Omar Khadr and A Canada That Values Children’s Rights

We are reblogging a beautifully written post by our friend, singer-songwriter Justine Vandergrift. We recommend listening to the touching song “Bring Me Home” she wrote based on the time that Omar was unlawfully held in Guantanamo, and that is part of her first album.


Omar Khadr and A Canada That Values Children’s Rights

By Justine Vandergrift.

Over the past two weeks I’ve been getting several Google Alerts​ in my inbox with updates​ about my friend Omar Khadr. I’ve been following his case since I was studying at The King’s University in Edmonton in 2008. It all started when ​Dennis Edney, Omar’s pro-bono lawyer, spoke at the University’s​ semi-annual interdisciplinary conference on topic of human dignity. Edney​ outlined the history of the Omar Khadr case (then) and all the ways that the Canadian government had been complicit in this child soldiers’ abuse in Guantanamo Bay. After the​ conference I became very engaged in the case. I was deeply disturbed by the story.

For a lot of people this story is new because it’s bigger in the media now than it has ever been. I’ve been reading, writing and singing about it since 2008 when it should have been brought to Canada’s attention as a major human rights issue. I wrote “Bring Me Home” produced by Stew Kirkwood in Edmonton and released on yes alright ok my first album in 2011. I’m so glad Omar is home and free and has been given this long overdue apology in the form of 10.5 million from the Canadian government.

Omar Khadr was accused of having thrown the grenade that killed American Sergeant Christopher Speer in 2002 when Omar was 15. He was incarcerated at Guantanamo Bay for ten years. The Governments interrogation of Omar at Guantanamo “offend[ed] the most basic Canadian standards [of] the treatment of detained youth suspects,” according to a 2010 ruling of the Supreme Court of Canada. He eventually pleaded “guilty” to the “crimes” of which he was accused in exchange for an 8-year sentence and a transfer to a Canadian prison in Edmonton. A Canadian child who had been caught in war, captured, tortured and imprisoned in an illegal prison for 8 years coerced to take a guilty plea in order to have any kind of future in his country.

Omar is a Canadian citizen who is my age and our shared government was completely complicit of his torture and confinement in Gitmo. The Canadian government not only ignored him when all other Western countries had repatriated their citizens, Omar​ was also denied the protocols used for children in combat. This is ironic given that Canada played a large roll in writing those protocols. Instead, the Canadian government sent representatives to Guantanamo Bay to try and trick Omar into a confession.  With the help of his American captors, the Canadian interrogators tried to improve their chances of manipulating Omar by depriving him of sleep for three full weeks. According to one soldier, this sleep deprivation was usually enough to make grown men fall apart.

In 2008 I wrote several letters to politicians with the reasons why Omar should be repatriated and received empty responses back saying there was a “due process.”  So I wrote to Stephen Harper asking him to meet me for coffee when he was in Edmonton to discuss the Khadr case. I wasn’t surprised that he declined.

As I got to know Dennis Edney and others who were following the case, I was able to exchange letters with Omar while he was in Gitmo. From the letters, I got to know Omar as a gentle, kind, young man who loved to learn and grow and just wanted to be back in school in Canada. When Omar was finally brought to Canada after taking the guilty plea deal, I was able to visit him in the prison just North of Edmonton. I was so excited to finally ​meet him in person albeit​ through glass over the jail phone. We​ had a two-hour conversation that was light, serious and ​thought-provoking all at the same time. My memory of him being escorted away after that conversation is vivid and I cried about it on the drive home. It felt so unfair to me that eight years after the incident in (young man) Afghanistan, he was still​ literally ​trapped in this disgusting political game. And then the awful things people would say about a perfect stranger online, my friend who I admire, seemed​ unbearable.

​Dennis always said that Omar had nothing negative to say about anyone ​and as​ I got to know him​ I found that to be true. Considering all the terrible things done to him I was and still am fascinated and perplexed by Omar’s kindness and strength.

So when I woke at 1am on July 4 to this headline “Ottawa to offer Omar Khadr apology, $10.5-million in compensation” I was ​both​ surprised and ecstatic. I didn’t even think about the $10.5 million​, I just thought it was finally a step in the right direction by the Canadian go​vernment. Since then I​’ve been​ reluctantly reading the politically charged pushback opinions regarding ​the payout and apology. I can’t help but feel both discouraged and disgusted by the lack of compassion and understanding​ from fellow Canadians. There is an undeniable greed inherent in those opposed to the payout. My thoughts are:

That $10.5 million is just a number symbolic of a long overdue public apology.

  • Would people say the same awful things about Omar receiving money and an apology if they had the privilege to get to know him like I have?
  • And do they realize all the unpaid work that was done by fellow Canadians trying to hold our government accountable to the charter of rights and freedoms so that the same thing wouldn’t happen to one of their loved ones?
  • Contrary to the evidence of capitalism, one person’s financial gain does not always mean another​s’ loss. In fact, I think that well placed money can reverse the destructive cycles we see everywhere.
  • It’s a long overdue apology and clearly, based on the pushback, money talks.

​I recorded and released a song called “Bring Me Home” back in 2011 while Omar was still unjustly imprisoned. I wrote it in 2008, almost 10 years ago now, while thinking about his story. There will continue to be Canadians caught in unfortunate circumstances abroad and I want to continue believing I live and give to a country who stands behind the Charter of Rights and Freedoms and protects and values its citizens, especially its children, regardless of race or religion and brings them home. ​

https://justinevandergrift.bandcamp.com/track/bring-me-home 

I believe the ​recent statement by Lt. Gen Roméo Dallaire and Dr. Shelly Whitman on Omar Khadr describes the situation best:​

​”​An apology and compensation is just the first step in a long healing process that has only begun for this young man. An apology does not absolve Canada for its many years of inaction, but does give it an opportunity to finally lead once again on issues of children. When Khadr was finally released on bail on May 7th of 2015 he stated, “there is nothing I can do about the past, but there is something I can do about the future”.

​Canada can and should find resonance and continued action in these words.

We applaud the action of the Canadian government in issuing this apology as a critical step to demonstrate a children’s rights upfront approach. It is time for us to break the cycle of violence that so many children are vulnerable to around the world.

We have finally seen the light.”

 


 

Blog Justine Vandergrift: https://www.justinevandergrift.com/home/blog/omar-khadr-and-a-canada-that-values-children-s-rights

Sam Morison appeals Omar Khadr’s Guantanamo military ‘conviction’

US Pentagon appointed lawyer, Sam Morison, explains in the lecture “Omar Khadr: the Man – the Law” that – within fact and law – Omar Khadr was illegally imprisoned for the five non existing war crimes.

Morison leads the appeal against Omar’s Guantanamo military conviction.

video by Doug Brinkman

Full transcript Morison Lecture “Omar Khadr: the Man – the Law”
Date: November 12, 2013
Location: King’s College, Edmonton, Alberta

Attorney Samuel Morison from the US Department of Defense has practiced law for more than 20 years and is a nationally recognized expert on federal executive clemency and the restoration of civil rights. He is Omar’s U.S. Pentagon appointed lawyer (Department of Defense) and explains that – within fact and law – Omar Khadr was illegally imprisoned for the five non existing war crimes. Morison leads the appeal against Omar’s Guantanamo military conviction. The facts below are summarized from his lecture, “Omar Khadr: The Man – the Law”. He speaks about Omar Khadr’s appeal for the US federal court.

Morris Davis once said, “The running joke was, in order to win at Gitmo, you have to lose. You know, you have to go to court and lose and be convicted as a war criminal, and you might get to go home.”

Fresh perspective on this case from a Canadian perspective:

Omar Khadr is a Canadian but he has never been judged with the standards that would apply to a Canadian court. If this case was tried here, was there any chance he would have been convicted?

CITIZENSHIP MATTERS: it does not just give you a set of rights and duties & privileges, but it impart defines who you are. the difference between US and THEN.

One of the central defining features of GTMO BAY, you should know, is that it is reserved only for non-US citizens. I as an American CANNOT be tried in a military commission. If that is not an inappropriate forum for the citizens of the US, then why should be an appropriate forum for citizens of Canada?

PP: Omar Khadr was neither charged with nor pled guilty to any conduct for which he could be tried in a military commission.

To the contrary, he was himself the victim of a war crime.

That is to say, even if you were to take at face value every factual allegation that the US govt said — which for the record we don’t accept — he still did not commit a crime for which he could be tried by a military commission. That’s not just my contention; as we will see, the US govt has conceded this point .. I think it would be surprising after all these yrs and all the heartache we have seen, how weak the govt’s case actually is, which is why they didn’t want us to file this appeal in first place.

PP: “[O]ur legal system does not convict people of being bad. If they are to be convicted, it is for specific crimes, and the government here undertook the burden of proving that [the accused] had committed each element of the specific crime set forth in [the statute]. It failed to do that.”

United States v. Castro, 704 F.3d 125, 140 (3d Cir. 2013)

So you heard a lot about what OMAR KHADR may or may not have done but it does not matter if it was not a criminal offence; that is how any civilized criminal justice system works.

So the first thing I want to talk about briefly is just the facts, some of which is obvious and familiar to you, rather.

Omar Khadr didn’t end up in Afghanistan on the strength of his own convictions. He was brought there as a child . He was brought there by his parents. One of the more amusing facts in the conspiracy charge against Omar is that he’s alleged from 1996 to 2001 to travel around Afghanistan and meeting various bad people. What that conspicuously omits is that he was 9 years old when that started. And I think the reason that the case took off in the life that it did is that the US thought, given who his father was, that they must have an intelligence bonanza on their hands. But when he was questioned about what his father was doing, talking to all these people, this is what he told them:

“Khadr often said he did not know what his father talked about with people, as he was outside playing with other kids.”

So, in 2002, his father, for reasons that we don’t know, left Omar – who at that time was 15 years old – in the custody of Abu Laith al-Libi. al-Libi was a head of a militant Islamic organization in Eastern Afghanistan called the Libyan Islamic Fighting Group which in 2007 became formally affiliated with al Qaeda. In 2002 it was not. In 2002 it was Libyan Nationalists that were fighting the Northern Alliance. Omar’s father left him with al Libi and Libi immediately turned around and gave Omar to a bomb making cell in a remote village in Eastern Afghanistan. I would suggest to you that Omar had absolutely no control over this, he had no choice in the matter, it was like not he could go and buy a bus ticket back to Toronto. He was literally out in the middle of the Wild West in Afghanistan and he found himself sucked in a vortex of an armed conflict on which he had no control and about which he understood very little.

Central event in the case is the firefight that took place in the compound in which he was living. In the morning of July 27th, 2002, about 55 heavily armed soldiers approached the village of Abu Khail, looking for a bomb-making cell that had been targeting US forces in the area of coast in Afghanistan. When they surrounded the compound, the commander on the scene decided he will call in close air support.

I should back up for a moment:

The first thing that happened was an exchange of gun-fire that set off a siege that lasted several hours and the commander decided he was going to bomb the compound into oblivion so he called in attack helicopters, he called in F-18 hornets, and they essentially leveled the compound.

(next slide) This is just a picture of what was left.

(next slide) Omar was found buried underneath the debris in that alcove. It’s an alleyway on the inside of the compound. He was alleged to have thrown a grenade due to be sitting with his back to the action after being injured in the bombardment. He was concussed. He was blind. His ankle was broken. He had shrapnel wounds all over his body from the bombs. And he is alleged to have thrown a grenade over his shoulder that cleared that 8 foot wall that traveled 80 feet and that landed at the feet of a US soldier and killed him. That is what the government’s theory of what happened.

(next slide) That is a picture of what Omar looked like after they found him.

Contrary to what you may have heard, he was not the sole survivor of the bombardment. After the bombing stopped, the military commander sent in an assault unit into the compound to clear it; and when he did that, there was another adult fighter left who was shooting at the assault team. (next slide) That’s the man right behind Omar. He was shot and killed. The soldier that shot and killed that man then shot Omar twice in the back, and that’s where the story came from that he was sitting on the ground and threw a grenade over a shoulder.

(next slide) He was almost executed. We know that because one of the members of the assault team kept a diary and in that diary he said, “As I was standing there SSG Linderman (sp?) told me they still had a live guy. PV2 Reep had his sites right on him point blank. I was about to tap Reep on his back to tell him to kill him but the SF stopped us and told us not to.”

(next slide) The medics began to work on Omar and did in fact, as Dennis said, save his life. Dennis said, did save his life. I would point out, however, that two forensic pathologists — if the case had gone to trial this would have been a contested issue — told that those exit wounds could only have been made if he had been lying in a proned position when he was shot, given the caliber of the gun and the caliber of the injury. That can only mean that he was shot point blank when he was lying face down in the dirt. That also is a war crime. You may not, under the law of war, kill a wounded enemy who’s no longer in the fight and that is, in fact, what they intended to do to Omar.

(next slide) They patched him up and then they left him there. In that slide he’s literally dying. And after about 45 minutes or so, they loaded him on to a helicopter, they took him to a field hospital, and he miraculously survived. Within a week of being in that field hospital, they began to interrogate him. The first thing that they said to him when he woke up from his coma that he was in, was to tell him that he had killed a US soldier with a hand grenade. He actually has no memory of what happened that day which is not surprising because he had suffered a concussion, it was a traumatic experience like being in a car accident. He doesn’t remember anything about it. They repeatedly told him, “This is what you did”. Then they interrogated him to confirm the story that they had told him! Over the course of three years, he was interrogated three hundred times. Not once, not one time, was he told he is the target of a criminal investigation. He was never told he had a right against self-incrimination. He was never told they are trying to extract a confession from him. He wasn’t given council; he wasn’t allowed consular visits. He wasn’t allowed to communicate with his family. For two years he was held incommunicado. He didn’t get a criminal defense lawyer for three years. And only then did the interrogation stop. The entire case against him is based on the admissions that he made in those first three years. Without that, there is no case that they could have won at trial.

Just to give a couple of examples to back that claim up, they never saved any of the forensic evidence of the victim They don’t actually know what grenade killed the soldier Sgt Speer. The only evidence they had at trial was a piece of shrapnel that they took from the body of a soldier that had lived 6 years later, and they said, ”well this must be the same shrapnel that had killed Sgt Speer”. And that was the quality of evidence they had. When he (Omar) pled guilty, he entered into a very unusual stipulation of fact; he stipulated to the chain of custody of that shrapnel fragment. Why did he do that? Why did the government want that? Because they couldn’t prove it. They had no idea if that is the shrapnel that had killed Speer, or the same type of shrapnel, I should say.

(next slide) While he was in Bagram, he was subject to abuse, both physical and psychological. That is called a Sally Port (slide). It is the entry way to a wooden holding cell, and when they take someone in or out of a holding cell, they put him in this 5 ft sq wire cage. Within weeks of being released from the hospital, while his wounds were still fresh, his hands were chained above his head at the ceiling of a Sally Port just like that. He was hooded and left standing for hours. They did that for two reasons, they said (the guards that testified): They did it for punishment when people were not compliant – which is to say that they wouldn’t tell them what they wanted to hear – and they did it for sleep deprivement because that would soften them up for interrogation. They put him in a holding cell and they brought in military dogs – he was tied up and the dogs were barking aggressively to terrify him. They tied a bag around his head so it was difficult for him to breathe. He was, as I say, sleep deprived. He was threatened repeatedly with rape, both in Bagram and in G Bay. His wounds were never treated properly and he has permanent disabilities today as a result.

(next slide) That is just an image of what it would have looked like (that is not Omar) with his hands above his head.

(next slide) He was chained to various stress positions. What they would do is they would chain him to a bolt in the floor, they would leave him there for hours at a time. On one occasion in Guantanamo, they hog-tied him with his hands and feet behind his back and left him there for so long that he had to go to the bathroom and urinated on himself and when the guards found this had occurred, they poured pine solvent on the floor and used him like a human mop to sweep up the urine and the pine solvent; and they put him back in his cell and they left him there for two days without a change of clothes.

(next slide) This ties in with the theme of citizenship. It is interesting to me that the first time Omar Khadr recanted all those confessions, which he later said he learned what the guards wanted to hear and he was afraid of them so he told them what he thought they wanted to hear. For the first time he was interviewed by Canadians, he recanted. Why is that? Because for the first time in three years, he thought somebody was there to help him; he thought, well, they’re from the Canadian government so I can trust them. So with some hesitation he said, well, “You promised to protect me from the Americans” and they said “There’s really nothing..we can’t promise you.. what is it that you want to say?” and with some reluctance he said, “I only said that because I was afraid of them. They tortured me. I wanted them to stop. I would’ve said anything.” When those intelligence officials made it clear the Canadian government is not going to do anything to help him, he became despondent, put his hands on his head and he began to cry for his mother. He was 16 years old at the time. That’s an actual shot from the surveillance video.

That sort of sets the factual stage.

For 8 years before he pled guilty, he was subject to a systematic regime of abuse and mistreatment in Guantanamo Bay. He knew that if he went to trial and was acquitted, the government could still hold him indefinitely. Unlike any other criminal justice system in the world, the only way to get out of the island was to plead guilty. In a real criminal justice system, the criminal defendant is faced with an actual, meaningful choice if he is faced with a criminal charge. He was can go to trial and take his chances and if he is acquitted, he gets to go home. That’s what every criminal defendant wants: he wants to be released. Or, he can take some plead deal from the government and limit his exposure to punishment, but, however difficult that decision is to make, that is a real choice. In Guantanamo, that choice does not exist because the policy of the United States is, if you’re acquitted we are going to hold you anyway. So I would argue that drains the trial process of any meaning because you’re not going to get any relief out of it. So the question which is often asked is, ”if you’re saying he didn’t commit a crime, why did he plead guilty?” Well, that is why he pled guilty, because that was literally the only way for him to get out of the island.

The legal landscape has changed dramatically just in the last two years. This is the conclusion and I’ll explain it as we go along:

The law that now stands in the United States, the law that now governs the military commissions is this:

“No offense codified in the MCA may be prosecuted retroactively unless it was already an established war crime at the time of the alleged conduct.

“Otherwise, it is a new crime that falls outside the commission’s jurisdiction.”

There is a fair amount of legal ease in that statement. So let me try to walk you through it. In the first merits appeal of a military commissions conviction was the appeal of the guy named Salim Hamdan who was bin Laden’s taxi driver. He was convicted of an offence called “Material Support for Terrorism”. In the military courts, the government argued strenuously, vigorously, that the material support for terrorism was in fact a violation of International Law, that it violated the law of armed conflict. When they got out of the military justice system into a real court, into the US Appeals Court of the District of Columbia, they completely reversed themselves and they conceded that material support for terrorism isn’t actually a violation of international law. No credible scholar believes it, which support that theory, there’s no international tribunal which has so held, there is no convention or treaty which proscribes anything that can be described as material support for terrorism. In fact, you might be surprised to know that terrorism itself is not a violation of international law. Not as such. The reason is there is no consensus in the international community of what terrorism actually is, what it consists in. I’m not saying that things that terrorists do can’t be violations of the law of war. What I’m saying is that terrorism itself is not a war crime.

So, the DC circuit reached that conclusion in a couple of steps:

First they said, “Well, there’s the expo facto principle. There’s no crime without law.”

So if it wasn’t a crime at the time he did it, you can’t prosecuted for it if the law was passed sometime after that, That’s also fundamental principle of international law, it’s called the Principle of Legality. Prior to 2006, when the military commissions act (MCA) was passed, there was only one statute that conferred jurisdiction on military commissions, and that was found in US military law; it’s called Article 21 of the Uniformed Code of Military Justice. Article 21 confers jurisdiction over military commissions in three instances. There are two statutory offences that have been around since 1776: spying and aiding the enemy – they are tried by a military commission if they are properly charged. There’s also the customary law of war. The customary law of war is the international law that arises by state practice and the opinion juris – states who act out of a legal obligation. And it arises in a common law fashion over time based on practice and sometimes codified into treaties. So when you’ve heard about the Hague Conventions of 1907, that is one of the principle treaties that codifies the customary law of war. There’s a limited set of offences in that class that you can’t do in an armed conflict. So what do they consist of?

They consist of attacking protected persons. So there are certain categories of folks you can’t target in a war. You can’t deliberately try to kill civilians, for example. You can’t deliberately try to kill wounded soldiers who are no longer in the fight. You can’t kill prisoners of war. Those are all well-established violations of the law of war and have been for well over a hundred years.

Similarly, you can’t use means or methods of war-fare. The classic example would be, you can’t use poison gas. Over time, these technologies change so there’s debates about what’s an illegal weapon. At one time, in the 19th century, they thought copper bullets were illegal because they had the idea they were more painful so they caused unnecessary suffering. Today all militaries use copper jacket bullets because we know in fact they are more humane, not less humane. Exploding bullets now would be an illegal weapon. There are certain kinds of techniques you can’t use because they undermine the integrity of the law of war, so you can’t do something which is called “Perfidy”. What is Perfidy? Perfidy means faking a protected status to take advantage of an adversary. So if you wave a white flag – that’s a flag of truce – in order to induce your adversary to put his arms down and then you shoot him, you’ve committed a war crime. So there are protected persons, there are illegal means, and there are illegal methods. That’s what violates the law of war.

And the court held, that if it doesn’t fall within that category and the conduct occurred before the passage of the Military Commissions Act, it’s not a war crime. Now whether Congress can make up war crimes — ? is a separate question. The difficult constitutional question – we can have a whole presentation just on that, but that’s not really relevant to the case because Omar was alleged to have — in 2002, and so that’s the limit this tribunal has.

Finally, the law of war’s reference to international law: the United States tried to get around this constraint by arguing that there was such a thing as the US Common Law of War. That there was a previously unannounced and previously unknown body of domestic military law that also constituted kind of, sort of, war crimes! And it just so happened that they fit perfectly with what Omar did! In fact, on the eve of trial, this illegal advisor to the State Department, man named Harold Koh who was one of the distinguished international law scholars in the United States and the Chief Legal Officer for the State Department, contacted his counter party at the Department of Defense and said, “You know, you guys are about to go to trial and you’re saying that Omar Khadr is a war criminal just because he wasn’t in the armed forces; he was a civilian who participated in hostilities and that makes him an unlawful combatant and that’s a violation of the law of war. If you do that, then all of our CIA operatives are war criminals too! So maybe you don’t want to do that.” So they said, “No problem.” They rewrote the rules, and they said, “Voila! This is a violation of the US Common Law of War, so we’re not admitting to this is a war crime to which our CIA operatives or soldiers who are out of uniform can be prosecuted. It’s just a special US common law of war that actually fits this case quite nicely.”

So under that test, the test of Hamdan II, if it isn’t a war crime that already existed in 2002, or one of these two special statutory offences, it can’t be prosecuted. It’s outside of the jurisdiction of the court and that’s fancy legal war of saying the judge would have no authority over that alleged offence. It would be like saying, we’re going to charge him with shop-lifting or car theft. Well, no one thinks those are violations of international law and so a judge who reported to accept the guilty plea to shop-lifting or car theft in an international law tribunal would be doing something that is non-sensical(?) and it would obviously be thrown out on appeal. Even if the person who persuaded to plead guilty to it because he wanted to get out of jail.

So here are the four charges that he was charged with (there are actually five but I combined them because they are the same thing):

Material Support for Terrorism; Conspiracy; Murder and Attempted Murder in the Violation of the Law of War; Spying in Violation of the Law of War.

So I’ll run through these quickly:

Material Support for Terrorism (MST) is not a war crime. You do not have to take my word for it because the government of the US conceded in Hamdan that it is not. “”The offence for providing support for terrorism has not attained international recognition at this time as a violation of customary international law.” So says the brief of the United States.

Conspiracy is not a war crime. This was actually an issue at the Nuremberg Tribunals. It was proposed by the US and rejected by the tribunal. I should probably say a quick word about this because it can be confusing to non-lawyers. The crime of conspiracy is something to do illegal. So if you and I agree to, say, sell illegal drugs and then we do any act in furtherance of that agreement, that agreement in itself a crime. That’s the law in the US and it’s prosecuted all the time and you can see why prosecutors like it because it’s very broad. That has been rejected by the international community. You can have a joint criminal enterprise where two or more people act together in a joint concerted way to commit a crime but there has to actually be a crime, an underlying crime. The agreement itself is not a crime. So when I say conspiracy is not a war crime, that’s what I’m talking about. Again, the government has now conceded that conspiracy is not a war crime.

So, Material Support for Terrorism? That’s gone. Conspiracy? That’s gone.

(next slide) As charged in this case, Murder in Violation of War is not a war crime. That is to say it doesn’t violate international law. This statute requires some explanation as well, it says, “any person subject to this chapter who intentionally kills one or more persons (that’s a homicide- you kill somebody) but then it has to be in violation of the law of war.” So what does that mean? Does that mean any death that you cause is potentially a war crime? No! That means if you kill a protected person or if you use an illegal manner or means, then it is a killing that violates the law of war. If you’re simply alleged to having killed somebody but then you didn’t do it in a war that violated the law of war, it’s not a war crime. That is precisely what they charged Omar Khadr with.

This is a statement from a brief at trial – they were arguing over the jury instructions, and here’s what the government said:

“The evidence will not establish that the accused used either a means of method of warfare prohibited by international humanitarian law.”

IHL is another term of the law of armed conflict/the law of war.

And indeed, the government went so far as to say, “If you judge, instruct the jury, that they have to find he actually violated the law of war when this killing occurred, we cannot obtain a conviction and we urge you to go ahead and make that ruling so we can appeal it.”

They rested their case entirely on the theory that any killing by a person who isn’t in the military is a war crime. But it’s only a war crime under US domestic military law. Now if you think about that for a minute, you see immediately why it makes no sense. The law of war is supposed to establish a common standard between states to lower the level of violence and inhumanity in what is an inherently an inhumane enterprise, which is to say, armed conflict. And so we have these rules so they apply to everybody all the time. If there is a US common law of war, then who is to say there’s not a Syrian common law of war, or a Russian common law of war, or an Iranian common law of war? And do we really want to see what they would do to one of our soldiers or sailors if they caught them in some future armed conflict under their domestic law of war? It would completely undermine the reason for having law of war in the first place! Moreover, there is no set of doctrine anywhere were this had ever previously been recognized or even discussed. The US military – it’s hard for me to emphasize this enough – teaches this. They have a graduate law school devoted to nothing but teaching their lawyers the law of war. It’s a very practical enterprise, because when the military commander is in the field, he’s got a lawyer with him, and when he wants to blow that thing up, he turns to his lawyer and he says, “Can I blow that thing up?” or “I want to kill those people, can I kill them?” and the lawyer has to tell him whether he can do it or not. Now if there was a US body of customary law that governed the actions the US military can lawfully take, don’t you think we would know it? Don’t you think it would be taught? Wouldn’t it be in some manual somewhere? Wouldn’t we have to advise our commanders that this is what the US law of war requires and indeed if there is a conflict between international law and US law, guess which trumps? US law! And yet there’s no absolutely no evidence that such a thing exists. The army has always thought that the law of war means international law. Instead what they charged him with was a pre-existing regulatory offence that Congress had rejected called — and it’s essentially the same thing except you strike those words.

Now spying is going to require some explanation as well. There was at a time that he was convicted – or the time where he acted, rather, in 2002, there was a spying statute. It is something which he could have been charged with. He was not charged with it. He was not charged under this particular statute. And I’m calling it “Traditional spying”. It has several essential elements that have to be proven in order to establish the crime. One of them is that the accused has to be caught in the act of spying; if he engages in spying and gets away with it, he can’t be prosecuted for it – he’s immune from prosecution. The reason for that is because spying in itself has an ambiguous status in international law and it’s considered both something that can be punished and at the same time it is a permissible tactic that states can employ. In that sense it is “sui generis”. It’s unlike any other warm crime. States aren’t permitted to engage in war crimes generally even if it’s to their military advantage. Spying is an exception. But to limit the scope of that offence, because it’s not considered inherently immoral, a spy who completes his mission can’t be prosecuted. That’s the traditional law of spying. Secondly, the spy has to be caught in a particular geographic area. And it has to be a particular place that’s within the control of the party who’s agreed, the injured state. Now why is that? Well, because it only protects information that’s supposed to be closely held. It’s information that the spy is not supposed to know. So if it’s something that’s open in—-notorious?? and if a state makes no effort to hide the information, repeating that can be spying. So to cabin the scope of this offence is to say, you have to be caught and caught in a place you’re not supposed to be. And finally, you have to use some sort of deception to be in that place.

(next slide) He was charged with the 2009 version of the military commissions act which confusingly has a provision called spying. But labels don’t matter; the essential elements matter. The elements of this version of spying which post-date what he did, are quite different. There is no requirement that he be caught in the act, as he was not. There’s no requirement that he be caught in a particular geographic area, as he was not. He simply has to be an unprivileged civilian who passes information to the enemy. That’s all the government believes they have to prove in order to convict Omar Khadr of spying.

Whatever that is, that’s not spying as it existed in 2002; it therefore is not a crime under the jurisdiction of the commission and his conviction on spying has to be vacated.

It actually gets even worse than that, I would suggest to you. Because I said a couple of times that the military likes manuals. What was Khadr accused of doing when he was spying? The government said, “Well, he stood by a side of a road and (I’m paraphrasing a little bit) he watched military traffic go by. And he recorded the number of vehicles that went by, and how many soldiers there were, and where they were driving, and he wrote it all down, and he went back and gave it to the members of the LIFG, in that compound in Abu Khail.”

(next slide) What he was observing was something called a “presence patrol” and a presence patrol in military doctrine is something that the local population is supposed to see. It’s a show of force! So, I find that pretty astonishing. He was charged and convicted of spying for relating information that they wanted him to know! That’s not spying; that’s not a crime of any kind. That would be like the United States drops leaflets over a particular area and he picked up a leaflet and he passed it to one of his friends, and they (the US) said, “Oh you’re trying to help the enemy, so that’s spying!” The US has no complaint if he actually did what he’s alleged to have done because they have no cognizable interest in trying to prevent him from passing that information along, therefore there’s no criminality to what he did.

This goes back to the indefinite detention problem; this is a quote from the former prosecutor at Guantanamo Bay, Morris Davis. And he was there during two of the years Omar was in Guantanamo and he said in an interview in 2012, “The running joke was, in order to win at Gitmo you have to lose. You can go to court and be convicted as a war criminal and you might get to go home.”

I’ll close now. I want to suggest that if we step back and ask ourselves what in the world was going on here? What I believe was going on here is that the United States is trying to impose a form of marshal (sp?) law on the trial world. They are not prosecuting the International Law of War. They are prosecuting a post hoc, made up, untested, domestic military law and when they are essentially saying is, it’s illegal to fight the United States. It’s the deer hunter theory of the law of war. Omar Khadr was basically a deer. We can fight against him but he can’t fight against us. We’re permitted to throw hand grenades but he’s not permitted. We’re permitted to use unlawful combatants but he’s not allowed to be an unlawful combatant because we say so.

And I would suggest that there’s no reason why the international community should accept that. The ultimate question is for you, I believe, is this – and it’s the one I started with: “If this is not acceptable for a US citizen, why should it be acceptable for a Canadian citizen?”

And it’s not whether you’re mad at Omar Khadr and you think he did something bad, or you don’t like his family, the real question is, what if it was your son, or your husband, or your father? Would you be comfortable that they were receiving a fair trial and a fair criminal justice system at Guantanamo Bay under this sort of a process? And if the answer to that is “No”, then why is it fair for Omar Khadr?

I’ll close with this quote: Francis Lieber was one of the great intellectuals of the 19th century; he’s the father of the law of war. He drafted the first written code of the law of war during the American civil war. This is a quote the government usually doesn’t use however:

“Nations frequently rush into the arms of despotism for the avowed reason of finding security against anarchy. Liberty requires that everyone should be judged by its common court. All despots and system extraordinary courts, courts of commissions and an easy application of marshal law.”

Thank you.

Letter to Omar Khadr from a student hailing from Nova Scotia

On this website and on our Facebook-page we have been posting some of the letters of support we receive. This one, from a very thoughtful young Canadian, expresses so succinctly what many are feeling.


Dear Mr. Khadr

My name is Mathieu Rozier I am student hailing from Nova Scotia, a quiet rural community outside the university town of Wolfville. I was born and raised in this community and though the values and ideologies of myself and my neighbours differed, I was able to form deep and lasting friendships with them, whether it be with Winston, and old gentlemen with whom I pick corn for Dave, a local farmer, or Wesley, my dearest childhood friend. When I became older, I attended a more diverse school, meeting people with perspectives and values closer to my own, but I still retained my old friendships, because those people took the time to know me and judge me for what I did, not what was said about me. I believe you should be afforded the same opportunity.

I was fortunate. I was never discriminated against or humiliated for my identity. I’m not a minority and I have never faced poverty, or any great adversity for that matter. Unfortunately there are too many that do, and undeservedly so. I believe every person should be given a chance, and that before we judge an individual, we should take the time to know them, and unfortunately anger, suffering, and most of all fear interrupt this.

I grew up watching your story, and every time it broke my heart. I’m 18 now, but even 14 or 15 is a blur to me, and while my friends and I played war, it became a reality for you. I cannot imagine how I would’ve reacted in your position, a child caught in the middle of a terrible situation completely out of my control and dragged off to a reality worse than hell. I would have lost all my happiness, desire for life, and most importantly, my compassion.

But somehow you persevered, and look at the man you’ve become! I cannot claim to know you, as I’ve never met you, but watching you speak about your life I’ve been given such a strong impression. If I were in your position I would only feel anger, hatred, and contempt, but you’re filled with forgiveness, humility, and compassion, even for those that wish you ill. Your fortitude is more than admirable, you’re actions and demeanour are those which few in the world can claim, though most strive for. You’re a good person, never let anybody convince you otherwise.

I felt compelled to write you on this occasion because I feel I have a responsibility as a Canadian and a fellow human being to give you my support in this trying time. It seems you have undeservedly become the centre of a hateful ideological battle which no person deserves to bear. The world is filled with so much anger and fear, and those that attack you and your character are filled with these things. Frankly it breaks my heart. For they judge you not by your actions, but by propaganda and raw, misdirected emotion. If they would only get to know you, they would realize their error. What happened to you was a violation of Canadian and international law, as well as a violation of the Geneva conventions, and what happened is reprehensible. I just hope that it becomes a lesson to governments in the future.

The most important thing is that through all you’ve faced, you have miraculously, and thankfully survived. Though it may seem the whole world is against you, this is not so. Although those that oppose you are vocal, they are in the minority. Most people I have spoken with support you and believe in you, and though you seem to be a man of unparalleled fortitude, such hatred and negativity does get to a person, and I would like you remember that we believe in you.

I will not offer you my pity, as I know you would not want it, but I offer you this; my admiration, support, and most importantly my faith in you.

Remember: All things pass with time. It is exhausting to hate, and easy to love. A lesson that, from what I understand, you know well. In time you will find your own community, if you haven’t already. You’ll become friends with all sorts of people, and they will value you, for who you truly are; a kind, compassionate, and friendly person. In time your notoriety will fade and people will either forgive you or forget you, and you’ll be able to go about your life, truly free for the first time.

Good fortune and happiness to you, I can think of no one more deserving.

Hoping you are well

Mathieu Rozier