September 19th was the birthday of Guantanamo's child soldier and sole Canadian citizen, Omar Khadr, who has been held in isolation since he was 15.
September 19, 2008
By Andy Worthington
Today, Omar Khadr, the sole Canadian citizen in Guantánamo, marks his 22nd birthday in isolation. Seized in Afghanistan when he was just 15 years old, Omar has now spent nearly a third of his life in US custody, in conditions that ought to be shameful to the US administration responsible for holding him, and to the Canadian government that has abdicated its responsibilities towards him.
Under the terms of the Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict), to which both the US and Canada are signatories, juvenile prisoners — defined as those accused of a crime that took place when they were under 18 years of age — “require special protection.” The Optional Protocol specifically recognizes “the special needs of those children who are particularly vulnerable to recruitment or use in hostilities”, and requires its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”
As I have discussed at length before, several factors have conspired to keep Omar in Guantánamo; in particular, US allegations (only recently challenged) that Omar threw a grenade that killed a US soldier in the firefight that preceded his capture; a general indifference towards him in Canada, because of the alleged sins of his family (his father, who raised funds for the welfare of the mujahideen of Afghanistan and their families, was reportedly close to Osama bin Laden); and a disregard for the traditional rules of war, in which not only should a child be protected from punishment, but any combatant seized in wartime should be regarded as a soldier, subject to the prohibition on “cruel and inhuman treatment” and interrogation dictated by the Geneva Conventions, and not held as a terrorist, to be brutalized and interrogated at will.
As Omar turns 22, however, it is abundantly clear that his treatment — which includes a heartless disregard for his terrible wounds in the months following his capture, severe isolation in Guantánamo, and prolonged periods of abuse and humiliation — demonstrates a blatant disregard, on the part of the US administration, for the Geneva Conventions. This kind of behavior is reprehensible in the cases of the adults in US custody, and even more grotesque in the case of Omar and the 21 other juveniles (at least), who have been held in Guantánamo throughout its long history, and who have been deprived of the protection not only of the Geneva Conventions but also of the UN Convention on the Rights of the Child.
Images from a video of Omar’s interrogation in 2003 by Canadian agents, which were released this summer.
What makes Omar’s case even more shocking is that, because of the nature of the “crime” of which he has been accused (killing a US soldier in wartime), he was chosen by the administration for prosecution in its system of “terror trials” at Guantánamo, the Military Commissions — unrelated to any other form of US justice — that were conceived by Vice President Dick Cheney and his close advisers in November 2001.
Although Omar was initially charged in November 2005, his case — like that of the other nine prisoners charged — was dismissed in June 2006, when the US Supreme Court ruled that the entire process was illegal, but he was one of the first prisoners to be charged again (with the Australian David Hicks and the Yemeni Salim Hamdan) when the Commissions were revived by Congress later that year.
For the last 15 months, since the first pre-trial hearings were held, the case against Omar has stumbled from one setback to another. Initially, his case was dismissed by the government-appointed military judge, Col. Peter Brownback, because of discrepancies in the wording of the Military Commissions Act (the legislation that revived the process), and in the last year his military defense team, led by Lt. Cmdr. William Kuebler, and his Canadian civilian attorneys, Dennis Edney and Nathan Whitling, have done everything in their power to persuade the Canadian government to press for Omar’s return, and to persuade the US government to call off his trial.
These have included submissions pointing out the weakness — or illegality — of the government’s claims that the charges against Omar constitute “war crimes,” suitably shocked announcements following the emergence of long-suppressed evidence indicating that Omar did not throw the grenade that killed Sgt. Christopher Speer, and a heartfelt plea for the US government not to set a vile precedent by prosecuting a juvenile. “If jurisdiction is exercised over Mr. Khadr,” the defense team explained, “the military judge will be the first in western history to preside over the trial of alleged war crimes committed by a child. No international criminal tribunal established under the laws of war, from Nuremberg forward, has ever prosecuted former child soldiers as war criminals … A critical component of the response of our nation and the world to the tragedy of the use and abuse of child solders in war by terrorist organizations like al-Qaeda is that post-conflict legal proceedings must pursue the best interest of the victimized child – with the aim of their rehabilitation and reintegration into society, not their imprisonment or execution.”
Although the administration refused to be swayed by any of these complaints, the path to Omar’s proposed trial has continued to be a bumpy one. In March, Col. Brownback criticized the prosecutors for their slow response to demands to hand over information to the defense team. After ordering them to give Omar’s lawyers a list of all US personnel who had interrogated him in Afghanistan and Guantánamo, and to provide them with access to their notes, he postponed the trial’s start date (which was scheduled for May 5) to allow more time for discussions of acceptable evidence, and was promptly dismissed from his job. The administration argued that this was because his appointed tenure had come to an end, but Omar’s lawyers were not convinced.
Even so, his replacement, Col. Patrick Parrish, has also demonstrated his independence, despite initial doubts. In hearings over the summer, Omar’s lawyers submitted a raft of new requests and complaints, calling for independent experts on “false confessions made by juveniles” to be allowed to assess Omar, and accusing Brig. Gen. Thomas Hartmann, the Commissions’ legal adviser, of “unlawful command influence” in connection with the removal of Col. Brownback from the case, and his role in “sexing up” (my phrase) the case for Omar’s prosecution.
Brig. Gen. Hartmann had already been excluded by other government-appointed judges from two other cases — those of Salim Hamdan and the Afghan teenager Mohamed Jawad — but although Col. Parrish refused to exclude him from Omar’s trial (and refused to allow independent experts to assess Omar’s mental state), he dealt a third blow to Brig. Gen. Hartmann’s credibility by ruling soon after that, in the case of a conviction, he was prohibited from reviewing the verdict.
Col. Parrish also dealt another blow to the prosecution in Omar’s case by backing a largely overlooked ruling made by Col. Brownback in April, shortly before his departure, in which the now-retired judge demolished a key plank of the government’s case against Omar by striking out part of the language in the “conspiracy” charge against him. Col. Brownback had ruled that the Secretary of Defense lacked the authority to expand the traditional definition of “conspiracy” to include joining an “enterprise of persons who shared a common criminal purpose,” and Col. Parrish agreed, prompting the government to declare that it would appeal to the “Court of Military Commission Review” that it had been forced to establish last summer after Col. Brownback (for Omar) and Capt. Keith Allred (for Salim Hamdan) had thrown out their cases in June.
In a press release, Lt. Cmdr. Kuebler explained the importance of the decision. “The ruling is significant,” he wrote, “because military commission prosecutors lack evidence to link all but a handful of detainees directly with the 9/11 attacks and other major al-Qaeda atrocities.” He pointed out that the short sentence Salim Hamdan received after his trial partly came about partly because prosecutors were “unable to rely on the expansive ‘enterprise’ definition of conspiracy.” Criticizing the government’s decision to appeal, he explained that, because the prosecutors were “[j]ealous of their advantages in military commission litigation, and unable to change the ruling by changing the judge,” they were now turning to the appeals court “in an effort to unlevel the playing field in their favor.”
Reiterating that “Omar’s anticipated trial violates basic international standards for the treatment of children and child soldiers and takes place in a tribunal in which no US citizen can be tried,” Lt. Cmdr. Kuebler concluded that the decision to appeal the “enterprise” ruling “plainly show[s] that Omar Khadr is a mere guinea pig for the anticipated trials of real terrorists such as Khalid Sheikh Mohammed and other alleged al-Qaeda masterminds.”
With this appeal yet to proceed, Omar’s defense team recently stepped up their efforts to derail the proposed trial. On September 10, Lt. Cmdr. Kuebler once more sought permission for independent experts to evaluate Omar, arguing that the prosecutors’ choice, army psychiatrist Chris Peterson, lacks the required expertise, and also suffers from a conflict of interest, given that military medical teams helped devise the interrogation techniques used at Guantánamo. “You’re basically asking the guy to testify against his employer, and that’s a problem,” Lt. Cmdr. Kuebler explained.
As described in the National Post, one of the medical experts chosen by Lt. Cmdr. Kuebler is “a specialist in child soldiers and victims of torture,” and the other “is conducting a study for the army into blast trauma — which is significant in Mr. Khadr’s case because US forces dropped two 225-kilogram bombs on the compound just ahead of the raid by US ground forces.” Lt. Cmdr. Kuebler explained, “Omar’s condition at the time and his ability to recall, to communicate, is something we have no information on. We need to have someone to evaluate him and to evaluate what was actually broken when he was first taken into custody.” He added that he also believed that the experts would be able to assess the extent to which Omar’s upbringing “has affected his current ability to talk about the past or understand his current predicament.” Omar “has provided us with some information, but not the whole picture,” Lt. Cmdr. Kuebler added, “and we think that’s something we need in order to be competent and ethical at trial.”
The following day, the Associated Press reported that attempts by Canada’s foreign affairs department to “ensure proper medical care and prison conditions” for Omar were being “stymied” by the US authorities. The documents showed “even simple requests to provide Khadr with a pillow, blanket or sunglasses to protect his shrapnel-damaged eyes and body foundering on apparent security concerns.” The agent who visited Omar, Suneeta Millington, who described how shrapnel was “slowly working its way out of Omar’s body,” explained that two pairs of sunglasses were “rejected on the grounds that they might constitute a security risk,” and added, “A number of requests made both by Omar and Canadian government officials either fall through the cracks, go ignored or are not processed in a timely manner.”
At the same time that the Canadian complaints were aired, Omar’s defense team announced another surprise: the existence of another witness to the firefight, in addition to “Lt. Col. W.,” the witness who, in March, was accused of “doctoring a report” to implicate Omar in Sgt. Speer’s death. Lt. Cmdr. Kuebler named the man as Jim Taylor, while admitting that he “could not disclose the government agency or department where Taylor works since it is classified,” and adding that he had not yet met with him “due to instructions from his employer.” He proceeded to explain, as Michelle Shephard described it in the Toronto Star, that Taylor “had written a report — date unknown — claiming more than one occupant of the compound raided by US Special Forces was alive when Speer was wounded.” As the Globe and Mail put it, Lt. Cmdr. Kuebler told the court that “there were multiple people alive.”
After another surprise — a potentially damaging admission by the prosecution that, at the time of his capture, Omar had indeed been “a ‘child,’ in need of special consideration” — Col. Parrish, once more chiding the prosecutors for their delays in providing information to the defense, postponed the trial until November 10, after both the Canadian and US elections. The results of either election — or both — may be significant to Omar, but it makes little difference to him today, as he passes his sixth successive birthday in Guantánamo, alone. Historic though his case may be, it’s doubtful whether the ripples of indignation that have been steadily building over the last three years, as his lawyers and other supporters have sought to humanize this lost child, will touch him in his solitude.
Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).
Letters can be sent to
Omar Khadr, #766
PO Box 160
Washington DC 20053
Optional Protocol to the Convention on the Rights of the Child
on the involvement of children in armed conflict
Adopted and opened for signature, ratification and
accession by General Assembly resolution
A/RES/54/263 of 25 May 2000
entered into force on 12 February 2002
The States Parties to the present Protocol,
Encouraged by the overwhelming support for the Convention on the Rights of the Child, demonstrating the widespread commitment that exists to strive for the promotion and protection of the rights of the child,
Reaffirming that the rights of children require special protection, and calling for continuous improvement of the situation of children without distinction, as well as for their development and education in conditions of peace and security,
Disturbed by the harmful and widespread impact of armed conflict on children and the long-term consequences it has for durable peace, security and development,
Condemning the targeting of children in situations of armed conflict and direct attacks on objects protected under international law, including places that generally have a significant presence of children, such as schools and hospitals,
Noting the adoption of the Rome Statute of the International Criminal Court, in particular, the inclusion therein as a war crime, of conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities in both international and non-international armed conflicts,
Considering therefore that to strengthen further the implementation of rights recognized in the Convention on the Rights of the Child there is a need to increase the protection of children from involvement in armed conflict,
Noting that article 1 of the Convention on the Rights of the Child specifies that, for the purposes of that Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier,
Convinced that an optional protocol to the Convention that raises the age of possible recruitment of persons into armed forces and their participation in hostilities will contribute effectively to the implementation of the principle that the best interests of the child are to be a primary consideration in all actions concerning children,
Noting that the twenty-sixth International Conference of the Red Cross and Red Crescent in December 1995 recommended, inter alia, that parties to conflict take every feasible step to ensure that children below the age of 18 years do not take part in hostilities,
Welcoming the unanimous adoption, in June 1999, of International Labour Organization Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, which prohibits, inter alia, forced or compulsory recruitment of children for use in armed conflict,
Condemning with the gravest concern the recruitment, training and use within and across national borders of children in hostilities by armed groups distinct from the armed forces of a State, and recognizing the responsibility of those who recruit, train and use children in this regard,
Recalling the obligation of each party to an armed conflict to abide by the provisions of international humanitarian law,
Stressing that the present Protocol is without prejudice to the purposes and principles contained in the Charter of the United Nations, including Article 51, and relevant norms of humanitarian law,
Bearing in mind that conditions of peace and security based on full respect of the purposes and principles contained in the Charter and observance of applicable human rights instruments are indispensable for the full protection of children, in particular during armed conflicts and foreign occupation,
Recognizing the special needs of those children who are particularly vulnerable to recruitment or use in hostilities contrary to the present Protocol owing to their economic or social status or gender,
Mindful of the necessity of taking into consideration the economic, social and political root causes of the involvement of children in armed conflicts,
Convinced of the need to strengthen international cooperation in the implementation of the present Protocol, as well as the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict,
Encouraging the participation of the community and, in particular, children and child victims in the dissemination of informational and educational programmes concerning the implementation of the Protocol,
Have agreed as follows:
States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.
States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.
1. States Parties shall raise the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection.
2. Each State Party shall deposit a binding declaration upon ratification of or accession to the present Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced.
3. States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that:
(a) Such recruitment is genuinely voluntary;
(b) Such recruitment is carried out with the informed consent of the person's parents or legal guardians;
(c) Such persons are fully informed of the duties involved in such military service;
(d) Such persons provide reliable proof of age prior to acceptance into national military service.
4. Each State Party may strengthen its declaration at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall inform all States Parties. Such notification shall take effect on the date on which it is received by the Secretary-General.
5. The requirement to raise the age in paragraph 1 of the present article does not apply to schools operated by or under the control of the armed forces of the States Parties, in keeping with articles 28 and 29 of the Convention on the Rights of the Child.
1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.
2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.
3. The application of the present article shall not affect the legal status of any party to an armed conflict.
Nothing in the present Protocol shall be construed as precluding provisions in the law of a State Party or in international instruments and international humanitarian law that are more conducive to the realization of the rights of the child.
1. Each State Party shall take all necessary legal, administrative and other measures to ensure the effective implementation and enforcement of the provisions of the present Protocol within its jurisdiction.
2. States Parties undertake to make the principles and provisions of the present Protocol widely known and promoted by appropriate means, to adults and children alike.
3. States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.
1. States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with the States Parties concerned and the relevant international organizations.
2. States Parties in a position to do so shall provide such assistance through existing multilateral, bilateral or other programmes or, inter alia, through a voluntary fund established in accordance with the rules of the General Assembly.
1. Each State Party shall, within two years following the entry into force of the present Protocol for that State Party, submit a report to the Committee on the Rights of the Child providing comprehensive information on the measures it has taken to implement the provisions of the Protocol, including the measures taken to implement the provisions on participation and recruitment.
2. Following the submission of the comprehensive report, each State Party shall include in the reports it submits to the Committee on the Rights of the Child, in accordance with article 44 of the Convention, any further information with respect to the implementation of the Protocol. Other States Parties to the Protocol shall submit a report every five years.
3. The Committee on the Rights of the Child may request from States Parties further information relevant to the implementation of the present Protocol.
1. The present Protocol is open for signature by any State that is a party to the Convention or has signed it.
2. The present Protocol is subject to ratification and is open to accession by any State. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.
3. The Secretary-General, in his capacity as depositary of the Convention and the Protocol, shall inform all States Parties to the Convention and all States that have signed the Convention of each instrument of declaration pursuant to article 3.
1. The present Protocol shall enter into force three months after the deposit of the tenth instrument of ratification or accession.
2. For each State ratifying the present Protocol or acceding to it after its entry into force, the Protocol shall enter into force one month after the date of the deposit of its own instrument of ratification or accession.
1. Any State Party may denounce the present Protocol at any time by written notification to the Secretary- General of the United Nations, who shall thereafter inform the other States Parties to the Convention and all States that have signed the Convention. The denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General. If, however, on the expiry of that year the denouncing State Party is engaged in armed conflict, the denunciation shall not take effect before the end of the armed conflict.
2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under the present Protocol in regard to any act that occurs prior to the date on which the denunciation becomes effective. Nor shall such a denunciation prejudice in any way the continued consideration of any matter that is already under consideration by the Committee on the Rights of the Child prior to the date on which the denunciation becomes effective.
1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.
2. An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly and accepted by a two-thirds majority of States Parties.
3. When an amendment enters into force, it shall be binding on those States Parties that have accepted it, other States Parties still being bound by the provisions of the present Protocol and any earlier amendments they have accepted.
1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States Parties to the Convention and all States that have signed the Convention.