Document - USA: In whose best interests? Omar Khadr, child ‘enemy combatant’ facing military commission

UNITED STATES OF AMERICA

In whose best interests?

Omar Khadr, child ‘enemy combatant’ facing military commission

Introduction

Omar passed his 16^th, 17^th, and 18^th birthdays in virtual isolation, cut off from all but the most rudimentary communication with his family or anyone else in the outside world until our first visit with him. In addition to the most basic protections of children against improper assaults, he was denied the medical attention and other health care, diet, education, and recreation that all children deserve and are entitled to as a matter of fundamental human rights¹

In a speech on 7 February 2008, US Vice President Dick Cheney said that “the United States is a country that takes human rights seriously”.²A week later, President George W. Bush was asked whether he could say, after all the revelations about US detentions in the “war on terror”, that the USA “occupies the moral high ground”. “Absolutely”, responded the President, “We believe in human rights and human dignity… And we’re willing to take the lead... And history will judge the decisions made during this period of time as necessary decisions.”³

Necessity, it is said, is the mother of invention. Invention, however, is a dangerous concept in the hands of a government which, in the words of a former senior US Justice Department official, “chose to push its legal discretion to its limit and rejected any binding legal constraints on detainee treatment” in the “war on terror”.⁴For detainees, this has meant secret, incommunicado and indefinite detention, torture and other ill-treatment, and the denial of due process. In the case of Omar Ahmed Khadr, the US government’s “taking the lead” consists of it testing its flawed military commission system – reserved according to President Bush for “unlawful combatants who seek to destroy our country and our way of life”⁵– on an individual it took into custody as a child. Taking human rights “seriously” has meant ignoring international law and treating Omar Khadr as if his age at capture was of no legal consequence.

Omar Khadr, a Canadian national, has been in US military detention for approaching six years, a quarter of his life. Taken into custody in July 2002 in the context of a firefight with US forces in Afghanistan when he was 15 years old, he is accused among other things of having thrown a grenade which killed a US soldier. The teenager was held and interrogated in the US air base in Bagram for several months before being transferred shortly after he turned 16 to the US Naval Base in Guantánamo Bay, Cuba, where he remains. He is now 21 years old.

Anyone asked to list characteristics associated with childhood would probably include attributes such as immaturity, suggestibility, malleability, poor judgment, an underdeveloped sense of responsibility, and a vulnerability to peer pressure and to the domination or example of elders. Common agreement about the existence of such characteristics lies behind the special protections in international law and standards for children who come into conflict with the law or who are recruited for use in armed conflict.

[T]he experience of mankind, as well as the long history of our law, [shows] that the normal 15-year-old is not prepared to assume the full responsibilities of an adult… Youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment expected of adults. Less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. The basis for this conclusion is too obvious to require extended explanation. Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult. Thompson v. Oklahoma, US Supreme Court, 1988

From the end of the 19^th century, the USA developed a legal system specifically for children, with a mandate to promote their welfare. However, particularly during the final years of the 20^th century, as part of a generally more punitive approach to crime, US authorities increasingly prosecuted and punished children as if they were adults. A punitive philosophy has frequently defeated rehabilitative efforts and has taken the USA further from international standards on juvenile justice. The USA’s treatment of Omar Khadr and other child detainees in the “war on terror” is reflective of this regression as well as of the government’s refusal to apply international human rights law under its global war paradigm (see below).

“Age”, according to the Pentagon, “is not a determining factor in detention”.⁶Instead of his status as a minor being recognized and being treated accordingly, Omar Khadr was designated – along with hundreds of other detainees, including other children – as an “enemy combatant”. This status, with the legal consequences ascribed to it by the USA, is unrecognized in international law. Like other detainees, Omar Khadr has been denied access to an independent and impartial court to challenge the lawfulness of his detention, and his detention was instead reviewed, more than two years after he was captured, by the improvised and wholly inadequate executive review scheme known as the Combatant Status Review Tribunal. He is now facing a “war crimes” trial by a military commission the procedures of which do not comply with international fair trial standards and contain no juvenile justice provisions. Omar Khadr’s trial was originally scheduled to begin on 5 May 2008. This has been postponed as pre-trial proceedings continue in his case. At the time of writing, no new date for trial had been set.

No existing international tribunal has ever prosecuted a child for war crimes, reflecting the wide recognition that the recruitment and use of children in armed conflict is a serious abuse in itself. This does not mean that a child above the age of criminal responsibility cannot be held accountable for crimes committed in the context of armed conflict, as in any other context. Appropriate recognition must be given to the age of the child at the time of the alleged crime and the rehabilitative priority, however. In February 2007, the month that the Pentagon announced charges against Omar Khadr under the Military Commissions Act (MCA), 58 countries endorsed the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (and another eight countries have endorsed them since). They agreed that “Children who are accused of crimes under international law allegedly committed while they were associated with armed forces or armed groups should be considered primarily as victims of offences against international law; not only as perpetrators. They must be treated in accordance with international law in a framework of restorative justice and social rehabilitation, consistent with international law which offers children special protection through numerous agreements and principles.” The MCA provides no such framework.

In its annual reports on human rights in other countries, the US State Department condemns the use of children in armed conflict and preventing this global scourge remains a US foreign policy priority. The USA has ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (Optional Protocol) which among other things prohibits the recruitment or use in hostilities by non-state armed groups of under-18-year-olds, and requires states to provide any such child who comes within their jurisdiction “all appropriate assistance for their physical and psychological recovery and their social reintegration”. The information the US government has itself released about the background of Omar Khadr and the circumstances of his capture places him squarely within the reach of the Optional Protocol, in addition to juvenile justice provisions under international law. However, rather than comply with its obligations, the USA has fed Khadr’s alleged childhood activities – from the age of 10 – into its case for prosecuting him for war crimes in front of a military commission. Among those to have expressed concern about this trial are the UN Secretary General’s Special Representative for Children and Armed Conflict, and UNICEF, the agency mandated by the UN General Assembly to advocate for the protection of children’s rights.

The USA ratified the Optional Protocol shortly after transferring Omar Khadr to Guantánamo. States ratifying the Protocol reaffirm (as articulated in its preamble) that this international instrument “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”. However, the USA’s treatment of child “enemy combatants” has been conducted through the prism of its own perceived national security interests rather than the best interests of the child.

The USA is showing no signs of bringing its treatment of Omar Khadr into compliance with international law, or of abandoning his trial by military commission and turning to the civilian courts for any judicial proceedings conducted in accordance with international standards. Given the USA’s clear and continuing failure to meet its international obligations, Canada must act. However, on 31 March 2008, Canada’s Minister of Foreign Affairs told parliament there that “discussions about Mr Khadr’s return to Canada are premature until such time as the legal process, and the appeals process, have been exhausted”. Amnesty International disagrees. The Canadian authorities should take all possible steps to protect its citizen by seeking his repatriation and, if there is sufficient and admissible evidence, arranging for his trial in Canada. Any such trial must comply with international standards, including by fully taking into account Omar Khadr’s age at the time of any alleged offence and the role that adults played in his involvement as a child in the armed conflict in Afghanistan.

Military commission system must be abandoned

The Pentagon has said it expects as many as 80 detainees to face trial by military commission. At the time of writing, 15 Guantánamo detainees, including Omar Khadr, had had charges sworn against them or referred on for trial (see appendix). Amnesty International continues to campaign for any trials to be held in the federal courts on the US mainland. The military commission system is part and parcel of a detention regime developed by the US authorities to avoid independent judicial scrutiny of government conduct towards detainees, including by denying them the basic safeguard of habeas corpus review. Such review serves to protect the individual and to prevent government illegality, as described in Amnesty International’s report, ‘USA: No substitute for habeas corpus: six years without judicial review in Guantánamo’ (http://www.amnesty.org/en/report/info/AMR51/163/2007). Indeed, it was a habeas corpus challenge brought against the original military commission system that led to that system being declared unlawful by the US Supreme Court in Hamdan v. Rumsfeld in June 2006. The government’s legislative response to the Hamdan ruling, the Military Commissions Act, has resurrected the military commissions, while also stripping the US federal courts of jurisdiction to consider habeas corpus appeals from foreign nationals held as “enemy combatants”. A Supreme Court ruling on the legality of this habeas corpus-stripping is expected by the end of June 2008. Meanwhile, the Congress-authorized version of the commissions is little better than the system established unilaterally by the administration under a 2001 Military Order. Justice will neither be done nor be seen to be done in trials before these tribunals, as Amnesty International outlined in ‘USA: Justice delayed and justice denied? Trials under the Military Commissions Act’, (http://www.amnesty.org/en/library/info/AMR51/044/2007). Among the flaws of the military commissions are the following:

• The pre-requisite for trial under the MCA is that the individual is an alien “unlawful enemy combatant”, a status as used by the USA that is unknown in international law. Among those facing trial are civilians detained outside any zone of armed conflict. Using military tribunals to try such civilians runs counter to international standards;

• The military commissions lack independence from the executive branch of government that has authorized and used systematic human rights violations against detainees;

• In violation of international law, the military commissions may admit information obtained under cruel, inhuman or degrading treatment or punishment. The fact that the US administration’s definition of torture does not comply with international law could also mean that information extracted under torture is admitted as evidence;

• The right to trial within a reasonable time is not guaranteed under the MCA;

• The right to be represented by a lawyer of the detainee’s choice is restricted;

• The rules on hearsay and classified information may severely curtail a defendant’s ability to challenge the government’s case against him;

• There right of appeal is limited, essentially to matters of law, not fact;

• The military commissions apply only to non-US citizens. The MCA and the military commissions they authorize are discriminatory, in violation of international law;

• The death penalty can be passed after trials that fail to meet international standards.

Human rights do not disappear in ‘war’, however defined The US administration maintains that its activities outside the USA in the “war on terror” are exclusively regulated by the law of war (international humanitarian law, IHL), as it defines and interprets it, and that human rights law is generally inapplicable in this global armed conflict. On 29 February 2008, the UN High Commissioner for Human Rights, Louise Arbour, said that “the war on terror has inflicted a very serious setback for the international human rights agenda”. The ICRC, the authoritative interpreter of the Geneva Conventions, has said that it does “not believe that IHL is the overarching legal framework” applicable to the “war on terror”. A February 2006 report by five UN experts stated that “the global struggle against international terrorism does not, as such, constitute an armed conflict for the purposes of the applicability of international humanitarian law”. In October 2007, the Special Rapporteur on the promotion and protection of human rights and freedoms while countering terrorism stated that “the international fight against terrorism is not a ‘war’ in the true sense of the word, and reminds the United States that even during an armed conflict triggering the application of international humanitarian law, international human rights law continues to apply.” Thus, even where it does apply, such as in Afghanistan when Omar Khadr was taken into custody, IHL does not displace international human rights law. Rather, the two bodies of law complement each other. The International Court of Justice (ICJ) has stated that the protection of the International Covenant on Civil and Political Rights [ICCPR] and other human rights conventions does not cease in times of armed conflict, except through the effect of provisions for derogation…” The USA has made no such derogation, and even if it had, a number of fundamental human rights provisions are non-derogable, including certain fair trial rights and the right to habeas corpus, stripped away by the Military Commissions Act (MCA). In an authoritative opinion, the UN Human Rights Committee has stated: “The [ICCPR] applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.” In July 2006, the Committee called upon the USA to “review its approach and interpret the ICCPR in good faith” and in particular to: “acknowledge the applicability of the Covenant in respect of individuals under its jurisdiction and outside its territory, as well as in times of war”. In May 2006, the UN Committee Against Torture urged the USA to: “recognize and ensure that the Convention [against Torture, CAT] applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction”. In its responses to these two treaty monitoring bodies in November 2007 and February 2008, the US government dismissed their recommendations, stating that “the law of war, and not [the ICCPR or CAT], is the applicable legal framework governing these detentions”. In March 2008, the Committee on the Elimination of Racial Discrimination also objected to the USA’s position that the International Convention on the Elimination of All Forms of Racial Discrimination did not apply to the treatment of foreign detainees held as “enemy combatants” in the “war on terror”. The US government has suggested that one reason why military commissions are necessary for the few alien “enemy combatants” it decides to try is that the domestic US courts lack jurisdiction over such detainees. This justification does not stand up to scrutiny. Signing the MCA, President Bush said that it would be used to try not only alleged 9/11 conspirators, but also those believed responsible for the attack on the USS Cole in Yemen in 2000 and “an operative” suspected of involvement in the bombings of the US embassies in Kenya and Tanzania in 1998. Yet individuals had already been indicted or tried in US federal court for their alleged involvement in these crimes (see also USA: Another CIA detainee facing death penalty trial by military commission, AI Index: AMR 51/027/2008, 2 April 2008, available at http://www.amnesty.org/en/library/info/AMR51/027/2008/en). Amnesty International considers that the military commissions are a politically expedient creation, a parallel justice system that lacks genuine independence and is vulnerable to political manipulation (see box on page 33).

‘Your life is in my hands’. From child to adult to trial in coercive custody

The alleged inculpatory statements made by Mr Khadr are a key part of the government’s case-in-chief, particularly given that there are no eyewitnesses who saw Mr Khadr throw the grenade that allegedly killed Sgt Speer

Omar Khadr’s military lawyers, 4 March 2008⁷

19 September 1986 – Omar Ahmed Khadr born in Canada 13 November 2001 – President Bush signs Military Order authorizing military commission trials of foreign nationals 27 July 2002 – 15-year-old Omar Khadr taken into US custody after firefight in Afghanistan, and held in Bagram airbase 27/28 October 2002 – Omar Khadr, aged 16, transferred to US Naval Base in Guantánamo Bay, Cuba September 2004 – Combatant Status Review Tribunal held for Omar Khadr. He does not participate and does not request any evidence or witnesses on his behalf. Relying entirely on classified information, the CSRT determines that Omar Khadr, now 17, is an “enemy combatant” November 2004 – Omar Khadr visited by lawyer for the first time. November 2005 – 18-year old Omar Khadr charged for trial by military commission under Military Order June 2006 – US Supreme Court rules, in Hamdan v. Rumsfeld, that military commission system is unlawful October 2006 – Military Commissions Act (MCA) passes into law, stripping US courts of jurisdiction to consider habeas corpus petitions from foreign nationals held as “enemy combatants” and authorizing revised system of military commissions to try “alien unlawful enemy combatants” April 2007 – 20-year-old Omar Khadr charged for trial by military commission under the MCA 4 June 2007 – Military judge dismisses charges against Omar Khadr because there is no record of his designation as an “unlawful enemy combatant”, only an “enemy combatant”, and that he, the judge, lacked authority to determine such status for the purpose of establishing jurisdiction for trial 24 September 2007 – newly set up Court of Military Commission Review overturns military judge’s ruling 8 November 2007 – 21-year-old Omar Khadr appears at arraignment hearing in Guantánamo

In January 2008 the government filed a brief before the military judge overseeing Omar Khadr’s military commission proceedings. It was seeking to have the judge reject a defence motion to dismiss the charges on the grounds that the military commissions lack jurisdiction because of Khadr’s young age at the time of his alleged offences. In its brief the government stated that “Khadr is now 21, and therefore he is not a ‘victim’ in the present tense, even assuming [for the sake of argument] he might have been one in the past”.⁸What the government glosses over is the fact that Omar Khadr spent the final 26 months of his childhood in virtually incommunicado and highly coercive US military detention. His age today should not distract attention from his age at the time he was taken into custody nearly six years ago. To ignore this would give governments carte blanche to hold children in custody until they become adults in order to treat them as adults. That would drain international law of its protections.

The UN Standard Minimum Rules for the Administration of Juvenile Justice, the UN Rules for the Protection of Juveniles Deprived of their Liberty, and other international standards require that detention pending trial shall be used only as a measure of last resort. All efforts should be found to find alternatives to detention, but if detention is used the highest priority must be given to “the most expeditious processing of such cases to ensure the shortest possible duration of detention”. While in custody, the child shall receive care, protection and all necessary individual assistance – social, educational, vocational, psychological, medical and physical – that they may require. At the same time, whether adult or child, the detainee shall be protected from any torture or other cruel, inhuman or degrading treatment and the state is prohibited from taking advantage of the detainee’s situation to coerce information from him.

Omar Khadr’s trial – or any of the other military commission trials looming at Guantánamo – cannot be divorced from the backdrop against which such proceedings would occur. This backdrop is one of practices pursued in the absence of independent judicial oversight that have systematically violated international law. At any such trials, the defendants will be individuals who have been subjected to years of indefinite detention, whose right to the presumption of innocence has been systematically undermined by a pattern of official commentary on their presumed guilt. Among the defendants will be victims of enforced disappearance, secret detention, secret transfer, torture or other cruel, inhuman or degrading treatment. Their treatment has not only been arbitrary and unlawful, it has been highly and deliberately coercive in terms of the interrogation methods and detention conditions employed against them. This heightens the need for any trials to take place before courts independent of the executive and legislative branches which have authorized or condoned human rights violations. Instead, trials are looming before military commissions lacking such independence and specifically tailored to be able to turn a blind eye to government abuses.

A fundamental minimum fair trial standard is the right not to be compelled to testify against oneself or to confess guilt.⁹Although the Military Commissions Act (MCA) states that “no person shall be required to testify against himself at a proceeding of a military commission” (emphasis added), this does not expressly prohibit the admission as evidence of information earlier coerced from the defendant during his years in custody. On the contrary, the Act allows the Secretary of Defense to prescribe procedures under which a statement made by the accused “shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination” so long as its admission would not conflict with other provisions of the Act.¹⁰

In this regard, Amnesty International is concerned that the government has already repeatedly included “facts” in pre-trial legal briefs it has filed before the military judge that are based on alleged statements made by Omar Khadr during interrogations while he was an unrepresented 15- and 16-year-old held in incommunicado military custody. These statements are unproven, have not undergone any sort of independent judicial scrutiny, and are highly prejudicial. Illustrations of these alleged statements are given in the text that follows.

In violation of international law, the military commissions can admit information extracted under cruel, inhuman or degrading treatment. The MCA differentiates between statements obtained before 30 December 2005, when the USA’s Detainee Treatment Act (DTA) came into force (prohibiting cruel, inhuman or degrading treatment, as defined in US rather than international law), and statements obtained after that date.¹¹ Under the MCA, in both pre- and post-DTA cases, statements “in which the degree of coercion is disputed” may only be admitted if the military judge finds that the statement is “reliable” and possesses “sufficient probative value” and if “the interests of justice would best be served by admission of the statement into evidence”. In the case of statements obtained after 30 December 2005, the military judge must also find that the interrogation methods used to obtain the statement did not amount to cruel, inhuman or degrading treatment as defined and prohibited under the DTA.

As the Supreme Court ruled more than half a century ago, the rationale for excluding coerced confessions is not just their unreliability. They should be inadmissible even if “statements contained in them may be independently established as true”, because of the fundamental offence the coercive treatment of detainees causes to the notion of due process and its corrosive effect on the rule of law.¹²The fact that the military commissions can admit such statements into evidence illustrates the distance between their procedures and commonly held notions of due process.

In documents relating to the coercion issue filed with the military judge overseeing Omar Khadr’s military commission, the prosecution has asserted that it “is not aware of any principle in international law that prohibits a military judge from conditioning his decision to admit evidence on whether admission of that evidence satisfies ‘the interests of justice’.” In this regard, the prosecution’s knowledge would appear to fall short of the requirement that “prosecutors have appropriate education and training and should be made aware… of human rights and fundamental freedoms recognized by national and international law”.¹³International law prohibits the admission of any information that has been coerced under unlawful methods, except against the perpetrator of the illegality.¹⁴The UN Guidelines on the Role of Prosecutors require that “when prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods…”

The Khadr prosecution also notes that the MCA prohibits the admission of any statements coerced after enactment of the DTA under cruel, inhuman or degrading treatment, as defined in US law and interpreted by the military judge. As such, the government asserts, “there is no possibility that any statement obtained by cruel, inhuman or degrading treatment may be admitted into evidence, thus mooting much of the accused’s concern”. Not so. Omar Khadr had been detained for some three and a half years, and repeatedly interrogated, without legal or other representation, before the DTA came into force. He was under 18 years old for most of this period. A then secret Pentagon report on interrogations produced five months after his transfer to Guantánamo noted that “one of the Department of Defense’s stated objectives is to use the detainees’ statements in support of ongoing and future prosecutions”.¹⁵

Responding to recently reiterated allegations that Omar Khadr has been subjected to torture or other ill-treatment in US military custody (see below), a Pentagon spokesman repeated the US government’s general line that all detainees are treated humanely and any allegations of mistreatment are investigated, adding that in Khadr’s case, “we have no evidence to substantiate these claims”¹⁶Over the course of the “war on terror”, the USA’s assurances about the humane treatment of detainees have been shown to lack credibility.¹⁷ Moreover, it is clear that the USA’s interpretation of its obligation not to subject anyone to torture or other cruel, inhuman or degrading treatment falls short of international law.¹⁸ An illustration of this is in the US administration’s assertion that it is opposed to torture while at the same time confirming that the interrogation technique of “waterboarding” – simulated drowning – has been authorized and used by US agents during the “war on terror” and could be again if the “circumstances” warranted it. Moreover, at a congressional hearing on 11 December 2007, US Air Force Brigadier General Thomas Hartmann, Legal Adviser to the Convening Authority in the Pentagon’s Office of Military Commissions, refused to rule out the admission by military commission of information coerced from detainees by this form of water torture.¹⁹

The concerns about coercive interrogations in incommunicado detention are heightened where the detainee is a child. The characteristics of childhood make such a detainee particularly vulnerable. An amicus curiae (friend of the court) brief from the USA’s Juvenile Law Center to the military judge presiding over Omar Khadr’s case states, for example, that:

“Juveniles may be more prone to give false confessions when subjected to today’s sophisticated psychological interrogation techniques… Moreover, juveniles’ immature decision-making abilities, their short-term thinking and greater willingness to take risks, make them particularly ill-suited to engage in the high stakes risk-benefit analysis that is called for in the modern psychological interrogation. These deficits would only be magnified during periods of prolonged, highly sophisticated, highly coercive interrogation such as the interrogation Omar K. has been subjected to during confinement”.²⁰

Omar Khadr was taken into custody on 27 July 2002 in Afghanistan following a firefight in which US Army Sergeant Christopher Speer received fatal head injuries allegedly sustained from a grenade. Sergeant Speer died on 6 August 2002. On 4 February 2008, the Guantánamo authorities inadvertently released an account of Omar Khadr’s capture. The document – a report of the Pentagon’s Criminal Investigation Task Force, dated 17 March 2004 – describes an interview of “OC-1”, an unidentified member of US armed forces. OC-1 described the firefight that took place on 27 July 2002 in a suspected al-Qa’ida compound near the village of Abu Ykhiel in Afghanistan.²¹After the occupants of the compound refused to surrender, additional US ground forces and air support were called in. “Multiple bombing raids were made by US combat aircraft”, and then an assault team, including OC-1 and Sergeant Speer, entered the compound through a hole in the wall created by the air-strikes. They were met with rifle fire and OC-1 saw a grenade “lobbed over the corner wall that led into the alley”; “OC-1 never heard the grenade explode but later learned that Speer was wounded in the head by the grenade”. OC-1 – who was the “sole witness to the close-in portions of the firefight” – never saw who threw the grenade, but “felt” that it had not been the person who had fired the rifle shots and concluded therefore that it had been Khadr.

According to the CITF report, OC-1 “saw a man facing him lying on his right side. The man had an AK-47 on the ground beside him and the man was moving. OC-1 fired one round striking the man in the head and the movement ceased.” OC-1 then saw “a second man sitting up facing away from him leaning against brush. This man, later identified as Khadr, was moving. OC-1 fired two rounds both of which struck Khadr in the back. OC-1 estimated that from the initiation of the approach to the compound to shooting Khadr took no more than 90 seconds with all of the events inside the compound happening in less than a minute”.

Amnesty International does not know whether Omar Khadr threw a grenade or not or, if he did, whether it was this grenade that killed Sergeant Speer. The organization does not in any case consider the USA’s military commissions a suitable forum for such fact-finding. In addition, it is concerned about the circumstances in which the government obtained any self-incriminating statements Khadr has made in custody, and also notes that this CITF report, revealing that there was at least one other person alive in the compound after the airstrikes, calls into question the US government’s claim that Omar Khadr was the only person who could have thrown the grenade.²²The reported circumstances of the firefight also throw a spotlight on the US government’s accusation against Khadr that “nothing could be more treacherous than an individual who lies in wait, dressed as a civilian, before attacking and killing a law-abiding American”.²³It further raises the possibility that the person it has charged with war crimes committed as a child may himself be the survivor of an attempted unlawful killing – shot in the back when already injured in the eyes and body by US bombing (see below). In addition to the above description of the shooting of Omar Khadr, Khadr’s US military lawyers have cited an entry in the diary of a US army officer who was present at the end of the firefight. The entry recalls that “PV2 R[redacted] had his sites [sic] right on him [Khadr] point blank. I was about to tap R[redacted] on his back to tell him to kill him [Khadr] but the [Special Forces] guys stopped us and told us not to”. The diary entry says of the person shot dead in the compound: “I remember looking over my right shoulder and seeing [redacted] just waste the guy who was still alive”.²⁴ In its pre-trial arguments, the government has repeatedly suggested that Omar Khadr was fortunate not to have been summarily executed, and the fact that he was not illustrates the rights that “unlawful enemy combatants” are today afforded by the USA compared to their “traditional” treatment. For example, the government states “banditti, jayhawkers, guerrillas and their modern-day equivalents are [sic] traditionally liable to be shot immediately upon their capture… Khadr is certainly better off based upon the clarity provide by Congress and the extensive array of procedural protections provided by the MCA, the likes of which no unlawful combatant has ever enjoyed in the history of warfare”.²⁵

The CITF report on Omar Khadr’s capture continues: “OC-1 observed a small weapon (a pistol or grenade, OC-1 could not recall which) on the ground near Khadr. OC-1 then tapped Khadr’s eye to see if he was alive. Khadr reacted and was placed on his back. OC-1 then turned him over to be secured by other personnel who had now entered the alley… OC-1 observed that Khadr was able to move his arms and was repeating ‘kill me’ in English. In addition to the two bullet wounds from OC-1’s rounds, Khadr also had shrapnel wounds to his chest. OC-1 also recalled Khadr had an eye injury…” (it transpired that Khadr had shrapnel in his eyes). At military commission proceedings five and a half years later, the prosecution said that “in furtherance of the Government’s obligation to demobilize Khadr, it provided him with ‘appropriate assistance for [his] physical and psychological recovery’ [quoting article 6.3 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, see below], including emergency medical care on the battlefield as Sergeant Speer lay dying”.²⁶It would appear from everything that has happened to Omar Khadr since then that the US government took the view that its obligations to a rehabilitative approach ceased after “American medics administered life-saving medical treatment to the accused”, a fact is has repeatedly emphasized in pre-trial military commission proceedings.

Omar Khadr was taken to the US air base in Bagram. In an affidavit dated 22 February 2008, Khadr recalls that he was “unconscious for about one week after being captured”.²⁷After he regained consciousness, he “was out of my wits for about three days. I was in extreme pain and my pain was all I could focus on”. He said that he was interrogated during this period. Parts of the public version of the affidavit are censored (redacted). Any reference to an interrogation technique or treatment that could amount to an interrogation technique has been censored from it on the grounds that interrogation techniques are classified information. Due to this censorship, for example, it is unclear what Omar Khadr means when he states that during this initial period of interrogation in the hospital, “I could tell that this treatment was for punishment and to make me answer questions and give them the answers they wanted”. One of the guards “would tell the nurses not to [censored] since he said that I had killed an American soldier. He would also [censored] me quite often.”

Omar Khadr’s affidavit suggests that he may have been given only limited pain medication, as an interrogation technique: “They would only give me [censored] at night time but the interrogations occurred during the daytime”. He describes a three-hour interrogation that took place after he had been in the hospital for about two weeks. Again, although the censored portions of the affidavit obscure details, Omar Khadr apparently alleges that his medical condition was exploited for the purposes of interrogation:

“the interrogator would often [censored] if I did not give him the answers he wanted. Several times, he forced me to [censored], which caused me [censored] due to my [censored]. He did this several times to get me to answer his questions and give him the answers he wanted. It was clear he was making me [censored] because he knew that [censored] and he wanted me to answer questions. I cried several times during the interrogation as a result of this treatment and pain. During this interrogation, the more I answered the questions and the more I gave him the answers he wanted, the less [censored] on me. I figured out right away that I could simply tell them whatever I thought they wanted to hear in order to keep them from causing me [censored].”

“What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child - an easy victim of the law - is before us, special care in scrutinizing the record must be used… A 15-year old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition… No friend stood at the side of this 15-year old boy as the police, working in relays, questioned him hour after hour, from midnight until dawn. No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion... This disregard of the standards of decency is underlined by the fact that he was kept incommunicado for over three days… Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law.” Haley v. Ohio, US Supreme Court (1948)

Other detainees have made allegations that the boundaries between medical treatment and interrogation in Bagram were blurred. For example, Brahim Yadel, a French national who was held in Bagram in January 2002, told Amnesty International in Paris in 2007 that on the second day of his detention in the air base, he was taken to interrogation. After he was examined by a medic, it was decided that shrapnel injuries to his lower back that he had sustained during US bombing the previous month required surgery. Brahim Yadel said that he was given a general anesthetic, but not enough to render him unconscious. As the operation began, with Yadel lying semi-conscious on his stomach on a table, three “Americans” in plainclothes sat down on the floor in front of him. They began interrogating him, asking him about his family, and interspersing with questions such as “where is Osama [bin Laden]?” Brahim Yadel has said that while the surgery was legitimate, this opportunistic but “coordinated” interrogation was not. He described the experience as one of “a mixture of treatment and mistreatment”.

Omar Khadr was held in Bagram for some three months, where he said he “would always hear people screaming, both day and night. Sometimes it would be the interrogators [censored], and sometimes it was the prisoners screaming from their treatment… Most people would not talk about what had been done to them. This made me afraid”. Khadr says that in Bagram the soldiers “treated me roughly”. Moazzam Begg, a UK national who shared a cell with Khadr in Bagram for some of this time, has told Amnesty International that despite Khadr’s injuries, the boy was “singled out” for verbal and physical abuse by the guards, because of their belief that he had killed a US soldier. Moazzam Begg recounted for example how guards would force the 15-year-old to stack crates of water bottles; they would then knock them over and order him to start stacking again, all the while yelling in his face. Begg has said that at this time in Bagram, a punishment for a detainee talking to another detainee in the cage-like cell (there were up to 10 to a cell at this time) was for the detainee to be hooded and have his hands tied to the top of the cage entrance and be left there for several hours. This happened to Omar Khadr more than once, according to Begg. Moazzam Begg told Amnesty International that there was no mistaking that Omar Khadr was a child. “He was obviously a teenager, and a young teenager at that”, Begg recalled. He also remembers that Omar Khadr was “emaciated” when he first saw him in Bagram a few weeks after his capture, and was suffering from serious injuries, including to his eyes.

“In sworn statements to Army investigators, soldiers describe one female interrogator with a taste for humiliation stepping on the neck of one prostrate detainee and kicking another in the genitals. They tell of a shackled prisoner being forced to roll back and forth on the floor of a cell, kissing the boots of his two interrogators as he went. Yet another prisoner is made to pick plastic bottle caps out of a drum mixed with excrement and water as part of a strategy to soften him up for questioning.” Treatment of detainees in Bagram in 2002, according to information in 2,000-page confidential file of military investigations obtained by the New York Times

In his affidavit, Omar Khadr alleges that “while my wounds were still healing, interrogators made me clean the floor on my hands and knees. They woke me in the middle of the night after midnight and made me clean the floor with a brush and dry it with towels until dawn. They forced me to carry heavy buckets of water, which hurt my left shoulder (where I had been shot). They were five gallon buckets. They also made me [censored]. This was very painful as my wounds were still healing”. For the first two to four weeks, he says that he was brought to interrogation on a stretcher. He has said his injuries remained painful and that he was treated roughly by the “five people in civilian clothes” who would come each day to change his bandages. He thinks he was interrogated “42 times in 90 days”. Of his interrogations, Omar Khadr has said that

“On other occasions, interrogators threw cold water on me… On several occasions at Bagram, interrogators threatened to have me raped, or sent to other countries like Egypt, Syria, Jordan or Israel to be raped… Many times, during the interrogations, I was not allowed to use the bathroom, and was forced to urinate on myself”.

A US military investigation into the torture in Abu Ghraib found that techniques authorized and used in Afghanistan had “migrated” to Iraq. US interrogators in Afghanistan, the investigation found, had been “removing clothing [from detainees], isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation”.²⁸The military report showed that children in US custody were not exempt from ill-treatment. For example, in Abu Ghraib, “an incident of clearly abusive use of the dogs occurred when a dog was allowed in the cell of two male juveniles and allowed to go ‘nuts’. Both juveniles were screaming and crying with the youngest and smallest trying to hide behind the other juvenile.”²⁹In his affidavit, Omar Khadr alleges that “on some occasions, the interrogators brought barking dogs into the interrogation room while my head was covered with a bag. The bag was [censored]. This terrified me.”

One of the interrogators involved in several of Omar Khadr’s interrogations was subsequently convicted by a court martial for abusing unidentified detainees in Bagram between October 2002 and February 2003. He had been one of the interrogators of a 22-year-old Afghan taxi driver, Dilawar, who died in custody in Bagram in December 2002.³⁰This interrogator was convicted of assaulting Dilawar “by forcing water down his throat, grabbing him and pulling him across an interrogation table, and twisting a bag or hood tightly over the detainee’s head”.³¹He reportedly was sentenced to five months in confinement.³²According to information filed by Omar Khadr’s military lawyers, the interrogator, Sergeant C., had at first refused to speak to the military prosecutors until he was granted immunity from prosecution for any crimes under the USA’s Uniform Code of Military Justice that he may have committed against Omar Khadr. In exchange for this immunity, he would have to testify against Omar Khadr if the prosecution called him as a witness. Although the interrogator was described by the prosecution in May 2006 as a “key government witness in the case of US v. Khadr”, he was subsequently dropped from its witness list. Omar Khadr’s military lawyer has said: “The government took Sgt. C. off their witness list knowing that he was Omar’s principal interrogator and fought us on access to information about Sgt C’s abuse of detainees. The government’s attempt to hide Sgt. C. is an example of what we’ve said about military commissions generally – they exist to launder evidence derived from torture and coercion.”³³

Omar Khadr’s lawyers are seeking disclosure of all materials relating to the investigation and prosecution of Sergeant C. At the time of writing, the military judge had yet to rule on this.³⁴Generally, however, the procedures under the MCA place obstacles in the way of defendants being able to challenge government information and how it was obtained. The prosecution, for example, may be permitted to introduce evidence while protecting from disclosure “the sources, methods, or activities by which the United States acquired the evidence”, if the military judge finds that the evidence is “reliable” and the sources, methods or activities (such as interrogation techniques) classified. Under the MCA, an unclassified summary of the “sources, methods, or activities” may be provided to the defence, but again only “to the extent practicable and consistent with national security”.³⁵Of overriding concern is the applicability of these provisions even to any classified evidence that “reasonably tends to exculpate the accused”.³⁶In addition, the concern may extend to the openness of proceedings. The military judge may close all or part of the commission proceedings to the public, including upon making a finding that such closure is necessary to “protect information the disclosure of which could reasonably be expected to cause damage to national security, including intelligence or law enforcement sources, methods, or activities”.³⁷

Among its “facts” filed in pre-trial documents against Omar Khadr, the government asserts that “when asked on 17 September 2002 why he helped the men construct the explosives, the accused [Khadr] responded ‘to kill US forces’.” The government alleges that “the accused related during the same interview that he had been told the US wanted to go to war with Islam. And for that reason he assisted in building and deploying the explosives, and later he threw a grenade at an American”. Omar Khadr was still 15 years old, unrepresented, and still recovering from very serious wounds, at the time of this interrogation.

Omar Khadr was transferred to Guantánamo around 28 October 2002, like others, in conditions of sensory deprivation and degradation.³⁸He has said that “for the two nights and one day before putting us on the plane, we were not given any food so that we would not have to use the bathroom on the plane. They shaved our heads and beards, and put medical-type masks over our mouths and noses, and goggles and earphones on us so that we could not see or hear anything. One time, a soldier kicked me in the leg when I was on the plane and tried to stretch my legs. On the plane, I was shackled to the floor for the whole trip. When I arrived at Guantánamo, I heard a military official say, ‘Welcome to Israel’. They half-dragged half carried us so quickly along the ground off the plane that everyone had cuts on their ankles from the shackles. They would smack you with a stick if you made any wrong moves”. He was 16.

Article 3 of the UN Convention on the Rights of the Child requires that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. No child detainee should ever have been transferred to the detention facility at Guantánamo.³⁹The ICRC, the only organization that had access to the child detainees, stated that it “does not consider Guantánamo an appropriate place to detain juveniles… It worries about the possible psychological impact this experience could have at such an important stage in their development.”⁴⁰ Omar Khadr was still recovering from his wounds at the time of his transfer. Indeed his chest wounds were “infected, swollen and still seeping blood nearly seven months after the firefight”.⁴¹

The use of coercive detention conditions at the prison camp at the time of 16-year-old Omar Khadr’s transfer there is clear. A government email dated 4 October 2002, entitled Camp Delta Update, said that the next “Air Flow” – referring to detainees transferred by plane from Afghanistan to Guantánamo – was set for to take place between 2 and 10 November 2002. The email continued: “There will be between 20 and 34 new detainees on the flight. We strongly suggested total isolation for as long as possible for these individuals… until all available information is obtained from them.”⁴² A later Federal Bureau of Investigation email, referring to the same time period, reveals that “extreme interrogation techniques were planned and implemented” against certain detainees held in Guantánamo.⁴³The Standard Operating Procedures for Guantánamo, dated March 2003 and leaked into the public domain in late 2007, emphasised that the purpose of the so-called “Behaviour Management Plan” for each newly arrived detainee was to “enhance and exploit” in the interrogation process their “disorientation and disorganization.” For at least the first 30 days, but longer if so determined by interrogators, the detainee would have no contact with the ICRC or the Chaplain, and no Koran, prayer mat, books or mail.⁴⁴The Standard Operating Procedures make no mention of different treatment for children.

Another of the “facts” repeatedly used against Omar Khadr by the government in briefs filed before the military judge is that “during an interrogation on 4 December 2002, the accused [Khadr] agreed that his use of land mines as roadside bombs against American forces was also of a terrorist nature and that he is a terrorist trained by al Qaeda”. By the time of this interrogation, Omar Khadr was 16 and had been in virtually incommunicado military detention for more than four months. If the Guantánamo Standard Operating Procedures were as they were in the version of the manual issued three months later, this interrogation would likely have taken place while Omar Khadr was being held in isolation for the purpose of exploiting his disorientation after his arrival at the base.

International law establishes the general rule that detained under-18-year-olds must be separated from adults, and provided educational and other programs and activities appropriate to their age. Although the Guantánamo authorities eventually opened a separate facility – Camp Iguana – for child detainees, it placed only three children in that facility who it determined “after medical tests” were younger than 16. These three “enemy combatants” were released back to Afghanistan in January 2004, after the US authorities determined that they “no longer posed a threat to our nation, that they have no further intelligence value and that they are not going to be tried by the US government for any crimes.”⁴⁵This statement again demonstrated that the best interests of the child were being overridden by the USA’s perceived national security interests. Nevertheless, the following month, the USAmbassador-at-Large for War Crimes Issues, Pierre-Richard Prosper, said:

“A point that’s important here with the juveniles is that while we made some opinions or decisions early on, we felt it was important to keep them in Guantánamo while we worked out with their home country and other organizations a return than would ensure or help ensure that they would not become child soldiers once again; that they would not be forcibly conscripted or recruited. It was a humanitarian perspective that we undertook, and therefore, the length of time in which they were detained in Guantánamo lasted a little longer out of the best interests of the juveniles.”⁴⁶

“The interrogator told me, ‘Your life is in my hands’. My hands and ankles were shackled, and the interrogator then removed my chair, forcing me to sit on the floor. The interrogator told me to stand up. Because of the way I was shackled, I was not able to use my hands to do so, thus making the act difficult to do. As ordered by the interrogator, I stood up, at which time the interrogator told me to sit down again. When I did so, the interrogator ordered me to stand again. I could not do so, at which point the interrogator called two military police officers into the room, who grabbed me by the neck and arms, lifted me, up, and then dropped me to the floor. The military police officers lifted and dropped me in this manner approximately five times, each time at the instruction of the interrogator. The interrogator told me they would throw my case in a safe and that I would never get out of Guantánamo. This interrogation session lasted for approximately two to three hours.” Omar Khadr, February 2008 affidavit, recalling an interrogation in 2003

No such “humanitarian perspective” was taken in Omar Khadr’s case. He and others who had by then turned 16 or older were held in the adult detention facilities. The government has said that “Omar Khadr by the time he arrived in Guantánamo was over 16, so we did not treat him as a child.”⁴⁷Neither had it treated him as a child prior to his transfer, when he was still aged 15. His affidavit states, “while detained in Bagram, I was held with other adult detainees in a building like an airplane hangar with some chicken-wire fencing dividing the prisoner area and some wooden plank dividers or walls for separate prisoner areas. I was still on a stretcher and still had holes in my body and stitching. I was kept with all the adult prisoners”.

Meanwhile, in Guantánamo, the 16-year-old Omar Khadr, still with no access to legal counsel, continued to face interrogation. Article 37 of the Convention on the Rights of the Child, for example, requires that “every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” Article 39 of the treaty requires states that are party to it to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child”. Guantánamo is not such an environment. A military commission trial can only add insult to injury.

The Convention on the Rights of the Child has been ratified by every state in the world apart from the USA and Somalia, indicating the almost universal consensus about the need for special protections for children in detention and other contexts. The USA has signed the treaty, however, thereby binding itself under international law to refrain from any acts which would defeat the object and purpose of the Convention.⁴⁸ The USA’s treatment of Omar Khadr and other child detainees held as “enemy combatants” has flown in the face of this obligation.

In Guantánamo, Omar Khadr was allegedly one of the detainees subjected to torture or other ill-treatment over and above the harshness and coercive nature of the conditions faced by all those held at the prison camp. He has alleged, for example, that he was subjected to isolation for a month in a cell that was kept punitively cold. He has described it as being “like a refrigerator”. Another detainee, Mauritanian national Mohamedou Ould Slahi, has reported being put in June 2003 into “total isolation” in India Block of the Guantánamo detention facility, and “they took all of my stuff from me”. He has described his cell as built of steel from floor to ceiling with a very cold temperature setting on the air conditioner. This room was apparently dubbed the “freezer”.⁴⁹A previously secret Pentagon report on interrogations of “enemy combatants” warned that the interrogation technique of “environmental manipulation”, such as adjusting temperature, might “be viewed by other countries as inhumane”.⁵⁰The technique was nevertheless authorized in April 2003 by the then Secretary of Defense, Donald Rumsfeld, and was used with impunity before this without authorization, according to military investigators.⁵¹

In about March 2003, according to Omar Khadr’s recent affidavit, the 16-year-old was taken from his cell one night around midnight for interrogation. The affidavit describes the boy being used as a human “mop”:

“The interrogator became extremely angry, then called in military police and told them to cuff me to the floor. First they cuffed me with my arms in front of my legs. After approximately half an hour they cuffed me with my arms behind my legs. After another half hour they forced me onto my knees, and cuffed my hands behind my legs. Later still, they forced me on my stomach, bent my knees, and cuffed my hands and feet together. At some point, I urinated on the floor and on myself. Military police poured pine oil on the floor and on me, and then, with me lying on my stomach and my hands and feet cuffed together behind me, the military police dragged me back and forth through the mixture of urine and pine oil on the floor. Later, I was put back in my cell, without being allowed a shower or change of clothes. I was not given a change of clothes for two days. They did this to me again a few weeks later.”

During an interrogation in late 2003, Omar Khadr alleges, he was subjected to “short-shackling” and left in the room for some five to six hours, “causing me extreme pain”.⁵²Occasionally, according to Khadr, a military officer and interrogators would come in and laugh at the teenager. In the course of other interrogations, he was allegedly interrogated by “an Afghan man, claiming to be from the Afghan government”, who threatened Khadr with transfer to a detention centre he was being told was being built in Afghanistan for uncooperative Guantánamo detainees.⁵³“The Afghan man told me that I would be sent to Afghanistan and raped. The Afghan man also told me that they like small boys in Afghanistan, a comment that I understood as a threat of sexual violence”. If this allegation is true, it would seem that the US government’s unwillingness to recognize and protect Omar Khadr as a child under international standards was mirrored by its willingness to allow use of his young age against him for purposes of coercion.⁵⁴In another interrogation in 2003, “an interrogator spit in my face when he didn’t like the answers I provided. He pulled my hair, and told me that I would be sent to Israel, Egypt, Jordan, or Syria – comments that I understood to be a threat of torture”. Khadr’s affidavit continues: “The interrogator told me that the Egyptians would send me to ‘Askri raqm tisa’ – Soldier Number 9 – which was explained to me was a man who would be sent to rape me”. The interrogation technique known as “threat of transfer” is described by the Pentagon as “threatening to transfer the subject to a third country that subject is likely to fear would subject him to torture or death”.⁵⁵The same Pentagon report noted that this technique, like the use of isolation and the use of dogs (both allegedly used against Khadr), “may significantly affect admissibility of statements” obtained under it, but that this would be a “lesser issue” if the trial forum was a military commission, the forum Omar Khadr is now facing.⁵⁶

After some 20 months in Guantánamo, Omar Khadr had his status reviewed by the Combatant Status Review Tribunals (CSRTs). These executive bodies – consisting of panels of three US military officers – were established in July 2004 to review the “enemy combatant” status of the Guantánamo detainees. Their operating procedures make no differentiation between child and adult detainees. These tribunals can rely on information coerced under torture or other ill-treatment in reaching their decisions. On 7 September 2004, a CSRT consisting of a Colonel and a Lieutenant Colonel in the US Air Force and a Lieutenant Commander in the US Navy concluded that Omar Khadr was “a member of, or affiliated with al-Qaida”, and was an “enemy combatant”. Their decision was finalized by the Pentagon authorities three days later. Omar Khadr did not participate in his CSRT, had no legal representation, and did not request any witnesses or evidence. In reaching its conclusion, the CSRT panel considered only classified information, to which Omar Khadr had no access.

On 7 November 2005, three and a half years after he was detained, Omar Khadr was charged for trial by military commission under the Military Order on the Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism signed by President Bush on 13 November 2001.⁵⁷The charging of Omar Khadr and four other detainees came on the same day that the US Supreme Court agreed to hear a challenge brought against that commission system. Amnesty International has documented a pattern of the US administration apparently manipulating “enemy combatant” cases to avoid judicial scrutiny of them and announcing release, transfer and charging decisions around the time of crucial judicial interventions.⁵⁸

Military defense lawyer: Would you agree that Hamdan [v. Rumsfeld] held that that previous [military commission] process was, and I quote, ‘illegal’? Military Judge: No, I don’t Exchange at Omar Khadr’s arraignment, Guantánamo, 8 November 2007. In the Hamdan opinion, the US Supreme Court ruled that the “structure and procedures” of the military commission process established under a 2001 presidential order violated both US military law and the Geneva Conventions

In June 2006, in Hamdan v. Rumsfeld, the Supreme Court ruled that the commission scheme was unlawful, and had not been authorized by Congress. The administration responded by obtaining congressional approval for legislation that would authorize the President to convene a revised but similar system of military commissions. President Bush signed the Military Commissions Act into law on 17 October 2006, and in April 2007 charges against Omar Khadr were referred on for trial by military commission under the MCA (see below).

The circumstances under which Omar Khadr was charged under the MCA have raised allegations of political interference in the prosecution. In an affidavit, Omar Khadr’s US military lawyer has recalled a meeting he attended in February 2008 with the former Chief Prosecutor of the military commissions, Colonel Morris Davis. Colonel Davis had resigned from this position after he “concluded that full, fair and open trials were not possible under the current system” which “had become deeply politicized”.⁵⁹In the affidavit, Omar Khadr’s military lawyer states that Colonel Davis had told him that in January 2007 he had been contacted by the Pentagon’s then General Counsel, William J. Haynes, who told him that it was necessary to charge Australian Guantánamo detainee David Hicks.⁶⁰Colonel Davis had objected on the grounds that such charges would be premature. According to the affidavit, “Mr Haynes also said that it would look strange if just Hicks were charged and therefore asked Colonel Davis if there were any other cases that could be brought at the same time. Colonel Davis said that this conversation was referenced in his initial complaint concerning improper interference with the functions of the Chief Prosecutor. Colonel Davis indicated that Mr Khadr’s case was one of two cases for which charges were sworn so that Hicks would not be the only detainee facing charges”.⁶¹(See also box on page 33).

Under Article 40 of the Convention on the Rights of the Child, if the child is alleged to have violated the law, they should be “treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”. Instead, Omar Khadr, held in coercive and unlawful conditions for more than five years,⁶²is facing trial by a military commission that lacks independence from the executive that has been responsible for his ill-treatment, can admit information obtained under cruel, inhuman or degrading treatment or punishment, and can hand down a sentence of life imprisonment without the possibility of parole, a sentence which violates international law in the case of defendants who were under 18 years old at the time of the alleged crime.⁶³At the time of writing, the prosecution had not said what sentence it would be seeking (although it will not be pursuing the death penalty).

As it did with the earlier version of the commissions under the Military Order, the administration has attempted to defend the revised system as guaranteeing a fair trial to anyone tried before it.⁶⁴ It was wrong then, and it is wrong again now.

A tribunal lacking independence, a law lacking juvenile justice provisions

Guantánamo Bay has come to signify injustice for some at the hands of the powerful. The rule of law – that everyone, including governments, is subject to the law, and that the law itself is fair and free from the influence of arbitrary power – has become an inconvenient afterthought. One example is that of Omar Khadr…⁶⁵

The introduction to the US State Department’s latest report on human rights in countries other than the USA, published on 11 March 2008, begins: “Respect for the human rights and fundamental freedoms reflected in the Universal Declaration of Human Rights, is, as President Bush has said, the foundation of freedom, justice and peace in the world.” In a legal brief filed with the military judge in Omar Khadr’s case a few weeks earlier, the US government states: “Given that unlawful belligerents historically could be summarily punished – and even executed – under the law of war, it follows a fortiori that they may be tried by military commission”.⁶⁶Citing an example from 1863 in another brief, the government states “Contrary to the accused’s cries of unfairness, [the MCA provides] far more process than an accused alien enemy combatant has ever received in the history of warfare”.⁶⁷The US government has repeatedly appealed to history long past and ignored human rights principles in seeking to justify its resort to military commissions. It is as if the Universal Declaration of Human Rights, and the body of international human rights law that has ensued, never happened.

“Whenever appropriate and desirable” governments should seek measures for dealing with children who have infringed the criminal law “without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected”.⁶⁸This principle is also reflected in the Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (the Paris Principles) which 66 governments endorsed in 2007. The Principles state that “wherever possible, alternatives to judicial proceedings must be sought, in line with the Convention on the Rights of the Child and other international standards for juvenile justice”.

Under juvenile justice standards, if a trial is deemed to be the appropriate way forward, it must be conducted “by a competent, independent and impartial authority or judicial body in a fair hearing according to law”.⁶⁹From the outset, cases involving children must be “handled expeditiously, without any unnecessary delay”, and “brought as speedily as possible for adjudication”.⁷⁰Under article 14 of the International Covenant on Civil and Political Rights, “the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation”. Strictly punitive approaches are “not appropriate” and even in cases of “severe offences” committed by children, any consideration of “just desert and retributive sanctions…should always be outweighed by the interest of safeguarding the well-being and the future of the young person”.⁷¹ Every step of the way, the USA’s treatment of Omar Khadr has failed to comply with such principles.

Guantánamo Bay – Omar Khadr’s ‘home’ for the past five and a half years – was chosen as a location to hold alien “enemy combatants” without trial or try them before military commissions – regardless of their age – because the administration believed it could keep their detention, treatment and trials from the scrutiny of the US courts. Although the US Supreme Court – in Rasul v. Bush in 2004 and Hamdan v. Rumsfeld in 2006 – ruled against the government in several ways, the administration has responded with litigation and obtained legislation that has kept essentially intact its original plan to operate these detentions in a judiciary-free zone of unchecked executive power.⁷²The existence of the military commission system has not fundamentally changed this. The military judges (who lack the security of tenure provided for under international standards)⁷³and the commission members (active members of the US armed forces appointed to the commissions by the Secretary of Defense or his designee) are ultimately answerable to the President and the Secretary of Defense. These are the offices which bring the prosecutions in the first place and are responsible for the internationally unlawful and coercive conditions in which the detainees have been held. An indication of this relationship may have been indicated at Omar Khadr’s arraignment on 8 November 2007, when the military judge acknowledged having earlier said that he had “taken a lot of heat” from the Pentagon following his ruling in June 2007 to dismiss charges against Khadr on jurisdictional grounds. His decision was reversed by the Court of Military Commission Review, a tribunal established under the MCA by the Secretary of Defense.

Military defense lawyer: What is your understanding of al Qaeda or what al Qaeda is? Military Judge: Based on general reports, al Qaeda is – al Qaeda is an organization, group, dedicated to the spread of Islam. That’s what I know about al Qaeda. Exchange at Omar Khadr’s arraignment, Guantánamo, 8 November 2007.

The military judge overseeing any military commission trial will be called upon to make many decisions which will test the tribunal’s independence and impartiality and public perceptions of this crucial aspect of the trials. These decisions include areas that could implicate the executive in violations of international law, including on questions relating to enforced disappearance, secret detention, torture or cruel, inhuman or degrading treatment and arbitrary detention. In addition, the military judge will have to make decisions on questions relating to classified information in a context in which the administration has been widely criticized for its over-use of classification, including in circumstances where classification is, by design or effect, concealing human rights violations. Amnesty International is concerned that the military commissions would lack the independence and impartiality necessary to subject to searching inquiry the internationally unlawful activities that have been carried out under the ‘war powers’ of the Commander in Chief of the Armed Forces, the President.⁷⁴The early signs are not good. In September 2007, for example, the military judge in Omar Khadr’s case said that he would not consider any arguments based in international, constitutional or criminal law on the question of the defendant’s status as an “unlawful enemy combatant” and whether or not, under the MCA, the military commission has jurisdiction over him.⁷⁵

Another child “enemy combatant” facing trial by military commission On 12 March 2008 in Guantánamo, Afghan national Mohammed Jawad appeared at a pre-trial military commission hearing on charges of “attempted murder in violation of the law of war” and “intentionally causing serious bodily injury”. The charges stem from an incident on 17 December 2002 in Kabul when two US soldiers and an Afghan interpreter were injured after a grenade was thrown at their vehicle. Mohammed Jawad, 16 or 17 years old at the time of the incident, was arrested straight after it by Afghan police, before being transferred to US custody at Bagram and thence to Guantánamo. At his Combatant Status Review Tribunal (CSRT) in 2004, he said that he thought that the purpose of the tribunal was “to find out if I am a criminal or not”. He was told that it was to decide if he was an “enemy combatant”. The CSRT affirmed this status, and Mohammed Jawad was held without charge for another three years. He told the CSRT that he had been approached in a mosque in Pakistan by a man who offered him a job clearing landmines in Afghanistan. He said that he was taken to a mountain area where they stayed in a camp for some days. He said that he was shown how to throw a grenade. He denied throwing the grenade in the incident in Kabul. He added that before he was detained that day, he had been given a pill and after he took it “I didn’t know what I did. I was out of my mind, I couldn’t think clearly”. Once a detainee is confirmed as an “enemy combatant” by the CSRT, unless he is charged for trial by military commission, his case goes for annual review by an Administrative Review Board (ARB), which like the CSRT consists of panels of three military officers who can rely on classified and coerced information in making their recommendations on the detainee’s case. At Mohammed Jawad’s ARB in 2005, he was accused of having attended “Jihadi Madrassa” in Pakistan and of having received weapons training over a two-day period in Khost Province of Afghanistan in December 2002: “Upon arrival, the detainee was given one or two injections in his right leg that caused confusion and incoherence. Additionally, on the day of the mission, the detainee was given two oral pills that caused the same effect [as the injections].” The allegations continued: “The detainee trained with Hezb-I-Islami Galbuddin” and “on 17 December 2002, two people ordered the detainee and a second individual to position themselves near the mosque and to wait for an American target to pass. As an American vehicle passed, the second individual ordered the detainee to throw a grenade into the vehicle”. Jawad Mohammed denied having received weapons training or of having attended a madrassa and maintained that he had not been the person who had thrown the grenade. He said that he had been tortured in Afghan custody and that he had “told them anything they wanted me to say. By forcing me, beating me, scaring me, I confessed”. He said that he was present at the scene of the attack, and that an individual had given him a “bomb”, but that he had not thrown it. At his March 2008 military commission hearing, attended by an Amnesty International observer, Mohammed Jawad was visibly agitated throughout the proceedings. Handcuffed and shackled, he frequently rubbed his forehead and put his head in his hands. At times he rocked forward and exhaled audibly. It was not clear to what extent Mohammed Jawad understood the proceedings. He again said that he was innocent, that he had been taken into custody when he was 16, interrogated and tortured. He said that all he wanted was fairness and justice, and that this trial was illegal. He then removed his headphones (for interpretation) and put his head on the desk. The judge asked him to put them back on, but he said he could not – that he was suffering from a severe headache and that years of being under bright florescent lights had made him permanently ill. At one point he put his fingers in his ears, but eventually just put his head down on the table and did not raise it again for the rest of the proceedings. His US military lawyer said: “What we had very clearly today I believe is a direct result of taking a 16- or 17-year-old boy and putting him in confinement for five years without contact with the outside world”.76

Under its global “war” framework, the USA formulated the status of “enemy combatant” (what it now claims, for the purpose of trials by military commission, is synonymous with “unlawful enemy combatant”) to cover individuals picked up anywhere in the world in the context of the “war on terror”. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has described the term “unlawful enemy combatant” as “a term of convenience”.⁷⁷ The fact that a term of convenience has been turned into a legal prerequisite for trial by military commission in and of itself illustrates the improvised nature of the commission system and its insubstantial legal foundations.

According to the US government’s stance, the “unlawful enemy combatant” label is synonymous with “terrorist”, and any individual so labeled does not deserve the same trial standards as “lawful combatants”, ordinary criminal offenders, or US citizens. As Vice President Cheney has said: “They don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process”;⁷⁸“The fact of the matter is the president has said specifically [military commission trials] will apply to terrorists.”⁷⁹In seeking congressional approval for the MCA, President Bush said: “today, I'm sending Congress legislation to specifically authorize the creation of military commissions to try terrorists for war crimes.”⁸⁰Yet whether someone is guilty of “terrorism” is a matter to be decided at a fair trial, applying international standards including respect for the presumption of innocence. Here, the US government effectively labels the defendant as guilty, makes that label a prerequisite for military commission jurisdiction, and subjects the individual to trial before a tribunal that is not independent from the branch of government applying the label to the detainee in the first place. The presumption of “guilt” can continue even after an acquittal. Even if Omar Khadr, for example, were to be tried and acquitted by military commission, he could be returned to indefinite detention as an “enemy combatant” if the government were to consider that he represented a threat to the USA, had intelligence value, or if there were any other reason it believed justified his continued detention.⁸¹Clearly, in such a case, the international legal right to a trial within a reasonable time – already a fiction in Guantánamo – would have little meaning to the individual in question.

The US government seeks to squeeze anyone it labels as an “alien unlawful enemy combatant” into the jurisdictional remit of the military commissions. Not only is this status unrecognized in international law, the detainees comprise individuals taken into custody in different locations and circumstances, governed by varying legal regimes under international law. They include people captured in international armed conflict who should have been presumed to be prisoners of war unless a promptly convened competent tribunal decided otherwise (prisoners of war cannot be tried by military commission because US citizens cannot); civilians taken into custody outside of zones of armed conflict (civilians should not be tried by military tribunals); and some who, like Omar Khadr, were detained when they were children.

“[A] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions… The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed… Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Roper v. Simmons, US Supreme Court (2005)

In every state of the USA, “juvenile offenders are submitted to adult prosecution only by express authorization”⁸². The US government claims that, in contrast, the MCA silently establishes military commission jurisdiction over any child as well as any adult foreign national it labels as an “unlawful enemy combatant”. “It is true”, the government states, “that Congress did not in the MCA grant military tribunals jurisdiction over juvenile crimes by soldiers as such, just as it is true that Congress did not create military commission jurisdiction, specifically, over the elderly”.⁸³The MCA, it argues, does not use the term “adult”, but only “person”, when defining “unlawful enemy combatant”. According to the government, therefore, a child of any age, if branded with this label, could be prosecuted in front of a military commission under the MCA. A “person”, according to the prosecution in arguments before the military judge on 4 February 2008, is “anyone born alive”. Khadr’s lawyers, the government asserted in its brief, “can point to nary a citation (in the Act’s text or its legislative history) that suggests Congress had any qualms about prosecutions against members of al Qaeda – regardless of their age”.⁸⁴

The MCA’s failure to expressly exempt children from the jurisdiction of the military commissions contradicts Principle 7 of the draft UN Principles governing the administration of justice through military tribunals, which states that:

“Strict respect for the guarantees provided in the Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) should govern the prosecution and punishment of minors, who fall within the category of vulnerable persons. In no case, therefore, should minors be placed under the jurisdiction of military courts”. ⁸⁵

The Special Rapporteur noted that the Convention on the Rights of the Child lists specific safeguards applicable to minors under 18, and that if judicial proceedings were pursued in any particular case, civilian courts would be “well placed to take into account all the requirements of the proper administration of justice in such circumstances, in keeping with the purposes of the Convention.” The MCA provides no such procedures or provisions.

Moreover, the military judge and other members of the military commission are not required to have any skills or training in relation to this issue. Neither does the legislation expressly allow the prosecutor to exercise discretion in the case of someone who was a child at the time of the alleged offences. Under international standards, “prosecutors shall particularly consider available alternatives to prosecution under the relevant juvenile justice laws and procedures” and “shall use their best efforts to take prosecutory action against juveniles only to the extent strictly necessary”.⁸⁶Omar Khadr’s military commission trial is not necessary as alternatives exist in the ordinary criminal justice system of the USA (this is also the case for those Guantánamo detainees taken into custody as adults). Under international standards, “tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals”.⁸⁷The commissions should be abandoned once and for all.

Military defense lawyer: Do you have an understanding as to the legal status of the conflict in Afghanistan? Military Judge: Nope. Exchange at Omar Khadr’s arraignment, Guantánamo, 8 November 2007.

In the absence of juvenile justice provisions in the MCA, the USA’s pursuit of trial by military commission against Omar Khadr appears to be being driven by a retributive, punitive mentality, without any regard to the rehabilitative priority required under international standards. The government has pursued his trial by military commission rather than in a federal court which could treat alleged child offenders differently from adult offenders. Ignoring principles of juvenile justice, the government asserts that “under the law of war, unlawful combatants like Khadr faced military commissions (at best) and summary execution (at worst) for openly flaunting the rules and customs that govern armed conflict…. Khadr can point to nothing – not even a law review article – that suggests unlawful enemy combatants are entitled to federal court trials for their war crimes”.⁸⁸In another brief, it states: “Needless to say, national security and military considerations prohibit Khadr’s reintegration… Khadr’s family has emphasized that Khadr will never retreat from his self-proclaimed jihad”.⁸⁹

Omar Khadr faces five charges under the MCA The USA seeks to channel anyone it labels as an “unlawful enemy combatant” into the jurisdiction of the military commissions, regardless of the circumstances or location in which they were detained. Like some of their adult counterparts, some child “enemy combatants” were detained outside zones of armed conflict. Chadian national Muhammad Hamid al Qarani, for example, was arrested in a mosque in Karachi in Pakistan in October 2001 at the reported age of 14 and transferred in January 2002 from Afghanistan to Guantánamo, where he remains and could yet face trial. Meanwhile, the offences with which Omar Khadr is charged straddle periods of international and non-international armed conflict in Afghanistan, and in the case of “conspiracy” may even pre-date the international conflict that began there in October 2001. Outside of the MCA, at least some of the charges do not describe “war crimes” under international law, as the US alleges. I. Murder in violation of the law of war. This charge relates to the death of Sergeant Speer on 27 July 2002 (see above). However, it is not a war crime to kill a soldier in an armed conflict, unless that soldier is hors de combat, that is, is not engaged in military action as a result of illness, injury, capture or surrender (which is not alleged here). A member of an armed group or a civilian who takes direct part in hostilities, who kills a combatant, can be charged with murder under common or domestic law. II. Attempted murder in violation of the law of war. The USA alleges that between about 1 June and 27 July 2002, Khadr converted land mines into improvised explosive devices (IEDs) with the intent of using them against US or allied forces. It is not a war crime to attempt to kill a soldier in an armed conflict, unless that soldier is hors de combat. Such conduct could be charged under domestic law. This charge alleges that the offences were committed in both the international and non-international armed conflicts. III. Conspiracy. The US government alleges that “from at least” 1 June 2002 to around 27 July 2002, Omar Khadr conspired with members of al-Qa’ida to commit crimes “triable by military commission”, namely “attacking civilians; attacking civilian objects; murder in violation of the law of war; destruction of property in violation of the law of war; and terrorism”. In the Hamdan v. Rumsfeld ruling, a plurality of the Supreme Court Justices affirmed that conspiracy to violate the law of war was not a recognized violation of the law of war. Defendants have been tried in the federal courts on charges of “conspiracy” and “providing material support for terrorism”, raising questions about consistency of prosecutions and demonstrating that commissions are not the only available trial forum as the government has claimed. IV. Providing material support for terrorism. In support of charges III, IV and V, the USA includes as “overt acts” committed by Omar Khadr his allegedly being trained in the use of weapons and explosives and conducting surveillance “at the direction of a known al Qaeda member or associate”. By ratifying the Optional Protocol on the involvement of children in armed conflict (some three years before Omar Khadr was charged), the US government condemned “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 recogniz[ed] the responsibility of those who recruit, train and use children in this regard”. It is now seeking to hold Omar Khadr criminally responsible for undergoing the sort of training that the USA has acknowledged is the responsibility of the trainer. V. Spying. The government alleges that around June 2002, Omar Khadr collected “certain information by clandestine means or while acting under false pretenses”, information which he “intended or had reason to believe would be used to injure the United States or provide an advantage to a foreign power”. Elsewhere, the US government has acknowledged that globally, “the majority of child soldiers are between the ages of 15 and 18… Many children are abducted to be used as combatants. Others are made unlawfully to serve as porters, cooks, guards, servants, messengers, or spies.90

An international law-free zone

International cooperation and any measures that we undertake to prevent and combat terrorism must comply with our obligations under international law, including the Charter of the United Nations and relevant international conventions and protocols, in particular human rights law, refugee law, and international humanitarian law.⁹¹

The absence of juvenile justice provisions in the MCA is consistent with the USA’s general disregard for international human rights law in its treatment of anyone it labels as an “enemy combatant”, whether adult or child.

Omar Khadr was taken into custody about five weeks after the end of the international armed conflict in Afghanistan that began with the US-led invasion on 7 October 2001 and ended with the establishment of a Transitional Authority on 19 June 2002. After that point, the state of Afghanistan was represented by a sovereign government, one that was allied with the USA. The armed conflict that has occurred since then has been one that is non-international in nature (although it could perhaps be characterized as an “internationalized” non-international conflict due to the presence of US and other non-Afghan armed forces). As the International Committee of the Red Cross, the authoritative interpreter of the Geneva Conventions, states:

“In non-international armed conflict combatant status does not exist. Prisoner of war or civilian protected status under the Third and Fourth Geneva Conventions, respectively, do not apply. Members of organized armed groups are entitled to no special status under the laws of non-international armed conflict and may be prosecuted under domestic criminal law if they have taken part in hostilities. However, the international humanitarian law of non-international armed conflict - as reflected in Common Article 3 of the Geneva Conventions, Additional Protocol II to the Geneva Conventions where applicable, and customary international humanitarian law – as well as applicable domestic and international human rights law all provide for rights of detainees in relation to treatment, conditions and due process of law.”⁹²

By presidential decision, the USA did not apply Geneva Convention protections, including under Article 3 common to the four Geneva Conventions, to those it captured during the international and subsequent non-international armed conflicts in Afghanistan. In relation to the “conditions of detention and the procedures for trial of members of al Qaeda and the Taliban militia”, the Justice Department’s Office of Legal Counsel had advised the White House and the Pentagon that “treaties forming part of the law of armed conflict” protected neither category of detainee, and also that “customary international law has no binding legal effect on either the President or the military”. The USA also took, and continues to take, the position that its obligations under the International Covenant on Civil and Political Rights – Article 14 of which details rights to a fair trial – do not apply extraterritorially, that is, outside of US sovereign territory, including at Guantánamo.⁹³It further claims, again wrongly, that (its unilateral interpretation of) the law of war, not human rights law, applies to its “war on terror” detention regime. Human rights law applies at all times, even in times of armed conflict.

As already noted, the Military Commissions Act was the government’s legislative response to the June 2006 Hamdan v. Rumsfeld ruling, which had found that the military commission system established under President Bush’s military order of 13 November 2001 was unlawful under US military law and the Geneva Conventions. The Supreme Court found that article 3 common to the four Geneva Conventions “is applicable here” and required that trials, in the words of Common Article 3, be conducted before a “regularly constituted court affording all the judicial guarantees which are recognized by civilized peoples”. Military commissions under the Military Order were not such a court. Neither will be those convened under the MCA.⁹⁴

Section 948b of the MCA nevertheless states that a military commission established under the Act is a regularly constituted court, affording all the necessary judicial guarantees, as required under Common Article 3. In its case against Omar Khadr, the prosecution maintains that this is a “factual statement” and “is not written in the hortatory sense”.⁹⁵Just stating something as fact does not make it so, however. For example, the Military Order signed by President Bush in November 2001 authorizing military commissions stated that trials would be “full and fair”. Not so, as the US Supreme Court ruled in 2006, finding the commission system unlawful.

The government continues to argue for an international law vacuum for its detention and trial regime at Guantánamo. The military commission, according to Khadr’s prosecution, is not “required to review each jot and tittle” of the MCA or the military commission procedures established by the Pentagon in the Manual for Military Commissions (MMC) “for compliance with Common Article 3”. Even if the MCA was “somehow in conflict with Common Article 3, Congress is not bound by the Geneva Conventions, Common Article 3 or any other earlier-enacted treaty or source of international law.” Furthermore, “just as Congress is not bound by international law, regulations promulgated by the Secretary of Defense, pursuant to an express delegation from Congress, are valid and enforceable under US law, regardless of anything in international law to the contrary”.⁹⁶In addition, the MCA states that “no alien unlawful enemy combatant subject to trial by military commission… may invoke the Geneva Conventions as a source of rights”. Therefore, the government argues, it is “irrelevant whether the MCA or the MMC comply with Common Article 3” because Omar Khadr cannot use Common Article 3 as the legal basis for a challenge to the jurisdiction of the commission.

The ICRC has stated that if brought to trial for any crimes they may have committed, anyone detained in the non-international armed conflict in Afghanistan is “entitled to the fair trial guarantees of international humanitarian and human rights law”.⁹⁷The US Supreme Court’s Hamdan ruling declared that common Article 3’s requirement for fair trial must be interpreted as broadly as possible. Welcoming the Hamdan decision, the UN H