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GarthButcher

Khadr Sentenced To 40 Years By Military Tribunal

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This last issue ties into the second means of attack - the crimes themselves are not valid. This is a substantive claim. Why was Khadr not charged for years? Well because the crimes of which he was convicted did not exist at the time of the firefight and his capture - it was some four years later that the US began to pass laws and the first two attempts were found unlawful. It was not until 2009 that the process under which Khadr was actually prosecuted was put in place. And it was in the 2009 Military Commission Act that set out any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. The result is a very bizarre construct of Rules of Engagement in Afghanistan - US forces can target anyone they wish and if persons attempt to defend themselves they have committed a crime as defined by the US Congress - regardless of whether the US military force had any grounds whatsoever to launch an attack. Or as law professor David Glazier (see below) puts it:

The U.S. approach has the practical effect of converting this armed conflict into a human hunting season; the government asserts U.S. combatants had the right to shoot Khadr on sight (he was shot twice in the back based on his being a “hostile” rather than because he posed any particular threat at the time) yet criminally prosecute him for fighting back. This approach repudiates the functional equivalence between the conflict parties which is a core element of the LAC and attempts to transform this law from one evenhandedly regulating the conduct of both parties into a unilateral shield for one side.

Thank you wetcoaster for providing this information , though i find it hard to believe .

There truly should be a war on errorism
:sadno:
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This last issue ties into the second means of attack - the crimes themselves are not valid. This is a substantive claim. Why was Khadr not charged for years? Well because the crimes of which he was convicted did not exist at the time of the firefight and his capture - it was some four years later that the US began to pass laws and the first two attempts were found unlawful. It was not until 2009 that the process under which Khadr was actually prosecuted was put in place. And it was in the 2009 Military Commission Act that set out any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. The result is a very bizarre construct of Rules of Engagement in Afghanistan - US forces can target anyone they wish and if persons attempt to defend themselves they have committed a crime as defined by the US Congress - regardless of whether the US military force had any grounds whatsoever to launch an attack. Or as law professor David Glazier (see below) puts it:

The U.S. approach has the practical effect of converting this armed conflict into a human hunting season; the government asserts U.S. combatants had the right to shoot Khadr on sight (he was shot twice in the back based on his being a “hostile” rather than because he posed any particular threat at the time) yet criminally prosecute him for fighting back. This approach repudiates the functional equivalence between the conflict parties which is a core element of the LAC and attempts to transform this law from one evenhandedly regulating the conduct of both parties into a unilateral shield for one side.

Thank you wetcoaster for providing this information , though i find it hard to believe .

There truly should be a war on errorism
:sadno:

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CBC News is reporting that based on information from the National Parole Board, Omar Khadr will be eligible to apply for day parole in January 1, 2013 and he would be eligible for full parole on July 1, 2013.

His statutory release date is September 20, 2016, and his full term of incarceration ends (aka the warrant expiry date) on September 20, 2018.

According to a timetable provided to CBC News by the Correctional Service of Canada (CSC), Khadr is eligible for day parole on Jan. 1, 2013 – and for full parole seven months later, on July 1, 2013.

On day parole, offenders work, volunteer or go to school during the day then report back to a community-based residential facility known as a halfway house; while on full parole the offender lives on their own but reports regularly to a parole officer.

...

Caroline Douglas, director of communications for the Parole Board of Canada, said an offender must apply for day parole – and can choose to or not. But full parole reviews are mandatory unless the offender waives his or her right.

Khadr's lawyer, John Norris, told CBC News that no application has been made to date.

Scheduling and length of time between an application and hearing varies and depends on "a host of variables," but the fact that an offender was convicted in another jurisdiction has no bearing on the process, Douglas said.

Khadr’s statutory release date is Sept. 20, 2016, and his warrant expiry date is two years later – on Sept. 20, 2018.

Khadr is now incarcerated at Millhaven Institution in Bath, Ont. He will be eligible for family visits and escorted and unescorted trips into the community, but CSC would not provide details of eligibility.

"For privacy reasons, we can not disclose the specifics of an offender's case," said CSC spokeswoman Suzanne Leclerc.

http://www.cbc.ca/news/politics/story/2012/10/05/khadr-day-parole.html

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CBC News is reporting that based on information from the National Parole Board, Omar Khadr will be eligible to apply for day parole in January 1, 2013 and he would be eligible for full parole on July 1, 2013.

His statutory release date is September 20, 2016, and his full term of incarceration ends (aka the warrant expiry date) on September 20, 2018.

According to a timetable provided to CBC News by the Correctional Service of Canada (CSC), Khadr is eligible for day parole on Jan. 1, 2013 – and for full parole seven months later, on July 1, 2013.

On day parole, offenders work, volunteer or go to school during the day then report back to a community-based residential facility known as a halfway house; while on full parole the offender lives on their own but reports regularly to a parole officer.

...

Caroline Douglas, director of communications for the Parole Board of Canada, said an offender must apply for day parole – and can choose to or not. But full parole reviews are mandatory unless the offender waives his or her right.

Khadr's lawyer, John Norris, told CBC News that no application has been made to date.

Scheduling and length of time between an application and hearing varies and depends on "a host of variables," but the fact that an offender was convicted in another jurisdiction has no bearing on the process, Douglas said.

Khadr’s statutory release date is Sept. 20, 2016, and his warrant expiry date is two years later – on Sept. 20, 2018.

Khadr is now incarcerated at Millhaven Institution in Bath, Ont. He will be eligible for family visits and escorted and unescorted trips into the community, but CSC would not provide details of eligibility.

"For privacy reasons, we can not disclose the specifics of an offender's case," said CSC spokeswoman Suzanne Leclerc.

http://www.cbc.ca/ne...day-parole.html

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Any chance he could get his case in front of the SCC in order to shorten his sentence? I'm sure he could day parole much sooner than getting his case heard. I have a feeling he'll be tied up in the courts till he's in his 30's.

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He could not go directly to the SCC - he would first need to file suit in a lower court.

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Ah, yeah, thought so.

monopoly-go-to-jail-card.jpg

I assume the path then would be, Federal Court --> Federal Court of Appeals, ---> SCC ?

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Most likely but there might be an issue with Section 18 of the Federal Court Act because it does not confer jurisdiction over habeas corpus in respect of federal boards and tribunals. The case law is all over the map in this area.

Usually it is not an issue because the Criminal Code refers back to the provincial court which convicted and imposed the sentence as the originating court in such applications but here Khadr was convicted outside of Canada by a foreign Military Tribunal.

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Do the Canadian courts even recognize the Military Tribunal as legitimate, when it's outside of it's own constitutional framework and the international court system? It isn't even a military court, in the technical sense. It's more akin to a hastily slapped together kangaroo court.

Couldn't one argument brought forth in Canada by Omar's team, involve questioning the legitimacy of the system of 'justice' that charged, sentenced and incarcerated him, which Canada is now holding him under? Basically, if the 'court' is illegitimate, then isn't the sentence as well?

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nd

Do the Canadian courts even recognize the Military Tribunal as legitimate, when it's outside of it's own constitutional framework and the international court system? It isn't even a military court, in the technical sense. It's more akin to a hastily slapped together kangaroo court.

Couldn't one argument brought forth in Canada by Omar's team, involve questioning the legitimacy of the system of 'justice' that charged, sentenced and incarcerated him, which Canada is now holding him under? Basically, if the 'court' is illegitimate, then isn't the sentence as well?

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nd

That is a question i would love to know the the answer to as well sharp .

If the The Canadian Supreme Court has confirmed that Canadian officials breached Omar Khadr’s right to liberty and security of the person under s 7 of the Charter of Rights and Freedoms , then why have those officials not been held accountable for those actions ?

Is it because , the Supreme Court held that it does not have the power to order that the Canadian Government seek Mr Khadr’s repatriation from Guantanamo Bay, because such a request falls within the Canadian Government’s prerogative power in foreign affairs ?

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The conduct of the Canadian government and its officials is the subject of the lawsuit Khadr has already filed and he is seeking a damages in the amount of $10 million.

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Those would be the sort of issues raised in trying to have the guilty pleas declared a nullity and setting the plea agreement aside.

However in setting the plea agreement aside does Khadr revert to his prior status as a some category of belligerent and as such the US could claim they are entitled to hold him in detention for so long as this war on terror is ongoing. Under LOAC nations are entitled to hold POWs for as long as the conflict continues.

That may well be one reason why his counsel have not filed a habeas application or another similar claim as they do not want to take a chance on that occurring.

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So are those officials subject to criminal law , or civil law ?

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And the latest - a 100 name petition is being submitted to to a local MP for transmission to Vic Toews calling for Omar Khadr to be charged with treason:

Omar Khadr should be monitored with electronic bracelets when he’s released from prison, says a Scarborough group that him charged with treason.

Shobie Kapoor, of Canadian Patriotic Society — a grass roots citizens group — insisted Sunday that Khadr will be used by Islamic extremists as a “propaganda machine on the GTA mosque circuit.”

She said Khadr, 26, can also be used to raise funds and recruits at Toronto-area mosques when he’s freed.

“He will draw out all the jihadis,” Kapoor said. “They will all pay big money to see him.”

Her group gave Scarborough Centre MP Roxanne Jame a 100-name petition which calls for Khadr to be charged with treason. The Conservative MP is expected to pass it along this week to Public Safety Minister Vic Toews.

http://www.torontosu...-not-up-to-feds

Federal Justice Minister and Attorney General Rob Nicholson says the question of laying charges of treason against Omar Khadr is a provincial and police matter not a federal matter.

http://www.torontosu...-not-up-to-feds

If Khadr is released on parole it will be up to the National Parole Board to determine the degree, level and specifics of monitoring and compliance.

There are both legal and procedural problems that would prevent Khadr being charged with and convicted of treason under the Criminal Code.

By abdicating its authority over Omar Khadr and leaving him to be tried by a US Military Tribunal, Canada has foreclosed any possibility of a charge for treason (even assuming that one would lie in fact and that would be questionable). The facts upon which Khadr pleaded guilty and was convicted would be the same facts that would form the basis for a charge of treason under the Criminal Code and as such would constitute double jeopardy. The Charter prohibits such action and the the prohibition is not jurisdictional specific as set out in the Charter at Section 11 (h).

"11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;"

Under the case law to avoid the double jeopardy prohibition, the convictions in the US would have to be found to be not a criminal in nature (the US Congress defined them as crimes) and the consequences not penal in nature (he was incarcerated) - so that does not seem viable. The term "offence" is broadly interpreted to mean the underlying acts that form the offence so just calling it treason in Canada and by another term or terms in the USA does not avoid the constitutional prohibition on double jeopardy.

Also note that Khadr was 15 years of age at the time of his capture by US forces so he can only be tried under the Youth Criminal Justice Act - there is no longer a procedure to raise a child to adult court. And unlike the US courts, Canadian courts take Canada's international obligations under the UN Convention on the Rights of the Child and the Optional Protocol on the Involvement of Children in Armed Conflict. The Supreme Court of Canada has already taken note of his youth and Canada's binding international obligations in ruling twice that Khadr's Charter rights have been seriously violated (2008 and 2010).

Per the SCOC in 2010 in Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44:

"We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice.

...

This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects."

Even if Khadr were to be charged the evidence against him by way of coerced statements (including his guilty plea) would not be admissible in a real court so there would be issues of proof and given the serious Charter rights violations that occurred during his capture and detention, it is pretty much assured that a court would exercise its discretion under section 24(2) of the Charter to exclude the evidence used at the Military Commission Tribunal. Without evidence there can be no conviction.

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The UN committee on the rights of the child has just finished a 10-year review of how Canada treats its children and how well governments are implementing the Convention on the Rights of the Child and optional protocols. The report has just been released and it is critical of the Harper government changes to the juvenile justice system.

http://www.ctvnews.c...nitive-1.988812

The report makes specific mention of Omar Khadr and identified him as a former child soldier. It also recommended compensation for the Charter breaches identified by the SCOC.

78. The Committee urges the State party to promptly provide a rehabilitation program for Omar Khadr that is consistent with the Paris Principles for the rehabilitation of former child soldiers and ensure that Omar Khadr is provided with an adequate remedy for the human rights violations that the Supreme Court of Canada ruled he experienced.

http://www2.ohchr.or...N-CO-3-4_en.pdf

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The UN committee on the rights of the child has just finished a 10-year review of how Canada treats its children and how well governments are implementing the Convention on the Rights of the Child and optional protocols. The report has just been released and it is critical of the Harper government changes to the juvenile justice system.

1. A national institution shall be vested with competence to promote and protect human rights.

2. A national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence.

3. A national institution shall, inter alia, have the following responsibilities:

( a ) To submit to the Government, Parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher referral, opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights; the national institution may decide to publicize them; these opinions, recommendations, proposals and reports, as well as any prerogative of the national institution, shall relate to the following areas:

(i) Any legislative or administrative provisions, as well as provisions relating to judicial organizations, intended to preserve and extend the protection of human rights; in that connection, the national institution shall examine the legislation and administrative provisions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights; it shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures;

(ii) Any situation of violation of human rights which it decides to take up;

(iii) The preparation of reports on the national situation with regard to human rights in general, and on more specific matters;

(iv) Drawing the attention of the Government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the Government;

( b ) To promote and ensure the harmonization of national legislation, regulations and practices with the international human rights instruments to which the State is a party, and their effective implementation;

( c ) To encourage ratification of the above-mentioned instruments or accession to those instruments, and to ensure their implementation;

( d ) To contribute to the reports which States are required to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations and, where necessary, to express an opinion on the subject, with due respect for their independence;

( e ) To cooperate with the United Nations and any other orgnization in the United Nations system, the regional institutions and the national institutions of other countries that are competent in the areas of the protection and promotion of human rights;

( f ) To assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional circles;

( g ) To publicize human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness, especially through information and education and by making use of all press organs.

Composition and guarantees of independence and pluralism

1. The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of, representatives of:

( a ) Non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, associations of lawyers, doctors, journalists and eminent scientists;

( b ) Trends in philosophical or religious thought;

( c ) Universities and qualified experts;

( d ) Parliament;

( e ) Government departments (if these are included, their representatives should participate in the deliberations only in an advisory capacity).

2. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence.

3. In order to ensure a stable mandate for the members of the national institution, without which there can be no real independence, their appointment shall be effected by an official act which shall establish the specific duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution's membership is ensured.

Methods of operation

Within the framework of its operation, the national institution shall:

( a ) Freely consider any questions falling within its competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner,

( b ) Hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;

( c ) Address public opinion directly or through any press organ, particularly in order to publicize its opinions and recommendations;

( d ) Meet on a regular basis and whenever necessary in the presence of all its members after they have been duly concerned;

( e ) Establish working groups from among its members as necessary, and set up local or regional sections to assist it in discharging its functions; <a name="wp1033044">

( f ) Maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for the promotion and protection of human rights (in particular, ombudsmen, mediators and similar institutions);

( g ) In view of the fundamental role played by the non-governmental organizations in expanding the work of the national institutions, develop relations with the non-governmental organizations devoted to promoting and protecting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialized areas.

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Principles relating to the Status of National Institutions (The Paris Principles)

Adopted by General Assembly resolution 48/134 of 20 December 1993

Competence and responsibilities

3. A national institution shall, inter alia, have the following responsibilities:

( a ) To submit to the Government, Parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher referral, opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights; the national institution may decide to publicize them; these opinions, recommendations, proposals and reports, as well as any prerogative of the national institution, shall relate to the following areas:

(iii) The preparation of reports on the national situation with regard to human rights in general, and on more specific matters;

(iv) Drawing the attention of the Government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the Government;

( d ) To contribute to the reports which States are required to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations and, where necessary, to express an opinion on the subject, with due respect for their independence;

( e ) To cooperate with the United Nations and any other orgnization in the United Nations system, the regional institutions and the national institutions of other countries that are competent in the areas of the protection and promotion of human rights;

Composition and guarantees of independence and pluralism

1. The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of, representatives of:

( c ) Universities and qualified experts;

( d ) Parliament;

3. In order to ensure a stable mandate for the members of the national institution, without which there can be no real independence, their appointment shall be effected by an official act which shall establish the specific duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution's membership is ensured.

Methods of operation

( b ) Hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;

( c ) Address public opinion directly or through any press organ, particularly in order to publicize its opinions and recommendations;

( g ) In view of the fundamental role played by the non-governmental organizations in expanding the work of the national institutions, develop relations with the non-governmental organizations devoted to promoting and protecting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialized areas.

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Wrong Paris Principles.

The reference is to the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (2007):

http://www.unicef.or...0107English.pdf

Note this:

7.6
Children who
leave armed forces or armed groups by any means, including those who escape,

are abandoned or
are captured by an opposing armed force or armed group or by multinational

forces retain their human rights as children, and relevant international law and standards must be

applied
, inter alia:

7.6.0
No child may be subjected to torture or other cruel, inhuman or degrading treatment

or punishment;

7.6.1 Neither capital punishment nor life imprisonment without possibility of release should

be imposed for offences committed by persons below eighteen years of age;

7.6.2
No child may be deprived of his or her liberty unlawfully or arbitrarily
;

7.6.3 Children who escape unlawful recruitment must never considered deserters;

7.6 4
All appropriate measures to promote physical and psychological recovery and social

reintegration must be taken
;

7.6.5 All appropriate action must be taken to ensure and re-establish family unity;

7.6.6 Unless contrary to the best interests of the child, all allegations of violence, including

sexual and gender-based violence must be promptly, thoroughly, and independently

investigated and prosecuted and adequate and effective follow-up care offered to the child

and her/ his family.

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