United States of America v. Omar Ahmed Khadr
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||Military Commission, United States
||31 October 2010
- United States of America
- Omar Ahmed Khadr, a.k.a. Akhbar Famad, a.k.a. Akhbar Farnad, a.k.a. Ahmed Muhammed Khahi
- Akhbar Farhad
- Ahmed Muhammed Khali
- Akhbar Famad
||Conspiracy, Terrorism, War crimes
||murder, child, child soldier, conspiracy, material support, Terrorism
|Other countries involved
Omar Khadr, a Canadian citizen, was 15 years old when he was captured and seriously injured in a firefight in Afghanistan on 27 July 2002. The US accused Khadr of throwing a grenade that killed US Army Sergeant First Class Christopher Speer and injured two others. He was charged with murder and attempted murder, conspiracy to commit terrorism, providing support for terrorism, and spying.
On 25 October 2010, Khadr pleaded guilty to murder and attempted murder in violation of the laws of war, conspiracy to commit terrorism, providing support for terrorism, and spying, and was sentenced to eight years of imprisonment.
In spite of Khadr's young age at the time of his capture, the United States imprisoned him together with adults.
Khadr was the first person since World War II to be prosecuted in a military commission for war crimes committed while still a minor. His conviction and sentence were widely denounced by civil rights groups and various newspaper editorials. He has been frequently referred to as a child soldier.
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The Canadian citizen, Omar Ahmed Khadr (1986), was captured in July 2002 in Afghanistan when he was 15 years old and was transferred to Guantanamo Bay in November 2002. The Combatant Status Review Tribunal (CSRT) concluded on 8 September 2004 that Khadr was an “enemy combatant”.
US Military Commissions
On 7 November 2005, Khadr was charged with conspiracy, murder, attempted murder and aiding the enemy. He was to be tried by the Military Commission, but it was later abolished after the Supreme Court ruled that military tribunals were unlawful.
On 2 February 2007, new charges were sworn against Khadr, namely murder, attempted murder, conspiracy, providing material support for terrorism and spying. Khadr petitioned the U.S. Supreme Court to review the legality of the Military Commission and his detention, but his request was denied on 24 April 2007.
On 4 June 2007, all charges against Khadr were dismissed because Khadr was not classified as an “unlawful enemy combatant”. The Military Commissions Act of 2006 says that military commissions do not have jurisdiction over those classified as “lawful combatants”. This decision was finally overturned and on 9 September 2007, charges were reinstated against Khadr.
On 8 March 2010, Khadr sought an order declaring inadmissible into evidence all statements pursuant to § 948r of the Military Commissions Act of 2009 and Military Commissions Rules of Evidence 304 because they were the product of torture, involuntary, unreliable.
On 17 August 2010, the US Supreme Court refused the petition for writ of mandamus filed on 2 August 2010 and rejected claims of torture to obtain a confession. The heavily-criticized military court trial against Khadr began on 10 August 2010.
However, on 14 October 2010, proceedings were suspended as the parties began negotiations on a plea agreement, which was made on 13 October 2010. On 31 October 2010, the details of the agreement and sentence were released, with Khadr admitting his guilt and receiving a sentence of 40 years' imprisonment. Under the terms of the agreement, Khadr was to serve a maximum of 8 years.
On 15 April 2008, following a petition filed by Khadr, the US Court of Appeals, Columbia, declined to review his combatant status. In addition, on 30 April 2008, a motion to dismiss the case due to child soldier status was rejected. Further denial was declared by the US Columbia District Court on the request to have the trial stopped.
On 13 October 2010, a Stipulation of Facts was agreed upon by the Prosecution and the Defence.
The proceedings before the Canadian Courts relates to the request by Khadr's lawyers to have access to certain documents that Canada allegedly provided to US authorities, along with videotapes of Khadr's interrogations at Guantanamo Bay.
On 23 May 2008, the Supreme Court of Canada ruled that Omar Khadr has a constitutional right to see confidential documents, but that the government could withhold some information for national security purposes.
Furthermore, on 23 April 2009, the Federal Court ruled to order Canada to seek Khadr's repatriation from Guantanamo Bay, but the Supreme Court overturned this decision on 29 January 2010. The Supreme Court also unanimously found that Canada had breached Khadr's rights under the Canadian Charter of Rights and Freedoms.
On 5 July 2010, the Canadian Federal Court gave the Canadian government seven days to remedy its breach of Khadr's rights, having so far failed to ameliorate the breaches of the Charter. On 27 July 2010, the Federal Court of Appeal ruled that the lower court lacked the authority to impose a remedy and the decision had interfered with matters solely the domain of the government.
In April 2012, Omar Khadr, still detained at Guantanamo, sent an application to the Canadian government requesting a transfer to his home state. On 29 September 2012, Omar Khadr was transfered to Canada where he will serve the rest of his eight-year sentence.
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Omar Khadr was repatriated to Canada on September 29, 2012, where he will serve the remainder of his sentence. He was incarcerated at maximum-security prison Millhaven Institution near Bath, Kingston, Ontario upon his arrival.He would be eligible for parole in mid-2013.
Khadr was classified as a prisoner who should be held in maximum security, due to his murder conviction.This has delayed his application for parole, as prisoners in maximum security are never given parole.
On 14 March 2013, Colin Perkel of the Canadian Press, reported that Corrections Canada was refusing to let journalists interview Khadr. Corrections Canada justified its refusal by asserting an interview could interfere with Khadr's treatment plan, could pose a security risk, or could be disruptive.
On 28 May 2013, Khadr was transferred to maximum security prison Edmonton Institution in Edmonton, Alberta, Canada.
On 13 August 2013, Dennis Edney filed a brief arguing that under Canada's International Transfer of Offenders Act, it was not legal to hold Khadr in an adult institution, since the crime he pled guilty to occurred when he was a minor.
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Legally relevant facts
Omar Khadr was 15 years old when he was captured.
In the pre-trial agreement, Khadr admitted to throwing a grenade that killed Army Sgt. 1st Class Christopher Speer after a firefight between Khadr and his associates and coalition forces. Khadr also admitted that prior to and during the firefight, he had the opportunity to safely leave but chose to stay and fight against the American and coalition forces. He admitted building and planting ten landmines, intending to kill as many Americans as possible.
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Core legal questions
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- Was Omar Khadr guilty of murder and attempted murder in violation of the laws of war, conspiracy to commit terrorism, providing support for terrorism, and spying?
Court's holding and analysis
As part of a plea agreement, Omar Khadr admitted guilt with respect to five war crimes charges, in particular murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, providing material support for terrorism, and spying. He acknowledged that he was ineligible for protection as a prisoner of war under the Geneva conventions because he was not a member of an organised regular fighting force.
Khadr admitted to throwing a grenade that killed Army Sgt. 1st Class Christopher Speer after a firefight between Khadr and his associates and coalition forces. Khadr admitted that prior to and during the firefight, he had the opportunity to safely leave but chose to stay and fight against the American and coalition forces. He admitted building and planting ten landmines, intending to kill as many Americans as possible. A US military tribunal sentenced Khadr to 40 years in prison for war crimes but a pre-trial agreement concluded between the Prosecution and the Defence limited the actual sentence to eight years.
Under the rules provided by the Manual for Military Commissions, Khadr will not receive credit for the time (more than eight years) that he spent in law of war detention before his conviction. Khadr’s sentence was limited by the terms of his plea agreement to eight years confinement, but he received the benefit of whichever is less - the adjudged sentence or the eight-year sentence limitation. Consistent with the terms of Khadr's plea agreement, the governments of Canada and the United States exchanged notes reflecting that both would support Khadr's transfer to Canadian custody to serve the remainder of his approved sentence after he serves one year in U.S. custody.
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- T. Navaneelan & K. Oja, ‘The United States v. Omar Khadr- Pre-Trial Observation Report’, International Human Rights Program (IHRP) of the University of Toronto, 22 October 2008;
- J. Williamson, Omar Khadr, Oh Canada, Canada: McGill-Queen's Press 2012;
- M. Shephard, Guantanamo's Child: The Untold Story of Omar Khadr, Mississauga: John Wiley & Sons 2008;
- E. Levant, The Enemy Within: Terror, Lies, and the Whitewashing of Omar Khadr, Random House LLC 2012;
- Books Llc, Canadian Extrajudicial Prisoners of the United States: Omar Khadr, Maher Arar, Abdurahman Khadr, Mohammed Warsame, General Books LLC 2010;
- C.L. Dore, ‘What to Do with Omar Khadr - Putting a Child Soldier on Trial: Questions of International Law, Juvenile Justice, and Moral Culpability’, John Marshall Law Review, 2007-2008, vol. 41(4), pp. 1281- 1321;
- K. Roach, ‘“The Supreme Court at the Bar of Politics”:The Afghan Detainee and Omar Khadr Cases’, National Journal Of Constitutional Law, 2010, vol. 28, pp. 115-155;
- R.J. Wilson, ‘Military Commissions in Guantánamo Bay: Giving 'Full and Fair Trial' a Bad Name’, Gonzaga Journal of International Law, 2007, vol. 10, pp. 63-69;
- K.A. Huskey, ‘Guantanamo and Beyond: Reflections on the Past, Present, and Future of Preventive Detention’, University of New Hampshire Law Review, 2010, vol. 9, pp. 183-198;
- A. Macklin, ‘Comment on Canada (Prime Minister) v. Khadr (2010)’, Supreme Court Law Review, 2010, vol. 51, pp. 295- 331;
- D.K. Vallentgoed, ‘Welcome Back Khadr: Re-Examining Extraterritorial Applicability of the Charter after the Omar Khadr Decisions and Amnesty International v. the Canadian Forces’, Canadian Bar Association Military Law Section, 2011, pp. 1-20.
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- ‘Gitmo's Youngest and Last Western Detainee Returned to Canada’, World News, 29 September 2012;
- ‘Omar Khadr Held Illegally in Federal Prison, Lawyer Argues 8-Year Sentence Called Unlawful’, CBC News, 13 August 2013;
- S. Mas, ‘Omar Khadr Will Appeal War Crimes Convictions, Lawyer Says’, CBC News, 27 April 2013;
- M. Shephard, ‘Omar Khadr Repatriated to Canada’, The Star, 29 September 2012;
- ‘Omar Khadr Leaves Guantánamo to Return to Canada’, The Guardian, 29 September 2012;
- Office of the Assistant Secretary of Defense, ‘Detainee Transfer Announced’, US Department of Defense, 29 September 2012;
- Office of the Assistant Secretary of Defense, ‘DOD Announces Sentence for Detainee Omar Khadr’, US Department of Defense, 31 October 2010;
- Office of the Assistant Secretary of Defense, ‘Details of Omar Khadr Plea Agreement Released’, US Department of Defense, 31 October 2010;
- Radhika Coomaraswamy, ‘Statement of Srsg Ms. Radhika Coomaraswamy on the Occasion of the Trial of Omar Khadr before the Guantanamo Military Commision’, Special Representative of the UN Secretary-General for Children and Armed Conflict, 10 August 2010;
- Justice Minister Rob Nicholson, ‘Statement by Justice Minister Rob Nicholson Regarding the Government of Canada's Appeal of the Federal Court's Khadr Decision’, Department of Justice of Canada, 12 July 2010;
- Office of the Assistant Secretary of Defense, ‘Military Commission Charges Referred’, US Department of Defense, 24 April 2007;
- C. Savage, ‘Deal Averts Trial in Disputed Guantánamo Case’, The New York Times, 25 October 2010;
- D. Mehta, ‘Omar Khadr to Appeal Terrorism Convictions’, The Star, 27 April 2013;
- ‘Key Events in the Omar Khadr Case’, CBC News, 30 September 2012;
- P. Koring, ‘Canadian Omar Khadr to Appeal Terrorism Convictions’, The Globe and Mail, 27 April 2013;
- C. Perkel, ‘Omar Khadr: U.S. Court Ruling Casts Doubts On War Crimes Convictions ‘, The Canadian Press, 17 October 2012;
- ‘Omar Ahmed Khadr’, Human Rights Watch, 25 October 2012;
- J. Becker, ‘ What Can Khadr’s Jury Tell Us About Guantanamo Justice?’, Huffington Post, 13 August 2010;
- S. Kingston, ‘Canadian Militant Pleads Guilty at Guantanamo tribunal’, BBC, 25 October 2010.
Social media links
- A.J. Prasow, ‘Khadr's Plea Agreement and Sentencing: Questions Never to be Answered’, Jurist, 5 November 2010;
- P. Snyder, ‘Former Guantanamo detainee Khadr to appeal terrorism conviction’, Jurist, 29 April 2013;
- K.J. Heller, ‘The Non-Existent “Murder in Violation of the Law of War” — Redux’, Opinio Juris, 26 May 2010;
- K.J. Heller, ‘Khadr Admitted to Being a Murderer — But Did He Mean It?’, Opinio Juris, 26 October 2010;
- J. Ku, ‘Why the Law of War Permits the U.S. to Detain and Try 16-Year-Olds Like Omar Khadr’, Opinio Juris, 14 April 2010.