Lawyers Rights Watch Canada: Repatriate Omar Khadr to Canada for rehabilitation

| November 2, 2010

The Under-Secretary-General of the United Nations and Special Representative for Children and Armed Conflict, Rhadhika Coomaraswamy, has called for the repatriation of Omar Khadr to Canada for rehabilitation because of his status as a child soldier at the time of the events leading to the current military tribunal proceedings.

Lawyers Rights Watch Canada (LRWC) joins with Ms. Coomaraswamy in this recommendation.

LWRC is deeply concerned about the illegitimacy of the military commission proceedings and the illegality of the Guantánamo Bay sentencing of Khadr now in process.

There has never been any factual doubt that Khadr was recruited, indoctrinated, trained, deployed as a soldier while he was a child, and that he has been imprisoned since 2002 at which time he was 15 years of age. Despite the fact that neither the United States nor Canada have recognized him as a child soldier, Khadr's status as a child soldier is confirmed by Ms. Coomaraswamy in her October 27 submission to the Guantánamo Bay military commission:

"[I]n every sense Omar represents the classic child soldier narrative; recruited by unscrupulous groups to undertake actions at the bidding of adults to fight battles they barely understand..."

Canada's Federal Court found on 23 April 2009 that "Mr. Khadr's detention in Guantanamo Bay is illegal under both U.S. and international law." On 14 August 2009, the Federal Court of Appeal found his treatment by Canadian officials to be:

"...a breach of international human rights law respecting the treatment of detainees under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36 and the 1949 Geneva Conventions."

Common Article 3 of the Geneva Conventions and Protocol I prohibits -- at any time and in any place -- the passing of sentence when charges have not been determined, "by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people."[1] The denial of a fair trial violates the Geneva Conventions, the Rome Statute of the International Criminal Court and Canada's Geneva Convention Act and Crimes against Humanity and War Crimes Act.

The Supreme Court of Canada in 2010 found that:

"Canadian officials are contributing to K's continued detention... [and that the] deprivation of K[hadr]'s right to liberty and security of the person is not in accordance with the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects."

International treaties violated by the imprisonment and treatment of Omar Khadr include the Convention on the Rights of the Child, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the International Covenant on Civil and Political Rights, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Geneva Conventions. All of this law is binding on Canada. The United States signed the CRC in 1995 and is expected to respect its provisions pending ratification.

Both the United States and Canada are States Parties to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. The Optional Protocol, which is binding on both the United States and Canada as a matter of international law, stipulates that:

Article 7

States Parties shall co-operate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with the States Parties concerned and the relevant international organizations.

LRWC is extremely troubled that despite requests from Ms. Coomaraswamy, as well as from UN High Commissioners for Human Rights, Louise Arbour and Navi Pillay, and UN Special Rapporteur on Torture, Manfred Nowak, the United States and Canada have ignored binding international law in the case of Omar Khadr.

Instead, both Canada and the United States have co-operated to deny Omar Khadr the protection of universally applicable international law and a fair trial.

LRWC calls on the United States and Canada to co-operate to ensure that Omar Khadr is repatriated to Canada immediately in the terms Ms. Coomaraswamy suggests, and that arrangements be made for him to enter a rehabilitation program in Canada in accordance with the terms of the Optional Protocol and the Convention on the Rights of the Child.

Lawyers Rights Watch Canada (LRWC) is a committee of lawyers who promote human rights and the rule of law internationally.

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Comments

"Rehabilitation" for Omar Khadr means keeping him in a maximum security penitentiary until he can satisfy a parole board that he is worthy of being released. It could mean he will serve the entire 8 years of his sentence that remains.

Instead of calling for Khadr's rehabilitation, these "human rights" lawyers should be calling for his unconditional release. Khadr's "trial" was a sham and a fraud. There is no good reason to give it any credibility in Canada. Canada should do what the USA should have done eight years ago - release Khadr unconditionally. 

Of the allegations released concerning the plea deal, it appears that Omar Khadr will remain at GTMO for one year. After that, he can apply for a transfer to Canada. It is alleged the plea deal "stipulates" that it is "expected" Mr. Khadr is to serve the remaining seven years in a Canadian jail.

It also appears Canada will respect the agreement reached in the plea deal and accept Mr. Khadr's transfer application. At which point the Canadian Supreme Court will review his case and determine whether or if at all he spends any more jail time in Canada and/or whether or if he receives any rehabilitation.

By "rehabilitation", I mean in the U.N. sense - both necessary and desirable to overcome the "mind fuck" (abuse) child soldiers suffer from in general and Omar Khadr definitely suffered from over the past 9 years specifically.

 

What makes you think the Supreme Court is going to act as parole board for Khadr?

And what makes you think that Stephen Harper's idea of "rehabilitation" for a convicted terrorist would be anything short of psychological torture and deprivation of civil rights and liberties?

Neither Canada nor the United States has recognized Khadr as a "child soldier" - indeed, both have expressly denied him that status. So the question of United Nations-style rehabilitation doesn't even enter into the picture. In any event, the UN has not defined what rehabilitation means or what it looks like, so it's left up to the imagination of the government having custory of the child soldier.

The only "rehabilitation" currently available is that offered by the Canadian corrections service to inmates of its penitentiaries. Good luck with that.

And what does rehabilitation mean in Khadr's case, anyway? "Re"-habilitation suggests restoring someone to a former state. To what point in Khadr's past do we want to set the time machine? No, rehabilitation can only mean one thing: making Khadr into someone he has never been.

To Stephen Harper, rehabilitation would mean nothing less than turning Khadr into a Conservative-voting, poppy-wearing, National Post-subscribing, beer-drinking hockey fan who likes to watch the Lang & O'Leary report and accepts Jesus Christ as his personal lord and saviour. 

Even as we sit here Harper has his minions drafting new legislation to deal with the "rehabilitation" of Omar Khadr. It will be happily passed by Canada's faux-opposition, and it will involve things like making him wear an ankle-bracelet monitor for the rest of his life and severely restricting his rights to travel and communicate. I can even envision the kind of "aversion therapy" that was depicted in "A Clockwork Orange", so that Khadr will become violently ill at hearing the mention of any unkind word about the governments of the United States or Canada.

What makes me think the Supreme Court is going to act as parole board for Khadr:

1) The Supreme Court already ruled that the Harper administration was ignoring the fact that Mr. Khadr's rights were ignored and that the government should repatriate Khadr back to Canada.

2) The violation of Mr. Khadr's rights occurred outside of Canada, coupled with the grievousness of the violations, makes Mr. Khadr's rights and their violation a Charter of Rights and Freedoms issue.

What makes you think the Harper administration has the right to act as 'parole board' for Khadr?

It's not their jurisdiction.

Now the Harper administration may try to expand the powers of the executive and legislative branches of government (Prime Minister, PMO, Cabinet, Parliament, etc.,) at the expense of the judicial branch of government (Supreme and Superior Courts, etc.,) by attempting to pass Bills into Statutory laws/legislation.

If the Harper administration attempts to do this, here's where We the People come in: We must bring so much pressure to bear upon the administration and our representatives from all parties that it would be political suicide for them to support and pass such legislation.

The Pentagon, the military tribunal, the U.S. military, the White House and Herr Harper and the Cons took/are taking a hard determinist approach to Omar Khadr.

As far as they are concerned, Omar Khadr is genetically predisposed to re-offend if he is set free.

Omar Khadr was tortured. The reason why he was tortured was not to rehabilitate him but to extract a confession from him.

The sentence of one more year at GTMO and (possibly a maximum) of seven more in a Canadian jail, is not for the purpose of rehabilitation, it is punishment for his "crimes" and for the safety, protection and security of American and Canadian society.

Now that U.S. authorities have got what they wanted from Khadr - a rallying point to justify and shore up dismally flagging support for the Afghan war and to show they're tough on terrorism, they're just going to 'put him on ice' by letting him sit in jails for another eight years maximum.

They aren't going to torture him anymore because they got what they wanted and to do so further wouldn't serve any practical purpose. In fact it would be a political liability.

They're not going to "torture" him in a "Clockwork Orange" scenario with aversion therapy and behavior modification because rehabilitation is not on their radar screens.

Their argument is, "Omar Khadr through both nature and nurture (at an early age) is, by his very nature, a "defective" - i.e., genetically predisposed dysfunctional person (terrorist). No "therapy" or "rehabilitation" in the world is going to change that. When you have a product that, through a design flaw, an "accident" or by its nature that is defective, you cannot nor do you bother to "fix" it. You either toss it aside and not use it or you discard/destroy it.

Using such an analogy, hard determinists can and do make a case for capital punishment.

Ultimately, if Uncle Sam and Herr Harper were to get their way, that's precisely what they'd do: Zap/fry, gass, inject or blow Khadr away before a firing squad.

In their opinion, "rehabilitation" is left wing, socialist, commie pinko, bleeding heart liberal misguided philanthropy.

 

 

Once in Canada (assuming he ever is), Khadr will be a prisoner, under the jurisdiction of the Canadian penal system, which is supervised and regulated by the federal government, not the Supreme Court. Last time I checked, the federal government was run by Stephen Harper, and there's no prospect of that changing any time soon. The federal government has complete control over the criminal justice system, the prison system, and the parole system. They also have de facto control over Parliament. They have already demonstrated their contempt for the Supreme Court, the rule of law, Parliament, international law, and human rights.

Last time Khadr was in the Supreme Court, the judges gently rapped Harper on the knuckles and shied away from making him do anything to repatriate (much less rehabilitate) Khadr. Don't look to them to protect him. Besides, it takes years to get a case to the Supreme Court, and there's no guarantee they will agree to even hear it. 

Omar Khadr is unpopular in Canada. It would not be "political suicide" for Harper to continue Khadr's ordeal indefinitely - indeed, he only has to pander to the 35% of the population that ensures his re-election.

Khadr will not be released until he can convince a parole board he is rehabilitated - whatever that means. Harper can and does control the rules under which parole boards operate - they have no jurisdiction except what is given to them by the legislation passed in Parliament. How is he going to be rehabilitated while sitting in the Kingston Pen? That's the issue the "Lawyers Rights Watch" fails to address.

As for "mandatory release" laws, those can be changed by Parliament, and Regulations can be issued by the Cabinet in the name of the Governor-General, without any Parliamentary involvement at all. Don't imagine for one minute that Harper and his pals will be sitting on their hands for the next year while Khadr is doing hard time in Guantanamo. They plan to put that year to "good use" - that's why they refused his immediate repatriation to Canada (unlike the governments of the UK, Australia, Germany, and others who demanded, and got, repatriation before trial for their citizens).

We've seen how the federal governments - Liberal and Conservative - treat Canadians like Maher Arar, Abousfian Abdelrazik, Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin - none of whom (unlike Khadr) were convicted of criminal activity; how can you imagine Omar Khadr would receive any more compassionate treatment than that?

I don't imagine the Harperite ReformaTory Cons offering Omar Khadr any more compassionate treatment than the others.

On a slightly positive note, Maher Arar successfully sued the federal government for his treatment and Abousfian Abdelrazik is currently in the process of suing the government.

I find it amazing that "Strong Leader" Harper is scared of a person who, when he was first captured/imprisoned, was a fifteen year old kid.

We shall see how this thing plays out. Harper may choose to legally harass Mr. Khadr. Harper may try to make as much political hay out of this as he can. However, it could backfire on him.

Just like making the Long Form Census voluntary and taking away the legal sanction on it, Harper thought he and the ReformaTory Cons would gain from it. To their surprise, it nearly blew up in their face.

Canadians may see Harper's harassment of Mr. Khadr unseemly and this may cause some political damage.

"..., he [Harper] only has to pander to the 35% of the population that ensures his re-election."

Yes indeed, just like the old saying goes: "Evil triumphs when good people fail to act."

We'll have to see what happens.

If there's any justice in the world, when Mr. Khadr's sentence at GTMO is up in a year, Harper will no longer be in office.

Yes, I know, "Don't hold your breath on it."

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