TORONTO - Canada may be finally waking up to the fact that it should protect the human rights of one of its citizens held in a U.S. military prison in Cuba on terror-related charges, even though it condemns the crimes he is alleged to have committed, a human rights organization says.
The claim follows the recent dismissal by U.S. military judges of charges against Omar Khadr, the youngest member of a Canadian family linked to al Qaeda, who is accused of killing an American soldier in Afghanistan in 2002, when he was 15-years-old.
The dismissal prompted editorials critical of the U.S. government's handling of his case and brought out other public comment that possibly heralds a shift in opinion on his treatment.
John Tackaberry, a spokesman for Amnesty International Canada, said the Khadr family's connections to al Qaeda chief Osama bin Laden have made some people reluctant to speak out on principles at stake in his treatment because they did not want to be associated with the family.
"What the politicians have had difficulty doing is differentiating between the rights and responsibilities of themselves in terms of protecting human rights and looking at the mechanisms that are being used - and the individual who is involved."
The human rights group thinks "it's not innocence or guilt, but the issue is that every one deserves to be treated in a way that respects the highest standards of human rights protection," including Khadr, Tackaberry said.
"The fact that they are beginning to speak out and that there is an editorial recognition and a beginning of a change of opinion is a positive sign."
But experts caution that dealing with Khadr and other detainees in Guantanamo Bay poses problems not contemplated in the past.
John Thompson of the Mackenzie Institute, a think-tank specializing on security and terrorism issues, said al Qaeda has exposed "a hole" in the international law, making it difficult to try terror suspects using the existing international conventions.
"An international terrorist organization was unheard of when the Geneva Conventions were being written up and that's a central problem," Thompson said.
According to article four of the Third Geneva Convention, prisoners of war are members of an armed forces that belong to a party in the conflict, have fixed distinctive signs, carry arms openly, conduct their operations in accordance with the laws and customs of war and profess allegiance to a government or an authority not recognized by the detaining power.
But in the case of al Qaeda, "who's the political authority we treat with?," asked Thompson.
"Who do you actually release the prisoner to? Do you hold them until the war with al Qaeda is over? How do you release somebody and guarantee that they won't go fight them again?"
Thompson suggested the only trial Khadr could face in Canada would be that on high treason charges, and "that has not been tested here since 1946."
This is why the U.S. administration, soon after the 9/11 terrorist attacks, came up with the term - "enemy combatants" - to distinguish terror suspects arrested in Afghanistan and other countries from regular soldiers who, when captured, would become prisoners of war entitled to protection under the Geneva Conventions.
On October 17, 2006, U.S. President George W. Bush signed the Military Commissions Act law. The act, among other things, established a system of military commissions for trials of non-U.S. citizen individuals who have been determined to be "unlawful enemy combatants."
Military judges ruled last Monday that the Pentagon could not prosecute Khadr and another detainee because they had not first been identified as "unlawful" enemy combatants.
Khadr previously had been identified by military panels only as enemy combatant, lacking the critical "unlawful" designation.
The Pentagon called the issue a slight difference in terminology that should be settled quickly and is appealing the ruling.
However, the judges' decision dealt a blow to the Bush administration in its efforts to begin prosecuting dozens of detainees regarded by the U.S. as the most dangerous terrorist suspects.
Thompson agreed the military commissions were not working. But until a better system is brought up, he said he believed Khadr and the other detainees would likely remain incarcerated.
Human rights organizations and many governments around the world have blasted the commissions as a blunt violation of the international law.
The governments of Britain, Australia and Saudi Arabia, all close allies of the Bush administration, managed to get their citizens out of Guantanamo and back to their countries.
The Canadian government has been reluctant to publicly criticize the Military Commissions Act and has maintained its hands-off approach, something Amnesty International called appalling.
A government spokesman said calls for Khadr's return to Canada were premature and speculative.
The opposition reaction to the Khadr case has not differed much from that of the Conservative government.
The Liberals broke a long silence when Michael Ignatieff made a vague comment, calling on the government to "take up" Khadr's case actively with U.S. authorities.
Zaynab Khadr, Omar's sister, described the latest media buzz surrounding Khadr's case as a "positive and encouraging reaction."
Khadr's former American lawyer said this is the best chance for Ottawa to get on the right side of history with respect to Guantanamo.
"Omar is the last westerner left at Guantanamo. And, one has to ask, why is it there only a Canadian is left . . . everyone else knows to get out," Muneer Ahmed said from Washington, where he teaches at American University Washington College of Law.
"I think it has to do with the fact that the other governments have actually stepped up to the plate on behalf of their citizens and Canada has clearly not."
