Finally, the Court of Appeal noted that upon Omar Khadr’s return to Canada, it would be for the Canadian Attorney General to decide whether to proceed with a criminal case against Omar Khadr. The two judges added that “While Canada may have preferred to stand by and let the proceedings against Mr Khadr in the United States run their course, the violation of his Charter rights by Canadian officials has removed that option”.
Amnesty International deeply regrets that the Canadian government has moved to appeal the Court of Appeal judgment to the Canadian Supreme Court. A statement issued by Foreign Affairs Minister Lawrence Cannon and provided to the media on 25 August maintains that “Our position regarding Mr Khadr remains unchanged”. That position is to allow the US trial proceedings pending against Omar Khadr to run their course. Omar Khadr was first charged by the Bush administration for trial by military commission in 2005 under a commission system ruled unlawful by the US Supreme Court in 2006.
Omar Khadr continues to face the possibility of a US military commission trial under the unfair trial procedures of the Military Commissions Act of 2006. This is despite the fact that, in June 2008, the UN Committee on the Rights of the Child, examining the USA’s obligations as a state party to the Optional Protocol on the Involvement of Children in Armed Conflict specifically called on the USA not to prosecute any children detained in the context of armed conflict before any military tribunal.
On 25 August 2009, Radhika Coomaraswamy, the Special Representative of the UN Secretary-General for Children and Armed Conflict expressed her hope that Omar Khadr would be released from Guantánamo “as soon as possible”. Her statement welcomed the release of Mohammed Jawad, who like Omar Khadr, had been taken into US custody in 2002 in Afghanistan when he was still a child. He, like Omar Khadr, had been subjected to detention conditions and interrogation techniques that violated the prohibition of torture and other ill-treatment, including the “frequent flyer program”. He, like Omar Khadr, was facing unfair trial by military commission.
In her statement, Radhika Coomaraswamy said that the US government’s release of Mohammed Jawad “abides by the spirit” of the Optional Protocol and other international standards and practice, adding that “trying young people for war crimes with regards to alleged acts committed when they were minors would have created a dangerous international precedent”.
As in Omar Khadr’s case, Mohammed Jawad’s own government had been implicated in his ill-treatment. Indeed, a US military judge found that Mohammed Jawad had been tortured in Afghan government custody in the hours before being handed over to US custody. In Mohammed Jawad’s case, the Afghan authorities had recently advocated for Mohammed Jawad’s release from Guantánamo. In a declaration filed in US federal court in late July 2009, Mohammed Jawad’s US military lawyer, a Major in the US Marine Corps, said that following his recent trip to Afghanistan on behalf of his client, Afghan government officials had assured him that “the Afghan government is ready, willing, and able to pick up Jawad at Guantánamo” and that “whatever, whenever, and wherever the Afghan government needs to be to get Mr Jawad it would do so, would bear the full cost, and that all the US needs to do is release him from his illegal detention”.
Amnesty International urges the government of Canada to accept the orders handed down by the Canadian Federal Court and Federal Court of Appeal that it should seek Omar Khadr’s repatriation, and not seek leave to appeal these decisions to the Supreme Court of Canada. This would be consistent with Canada’s international human rights obligations, including the requirement upon it to ensure effective remedy for human rights violations against Omar Khadr in which it became involved.