Mr. Speaker, for centuries the concept of abiding by the rule of law has been fundamental to the development of civilized and responsible societies. This concept has broadened to include interstate conduct as enshrined in the principles of international law. It is a basic pillar upon which the foundation of responsible state behaviour is undertaken. It is for this reason that the circumstances surrounding the imprisonment of Canadian citizen Omar Khadr in Guantanamo Bay, Cuba are so distressing.
International and domestic law clearly demonstrate that Omar Khadr ought to be dealt with in a manner which is completely different from what he has experienced since his detention commenced in July 2002. Omar Khadr was taken into custody by American forces in Afghanistan when he was just 15 years of age. Clearly, by any reasonable definition, he should have been recognized as a child soldier.
The extrajudicial nature of the tribunal set up under the United States Military Commissions Act, passed by the United States Congress, demonstrably violates the most basic tenets of due process under law and the concept of fair treatment before the law.
The United Nations Convention on the Rights of the Child is clear on the issue of child soldiers. This convention was signed by the United States, Canada and Afghanistan, although not ratified by the United States. The optional protocol to the Convention on the Rights of the Child has been signed and ratified by all three states. Essentially there is recognition in these conventions and protocols, as well as in domestic law, that states are obligated to protect child soldiers, and rather than imprison them or treat them inhumanely, these states are responsible to assist in their rehabilitation and recovery.
Recently, a document produced in 2003 by United States military doctors specifically addressed the issue of child soldiers and the notion of enemy combatants. These doctors recommended against detaining anyone under 18 years of age at the Guantanamo Bay facility. They wrote of “minimizing psychological, emotional and physical harm”. This document was prepared at a time when Omar Khadr was undergoing interrogation at Guantanamo Bay and was in fact being treated very much as an adult would be managed.
While the United States government has maintained that the Geneva Conventions do not apply to its “lawful or unlawful enemy combatants” in detention, the United States supreme court declared that notwithstanding this determination, article 3 of the conventions does indeed apply. Article 3 has several provisions, including addressing “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court...”
It is quite apparent to all parties, including the United States government, that the military commission the U.S. has created does not represent a regularly constituted court. Many groups, including Amnesty International and Human Rights Watch, have expressed their concern about the treatment of Omar Khadr, and with good cause.
Indeed, our own Supreme Court in a unanimous decision has now ruled that the Government of Canada must release all documents in Canada's possession relating to Omar Khadr in order to support his right to a fair trial. In its ruling, it specifically made mention of the United States supreme court decision declaring as unconstitutional the validity of the process now being used in that country.
The issue at present is not so much whether Omar Khadr has liability for his alleged actions, but that any disposition of his case should be undertaken before a regular court of law with standard judicial protection and rules of procedure, including recognition of his youth--