Thank you.
This is a welcome opportunity to clarify and elaborate on our concerns about the case of Omar Khadr.
This is one of many cases of concern in Guantanamo Bay and other places of detention in the context of the so-called war on terror. Amnesty International is not alone in its position that the detention centre in Guantanamo Bay was created and continues to operate outside the rule of law, be that international human rights and humanitarian law or U.S. domestic law.
Many governments, including U.S. allies, have been critical of the conditions in Guantanamo Bay and have successfully sought the repatriation of their citizens years ago. Amnesty International has repeatedly called for the closure of the detention centre in Guantanamo Bay. Detainees should be released unless they are to be charged with recognizably criminal offences and provided with a fair trial before an independent and impartial tribunal such as a U.S. federal court. In cases where detainees face the risk of torture or other serious human rights abuses if returned to their home country, another solution should be found.
It is in this context that Amnesty International has raised the case of Omar Khadr with successive Canadian governments, through letters to ministers, media work, and public campaigning, since his capture at the age of 15, in the summer of 2002, and his initial detention and interrogation at Bagram Air Base in Afghanistan.
Whatever assurances the current government and past Canadian governments have accepted from U.S. counterparts, they must surely ring hollow by now. The treatment in Guantanamo Bay has not been humane. Even the International Committee of the Red Cross broke from its customary silence to express concerns about conditions in Guantanamo, including the impact of indefinite detention on the health of the detainees. The international committee also explicitly stated that it does not consider Guantanamo an appropriate place to detain juveniles.
Recently in the House, the Minister of Foreign Affairs, after reiterating the government's long-held position that seeking Omar Khadr's release was premature, given the legal proceedings and appeals under way, said “We are making sure that justice takes its course”. That's from Hansard on April 30, 2008. Respectfully, justice is simply not possible as long as Omar Khadr remains in Guantanamo Bay. Every step along the way the U.S.A.'s treatment of Omar Khadr has failed to comply with international law, including the special protections for children taken into custody and for children affected by armed conflict.
Guantanamo is a highly coercive regime, where detainees have been subjected to years of indefinite detention under harsh conditions. The right to be presumed innocent has been systematically undermined by a pattern of official commentary on their presumed guilt.
It is worth noting that the former chief prosecutor of the military commissions, Colonel Morris Davis, resigned on October 4, 2007, after concluding that full, fair, and open trials were not possible under the current system that had become deeply politicized.
Amnesty International is not saying that people currently detained in Guantanamo cannot be put on trial. We are saying that the military commission system does not represent a fair trial according to international human rights standards. The military commission system is part of a detention regime developed by the U.S. authorities to avoid independent judicial scrutiny of government conduct for its detainees, including by denying them the basic safeguard of a habeas corpus review.
It was a habeas challenge that was brought against the original military commission that led to that system being declared unlawful by the U.S. Supreme Court. The U.S. government's legislated response to the Hamdan ruling, the Military Commissions Act of 2006, subsequently barred the U.S. federal courts from considering habeas corpus appeals from four nationals held as so-called enemy combatants.
The current military commissions fall short of international standards in many areas, including the following. I'll just list a few here.
The prerequisite for trial under the Military Commissions Act is that the individual is an alien unlawful enemy combatant, a status that is unrecognized in international law. Among those currently facing trial are civilians detained outside any zone of armed conflict. Using military tribunals to try such civilians runs counter to international standards.
The military commissions also lack independence from the executive branch. They may admit information obtained in cruel, inhuman, or degrading treatment or punishment. The fact that the U.S. administration's definition of “torture” does not comply with international law, such as the convention against torture, could also mean that information extracted under torture could be admitted as evidence.
The right to trial within a reasonable time is not guaranteed.
The right to be represented by a lawyer of the detainee's choice is restricted. The rules on hearsay and classified information may severely curtail a defendant's ability to challenge the government's case against him. The right of appeal is limited, essentially, to matters of law and not fact. Of course, the military commissions apply only to those who are not U.S. citizens and thus are discriminatory.
Finally, the detainees may be subjected to the death penalty after an unfair trial.
Further, the failure of the Military Commissions Act to expressly exempt children from the jurisdiction of military commissions contradicts principle 7 of the draft United Nations principles governing the administration of justice through military tribunals. Principle 7 states that, and I'll quote:
Strict respect for the guarantees provided in the Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) should govern the prosecution and punishment of minors, who fall within the category of vulnerable persons. In no case, therefore, should minors be placed under the jurisdiction of military courts.
A source for that quote is the report of the special rapporteur on the administration of justice through military tribunals, January 2006.
As the committee members no doubt know, no existing international tribunal has ever prosecuted a child for war crimes, reflecting the wide recognition that the recruitment and use of children in armed conflict is a serious abuse of human rights in itself. Both the United States and Canada have ratified the optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Central to the optional protocol is the condemnation of the use of child combatants and the obligation of states to provide the immobilized children with all appropriate assistance for their physical and psychological recovery and their social reintegration.
The Paris principles and guidelines on children associated with armed forces or armed groups further state that, and again I will quote:
Children who are accused of crimes under international law allegedly committed while they were associated with armed forces or armed groups should be considered primarily as victims of offences against international law; not only as perpetrators. They must be treated in accordance with international law in a framework of restorative justice and social rehabilitation....
The United Nations Committee on the Rights of the Child, through its general comment 10 on children's rights and juvenile justice—and that is one of the documents that has been distributed to the committee—has emphasized that every person under the age of 18 at the time of the alleged offence must be treated under the rules of juvenile justice. This includes promoting his or her reintegration into society. Detention must be a last resort and for the shortest appropriate period of time. Any deprivation of liberty must be tested before a legitimate court without delay.
After almost six years, Omar Khadr is still waiting for the opportunity to effectively challenge the legality of his detention. For the first few years of his detention, Omar Khadr did not have access to legal counsel. Rather than being afforded special protections by staff trained in the administration of juvenile justice, his young age was exploited in the context of coercive interrogations and incommunicado detention.
When the trial in another country meets international standards, non-intervention on behalf of a Canadian citizen might be understandable while the process is ongoing. But that is simply not the case here. Continuing to monitor and engage with the military commissions process, up to and including the appeal stage, serves only to endorse an unfair system and ultimately undermine international human rights standards, including the Convention on the Rights of the Child and the optional protocol on the involvement of children in armed conflict.
Canada has been a champion of these rights far too long to create an exception out of one of its own citizens. Given that the U.S. has no apparent interest in transferring the case to a civilian jurisdiction within the United States, the Canadian government should take all possible steps to protect its citizen by seeking Omar Khadr's repatriation and, if there is sufficient and admissible evidence, arranging for his trial in Canada. Any such trial must comply with international standards, including fully taking into account Omar Khadr's age at the time of any alleged offence and the role that adults played in his involvement as a child in the armed conflict in Afghanistan.
In keeping with the approach to other demobilized child combatants throughout the world, priority should be placed on his rehabilitation and reintegration into Canadian society.
Thank you.