IRWIN COTLER Former minister of justice 2003-06 For five years, Canadian citizen Omar Khadr, a “child” under the terms of the UN Convention on the Rights of the Child, has languished without trial in Guantanamo. Indeed, the Khadr case is a standing violation of international humanitarian law in general, and of the fundamental principles of the rule of law in particular.
His will be the first trial of a child soldier in modern history, a trial prohibited under international humanitarian law. The law regards a child solider as a child victim to be rehabilitated, rather than a perpetrator to be prosecuted.
As set forth in an amicus brief before the U.S. Military Commission, Omar Khadr should be presumed to have been recruited illegally and to have served involuntarily.
Moreover, the trial of Omar Khadr constitutes a violation of the fundamental principles of the rule of law including: arbitrary and illegal detention; denial of procedural due process, as in no presumption of innocence; denial of the right to counsel; denial of the right to trial within a reasonable time before a fair and impartial tribunal; coerced interrogation, and cruel and unusual punishment in detention.
As leaders of bar associations in Canada, the UK and France have pointed out, the U.S. Military Commissions Act of 2006 wrongly subjects individuals to trial by military commission solely on the basis of their status as aliens; U.S. citizens are not subject to its provisions.
The Act criminalizes certain conduct for the first time and applies the law retroactively. It fails to meet the requirements of the Geneva Convention Relative to the Treatment of Prisoners of War.
It permits military commissions to consider coerced statements.
It denies defence counsel access to evidence, which may be essential to a proper defence, on the basis of national security.
In a shocking assault on the rule of law, U.S. authorities have stated they may continue to detain Omar Khadr even should he be acquitted under this already dubious process.
Omar Khadr is the only Canadian – indeed the only citizen of a Western state – still detained at Guantanamo. Every other Western nation – France, Australia, the U.K. and Germany – has sought and obtained the return of its citizens. I join other scholars and associations of jurists in calling for Omar Khadr to be transferred into the custody of Canadian law enforcement officials, to be afforded due process under Canadian law, with prospects for appropriate rehabilitation and integration.
I first wrote six years ago in the National Journal of Constitutional Law a critique of “the prosecution by the U.S. of the war in Afghanistan and its unprecedented initiatives, including the proposal for extraordinary military tribunals and the legal limbo of security detainees,” stating, “Canada has become implicated in this legal limbo respecting security detainees.” At the time, I discussed the case with Bill Graham, who was then minister of foreign affairs and was responsible for the file. He said on behalf of the government that “We continue to press the United States to ensure that [Khadr’s] rights will be protected.” That remained the government’s position even when I served in cabinet.
When the U.S. enacted the Military Commissions Act, under which Omar Khadr is being tried, we were no longer in government.
Today, given the violations of international humanitarian law and the rule of law since 2002, it is time the U.S. prison facility at Guantanamo Bay was closed; it is time the inhumane treatment of Guantanamo detainees end; it is time to cease the violations of the fundamental principles of the rule of law, and it is time to abide by the customary norms of international humanitarian law and stop the illegal prosecution of a child solider.
I don’t deny that detainees at Guantanamo may have committed heinous crimes, and in calling for the closure of Guantanamo and the repatriation of Omar Khadr, I don’t purport to diminish the acts of terrorism in the U.S. or elsewhere.
Admittedly, the Khadr family has emerged, as some have put it, as synonymous with terrorism. But, the test of the rule of law is not its application in the easy cases, but its retention in the unpopular ones. This is not the time to be silent, but for voices to be heard. One cannot be complicit with violations of the rule of law. Omar Khadr, a child victim, should now be afforded the justice denied him all these years, however unpopular and unpalatable his case may appear to be.
Irwin Cotler, Liberal MP for Mount Royal, has joined other scholars and human rights lawyers in two amicus briefs before U.S. tribunals on the Khadr case.