Omar Khadr: young Canadian faces unprecedented trial
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Posted: 18 January 2006
Updated: 14 June 2007
A photo taken of Omar Khadr at age fifteen.
©Private
Omar Khadr may be the first person put on trial anywhere in the world for “war crimes” allegedly committed when he was a juvenile.
Nearly five years after being taken into custody by U.S. forces in Afghanistan, Canadian citizen Omar Khadr was charged for the second time on April 24, 2007 with five counts including conspiracy, murder and supplying material support to terrorism. All charges were dismissed by the military commission judge at a subsequent arraignment hearing on June 4. While the U.S. government appeals the ruling, Omar Khadr remains in detention at Guantánamo Bay. Amnesty International is concerned that Omar Khadr – now 20 years of age – was granted none of the special protections for juveniles under international law and that his fundamental human rights continue to be denied.
Omar Khadr was 15 years old when he was wounded during a battle with U.S. forces near Khost, Afghanistan and taken into U.S. custody on July 27, 2002. The U.S. military says that Omar Khadr killed a U.S. soldier, Sergeant Christopher J. Speer, during the operation. Despite serious injuries, Omar Khadr’s interrogation began immediately and it is alleged that he was denied adequate medical care and forced into stress positions.
In October 2002, he was transferred from Bagram Airbase in Afghanistan to the detention facilities at Guantánamo Bay. There he says he has been beaten, “short shackled” (wrists and ankles chained together to a fixed point on the ground), exposed to extreme temperatures, held in isolation for prolonged periods and threatened with rape. An expert on the mental health of juveniles in correctional facilities who reviewed a series of psychological tests administered by his U.S. lawyers in 2004 concluded that Omar Khadr’s symptoms were “consistent with those exhibited by victims of torture” and he had a mental disorder “including but not limited to post-traumatic stress disorder.” Along with upwards of 200 other detainees, Omar Khadr has participated in periodic hunger strikes protesting the conditions and treatment at the Guantánamo facility.
While Canadian security and intelligence officials have had access to Omar Khadr and have taken part in his interrogation, he has not been permitted consular visits. In August 2005, the Federal Court of Canada issued an injunction barring Canadian officials from conducting any further interviews or questioning him on a variety of the grounds including that his rights were not being adequately protected.
Omar Khadr was first charged in November 2005 under an earlier version of the military commissions. Although the US Supreme Court struck down the first military commissions as unconstitutional, they were restored in late 2006 with the new Military Commissions Act. Few substantial changes were made and they continue to fall far short of international fair trial standards. Omar Khadr is the second Guantánamo detainee to be brought before the new military commissions. In this case, Amnesty International is particularly concerned that evidence may be used which was obtained during improper treatment while Omar Khadr was a juvenile with no access to a parent, guardian or legal representative and in conditions possibly amounting to torture.
TAKE ACTION:
Please write polite letters to U.S. and Canadian authorities expressing concern about the military commissions and the treatment of Omar Khadr.
1. Write to the U.S. Attorney General Alberto Gonzales:
- Stating that the military commission procedures fall far short of international standards for fair trials and violate several treaties to which the U.S. is a party. Call for the military commissions to be abandoned.
- Calling for Omar Khadr to be returned to Canada unless US authorities bring him to trial in a civilian court, taking full account of his age at the time of any alleged offences.
- Calling for a full and impartial investigation into the allegations of torture and ill-treatment of Omar Khadr while in US custody in Afghanistan and Guantánamo Bay, and for all those found responsible to be brought to justice.
Address for letters:
Alberto GonzalesAttorney General
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001, USA
Fax: + 1 202 307 6777
Email: AskDOJ@usdoj.gov
2. Write to the Prime Minister of Canada:
- Calling for Omar Khadr to be returned to Canada unless US authorities bring him to trial in a civilian court, taking full account of his age at the time of any alleged offiences.
- Seeking assurances that, if returned to Canada, Omar Khadr will be released or charged with a recognizably criminal offence and given a fair trial, and that no evidence obtained under torture will be used in any proceedings.
- Urging Canadian officials to continue to press for consular visits with Omar Khadr.
- Calling for an independent investigation into the involvement of Canadian officials in Omar Khadr’s detention, interrogation and alleged torture.
- Asking the Canadian government to support Amnesty International’s call for the abandonment of military commissions and for the detention facility at Guantánamo Bay to be closed.
Address for letters:
Prime Minister Stephen HarperOffice of the Prime Minister
80 Wellington Street
Ottawa
K1A 0A2
Fax: + 1 613 941 6900
Email: pm@pm.gc.ca
Your letters count: Since Amnesty International started highlighting specific cases of Guantánamo detainees, at least 15 of them have been released from U.S. detention. Of those detainees transferred to their home countries, the majority have been released.
To receive notification of future actions on human rights and the "War on Terror", email us at waronterror@amnesty.ca
FURTHER BACKGROUND:
Although 15 years old at the time of his capture, Omar Khadr was not transferred to Guantánamo Bay until shortly after his 16th birthday. The U.S. military decided to classify all detainees over the age of 16 at the time of their transfer (and regardless of age at time of capture) as adults despite international law which sets of the age of majority at 18.
Other young detainees aged 13-15 (some possibly younger) at the time of their transfer were housed in facilities separate from adults at Guantánamo Bay and, according the U.S.-based Centre for Constitutional Rights, treated more in line with international standards for the detention of juveniles including education and more regular exercise. All of these young detainees were released by January 2004.
By contrast, Omar Khadr and an unknown number of other 16 and 17 year olds were kept in the adult population and subjected to the same conditions. Omar Khadr did not have access to legal counsel until July 2004. Due to restrictions imposed by the military, he met with his U.S. lawyers only five times prior to the start of the military commission in his case.
The U.S. government alleges that Omar Khadr is an “al-Qa’ida fighter” and has classified him as an “enemy combatant”. Although there may be debate as to whether he was technically a “child soldier”, there is no question that he was a child caught up in, and affected by, armed conflict. Notably, the Rome Statute of the International Criminal Court prohibits trials of juvenile offenders. Other contexts which have had to deal with child combatants – regardless of their classification – have focused on demobilization, rehabilitation and reintegration.
One of Omar Khadr’s older brothers, Abdulrahman, was also detained in Guantánamo Bay. He was released in 2003 and eventually returned to Canada. The eldest brother, Abdullah, was detained in Pakistan for over a year and arrested shortly after his return to Canada in late 2005. He faces possible extradition to the U.S. on terrorism-related charges.
Their father, alleged al-Qa’ida financier Ahmed Said Khadr, was killed by Pakistani troops in 2003. The youngest son, Karim, was injured during that incident and has since returned to Canada along with other family members.
The Military Commissions:
The military commissions were initially established under the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, signed by President Bush on November 13, 2001. They work according to the Military Commission Orders and Military Commission Instructions, all drafted by the Executive branch. After the first system was struck down by the US Supreme Court as unconstitutional, the military commissions were substantially restored in late 2006 with the new Military Commissions Act.
Amnesty International unreservedly opposes trials by military commission at Guantánamo, as they violate international fair trials standards:
- The commissions lack independence from the executive.
- The defendant can face secret evidence which he will be unable to rebut.
- The defendant can be excluded from certain parts of the proceedings.
- The commissions can admit as evidence statements obtained through torture or other ill-treatment.
- The right to appeal to an independent and impartial tribunal is severely curtailed.
- The commissions discriminate against non-U.S. nationals, as only foreign nationals are eligible for such trials.
- The right to counsel of choice, which includes the right to represent oneself, and the right to an effective defence are severely restricted. The procedures before the commissions requires that a detainee has a military defense counsel assigned to their case.
Although the military commissions have the power to hand down death sentences, the U.S. Department of Defense announced in November 2005 that they would not seek the death penalty in the case of Omar Khadr. This was reaffirmed when new charges were filed April 2007.
The Canadian government has yet to publicly express concern about the shortcomings of the military commissions. By contrast, the British government took a strong stand against the trial of their nationals by the military commissions. All U.K. nationals were subsequently released from Guantánamo Bay.