A view from the west A Canadian adolescent in Guantanamo Bay - the Omar Khadr story

Omar Khadr holds the distinction of being the youngest prisoner held at the Guantanamo Bay prison, Khadr also remains the only detainee from a Western country. Sociologist-lawyer Aurina Chatterji looks at Canada's reactions to the situation, and they are not very flattering.

In an age where thousands world-over are scrambling to get Canadian citizenship, the case of Omar Khadr brings into question the value of a Canadian passport.

On July 27, 2002, Omar Khadr, a Toronto-born Canadian citizen, was arrested in Afghanistan by the United States after a gunfight between American soldiers and Afghani militia in Ayub Kheyl. Discovered by American soldiers under rubble, the injured and blinded Khadr was arrested for allegedly throwing a grenade that killed Sgt. F.C. Christopher Speer and blinding Sgt. Layne Morris in one eye. Sporting sparse facial hair of adolescence, the 15 year old was detained in Guantanamo Bay on charges of war crimes and supporting terrorism.

Apart from holding the distinction of being the youngest prisoner held at Guantanamo, Khadr also remains the only detainee from a Western country. Several other Western countries – UK, France, Sweden, Germany, Australia, Spain, Denmark, Belgium – have successfully sought repatriation of their citizens, some of whom were detained on extremely serious terrorism-related charges. The Canadian government, however, has chosen not to act, despite lobbying from Amnesty International, UNICEF and the Canadian Bar Association. Even more shocking is their willing complicity, in the abuse and denial of fundamental legal rights to a citizen.

To begin with, Khadr, a teenager at the time of his arrest had several rights under the UN Convention on the Rights of the Child, egregiously violated. For instance, he was denied education and housed with adult detainees. At the very least,  Khadr’s treatment at the hands of US authorities amounts to cruel, inhuman and degrading treatment, and as some might argue, torture.

Khadr was denied pain medication for gunshot wounds, was spat upon, sleep-deprived, put in stress positions, threatened with rape, used as a “human mop” to clean up his own urine, and then denied a change of clothes for two days after this incident. The Supreme Court of Canada found that the conditions under which Khadr was kept were a “clear violation of fundamental human rights protected by international law.”

Let alone protect Khadr from abuse, Canada facilitated and enabled some actions of the US. Khadr was ‘prepared’ for his interviews with the Canadian Security Intelligence Services (CSIS) by being sleep-deprived and was moved to a new cell every 3 hours, both for a period of three weeks. The idea behind this (mis)treatment was simple: The more they mistreated Khadr, the more vulnerable he would be, and therefore, more willing to talk.  CSIS knowingly interviewed him under these conditions, and went as far as to share the product of these interviews with American authorities.

As Khadr’s plight started to seep into Canadian public consciousness, Khadr’s defence lawyers brought a number of various actions against the government. In 2008, it was found that the Canadian constitution applied to Khadr despite his being on foreign soil, as Canada had violated its binding human rights obligations. Pursuant to this judgment, an action was brought in 2009 asking Canada to repatriate Omar Khadr. Canada’s lower courts ordered the Canadian government to request the US Government to return him to Canada.

In January 2010, the Supreme Court released its highly anticipated judgment on Khadr’s repatriation. Tremendously critical of the Canadian government, the Supreme Court held that it “contributed to K’s ongoing detention so as to deprive him of his right to liberty and security of the person, guaranteed by Section 7 of the Charter, not in accordance with the principles of fundamental justice”. However, the Bench unanimously held that although Khadr was constitutionally entitled to a remedy, the Government must have the flexibility to decide the exact nature and scope of such remedy. The Court was concerned that it would exceed its judicial duties and infringe upon executive jurisdiction over foreign affairs if it ordered repatriation. In other words, the court held that Khadr’s rights had been violated, but was unwilling to specifically order repatriation as a remedy.

Human rights activists all over Canada were understandably disappointed with this unequivocal judicial pronouncement. While the judgment is certainly unacceptable on a moral level, however, there is no doubting its legal soundness. There is absolutely no doubt that Khadr must be repatriated to face justice in Canada, but the sanctity of the separation of powers must be respected.

Unsurprisingly, yet disappointingly, public sympathy for Khadr in Canada is not very high. He is about as popular as Ajmal Kasab is in India, with the vast majority of people firmly convinced of his guilt. Yes, Omar Khadr’s father was an associate of Osama Bin Laden. Yes, Omar himself played with the Bin Laden children.  Yes, his brother is a suspected Al-Qaeda operative. Yes, there is always a chance that Khadr did throw the grenade that killed Sgt. Speer.

However, his guilt or otherwise is irrelevant. The fact still remains that this 15-year old came of age in the filthy confines of the world’s most infamous detention centre. The years he should have spent facing the inescapable yet delicious confusion of his late teens were instead spent in hunger strikes and military tribunals.  The Supreme Court has gone as far as it possibly can in warning the executive that it is running out of time to provide Khadr with a meaningful remedy for the heinous violation of his constitutional rights. The Canadian Government must take action to ensure that Khadr faces a fair trial in Canada, taking into account that he has already spent over 7 years in detention. It is upto them to determine just how precious a Canadian citizenship is.

Aurina holds a sociology degree from the McGill University and a JD from the University of Toronto, Canada.