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The Supreme Court of Canada agrees to rule on Gitmo’s legality under international law.

Well, this was rather unexpected and big news this morning. This is a front page story in the Toronto Star in today’s edition. As you might know, Omar Khadr is the last remaining Westerner to be held in Guantanamo. He has been held there since 15, without charge or trial – for 6 years. Khadr’s lawyers are already going to be arguing this week in court whether or not they are allowed to gather evidence from the government of Canada that could help in his defence at Guantanamo, and whether or not Canadian officials who travelled to the base to interrogate him in 2003 and 2004 breached his constitutional rights.However, the Supreme Court has gone even father then that: they have agreed to hear arguments on whether or not Gitmo is legal under international law:

The high court ruled yesterday that it could consider submissions on whether Guantanamo violates international law, dismissing the federal government’s objections that the Canadian courts were not the place to examine the actions of the United States…in hearing arguments about whether Khadr’s rights were violated in Guantanamo, the court agreed in its unanimous ruling yesterday that it could consider the actions of American officials and the conditions at the U.S. Navy base in Cuba, which in essence also puts Guantanamo Bay on trial..The court also rejected the government’s bid to block human rights groups from raising points of international law in their intervention in the case.

The Conservative government has long been accused as being complicit with American authorities over Khadr’s fate. While every other Western nation has negotiated with the US to repatriate their citizens who were imprisoned at Gitmo to be sent home, the Conservatives have refused to do so, repeatedly saying they have been assured by the US that Khadr’s right’s are being respected and that due process will take place. This view is increasingly being criticized by Canadians, who while leery of the Khadr family’s reputation (the father was killed in Afghanistan and was an Al Quada member), realize that a Canadian citizen has been denied due process and a way of defending himself.

If the Supreme Court of Canada were to rule that Gitmo violates international law, the Conservative government would be forced to defend its actions and reasons for its stance on Gitmo:

“Certainly, what the Supreme Court of Canada says about the legality of Guantanamo Bay and the actions of Canadian officials with respect to a citizen there, will reverberate in the political sphere in terms of bringing greater attention to, and a requirement of justification by the government of Canada about why it refuses to intervene,” Macklin said.

The US Government may not give a hoot about whether the Supreme Court of Canada rules Gitmo and its process are illegal under international law, but it will have big reverberations here if it does so. Who knows, perhaps it will reverberate elsewhere too.

8 comments to The Supreme Court of Canada agrees to rule on Gitmo’s legality under international law.

  • ALW

    Oh, and finally, the notion that the Supreme Court of Canada can pass judgment on the legality of an American military prison operated by Americans on American held-territory is absurd.  The Court is setting itself up for serious politicization here, which is precisely why so many opponents of the Tories like that they’ve agreed to hear these arguments: they want the SCC to provide them with a club to beat the Tories with.  The Court should have punted on this one just as they did on Re: Same-Sex Marriage

    Again, I’m not at all saying that Gitmo isn’t in fact "illegal" (by "international law" is a trite concept.  Who enforces international law?  The United Nations? If only.) But the Supreme Court of Canada has no jurisdiction here, and any comments they make on the legality of Gitmo will have no legal effect, and only be appropriated for political use.  I don’t know how anyone who says they support an impartial, independent, apolitical judiciary could see this as a welcome development. 

  • ALW

    You don’t have to be a legal scholar to know that a total absence of due process is going to be a serious problem.  The real question is what the government of Canada is supposed to do about it when it occurs abroad.  This is because there’s no way to get around the "special treatment" issue: either we believe Canadian citizens are subject to the laws (which includes procedure as well as substantive laws) of other countries when they are in those countries, or not.  If they are, we can’t complain when our citizens have rights violated, because those rights don’t exist in other countries.  I don’t agree with this approach, because I believe fundamental rights are universal…but this then opens up an entire other can of worms, which is: official condemnation of the processes of other countries.  Why?  Because we can’t argue that such processes are immoral only when they apply to Canadians, otherwise we’d be saying the local laws don’t apply to Canadians.

    I think the appropriate approach is to point out, especially in countries like the US and Mexico that have, on paper, due process that the treatment of Canadian citizens, in the Brenda Martin and Omar Khadr cases, are inconsistent with the due processes according to their own processes.

    I would point out that the I think the Brenda Martin case has much more to do with bureaucratic bungling, whereas the Khadr case clearly has political overtones.

  • The question is whether or not the federal government has done something wrong – according to Canadian law – in the way they have treated Khadr.  The Supreme Court has said "Whether or not they have done anything wrong may depend on whether or not the gitmo processes are legal in the first place."

    That makes sense.  Recklessly supporting an illegal process in another country may be a violation of Canadian law.  If you’re trying to figure out if there’s a violation of Canadian law, you’re going to need to know whether or not the gitmo process is legal.

    I don’t see any controversy here, or anything to applaud, really.  The court is not saying that gitmo is illegal.  They are saying that they need to find out.

  • Kevin

    [quote comment="14014"]Lets see now . . . I go to a foreign country, get caught with terrorists, doing terrorist things . . . and my Canadian rights have been violated??? Only a lawyer could think like that!!! Opps, and maybe a liberal/progressive!! Since when is the federal govt responsible for individuals misdeads in foreign lands?? Riddle me this Kyle . . . are Canadians not subject to the laws in other lands???[/quote]

    You are right, Canadians are subject to the laws of other lands, it’s now time to question the laws in the United States about Gitmo.  I think the extra step is the important thing here.  Whether any International laws are broken by Gitmo’s operating existence.

  • Ted

    Prime Minister John Chretien got burned badly going to bat for Omar’s father years ago in Pakistan.

  • Oldschool

    Lets see now . . . I go to a foreign country, get caught with terrorists, doing terrorist things . . . and my Canadian rights have been violated??? Only a lawyer could think like that!!! Opps, and maybe a liberal/progressive!!

    Since when is the federal govt responsible for individuals misdeads in foreign lands?? Riddle me this Kyle . . . are Canadians not subject to the laws in other lands???

  • If you think about it.  The way the Cons have addressed the Khadr issue isn’t that far off from how they are handling Brenda Martin’s situtation.  The Cons are gutless, without honour, disgraceful and disloyal to Canada and Canadians.

  • Paul

    Gee…the Supreme Court of Canada!
    Do you really think anyone cares about this particular fruit of the Khadr family tree?I bet the Americans are all laying awake wondering about this issue!

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