Not long before the USA came before the Committee on the Rights of the Child, it appeared before the UN Committee on the Elimination of Racial Discrimination (CERD). Among other things, the CERD reminded the USA of its obligation “to guarantee equality between citizens and non-citizens in the enjoyment of the rights set forth in article 5 of the Convention, including the right to equal treatment before the tribunals and all other organs administering justice”, and “to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin.”
US nationals cannot be tried by the military commissions, only foreign nationals. Applying inferior trial protections on the basis of nationality violates the right to equality before the law.
In 2006, the USA appeared before the UN Human Rights Committee, the expert body established under the International Covenant on Civil and Political Rights (ICCPR) to oversee implementation of that treaty, which the USA ratified in 1992. Among the Human Rights Committee’s recommendations was for the USA to ensure, in accordance with article 9(4) of the ICPPR, that anyone held in Guantánamo be able to take “proceedings before a court to decide, without delay, on the lawfulness of their detention or order their release”.
Four years later, and nearly eight years after he was first detained, Omar Khadr has still not had this right realized. A habeas corpus petition challenging the lawfulness of his detention was first filed in US federal court on his behalf in July 2004. The merits of that petition have never been ruled on by any judge. On 16 April 2010, Omar Khadr’s lawyers filed a new habeas corpus petition seeking to have the military commission charges against him dismissed and an order by the federal judge for his release.
Omar Khadr’s trial by military commission is currently scheduled to begin on 12 July 2010. The main issue at the pre-trial proceedings due to begin in Guantánamo on 27 April will be the question of whether statements given by Omar Khadr in US military custody can be relied upon by the prosecution. The defence wants the statements excluded as evidence by the military judge on the basis that they were obtained under interrogation techniques and conditions of detention that violated the prohibition of torture and other ill-treatment. A fundamental minimum fair trial standard is the right not to be compelled to testify against oneself or to confess guilt.2Another is that no statement may be admitted as evidence in any proceedings where there is knowledge or belief that the statement has been obtained as a result of torture or other cruel, inhuman or degrading treatment or punishment.3
Four years ago, the USA appeared in front of the UN Committee Against Torture for review of its compliance with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee noted with concern the allegations that detainees in US custody had been subjected to torture or other ill-treatment and called for full and impartial investigations. In its 2008 conclusions on the USA, the Committee on the Rights of the Child also called on the USA to ensure impartial investigations into all reports of cruel, inhuman or degrading treatment of children in US custody in the context of armed conflict.
As Amnesty International has previously reported, Omar Khadr has alleged that he was subjected to torture and other ill-treatment in the US air base at Bagram in Afghanistan where he was first held, and also at the Guantánamo base where he has been held ever since. Among other things, he was subjected in Guantánamo to the sleep disruption/deprivation technique known as the “frequent flyer program”.