News-Khadr

March 10, 2008

The Military Trial of Omar Khadr: Child Soldiers and the Law

By Lauren McCollough

Trials before the US Military Commissions at Guantanamo Bay are due to resume later this year. One of the first cases scheduled to be heard has attracted particular criticism, as the defendant, Omar Khadr, was a child at the time of the alleged crimes.

Khadr, now 21 years old, was captured by US forces in 2002 following a firefight in Afghanistan where he allegedly threw a grenade that fatally wounded a US Delta Force soldier, Sgt. First Class Christopher Speer, and wounded another. Khadr was 15 years old at the time of the incident and has been held at Guantanamo Bay as an “enemy combatant” for the past six years. Khadr, who was fighting with the Taliban, faces life imprisonment on charges of murder, attempted murder, conspiracy, providing material support for terrorism and spying. Some of the charges refer to events that took place when Khadr was as young as ten.

Khadr's lawyers have asked that the case be dismissed on the grounds that it infringes protections for child soldiers that are enshrined in international law. In one court filing, they asserted that the charges against Khadr crossed a line in the treatment of children that no country has crossed “in modern history.” Radkhika Coomaraswamy, the UN Special Representative for Children in Armed Conflict, has also raised concerns with US officials over the prosecution, saying it could set an international precedent of prosecuting individuals for war crimes committed at a time when they were children.

Child soldiers have traditionally figured in international law as victims rather than as criminals. The recruiting and enlistment of children below 15 is a war crime, and the Optional Protocol of the UN Convention on the Rights of Child of 2000 gives special protection to children under 18 in armed conflicts. States that are party to the Optional Protocol (including the United States) are required to take all feasible measures to ensure that children under 18 who have been forcibly recruited by states, or enlisted under any circumstances by non-state groups, are given "all appropriate assistance for their physical and psychological recovery and their social reintegration."

International law does not prohibit the prosecution of child soldiers, although the Optional Protocol places limits (in Article 37 (a)) on the sentences that can be imposed on them:

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

The statute of the UN-sanctioned Special Court for Sierra Leone (regarding a conflict where the involvement of child soldiers in war crimes was widespread) gives the Court jurisdiction over persons aged 15 and older.

Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child. (Article 7).

This statute has been used by the prosecution in Khadr’s case to defend the legitimacy of their charges. However neither the Sierra Leone Special Court nor any other of the currently operating international war crimes tribunals have prosecuted anyone below the age of 18. The first Chief Prosecutor of the Sierra Leone tribunal, David Crane, has written that it was his policy to prosecute those who forced children to fight and commit war crimes, not the children themselves, since "no child had the mental capacity to commit mankind's most serious crimes." According to Crane, "The charges against [Khadr] should be dropped and he should be sent home where he can be rehabilitated, not punished."

In addition, the international guidelines called the "Paris Principles," which the U.S. supports, state that children who participated in armed conflict "should be considered primarily as victims of offences against international law," and that “all appropriate measures to promote physical and psychological recovery and social reintegration must be taken.” The Principles do not rule out the prosecution of child soldiers, only that their rehabilitation and society reintegration should take precedence.

US law also has guidelines for the prosecution of children that regard them as less resonsible for their crimes than adults. In its March 2005 decision abolishing the use of the death penalty for crimes committed before age 18, the U.S. Supreme Court found that juveniles are “categorically less culpable” than adult criminals due to their continued physical, mental and emotional development.

The outcome of the Khadr case will certainly have farther reaching consequences than just Guantanamo: the number of child soldiers in the world has grown exponentially, with an estimated 300,000 children fighting in over 30 conflicts.

Khadr, a Canadian, is the only citizen of a Western country imprisoned at Guantanamo. The commissions are only authorized to try non-US citizens, but several legal and human rights groups are calling on the Canadian government to pressure the US into allowing the release of Khadr to Canada and face trial in his home country. The U.S. has released three other underage Guantanamo detainees to the care of their families in Afghanistan.

Related Chapters from Crimes of War: What the Public Should Know 2.0:

Child Soldiers

Terrorism

Related Links:

Military Commissions Home Page

U.S. Department of Defense

The U.S. v. Omar Ahmed Khadr

National Institute of Military Justice

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict

UNHCHR

The Paris Principles

February 2007