Mr. Howard Anglin (Lawyer, As an Individual):
Thank you, Mr. Chairman.
Ladies and gentlemen, I am grateful for the opportunity to appear before you today.
As I believe I'm the first witness who is not recommending that Canada repatriate Mr. Khadr, and the only witness testifying this hour, I hope you'll indulge me if I take some time to briefly lay out my position.
First, I want to make it clear that I do not presume to tell Canada what action to take, nor do I carry a brief for the United States government, with whose policies I frequently disagree. International law imposes no binding legal obligations on Canada in this case. I'm here only to clarify some of the factors that I believe the Canadian government should consider in formulating its policy.
I will make three primary points today. First, contrary to the claims of some of the earlier witnesses, the prosecution of Mr. Khadr is neither unprecedented nor contrary to international law. Second, I will examine the actual text of the applicable law to correct what has hitherto been an extremely shoddy presentation of that law by previous witnesses. The third point I will make is that U.S. policy, far from being lawless or in violation of international law, more than satisfies the minimum requirements of due process set out in the Geneva conventions.
On the first point, as Mr. Khadr's own lawyer, Lieutenant Commander Kuebler, has stated, there is nothing in the optional protocol, customary international law, U.S. federal law, or Canadian law that bars the prosecution of a juvenile for war crimes. Mr. Lorne Waldman of the Canadian Bar Association confirmed Lieutenant Commander Kuebler's position in his testimony before this committee when he said:
|| In terms of the question with respect to the child soldier, it's not our intent to say that it would be a violation of the convention...there's no specific provision that precludes prosecution.
That point is worth repeating. There is nothing in international law, Canadian law, or U.S. domestic law that prohibits the prosecution of Mr. Khadr by the United States.
Professor Crane, a previous witness, agreed with this assessment. The furthest he went was to venture that in his opinion, no child under the age of 15 can commit a war crime. Professor Crane's age cutoff does not help Mr. Khadr.
Professor Crane was admirably candid when he acknowledged no bar to the prosecution of a soldier as young as 15 under international law. Although he testified that he declined to prosecute any soldiers under the age of 15 when he had the choice, that was a matter of prosecutorial discretion. He was clear, however, that the United Nations mandate under which he operated permitted him to prosecute soldiers under the age of 18 for war crimes. If the United Nations explicitly permits the prosecution of soldiers under the age of 18, it is absurd to claim that doing so violates international law.
For my second point I would like to focus on the applicable international law itself; not the law as many previous witnesses appeared to wish it were written, but the law as it's actually written.
Contrary to the testimony you have heard, there is good precedent for prosecuting soldiers under the age of 18 for war crimes. I can provide specific examples if the committee likes. Nor does international law say that those between the ages of 15 and 18 can never be soldiers. General Dallaire testified that the optional protocol concerning the involvement of children in armed conflict is the “only binding international instrument that concerns child soldiers”. So let us look at what the optional protocol actually says.
Article 1 in its entirety says:
||States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.
There are two key terms employed here that I would like to focus on. The first is the phrase “take all feasible measures”. This is emphatically not an absolute bar to the use of soldiers under the age of 18. The phrase has an established meaning under international law that pre-dates the optional protocol. It means:
||those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.
This is the definition of “all feasible measures” that Canada used in its adoption of protocol 1 to the Geneva conventions.
The International Committee of the Red Cross acknowledged this meaning in its working group notes during the negotiation of the United Nations Convention on the Rights of the Child. The Red Cross wrote:
||In other words, the text which was finally approved means that voluntary participation by children is not totally prohibited.
This meaning was also reflected in the position statements of various nations when they ratified the optional protocol. For example, the United Kingdom expressly reserved the right to use soldiers under the age of 18 when there was a genuine military need.
The second key term in article 1 of the optional protocol on child soldiers is the word “direct”, as used in the phrase “take a direct part in hostilities”. Contrary to General Dallaire's claim, the use of “direct” means there's no prohibition concerning forward deployment of soldiers younger than 18 in non-combat roles.
Again, as the Red Cross explained in its working group notes:
||...the Working Group could have strengthened protection by removing the word “direct”. The ICRC suggested this too during the Diplomatic Conference but the proposal was not approved. This being the case, it can reasonably be inferred...that indirect participation, for example gathering and transmitting military information, transporting weapons, munitions and other supplies is not affected by the provision.
Finally, article 3 of the optional protocol lays out the conditions for voluntary recruitment of soldiers between the ages of 15 and 18. The first condition is that the recruitment be genuinely voluntary. So the idea that a soldier under the age of 18 can never really be a soldier, and to claim that a 15-year-old is not capable of genuinely consenting to serve, are directly refuted by the text of the only applicable international instrument, in the words of General Dallaire.
When Lieutenant Commander Kuebler says that “children are never soldiers; they are children”, or General Dallaire says that “no one is allowed to use young people under the age of 18 in any way whatsoever”, their opinions are flatly contradicted by the official position of the United Kingdom, the UN Security Council, and the text of both the Convention on the Rights of the Child and the optional protocol on the involvement of children in armed conflict.
Turning to my final point, almost every witness so far has been eager to denounce the United States policy as illegal or in violation of international law. But I have yet to see any convincing evidence that it is so. Assertions and claims are not arguments.
It may come as a surprise to many Canadians who have not spent significant time in the American legal system--and this is a very important point--that the United States does not do show trials. The combatant status review tribunals and the military commissions are modelled on procedures that would satisfy the U.S. Constitution for the treatment of its own citizens. A fortiori they are adequate for members of al-Qaeda.
The error committed by most critics of the combatant status review tribunals and military commissions is that they will accept nothing less than the full protections of a civilian criminal court, even for unlawful combatants captured on the battlefield, and they denounce anything short of those protections as lawless. But theirs is a specious comparison, not only because such protections would be impractical for dealing with accused terrorists, and not only because battlefield detainees have never been accorded such expansive rights, but also because that is not what international law requires. For unlawful belligerents such as Mr. Khadr, the Geneva conventions require only the minimum or indispensable protections of due process. Those requirements are, as one would expect, much more limited than we require in a civilian court.
So what is the evidence that the process in place violates the minimum standards of due process under the Geneva conventions? It can't be the use of hearsay testimony. That's a common practice in war-time prosecutions, even of a nation's own soldiers. Indeed, it's a virtual necessity given the circumstances under which battlefield arrests take place. Many witnesses are dead, there's no forensic detective squad to document the scene, and most of the surviving witnesses are serving overseas at the time of trial. For all these reasons, military commissions throughout history have not applied the same evidentiary standards we demand of a civilian criminal trial. If they were required to do so, it would be virtually impossible to ever try detainees.
Nor can it be the withholding of sensitive information that makes the tribunals somehow unlawful, because again it's impossible to conceive of a process that permits full disclosure of classified information to the enemy. The Canadian Supreme Court's recent decision to permit a limited release of information relating to the interrogation of Mr. Khadr accepted this limitation.
The folly of a contrary system was demonstrated in the trial of Sheikh Omar Abdel-Rahman, the mastermind of the first World Trade Center bombing. In that case, brought under the regular U.S. criminal system, the prosecution was forced to turn over to the defence a list of people whom the U.S. government thought were involved in the bomb plot but had insufficient evidence to charge. Within weeks of the disclosure of this list, it was in the hands of Osama bin Laden.
Nor can there be any objection to the limited right of review by a civilian court. First, every country that recognizes a right to habeas corpus--and many western civilized countries do not--also recognizes that it can be suspended. Even the Canadian charter permits the suspension of habeas corpus, as does the U.S. Constitution. And most countries that allow habeas corpus to be suspended have actually done so.
Prime Minister William Pitt, “the younger”, suspended habeas corpus for seven years. Abraham Lincoln suspended habeas corpus during the American Civil War. And Prime Minister Trudeau suspended habeas corpus during the October Crisis in 1970. Indeed, Trudeau sent tanks into the streets of Montreal and rounded up hundreds of Canadian citizens and detained them without charge for weeks over the kidnapping of two persons and the death of one. We can only be thankful that the full devastation of 9/11 did not take place on Trudeau's watch. If habeas corpus can be suspended for suspected sympathizers of the FLQ, there can be no objection to suspending it for members of al-Qaeda and similar terrorist groups.
Besides which, the United States has not completely abolished the right to legal review. Detainees have a right of appeal first to the U.S. Court of Appeals for the District of Columbia, which is a civilian court, and thence to the Supreme Court itself. Moreover, whether detainees at Guantanamo Bay have a full constitutional right to habeas corpus is still an open question before the U.S. Supreme Court that will be decided next month.
Most observers expect the court to require some form of habeas review. If it does grant such a right, if the court does say that detainees at Guantanamo Bay are entitled to some form of habeas review, the United States will confer rights on enemy combatants that are unprecedented in the history of warfare.
So at best, it's premature to object to a U.S. policy based on the lack of a right to habeas corpus. At a minimum, Canada should await the decision of the U.S. Supreme Court in Boumediene v. Bush next month before formulating any policies.
A previous witness, Ms. Hilary Holmes from Amnesty International, objected to the indefinite nature of detainment at Guantanamo Bay and offered that as a compelling reason to press for Mr. Khadr's release. But even if Mr. Khadr were a lawful combatant, he could still be detained under the Geneva convention, at least as long as there is active combat in Afghanistan.
No one alleges that Mr. Khadr and his ilk are lawful combatants entitled to prisoner of war status. It is therefore illogical to expect them to be accorded protections greater than those that would be accorded to prisoners of war.
In any case, the CSRTs and the military commissions at Guantanamo Bay actually exceed the requirements of an article 5 tribunal under the Geneva convention. I'd be happy to expand on this point, with specific examples if the committee is interested.
Were Mr. Khadr being held by China or Saudi Arabia or Indonesia, the Canadian government would be rightly concerned about whether the minimum requirements of due process were being met, but he is not. The terms of his detention and trial are being supervised by all three branches of the United States government, which are constantly refining their procedures to reach the optimal balance between the rights of the accused and the requirements of national and international security. There is probably no country in the history of this world more committed to the preservation of individual liberty than the United States of America.
I hear sniggers on that point and I can address them; I can address them.
No fewer than four appeals by detainees have reached the Supreme Court, resulting in significant changes to the detainment regime already. This is how a civilized country, committed to the rule of law, operates. Everyone agrees that the detention of a fanatical and zealous enemy desirous of martyrdom imposes a new challenge for traditional and often anachronistic military and legal procedures. The United States has risen to that challenge, perhaps more slowly and hesitantly than most of us would like, but it indisputably has done so.
The rule of law that must reconcile many compelling and competing interests is not always neat and tidy. The compromises of our domestic legal system were worked out over centuries. It should not be surprising that the United States has taken several years to develop a reasonable and workable process, but the system now in place is working, it satisfies the minimum requirements of the Geneva conventions, and exceeds them in many regards, and there is no legal obligation for Canada to interfere with it.
I am happy to take questions on any of these matters or any other questions or sniggers that members of the committee might have.
Mr. Howard Anglin:
Thank you very much, Ms. Barbot.
Of course, I'm responding to the translation and not directly to your comments, so please forgive me if I have misunderstood anything.
First, you said something early on about us questioning whether he's a Canadian citizen. I certainly don't question that. That's a matter for Canada to decide.
Secondly, you mentioned at one point that I was speaking on behalf of the U.S. I don't know if that was just a translation issue. I do not speak on behalf of the United States. I speak as somebody who has studied U.S. policy and international law, and I speak, actually, as a loyal subject and a Canadian citizen.
Regarding your two primary questions--one, on the treatment of a child, and two, on why Canada can't bring him back...Canada can bring him back. I'm not here to say that Canada shouldn't bring him back; I am saying there is no legal obligation for Canada to bring him back. Canada needs to make a decision, in an exercise of its diplomatic sovereignty, on whether or not to bring him back. That's for Canada to decide. I'm just here to clarify some issues of international law and some misrepresentations as to the U.S. policy that I've heard in previous testimony.
The other question was whether he is being treated according to the Convention on the Rights of the Child. The Convention on the Rights of the Child, of course, allows for the use of soldiers in combat as of the age of 15. So if it presupposes the use of soldiers at the age of 15 in the Convention on the Rights of the Child, I don't think it's inconsistent, then, to treat those soldiers as soldiers when they are detained.
Secondly, you've heard testimony that the United States has had quite a number of people at Guantanamo Bay between the ages of 15 and 18, and that they've actually segregated most, if not all, other than Mr. Khadr, and treated them differently, consistent with the precatory and hortatory provisions of the optional protocol. I wouldn't say they're binding legal obligations.
The fact that the U.S. has actually treated Omar Khadr differently is reflective of a process whereby the United States has looked at each of the child soldiers before it and made a determination as to the best way of treating each soldier. Every other soldier is being treated in a separate detainment facility. They're all at Camp Iguana. Mr. Khadr is not. Clearly, there was a reason for that.
The Canadian civil justice system, like the U.S. civil justice system, provides for the opportunity to treat juveniles as adults under certain circumstances. I don't see why it would be any different in the military context. It appears the U.S. has decided to do that with respect to Mr. Khadr. If the Canadian government wants to object to that and bring him home, that's absolutely within the power of the Canadian government to do. And I would not object to it doing that. I don't presume to dictate Canadian policy.
Mr. Wayne Marston (Hamilton East—Stoney Creek, NDP):
Actually, I'm very pleased with your last comment, that you wouldn't object to this young man being brought back to Canada to face court here. Nobody is suggesting that he should be brought back and turned loose on the streets.
In your initial comments, you referenced the War Measures Act in Canada, as if somehow that was something totally acceptable to Canadians. Well, our party, the NDP, with Tommy Douglas leading the way, opposed the War Measures Act. We believed that to be a horrendous violation of the rights of Canadians. I just wanted to put that on the record.
You said another thing, and I'm not going to debate you on the legal aspects of this, because I'm certainly not qualified to do that. But I have been listening to your comments, and it struck me as interesting that you made the comment that Mr. Khadr is not a gentleman. I'd like to know when you met Mr. Khadr or if you have had any education in psychology that puts you in a position to make that evaluation on a person you haven't met.
You talked about how the Americans have handled him, keeping him separate from the other young people in Camp Iguana, and that there must be a good reason for that. Well, I think you're giving them the benefit of the doubt down in the U.S., because this strikes most of us as being a case of the United States using this individual almost as it would use a hardened battle campaigner for al-Qaeda, rather than as it would use a 15-year-old boy.
You will certainly disagree with my view that he was a 14-year-old boy, a dutiful son following his father who took him to this place, but the real crux of what we need to know here.... I want to interrupt myself.
You mentioned about Canada interfering in the U.S. I disagree with you that our government, standing up for any citizen to ensure that citizen has due process, habeas corpus, and the rights they should have under Canadian law, is interfering with another state. If you have a positive relationship with that other state, as we do with Australia and Britain, you have your person repatriated to Canada so they can stand before the court--
Mr. Howard Anglin:
I'd be very happy to do so.
This is some background context. At the end of World War II, there were approximately 2 million combatants detained by the United States around the world, more than 400,000 on U.S. soil--not in Guantanamo Bay, not in Cuba, but on U.S. soil. It never occurred to anybody that any of these detainees had a right to habeas corpus, and no one claimed that this violated international law.
By contrast, the process in place for detainees at Guantanamo Bay—excuse me, if I refer to some notes, it's quite intricate—is this. Each detainee's enemy combatant determination is based on a specific record unique to its case.
After the initial assessment determination is made, that decision is subject to two mandatory levels of review, first by a legal adviser to the CSRT and then by the director of the CSRT. This process alone has led to the determination that 38 now-released detainees were not enemy combatants. Kangaroo courts don't release; they accuse.
In addition to the CSRT review process, the Department of Defense conducts an annual administrative examination of whether it's appropriate to release or repatriate each enemy combatant. Since 2002, about 390 detainees, or more than half of all detainees, have been transferred or released through this process.
Beyond the CSRT and military commissions, detainees have a right of appeal, first to the U.S. Court of Appeals for the D.C. circuit, a civilian court, and then to the Supreme Court.
In response to the earlier point, this is a stage at which any accusations of torture can be addressed by a civilian court, and by a very responsible civilian court, probably the highest court in the United States and probably the second-most important court in the United States.
Throughout the military...Khadr will by represented by competent and committed counsel who will pursue seriously....
In terms of how they meet or exceed international norms--it's like on the Geneva conventions--the CSRTs contain express qualifications for the judges to ensure the tribunal's independence. This is more than we gave the accused at Nuremberg. There are no comparable qualifications for an article 5 tribunal. They provide the detainee with a personal representative at the CSRT level and a military lawyer at the military commissions level. The first is not required by an article 5 tribunal; the second meets the requirements of the Geneva convention.
The recorder of the process is obligated to provide a tribunal with evidence to suggest that the detainee should not be designated as an enemy combatant--a devil's advocate, if you will. There's no such requirement under the Geneva conventions.
The detainee is provided with an unclassified summary of the evidence supporting his detention in advance of the hearing. He's presented an opportunity to testify. There's no such requirement for an article 5 tribunal.
They allow the detainee to introduce relevant documentary evidence. Article 5 tribunals provide no analogous guarantee.
Every decision is automatically reviewed by a higher authority. There's no right to an appeal under the Geneva conventions.
Briefly, without laying out the full procedures as they're enacted in statutory law, those are the key points on which the trials meet or exceed the requirements of international law.
Mr. Naresh Raghubeer (Executive Director, Canadian Coalition for Democracies):
Good afternoon. On behalf of the Canadian Coalition for Democracies, I'd like to thank the Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development for inviting me to testify.
Founded in 2003, the Canadian Coalition for Democracy--CCD for short--is a national, non-partisan, multi-ethnic, multi-religious organization of concerned Canadians dedicated to promoting democracy at home and abroad and to defending civil liberties and national security. CCD focuses on research, education, and media outreach to build a greater understanding of the importance of national security and a pro-democracy foreign policy.
CCD is concerned about Mr. Omar Khadr and the challenges his case poses for Canada as a nation that respects human rights, international law, and due process. Before presenting our concerns, CCD wishes to make clear that, first, we support Mr. Khadr's right to Canadian consular access, and second, we believe the Canadian government has an obligation to make direct representation to the U.S. government, a close ally and major trading partner, to ensure that Mr. Khadr enjoys the full benefit of a constitutional U.S. regime of law and procedure.
I will touch on three areas arising from the Khadr case during my presentation: the jurisdictional struggle over Mr. Khadr, the Khadr family, and the issue of Canadian citizenship jurisdiction.
CCD is concerned about the potential precedence arising from jurisdictional questions concerning charges that Mr. Khadr “conspired with members of Al Qaeda to commit acts of murder and terrorism against U.S. and coalition forces”.
Generally available facts and testimony heard by this committee attest to the extent of an unfolding jurisdictional struggle over Mr. Khadr. Which nation has the right and responsibility to bring him to trial? Three national jurisdictions come to mind: Afghanistan, the United States of America, and Canada.
Mr. Khadr, a Canadian citizen, is alleged to have committed serious crimes in Afghanistan. All else held equal, Afghanistan might therefore have claimed jurisdiction for the homicide and wounding cases. The United States of America was another possible jurisdiction, counting two of its citizens, one injured and one dead, and both U.S. armed service members, victims in the fray: Sergeant Layne Morris and medic Sergeant 1st Class Christopher James Speer.
The third state with any particular jurisdiction over Mr. Khadr is Canada, where he happens to be a citizen. Mr. Khadr was not charged in Afghanistan for the crimes allegedly committed there. Rather, it was the United States that asserted jurisdiction to charge and bring Mr. Khadr to trial before a U.S. court. In its recent decision, the Supreme Court of Canada recognized constitutional and other shortcomings highlighted by the U.S. Supreme Court and the latter's criticism of military tribunal arrangements respecting Mr. Khadr. However, there is some indication that this tribunal regime has since been revised to take account of U.S. international legal issues. In any case, the Supreme Court of Canada was perhaps more realistic when, in last week's Canada v. Khadr decision, the full bench conceded that, “The ultimate process against Mr. Khadr may be beyond Canada's jurisdiction and control”.
Considering the Supreme Court of Canada's decision, CCD believes that Parliament must allow process to take place, as long as Mr. Khadr is granted the full measure of the benefit of U.S. constitutional legal protection.
With regard to the Khadr family, CCD is concerned about the possible legal and other responsibilities of certain members of Mr. Khadr's immediate family, for one or more of these members have reportedly jeopardized Mr. Khadr's and others' safety by radicalizing and inciting him to idealize shahid status--martyr status. They then delivered him as a child into the control of the most virulent of the world's jihadists or holy warriors. CCD believes it is incumbent on Parliament and the Minister of Justice to review the role played by members of the Khadr family in exposing Omar Khadr, a child, while still in Afghanistan, to what might be considered hate, jihadist incitement, and weapons used for no other purpose than killing. Indeed, to what extent did this priming for hatred occur in homes and institutions of our own country?
According to testimony before this subcommittee, Mr. Khadr's defence counsel, Lieutenant-Commander William Kuebler, expressed his “condemnation of Maha and Zaynab Khadr” and noted that “it would be appropriate for the U.S. government not to want to repatriate him in such a way that he will fall in line with them and other influences in his immediate family”. Such statements call on us to ask why this subcommittee on human rights, the Minister of Justice, and even the Ontario Ministry of Children and Youth Services are not investigating the Khadr family's possible role in leading Omar Khadr down the path to martyrdom.
Canadians need to know if there was negligence or something worse on the part of Maha Khadr and need to show others that the family law presumption of “the best interests of the child” does not contemplate hatred and killing. Moreover, Canadians deserve to fully understand the role played by the Khadr family in promoting jihad and martyrdom to children who are Canadian citizens. Were members of the Khadr family party to Omar Khadr's alleged offences? Again, this should be investigated.
If indeed Mr. Omar Khadr was coaxed or manipulated into becoming a jihadist, those responsible should be brought to justice in Canada as soon as possible. Failure to enforce our laws would establish a dangerous precedent and embolden extremist parents to use Canada as a hate haven in which to groom Canadian children for jihadi Islamist activity against unsuspecting Canadian neighbours and foreigners.
Next, allow me to touch briefly on the subject of Canadian citizenship. CCD is also concerned about Parliament's relative inattention to the need for clear thinking and serious study about the rights and duties of citizens and government in matters of Canadian citizenship. CCD urges members of this subcommittee and Parliament as a whole to undertake a comprehensive public review of the rights and responsibilities of Canadian citizenship, and of dual citizenship, in this new era of global travel, tourism, tribal regional conflicts, and wars carried out by non-state actors like Hezbollah, Hamas, and al-Qaeda.
As part of this study, CCD urges Parliament to seriously consider Canada's obligation or support for dual-citizenship and other Canadians who serve without Canadian authorization in foreign militias and armed forces such as the Israel Defense Forces, the Islamic Courts Union in Somalia, the Taliban, or the U.S. armed services. Is service in foreign armies--or in foreign governments, for that matter--really compatible with the kind of assurance of loyalty that Canada and Canadians deserve? Parliament must consider whether it wishes to continue permitting any and all Canadians, regardless of country of origin, to maintain dual nationality.
We have seen in the case of Syria and Mr. Maher Arar how certain countries refuse to respect Canadian citizenship. By studying and reviewing the issue of citizenship and the government's proper role in attendant matters, Parliament can begin an important dialogue. Parliamentarians can clarify what it truly means to be a Canadian, what limits and expectations apply to citizens at home and abroad, and the nature of any boundaries beyond which Canada's capacity to assist nationals abroad might be circumscribed. This is a fundamental matter of sovereignty, and as elements of the Khadr case suggest, this conversation has been a long time coming.