Omar Khadr was arrested in Afghanistan in 2002 for allegedly killing an American soldier with a grenade and has since been detained at both Bagram Air Base and Guantanamo Bay. Though his trial has just begun, the proceedings have already had their share of complexities. In July, Khadr fired his legal team before the trial and then on August 12, his lawyer collapsed near the end of the first day of proceedings. The trial has been postponed until October 18.
Khadr, a Canadian citizen, is the youngest of the 176 detainees and is the only Westerner currently being held at the facility. The United Nations and Amnesty International have expressed concern over the trial.
Khadr was recruited to fight for the Taliban at the age of nine and was captured by American forces at the age of 15, which makes him, under the Optional Protocol on the Involvement of Children in Armed Conflict to the Convention on the Rights of the Child, a child soldier. International law ensures that child soldiers are not to be tried as adults, as Khadr is currently. According to the Optional Protocol, children should be treated as victims and rehabilitated so that they may be reintegrated into society. Khadr has not received such treatment and the prosecution has made it clear they will seek life in prison if he is convicted.
Khadr has received the exact opposite to what he is entitled to under the rule of law. What makes his case even more confusing is that the United States recognizes the legitimacy of each law it is breaking.
Under the Convention of the Rights of the Child, children are to be detained separately from adults. Yet, during his time at Bagram Air Base and Guantanamo, Khadr was kept with adults.
International law also makes it clear that children are not to be tried and especially not by a military tribunal. Every aspect of Khadr’s trial is being run by the military. His lawyers, the prosecution, the judge, and the jury are all on the Pentagon’s pay roll.
The laundry list of violations does not end there. It is no secret that the Americans have tortured people during the war on terror using techniques such as water-boarding. Under Common Article 3 of the Geneva Convention, prisoners may not be subjected to torture or cruel and degrading treatment. The interrogator at Bagram Air Base who was in charge of Khadr’s interrogation has been court-martialed for his mistreatment of prisoners whether Khadr’s treatment was a factor is still unknown. Khadr alleges he was tortured and threatened with rape as early as 2003 and has said he had been used as a human mop after he urinated himself. Further, government documents have proven that in 2004 Khadr was subject to the “frequent flyer” program at Guantanamo where he was deprived of sleep and moved every three hours during interrogation to make him more ‘willing to talk’.
When captured, Khadr was not provided legal counsel nor did he have an adult present to ensure that his rights were protected. Khadr was first interrogated while being handcuffed to his stretcher after receiving major surgery at Bagram Prison. It was not until two years after his capture that Khadr finally managed to receive legal aid. In a civilian case, this would be unheard of and would border on criminal. Yet, the Canadian government still regards his trial as fair and refuses to repatriate him.
Khadr was finally charged three years after his initial capture and to date has been in prison for eight years. International standards regarding justice for juveniles says that children must be dealt with promptly to prevent them from being victimized again. I do not believe eight years is prompt by any measure.
What if Khadr were an American being tried in Canada under the same circumstances? Would the Americans allow a citizen to be tried in these conditions? The implications of this case are not limited to the future of Omar Khadr’s life but also include how Canadians regard the rule of law and human rights.
Other Western nations, such as Australia, have repatriated their citizens. The Federal Court of Appeals in Canada has pressed for Khadr’s return to Canada on the grounds that his charter rights have been violated. Despite this and the slew of violations that have made Khadr’s trial possible, the federal government refuses to uphold the rule of law and bring him home to face trial. If Khadr’s trial proceeds and if he is found guilty, the rule of international law and Canada’s obligations to the international community will be dealt a considerable blow.
