Omar Khadr: The Injustice Continues

August 9, 2010

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commission trial against detainee Omar Khadr. This is his first post in series from the field.


Alex Neve stands in front of the building housing the courtroom in Guantánamo Bay, Cuba.


It  seems difficult to believe that after being held here at Guantánamo Bay for close to eight years and having been put through an astonishing array of legal twists and turns – including charges being thrown out at one point and then reinstated – Omar Khadr is about to face trial by military commission, possibly this week if pre-trial proceedings are completed.

I’m here to observe these proceedings on behalf of Amnesty International. And quite honestly at this stage I find it very difficult to predict just what I will observe.  All that seems certain is that it will be another phase in the systematic injustice to which Omar Khadr has been subjected.

First, today there will be more legal arguments as to whether all or at least some of the statements Omar Khadr made in the course of over 100 interrogation sessions between 2002 and 2004 – first at Bagram Air Base in Afghanistan and then here at Guantánamo – will be excluded from the trial.  He has laid out detailed and credible allegations as to the many forms of physical and psychological torture and other abuse he says he was subject to at that time, including during many of the interrogation sessions.  The prosecution has maintained in its legal filings that “the accused was not tortured; nor subjected to cruel, inhuman, or degrading treatment”. Yet at a hearing in May, one of Omar Khadr’s interrogators at Bagram admitted to using a rape scenario as a fear tactic against the teenager. And it is clear that at Guantánamo, Omar Khadr was one of the detainees subjected to the sleep disruption/deprivation technique known as the “frequent flyer” program.

Then there is the question of his legal representation.  Omar Khadr dismissed his civilian US lawyers last month.  He has not been allowed to dismiss his US military lawyer, but it is not yet clear whether he will try to represent himself or allow his military lawyer to.  He does still have his Canadian lawyers, Dennis Edney and Nate Whitling, but as they are not US citizens they are not permitted to take part in the legal proceedings here, just observe and provide assistance.

It is also not clear whether Omar Khadr will even attend the proceedings.  Last month he told the military judge that he would boycott the trial because of “the unfairness and unjustice [sic] of it”.  Today, the day before pre-trial hearings resume, his lawyers are indicating they do not know whether he will appear or not.  If he does stay away there is every indication that proceedings will simply go on without him.

One thing that still does seem certain is that there will be little if any regard for the fact that Omar Khadr was 15 years of age at the time of his alleged offense.  From the outset the USA should have taken full account of his young age, and he should have been given special protections under international human rights law. The fact that he was taken into custody following a firefight in Afghanistan also placed him within the scope of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, ratified by the USA in 2002. The USA’s treatment of Omar Khadr and its looming trial of him by military commission flies in the face not only of its international obligations in relation to fair trials and juvenile justice, but also of its stated objectives and policies aimed at preventing the recruitment and use of children in armed conflict. The Committee on the Rights of the Child, the expert body which oversees implementation of the Optional Protocol, has called on the USA not to try any such child before a military tribunal.

Also apparently certain is that the Canadian government will maintain its steadfast indifference to the many human rights violations in this case, including violations for which Canadian officials who came here several years ago to interrogate Omar Khadr  were themselves involved.  There have been numerous Federal Court and Federal Court of Appeal rulings chastising the Canadian government and calling for the government to remedy the violations, including by seeking his return to Canada.

And the Supreme Court of Canada – not once but twice – has found that the Canadian government has violated and continues to violate Omar Khadr’s rights.  Earlier this year the Court concluded that it was not its role to specify how those violations should be remedied but that they certainly must be remedied.  The government’s less than half-hearted response to that ruling – a request to US officials not to make use of information they had received from Canada – was not only ineffective it was rejected by the US several months ago.  So here we sit, proceedings about to get underway in this US military base with the Canadian government failing to provide any meaningful aid to its national who has been trapped in a circle of injustice since he was 15 years of age.

Today it resumes in courtroom #1 at Guantánamo Bay.

Join Amnesty International Tuesday, August 10th for a Tweet Chat to discuss Khadr’s case and that of other detainees at Guantanamo.  Submit your questions any time between now and August 10th on Twitter by using hashtag #AskAI.