By: BATOUL HREICHE
Last month, ex-Guantanamo prisoner and Canadian-born Omar Khadr made a decision to appeal his guilty plea and war crimes charges in a U.S. civilian federal court, an action that could either be turned down or could eventually grant him freedom.
In 2002, 15-year-old Khadr was accused of throwing a grenade that killed Sgt. 1st Class Christopher Speer during a firefight between American troops and members of al-Qaida in Afghanistan. Shot three times, he was captured and transferred to the notorious Guantanamo Bay prison camp in Cuba. After eight years in detention, Khadr pleaded guilty in 2010 in exchange for an eight-year sentence. The Canadian government agreed to repatriate him in 2011.
A number of groups such as Amnesty International, UNICEF, Canadian Bar Association and other prominent organizations have gone on record saying Khadr was a child soldier in Afghanistan. For the past few years, they have been pushing the Canadian and American governments to recognize Khadr as a child combatant, but authorities insist that he does not qualify as one.
Both governments refuse to acknowledge Khadr’s child soldier status, claiming that he was not misled when he took part in the firefight or when he threw the grenade that killed U.S. Delta Force soldier, Speer.
“I don’t think he pleaded guilty because he didn’t have a defence,” said Diana Young, a Carleton University law professor and a member of Carleton’s Institute of Criminology and Criminal Justice. “I think he pleaded guilty because it seemed the only way to get out of Guantanamo Bay and back to Canada.”
Khadr, now 26, spent his childhood in al-Qaida and his teenage and early adult years behind bars. “I miss my family and the sense of security,” Khadr said in a June 15, 2010 interview with a Pentagon prosecutor. “How can I be close to anybody? I’m trying. It just doesn’t feel that anybody is giving me his hand.”
While at Guantanamo, Khadr alleged that he was abused by authorities, threatened with rape and was used as a “human mop.”
“When I was able to walk again, interrogators made me pick up trash, then emptied the trash bag and made me pick it up again,” Khadr said in an affidavit released in March 2008. “Many times, during the interrogations, I was not allowed to use the bathroom, and was forced to urinate on myself. They told me that I deserved it,” he said.
From the moment he was captured, Khadr’s case struck human rights and child soldier organizations. He was recruited at the age of 13 and pressed into service by his father who was an al-Qaida lieutenant. Senator Roméo Dallaire once described Khadr as “the only child soldier prosecuted for war crimes” and said his case “taints this government, this country and all its citizens.”
Normally, child soldiers are to be withdrawn from the armed force into a protective environment where governmental or nongovernmental organizations help demobilize and reintegrate them socially. However, Khadr was never fully recognized as a child soldier and thus did not receive the assistance that other underage combatants receive.
UNICEF, for example, provides that states must demobilize child soldiers and deliver services for them to prevent their recruitment. This includes providing protection to every former child soldier through education, vocational training, peer-to-peer support, community-based support and psychosocial counselling. UNICEF also stipulates that protecting them “means promoting family reunification as a key factor for social reintegration and ensuring follow-up care for demobilized children, focusing on long-term social reintegration.”
Soha Kneen, a member of Ottawa Peace Assembly and a local political activist, faults the Canadian government for not identifying Khadr as a child soldier and for delaying his repatriation.
“The reaction or lack of subsequent action by Canada’s government to support and have Omar Khadr released from Guantanamo was shameful,” she says. “A child soldier was mistreated on all fronts and Canada was and continues to be complicit in his abuse.”
In an effort to increase the protection of children in armed conflicts, the UN approved the Optional Protocol to the Prevention against Torture in 2002. Canada is a signatory to this, meaning it is required to reintegrate former child soldiers.
The Optional Protocol obliges states to take all measures possible to prevent the recruitment of children below the age of 18 into armed forces, and to adopt “legal measures necessary to prohibit and criminalize such practices.” It also requires every signatory state to provide child soldiers with “all appropriate assistance for their physical and psychological recovery and their social reintegration.”
Hilary Homes, a human rights campaigner with Amnesty International, says this protocol should apply in Khadr’s case. “He clearly falls under the definition in the applicable international law,” she says. “Many child soldiers are in turn pushed into being involved in violence and atrocities. It is the people who recruited him who should be considered war criminals.”
While some members of the previous Liberal governments of Jean Chretien and Paul Martin did recognize Khadr as a child soldier, the Harper government doesnot. Homes believes Canadian authorities changed their stance on Khadr after a new political climate emerged following the Sept. 11, 2001 attacks, where “people were prone to overlook fine – and not so fine – distinctions between terrorism and other forms of political activities and armed resistance,” she said.
Following Khadr’s repatriation in September 2012, Minister of Public Safety, Vic Toews said he does not believe Khadr was a child soldier but rather “a convicted murderer” and “a terrorist.”
“It does seem to me that many people are now more reluctant to condemn him,” says Young, adding that Toews’ response was more ideological than based on a serious assessment of the facts and international law. “Many people think that Khadr’s situation differs from child soldiers in places like Sierra Leone only because he is thought to have killed an American.”
After releasing the news of Khadr’s appeal decision, Dennis Edney, one of Khadr’s lawyers, told CBC News that he believes Khadr’s charges will be upended because they “are not recognized international law–of–war offences.”
“We expect the military tribunal convictions will be overturned considering the present state of the law, ultimately putting to rest the Harper government’s characterization of Omar Khadr as a war criminal and a terrorist,” Edney said.
In May 2008, the Supreme Court of Canada ruled that Canada had violated Omar Khadr’s Charter rights when he was illegally interrogated in 2003, without a lawyer or any other protections due to a minor in detention.
Young says that no matter how much investigation is put into Khadr’s detainment at Guantanamo, no one will ever know exactly how grave the situation was for him.
“The experience of being imprisoned for an indefinite period, isolated from family, friends, and even legal counsel, having no right of appeal or to answer the charges against you, and being subject to intimidation and aggressive questioning would, by itself, be extremely traumatic, especially for a young person,” she said.
Under Canadian law and the Optional Protocol, Khadr was supposed to be eligible for parole in 2013, but a Correctional Service of Canada report states that Khadr should remain at Millhaven Penitentiary located in Bath, Ont., also known as “Guantanamo North,” with a very low possibility of rehabilitation or parole for at least two years. Although Khadr was moved to an Edmonton jail on Wednesday after an inmate threatened his life, according to CBC News, it is not yet clear if the move will affect his case.
But lawyer Sam Morrison, selected by the U.S. Office of the Chief Defense Counsel to lead a team of attorneys to represent Khadr, stated that if Khadr’s appeal is successful, he will be released from prison immediately.
“If the U.S. courts were to throw out Khadr’s convictions, there would no longer be any legal basis to hold him in prison,” Morrison told CTV News.
Khadr’s supporters are optimistic that his convictions will be overturned by the U.S. court, as it previously overturned the terrorism convictions of two of Osama bin Laden’s aides who were also imprisoned at Guantanamo.
In his current state as a Canadian federal prisoner, Khadr cannot be subjectively denied access to the same programming every other inmate has access to. But Homes believes that there is no clear reintegration “recipe” for Khadr, since he spent a decade in prison and was out of Canada for a long period of time.
“Canada used to be considered a champion and leader in human rights, particularly in the area of children and armed conflict,” said Homes. “This is a complete failure to protect the human rights of a citizen facing serious human rights violations.”