Omar Khadr: War criminal, child soldier… or neither?

 

Previously published on VICE


Frames from Omar Khadr’s interrogation. via Flickr.

Omar Khadr made his first appearance in a Canadian court on Monday. After an 11-year journey from Bagram to Guantánamo to Canada’s Millhaven Institution, the Toronto-born man is now in Edmonton’s federal prison. He was 15 when he was captured and tortured at Bagram. He turned 27 last Thursday.  

If you’re not familiar with the case it goes loosely as follows: When the Americans first arrested Omar in Afghanistan, he was accused of throwing a grenade that killed an American solider. For eight years he maintained his innocence, until he signed a plea deal in 2010 that got him out of Guantanamo. Omar was then convicted of five counts of war crimes for his actions, which were not recognized as such anywhere else in the world including Canada.  

Omar’s case is wildly complex. While the American solider he is accused of killing was certainly killed by a grenade, there is no evidence showing that Omar ever had or threw one. While Omar certainly did confess to these crimes, it was after eight years of torture and given his option to either insist he’s innocent and stay in Gitmo, or confess to the crimes and see a judge in Canada, it certainly sounds like the terms of his confession were problematic at best.

All of this is important to note, especially in light of the recent Hamdan appeal in the US—which refers to the case of Osama Bin Laden’s former driver whose terrorism charges were thrown out—that pointed out war crimes tried by the Commission must be internationally recognized. This verdict may end up being leveraged effectively in the Omar Khadr case.

The Canadian Supreme Court has even ruled that our government violated Omar’s rights, but left the remedy up to the Harper government who of course declined to provide any solution.

Prime Minister Stephen Harper has been making strong statements on the preferred outcome on the day of the trial, in an apparent attempt to influence the court proceedings. Harper has vowed to fight the case “vigorously,” and used almost the same phrasing as that of Steven Blaney, Canada’s Minister of Public Safety.

Omar’s counsel, Dennis Edney, was in court to argue that he should be transferred to a provincialinstitution from a federal institution due to his age when the alleged crimes took place. In a confusing instance of legal doublespeak, the Crown’s prosecutors are arguing that Omar has not really been sentenced to eight years, but rather to five eight-year sentences served at the same time. Associate Chief Justice J.D. Rook has reserved judgment to a currently undetermined future date.

Heather Marsh, a journalist, was at Omar’s trial on Monday and wrote about it for us.


The media swarming Khadr’s lawyer outside of Monday’s hearing.
 Photo by the author.

On Monday, the court was filled with what seemed to be exclusively supporters of Omar Khadr. Many were wearing orange or orange ribbons and I spoke to several of them. There was a high school student who said she was done for the day, students from several different universities skipping class even though they had exams next week, and people of all ages and ethnic groups. After the media were moved to the jury box and people were encouraged to squeeze up, 120 people were in the court room and a live feed was set up for more in an overflow room.

A security guard told Omar’s counsel that Omar would be available to talk to them in a private interview room outside—but Edney insisted it was an open court and Omar could appear. After a brief altercation he was allowed to be present.

Contrary to earlier media reports depicting him as a “giant,” Omar is an average sized man with a soccer player build and a neatly trimmed beard. When he came home last year he wrote to Seger M., an 11-year old supporter, “I play soccer too, but I don’t think I’m as good as you. I usually play defense or goal keeper.” He looks it, although since he came home he has been almost entirely in solitary confinement instead.


The author discussing the insanity of the crown’s arguments with Omar’s former chief prosecutor from Guantanamo.

Omar wrote to me when he was finally transferred back to Canada last fall, “At least we have a proper legal system,” and he told another correspondent this week that this would be his first appearance in “a real court.” He seemed composed and happy throughout the proceedings, smiling frequently at people. Most of the discussion I overheard during the breaks was regarding his appearance and demeanor, not the legal arguments. Omar and the gallery of supporters seemed equally amazed that they were finally meeting after 11 ½ years of hearing about each other.

During the afternoon, a man interrupted proceedings to rip off his shirt and say “Enough! He was 15,” and object to the endless paper shuffling and statute citing. He was escorted out with no acknowledgement from Omar or the rest of the court room. At the end of the day, after the judge had left and as Omar was being led away there was a spontaneous outburst from the room with people waving and calling “Good job, Omar!” and “Stay strong!”

After the hearing Edney met with media outside and told them Omar’s chances of parole would be much greater in a provincial institution as he would have access to the programs and the society he needs to rehabilitate himself. “If he remains in a federal penitentiary, where he doesn’t get any programs, where he spends most of his life locked away, where his life was threatened, he’ll never get out.”


An Omar Khadr protester in 2009. via WikiCommons.

As long as Omar is in federal prison he will probably be in solitary as necessary protection. As he wrote a friend last February about Millhaven, “My new place is different definitely. People are generally nice, but with a lot of bad habits. Life here compels you to live like an animal because it is like a jungle. I have to change a little to defend myself, but not lose my humanity and who I am.”

In order to be eligible for parole, Omar must prove he can thrive among those our society has deemed most unacceptable. During his trial the point was repeatedly made that he could not be released as he had been supposedly “marinated in jihad” as an inmate of Guantanamo and Bagram during his formative years. The catch-22 continues.

Canada famously violated Omar Khadr’s rights by interrogating him for the US when they knew he had been subjected to three weeks of severe sleep deprivation torture and other ‘softening up techniques’ prior to questioning. They also refused for eight years to provide even a pair of glasses to preserve the vision remaining in his one good eye or to provide any education for him to rehabilitate himself. After receiving no formal education past elementary school, he recently passed Ontario’s Grade 10 high school equivalency exams with more than 90 percent in all subjects, English, math, history, geography and science.

Solitary confinement is widely recognized as torture, and many years of studies have shown the permanent damage that can result. After over 11 years of almost entirely solitary, Omar appears to be one of the exceptions. He can even find benefit in the deprivation of experience, education and companionship. In April he wrote to Aaf Post in the Netherlands, “Usually we don’t appreciate the small things. We take them for granted. Once you lose these things like opening your window in the morning and taking a breath of fresh air or seeing a bird chirping, you really appreciate these things. Even though I’m in prison there are still a lot of small beautiful things around us. Seeing the sun rise or set or to see the snow fall.”

“Being back in Canada is, as you said, a wonderful thing. As big or difficult as change may be, it’s worth it. There are too many good things in this life (as hard as it might be) to worry or even care about the bad things. Things are what we make out of them. Prison can be a deprivation of freedom, or a time to enlighten ourselves. For me it is the latter.”

 

The author would like to thank the Free Omar Khadr group for research assistance. 

Follow Heather on Twitter: @GeorgieBC

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