Youth Detention at Guantanamo Bay and Canada's UN Obligations

"Don't look only at the detention side of it. When they came in, two of them were illiterate and one was reading at a very, very basic level. Now they are all reading at the third-grade level. I would say this is a success story." -- General James Payne, deputy commander, Guantanamo

If their detention is overlooked, the 14- to 18-year-olds at the Guantanamo Bay detainment camp appear to be cycling through the same kind of activities that entertain any North American teenager: classes in the morning, a brief break for a game of basketball, more tutoring, and then free time before bed. Appearances aside, some of these children, like Canadian citizen Omar Khadr, experience the same brutality as their adult counterparts including interrogation sessions which involve being hung from hooks and then beaten. These conditions, initially reported by the London Sunday Times on June 22nd 2003, reveal another side of the practices at the American detainment camp in Guantanamo Bay, Cuba.

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The Guantanamo facility houses an estimated 435 prisoners, from roughly 38 countries. These individuals are accused of being "enemy combatants" in the U.S.-led war against terrorism, yet the meaning of this title, much like the legal status of these prisoners, is vague. Allegations of torture and inhumane treatment, such as the interrogation hooks, have been corroborated by released prisoners, ex-military officials, court documents from U.S. military tribunals, and most recently, by UN experts at a Sept. 21st meeting of the U.N. Human Rights Council. But what is perhaps as disturbing as this horrific treatment of minors as young as 14, is the restrained response from Canada to the U.S.'s practice of torture and the detainment of Toronto native Omar Khadr. And given that the United Nation's Human Rights Council is currently headed by a Canadian, Louise Arbor, it appears that Omar Khadr has been failed by both his nation and the international body set up to monitor human rights abuses.

Child detainment, like every other issue related to Guantanamo Bay, is a hazy matter. Similar to their adult counterparts, many of these minors are being or have been held on circumstantial evidence. Nevertheless, a few of these prisoners do have firmly established ties to either Al-Qaeda or the Taliban. Omar Khadr is a notable example of a youth detainee whose terrorist connections are well established. Khadr comes from a family known for their active support of Al-Qaeda and their actions are a well documented by the Canadian media, most notably the CBC and the Globe and Mail. Moreover, Khadr is suspected of killing a U.S. serviceman. His lawyer, Rick Wilson, said in a March 7, 2006 interview with the political blog The Talking Dog, that Khadr has been detained since the age of 15 and in that time, he has been beaten, deprived of food and sleep, and held in isolation for close to three years.

While Omar Khadr's innocence may be debatable, his case raises several questions about the practice of child detainment and the appropriate UN response to it. Most fundamental is the arbitrary cut-off point of 16 years for "youth" status. This age limit was established in 2003 but never legally justified by the Pentagon. According to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, ratified by both the U.S. and Canada in 2004, no one under the age of 18 can be treated as an adult in matters of armed conflict.

The change in the age cut-off has resulted in two horrific developments which affect minor detainees on either side of the limit. Prisoners who are 16 and older now endure the same, infamously cramped cells and constant military supervision as adults. The underage detainees, according to the London Sunday Times, however, are sequestered away from the main camp and are often left alone for long periods of time. Jo Becker, the Children's Rights Advocacy Direction for Human Rights Watch (HRW), raised the concern through statements made on April 24 2003 in HRW literature and website material, that this solitary confinement could increase suicidal tendencies, a warranted fear since there have been over 36 suicide attempts made by Guantanamo prisoners in the past two years. Ms. Becker's worries are voiced and elaborated upon in the organization's 2003 petition to former Sec. of Defense Donald Rumsfeld. Even the Red Cross has issued a statement about the children at Guantanamo, arguing that their conditions could result in severe psychological trauma.

All of these developments bring Canada and its UN obligations into question. Under the direction of High Commissioner Louise Arbour, Canada is the current face of the U.N. Human Rights Council. This newly inaugurated body is the successor to the UN Commission on Human Rights, the product of a concentrated effort to have a more effective human rights body. According to the official UN mandate, this body and its officer are responsible for playing the "leading role on human rights issues." In other words, the HRC is responsible for monitoring the actions of independent states towards their own citizens as well as citizens from other nations.

At the June 23, 2006 meeting of the HRC's inaugural session, Ms. Arbour said that "International law requires that the prohibition of torture be ensured by active measures: in addition to not engaging in acts of torture themselves, states have a positive obligation to protect individuals from exposure to torture. No cogent argument, whether normative or empirical, has been advanced to support a departure from the torture prohibition in the fight against terrorism." Yet, Canada has been criticized by the press, it citizens, and other nations for its failure to comply with Arbour's sentiments. In contrast to countries such as Australia, which has demanded special tribunals for its citizens, or the United Kingdom, which has successfully orchestrated the release of some British detainees, Canada has exercised restraint in its disapproval Guantanamo. This pattern has grown even more pronounced with the ascension of the Harper government, which has been singled out for being more ideologically similar to the Bush administration than previous governments were. Khadr's lawyer, Rick Wilson, said in his interview that this neglect was a "remarkable betrayal of citizenship."

There are several reasons why Canada has been, in the words of Mr. Wilson, "conspicuously silent." Unlike most other nations who have citizens detained at Guantanamo Bay, Canada sent an interrogation team to question Khadr. To some, this action seems to legitimize U.S. practices, and makes Canada complicit in the use of torture. In addition, a 2005 meeting of the defunct Human Rights Committee revealed that Canadian police and other federal institutions assisted in the deportation of three Middle Eastern immigrants who were later found to have been tortured overseas. While Canada's involvement in prisoner torture has been to a much lesser degree than the United States', it still has the concern of being implicated in human rights abuses.

Child detainment at Guantanamo Bay represents the global nature of today's human rights crises. Apart from the essential issue of child welfare, this situation brings into question the fundamental ideals of citizenship and sovereignty. Canada is now in a unique position. It can, as a nation, set North American precedents on anti-torture and it can, as the first leader of the Human Rights Council, show that the global community is able to respond collectively to such urgent issues. Former Prime Minister Pierre Elliott Trudeau, throughout his time in power, often spoke urgently to the responsibility of Canada to 'lift the shadow of war' in all its ugly manifestations, not least of which is the detainment and treatment of minors at Guantanamo Bay.