United States of America v. Omar Ahmed Khadr
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||Military Commission, United States
||Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier
||30 April 2008
- United States of America
- Omar Ahmed Khadr, a.k.a. Akhbar Famad, a.k.a. Akhbar Farnad, a.k.a. Ahmed Muhammed Khahi
- Ahmed Muhammed Khahi
- Akhbar Famad
- Akhbar Farhad
||child, child soldier, jurisdiction, Murder, Non-international armed conflict, Terrorism
|Other countries involved
Omar Ahmed Khadr was 15 years old when he was captured by United States forces in Pakistan in 2003 and transferred to detention at Guantanamo Bay, Cuba. His first trial before a military commission was due to proceed until the United States Supreme Court ruled that such commissions were unlawful. Following Congress’ enactment of the 2006 Military Commissions Act, Khadr was again charged and due to stand trial before the new military commissions for conspiracy, murder, attempted murder, spying and material support for terrorism for his alleged involvement with Al Qaeda.
The present decision is the result of a motion by lawyers for Khadr attempting to halt the proceedings by arguing that the military commissions have no jurisdiction to try child soldiers. The motion was rejected by the Judge on the grounds that nothing in customary international law or international treaties, or indeed in the text of the Military Commissions Act bars proceedings against child soldiers for violations of the laws of war. This decision paved the way for Khadr’s trial to begin in October 2010. It concluded following a plea arrangement in which Khadr pleaded guilty to the charges and received an 8-year sentence. He has recently been transferred to his native Canada to carry out the remainder of his sentence.
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Omar Ahmed Khadr, a Canadian citizen, was captured in Afghanistan in July 2002 at the age of 15. He was transferred to Guantanamo Bay in November 2002.
On 8 September 2004, the Combatant Status Review Tribunal concluded that Khadr was an “enemy combatant”.
On 7 November 2005, Khadr was charged with conspiracy, murder, attempted murder and aiding the enemy for his involvement with al Qaeda.
After the Supreme Court of the United States ruled that the Military Commissions were unlawful, a new 2006 Military Commissions Act re-established them. Pursuant to this act, Khadr was charged again on 2 February 2007 with murder, attempted murder, conspiracy, providing material support for terrorism and spying.
On 4 June 2007, all charges against Khadr were dismissed because he was not classified as an “unlawful enemy combatant”, a prerequisite for the exercise of jurisdiction by Military Commission.
On 9 September 2007, this decision was overturned and charges were reinstated against Khadr.
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On 23 May 2008, the Supreme Court of Canada ruled that Khadr had a constitutional right to see the confidential documents provided by the Canadian government to the US authorities following the Canadian’s interrogation of Khadr in 2003. The Court, however, further held that some information could be withheld for national security purposes (see here).
On 23 April 2009, the Federal Court of Canada ordered the Canadian government to seek Khadr’s repatriation. The Federal Court of Appeal of Canada upheld this decision on appeal. On 29 January 2010, however, the decision was reversed by the Supreme Court of Canada which held that the government had no such obligation.
On 5 July 2010, the Federal Court of Canada held that the Canadian government had seven days to remedy its breach of Khadr’s rights. See also Department of Justice (Canada), 'Statement by Justice Minister Rob Nicholson Regarding the Government of Canada’s Appeal of the Federal Court’s Khadr Decision', 12 July 2010. In appeal, on 22 July 2010, the Federal Court of Appeal of Canada reversed the decision by holding that the lower court has no authority to impose this remedy and the decision had interfered with matters solely in the domain of the government.
On 2 August 2010, the Supreme Court of the United States denied Khadr’s petition for a writ of mandamus to review the constitutionality of the Military Commissions and the validity of the proceedings against him. The trial against Khandr commenced on 10 August 2010.
On 14 October 2010, proceedings were suspended as the parties began to negotiate a plea agreement, which was announced on 15 October.
On 31 October 2010, the details of the plea agreement and the sentene were released. Khadr admitted his guilt and would receive a sentence of 40 years’ imprisonment. Under the terms of the agreement, Khadr would serve a maximum of 8 years (see Department of Defense, 'DoD Announces Sentence for Detainee Omar Khadr'; and Department of Defense, 'Details of Omar Khadr Plea Agreement Released').
In April 2012, Khadr sent an application to the Canadian government requesting a transfer to his home state. On 29 September 2012, Khadr was transferred to Canada where he will serve the remainder of his 8-year sentence. See Department of Defense, 'Detainee Transfer Announced'.
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Legally relevant facts
According to the charges, Omar Ahmed Khadr lived in Pakistan and travelled throughout Pakistan and Afghanistan from 1996 until 2001. He is alleged to have visited the compound of Usama bin Laden with his family, and to have personally met Al Qaeda leaders, and visited training camps and guest houses.
In the summer of 2002, Khadr received private Al Qaeda basic training. Upon completion, Khadr joined a team of Al Qaeda operatives and converted landmines into remotely detonated explosive devices with the purposes of targeting US and coalition forces.
Khadr was captured by US forces on 27 July 2002 (pp. 3-4, Charges of 2 February 2007).
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Core legal questions
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- Are Military Commissions under the 2006 Military Commissions Act entitled to exercise jurisdiction over crimes committed by child soldiers, that is children under the age of 15 at the time of the alleged acts?
Specific legal rules and provisions
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- Paragraphs 948a(1), d(a), 950v(b)(15),(25),(27),(28) and 950t of the US 2006 Military Commissions Act.
- Paragraph 5031 et seq. of the Juvenile Delinquency Act.
- Article 7(1) of the Optional Protocol to the Convention on the Rights of the Child.
Court's holding and analysis
The 2006 Military Commissions Act does not expressly provide for an age limitation, thus it is clear that Congress did not limit the jurisdiction of a military commission so that persons of a certain age could not be tried (pp. 2-3). Neither can such a limitation be imported from the Juvenile Delinquency Act, which does not apply in the instant case as military commissions are not courts of the United States within the meaning of that Act (pp. 3-4). Finally, the Optional Protocol to the Convention on the Rights of the Child does not bar proceedings against Mr Khadr as the Committee on the Rights of the Child has only identified 12 years of age as the absolute minimum age of criminal responsibility. Mr Khadr was fifteen at the time of the alleged events (pp. 5-6).
The Commission concluded that neither customary international law nor international treaties binding upon the United States prohibit the trial of a person for alleged violations of the law of nations committed when he was 15 years old. The motion for dismissal was denied (pp. 6-7).
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- R. Liss, 'The Abuse of Ambiguity: The Uncertain Status of Omar Khadr and His Alleged Crimes Under International Law – Considering Concepts of Combatant, Child Soldier and Murder in Violation of the Law of War', Canadian Yearbook of International Law (Forthcoming), 26 March 2012;
- D. Rangaviz, 'Dangerous Deference: The Supreme Court of Canada in Canada v. Khadr', Harvard Civil Rights & Civil Liberties Review, 2011, Vol. 46, pp. 253 et seq.;
- A. Singh, 'United States of America v. Khadr: Should He Stay or Should He Go?', 2011;
- L. McGregor, 'Are Declaratory Orders Appropriate for Continuing Human Rights Violations? The Case of Khadr v. Canada', Human Rights Law Review, 2010, Vol. 10, pp. 487 et seq.;
- D.W. Glazier, 'A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr', Loyola-LA Legal Studies Paper No. 2010-37, 2010;
- D.W. Glazier, 'Still a Bad Idea: Military Commissions Under the Obama Administration', Loyola-LA Legal Studies Paper No. 2010-32, 2010;
- D. Ryan, 'International Law and the Laws of War and International Criminal Law – Prosecution of Child Soldiers', Suffolk Transnational Law Review, 2010, Vol. 33, pp. 175 et seq.;
- A. Macklin, 'Comment on Canada (Prime Minister) v. Khadr', 2010;
- S. Grover, 'Canada’s Refusal to Repatriate a Canadian Citizen from Guantanamo Bay as a Violation of the Humanitarian Values Underlying the Principle of Non-Refoulement: A Reanalysis of Omar Ahmed Khadr v. Prime Minister of Canada', High Court Quarterly Review, 2009, Vol. 5, pp. 42 et seq.;
- R J. Wilson, 'Children in Armed Conflict: The Detention of Children at Guantanamo Bay, and the Trial for War Crimes by Military Commission of Omar Khadr, A Child', American University, WCL Legal Studies Research Paper No. 2009-13, 2009;
- M. Shephard, Guantanamo’s Child: The Untold Story of Omar Khadr, 2008;
- A. Macklin, 'From Cooperation, to Complicity, to Compensation: The War on Terror, Extraordinary Rendition and the Cost of Torture', European Journal of Migration and Law, 2008, Vol. 10, pp. 11-30;
- C.L. Dore, 'What to Do with Omar Khadr? Putting a Child Soldier on Trial: Questions of International Law, Juvenile Justice and Moral Culpability', Marshall Law Review 2007, Vol. 41, pp. 1281 et seq.;
- M.A. Jamison, 'Detention of Juvenile Enemy Combatants at Guantanamo Bay: The Special Concerns of Children', UC Davis Journal of Juvenile Law and Policy, 2005, Vol. 9, pp. 127 et seq..
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- S. Bell, 'As Convicted Terrorists Face Possible Release, Canada Faced with Growing Problem: How Do You Rehabilitate Them?', National Post, 30 November 2012;
- D. Ljunggren, 'Guantanamo Detainee Having Tough Time Back in Canada: Lawyer', Reuters, 1 October 2012;
- AP, 'Omar Khadr Leaves Guantanamo to Return to Canada, The Guardian, 29 September 2012;
- BBC, 'Youngest Guantanamo Prisoner Omar Khadr Moved to Canada', BBC News, 29 September 2012;
- I. Austen, 'Sole Canadian Held at Guantanamo Bay is Repatriated', The New York Times, 29 September 2012;
- C. Savage, 'Child Soldier for Al Qaeda is Sentenced for War Crimes', The New York Times, 1 November 2010
- C. Savage, 'Deal Averts Trial in Disputed Guantanamo Case', The New York Times, 25 October 2010;
- BBC, 'Youngest Guantanamo Inmate, Canadian Omr Khadr, Tried', BBC News, 10 August 2010;
- BBC, 'Canadian’s “Confessions” Allowed at Guantanamo Trial', BBC News, 10 August 2010;
- Statement of SRSG Ms. Radhika Coomaraswamy on the Occasion of the Trial of Omar Khadr before the Guantanamo Military Commission, 10 August 2010;
- BBC, 'Canada “Not Obliged to Help Guantanamo Man”', BBC News, 29 January 2010;
- McClatchy Newspapers, 'Guantanamo War Court Back in Session to Hear Case of Canadian Omar Khadr', The Guardian, 13 August 2008;
- P. Lewis, 'Guantanamo Video Shows Interrogation of Sobbing Canadian Youth', The Guardian, 15 July 2008;
- BBC, 'Guantanamo Detainee Wins Ruling', BBC News, 23 May 2008;
- BBC, 'Guantanamo Detainee Loses Appeal', BBC News, 25 September 2007;
- BBC, 'Guantanamo Pair’s Charges Dropped', BBC News, 5 June 2007.
Social media links
- BBC Blogs, 'Can a Child Soldier Commit a War Crime?'', 29 September 2012;
- K.J. Heller, 'Khadr Admitted to Being a Murderer – But Did He Mean It?', Opinio Juris, 26 October 2010;
- J. Ku, 'Why the Law of War Permits the US to Detain and Try 16-Year-Olds Like Omar Khadr', Opinio Juris, 14 April 2010;
- R. Alford, 'Charges Dropped Against Omar Khadr', Opinio Juris, 5 June 2007;
- N. Bhuta, 'Canadian Supreme Court Decision in Khadr', EJIL:Talk!, 29 January 2010;
- E. Prochaska, 'Testing the Limits of Diplomatic Protection: Khadr v. Prime Minister of Canada', EJIL:Talk!, 7 October 2009;
- J. Tietz, 'The Unending Torture of Omar Khadr', Rolling Stone, 10 August 2006.