Toronto Star

Campaign to free Khadr escalates

Former U.S. prosecutor for Sierra Leone’s trials of war crimes joins push for Canadian’s release


Is Canadian Omar Khadr a child soldier in need of protection, not prosecutio­n? It’s a question garnering internatio­nal attention and one that a military judge in Guantanamo Bay will soon be asked to answer. The former U.S. prosecutor for Sierra Leone’s war crimes trials has joined those now pushing for Khadr’s release and rehabilita­tion. In an interview with the Toronto Star, David Crane questioned how the U.S. and Canada could be sympatheti­c to the plight of Africa’s child soldiers who are forced to commit atrocious crimes but not Khadr, who was 15 when he was captured in Afghanista­n. “This is the first time in history that a child has been prosecuted for war crimes,” said Crane. “This is just horrific. I think it reflects badly on the way the world should go in its protection of children. We should be seeking out and trying to, as the UN has done in many initiative­s, to stamp out child soldiers.” Crane, now a professor at Syracuse University College of Law, said he believes Canada’s internatio­nal reputation as a protector of human rights has been tarnished by its support of the Pentagon’s prosecutio­n of Khadr. “I’m just not sure why the Canadian government, which was tremendous­ly important in my work in West Africa, they were incredibly supportive, is not making a bigger deal of this.” Khadr’s lawyers are now preparing a motion asking that the charges against Khadr be dismissed since his prosecutio­n would violate internatio­nal law protecting child soldiers. Navy Lt.-Cmdr. Bill Kuebler said he expects to file the motion to Guantanamo judge Col. Peter Brownback as early as Friday.

Kuebler anticipate­s his motion will be backed by a host of internatio­nal intervener­s. The United Nations’ Special Representa­tive for Children in Armed Conflict has already raised Khadr’s case with the U.S. Secretary of State’s top legal adviser, John Bellinger, and last month Britain’s top five legal bar associatio­ns wrote Prime Minister Stephen Harper urging that he issue a formal protest.

Toronto-born Khadr is the second

youngest son of Ahmed Said Khadr, who was killed by Pakistani forces in October 2003. He was raised with his siblings in Canada, Pakistan and Afghanista­n, where his father had a close associatio­n with Osama bin Laden and Al Qaeda’s ideologue, Ayman al Zawahiri. After the 9/11 attacks the family fled to the area between Pakistan and Afghanista­n. It’s alleged Omar Khadr was sent by his father to translate for one of bin Laden’s men. Khadr was shot and captured in Afghanista­n on July 27, 2002, after afirefight during which Delta Force soldier Christophe­r Speer was fatally wounded by a grenade the Pentagon alleges Khadr threw. Now 21, Khadr is expected to go before a military commission this year on trial for war crimes that include murder in violation of the laws of war, attempted murder, spying, providing material support to terrorism and conspiracy. The question the military judge will be asked to answer is whether internatio­nal law permits the prosecutio­n of someone for war crimes who was under the age of 18 at the time of the alleged offences. The U.S. administra­tion says it does. “Mr. Khadr is not a child under internatio­nal law or entitled to any special protection,” said Office of Military Commission­s spokespers­on Lt. Catheryne Pully. “The Geneva Convention­s and their Protocols contemplat­e the prosecutio­n of those under the age of 18 for violations of the laws of war.” While both the Geneva Convention­s and the Convention on the Rights of the Child do have provisions dealing with the prosecutio­n of children older than 15, there has never before been a war crimes trial of someone younger than 18. This is due to customary internatio­nal law; in other words, how the convention­s have been interprete­d, argues Canadian internatio­nal law professor Michael Byers. Because the convention­s recognize child soldiers as under 18 and require they be given special protection, Byers says, keeping Khadr behind bars for five years and trying him for war crimes would violate those internatio­nal treaties. Like Crane, Byers argues that Canada’s continued support for the trial damages the government’s ability to push for human rights issues in the future. “For Canada to not step in in this instance and seek to repatriate someone, who in addition to being a Canadian citizen, was 15 at the time of the alleged offence, just makes a mockery of Canada’s claim to be a country that stands for human rights,” he said. Guantanamo’s former chief prosecutor, Air Force Col. Moe Davis, resigned from his position last year and has since become a critic of the military commission­s that he says are unduly influenced by politics. But Khadr’s age is not something that ever concerned him. “Obviously my opinion on commission­s has done a one-eighty on a lot of the issues but I still think the whole child-soldier thing is a red herring,” he said in an interview with the Star.

“If you look at Sierra Leone, which the UN helped create and has sanctioned, there it says anyone who has not yet attained the age of 15 is not subject to prosecutio­n.”

As for the fact that the former prosecutor in Sierra Leone said he would refuse to try someone under the age of 18, Davis replies, “That’s fine but it still doesn’t change the law. The law still says the court has jurisdicti­on over anyone who has obtained the age of 15.”

Davis also points out that the American and Canadian domestic justice systems routinely try 15year-olds. “He’d be held accountabl­e in this country or in your country under similar circumstan­ces, so I don’t see why he should get a free pass because he did this in Afghanista­n,” Davis said.

But the laws of armed conflict, under which the U.S. administra­tion has charged Khadr, cannot be compared to domestic law, Kuebler counters. “We prosecute children for crimes. We hold them criminally responsibl­e on the general theory that at a certain age you require a basic understand­ing of right and wrong and you can be held accountabl­e for your actions,” he said.

“There’s a general idea that, hey, a 14- or 15-year-old probably knows that it’s wrong to steal, it’s wrong to kill, it’s wrong to do various things that are anti-social. In war, those norms don’t apply. In war, it is okay to kill, it is okay to destroy property, it is okay to do things (it is) not otherwise okay in normal life to do.”

That’s why, Kuebler argues, children who were indoctrina­ted into war can’t be expected to understand the laws of armed conflict.

“Is it any way reasonable to expect a child to understand these highly nuanced, sophistica­ted concepts of the war of armed conflicts that say you can kill people but you can only kill people if you’re wearing certain clothes?”

 ??  ?? Omar Khadr was captured in Afghanista­n when he was 15 years old
Omar Khadr was captured in Afghanista­n when he was 15 years old
 ?? RENÉ JOHNSTON/TORONTO STAR FILE PHOTO ?? Soldiers wait at the gate of Guantanamo Bay’s Camp 5 maximum security camp, where Canadian Omar Khadr is being held.
RENÉ JOHNSTON/TORONTO STAR FILE PHOTO Soldiers wait at the gate of Guantanamo Bay’s Camp 5 maximum security camp, where Canadian Omar Khadr is being held.
 ??  ?? Khadr is shown, above, in a courtroom sketch June 4 at Guantanamo Bay naval base and cleared for release by U.S. military officials.
Khadr is shown, above, in a courtroom sketch June 4 at Guantanamo Bay naval base and cleared for release by U.S. military officials.

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