Clearly, the USA bears primary responsibility for the human rights violations that have been committed against Omar Khadr in its custody, and the USA has a legal obligation to ensure he has access to effective remedy for these violations. Canada, however, has obligations too, as the Canadian courts have recognized. Regrettably, the Canadian executive has yet even to acknowledge, let alone live up to, their responsibilities.
Prior to a visit to Guantánamo in March 2004 by Canadian officials, whose purpose was law enforcement and intelligence gathering, 17-year-old Omar Khadr was subjected to the sleep disruption and deprivation technique known as the “frequent flyer program” for three weeks to “make him more amenable and willing to talk”. According to a Canadian government document, marked secret and dated 20 April 2004 but not made public until July 2008, Omar Khadr was “not permitted more than three hours in any one location. At three hours intervals he is moved to another cell block, thus denying him uninterrupted sleep”. The document added that Khadr “will soon be placed in isolation for up to three weeks and then he will be interviewed again”.
On 23 April 2009, a Canadian federal judge found that the “special circumstances” in this case include “Mr Khadr’s youth and the direct involvement of Canadian authorities in his mistreatment at Guantánamo Bay”. Justice James O’Reilly concluded that “Canadian officials were knowingly implicated in the imposition of sleep deprivation techniques on Mr Khadr as a means of making him more willing to provide intelligence. Mr Khadr was then a 17-year-old minor, who was being detained without legal representation, with no access to his family, and with no Canadian consular assistance”.
Omar Khadr’s detention and treatment flew in the face of numerous international instruments, Justice O’Reilly found, including the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the UN Convention on the Rights of the Child (CRC), and the Optional Protocol on the Involvement of Children in Armed Conflict (Optional Protocol). The “subjection of Mr Khadr to sleep deprivation techniques offended the [UN]CAT”, Justice O’Reilly noted, and in violation of article 15 of that treaty, “Canada turned over the fruits of its interrogation of Mr Khadr to US authorities for use against him, knowing that sleep deprivation techniques had been imposed on him”. Justice O’Reilly also outlined Canada’s obligations under the CRC which he said:
“imposes on Canada some specific duties in respect of Mr Khadr. Canada was required to take steps to protect Mr Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.
Canada had a duty to protect Mr Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate time. In Mr Khadr’s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr Khadr’s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family.
Canada has a duty to take all appropriate measures to promote Mr Khadr’s physical, psychological and social recovery”.
Under the Optional Protocol to the CRC, Justice O’Reilly said that,