After eight long years of internment at the United States’ Guantánamo Bay detention camp in Cuba, the so-called Gitmo prison, Omar Khadr’s military trial is scheduled to resume on October 18, 2010. This comes nearly two months after his trial was suspended on August 13—the first day of arguments.
There is no more room for delays. Since being interned at Guantánamo, Khadr has faced delays after delays, he has fired his lawyers and has seen his trial postponed while the Obama Administration reviewed the functioning of military commissions. Then, on the first day of Khadr’s trial, his freshly-appointed military lawyer, Army Lt.-Col. Jon Jackson collapsed in the courtroom, and was air-lifted from the base to the United States for medical treatment. It is thought his malaise might be linked to a previous gallbladder surgery.
On top of that, Khadr has turned down a plea bargain, which would have limited his prison term to five years instead of the 30 years he faces.
Either way, the trial is off to a bad start
The military judge presiding over the 23-year-old Canadian citizen’s trial, Army Col. Pat Parrish, ruled that evidence obtained through interrogations while Khadr was 15 years old was admissible. His lawyers maintained those confessions were extracted under duress and torture. The Supreme Court of Canada, Canada’s highest court, had reached the same conclusion in its January ruling but stopped short of ordering Canada to ask for Khadr’s repatriation to Canada.
“The whole thing was a disgrace in terms of the rule of law,” says Allan Hutchinson from the University of Toronto’s prestigious Osgoode Hall.
Hutchinson doubts the Toronto-born Khadr can get a fair trial in Guantánamo as there are too many vested interests in play.
“The cards are stacked against him,” he says.
As the first detainee to be tried under U.S. President Barack Obama’s new ground rules for military commissions, Khadr’s trial is a test for the Obama Administration. Can Khadr get a fair trial? What does it say about the revised military commissions` structure? For now, there are more questions than there are answers.
Khadr is accused of throwing a grenade that killed U.S. soldier Sgt. 1st Class Christopher Speer, an Army Special Forces soldier during a firefight in Afghanistan in 2002, a claim he denies. He was 15 at the time. Gravely wounded, Khadr was interrogated under harsh conditions at Bagram Air Base before being transferred to Guantánamo. Khadr is also facing other charges such as spying and supporting terrorism.
Khadr maintains he was threatened with gang rape if he didn’t confess his actions but these allegations were thrown out. Military judge Parrish found “no credible evidence of torture” and ruled that at 15, Khadr “was not immature for his age.”
At pre-trial hearings in May, former army interrogator Sgt. Joshua Claus, who was later court-martialled for detainee abuse in another incident, testified he told Khadr a fictional tale that an Afghan captive was sent to an American prison and raped “by four big black guys.”
After suffering many legal setbacks, Khadr was hoping for the best at his trial but fearing the worst. In its opening statement on August 12, the prosecution said Khadr had told interrogators he was an Al-Qaeda-trained terrorist. The defense countered by saying he was a scared young boy who obeyed his Islamic extremist father, Ahmed Said Khadr, a known terrorist and supporter of Osama Bin Laden. He was killed near the Afghan border in 2003.
Whether he’s guilty or not of throwing that fatal grenade, Khadr’s constitutional rights must be upheld. His status as a child soldier, which seems blatantly obvious to several experts and observers, was not acknowledged at the military proceedings.
“Khadr, like other inmates at Guantánamo, seems to have fallen in a special category of detainees where all rules and regulations afforded to regular courts don’t apply,” says Hutchinson.
But to try Khadr for war crimes in an adult court sets a dangerous precedent, says the UN Special Representative of the Secretary-General for Children and Armed Conflict, Ms. Radhika Coomaraswamy. Indeed, she says, since World War II, no child has been prosecuted for a war crime.
“It’s not for me to decide whether it’s a fair trial or not a fair trial,” she noted in an interview for this blog post. “My main purpose is to say there should be no trial in the first place because we feel he should be treated as a child soldier and go into rehabilitation.”
She says Khadr is being tried as an adult under the normal rules of criminal justice in the U.S. where 15 year olds can be tried.
“The problem is this is not a criminal justice issue,” adds Ms. Coomaraswamy. “This is an armed conflict issue and we have a different framework for that internationally. The International Criminal Court does not prosecute anyone under 18 for war crimes and crimes against humanity and it’s been a general practice with regards to war crimes and crimes against humanity, that we do not prosecute children because often, they’re recruited against their will, abducted sometimes, sometimes pushed by families to fight adult wars.”
Ms. Coomaraswamy urges Canada to “to try to do what Australia and the UK have done, which is to try and negotiate his release and let him come back. I think their concern is that the Khadr family is so closely linked to Al-Qaeda, that this would be real problem for them. If that is the concern, I’m sure that we can come up with some arrangement where he can be released to Canada and go through some process of restorative justice or rehabilitation or some arrangement where we can make sure he isn’t immediately taken up by Al-Qaeda.”
But unless the Canadian government has a change of heart, that’s not about to happen.
Ottawa has resisted all attempts to bring Khadr back to Canada where he would likely be tried in Canadian courts or reintegrated into Canadian society after rehabilitation. Prime Minister Stephen Harper has repeatedly said the trial must pursue its course because of the seriousness of the allegations.
Even though the U.S. and Canada have signed on to the UN Optional Protocol on the Involvement of Children in Armed Conflict, the post 9-11 War on Terror mentality seems to have prevailed, says the special representative for children and armed conflict.
“Within the United States, there are those who feel that even a 15 year old who has committed a war crime or whatever, should be tried and punished and maybe the wife of the victim is very keen that he be punished, so you have that pressure,” says Ms. Coomaraswamy. “Then you have the pressure of the humanitarians saying he is a child soldier. Our only hope is that the U.S. and Canada will listen to the humanitarians.”
Don’t hold your breath.
All Western democracies have brought their nationals back from the Gitmo prison home where they have been tried or rehabilitated.
Canada is the last hold-out and its position is an embarrassment to the world.
*Huguette Young is an AmericasQuarterly.org contributing blogger based in Ottawa, Canada.
