Omar Khadr is to face trial before the US Military Commissions presiding over cases of the detainees held at Guantanamo Bay. The CCLA criticizes the Military Commissions as being inherently flawed and incapable of providing justice to Mr. Khadr. The Military Commissions lack fundamental procedural safeguards of due process. These procedural safeguards are guaranteed under international law, and the Canadian and US constitutions. Furthermore, Mr. Khadr was a minor at the time he entered US custody, and as a minor he is entitled under international law to additional special safeguards to protect children in legal proceedings. The Military Commissions have neither the special safeguards for children, nor do they have the minimum procedural legal safeguards necessary to legitimately dispense justice.
US Attorney General Eric Holder announced in a press conference on November 13th, 2009, that Omar Khadr will face trial by Military Commission. This was the same day that the CCLA intervened in an action before the Supreme Court of Canada asking the Court to uphold a Federal Court order that the Canadian government seek the repatriation of Mr. Khadr, a Canadian Citizen, to Canada.
The CCLA is very concerned that Mr. Khadr, who was only 15 years old — and therefore a minor when he was picked up by US forces in Afghanistan — will be tried before the Military Commissions. Although the Obama Administration has reformed the Military Commissions, there remain serious concerns about their ability to provide justice. The CCLA believes these Military Commissions remain flawed and do not provide international standards of justice particularly with respect to due process and habeas corpus, admissible evidence, fairness, and lack of discrimination. The Military Commissions also permit the trial of charges such as providing “material support for terrorism”, which is not considered a war crime in international law. Furthermore, the Military Commissions do not incorporate any of the safeguards found in the Convention on the Rights of the Child and other international standards of juvenile justice, that promote the ultimate goals of “rehabilitation” and “reintegration”. Nor do the Military Commissions uphold the minimal international legal standards for children such as ensuring “prompt legal assistance”, “education”, “recreation”, “family contact”, and employing “incarceration as a measure of last resort” and for the shortest time possible.
It is the position of the CCLA that trial under a Military Commission would be a further failure of justice for Mr. Khadr, who has already languished in extended unlawful detention at Guantanamo Bay for seven years in violation of his due process rights, and who has been kept with adult prisoners in contravention of the Convention on the Rights of the Child which requires the segregation of children from adult prisoners.
Further, the CCLA does not believe that trial by a US Federal Court for Mr. Khadr is an appropriate solution, as it would rely upon – and not remedy — the injustices he has already suffered at Guantanamo Bay, including extended unlawful detention, unlawful interrogation and possible admissibility of evidence obtained therein, violation of his due process rights, and violation of his rights as a child in international law.
At this juncture the CCLA believes that the only legitimate option is to repatriate Mr. Khadr to Canada, where his charges can be properly assessed –and any case against him can be tried with all legal rights, guaranteed by the Canadian Constitution and standards of international law, provided to him.
