Sunday, 7 November 2010

Omar Khadr

Proceedings against Omar Khadr now seem to have ended, with a verdict by a military jury in Guantanamo condemning this ‘child soldier’ to forty years’ imprisonment. This would mean he would finish his sentence at the age of 64 for a ‘crime’ committed at the age of fifteen. Even the prosecutor had only asked for twenty five years. However, unknown to the jury, Khadr, who is Canadian, had made a deal when he pleaded guilty; an agreement to serve only eight years in addition to time already served, and to be returned to Canada after a year to serve the remainder of his sentence. He’ll be back in Canada before Conrad Black!
Khadr was captured by United States forces in Afghanistan in 2002 when he was aged fifteen. His crime was killing an American soldier. I have never understood why it is a crime to kill an American soldier on a foreign battlefield. American soldiers don’t go to jail when they kill Afghans (or Canadians) on the battlefield, even in their own country? Would a United States court have convicted an American soldier for killing Omar Khadr in Afghanistan, instead of the other way around?
The Harper government in Canada refused to demand that Khadr be repatriated. It has been successfully challenged on this before the Federal Court, but has appealed to the Supreme Court of Canada. Other governments with foreign nationals in Guantanamo, like Australia and Britain, have sought and obtained repatriation years ago.
On Friday, the United States legal advisor Harold Koh told the United Nations Human Rights Council that the Guantanamo detention centre would be closed, but that plans to do this were taking longer than expected for a variety of unconvincing reasons. Two years ago Harold spoke in Dublin at a lecture of the Royal Irish Academy where I was the respondent, and he proposed the immediate closing of Guantanamo as a priority for the new Obama administration. He told the Council on Friday that there are still 172 detainees, which is down from 242. In other words, they have reduced the Guantanamo detainee population by not quite 30% in slightly less than two years, at an average of about 3.3 prisoners every month. At that rate, it will take the Americans until about February of 2014 to empty the place, and that’s assuming Sarah Palin isn’t elected in 2012.
If their goal is to reduce the prison population at Guantanamo, there’s no good reason why they couldn’t release Khadr – who has already spent eight years in detention - immediately.
Thanks to John Reynolds.


mihai martoiu ticu said...

==I have never understood why it is a crime to kill an American soldier on a foreign battlefield. American soldiers don’t go to jail when they kill Afghans (or Canadians) on the battlefield==

There is a rule of Customary International Law that Americans can kill whoever they like but whoevertheylike is prohibited from killing Americans.

Unknown said...

Professor Schabas,

For your info the SCoC has already ruled on the appeal. It made clear that Canadian officials contributed to the violation of Khadr's rights to life, liberty and security of the person. Further that Canadian officials obtained evidence from Khadr under "oppressive circumstances" that offend "the most basic Canadian standards about the treatment of detained youth suspects" and that the use of information gained in this manner further breached Khadr's rights.

That being said they set aside the Federal Court's instruction that the Government seek Khadr's repatriation as inappropriate, noting the executive authority and capacity to conduct of diplomatic relations. This is a somewhat mute point with regards to the plea arrangement having been put in place. Though I suspect it may have other implications (e.g., civil litigation). Perhaps it would have other implications in terms of challenging the plea arrangement if Khadr attempted to do so if/when he is returned to Canada?

The SCoC ruling is here:

LG said...

Whats happening now with Khadrs case?