FAAE Committee Report

INTRODUCTION

In March 2008, the Subcommittee decided to study and prepare a report on the case of the detention and prosecution of Omar Khadr.¹ The Subcommittee has since held six hearings. In light of the testimony heard and in light of publicly available information, the Subcommittee agrees to report the following findings to the Standing Committee on Foreign Affairs and International Development.

FINDINGS

Omar Khadr, a Canadian citizen born in September 1986, was captured by U.S. forces near Khost, Afghanistan, in July 2002, following a battle between U.S. forces and insurgents which resulted in the deaths of U.S. Army Sergeant Christopher Speer and two Pashto interpreters working with coalition forces.

The Subcommittee did not receive evidence on the precise circumstances of how Omar Khadr came to be involved in the battle at which he was captured, or of how he came to be associated with Al-Queda. However, media reports and some of the testimony received suggest that his family played a central role in that regard. The Subcommittee notes in particular (i) the fact that Ahmad Sa’id Khadr (Omar’s father) is alleged to have contributed financially to and otherwise supported Al-Queda and (ii) public statements made by Maha Elsamnah (Omar’s mother) and Zaynab Khadr (his older sister) on the family’s support for Islamist terrorism.

Omar Khadr was seriously injured in the battle and was transferred to a military hospital at Bagram Airbase in Afghanistan, where he was detained until October 2002. He was then transferred to Camp Delta, a U.S. detention facility in Guantanamo Bay, Cuba, where he has since been detained.

Omar Khadr alleges various forms of mistreatment during his detention, including the infliction of physical pain, being subjected to aggressive interrogation techniques, solitary confinement, and the denial of adequate medical treatment.² The Subcommittee notes that these allegations are similar to those made about the treatment of detainees at Bagram Airbase and Guantanamo Bay in general. The United States government has repeatedly stated that it takes such allegations very seriously and that they are investigated.³ While U.S. authorities have not said whether they have fully investigated Omar Khadr’s allegations of mistreatment, a Pentagon spokesman recently stated that they “have no evidence to substantiate” the allegations made by Mr. Khadr in his affidavit.⁴

In April 2007, the following charges sworn against Omar Khadr were referred to the U.S. Military Commission:

1. Murder, in violation of the law of war, through the unlawful and intentional killing of U.S. Army Sergeant Christopher Speer;
2. Attempted murder, in violation of the law of war, through the conversion of land mines into improvised explosive devices and planting these explosive devices in the ground in order to kill U.S. or coalition soldiers;
3. Conspiracy, through wilfully joining Al-Queda, a group that has engaged in hostilities against the U.S., and that shared a common criminal purpose known to Khadr, combined with the commission of acts by Omar Khadr in furtherance of the activities of such group;
4. Providing material support for terrorism, through training, surveillance and reconnaissance activities against U.S. troops, planting of explosive devices, etc.;
5. Spying, through conducting surveillance activities of U.S. forces.⁵

Omar Khadr was 15 years old when he allegedly committed the offences with which he is charged and when he was captured and first detained. Throughout his detention at Bagram Airbase and in Guantanamo Bay, Cuba, he has been detained in facilities for adults. He was not placed in Camp Iguana, a detention facility for juvenile detainees, when he was first transferred to Guantanamo Bay.

The Subcommittee heard from a number of witnesses who expressed concerns about the extent to which Omar Khadr’s detention, and his prosecution and trial before the Military Commission, conform to recognized international human rights standards, in particular to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (Optional Protocol), which both Canada and the United States have signed and ratified.

With respect to the issue of children involved in armed conflict, the Subcommittee notes that:

1. The UN Convention on the Rights of the Child, which Canada has signed and ratified and which the United States has signed but not ratified, defines “child” as “every human being below the age of eighteen years” (Article 1). It states that “Every child deprived of liberty shall be treated … in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.” (Article 37 (c))
2. The Convention on the Rights of the Child further states, “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” (Article 37(a))
3. According to the Preamble of the Optional Protocol States Parties are “Convinced that an optional protocol to the Convention raising the age of possible recruitment of persons into armed forces and their participation in hostilities will contribute effectively to the implementation of the principle that the best interests of the child are to be a primary consideration in all actions concerning children.”
4. While the Optional Protocol does not strictly ban the participation in hostilities of soldiers between 15 and 18 years of age, who were voluntarily recruited by national armed forces, it states that “Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.” (Article 4(1))
5. The Optional Protocol does not prohibit the prosecution of children for crimes they are alleged to have committed during their involvement in armed conflict.
6. However, the Optional Protocol commits States Parties to “cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary to the Protocol and in the rehabilitation and social reintegration of persons who are victims of acts contrary to this Protocol, including through technical cooperation and financial assistance.” (Article 7(1))
7. Furthermore, the UNICEF Principles and Guidelines on Children Associated With Armed Forces or Armed Groups, which were endorsed by Canada in 2007, state: “A child rights approach — meaning that all interventions are developed within a human rights framework — should underpin all interventions aimed at preventing recruitment or use, securing the release of, protecting, and reintegrating children who have been associated with an armed force or armed group. Funding should be made available for this programming, according to the rights and needs of the children, irrespective of formal or informal peace processes or the progress of formal adult DDR [Disarmament, Demobilisation and Reintegration] processes.”⁶

Taking into account the leadership role Canada has played in international efforts to protect children involved in armed conflicts, including in the negotiation of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, in light of the specific commitments Canada and the United States have made by ratifying the Optional Protocol,⁷ in light of information available about Omar Khadr’s recruitment into an armed group associated with Al-Queda, and in light of the fact that he was 15 years old when he allegedly engaged in hostilities and when he was captured and first detained, the Subcommittee believes that Omar Khadr should be considered a “child involved in armed conflict” and afforded the special protection outlined in the Optional Protocol.

The Subcommittee therefore believes that the Government of Canada has an obligation to ensure that its position on the case of Omar Khadr is consistent with its commitments to international human rights law, and its policies on child soldiers and on assistance to Canadians imprisoned abroad. Canada’s position should also be consistent with its other obligations under international law, and in particular with those created in Resolution 1373 (2001) of the UN Security Council, which deals with international terrorism.

With regard to Omar Khadr’s prosecution and trial in Guantanamo Bay, the Subcommittee notes that:

1. In a ruling on 30 April 2008, Military Judge Peter E. Brownback rejected a defence motion to dismiss the charges against Omar Khadr “Due to Lack of Jurisdiction Under the MCA [Military Commissions Act] in Regard to Juvenile Crimes of a Child Soldier.”⁸
2. For the purposes of prosecution, trial and sentencing, the Military Commissions Act (2006) does not require the Commission to take into account a detainee’s age in cases where crimes were allegedly committed when the detainee was under the age of 18.
3. In the legal proceedings underway against Omar Khadr, there is no indication that his age at the time of the alleged commission of the crimes with which he is charged has been sufficiently taken into account.

With regard the Military Commission system more generally, the Subcommittee points to the 23 May 2008 decision by the Supreme Court of Canada in the case of Canada (Justice) v. Khadr, in which the Court notes that the process established at Guantanamo Bay, Cuba, “for the detention and prosecution of non-U.S. citizens believed to be members of Al-Queda or otherwise involved in international terrorism,”⁹ which was established by Presidential Military Order in 2001, “has been found by the United States Supreme Court to violate U.S. domestic law and international human rights obligations to which Canada is party.”¹⁰ While that process was revised with the adoption of the Military Commissions Act in 2006, serious concerns continue to be raised about the extent to which the revised process meets international legal and human rights standards.

The Subcommittee notes that Omar Khadr is the only citizen of a western country still in detention in Guantanamo Bay and that all nationals of other western countries have been repatriated. Many of these were subsequently detained and/or tried in their home countries in accordance with applicable domestic laws. In some cases, former detainees were subjected to national security measures, including being placed under surveillance or being refused travel documents.

The Subcommittee notes that under Canadian law, Canadian courts can exercise jurisdiction in relation to certain crimes committed abroad, including offences created under the anti-terrorism provisions of the Criminal Code and under the Crimes Against Humanity and War Crimes Act. Therefore, the Subcommittee is confident that the Canadian justice system has the jurisdiction to hold Omar Khadr accountable for offences he may have committed in Afghanistan. As in other cases involving persons who were under the age of 18 when crimes were allegedly committed, due process under Canadian law would involve a determination by a judge whether circumstances warrant prosecution as a juvenile or as an adult.

The Subcommittee notes that under Canadian law, judicially enforceable limitations can be imposed on the freedom and conduct of individuals considered to present a risk related to the commission of terrorism offences, in accordance with section 810.01 of the Criminal Code. Without expressing a final opinion on the specific situation of Omar Khadr, the Subcommittee considers that this legal vehicle could be an avenue to deal preventively with the security risks that Omar Khadr may be found to constitute. In that regard, the Subcommittee also notes the willingness expressed by Omar Khadr’s military lawyers, Lt-Cmdr William Kuebler and Ms. Rebecca Snyder, to have Mr. Khadr go through a custom-made disarmament, demobilization, and rehabilitation program which would include enforceable conditions. The Subcommittee considers that this could be a way for Canada to discharge its obligation under Article 7 of the Optional Protocol, while simultaneously paying due regard to the national security concerns that may be raised by the situation.

RECOMMENDATIONS

In light of these findings, the Subcommittee:

1.  Recommends that the Government of Canada demand the immediate termination of Military Commission proceedings against Omar Khadr.
2. Expresses its objection to the position stated by the United States that it reserves the right to detain Omar Khadr as an “enemy combatant” notwithstanding an acquittal or the possible termination of proceedings.
3. Recommends that the Government of Canada demand Omar Khadr’s release from US custody at Guantanamo Bay to the custody of Canadian law enforcement officials as soon as practical.
4. Calls on the Director of Public Prosecutions to investigate, and, if warranted, prosecute Omar Khadr for offences under Canadian law.
5. Recommends that the Government of Canada take such measures as are necessary to ensure that possible security concerns are appropriately and adequately addressed upon the repatriation of Omar Khadr.
6. Calls on the Government of Canada to take appropriate measures that are consistent with Canada’s obligations under Article 7 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict and with Canadian law.
7. In particular, the Subcommittee calls on the relevant Canadian authorities to ensure that an appropriate rehabilitation and reintegration program is developed for Omar Khadr, which takes into account legitimate security concerns. To the extent necessary, such a program could place judicially enforceable conditions on Omar Khadr’s conduct.