| Seventeen Years of Injustice for Omar Khadr

Background History

On July 27, 2002, following a heavy U.S. military bombardment of the Afghan compound ​where he was staying​, 15-year-old Omar Khadr, was captured by the American army, imprisoned, and tortured at Bagram Prison. On October 28​ ​he was transported, in violation of the Geneva Conventions, to Guantánamo Bay prison in Cuba. Although he was a juvenile at the time of his capture and a Canadian citizen, Omar Khadr was denied the rights, care, protection, education, rehabilitation and reintegration guaranteed by international and Canadian law for children in detention.

Omar Khadr was accused of murdering Sgt. Christopher Speer during the bombardment. Speer was a member of the U.S. Delta Forces that entered the compound, killing all occupants except Omar Khadr. Sgt. Speer, helmetless and disguised in a turban and Afghan garb, died allegedly from head injuries suffered during the firefight. (The U.S. has never produced evidence as to how Sgt. Speer sustained the fatal injuries.) International laws of war categorize Speer’s death as a combat death—not murder.

Omar Khadr spent over 10 years in Guantánamo where he was subjected to the “enhanced interrogation techniques” authorized by the G.W. Bush administration’s “Torture Memos.” He was subjected to torture and other cruel, inhuman, and degrading treatment and punishments that are prohibited by the UN Convention Against Torture including the following:

• prolonged sleep deprivation;
• enforced stress positions, such as being forced to lie on his stomach with his hands and feet cuffed together behind his back, and hanging from the wrists;
• prolonged solitary confinement;
• threats of sexual violence and forced nakedness;
• short-shackling with wrists and ankles handcuffed together and the cuffs bolted to the floor;
• short-shackling coupled with enforced exercise;
• isolation at refrigerator temperatures—referred to in the torture memos as “manipulation of the environment”
• repeatedly lifted and dropped while short-shackled as a punishment for “poor performance”;
• denied opportunity to say prayers;
• exposed to continuous electric light in his cell;
• denied independent judicial oversight of his detention, designation, and treatment;
• denied confidential and timely access to counsel of choice;
• held incommunicado;
• subjected to prolonged indefinite and illegal detention;
• denied the protection of U.S. and international law;
• denied access to an independent, impartial, and competent judiciary to determine rights and charges;
• denied access to ​a regularly-constituted court, affording all the judicial guarantees that are recognized as indispensable by civilized peoples to determine charges and rights;
• denied access to all remedies to prevent torture and other ill-treatment or obtain release or repatriation;
• denied adequate medical treatments for serious injuries to his eyes and shoulder;
• subjected to force feeding

Despite an outcry from the Canadian and international legal community, civil society, politicians and grassroots organisations, and a Federal Court ruling that Omar Khadr be repatriated, the Canadian government refused to intervene. As a result, he was subjected to and sentenced by an internationally-discredited Guantánamo Bay military commission, on the basis of a plea “agreement” obtained through more than eight years of torture and illegal detention. Under Common Article 3 of the Geneva Conventions (and under Canadian law) it is a crime to pass sentence “without previous judgment by a regularly-constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The Guantánamo military commission was not a properly-constituted court.

Omar Khadr is the only minor sentenced for purported war crimes since WWII.

A 2008 U.S. Supreme Court Ruling declared the system to be illegal and an abuse of government power.

The Supreme Court of Canada ruled in 2008 that Canadian officials took part in an “illegal” process by sharing information about Omar Khadr with his U.S. captors. They ordered the government to give his legal team secret files CSIS and Foreign Affairs compiled from their interrogation in Guantánamo.

In 2010 the U.S. claimed the right to detain him indefinitely irrespective of a decision of the Guantánamo process, and he was threatened with a possible 40-year sentence. Canada refused to request Omar Khadr’s repatriation. Faced with a lifetime in Guantanamo, Omar Khadr agreed to sign the U.S. plea deal in exchange for promises by the U.S. and Canada: the U.S. guaranteed an eight-year sentence and transfer to Canada after one year; Canada agreed to repatriate Omar Khadr after one year. This was the only remedy presented to him during more than eight years of illegal detention and torture.

The Supreme Court of Canada ruled in 2010 that Canadian officials had, contrary to law, participated in the violation of Omar Khadr’s Charter rights and contributed to his ongoing detention. They wrote that the treatment of Khadr offended ‘the most basic Canadian standards’: “the deprivation of [Khadr’s] right to liberty and security of the person is not in accordance with the principles of fundamental justice.”

In 2012, the UN Committee Against Torture (CAT), after reviewing Canada’s noncompliance with the Convention Against Torture (UNCAT), directed Canada to provide appropriate redress in response to the participation of Canadian officials in grave violations of Omar Khadr’s fundamental rights and freedoms.

On the basis of hundreds of hours of interviews Brigadier General Stephen Xenakis, an MD and forensic psychiatrist, observed that Omar Khadr “​is absolutely one of the gentlest, most decent men I’ve ever met in my life.”

On September 29, 2012, Omar Khadr was transported from Guantánamo to the custody of Canadian authorities and placed in solitary confinement in an Ontario maximum security prison. Despite his youth status when captured, the illegality of the Guantanamo Bay process that imposed the sentence, the ex post facto​ (retroactive) nature of the charges, the denial of due process, and the long history of torture and other prohibited treatment, Omar Khadr spent almost three years in Canadian prisons.

In July 2014, the Alberta Court of Appeal ruled (later reaffirmed by the Supreme Court of Canada) that Omar Khadr should have served a youth sentence in Canada and he was transferred to a provincial prison until his release on bail in May 2015.

After repatriation, Canada continued to subject Omar Khadr to harsh treatment. This included periods of isolation and solitary confinement. He was denied timely and necessary medical care to preserve his eyesight and to treat other serious injuries and bullet wounds. And he had restricted access to rehabilitation, education, and counselling. Canada never offered legal aid to facilitate access to judicial oversight and to determine his rights and remedies for violations.

Until the present, Canadian authorities and media have sought to continue the grave injustices of the Guantánamo Bay process by mischaracterizing Omar Khadr as a murderer or terrorist instead of a victim of grave and prolonged injustices.

After Omar Khadr’s Release

In May 2015, Omar Khadr was granted bail, pending determination of his appeal of the Guantánamo convictions and sentence. Strict bail conditions included a monitoring device on his ankle, prohibition from speaking Arabic with family members, curfews, and travel restrictions. These conditions have been somewhat loosened, but his liberty is still severely restricted. Recently, the court denied his request to travel outside Canada and to speak with his sister without an official present.

In July 2017, Canada provided monetary compensation to remedy the violation of Omar Khadr’s Charter Rights and the complicity of Canadian officials in his torture. However full redress as required by UNCAT is long overdue.

The UN Committee Against Torture concluded (CAT/C/CAN/CO/7, 21 December 2020) that Canada has failed to provide full redress to Omar Khadr as a victim of torture and affirmed that Canada is obliged to provide the following:

• investigation and criminal prosecution of suspected perpetrators of the torture
• verification of the facts regarding the involvement of Canadian authorities in the prohibited treatment
• full and public disclosure of the truth regarding the torture and ill-treatment
• official declaration or judicial decision restoring Omar Khadr’s dignity, reputation, and rights and that of persons closely connected
• judicial and administrative sanctions against persons responsible for UNCAT violations.

The UN Committee Against Torture asked Canada to provide full information about specific measures taken to provide full redress to Omar Khadr by 7 December 2019.

Today

Since his release on bail, Omar Khadr has attended Kings College University in Edmonton. He has completed his high school diploma and has been taking university-level courses. Because of ongoing litigation to resolve unjust sentencing and bail conditions, he has had to postpone his studies in a nursing program at a community college. Currently, he does volunteer work in the community, where he has strong ties and support.

Because of the political climate in the U.S., the 2015 U.S. appeal to vacate Omar Khadr’s Guantánamo charges has not moved forward. At a recent University of Alberta Constitutional Law Centre talk, Omar Khadr’s Pentagon-appointed lawyer Sam Morison said, “Justice delayed is justice denied. We think that we have very strong arguments on the merits and the court and the government just don’t want to confront those arguments”.

Omar Khadr remains under stringent bail conditions with the threat of a return to prison to serve an additional 3.5 years of the illegally imposed eight-year sentence. He has asked the Parole Board of Canada to grant him a parole hearing. This application is pending.

Omar Khadr continues to face health issues resulting from wounds inflicted by the U.S. military and neglect during his more than a dozen years in prison.

Despite Omar Khadr’s release​ ​from​​ Guantánamo​, ​the trauma and injustice continue. There has been a continuing lack of political will to adequately address the violence and injustice suffered by Omar Khadr over these 17 years. Collectively, the actions of elected officials, white supremacist and anti-Muslim groups, social media, and emotionally charged inaccurate reporting contribute to the continued demonization of Omar Khadr. Terms such as “convicted terrorist” or “murderer” are routinely used.

This ignores the essential fact: that since the military tribunal was not a properly constituted court; there is no legal justification for the conviction and sentence which must be vacated.

 

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For More Information

• LRWC and ICLMG Reports to UN Committee Against Torture 2012
• LRWC and ICLMG Reports to UN Committee Against Torture 2018
• Committee Against Torture report: Canada not complying with UN Convention against torture. January 2019
• Boris Laskin Library, University of Toronto: Khadr Case Resource Page 
• The Free Omar khadr Now Campaign Website: FreeOmar.ca

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Updated by Free Omar Khadr Now, March 23, 2020