Last week, the Federal Court ruled that Omar Khadr -who has been held without trial in Guantanamo since being accused of killing a U.S. medic as a 15-year old “child soldier” in 2002 -is entitled to “procedural fairness and natural justice”. The ruling affirms previous judgments of the Canadian and U.S. Supreme Courts that Khadr’s illegal detention – and abuse in detention -violated international humanitarian law in general, and the fundamental principles of the rule of law in particular.
His trial, begining in a few weeks before a U.S. military tribunal, will be the first trial of a child soldier in modern history -a trial prohibited under international humanitarian law. Simply put, the law regards a child soldier as a child victim to be rehabilitated, rather than a perpetrator to be prosecuted.
Earlier this year, the Supreme Court of Canada unanimously concluded that “Canada actively participated in a process contrary to Canada’s international human-rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteedbys. 7of theCharter, contrary to the principles of fundamental justice”. Moreover, the court held that the breach of Khadr’s rights was ongoing.
While the Supreme Court acknowledged that the breach of these rights warranted a remedy, it did not impose the remedy of repatriation -suggesting it rather as an option -and preferring to defer to the government to fashion the remedy. The government limited itself to requesting that the U.S. government withhold any information obtained by Canadian officials in their case against Khadr.
The Federal Court’s ruling found found that Khadr’s right to procedural fairness was denied. Further, the court determined the government’s actions were wholly insufficient to protect Khadr’s rights because the U.S. provided no assurance that the information obtained by Canadian officials would not be used against him.
Justice Justin Zinn wrote that requesting Khadr’s repatriation “is the only alternative remedy I can see that can potentially cure the breach,” and concluded that when “there is only one available remedy that potentially cures the breach of one person’s Charter rights, then that remedy must be ordered by the court.” Although Zinn did not order repatriation, he offered the government seven days in which to set forth “other potentially curative remedies.”
Yesterday, the government announced it will appeal this decision, citing executive exclusivity in matters of foreign affairs. But separation of powers is not at issue here -both the Federal and Supreme Courts took this into account in their rulings. The issue is the government’s standing breach of Khadr’s rights. Through this appeal, the government is furthering its pattern of unnecessary proceedings at taxpayer expense.
The test of the rule of law is not its application in the easy cases, but its retention in the unpopular ones. Admittedly, the Khadr family has emerged, as some have put it, as “the first family of terrorism,” and the allegations against Khadr are indeed serious. Nonetheless, Khadr is entitled to the fundamental justice that the courts have acknowledged he has been denied all these years, however unpopular his case might be.
The government’s pattern of delay, avoidance, and obfuscation, in this case is most disturbing, and has been characterized by Amnesty International as a matter of “breathtaking defiance.” Indeed, media reports say the U.S. is simply awaiting a request from Canada to repatriate Khadr, and would in fact prefer to repatriate him to avoid the prosecution of a child soldier
Human-rights NGOs have decried Khadr’s treatment, committees of the House of Commons have recognized the wrong and recommended his repatriation, and Canadian courts have supported this remedy. The time has come for the government to respect its Charter and international legal obligations -affirmed and reaffirmed by our Canadian courts and our Parliament -and request Khadr’s return.
Irwin Cotler, a former federal justice minister, is the MP for Mount Royal.