Torture as foreign policy: The Omar Khadr decision

The decision of the Supreme Court of Canada in the Omar Khadr case, which implies that remedies to prevent torture and punish perpetrators are a privilege to be granted or withheld at the pleasure of the Prime Minister, is wrong.

The Supreme Court of Canada confirmed that the government of Canada violated Omar Khadr's Charter rights, that those violations continue and that those violations contribute to his ongoing detention. The court was referring to the fact that officials from Canada's Department of Foreign Affairs and International Trade (DFAIT) interrogated Omar Khadr at Guantanamo Bay and gave their interrogation records to Khadr's U.S. captors, after being told that U.S. officials had tortured Khadr (by severe sleep deprivation) for three weeks to "make him more amenable and willing to talk" to the Canadians and that he would be placed in isolation after the interrogation.

Ignoring the imperative international duties triggered by these appalling facts, the Supreme Court of Canada went on to rule it appropriate to leave "it to the government to decide how best to respond...". The court set aside the 23 April 2009 order of the Federal Court of Canada -- confirmed by the Federal Court of Appeal on 14 August 2009 -- compelling the Prime Minister, the Minister of Foreign Affairs, the Commissioner of the RCMP and the Director of CSIS to "...request that the United States return Mr. Khadr to Canada as soon as practicable."

The Federal Court order was in keeping with the decision made by the Canadian government in March 2009. In June 2008 the Committee struck to study the Omar Khadr case recommended to Parliament "...that the Government of Canada demand Omar Khadr's release from U.S. custody at Guantanamo Bay to the custody of Canadian law enforcement officials as soon as practical."

On 23 March 2009, Parliament voted by a majority to accept that recommendation, thereby directing the Prime Minister to act to secure Khadr's release and repatriation.
In setting aside the lower court orders and overriding the will of Parliament, the court cited a need to respect the prerogative power of the executive to conduct foreign affairs, described as the "...arbitrary authority, which at any given time is legally left in the hand of the Crown..."

To arrive at this conclusion, the court relied on a text published in 1915, long before the
prohibition of torture became a norm of jus cogens, a "peremptory norm of general international law" from which no derogation is permitted; long before the "...use of torture...by state authorities...had come to be regarded as an attack upon the international order;" long before the individual's right to freedom from torture took precedence over the right of states to conduct their affairs free from interference by other states. Under current international law, the duties of states to enact and enforce effective remedies to prevent and punish torture are not subservient to any other domestic or international purpose or circumstance including "comity" between states.

In taking the extraordinary step of denying Khadr the remedy ordered by the courts below -- the only remedy available -- based on the existence of an arbitrary power not supported by law, the Supreme Court of Canada was simply wrong. It was simply wrong for the court to conclude that characterizing a remedy for torture as a foreign affairs policy matter displaces the imperative legal duties under the Convention against Torture to take effective action. Prime Minister Harper cannot clothe himself with the power to do what is prohibited by international and Canadian law.

By law, torture against a Canadian citizen must be remedied through investigation and
prosecution of suspects. Obviously the victim -- in this case Khadr -- must be removed from the control of the perpetrators of crimes against him. Neither the Prime Minister nor "government" has any "residual" right to "speak freely with a foreign state" on the suspension or relaxation of the absolute prohibition against torture. Torture can never be considered a legitimate act of state; neither can suspending or refusing remedies be legitimated as foreign policy.

The language used by the court to describe key facts and principles creates the erroneous impression that U.S. accusations against Omar Khadr are more serious than, and therefore take precedence over, the crimes the U.S. is known to have been committed against him.
Here are examples of the misleading language used by the court in the Khadr judgment:

• "frequent flyer program" is used to refer to the torture of Khadr by subjecting him to prolonged and severe sleep deprivation to enhance extraction of information by Canadian officials.

• "trial" is used to refer to the military commissions process found by the U.S. Supreme Court to illegally violate the right to a fair trial by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

• "war crimes" is used to describe charges against Khadr that have been challenged as illegitimate because they are: unknown to the laws of war; created after they are alleged to have been committed, for which reason prosecution is absolutely barred; and inapplicable since as a child Khadr lacked the capacity to consent to involvement in war.

• "the trial is proceeding" refers to a delay of 9 almost eight years--a delay that violates the right to be tried within a reasonable time under Canadian and U.S. law. Were Khadr before a regularly constituted court, the prosecution would be stayed on the basis of that delay.

• "government" is used to refer to Stephen Harper, the Commissioner of the RCMP, the Minister of Foreign Affairs and the Director of CSIS.

"Mr. Khadr's rights under s.7 of the Canadian Charter of Rights and Freedoms were violated" refers to the most grave violations of Khadr's rights to liberty; due process; freedom from torture and other cruel, inhuman and degrading treatment or punishment;
freedom from arbitrary imprisonment; freedom from prosecution for ex post facto crimes; a fair trial; timely and confidential legal representation; determination of criminal charges by an impartial and independent tribunal; habeas corpus for determination of the legality of imprisonment and treatment during imprisonment; equality before the law and equal access to the protection of the law; and, under the Convention on the Rights of the Child, to rehabilitation, education and re-integration into free society.

Finally, the Supreme Court of Canada decision in the Khadr case ignored the legal reality that without remedies there are no rights. The Chief Justice of the Supreme Court of Canada has in the past observed that had freedom from torture and other basic rights been enforced, the Holocaust could not have occurred.

By allowing the Prime Minister to refuse to take the actions required by law and approved by Parliament to stop violations of Omar Khadr's rights, and by dubbing Mr. Harper's inaction "foreign affairs," the Supreme Court of Canada has put the rights of us all at risk.

Gail Davidson is a lawyer and activist, and a member of Lawyers Against The War.