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When rule of law is subservient to rule of man

The case of Omar Khadr, the youngest ever to be accused of war crimes, is a classic example of undermining the basic principles of democratic governance

Gulf News

‘Rule of law is better than rule of man’, Plato had reportedly once said. Islamic jurisprudence recognised the supremacy of law as a prerequisite for good governance. Western democracies consider rule of law as the foundation of democratic governance. Last month, Canadian-born Omar Khadr — the youngest Guantanamo prisoner and the youngest ever to be accused of war crimes — was transferred to the Edmonton Institution in Alberta, Canada, a maximum security prison. This classification significantly decreases his chances for parole. And it is yet another illustration of the cruel and inhuman nature of the treatment meted out to Khadr by his US captors and by the government of his own country.

Canadian officials insisted during the decade that Khadr spent in the infamous detention centre at Guantanamo, that he was given due process by his US military captors. In fact, there is almost unanimity among civil liberties associations and human rights organisations that Khadr’s human rights have been systematically and flagrantly violated. In addition, his rights have been systematically violated under the protocol on children in armed conflict. Rule of law was manipulated to justify violations of law and flagrant disregard for principles of equity and justice.

The United Nations Committee Against Torture urged Canada to repatriate Khadr — then the last westerner still held at Guantanamo — and to redress the human rights violations. Khadr, a Canadian national, was 15 years old when he was captured after being shot in the back by US troops in Afghanistan on July 27, 2002. The US has accused Khadr of murder, attempted murder and conspiracy to commit terrorism. Canadian ministers have repeatedly branded Khadr a “war criminal” and a “convicted terrorist”.

Radhika Coomaraswamy, the then UN secretary-general’s special representative for children in armed conflict, urged Canada to repatriate Khadr for rehabilitation. She said Khadr was “the classic child soldier narrative: Recruited by unscrupulous groups to undertake actions at the bidding of adults to fight battles they barely understand”.

In 2008, even the Supreme Court of Canada condemned Canadian officials’ participation in the Guantanamo Bay process as a violation of international law. A second ruling in 2010 berated Canadian officials, saying their behaviour “offends the most basic Canadian standards about the treatment of detained youth suspects”. The court declared that Khadr was entitled to a remedy, but left it to the government to choose the remedy. The Khadr case is a classic textbook example of systematically undermining the rule of law — a basic foundation of democratic governance. A US judge ruled that evidence obtained during interrogations was admissible. This essentially meant that evidence obtained through torture, cruel and inhuman treatment was admissible in court — a travesty of the judicial process in democratic countries and its safeguards to protect the rights of the defendant.

A heavier burden

The Military Commissions Act of 2006 (MCA) accepts the introduction of evidence obtained through cruel, inhuman and degrading treatment. Although the admission of such evidence is subject to “interests of justice” test, such “interests of justice” test may not outweigh other “interests” such as the “national interest”. Moreover, it places the burden to exclude unsubstantiated hearsay evidence on the defendant. This clearly places a heavier burden on the defendant and comes close to reversing a basic legal principle of the western legal system — namely that the defendant is presumed innocent until proven guilty.

Rule of law was also violated when Khadr was tried for crimes freshly defined in the Military Commission Act, which were not crimes at the time of his arrest. Many of the crimes considered offences that can be tried under the international law of war or US law in a military tribunal did not exist as substantive offences that can be tried under international or US law. These include all of the charges against Khadr — conspiracy, murder, attempted murder, providing material support for terrorism and spying. None of these were considered war crimes before.

The US government charged Khadr, before a military tribunal, with murder, attempted murder, conspiracy and aiding the enemy. The MCA eliminated the detainee’s right to ‘writ of habeas corpus’ — namely, the right to seek an early determination of the lawfulness of their detention, which is one of the most fundamental rights under international law.

Without the protection of habeas corpus, detainees may be held indefinitely without charges. And the state moves away from the rule of law and closer to the rule of man — an authoritarian man that is.

Adel Safty is distinguished professor adjunct at the Siberian Academy of Public Administration, Russia. His new book, Might Over Right, is endorsed by Noam Chomsky.

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