The internment and severe interrogation of 13-year-old Omar Khadir at Guantanamo Bay raises serious ethical issues. His interrogators at the notorious camp have used snarling dogs against him. He was also placed in "stress positions," upended and used as a human mop to clean the floor. The U.S. forces were convinced he had thrown a grenade that killed an American soldier.
Omar Khadir, originally hailing from Canada, is one of the 19 Guantanamo prisoners charged with war crimes. His fellow prisoner, Mohammed Jawad, an Afghan, is a year younger. These two of the lot were juveniles at the time of their alleged offenses, it may be noted.
The latest, and possibly last, sessions of the Guantanamo war crimes tribunal have revealed disturbing details about how Khadr was treated during three months in custody at Bagram, Afghanistan.
The tribunal has refused permission for the defence counsel to introduce as evidence photographs taken at the scene of the July 27, 2002, firefight near Khowst, Afghanistan - it was there Khadr is supposed to have thrown the grenade that killed Army Sgt. 1st Class Christopher Speer.
The photographs taken by U.S. soldiers as they stormed the bombed-out compound show Khadr lying facedown in the dirt under the blasted remnants of a roof. The soldiers didn't know he was there until one stepped on rubble and felt something underneath give way.
Navy Lt. Cmdr. William C. Kuebler, Khadr's lead defense lawyer argued Khadr could hardly have thrown the grenade that killed Speer if he was buried and unconscious when the Delta Force soldier entered.
But neither the prosecution nor of course the Bush administration nor even the Canadian government seem bothered about the facts of the case or the fate of the 13-year-old Khadir.
He was a toddler when his father began shuttling his family between Toronto and the Islamic militant strongholds along the Pakistan-Afghanistan border.
Now 22, Khadr has spent almost a third of his life in U.S. custody. He was raised in a militant Muslim family and was surrounded in his teen years by holy warriors. His lawyers describe him as confused, immature and emotionally damaged.
The Geneva Conventions and the U.N. Convention on the Rights of the Child hold that it is the responsibility of the state whose soldiers capture juveniles on the battlefield to work to rehabilitate and integrate them into society. But neither the tribunal nor the Bush administration seemed to care one bit.
"Under international law, adults who recruit children for combat are to be prosecuted for that offense. But the children caught up in combat are to be protected, not prosecuted," said Diane Marie Amann, a UC Davis law professor who observed the latest hearing in Khadr's case for the National Institute of Military Justice.
The institute joined legal scholars, parliamentarians and human rights proponents in arguing in amicus briefs that underage combatants should be treated as victims, not responsible adults who made conscious decisions to join the fight.
Khadr's trial is set to begin Jan. 26, with pretrial hearings starting on the eve of the inauguration of President-elect Barack Obama, who has vowed to shut Guantanamo, Carl Williams reports for Los Angeles Times.
Army Col. Patrick Parrish has ruled that Khadr's trial can go forward on charges of murder, attempted murder, spying, conspiracy and material support for terrorism. His predecessor as judge in the case, Army Col. Peter E. Brownback III, ruled last spring that the defendant's age and upbringing were "interesting as a matter of policy" but irrelevant to prosecution under the Military Commissions Act of 2006.
Jawad's military judge, Army Col. Stephen R. Henley, ruled similarly on the child soldier question but excluded evidence the government was relying on to convict the Afghan of attempted murder and other charges. Henley ruled that Jawad's confessions were coerced, a decision prosecutors have asked the Court of Military Commission Review to overturn, but it is unclear when that appeal will be decided.
The tribunal's chief prosecutor, Army Col. Lawrence J. Morris, dismisses critics' contentions that juveniles are prohibited from being held accountable for war crimes by the U.N. Convention on the Rights of the Child and a supplemental protocol.
"The convention is misunderstood, if not intentionally misrepresented," Morris said.
"It is not a bar to prosecution."
Army Capt. Keith Petty, on the prosecution team in Khadr's case, said it was up to military jurors at sentencing to consider a convict's age at the time of the offense.
Radhika Coomaraswamy, the U.N. special representative for children in armed conflict, lodged a protest over Khadr's prosecution, warning that it could set a precedent and undermine the protections intended by the convention.
U.N. tribunals established to prosecute alleged war criminals from Yugoslavia, Sierra Leone and Rwanda have tended to treat child soldiers as victims. David Crane, a Syracuse University law professor who served as chief prosecutor in the Special Court for Sierra Leone, wrote that "no child had the mental capacity to commit mankind's most serious crimes."
Defence counsel Kuebler says, "My hope is that the Obama administration, as its first action, will say, 'We don't want to be the first administration in history to preside over the trial of a child soldier for war crimes.' "