Wednesday, April 25, 2007

War crimes charges for alleged acts by a child

Having disposed of the troublesome case of David Hicks, the U.S. Department of Defense yesterday levied charges against Omar Khadr, whom it calls another "person subject to trial by military commission as an alien unlawful combatant." This case too is liable to prove troublesome. That is not just because the Canadian-born Khadr is, like the Australian Hicks, a Westerner. Nor is it only because 1 of the offenses with which Khadr is charged, conspiracy, is unknown to the international laws of war, as 4 U.S. Supreme Court Justices concluded last year in Hamdan v. Rumsfeld. (Charged in addition to conspiracy to join the al Qaeda terrorist network: murder of a U.S. Army sergeant, attempted murder of other coalition troops, material support for terrorism, and spying.) Particularly troublesome are the dates of the conduct alleged -- June and July 2002, when Khadr was 15 years old. Even assuming the allegations are true, he was a child soldier, the kind of combatant who in other conflicts has been treated as deserving of special treatment aimed at rehabilitation. (See, for example, arts. 36-40 of the Convention on the Rights of the Child, of which the United States is virtually the only non-state-party, and also my Calling Children to Account: The Proposal for a Juvenile Chamber in the Special Court for Sierra Leone, 29 Pepperdine L. Rev. 167 (2001).) Instead, as 1 of his attorneys, American University Law Professor Richard J. Wilson, has detailed, Khadr has been subjected to indefinite detention at Guantánamo -- a situation condemned by the Inter-American Commission on Human Rights. To that detention now add prosecution before a tribunal that purports to apply an internationalized law yet, contrary to international law, makes no differentiation based on the age of the accused.

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