Guantanamo Bay, Cuba– Omar Khadr, a 23-year-old Canadian citizen charged with murder, conspiracy and support of terrorism whose pretrial hearings began this week, was captured by the United States in Afghanistan in 2002. Khadr was 15 at the time.
That’s not the centerpiece of the hearings; Khadr’s attorneys are asking the court to exclude incriminating statements he made because they were allegedly procured using torture. But Khadr’s age at the time of his capture remains a major concern for human rights advocates, and a point of legal contention.
Several non-governmental organization representatives here to observe the hearings believe that, at the time of Khadr’s capture, he was a child soldier. Subsequently, they contend, his rehabilitation, rather than prosecution, should have taken precedence and perhaps even blocked him from being charged in the first place.
“The detention, treatment and prosecution of Omar Khadr violates international law and flies in the face of accepted international practice,” said Jennifer Turner, an attorney with the American Civil Liberties Union, in an interview.
“Under international law, an alleged child soldier like Omar Khadr should be treated first and foremost as a candidate for rehabilitation and reintegration, not subjected to abuse and prosecution before military commission.”
The Department of Defense has acknowledged that at least 12 juveniles have been held in the Guanatanamo Bay detention facility, although human rights advocates speculate that the actual number may be higher.
Navy Capt. David Iglesias, a legal advisor to the office of military commissions and a prosecutor for commission cases other than Khadr’s, disagrees with the contention that the United States is in violation of international law. The government’s position, Iglesias said in an interview, is that the United Nations enacted the child soldier provisions to penalize countries that force children to fight.”
Iglesias, a former U.S. Attorney, also noted that the two Additional Protocols of 1977, amendments to the Geneva Conventions that concern child soldiers, have not been ratified by the United States.
The United States did ratify the Optional Protocol on the involvement of Children in Armed Conflict, but even that does not prohibit Khadr’s prosecution, according to UNICEF’s website.
Stacy Sullivan, a court observer for Human Rights Watch, acknowledged that international law does not ban the prosecution of children for war crimes. But she noted that military tribunals have not been a venue for juvenile prosecution since the Second World War.
“Even the Special Court for Sierra Leone, where a great many of the crimes were committed by children, did not prosecute children,” wrote Sullivan in an email. “Prosecutors will say that that children were prosecuted for war crimes in Germany following World War II — but the claims are ridiculous. A couple of children were prosecuted for theft, and I think maybe one for murder, but none for war crimes.”
Sullivan also noted that there are other international laws regarding children that the U.S. may have violated since it captured Khadr.
“There is a lot in international law about the detention of children,” she wrote in an email.“They must be held separately from adults, given family visits, provided a lawyer, provided education, etc… The US, of course, did not do any of this [during Khadr’s detainment] so there is no question that the US violated its international legal obligations.”
Meanwhile Iglesias contends that there is only aspect of Khadr’s case to which his age is germane.
“Where it becomes relevant is for sentencing purposes,” he said. “ If he is found guilty, the judge can take into consideration the fact that he was only fifteen years old,” when the alleged crimes occurred.
