Human Rights Watch, Wednesday 7 May 2015 

The Canadian court’s release on bail of the former child soldier and Guantanamo detainee Omar Khadr on May 7, 2015, is a significant step toward ending his ordeal, which began almost 13 years ago, Human Rights Watch said today. The Canadian government should rehabilitate Khadr as it is obligated to do under international law.

The United States captured Khadr, a Canadian citizen who is now 28, in a firefight in Afghanistan in 2002 when he was 15. The US mistreated him in Afghanistan and later sent him to Guantanamo, where he was detained in violation of international law, including with respect to his rights as a child. Two years after pleading guilty to crimes before thefundamentally flawed US military commissions in 2010, he was transferred to Canada, which continued his unlawful imprisonment.

“The court’s conditional release of Omar Khadr is a start, but it won’t erase all the abuses he suffered during the nearly 13 years he was locked up,” said Laura Pitter, senior national security counsel at Human Rights Watch. “The Canadian government should make up for its own failings in this case and assist in Khadr’s rehabilitation.”

Khadr was taken into custody during a firefight in which a US soldier was killed and Khadr suffered two bullet wounds to the chest. While detained by US forces in Afghanistan, Khadr was allegedly forced into painful stress positions, threatened with rape, hooded, and confronted with barking dogs. US government witnesses confirmed some of this treatment during pretrial hearings, testifying that Khadr was interrogated while strapped down on a stretcher just 12 hours after sustaining his life-threatening injuries and threatened with rape if he did not cooperate.

In October 2002, Khadr was transferred to the US detention facility at Guantanamo Bay. He told his lawyers that in Guantanamo he was shackled in painful positions and threatened with rendition to Egypt, Syria, and Jordan for torture. He also told them that he was used as a “human mop” after he urinated on the floor during one interrogation session. He did not have access to legal counsel until November 2004, more than two years after he was first detained.

Throughout Khadr’s detention, the US failed to afford him the protections provided to children under international law. Under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which Canada ratified in 2000 and the US ratified in 2002, countries are obligated to recognize the special situation of children who have been recruited or used in armed conflict. The Optional Protocol requires the rehabilitation of former child soldiers within a state party's jurisdiction, mandating the countries to provide “all appropriate assistance for their physical and psychological recovery and their social reintegration.” Yet Khadr was incarcerated with adults, abused during interrogation, and not provided with any educational opportunities.

Khadr pleaded guilty on October 25, 2010, to murder and attempted murder in violation of the laws of war, conspiracy to commit terrorism, providing material support for terrorism, and spying. As part of his plea deal in the military commissions at Guantanamo, he was sentenced to eight years in prison. Khadr later said that he accepted his guilty plea only to get out of Guantanamo.

As part of his guilty plea Khadr had to waive his right to appeal. Since then, however, one of the five charges he pled to in the military commissions, material support for terrorism, has been invalidated and the validity of another, conspiracy, is on appeal. He is currently challenging the validity of his charges in US court, contending, among other things, that the offense with which he was charged – allegedly killing another soldier in battle – is not a violation of the laws of war subject to prosecution by a military commission. The convictions of other former Guantanamo detainees who also waived their right to appeal subsequently were overturned on similar grounds. The US transferred Khadr to Canada in September 2012 to serve out the remainder of his sentence.

Despite fundamental flaws in the US military commissions, the Canadian government recognized Khadr’s conviction. It has continued to oppose his release and on May 5 sought an emergency stay of his release on bail pending his appeal in the US. The US has not opposed Khadr’s release, which stems from a request for bail pending the appeal of his Guantanamo conviction in US court.

Khadr’s lawyer, Denis Edney, and his wife, Patricia, who have two sons close to Khadr’s age, have offered to have Khadr live with their family and to pay for his education. The King’s University in Edmonton has offered to accept Khadr as a student if he wishes to pursue his education.

“When Khadr was repatriated, instead of providing him with the rehabilitation he deserved as a former child soldier, Canada threw him in prison,” Pitter said. “Now, Canada has a chance to try to make things right and provide Khadr with the support he needs to reintegrate into Canadian society.”