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No Child’s Play: Omar Khadr’s Detention and Its Consequences

Publié le 1 septembre, 2008 | Pas de commentaires

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Omar Khadr’s detention at Guantanamo Bay raises a number of issues. Whether or not he is guilty of the charges he stands accused of, the circumstances and legality of his detainment shake the very foundations of justice that are allegedly being protected. Furthermore, the silence of the Canadian government on the matter betrays Canadian principles of democracy, and denotes an undermining of Canadian sovereignty.

Stripes on Stripes
Dominic Alves, Stripes on Stripes, 2003
Certains droits réservés.

The U.S. Supreme Court has ruled that the 2006 Military Commissions Act, the legal basis for the continued existence of Guantanamo Bay and the military courts established to try its prisoners, is unconstitutional. As such, all of its prisoners may file habeas corpus petitions in district courts asking for release from their unlawful detainment. In addition, both U.S. Presidential nominees have promised to close Gitmo when elected. If either of these scenarios transpires, Omar Khadr, a Canadian citizen in detention at Gitmo since 2003 when he was the tender age of 15, may very well be released. Khadr’s detention at Guantanamo Bay is one of the most contentious in history, its implications far reaching.

Children of Men

Teenagers are usually afforded a special place when it comes to issues of justice and the law. European models tend to be progressively reformist: in countries like Holland, for example, teenagers are rarely ever given prison sentences and are instead placed into educational programs that seek to modify their behaviours and instill common societal beliefs (1). In Canada and the US, persons under the age of 18 are treated as minors and are subject to different laws, unless a very specific and arduous set of conditions apply to the crimes they are accused of, in which case they may be tried as adults. Even so, minors are treated differently than adults when it comes to prosecution, incarceration, and rehabilitation. Whatever the crime, for example, the U.S. Supreme Court has ruled that it is unconstitutional to execute a person for crimes committed before they turned 18. Thus, when it comes to issues of civil and criminal law, those under the age of 18 (let’s call them minors) are considered different entities, and are treated as such.

The international community holds that the particular status given to the issue of “child soldiers” really gained attention when children were recruited and used to commit shocking and inhumane acts of violence in numerous African civil wars that began in the 1990s. According to the Coalition to Stop the Use of Child Soldiers, there are 300,000 child soldiers in the world (2). In light of the inhumane absurdity that results from having children participate in the wars of men, the UN in 2000 adopted the Optional Protocol to the Convention on the Rights of the Child. The protocol prohibits children under 18 from being deployed in hostilities, and when they are involved, it affords them special legal status and protection (as it was considered illegal for them to be deployed). This protection and legal status is fairly analogous across most legal systems: we typically do not blame 17 year olds when they are caught drinking underage at the bar; we blame the establishment for allowing them to drink in the first place.

Taking all this into consideration, we might say that teenagers get a bit more of a break when it comes to mistakes they have made before becoming an adult.

Not so with Omar Khadr. The judge presiding over his case, Peter Brownback, has stipulated that via his interpretation of the 2006 Military Commissions Act (the same act the Supreme Court just ruled unconstitutional), no instances of international law or convention will be considered or applied, and, as such, his status as a child soldier will not be considered. His interpretation signals a judicial particularity: he is not allowing any other bodies of law into consideration at the trial because he is empowered as a judge by a limited Act dealing with military commissions. Yet, the very same Act he is trying so hard to abide by has been stricken unconstitutional by the highest court he is bound to respect. Say that three times fast.

Tortuous Reform

Many accounts of torture and abuse have surfaced from the Guantanamo Bay detention centre. In Omar Khadr’s case, the reports would be disturbing even if the allegations were coming from a hardened criminal. His lawyer has submitted statements by Khadr alleging, amongst others things, that he has been beaten, exposed to violent dog attacks, subjected to sleep deprivation, denied proper medical attention, and threatened with extra-extraordinary rendition to places where he might be raped (3).

Furthermore, while other minors have been kept at Guantanamo Bay, they have been held in separate quarters, given access to education, and, by now, released. In fact, a 14-year-old Afghani boy who shot and killed an American soldier was deemed too young to be tried, and released by Americans shortly after his detention.

Omar Khadr, on the other hand, has spent his rare moments not in solitary confinement among the eighty high-profile Gitmo captives still remaining; the “worst of the worst,” as some of the guards have called them. Both his lawyer and Canadian officials have called him a good kid, his lawyer even going so far as to call him a “decent, well mannered young man who is not a radical, not a danger, and who will be a good citizen when he returns to Canada” (4). He adds that you do not have to take his word for it, as reports by Canadian officials who have visited Khadr have said the same thing (5). According to a CBC report, Khadr’s U.S. guards do not consider him a dangerous man, but have said that prolonged exposure to the radical beliefs of some of his fellow inmates puts him at risk of adopting their radicalism (6). If this happens, the U.S. will have lost an opportunity for reform and instead will have shown the world that they value revenge over justice.

Tacit Permission

As a Canadian citizen, Omar Khadr also has the special distinction of now being the only Western national left in detention at Guantanamo Bay. The governments of every other Western nation have negotiated deals with the U.S. government, either securing the release of their citizen or calling for that citizen to be tried on home soil. In fact, even ultra-conservative Australian Prime Minister John Howard intervened when Australian national David Hicks was convicted by the military commission of providing material to Al-Qaeda. Hicks will now serve nine months in an Australian prison instead of the unknown amount of time he would have spent in Guantanamo (7). The difference in Omar Khadr’s case is that the Canadian government has shown neither the intention to intervene nor any sort of criticism of the process. In fact, the Harper government has been callously silent on the matter, to the extent that Khadr’s lawyer (a U.S. military serviceman) has accused the government of “hiding behind the unpopularity of the Khadr family” (8).

One can understand that the special relationship Canada and the U.S. share makes the subject of the extradition of a terror suspect a particularly sensitive one. But when every other Western nation has secured the release or extradition of their own national; when the highest court of the country responsible deems the laws on which his detention are based unconstitutional; when he is held for six years without charge, in violation of the standards for justice and the rule of law that both countries involved hold particularly dear; when he was arrested at fifteen, and as such considered a Child Soldier by international law that Canada has ratified; and when Canadian officials have been witness to the entire process, would we not expect a stronger, more nuanced, and considerate response from the Canadian government than “there is a judicial process underway to determine Mr. Khadr’s fate…this should continue” (9)? The tacit acceptance by the Canadian government of policies and practices, that even certain branches of the American government itself contest, should raise eyebrows among Canadians and signal that, on some levels, our sovereignty has been undermined.

No Child’s Play

On this issue in particular, the Liberal Party of Canada has taken the most appropriate approach. Stephane Dion (along with MPs from every Canadian party but the Conservatives) has recently called for Canadian intervention on the matter. Dion’s opinion is that Khadr should be tried in a U.S. civil court, and that if the Americans will not accept to try him, he should be repatriated to Canada to face trial (10). After all, Canada is a main player in Afghanistan and has the same interests when it comes to the security and protection of Western interests and soldiers there. What Dion recognizes, which the Harper government does not, is that this case is about far more than trying a fifteen year old for throwing a grenade at a medic, or about fighting the War on Terror. This case is about the terror of letting a war change our societies on such a fundamental level that we accept and allow the rule of law to be cast asunder. It is about holding one particular child, one particular person, and one particular citizen as distinct from others and deserving of less. The Canadian Bar Association, along with other national bar associations, acknowledge this too and have written an open letter to George W. Bush requesting for Guantanamo to be shut down (11).

All interested parties need to understand how crucial it is that the rule of law be upheld and that injustices like this not take place. Where war and vengeance are concerned, people forget that these are precisely the times when concepts like due process and the rule of law need to be upheld. We are supposed to presume innocent and provide unfaltering evidence to the contrary, in a court susceptible to public scrutiny. We are supposed to show how our version of humanity holds even in the face of the deepest inhumanities. The inability, or unwillingness, of the Canadian government to protect one of its citizens from an alien process that has been determined illegal by the bodies governing it demonstrates a weakening of Canadian sovereignty where Canadian sovereignty should apply. Granted, the unpopularity of Khadr’s family and his involvement in Afghanistan hardly makes Omar Khadr a sympathetic figure. But it is because of this, not despite this, that his rights as a human and a citizen need to be upheld—Lady Justice wears a blindfold, but she is not blind. Prime Minister Harper should sincerely consider whether Canadian sovereignty is better strengthened by defending our laws, displaying our values, and protecting our citizens along our southern border than it is by building military bases in the north.

As Francis Bacon wisely declared: “if we do not maintain justice, it will not maintain us” (12).


(1) Nissen, Carl, et al. “Youth Policy in the Netherlands.” Report for the Council of Europe, 1998. <http://www.coe.int/t/dg4/youth/Source/IG_Coop/YP_Netherlands_en.pdf>.
(2) “Over 300,000 Child Soldiers Fighting in Today’s Global Conflicts.” Reuters News Release, May 10, 2000. <http://www.commondreams.org/headlines/051000-02.htm>
(3) “Trio of Opposition MPs Press for Khadr’s Return.” CBC News, February 5th, 2008. <http://www.cbc.ca/canada/story/2008/02/25/khadr-opposition.html>. I use the term extra-extraordinary rendition to point out the fact that his ‘rendition’ has thus far already been extraordinary. Generally speaking, the use of the term extraordinary rendition is curious considering that renditions are neither ‘ordinary’ nor legitimate.
(4) Omar Khadr – ‘A Good Kid’.” CBC News, June 3rd, 2008. <http://www.cbc.ca/national/blog/video/militaryafghanistan/omar_khadr_a_good_kid.html >
(5) Ibid.
(6) “Omar Khadr Will Need Help If Released, Commons Committee Hears.” CBC News, June 17th, 2008. <http://www.cbc.ca/canada/story/2008/06/17/khadr-report.html>.
(7) “New Twist in Guantanamo Hearing Draws Fire.” Christian Science Monitor, November 9th, 2007. <http://www.csmonitor.com/2007/1109/p25s05-duts.html>
(8) “Harper’s Office Stands Firm on Khadr Position.” CBC News, July 15th, 2008. <http://www.cbc.ca/canada/story/2008/07/15/harper-khadr.html>.

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