BACKGROUND to the OMAR KHADR CASE
OMAR’S LONG ROAD TO FREEDOM
In 2002 at 15 years of age, Omar Khadr, a Canadian citizen was abandoned by his government and denied Charter rights, international and human rights in a decade-long illegal detainment in the notorious Guantanamo Bay U.S. military prison.
Despite public outcry, urgings from the UN Committee Against Torture, Lawyer’s Rights Watch, Amnesty International, the Canadian Bar Association, International Civil Liberties Monitoring Group and many other prominent organisations the Canadian government delayed Omar’s repatriation until 2012. Finally returned to Canada, Omar was incarcerated in solitary confinement in a maximum security institution to serve the rest of his Guantanamo “sentence”.
May 7, 2015, after 13 years of illegal detainment, Omar was released on strict bail conditions to the Edmonton home of his long time pro bono lawyer, Dennis Edney and family.
That same day Omar addressed the Canadian public. Because the Canadian government had denied media access to Omar, it was the first time the public had an opportunity to hear him speak. Omar asked the Canadian people to give him a chance: “I will prove to them that I’m more than what they thought of me. I’ll prove to them that I’m a good person…Give me a chance, see who I am as a person not as a name, and then they can make their own judgment after that.”
Finally people were able to see and judge Omar for themselves. One of the supporters who wrote to the Free Omar Campaign expressed the feeling of many: “Within seconds of hearing Omar speak, a decade of government demonization and lies unraveled.”
Since Omar’s release, most of his bail conditions have been lifted. He has completed his secondary school credits, received certification as an emergency responder and has plans for a career in the medical field.
FACTSHEET OMAR KHADR
- Omar was born in Toronto, Ontario in 1986;
- During his early years, the family moved back and forth between Canada and Afghanistan, where his father worked for a humanitarian organization;
- July 27, 2002 – Omar was 15 years old when the compound, where his father had left him to act as a translator, was heavily bombed by U.S. forces. After battle U.S. soldiers found Omar seriously injured and buried under rubble; they shot him twice in the back at point blank range, in violation of the Geneva Convention, and took him into custody;
- Omar, unconscious, blinded in one eye, and critically wouned was transported to Bagram U.S. Military Prison where brutal interrogations and torture marked the 3 months of his imprisonment. Lack of medical attention to his wounds has led to serious complications and schrapnel damage to his eyes has resulted in complete loss of vision in one eye;
- October 2002 – Omar was transferred to Guantanamo where he spent the next decade, often in solitary confinement;
- October 30, 2010 – Omar reluctantly pleaded guilty before a Guantanamo U.S. military commission (ruled unconstitutional by the U.S.Supreme Court in 2009). His only chance of freedom was to ‘confess’. Former Chief Prosecutor of the military commissions, U.S. Colonel, Morris Davis, explained the Guantanamo paradox: “You have to lose to win. Those lucky enough to get charged and convicted of a war crime have good odds of getting out of Guantanamo.”;
- Because the ex post facto ‘crimes’ to which Omar ‘pleaded guilty’ did not exist under Canadian, U.S. or international law his ‘sentence’ is currently under appeal in the U.S.;
- Omar is the only child ever ‘convicted’ of a war crime and the only person ‘convicted’ for any of the 7,000+ American casualties in the recent wars in Afghanistan and Iraq;
- September 26, 2012 – Omar was repatriated to Canada and placed in a maximum security prison, even though he was classified ‘low risk’ at Guantanamo. A Supreme Court decision in May 2015 ruled against the federal government and declared Omar should have served a youth sentence for his remaining time in Canada;
- May 7, 2015 – Finally after almost 13 years of arbitrary detention, several successful court challenges resulted in Omar’s release on bail;
- August 2015 – Dennis Edney and Nate Whitling, Omar’s defence counsel, have been named as Canadian Lawyer’s Top 25 Most Influential Lawyers for a decade of advocating for Omar on a pro bono basis.
UPCOMING COURT CASES
Appeal against Omar’s U.S. Conviction
In 2013 Pentagon lawyer Sam Morison filed an appeal to the U.S. Court of Military Commission Review in Washington D.C. to have Omar’s Guantanamo ‘conviction’ overturned. In similar appeals (Bahlul and Hamden) all convictions were dismissed as ex post facto (retroactive prosecution for crimes that did not exist at the time) and not internationally recognized. Omar’s U.S. appeal is expected to be successful for the same reasons. However, the United States, unwilling to recognize its shameful legal manoeuvring in order to engage in the torture of a child, is dragging its feet in reviewing Omar’s Guantanamo ‘conviction’.
Civil Lawsuit Against the Canadian Government
A civil lawsuit launched in 2004 for the violation of Omar’s fundamental rights has never been settled. Omar has not received compensation, despite a Supreme Court ruling (2010) which confirmed that in the case of Omar Khadr “…Canada had actively participated in a process contrary to Canada’s international human rights obligations and contributed to his ongoing detention so as to deprive him of his right to liberty and security of his person as guaranteed by the constitution, and contrary to the principles of fundamental justice.”. Furthermore, a 2014 Federal Court ruled that Omar can expand the lawsuit to include accusation that Ottawa was complicit in his arbitrary detention, cruel and inhuman treatment at the hands of the Americans.
Rather than award Omar remedy, the Canadian government has tax payer money fighting Omar’s legal team at every level of court – and losing every time.
KEY EVENTS – AFGHANISTAN AND GUANTANAMO, 2002 – 2012
U.S. attack and war crimes
On July 27, 2002, 15 year old Omar was critically injured and blinded in one eye, when the U.S. Army Special Forces carried out a four hour bombardment of the compound where he was staying. When found in the rubble – unarmed and severely wounded – Omar was shot in the back twice by a U.S. soldier, leaving huge exit wounds in his upper left chest. “[He’s] missing a piece of his chest and I can see his heart beating”, wrote a U.S. officer in a subsequent account of the events.
Later, a leaked Department of Defense Criminal Investigation Task Force report revealed that the U.S. military had doctored the field report to identify Omar as the only survivor of the firefight and therefore responsible for the death of a U.S. Delta Force soldier. The military had not only erased evidence that the soldier had been killed by friendly fire, but also covered up that after the battle had ended, Omar had been shot in the back at close range and another survivor executed.
Illegal capture and imprisonment
After his capture by U.S. forces, Omar should have been identified as a child soldier – he was 15 and involved in a battle in a war zone – and provided with immediate protection guaranteed by the UN Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Instead, Omar was illegally captured, detained, and tortured in Bagram prison until October 2002. He was then transferred to Guantanamo and held there for more than a decade – often in solitary confinement – until his long-delayed repatriation in September 2012 to a maximum-security prison in Canada.
The Canadian government’s complicity
Following Omar’s capture by U.S. military, the Canadian government had an obligation to demand that he be treated according to the Geneva Conventions with special regard for his age and be immediately returned to Canada. Instead, the government, first the Liberal and then the Conservative, were complicit in the illegal treatment of Omar. Although he was a Canadian child, he was denied the protection of fundamental rights provided by the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada and the U.S. Supreme Court have confirmed that the U.S. and Canada have violated Omar Khadr’s rights.
The UN Committee Against Torture has called on Canada to honour its legal obligation to ensure that Omar receives redress for human rights violations that the Canadian Supreme Court has ruled he experienced.
In 2006 the U.S. charged Omar with five ex post facto offences. Not only have the accusations against him never been proven or heard by a regularly constituted court, the charges were not offences in 2002 under U.S. law and are still not offences under Canadian or International Law. As upheld in the recent Hamdan appeal, the military court in Guantanamo (or any legitimate court) is not permitted to apply law retroactively.
Because Omar, as a juvenile civilian, could not be charged as an enemy combatant, the U.S. rewrote the laws of war and added the term “unlawful” to his status, so he would be “without combat immunity” and therefore stripped of all legal rights. According to the International Criminal Court he was entitled to receive protections as either a civilian or a prisoner of war under the Geneva Conventions.
The Guantanamo Military Commission was created to enable the U.S. authorities to circumvent protections that defendants would enjoy in a civilian courtroom. It is neither a regularly constituted court nor a court intended to conduct fair trials and does not meet international standards of justice. Under Common Article 3 of the Geneva Conventions, it is an offence to impose a sentence in the absence of a regularly-constituted court, but Canada refused to intervene when Omar was subjected to a corrupt military commission process which “charged” and “sentenced” him.
In 2008, the Federal Court of Canada revealed that the U.S. had provided Canada with the case evidence and requested Omar Khadr be tried in Canada. The Conservative government refused stating it was “unlikely he would ever be convicted in Canada”.
In October 2010, Omar accepted the “get-out-of-Guantanamo plea deal” offered by his U.S. captors and pleaded guilty to five ex post facto charges. After maintaining his innocence despite eight years of torture, Omar understood that pleading guilty was his only way out of Guantanamo.
Omar was subjected to torture techniques which include waterboarding, prolonged sleep deprivation, beatings, suspension from his wrists while his wounds were still fresh, threats of gang rape, hooding, intimidation by dogs, forced nakedness, body cavity searches, forced feeding, short-shackling in stress positions, prolonged solitary confinement, cell conditions of extreme cold and noise, constant light and withholding of medical treatment.
“Confessions” extracted through torture are not admissible in a legitimate court. Omar’s sentencing was itself a criminal offence under Canadian (crimes against humanity and war crimes) and International (Rome Statute) Law; the Guantanamo military tribunal proceedings cannot be considered a valid determinant of guilt.
CANADA’S OBLIGATION TO OMAR KHADR
Omar endured years of suffering and abuse due to the Canadian government’s complicity with the U.S. and refusal to award him protection guaranteed by Charter rights and international conventions. Join us in calling upon the Government of Canada to fulfill a long overdue obligation: offer Omar Khadr an official apology and award him appropriate redress and compensation.