Omar Khadr

Omar Khadr

Updates

17 July 2017

On July 7, 2017 the Government of Canada announced a settlement between the government and Omar Khadr. Canada agreed to be held accountable for the violations of Mr. Khadr’s constitutionally-protected rights. A former U.K. detainee has noted that Canada is leading the way internationally in recognizing its responsibility. 

The lawsuit was brought by Mr. Khadr to seek his repatriation following his internment in the U.S. military installation at Guantánamo Bay from 2002 to 2012. Media sources had revealed prior to the formal announcement that the settlement would be in the amount of $10.5 million.

The settlement comes seven years after a unanimous Supreme Court of Canada decision found that the Canadian government was complicit in the violation of Mr. Khadr’s rights under the Charter of Rights and Freedoms. The Court held that he was denied the right to liberty and security of the person and that the Canadian government was in violation of the principles of fundamental justice.  The Court noted that he was interrogated while still a youth, had no access to counsel, and that he was subjected to abuse designed to elicit statements about serious criminal charges. Canadian officials knew that the youth had been subjected to sleep deprivation and that the fruits of the interrogations would be shared with the prosecutors. The Court held that this offends the most basic Canadian standards about the treatment of detained youth suspects.

Justice Minister Jody Wilson-Raybould observed, “I hope Canadians take away two things today: First, our rights are not subject to the whims of the government of the day. Second, there are serious costs when the government violates the rights of its citizens.”


26 December 2016

Release

On May 7, 2015 Khadr was freed on bail with strict conditions, including living with and under supervision of his lawyer, wearing an electronic monitoring device, and a nightly curfew, among others. When the Harper government was asked to issue a statement, former Prime Minister Harper said he was unapologetic about his government’s efforts to keep Khadr imprisoned. Immediately after Khadr was granted bail, the Conservative government said it would appeal the judgement in an effort to revoke his bail and keep him behind bars. On February 18, 2016 the newly elected Liberal government dropped the appeal. Since then several of Khadr’s parole restrictions have been lessened and he has been working on establishing his new life, mapping out a career, and adapting to life outside of bars.

Before His Release

Khadr was transferred to Canadian custody on September 29, 2012, to serve the remainder of his sentence in a maximum-security prison near Kingston Ontario. Under Canadian law, he was eligible for parole in mid-2013. Due to his murder conviction, Khadar was classified as a prisoner to be held in maximum security. This delayed his application for parole.

On August 13, 2013, Khadr’s lawyers, Dennis Edney and Nathan Whitling filed a brief arguing that under Canada’s International Transfer of Offenders Act, it was not legal to hold Khadr in an adult federal institution, because his eight-year sentence in the U.S could only be interpreted as a youth sentence. Therefore he should be detained in a provincial jail rather than a federal prison. In April 2015, it was reported that Khadr had been reclassified as a minimum security prisoner. One month later, he was granted bail. 

What Happened

Until 2012, the Canadian government abrogated its legal and political obligations by failing to repatriate Omar Khadr. In 2008, the Supreme Court of Canada ordered a disclosure of interviews conducted by Canadian Security Intelligence Service (CSIS) agents with Khadr while he was detained in Guantanamo Bay. Later, in 2010, the Supreme Court of Canada declided that Canada had violated the Charter and noted that a request for repatriation would be an appropriate remedy. Omar Khadr submitted a request to be transferred to Canada in the spring of 2011. While the U.S. fulfilled its conditions in April 2012, Minister Vic Toews stalled, and asked the U.S. in July 2012 for Khadr’s mental health assessments before making a decision. Only after a public outcry did the Harper government finally do the right thing.  


In February and September 2003, Omar Khadr was sixteen years old. He was interrogated by Canadian Security Intelligence Service (CSIS) and Canadian Foreign Affairs officials who knew that Khadr had been subjected to systematic sleep deprivation, a “coercive interrogation technique”, which is widely considered to constitute cruel treatment. A video showing CSIS interrogating Khadr at Guantanamo Bay was released in 2008, causing outrage on the international scene.

For years, international human rights organizations, such as Amnesty International, Human Rights Watch, UNICEF, the Lawyer’s Rights Watch Canada, the International Civil Liberties Monitoring Group, and many others, have publicly opposed this treatment and called for his repatriation to Canada. Some of the accounts of Khadr’s detention and the treatment which he was subjected to are reported by Human Rights Watch and are recounted in Khadr’s 2008 affidavit

In 2006 the United States signed into law the Military Commissions Act (MCA) which served to protect the Bush Administration from the legal consequences of actions U.S. officials had taken towards those detained in U.S. custody. The MCA stripped those being detained, including Khadr, of their fundamental rights.

The United States government used the MCA to retroactively charge Khadr with a war crime. As the law stood before the MCA was enacted, Khadr had not committed any offence that the U.S. legally recognized. The Bush Administration invented the offence “murder by an unlawful enemy combatant”, a term which prior to its enactment had no meaning in either U.S. or international law. This new offence makes it lawful for a U.S. soldier to murder an “unlawful enemy combatant”, but a war crime if someone given this designation kills a U.S. soldier. No other system governed by the rule of law allows this, and further, retroactively applying new substantive law in such a manner violates the U.S. principle of ex post facto laws, meaning a state cannot create a new law and retroactively apply it.

The MCA’s definition of “unlawful enemy combatant” was left purposely vague and broad to allow for constant expansion by the U.S. government. This allowed U.S. officials to classify Khadr as an unlawful enemy combatant and subsequently detain him and subject him to interrogation and torture. 

In 2008, on May 23, the Supreme Court of Canada ordered disclosure of records pertaining to interviews with Khadr.

On January 29, 2010, the Supreme Court of Canada declared that Canadian participation in this conduct violated the Charter’s principles of fundamental justice:

“Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects."

The Court observed that a request for repatriation would be appropriate, but nonetheless declined to order the government to undertake this or any other specific action to return Mr. Khadr to Canada.

Instead, it indicated that the government was best-placed to take the measures necessary, including diplomatic measures.

In October 2010, following a plea agreement, there was an exchange of diplomatic notes between Canada and the U.S. regarding Khadr’s repatriation.

Canada stalls 

Omar Khadr submitted his request for transfer to Canada in the spring of 2011. In October, Khadr’s legal term of imprisonment in the U.S. ended.

The U.S. completed its own conditions precedent to Omar Khadr’s repatriation in April 2012.

On June 1, 2012, the UN Committee Against Torture issued a report condemning Canada’s “complicity” in torture and human rights violations, calling on Canada to approve the transfer of Khadr back in Canada.

But in July 2012, Public Safety Minister Vic Toews boasted that he could still “make a decision that could keep [Omar Khadr] out for a long period of time.”

In what John Norris, Khadr’s lawyer, described as a “transparent delay tactic,” Minister Toews asked the U.S. to hand over unedited copies of Khadr’s interviews with Michael Welner, a forensic psychiatrist, and another mental health expert.

Welner was an expert witness for the prosecution at Khadr’s trial who billed the military hundreds of hours for his expertise and yet spent only about 1.5% of his time with Khadr himself. He described Khadr as a dangerous Islamic extremist and “radical jihadist.” Welner reportedly had no experience with radicalized Muslim youth, but relied on the writings of an alleged anti-Muslim racist to reach his conclusions.

According to retired U.S. brigadier-general Dr. Stephen Xenakis, such assertions of Khadr's dangerousness "lack factual basis and scientific evidence."

For Khadr’s lawyer John Norris, Welner’s opinions are “utterly spurious” and the “complete opposite” of conclusions reached by qualified psychological experts.

In July 2012, a petition was launched by senator Romeo Dallaire to repatriate Omar Khadr. It garnered almost 35,000 signatures.

Only in September 2012, ten years after his capture, was Mr. Khadr finally repatriated.

Relevant Dates:

  • July 27, 2002: Omar Khadr is taken prisoner by U.S. forces in Afghanistan and spends three months at the Bagram Airbase. He is charged with war crimes for throwing a grenade that killed an American soldier during a battle
  • 2002: Khadr is transferred to Guantanamo Bay.
  • February and September 2003: Khadr is interrogated by CSIS and Canadian Foreign Affairs officials using torture.
  • May 23, 2008: The Supreme Court of Canada orders disclosure of records pertaining to interviews with Khadr.
  • January 29, 2010: The Supreme Court of Canada declares that Canadian participation in Khadr’s interrogations violates the Charter’s fundamental principles and recommends that a repatriation would be appropriate.
  • October 2010: Following a plea agreement, there is an exchange of diplomatic notes between Canada and the U.S. regarding Khadr’s repatriation.
  • Spring 2011: Omar Khadr submits a request to be transferred to Canada.
  • October 2011: Khadr’s legal term of imprisonment in the U.S. ends but he is still not released.
  • April 2012: The U.S. completes its own conditions precedent to Omar Khadr’s repatriation.
  • June 1, 2012: The UN Committee Against Torture issued a report condemning Canada’s “complicity” in torture and human rights violations, and calling on Canada to approve the transfer of Khadr back in Canada.
  • July 2012: Public Safety Minister Vic Toews asks the U.S. for interviews of Khadr with forensic psychiatrist Michael Welner. Welner’s conclusions are disputed and the move is called a “transparent delay tactic” by John Norris, Khadr’s lawyer.
  • July 2012: A petition launched by senator Romeo Dallaire to repatriate Omar Khadr has gathered more than 29,000 signatures.
  • September 2012: Mr. Khadr is finally repatriated to Canada.

Role or Position

Mr. Omar Khadr, a Canadian citizen, was fifteen years old when he was taken prisoner in 2002 by U.S. forces in Afghanistan. He was charged with war crimes for throwing a grenade that killed an American soldier during a battle and participating in the construction of improvised explosive devices (IEDs). He spent three months in U.S. military detention at Bagram Airbase, where his chief interrogator was a U.S. soldier implicated in torturing Afghan detainees to death.

Omar Khadr was then transferred to Guantanamo Bay. There, he was subject to a regime that even the U.S. Supreme Court found to be a breach of international law. It is a matter of record that Omar was placed in adult detention facilities despite his youth, and subjected to systematic sleep deprivation. It took a decade before Mr. Khadr was repatriated to Canada in September 2012.

Implications and Consequences

  • Democracy:  Canada’s failure to live up to its human rights obligations - notably in relation to its complicity in the torture or cruel and unusual treatment of its own citizen -  is a flagrant breach of international law and the Canadian Charter of Rights and Freedoms. 
  • Equality: Canada violated the fundamental Charter rights of Omar Khadr, a Canadian citizen, and did so while he was a minor, in violation of international human rights law.    
  • Transparency: Canada failed for at least two years to live up to its promises to repatriate, including those relating to an exchange of diplomatic notes signed in October 2010. 

 

Photo from Reuters 2007.

Date published: 16 August 2012

Updated: 1 October 2012; 26 December 2016; 17 July 2017; 30 August 2017

Sources