The Omar Khadr case: how the Supreme Court of Canada undermined the Convention on the Rights of the Child.

• Author: Woo, Grace Li Xiu

1. INTRODUCTION

   Omar Khadr's situation demonstrates the extreme vulnerability of children's rights and of the fundamental freedoms that are essential if we are ever to establish a culture of peace that leaves behind the injustices and bad habits that became entrenched during the age of colonial aggression and imperial domination. Every now and then we are shocked to discover that some seemingly normal individual has sequestered an abducted child in a secret bunker. The inevitable media blitz feeds our horror. Reporters scramble to find out how the crime was discovered and how it remained hidden for so many years. Glimpses of the shackled perpetrator being led into court play before our eyes as we listen to the plans that have been made to rehabilitate the unfortunate victim. There is no question of putting such children on trial. Some cases come to light when the abducted child escapes. He or she may have grown to adulthood and waited years for the opportunity but, once free, heads straight for the police, confident that protection will be offered and the world will defend the right to common decency. For Omar Khadr that ray of hope has been extinguished. He already knows that he will not find protection. The United Nations and some of the most respected courts in the world have confirmed that he has been the victim of torture. Canada's House of Commons and Senate have both recommended his repatriation. Yet in January 2010, the Supreme Court of Canada reversed the order of two lower courts requiring Canada to ask the United States for his return from detention at Guantanamo (Canada (Prime Minister) v. Khadr, 2010 SCC). The effect of this judgment is to leave Omar under the control of his abusers while the violation of his fundamental human rights continues.

   This is happening despite the fact that Omar is a citizen of Canada, a founding member of both the League of Nations and the United Nations, widely considered to be a leader in the field of human rights, as the Chief Justice of the Supreme Court herself has claimed (McLachlin, 2004). On top of this, the state that tortured him and that continues to hold him under conditions that violate his rights is the United States of America whose Constitution inspired the opening words of the Charter of the United Nations(Goodrich, Hambro, Simmons, 2) which, as stated in the Universal Declaration of Human Rights, is dedicated to "the inherent dignity and the equal and inalienable rights of all members of the human family". Why is this happening? Why is the Convention on the Rights of the Child (CRC) so difficult to uphold when it has been ratified by all states except Somalia and the United States making it the most successful and widely ratified human rights treaty in the world? (United Nations Treaty Collection, 2009 Ch.IV; Schabas, 1996).This article examines the Canadian institutional break down that has allowed Omar Khadr's rights as a child to be gobbled up by a black hole of indifference before the eyes of the world.

2. WHAT HAPPENED TO OMAR

   When a child has been abducted by a twisted individual, no one waits for a court to establish evidence concerning the abuse. The child is removed immediately to safety. In Omar's case, however, he is being held captive by a state whose institutions are expected to provide public protection and that state has justified its actions by claiming that the confinement of those transported to its naval base at Guantanamo Bay was necessary to prevent enemy combatants from taking up arms against the United States (U.N. Economic and Social Council, 2006, para. 19). The failure of both Canada and the United States to uphold international norms has obscured many facts, preventing an orderly judicial examination of what happened and denying Omar any opportunity to tell his story.

   2.1 FACTS ABOUT OMAR THAT HAVE GONE MISSING IN ACTION

   Photos purporting to show Omar's bloody twisted body being dug out of the rubble after the battle in which he is alleged to have thrown a grenade have been published on the internet. He had been shot twice in the back, permanently blinded in one eye by shrapnel and may not have survived were it not for on-site American medical attention ( Omar Khadr).

   Internet postings are not subjected to the same rigorous scrutiny as evidence submitted in court. However, undisputed evidence referred to in the factum presented by Omar's lawyers to the Supreme Court of Canada indicates that he was later severely tortured. After being hospitalized at Bagram, this seriously injured 15-year-old was pulled off his stretcher on to the floor; his head was covered with a bag while dogs barked in his face; cold water was thrown on him; he was forced to stand for hours with his hands tied above his head and to carry heavy buckets of water to aggravate his wounds; he was threatened with rape, forced to urinate on himself and had bright lights shone in his wounded eyes. One of Omar's interrogators at Bagram has confirmed that prisoners were tortured there. After being transferred to Guantanamo Omar was pressed against a wall until he passed out, he was shackled in painful positions for hours, he was exposed to extreme temperatures, threatened with rendition and sexual violence, forced to urinate on himself, then used as a human mop to clean up the mess and denied clean clothes for two days as well as being subjected to a sleep deprivation technique known as the " Frequent Flyer Program" that was recognised as torture and prohibited by the 1992 U.S. Army Field Manual (University of Toronto, Khadr Factum, para 15- 20). The horror of this treatment should not have slipped the attention of the Supreme Court of Canada because the factum took the unusual step of beginning with an extract from the 14 February 2003 CSIS Interrogation of Omar Khadr in which he expressed his fear of the Americans and asked repeatedly for protection, reporting that his admissions had been made under torture.

   Despite the rigours of court procedure, controversial cases are often accompanied by advocacy in the media and, in 2007, a video found in the wreckage of the village where the battle took place was leaked to the press. It showed Omar laying land mines and playing with detonating cord ( Omar Khadr). The bluster surrounding U.S. justification for Guantanamo and its treatment of Omar has obscured the negative example that this state sets for young people, showing little commitment to stopping the use of weapons that injure innocent parties including children. Unlike 80% of the states in the world, the United States has yet to become a party to the 1997 Mine Ban Treaty, nor has it signed the Convention on Cluster Munitions and it continues to manufacture lethal weapons (http://www.icbl.org). UNICEF has expressed concern over the insidious danger such weaponry presents to children (http://www.unicef.org/graca/mines.htm). Yet the focus in the Khadr case has been on the culpability of a child caught in battle rather than on state responsibility and the need for disarmament and better communications skills. Moreover, in 2008, military reports accidentally released to the press indicate that U.S. operatives have been less than honest. Soldiers at the scene initially reported that the grenade that killed an American soldier was thrown by the Mujahadeen, not Omar, but the report was later changed to implicate the captured child ().

   Media accounts based on U.S. military documents concerning events leading up to the battle in which the contested grenade was thrown, raise other concerns. The incident began when American troops approached a mud brick village. They saw children playing outside and an elderly man asleep under a tree. Some men were sitting around a fire in the main house where AK47s were visible. Everything was quiet until the old man awoke and started screaming in Pashto. The children acted as interpreters for the Americans and said the man was "just angry". Things were calm enough for someone to take photographs of the children, then the Americans sent an Afghan militiaman to demand the surrender of the men with the weapons. When someone fired a gun, he retreated. The U.S. soldiers insisted on searching regardless of the men's affiliation even after they had been informed they were Pashtuns. Things degenerated quickly and a battle broke out with no apparent consideration for the safety of civilians as would have happened if a similar incident had occurred in a western city. When the U.S. soldiers requested medical aid, helicopters strafed the village with cannon and rocket fire and reinforcements threw grenades at the houses ( Omar Khadr). In other words, this was not a planned aggression. It erupted because people on both sides mistrusted each other and both responded inappropriately.

   We will probably never hear the villagers' side of this story or find out whether any other children were killed or injured. Arguments concerning what happened have focused almost exclusively on how to interpret U.S. military reports and policy statements, ignoring the confusion that reigns concerning the actual relationship between the United States and the various warring factions in the Afghan region. Osama bin Laden and other members of Al Qaeda reportedly fled for the Pakistan-Afghanistan border after the attacks of September 11, 2001. Omar's father, Ahmed Sa'id Khadr, is believed to have followed them and he was officially placed on the United States list of terrorists at that time (University of Ottawa, 2008, 7-8). However, former United States President George W. Bush, is also alleged to have been heavily involved with the bin Ladens for several years prior to 9/11(CBC News e. 2003)

   The sharp contrast in the treatment accorded to the bin Ladens' association with the Bush and Khadr families may be attributable to the differentiation of the "Other" used to justify western domination identified by Edward Said (Said, 1978, 1994). North Americans are so...