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Omar Khadr: Questions and Answers

    Tuesday, October 9, 2012 - 11:40

    How long was Omar Khadr in US custody?
    Omar Khadr was held in US custody for over ten years. He was detained at the age of 15 during a firefight in Afghanistan in July 2002. Although seriously injured, his interrogation started in the detention facility in Bagram. He was later transferred to Guantánamo Bay in October 2002 after he had turned 16.

    In October 2010, he was sentenced to 40 years in detention by a military commission, reduced to 8 years in a plea agreement with no credit for time served. After one further year in detention in Guantánamo, Omar Khadr because eligible for a transfer to Canadian custody in October 2011. He was transferred to Canada on September 29, 2012.

    Where is Omar Khadr now? What are his prison conditions?
    Omar Khadr is currently held in Millhaven Institution, a maximum security prison in Bath, Ontario (near Kingston). He is currently undergoing an assessment which typically takes about 6 weeks. At the end of this process he will likely be moved to another institution. During this time he is in a cell 23 hours day, however he does have greatly improved access to both his family and legal team.

    There seems to be ongoing debate over whether or not Omar Khadr was a child soldier. What is Amnesty International’s position on this?
    The applicable law here is the Optional Protocol to the UN Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. It defines a child soldier as anyone under the age of 18. In the case of non-state groups, no distinction is made between voluntary or forced recruitment.

    The Optional Protocol came into force on 12 February 2002. Canada was a champion of this work and initially recognized Omar Khadr as a child combatant before the case became heavily politicized. In a 5 September 2002 Dept of Foreign Affairs press release about the case of Omar Khadr, the Canadian government noted that “It is an unfortunate reality that juveniles are too often the victims in military actions and that many groups and countries actively recruit and use them in armed conflicts and in terrorist activities.”

    The distinction is important given that child soldiers are often forced to commit abuses. Rather than focus on punishment for any alleged crimes, however, the emphasis is on demobilization, rehabilitation and reintegration of child soldiers out of recognition of their age and the vulnerability associated with that (including indoctrination).
    Bodies such as the International Criminal Court seek to hold responsible those who have recruited and exploited child soldiers.

    Amnesty International called for Omar Khadr’s repatriation for many years. Now that he is back in Canada is the case closed?
    While the long-delayed transfer is welcome, this case is far from closed. This case has always been about the fundamental injustice of Guantánamo Bay and the decision to repeatedly interrogate and subject a child combatant to an unfair trial by military commission that failed to meet international standards for fair trials.

    The courts, UN bodies and numerous NGOs including Amnesty International have repeatedly pointed to the outstanding human rights violations yet to be remedied in Omar Khadr’s case. The allegations of torture and ill-treatment are credible and troubling, and must finally be investigated. Canadian officials were also found to have violated Omar Khadr’s Charter rights when they continued to interrogate him in Guantanamo despite the fact that his detention and treatment violated international standards. His status as a child combatant – and the obligations that follow from that – also continues to go unacknowledged.

    Discussions of remedy often zero in on matters of financial compensation and apologies. But a vital part of the picture is also the need to ensure non-repetition. For far too long, Canada has been inconsistent in its approach to Canadians detained abroad facing serious human rights violations. Omar Khadr’s case stands out as one of the most spectacular failures to stand up for a citizen. We must work towards a system where citizens receive equal protection and the government pursues opportunities for effective engagement in a timely way. A citizen should not have to go to court to force action in cases where the human rights violations are as blatant as they are in a case like Omar Khadr.

    How can you defend the rights of Omar Khadr and others alleged to have been involved in “terrorism”? Aren’t they threats to human rights?
    Action on Omar Khadr’s case is in the context of our overall work on Guantánamo, Bagram and other forms of illegal detention in the context of the so-called “war on terror”. From the outset, we were concerned that international law, and consequently some important national law including that of the US, was being set aside in the name of security and exceptionalism.

    We are part of a tradition -- started in part by Canada in 1948 -- of protecting human rights against those would make the application of those rights conditional rather than universal. We seek to protect human rights no matter who the perpetrator is and no matter who the victim is. This does mean that at times we are defending the human rights of people who are considered less than worthy in many quarters. Non-discrimination, however, is itself a fundamental principle of human rights.

    Amnesty International has consistently condemned attacks on civilians while simultaneously calling for the alleged perpetrators to be held responsible through fair trials and treated humanely in the process. What we say now about al Qaida or Taliban-related detainees resembles what we have said in past about, for example, IRA prisoners in the UK.

    Have any conditions have been placed on Omar Khadr?

    The military commission plea agreement from October 2010 placed these conditions on Omar Khadr:

     

    He must drop all current legal proceedings and may not start any new court actions in any country against the United States or any official in their personal or official capacity with regard to his “capture, detention, prosecution to include discovery practice, post conviction confinement and/or detainee combatant status.”

    He cannot in any way engage in or support hostilities (or organizations which engage in hostilities) against the United States or its coalition partners.

    He must continue to submit to interviews by US law enforcement officials, intelligence agent and prosecutors while in US custody. While legal counsel will be notified, they do not have to be present for these interviews. He must agree to cooperate and testify in any proceedings of requested by the US government.

    He will never enter the US or any territories or military installations or US airspace following his transfer to Canadian custody.

    He cannot profit from his story. Any profits or proceeds which he receives in connection with any “publication or dissemination of information relating to the illegal conduct alleged on the charge sheet” will be assigned to the Government of Canada.

    At this point it is not known if any further conditions will be placed on Omar Khadr following his return to Canada.

    What’s next for Omar Khadr?
    Omar Khadr’s case is now in the hands of the Correctional Service of Canada. He will be eligible to apply for parole by the summer of 2013.

    A long-standing civil case addressing the violations of his rights under Canadian Charter of Rights and Freedoms – most notably when Canadian officials continued to interrogate him in Guantánamo despite the fact that his detention and treatment violated international standards -- may also start to move forward in the courts.

    What’s next for Amnesty International’s campaigning on this case?
    We are calling on the Canadian government to:

    • Investigate the credible and troubling allegations of torture and ill-treatment while Omar Khadr was detained in Bagram and Guantánamo Bay.
    • Recognize Omar Khadr as a child soldier in line with the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
    • Acknowledge the grave human rights violations associated with the detention facility in Guantánamo Bay, including the fact that the military commissions fall far short of international standards for fair trials.
    • Provide a remedy as required by the 2010 Supreme Court of Canada decision, particularly with a view to ensuring non-repetition of the human rights violations experienced by Omar Khadr.
    • Ensure that the Correctional Service of Canada is able to manage Omar Khadr’s case without political interference.
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