Evidence of meeting #16 for Subcommittee on International Human Rights in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was family.
A recording is available from Parliament.
12:35 p.m.
NDP
Wayne Marston NDP Hamilton East—Stoney Creek, ON
--and seek justice here.
I'd like your comments. Thank you, sir.
12:35 p.m.
Lawyer, As an Individual
Absolutely. Again, there's more I can get into some other time.
I actually wouldn't disagree with your characterization of him as a dutiful son. Stepping back and looking at it from a detached perspective, there is always something noble about sons--in this case a family of sons--standing up for their patrimony and for their father's beliefs. This sentiment is nobly and memorably represented in the Oath of the Horatii , the great classical painting by Jacques-Louis David, in which the three sons swear to defend Rome against Alba Longa. Unfortunately, if we're going to be Rome in that analogy, the Khadrs are the Curiatii and not the Horatii. He chose the wrong side, and I think it's appropriate to take that into consideration in the context of being a most dutiful son.
I can't object if Canada decides to repatriate Mr. Khadr. I think it would still be inappropriate to apply domestic Canadian criminal law. Geneva conventions nowhere presuppose or require that a domestic civil law of Canada be applied to Canadians who are detained in the battlefield. If Canadian soldiers were detained in Italy, Japan, or Germany during World War II, Canada would have had no right to demand that the military tribunal supply full Canadian civil domestic law. If he were to be brought back, it would be inappropriate for him to be tried in a civilian court. He's an illegal combatant, not a bank robber or a shoplifter.
Finally, on whether he's a gentleman or not, clearly it's a rhetorical point, but it's based on publicly available evidence. Gentlemen don't take up arms against their country and its allies. Apart from the other side, I think any definition would preclude him being called a gentleman. Perhaps he will grow up to be one some day.
On the War Measures Act, Tommy Douglas was prescient and quite right on that point. I used that to show that every country that provides habeas corpus also provides--and the Canadian charter still provides--for habeas corpus to be suspended.
I think that addresses as much as I can of your point.
12:40 p.m.
Conservative
The Chair Conservative Scott Reid
That unfortunately uses up all the time available in that round.
Mr. Kenney, you're next.
12:40 p.m.
Conservative
Jason Kenney Conservative Calgary Southeast, AB
Thank you, Mr. Chairman.
Thank you, Mr. Anglin. You've indicated you would be prepared to specify some of the due process privileges granted to Mr. Khadr under the CSRT system. There have been representations at the subcommittee that the military tribunal system in the United States is effectively a kangaroo court with a predetermined outcome, and Mr. Khadr has no opportunity for a proper defence or to be the beneficiary of due process.
Would you care to elaborate on some of the points to which you have generally alluded?
12:40 p.m.
Lawyer, As an Individual
I'd be very happy to do so.
This is some background context. At the end of World War II, there were approximately 2 million combatants detained by the United States around the world, more than 400,000 on U.S. soil--not in Guantanamo Bay, not in Cuba, but on U.S. soil. It never occurred to anybody that any of these detainees had a right to habeas corpus, and no one claimed that this violated international law.
By contrast, the process in place for detainees at Guantanamo Bay—excuse me, if I refer to some notes, it's quite intricate—is this. Each detainee's enemy combatant determination is based on a specific record unique to its case.
After the initial assessment determination is made, that decision is subject to two mandatory levels of review, first by a legal adviser to the CSRT and then by the director of the CSRT. This process alone has led to the determination that 38 now-released detainees were not enemy combatants. Kangaroo courts don't release; they accuse.
In addition to the CSRT review process, the Department of Defense conducts an annual administrative examination of whether it's appropriate to release or repatriate each enemy combatant. Since 2002, about 390 detainees, or more than half of all detainees, have been transferred or released through this process.
Beyond the CSRT and military commissions, detainees have a right of appeal, first to the U.S. Court of Appeals for the D.C. circuit, a civilian court, and then to the Supreme Court.
In response to the earlier point, this is a stage at which any accusations of torture can be addressed by a civilian court, and by a very responsible civilian court, probably the highest court in the United States and probably the second-most important court in the United States.
Throughout the military...Khadr will by represented by competent and committed counsel who will pursue seriously....
In terms of how they meet or exceed international norms--it's like on the Geneva conventions--the CSRTs contain express qualifications for the judges to ensure the tribunal's independence. This is more than we gave the accused at Nuremberg. There are no comparable qualifications for an article 5 tribunal. They provide the detainee with a personal representative at the CSRT level and a military lawyer at the military commissions level. The first is not required by an article 5 tribunal; the second meets the requirements of the Geneva convention.
The recorder of the process is obligated to provide a tribunal with evidence to suggest that the detainee should not be designated as an enemy combatant--a devil's advocate, if you will. There's no such requirement under the Geneva conventions.
The detainee is provided with an unclassified summary of the evidence supporting his detention in advance of the hearing. He's presented an opportunity to testify. There's no such requirement for an article 5 tribunal.
They allow the detainee to introduce relevant documentary evidence. Article 5 tribunals provide no analogous guarantee.
Every decision is automatically reviewed by a higher authority. There's no right to an appeal under the Geneva conventions.
Briefly, without laying out the full procedures as they're enacted in statutory law, those are the key points on which the trials meet or exceed the requirements of international law.
12:40 p.m.
Conservative
Jason Kenney Conservative Calgary Southeast, AB
One of the representations we received from a witness, indicating that the CSRTs constitute a de facto kangaroo court system, came from a member of the Canadian Senate, Senator Dallaire. I don't know if you've had a chance to review his or other witnesses' testimony. During his testimony--I emphasize, not under questioning--he indicated that the United States was, in its administration of these military tribunals, at the same level as the terrorists. I later clarified when he spoke about the terrorists that he was speaking of al-Qaeda, Islamic jihadi extremist terrorists.
Do you think that comment is reasonable in any respect?
12:45 p.m.
Lawyer, As an Individual
As I just testified, 38 detainees were released under the CSRT process. I don't believe there's any analogous process that's been implemented by al-Qaeda or any of its terrorist organizations. They certainly haven't released anybody under that process that I'm aware of.
Senator Dallaire--General Dallaire--made some very unfortunate statements and backed himself into a corner from which he couldn't find an elegant escape. So like a soldier, he just plowed straight ahead, unfortunately.
I did read the comment. I have the greatest respect for General Dallaire, but the sophomoric, radical relativism that most of us abandon when we put away our tweed coats and berets...it's unworthy, it's puerile, and I think it reflected poorly on him and on Canada.
12:45 p.m.
Conservative
12:45 p.m.
Conservative
The Chair Conservative Scott Reid
Mr. Kenney, we're out of time on this round.
In this round everybody kept within the timelines, except in the first round with Professor Cotler, who went over the time allowable for both rounds. So I suggest that for the next round we simply move Mr. Cotler down to the end. We'll proceed to Madame Barbot, Mr. Kenney, Mr. Marston, and, if there is time, back to Mr. Cotler. That will allow equal time for all persons.
Does that seem reasonable to people? Okay.
Madame Barbot, you're up next.
12:45 p.m.
Bloc
Vivian Barbot Bloc Papineau, QC
Let me come back to the fact that you referred to Mr. Khadr as not being a "gentleman", implying that he should not receive the same respect that a "gentleman" would receive.
It is also true that no one brought to trial is really a "gentleman" as generally understood. Your definition could be very different from mine. It is completely subjective, and I would go as far as to say that your comment is inappropriate.
I would like to know the following. There has been a lot of comment about the Khadr family, some of whom are terrorists, at least the father was. Do you think that it is fair for the child to be judged by what his father has said? Do you not think that he is a completely separate human being and that, as a child, he has the right to be protected by his country of birth?
12:45 p.m.
Lawyer, As an Individual
Thank you.
I fully agree with that. I don't think the sins of the father should be visited on the son. But at the same time, his proximity to his family--which also brought him into proximity with al-Qaeda and the bin Laden family--makes him a very rich intelligence target. The fact that he might be treated differently because of information he knows, as the son of his father, is distinct from punishing him for being the son of his father. But I have no comment on the Khadr family. I don't know them.
I hesitate to get back to the question of “gentleman”. The only point there is that the full Geneva conventions--if you read the 100-odd articles of the Third Geneva Convention--were drafted with a very specific type of responsible soldier in mind. Members of al-Qaeda do not meet that definition, thus many, but not all, of the rights provided by the Geneva conventions are anachronistic. He's still entitled to the basic, indispensable norms of due process and humane treatment. I don't think we have a disagreement on that; it clarifies my use of the term “gentleman”.
I don't know if there's any other part of your question I didn't address.
12:50 p.m.
Bloc
Vivian Barbot Bloc Papineau, QC
What I am trying to get clear is that you are always talking about Khadr as a combatant, while, according to everyone else, he is a 15-year-old child. When you hold a trial, you hold it under the laws of the country where it happened, hence the need to bring him back here so that all the context can be Canadian. When you talk about the American military tribunal process, please understand that that is not what I want to hear, especially since, in Khadr's case, the process has not been respected from the first moment when he was denied access to a lawyer.
May 27th, 2008 / 12:50 p.m.
Lawyer, As an Individual
The Geneva conventions, whether you like it or not, do not provide access for a lawyer upon capture. That's international law. I agree with you that the law must be applied—not what some people wish the law said, but what the law says. The fact is that Canadian law does not apply to an enemy combatant detained by a foreign party. It never has applied in military history, and it doesn't today.
I talked about the American process because each country, when it sets up military tribunals, has to establish a new process. We did so after World War II, it was done in Sierra Leone--it's done in every country. The only question is whether the process that is established--in this case the American process--meets the international norms. I've testified that it does.
You might say he's a boy of 15, but unfortunately the law says he is a soldier at 15. Dura lex sed lex is an old proverb.
12:50 p.m.
Conservative
12:50 p.m.
Conservative
Jason Kenney Conservative Calgary Southeast, AB
I'm aware, for instance, of a number of ethnic Uighur detainees who were released. I think some have now been transferred by the United States to Albania. I gather there are more Uighur detainees that the system has been unable to find any evidence against, who may have been picked up inadvertently in the confusion following the liberation of Afghanistan. But the point is that I gather that the United States has had difficulty finding countries to which they could actually repatriate some of these individuals. Is that your understanding?
12:50 p.m.
Lawyer, As an Individual
It is my understanding. You're clearly better informed of some of the specifics of the Uighurs, for example, but it would not surprise me that the United States would have trouble finding somebody to take the Uighurs back. We all see the persecution they are undergoing in China and in bordering states.
12:50 p.m.
Conservative
Jason Kenney Conservative Calgary Southeast, AB
As you've alluded to, a number of the witnesses at this subcommittee have testified that the recruitment of individuals under the age of 18 to engage in any kind of combat constitutes a violation of respective international conventions. You disagree with that view.
12:50 p.m.
Lawyer, As an Individual
Absolutely, and the text disagrees with that view.
12:50 p.m.
Conservative
12:50 p.m.
Conservative
Jason Kenney Conservative Calgary Southeast, AB
Perhaps you could comment on this. There seems to be a certain problem in the argument of those who maintain the illegality of recruiting combatants over the age of 15, in that if he was recruited he was apparently recruited by his own family, and his own family is resident in Canada. Is there any legal implication for the recruitment of Omar Khadr vis-à-vis his family, who were, by all appearances, his sponsors and facilitators in his military action?
12:50 p.m.
Lawyer, As an Individual
It's a difficult question. I certainly don't claim to speak for Canadian law on the point.
As a matter of international law, the law punishes states and non-state actors who recruit underage children. If members of his family could be considered members of a non-state actor, such as al-Qaeda, and responsible for his illegal recruitment--and I know there are a lot of ifs in here--then they could be considered guilty of violating the optional protocol on the involvement of children in armed conflict. But it would require much more investigation and more facts than I have at my disposal.