Young detainee seeks release
on Apr 1, 2008 at 12:15 pm
Attorneys for a young Canadian held captive at Guantanamo Bay, who was 15 years old when taken prisoner in Afghanistan, have sought his release with the argument that he was too young to be declared an enemy soldier. Relying on the law of war and a treaty joined by the United States six years ago, lawyers for Omar Khadr on Monday urged the D.C. Circuit Court to overturn the military ruling that he is an “enemy combatant” who must remain a prisoner.
The motion, formally seeking “judgment as a matter of law,” requests either his release to his home country for “rehabilitation,” or else a new hearing before a military Combatant Status Review Tribunal to determine if there remains any basis for holding him. The text of the motion, and the accompanying exhibits, can be downloaded here.
Khadr is challenging his confinement, and the CSRT ruling that designated him an enemy, in the Circuit Court under the Detainee Treatment Act. He also is pursuing various challenges to his prosecution on war crimes charges before a U.S. military commission at Guantanamo Bay. Just as he has now raised the “child soldier” question in his DTA plea to the Circuit Court, in January he asked that the war crimes charges be dismissed against him, arguing that a military commission has no jurisdiction over a child. That motion is still pending before a military judge, Army Col. Peter E. Brownback III.
The fact that he was a juvenile when captured in July 2002, the new motion contends, “means that he cannot be treated as a valid, consenting ‘member’ of al-Qaeda, or (indeed) as an ‘enemy combatant’ at all.”
Under the 9/11 Resolution (the Authorization for Use of Military Force), his lawyers contend, the authority to detain individuals connected with groups involved in the 9/11 terrorist attacks “is limited to detention consistent with the law of war…and the law of war recognizes that juveniles lack the capacity and judgment to become valid, consenting ‘members’ of armed forces, and therefore cannot properly be considered ‘enemy combatants’.”
The second legal source cited is the OPtional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Khadr’s counsel notes that the U.S. ratified that Protocol in 2002, and that it bars juveniles under age 18 “from being recruited or used by non-state armed forces under ‘any circumstances’.”
If a minor is used in such a situation, the motion goes on, the Protocol requires that they be treated as victims of inappropriate recruitment, and “offered rehabilitation services and assistance re-integrating into societyl”
The motion says that Khadr’s father, Ahmad Sa’id Khadr, was said to be a senior member of al-Qaeda and a close associate of Osama bin Laden and other leaders of that terrorist network. From the age of 10, the boy Omar, the motion says, was taken by his family on yearly trips to visit bin Laden’s compound in Afghanistant. He was given basic training by al-Qaeda, and was captured during a combat firefight.
The CSRT that weighed his status, according to the motion, found him to be an “enemy combatant” based solely on a finding that he was a member of or affiliated with al-Qaeda. But, it asserts, he was too young, under the laws of war and the Protocol, to be a soldier.
If the Circuit Court does not order his release, the motion seeks the alternative of a new CSRT hearing after the Circuit Court rules that he was not properly labeled a member or affiliate of al-Qaeda.
In the war crimes proceedings still unfolding at Guantanamo Bay, Khadr has been charged with throwing a grenade during a firefight in Afghanistan in July 2002, killing one U.S. solidier and injuring another.
In his plea to dismiss those charges, his attorneys have argued that Congress, when in created the military commission system in 2006, did not give such trial trib unals jurisdiction over juvenile crimes by child soldiers. “A juvenile illegally used in combat by al-Qaeda does not have the requisite military status that has been histroically necessary for military jurisdiction to be exercised,” that motion contended. The motion is supported by various human rights advocates and Canadian parliamentarians.
