International law and laws of war and international criminal law - prosecution of child soldiers - United States v. Omar Ahmed Khadr.

Author:Ryan, Daniel

INTERNATIONAL LAW AND LAWS OF WAR AND INTERNATIONAL CRIMINAL LAW--PROSECUTION OF Child Soldiers--United States v. Omar Ahmed Khadr, (Military Comm'n, referred Apr. 24, 2004) (1)


At Guantanamo Bay, Cuba, Omar Ahmed Khadr waits for his trial for war crimes, allegedly committed when he was fifteen years old, to resume. (2) Mr. Khadr's case raises the question of when, if ever, children should be prosecuted for violations of the laws of war. (3) In 2008, the Military Commission in the Khadr case ruled that the law does not prohibit the prosecution of juveniles for violations of the laws of war. (4) While the Commission's holding may have been accurate as a matter of law, the policy of the United States to detain and prosecute juveniles for war crimes is inconsistent with the United States' obligations to rehabilitate and reintegrate child soldiers. (5)


Omar Ahmed Khadr, a Canadian citizen, was born on September 19, 1986 in Toronto, Canada. (6) In 1990, at the age of four, Khadr moved with his family to Pakistan and then in 1996, to Afghanistan. (7) On July 27, 2002, Khadr was captured by U.S. forces and held in detention in Afghanistan for three months before being transferred to Guantanamo Bay, Cuba. (8) On February 2, 2007, more than four years after his capture, Khadr was charged with murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, providing material support to terrorism, and spying. (9) At the time of the alleged offenses, Mr. Khadr was fifteen years old. (10) On January 21, 2009, following the inauguration of President Obama, the Commission granted a four month continuance of Mr. Khadr's case while the new administration conducts a review of the Military Commission system and all cases before it. (11)


The Military Commissions Act

The Military Commissions Act (MCA) of 2006 authorized the President to establish Military Commissions to try "alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war." (12) The MCA defines unlawful enemy combatants as:

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its cobelligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);


(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. (13)

International Law of Child Soldiers

International law maintains the somewhat contradictory views that child soldiers are to be treated as both victims and perpetrators. (14) Children unlawfully forced to participate in hostilities are to be disarmed, demobilized, and reintegrated into society, as required by the Optional Protocol to the Convention on the Rights of the Child (Optional Protocol to C.R.C), State practice and opinio juris. (15) Significantly, the United States is a signatory to the C.R.C. (16)

While international law gives preference to the rehabilitation and reintegration of child soldiers, it does not expressly prohibit the prosecution of children for violations of the laws of war. (17)

Following the Second World War, at least two Allied military tribunals in Germany prosecuted children for war crimes.18 Matthew Happold has documented numerous examples of prosecutions of child soldiers at the national level, notably in the Democratic Republic of Congo and Uganda. (19) The statute of the Special Court for Sierra Leone expressly grants the court jurisdiction over persons aged fifteen and above. (20) Even Amnesty International has implied that prosecution may be appropriate where the "child soldier concerned was clearly in control of his or her actions," "committed atrocities voluntarily" and was "not coerced, drugged or forced into committing atrocities." (21) Nonetheless, should a State choose to prosecute child soldiers for war crimes, it is bound to afford them both the general protections extended to all accused as well as specific protections owed toward juvenile defendants. (22) Furthermore, juveniles are to be afforded the defenses of infancy, duress, involuntary intoxication and any other available defense to negate or mitigate criminal responsibility. (23)

Notwithstanding the express protections afforded juvenile defendants and the absence of a clear prohibition on the prosecution of child soldiers, there is considerable State practice and opinio juris counseling against the prosecution of child soldiers. (24) For example, during the drafting of Additional Protocol I to the Geneva Conventions in the 1970s, at least one state delegate sought to prohibit the penal prosecution of children. (25) During the drafting of the Rome Statute in the late 1990s, child rights advocates called upon delegates to specify eighteen as the minimum age of criminal responsibility. (26) The state delegates settled on a procedural, rather than normative, solution to the question by deciding to exclude jurisdiction over persons who were under the age of eighteen at the time of the alleged commission of a war crime. (27) To date, this provision has been accepted by the 139 states that have since signed or ratified the Rome Statute. (28)

Following the civil war in Sierra Leone in 2001, international and local children's rights organizations were unanimous in their opposition to the prosecution of children under eighteen on the grounds that prosecution would undermine efforts to disarm, demobilize, and reintegrate child combatants into society. (29)

Although the Statute of the Special Court ultimately authorized the prosecution of child soldiers over the age of fifteen, the Chief Prosecutor declined to seek the indictment of child soldiers for war crimes stating: "The children of Sierra Leone have suffered enough both as victims and perpetrators. I am not interested in prosecuting children. I want to prosecute the people who forced thousands of children to commit unspeakable crimes." (30) Instead of prosecution, participation of child soldiers in forums such as the Truth and Reconciliation Commission served to find forgiveness, reconciliation, and justice in Sierra Leone. (31)

The Optional Protocol to the C.R.C., adopted in 2000 and...

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