child soldiers between the ages of 15 and 18--even though under the Optional Protocol they're deemed to be essentially involuntary participants--it does not appear to be a separate crime under international law to employ a child soldier.

Now, the protocol does call upon state parties, such as Canada and the United States, to have national legislation that would make it a crime to employ persons under the age of 18 as soldiers. I don't know whether Canada has such a statute or such a provision, but with respect to the question of prosecution, clearly his family, and ultimately his father, should be deemed responsible. Unfortunately, I should say, his father is dead.

[The Chair, Conservative, Scott Reid]

That concludes the time for this round.

Mr. Silva, you're up next.

[Mario Silva, Liberal, Davenport, ON]

Thank you.

It's a pleasure that you're here before this committee.

I just want to say that both the U.S. and Canada have signed and ratified several international conventions. Although we've ratified the international Convention on the Rights of the Child, I believe the U.S. and Somalia are still the only two countries that have not ratified it. Everybody else has in fact ratified the two very important conventions. I think it's one of the most widely signed and ratified conventions to date. It clearly establishes protocols on the rights of children, and child soldiers in particular.

There is a whole feeling that in the U.S., both in the terminology and the labelling of things, there is new language that has been formulated around the Law of Armed Conflict: things like unlawful enemy combatants, the meaning of which we don't really know exactly. There are all these definitions being used by the U.S. to justify its actions in the legal proceedings before the courts, yet one would have to say it was outside of the international law and norms that have been framed over so many years.

So where does the U.S. get this authority to impose these types of actions if it is in fact outside of international law, and some would argue maybe outside of domestic law as well in the U.S.? The U.S., even if it has not ratified these conventions, has certainly signed many of them, and particularly signed the Convention on the Rights of the Child. So how do you get your legal authority to pursue this if in fact you might be operating outside the law?

[LCdr William Kuebler]

Thank you.

Indeed, I think there has been much novel interpretation of the Law of Armed Conflict by the U.S. government over the last five years. This concept of unlawful enemy combatant was unknown to the Law of Armed Conflict before 9/11.

What I can generally say is that the government's position that we went to war with al-Qaeda after 9/11 seems to have been accepted by the U.S. courts. Contrary to the government's view, the Geneva Convention does apply to that conflict and provides a minimum standard of protection, even for what the government terms unlawful enemy combatants in that war. There are any number of very complex legal issues, both with respect to the U.S. Constitution and with respect to the Law of Armed Conflict, raised by the U.S. position on the war on terror.

What I can say to you is that, leaving those issues to one side, there is a separate strand of the Law of Armed Conflict--particularly reflected by the Optional Protocol, or the child soldier protocol that I mentioned--in which, whatever you think of the unlawful enemy combatant concept, whatever you think of some of these novel legal positions that the government has taken to justify aggressive detention and interrogation of people like Khalid Sheikh Mohammed and their trial by military commission, those arguments have no application in the context of a 15-year-old boy who is alleged to have thrown a hand grenade in a firefight, essentially as an act of self-defence.

So what I would say is that all the very difficult rule of law questions that are raised by Guantánamo and the military commissions process are on the one hand, and if Khalid Sheikh Mohammed was a Canadian, this country would have a very difficult moral dilemma to face concerning its commitment to the rule of law. But he is not, and you don't. Omar Khadr was a 15-year-old child, and his rights under international law are very clearly defined and protected, and there is no need for this subcommittee to take on the larger question of Guantánamo Bay and the war on terror in order to recommend that the Canadian government do the right thing with respect to Omar Khadr.

[Mario Silva, Liberal, Davenport, ON]

Is Omar the only child soldier in Guantánamo, the only one who was brought there, do you know?

[LCdr William Kuebler]

No. As I said, other children were detained at Guantánamo. They were detained in a special facility called Camp Iguana and afforded special age-appropriate treatment. Omar appears to have been singled out.

There is one other individual whose case is pending before a military commission and whose age is not well known. The government says that he was 17 at the time he engaged in hostilities against the United States, but I don't know if that's been proven as a conclusive matter, and there is some indication that the government charged him for no other reason than to deflect the critique that Omar was being singled out and was the only child soldier being prosecuted by the United States at Guantánamo.

So certainly Omar's case, and his age being 15 at the time, is unique and significant as compared with other children's cases at Guantánamo.

[Mario Silva, Liberal, Davenport, ON]

So what will happen to him if he's acquitted? What will the U.S. do with him?

[LCdr William Kuebler]

That's interesting, because even if he's acquitted, without regard to whether or not he's tried for an offence, the U.S. government reserves the right to detain Omar as an enemy combatant for the duration of our hostilities with al-Qaeda, which the government claims are ongoing and there's no end in sight. Even if Omar is acquitted by a military commission, which won't happen, but even if he is acquitted by a military commission he remains detained in Guantánamo Bay until this government does something for him. And so it's not a question of trial or no trial; Omar is going to continue to be in Guantánamo Bay until the Canadian people or the Canadian government decide to act to protect his interests.

[The Chair, Conservative, Scott Reid]

Thank you.

Madame Barbot, encore une fois.

[Vivian Barbot, Bloc, Papineau, QC]

Thank you.

Mr. Kuebler, in your presentation, you mentioned that justice cannot result from a political commission that cannot try a Canadian citizen, and that Omar Khadr is treated as second class compared to an American citizen.

What rights and protections would an American citizen have under these circumstances that Omar Khadr does not have at the moment?

[LCdr William Kuebler]

An American citizen would be entitled to a trial for the same offence, let's say. An American citizen would be entitled to a trial either in a court martial, for genuine offences against the Law of Armed Conflict, or in a federal civilian court in which that citizen would receive all of the rights and protections of the U.S. Constitution--full confrontation, compulsory process, all the things that a criminal defendant in the United States gets.

First of all, a juvenile would never be tried by a court martial because of the historical limitations on military jurisdiction to adults, which is part of our argument for why this military commission should not be applied to Omar. Tried in a federal court, a juvenile would receive the protections that all 50 states in the United States afford juveniles--that Canada affords juveniles--which is basically a special procedure to determine whether or not he should be tried as an adult. If not, he should be tried as a juvenile, and he should be tried as an adult only if that procedure makes that right determination.

So there are any number of protections that Omar would receive if he were an American that he doesn't receive in Guantánamo Bay. He would also, very importantly, receive the right to habeas corpus. If he were an American, he would be able to be in front of a federal court today--or, more accurately, years ago--to present some of these fundamental challenges to his detention and trial as a child soldier to a regular civilian court without having to go through the process of being tried by a military commission.

Not only are these trials and their procedures limited to non-U.S. citizens, but the U.S. government takes the position that since they occur at Guantánamo Bay, the U.S. Constitution literally in no way, shape, or form applies to protect these people. In Omar's case--and in the case of other detainees at Guantánamo Bay--what that means is that they can be tried for offences that did not become part of the law until literally years after the conduct took place. Omar is being tried for offences under a statute passed in 2006 for conduct that he allegedly engaged in in 2002. Again, the U.S. government says it can do that to him because he's a Canadian citizen and not a U.S. citizen.

[The Chair, Conservative, Scott Reid]

You have two more minutes.

[Vivian Barbot, Bloc, Papineau, QC]

As I understand it, Omar Khadr is treated as stateless if his country of birth does not take up his case. Are there international laws that require...Canada has signed conventions that should require us to look after one of our citizens, especially when that citizen is a child soldier.

Have you received the assistance you need from Canada in his case? Has Omar Khadr received the assistance that his country of birth should be providing? Is he considered stateless?

[LCdr William Kuebler]

Unfortunately, the answer to that last question is yes. Because Canada has not acted to protect his rights, his rights are going unprotected in the United States.

I don't know that I will venture an opinion on whether or not Canada has an international-law-based obligation to intervene. Certainly there is some authority, I think, in Canada, and certainly in the United Kingdom suits were brought against the British government by British detainees to enforce their rights or to compel the British government to enforce their rights. So there may be some authority in the common law tradition for requiring the Canadian government to intervene on his behalf.

But that shouldn't be necessary, because it's so obviously the right thing to do.

As for whether or not the Canadian government has assisted, what I will say is this. The Canadian government has taken the position that it wants Omar to receive a fair trial, yet the Canadian government has numerous documents in its possession related to his case and to his prosecution. These are documents that may replicate reports generated in 2002 by the U.S. government that have been lost or otherwise gone missing and that could provide an important source of evidence for his defence at trial; yet the Canadian government, notwithstanding its public protestations, has fought tooth and nail against the disclosure of those very documents that may help him in his defence. And so certainly the government's position on that issue has been somewhat inconsistent.

[The Chair, Conservative, Scott Reid]

I regret that your time is up.

This round next includes a Conservative, and it's five minutes to two. I propose we allow the Conservative round--it would be Mr. Sweet--and that then the committee agree to allow Mr. Marston to take the last question. That will take us a little bit past 2 p.m., but I think that's reasonable.

Is that agreeable to folks? All right. Let's do that then.

Mr. Sweet.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Lieutenant-Commander Kuebler, in your opinion, what should have happened when Mr. Khadr was originally detained, arrested?

[LCdr William Kuebler]

What should have happened is that Omar should have been treated the same way as other children detained by the United States in Afghanistan were treated. He either should have been held in Afghanistan--and I believe that given his background it would have been difficult to do--repatriated somehow within the context of Afghanistan, or brought to Guantánamo as other children were, kept in Camp Iguana, afforded access to educational and other rehabilitative services, and then the U.S. government should have made efforts to repatriate him to Canada.

Again, at the outset of my remarks, I expressed my condemnation of Maha and Zaynab Khadr and the remarks they've made. I think based on their remarks, it would be appropriate for the U.S. government not to want to repatriate him in such a way that he would fall in line with them and other influences in his immediate family, yet there are other members of the Khadr family, who have been known for years, to whom Omar could have been repatriated successfully. Then certainly, as with other detainees, the U.S. government could have asked his home government if there were charges that could have been brought in Canada and he could receive process here.

So there were many options other than the one that was followed, which was to treat him as an adult and eventually seek to try him as an adult for a crime he probably didn't commit.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Could you tell the committee how you became the advocate for Mr. Khadr, how long you have been his advocate, and whether you have unfettered access to him?

[LCdr William Kuebler]

No one has unfettered access to a client in Guantánamo Bay. It's not like going down to the local jail to see your client if you represent somebody in a regular system. It's a minimum of two to three weeks lead time. There are a number of restrictions on my ability to visit him that I won't go into detail here, but I wouldn't call the access unfettered.

That said, I've met with Omar a number of times over the last year. I've spent a number of hours with this young man. I was detailed to the case initially in February 2007. I met with Omar for the first time in June 2007 and have been his attorney in the military commissions and other proceedings since.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

You met with him the first time when?