Obligations of States to Citizens Detained Abroad

Khadr v Canada (Minister for Justice) [2009] FC 405 (23 April 2009) On 23 April 2009, the Federal Court of Canada handed down a decision which discussed in detail the right of citizens to request their government to provide protection against acts which violate accepted norms of international law during a period of detention in a foreign country.

Facts

Mr Khadr, a Canadian citizen, was arrested in Afghanistan in July 2002 when he was 15 years old.  He is alleged to have thrown a grenade that caused the death of a US soldier. He has been imprisoned at Guantanamo Bay since October 2002 awaiting trial on charges of murder, attempted murder, conspiracy, support of terrorism and spying.

At the time of his arrest and his subsequent incarceration, Mr Khadr was given no special status as a minor.  For the first two and a half years of his incarceration Mr Khadr had virtually no communication with anyone outside of Guantanamo Bay and did not have access to legal counsel.

As a means of making Mr Khadr more willing to provide intelligence, Mr Khadr was subjected to the so-called 'frequent flyer program'.  This involved depriving Mr Khadr of rest and sleep by moving him to a new location every three hours over a period of weeks.  In spring 2004, Canadian officials were knowingly implicated in the imposition of this practice.

Mr Khadr challenged the refusal of the Canadian government to seek his repatriation to Canada. He claimed his rights under the Canadian Charter of Rights and Freedoms were being infringed and sought:

• such remedy as the court considers appropriate and just in the circumstances under art 24(1) of the Charter;
• to have the respondent's decision not to allow his return to Canada quashed;
• a court order that the respondent request the US Government to repatriate Mr Khadr; and
• further disclosure of documents in the respondent's possession.

Decision

Justice O'Reilly of the Federal Court was satisfied that Mr Khadr's rights under Charter had been infringed.  His Honour ordered that the respondent seek Mr Khadr's repatriation from the United States.

The legal duty to protect Mr Khadr

Justice O'Reilly cited case law which supports the proposition that there is no clear duty to protect citizens recognized under international law or under the common law.  However, His Honour distinguished international jurisprudence from the situation where a Canadian citizen's constitutional rights under the Charter are engaged.  In coming to his conclusion that Canada did owe Mr Khadr a duty to protect, O'Reilly J indicated his support for the South African approach to the legal duty to come to the aid of citizens who are at risk in other countries.  In Kaunda v President of South Africa CCT 23/04, the Constitutional Court concluded that there is no right to diplomatic protection under international law.  The South African Court ruled that States have 'the right to protect their nationals beyond their borders but are under no obligation to do so'.  The Kaunda decision specified that citizens have a right to request that their government 'provide protection against acts which violate accepted norms of international law' and that the government must consider and respond to those requests.  Further, the government's response is subject to judicial review under the Constitution.  However, it is the court's responsibility to 'give particular weight to the government's special responsibility for and particular expertise in foreign affairs, and the wide discretion that it must have in determining how best to deal with such matters'.

Breach of the Charter

Section 7 of the Canadian Charter specifies that 'Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.'

In earlier proceedings involving Mr Khadr, the Supreme Court of Canada found that Mr Khadr's liberty interest was engaged by virtue of the participation of Canadian officials in an unlawful process (the interrogation of Mr Khadr by Canadian officials whilst being unlawfully detained as well as their knowing involvement in his mistreatment).

In order to decide whether the Canadian Government was legally required to protect Mr Khadr, O'Reilly J had to determine whether the principles of fundamental justice applied as per s 7.  To be recognized as a principle of fundamental justice, His Honour identified three criteria that must be met, namely:

• it must be a legal principle;
• for which there is a broad consensus about its fundamental character in respect of the fair operation of the legal system; and
• which is capable of being defined with sufficient precision to be used as a manageable standard for the measurement of deprivations of life, liberty and security of the person (R v DB, 2008 SCC 25).

In addition, the principles of fundamental justice are informed by Canada's international obligations as expressed in the various sources of international human rights law (ie. declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms, etc).

Justice O'Reilly determined that the Canadian officials' participation in conduct that failed to respect Mr Khadr's rights, as well as their failure to remove him from an extended period of unlawful detention amongst adult prisoners without contact with his family, resulted in breaches of Canada's obligations under the Convention against Torture (CAT), the Convention on the Rights of the Child (CRC), and the Optional Protocol on the Involvement of Children in Armed Conflict (OP-CRC-AC).

Justice O'Reilly held that the duty to protect is a principle of fundamental justice because: (1) it is expressed in clear and forceful language in the CAT, CRC and the OP-CRC-AC; (2) there is broad international support of those instruments; and (3) the scope of the duty to protect can be adequately identified and manageably applied to deprivations of life, liberty and security of the person.

In determining the scope of the legal duty to protect Mr Khadr under s 7 of the Charter, His Honour acknowledged the special circumstances present in Mr Khadr's case - namely, Mr Khadr's youth; his need for medical attention; his lack of education, access to consular assistance, and legal counsel; his inability to challenge his detention or conditions of confinement in a court of law; and his presence in an unfamiliar, remote and isolated prison, with no family contact.

Based on the reasons set out above, the Federal Court ordered that an application for judicial review be allowed, with costs.  Justice O'Reilly also ordered the Canadian Government to request that the US return Mr Khadr to Canada as soon as possible.  Mr Khadr's request for further disclosure of documents in the respondent's possession was denied as it was held that the discrete issue of disclosure was conclusively decided in previous proceedings before the Supreme Court of Canada and thus could not be re-litigated.

Relevance to the Victorian Charter

The Khadr decision plays an important role in defining the human right obligations of Governments whose citizens are detained in foreign countries, particularly where Government officials have been involved in or are aware of the mistreatment of the detainee.  Although the Victorian Charter has limited application to Australian detainees in foreign countries, it is important to note the Court's willingness to consider human rights issues when looking at underage detainees.  In particular, the Khadr decision may have implications for the interpretation of s 23 of the Victorian Charter, which provides obligations towards children in the criminal process.  The Canadian decision highlighted the importance of consideration of the State's international obligations in deciding whether there has been an alleged departure from the Charter.  Like Canada, Australia is a party to the CRC, which means that the duties contained in the CRC may shape the interpretation of the obligations contained in s 23 of the Victorian Charter.

The decision is available at http://www.bccla.org/othercontent/09Khadrdecision.pdf.

Melissa Gundrill is on secondment to the Human Rights Law Resource Centre from Clayton Utz