Legal Times
April 2, 2007
When my co-counsel and I first visited Omar Khadr, our client in Guantánamo Bay, Cuba, he was a gangly, somewhat awkward and shy, but friendly 18-year-old whose voice was changing. His wisdom teeth hadn’t come in yet, and his beard was scraggly and thin.
That was in November 2004, a few months after the Supreme Court had ruled, in Rasul v. Bush, that detainees at Guantánamo had a right to have access to lawyers and to the U.S. courts.
Omar and his family, all Canadian citizens, lived in Kabul at the time the United States took military action against the Taliban in Afghanistan in October 2001. He was separated from his parents and siblings as they tried to make their way to Pakistan, and he was taken into U.S. custody in July 2002. He was severely wounded in a confrontation with U.S. and U.S.-supported troops during which a U.S. soldier died.
He was 15 years old when captured, a child by any measure. He spent the first several months of his detention at the U.S. air base at Bagram, Afghanistan, where he was aggressively interrogated, including questioning on a hospital stretcher and without the benefits of pain medication. Then he was sent to Guantánamo in October. Brutal and virtually continuous physical and psychological interrogation continued after his transfer and throughout most of 2003.
Omar passed his 16th, 17th, and 18th birthdays in virtual isolation, cut off from all but the most rudimentary communication with his family or anyone else in the outside world until our first visit with him. In addition to the most basic protections of children against improper assaults, he was denied the medical attention and other health care, diet, education, and recreation that all children deserve and are entitled to as a matter of fundamental human rights.
Omar is 20 years old now, having lost nearly a quarter of his life in custody. He was recently charged with “murder in violation of the law of war,” a charge related to the death of the U.S. soldier, and four other alleged war crimes. He faces trial at Guantánamo by a reconstituted but still-broken military commission. His will be the first trial by U.S. military commission for alleged war crimes committed as a child since at least World War II.
Omar’s home country, Canada, has been conspicuously silent on the return of its child citizen. History, law, and morality all dictate that his trial by the U.S. military for crimes allegedly committed as a child should not proceed.
Under the international law of war, children in armed conflict are “protected persons” entitled to special respect, whether as civilians, prisoners, or criminal defendants. Regardless of alleged wrongdoing, a child found on the battlefield must be treated with special care based on age alone.
As early as 1924, the League of Nations adopted the Geneva Declaration on the Rights of the Child. In 1954, the United Nations followed suit, recognizing that a child, “by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection.” In 1974, the United Nations adopted a declaration on the protection of children in armed conflict, calling on governments “involved in military operations in foreign territory . . . to spare women and children from the ravages of war.” Children, the declaration recognized, were and are “the most vulnerable members of the population” during wartime, especially when separated from their families.
New global standards on juvenile justice — the Beijing Rules in 1985 and the Riyadh Guidelines in 1990 — were designed to assure for children all across the world “a meaningful life in the community, which . . . will foster a process of personal development and education,” as the Beijing Rules declare. Thus, these are not just American but global principles.
Except for Omar’s case, U.S. policy and practice has been to give special protection to children in war. In 1998, Congress adopted a resolution calling for the release, rehabilitation, and reintegration into society of children taken into custody on the battlefield.
In 2002, the United States ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, calling for similar treatment. Canada and the United States played leading roles in the drafting and adoption of that treaty. In answer to a question from Sen. Joseph Biden (D-Del.) at Senate hearings, the State Department representative answered that “the United States actively supports activities to assist children affected by war, including demobilization, rehabilitation, and integration into civilian society.” A Defense Department witness, in the same hearings, noted that the treaty “offers important foreign-policy benefits.”
Marines have begun to receive training under the treaty, which calls on our soldiers to “avoid and limit” casualties among children in armed conflict; to fire for shock effect only; to use nonlethal weapons where possible; and to “welcome” child soldiers who escape or desert from opposing forces.
And in the past few years alone, the United States and Canada have spent millions of dollars on the rehabilitation of child soldiers in Afghanistan, all while Omar languishes in Cuba, waiting in total isolation for a trial that has yet to occur.
These funds in Afghanistan go to infrastructure projects such as school construction, but the most important focus of programs such as the New Beginnings Program is on “DD&R” — disarmament, demobilization, and reintegration. Demobilization includes the downsizing or disbanding of armed forces, both formal and informal, through release or discharge. Reintegration, which is recognized as the most crucial but most complex of the steps in the process, involves assistance to bring about the economic and social re-entry of children and their families into civil society.
The United States has certainly disarmed Omar. But where is his demobilization and reintegration?
NO PRECEDENT
No child of Omar’s age at the time of his alleged misconduct has ever been charged with war crimes before any international war crimes tribunal. The statute of the new International Criminal Court bars the prosecution of children under 18, and the international war crimes tribunals for Rwanda and the former Yugoslavia have not prosecuted a single child under 18, though they have the power to do so.
Similarly, the prosecutor in the Special Court for Sierra Leone, where child soldiers have committed horrendous atrocities, has declined to prosecute children under 18 despite the statutory authority to do so. The reason was that trying children would not meet the court’s requirement to prosecute “those who bear the greatest responsibility.”
And in January 2006, a major report on military courts flatly recommended that “in no case” should a child under 18 ever “be placed under the jurisdiction of military courts” anywhere in the world.
Not all children at Guantánamo have been treated like Omar. In April 2003, after sharp inquiries from the press and public, the Pentagon revealed that there were several children in detention at Camp Delta.
Subsequent investigation revealed three Afghan children there who had been captured at ages 10, 12, and 13. Gen. Richard Myers, then chairman of the Joint Chiefs of Staff, said in a press conference at the time that “despite their age, these are very, very dangerous people. . . [T]hey may be juveniles, but they’re not on a Little League team anywhere, they’re on a Major League team, and it’s a terrorist team.” These younger children at Guantánamo, however, were separated from the adult detainees and put into a separate facility — Camp Iguana — where they received education and comfortable treatment before their nearly immediate transfer back to Afghanistan and their families.
Not so with Omar Khadr. Age 16 at the time of his arrival in Cuba, he was arbitrarily classified as an adult and designated as an “enemy combatant” in a hearing without a lawyer that he declined to attend. The government argues that there is no lower age limit to the enemy-combatant designation, and thus no minimum age limit on commission jurisdiction to try Omar as an adult.
In fact, there is no affirmative provision of U.S. law, now or ever, whether in the statutory scheme for military commissions or for courts-martial, that sets an age limit that permits a 16-year-old detainee to be kept as an adult and tried for war crimes committed at age 15, while 10-, 12-, and 13-year-old detainees are sent home as juveniles. This despite passage of recent congressional enactments dealing with Guantánamo detainees such as the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, either of which could have specifically granted such authorization if Congress wished.
JUVENILE JUSTICE
Were he to be tried in the federal juvenile justice system, Omar, as a child under 18 years of age at the time of his alleged wrongs, would at least be entitled to a hearing, with counsel and possibly a guardian ad litem, before possible transfer into adult jurisdiction for criminal trial as an adult. His own best interests as a child would be paramount in the decision to transfer, and he would be entitled to constitutional due process of law in any such determination.
Forty years ago this year, the Supreme Court said, in its landmark In re Gault decision on juvenile rights in the criminal process, “under our Constitution, the condition of being a boy does not justify a kangaroo court.” The Gault Court recognized that a child certainly should not face criminal charges with less protections than an adult, given our concerns with the best interests of children.
Yet Omar faces that very prospect today, with trial by a military commission whose legitimacy is seriously questioned by many within Congress, the legal academy, and the military itself.
Remarkably, newly adopted rules for the reconstituted military commission process do contain provisions that make appropriate concessions for youth.
All, however, relate to children participating as witnesses or victims in the process. The rules recognize that a child — defined as anyone under the age of 16 — is entitled to special treatment before these military tribunals. The rules explicitly recognize that children are different than adults because they are more impressionable. Children, the commentary to the rules states, are particularly susceptible to fear, pressure, or intimidation.
The Supreme Court has recognized these developmental issues in its acknowledgement of new advances in the study of cognitive brain function in adolescents. In Roper v. Simmons (2005), the justices struck down the death penalty for minors under 18 at the time of their offenses. The Court found that these children “have diminished capacities to understand and process mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.”
Surely this is no less true for a child defendant in a military commission trial, but neither the Military Commissions Act nor the new rules make any concession for the youth of the accused, whether in trial or in sentencing.
The impending trial of Omar Khadr by U.S. military commission is unprecedented and wrong — historically, legally, and morally. In January, the United Nations adopted Resolution 61/146, which calls on all countries to implement measures for children involved in armed conflict. These measures are not for trial, but for “rehabilitation, physical, and psychological recovery and reintegration into society.”
Canada must call for the return of its son and citizen to his home and family. And the United States must set an example for the world. Rather than a vindictive and vengeful trial of a child for alleged war crimes, it should send Omar home.
Rick Wilson is a law professor and director of the International Human Rights Law Clinic at American University in Washington, D.C.
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