This is from the National Post. International law means nothing to the U.S. unless it is some enemy of the U.S. that is supposed to be violating it. If Iran ignores UN resolutions sanctions are demanded; if Israel, more military aid is provided. If the U.S. violates international law as in the case of mining Nicaraguan harbours the U.S. manages to help overthrow the government and the U.S. friendly govt. does not try to collect damages.
Guantanamo is a blot on the legal landscape. The best that can be said is that there are some U.S. military lawyers that have shown backbone and have pointed out the flaws in the system, a lot more than Stephen Harper has ever done.
Even though the U.S. has signed the relevant convention in this case it simply ignores it, just as it ignores the Geneva Conventions when it comes to such techniques as water-boarding. Surely this move should convince Harper that Khadr cannot get a fair trial in Guanatanamo. Of course Harper already knows that but he doesn't care. Supporting Khadr will not get him a majority.
Wednesday, April 30, 2008
Presented by
Khadr's child soldier defence tossed out
Steven Edwards, Juliet O'Neill, Canwest News Service
Published: Wednesday, April 30, 2008
A U.S. military judge has dismissed the argument that Omar Khadr -- 15 at the time he allegedly threw a hand grenade that killed a U.S. serviceman -- should be spared a war crimes prosecution on grounds he was a "child soldier" under international law.
Col. Peter Brownback essentially endorsed the Pentagon argument that people under the age of 18 can be brought before the U.S. war crimes commissions at the U.S. naval base in Guantanamo Bay, Cuba, according to Khadr's military defence lawyer, Lt.-Cmdr. Bill Kuebler.
The rejection is a significant setback for Khadr's defence, and little now stands in the way of his trial going ahead as scheduled around the end of July.
But Kuebler says it reflects what he and a significant number of jurists and human rights activists around the world call the bias of the commissions.
"This ruling is an embarrassment to the United States," said Kuebler, who has vigorously campaigned for the Canadian government to call for Khadr's return from the United States on grounds he can't get a fair trial in Guantanamo.
"The military commission process has now clearly failed and Canada will share in the embarrassment if it does not act soon."
The process, authorized by U.S. Congressional legislation in 2006 after the U.S. Supreme Court said earlier versions set up by the Bush administration were illegal, can impose the death penalty on those convicted of capital crimes.
Khadr faces five war crimes charges, including murder -- though the prosecution has said it will not seek the death penalty in his case if he is convicted, but could ask that he be imprisoned for life.
At the Pentagon, the administration office for the commissions had yet to release the text of the ruling Wednesday, and U.S. defence department spokespeople familiar with the process were unavailable.
Kuebler, who arrived in Ottawa Tuesday to speak of Khadr's predicament at hearings held by the parliamentary human rights subcommittee, announced the conclusion of the ruling in a press statement.
In separate rulings the Pentagon did release Wednesday, Brownback also dismissed a bid by Kuebler to have the five charges dismissed on grounds the offences didn't exist at the time of Khadr's 2002 capture because Congressional authorization was not granted until four years later.
Brownback cited Supreme Court rulings that gave Congress the right to let the commissions "determine for themselves what are the violations of the law of war."
At a Guantanamo hearing before Brownback in February, Kuebler argued the U.S. Congress couldn't have wanted the commissions to try people under the age of adulthood because allowing such would be inconsistent with the terms of a child soldier "protocol" Congress has ratified.
The protocol - which is attached to the global Rights of the Child treaty, and which Canada has also ratified - says countries that take child soldiers into custody should help with their "rehabilitation and social integration."
Kuebler also pointed out that commission rules fail to follow historical military law in the U.S. by distinguishing between juveniles and adults - therefore, he argued, the commissions are meant just for adults.
Prosecutors hit back by pointing out the protocol does not explicitly preclude prosecution of a child soldier - and said there was no evidence Congress "had any qualms" about prosecuting Khadr for war crimes because he was first charged a year before the 2006 authorization act.
""Congress therefore knew that the government intended to prosecute Khadr," prosecutors say in a written argument.
Kuebler and his civilian co-counsel, Rebecca Snyder, have uncovered U.S. military records that suggest Khadr may not have even lobbed the hand grenade that mortally wounded Delta Force Sgt. Chris Speer in a firefight in Afghanistan - and which led to the murder charge against him.
But while former Liberal administrations failed to consistently press for Toronto-born Khadr's return to Canada, the current Conservative government has said it intends to let the legal process play itself out before it goes beyond monitoring Khadr's detention conditions.
"Our best hope has always been intervention by the Canadian government to protect Omar's rights as a child soldier under international law," Kuebler said.
"I think if the Canadian government does not act soon, Omar is going to be convicted of a murder that he very likely did not commit and face a life sentence in a matter of months."
He spoke before meeting Liberal leader Stephane Dion, who has been calling for Khadr's repatriation since last September.
"If they are unable, our American friends, to give him a trial in a legal court, a regular court in the United States, we want him back in Canada," Dion told reporters.
In a prepared statement, Dion said the Canadian government has a duty to ensure Khadr's rights under the Canadian charter and international law are respected. "Omar Khadr is innocent until proven guilty and must be offered the same legal rights and due process as any other Canadian facing trial," Dion said. "This may not be a politically popular case to pursue, but this is the right thing to do."
He noted that lawyers who lead the bar associations in Canada, the United Kingdom and France have pointed out the U.S. Military Commissions Act of 2006 wrongly subjects individuals to trial by military commission solely on the basis of their status as aliens.
"The trial and continuing detention of Omar Khadr constitutes a violation of the fundamental principles of the rule of law including: arbitrary and illegal detention, denial of procedural due process, denial of the right to counsel, and denial of the right to trial within a reasonable time before a fair and impartial tribunal," the statement said.
"Canada cannot pick and choose when to intervene on behalf of Canadians detained abroad. Omar Khadr must receive the same level of support from his government as would any other Canadian."
Canwest News Service
Copyright © 2007 CanWest Interactive, a division of CanWest MediaWorks Publications, Inc.. All rights reserved.
Showing posts with label Child soldiers. Show all posts
Showing posts with label Child soldiers. Show all posts
Thursday, May 1, 2008
Saturday, March 22, 2008
Omar Khadr: A most peculair young offender
There is no political mileage in this for Harper. Just perusing the responses on any article on Khadr one finds that the majority of posts are quite unsympathetic. The Khadr family is a known terrorist family and many would like to revoke their Canadian citizenship or exile them to Antarctica!
Even this article ignores the fact that Khadr was probably subjected to torture that would make much of the evidence against him inadmissible in any ordinary court. Of course Guanatanamo is a blot on the legal landscape but even so his U.S. military lawyer has shown a great deal of courage given his situation. We now know that there was another person alive at the scene who could have thrown the grenade but he was summarily executed -a war crime? We know that one of Khadr's interrogators was court martialed for mistreating suspects and sentenced to several months in jail. We know that he was subject to waterboarding. We know that the record of events was altered.
But Harper is not about to challeng the U.S. justice system. A Canadian sentenced to death in the U.S. got no sympathy from Harper. Of course a Canadian accused in Mexico is different, or in Saudi Arabia, or in China. But the U.S. system even in Guantanamo or when applying the death penalty is a model for Harper.
Omar Khadr: A most peculiar young offender
He should be dealt with here in Canada, as a juvenile who was involved in terrorism
SEAN FINE
From Saturday's Globe and Mail
March 22, 2008 at 12:00 AM EDT
The civilized world condemns the recruitment of child soldiers. Yet Canada sits quietly by as one of its citizens, Omar Khadr, is prosecuted by the United States for war crimes he allegedly committed at age 15 as a member of al-Qaeda.
It is impossible to square. Al-Qaeda's recruitment of child soldiers is immoral and abusive; consequently, it is immoral and abusive to prosecute as a war criminal a child recruited by al-Qaeda, and punish him accordingly. We can't have it both ways.
Lately, it has dawned on Canadians that the United States may well have lied about its evidence against Mr. Khadr. Far from having proof that only he could have thrown the grenade that killed their soldier, the U.S. appears to have hidden the truth: that the teenage Canadian was in the company of an adult al-Qaeda fighter and was himself unarmed, on his knees and facing away from battle when a U.S. soldier shot him twice — in the back.
But the falsehoods are only part of the reasons why Canadians let the 15-year-old disappear six years ago into the legal black hole of Guantanamo Bay, Cuba, in which he had no access to a lawyer for the first 27 months and no way to contest his detention. Canadians accepted that Mr. Khadr be held fully responsible for his actions. As if he were an adult.
The irony has never really penetrated Canadians' consciousness. Canada, the country of the liberal Youth Criminal Justice Act, is the only Western nation to give the United States carte blanche with one of its nationals at Guantanamo. Britain, Australia, Sweden and Germany fought to repatriate their nationals — adults, all of them. And Canada let a juvenile languish.
The reply from our government is but a single, vapid refrain: "Let the process work." But this is a process that, even apart from its other flaws, aims at punishing Omar Khadr for the accident of his birth in an al-Qaeda family.
A VICTIM OF HIS OWN HOME
When a young person raised in a terrorist family becomes a terrorist at 15, does he join voluntarily? Can he give free and informed consent? To say yes is to let al-Qaeda and Toronto's Khadr family off the hook for grooming children for terrorism. It puts the onus on the children to resist.
Most Canadian children grow up in circles within circles of benign, positive influences — family, school, neighbourhood, the larger culture. Omar's circles of influence were pro-terror. His late father, Ahmed Said Khadr, was a senior financier with al-Qaeda who prodded Abdurahman, Omar's elder brother, to become a suicide bomber. Even his mother and sister boasted on national television of the glories of terrorism.
From age 11, Omar was inculcated in terror, according to the U.S. charge sheets. "From 1996 to 2001, the Khadr family travelled throughout Afghanistan and Pakistan, including yearly trips to Usama bin Laden's compound in Jalalabad for the Eid celebration at the end of Ramadan. While travelling with his father, Omar Khadr saw or personally met senior al-Qaeda leaders, including Usama bin Laden, Doctor Ayman Al-Zawahiri, Muhammad Atef (aka Abu Hafs al Masri), and Saif al Adel. Khadr also visited various al Qaeda training camps and guest houses."
Only an extraordinary 15-year-old could have withstood that grooming process. The Khadr son who did resist, Abdurahman, did not do so until he was in his 20s. A younger brother, Abdul Karim, was paralyzed in battle in Pakistan in 2004 at 14. (His father was killed in the same battle.) The oldest brother, Abdullah, faces extradition from Toronto to the United States on terrorism charges from Afghanistan.
Yet many Canadians insist he acted of his free will. "Real child soldiers are forcibly taken from their parents (who are often killed)," one Globe reader wrote in an unpublished letter to the editor. "These children are drugged, brainwashed, and abused so they become killers. Khadr became a soldier/terrorist because his family encouraged it. He was a willing participant. Where was the coercion?"
This is a narrow view of coercion. Could there be a worse form of coercion than that in a father's wish that his son become a suicide bomber? "Blow yourself up or lose your father's esteem." Omar's family culture promoted dying for the cause. That was what it meant to be a good boy in that family.
CHILD SOLDIERS ELSEWHERE
The world is rife with child soldiers. Peter Singer of the Brookings Institution in Washington, D.C., estimates that as many as 300,000 child soldiers are in combat around the world. Yet none of today's international war-crimes tribunals prosecute child soldiers or terrorists.
No one under 18 has been charged before the tribunals for Rwanda or the former Yugoslavia. No one has been charged in East Timor, in Cambodia, in Bosnia and Herzegovina. "To date, there is no precedent in history for the prosecution of a child soldier before an international criminal tribunal, and similarly there is no precedent in the Western world for prosecution of a child soldier before any state tribunal," says Sarah Paoletti, a professor at the University of Pennsylvania School of Law, in a friend-of-the-court brief to the military commission that is to try Mr. Khadr. (Among those whose names are on that brief are former Canadian justice ministers Irwin Cotler and Allan Rock.) The U.S. says there are in fact precedents, but its examples predate the Nuremberg Tribunals. For instance, a British Military Court in northwestern Germany convicted and jailed a 15-year-old Hitler Youth member for his role in killing a British serviceman.
More recently, at the Special Court for Sierra Leone in 2004, the U.S. prosecutor, David Crane, was given the option of putting on trial, in a court without punishment, those age 15 to 17 who committed war crimes. Memorably, Mr. Crane rejected that idea. "The children of Sierra Leone have suffered enough both as victims and perpetrators. I want to prosecute the people who forced thousands of children to commit unspeakable crimes."
If international practice is clear, the law as written is less so.
The relevant text is the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Both Canada and the U.S. are among the 150 signatories. "The Protocol prohibits the United States from using child soldiers, not from prosecuting them," says the U.S. brief to the military commission.
It's right. The protocol is silent on its face. Emboldened by that silence, the U.S. stretches the point: "If anything, the Protocol obligates the United States to prosecute Khadr" because not punishing Mr. Khadr would "further incentivize" al-Qaeda in recruiting young people.
If the U.S. is right, where is the outcry that all the world's child soldiers are going unpunished at all the world's tribunals except this one?
Omar Khadr was a war crime waiting to happen. Anyone in al-Qaeda or the Taliban is an unlawful enemy combatant under U.S. law. Anything such a combatant does to fight, even in battle, is a war crime.
"In a normal war," explained John Bellinger, a legal adviser to the U.S. state department, "where both sides have a right to engage in combat with one another, if a soldier kills a soldier on the other side, it's not murder unless it is done somehow contrary to the laws of war perfidiously, or killing someone when they have already surrendered.
"In this case, though, the members of al-Qaeda and the Taliban, while they may have thought they were defending themselves, they had no legal right under the laws of war to be engaging in combat." There's a legitimate expectation that young people know and abide by the criminal law of their countries; the minimum age of criminal responsibility is usually 12 (as it is in Canada). But how could a 15-year-old of Mr. Khadr's experience and background have been aware of the laws of war, especially laws that hadn't been invented yet?
And speaking of inventions: "According to the reports of the action we have available, the last surviving enemy in that compound … as his last act at the firefight rose up with a pistol and hand grenade, and engaged the coalition forces, threw the grenade," Col. Roger King, a U.S. spokesman based in Afghanistan, told the Associated Press in September, 2002. We now know that the U.S. had an eyewitness report that painted a very different picture.
A CASE FOR CANADIAN PROCESSES
And what has Canada done to help Mr. Khadr? It sent intelligence officers to interrogate him without counsel, and passed summaries of the interrogations to the Americans. Some help. (The Supreme Court of Canada is hearing Mr. Khadr's request next week for access to Canada's files from those visits.)
"The recruitment and use of child soldiers is one of the most flagrant violations of international norms," says Mr. Singer. Why? Because children are not to be made a mere instrument of the state or terror group. Because children are manipulable. Because children cannot assess risk as adults can. To prosecute children as if they were fully responsible for war crimes is to legitimize their recruitment.
As other Western countries have repatriated adult suspected terrorists — several, in Britain's case — it seems strange that Canada would not bring a lone 21-year-old home to face fair processes that would take into account his age and background, and his long incarceration at Guantanamo. Omar Khadr, child soldier, has been dehumanized enough. Bring him home.
Even this article ignores the fact that Khadr was probably subjected to torture that would make much of the evidence against him inadmissible in any ordinary court. Of course Guanatanamo is a blot on the legal landscape but even so his U.S. military lawyer has shown a great deal of courage given his situation. We now know that there was another person alive at the scene who could have thrown the grenade but he was summarily executed -a war crime? We know that one of Khadr's interrogators was court martialed for mistreating suspects and sentenced to several months in jail. We know that he was subject to waterboarding. We know that the record of events was altered.
But Harper is not about to challeng the U.S. justice system. A Canadian sentenced to death in the U.S. got no sympathy from Harper. Of course a Canadian accused in Mexico is different, or in Saudi Arabia, or in China. But the U.S. system even in Guantanamo or when applying the death penalty is a model for Harper.
Omar Khadr: A most peculiar young offender
He should be dealt with here in Canada, as a juvenile who was involved in terrorism
SEAN FINE
From Saturday's Globe and Mail
March 22, 2008 at 12:00 AM EDT
The civilized world condemns the recruitment of child soldiers. Yet Canada sits quietly by as one of its citizens, Omar Khadr, is prosecuted by the United States for war crimes he allegedly committed at age 15 as a member of al-Qaeda.
It is impossible to square. Al-Qaeda's recruitment of child soldiers is immoral and abusive; consequently, it is immoral and abusive to prosecute as a war criminal a child recruited by al-Qaeda, and punish him accordingly. We can't have it both ways.
Lately, it has dawned on Canadians that the United States may well have lied about its evidence against Mr. Khadr. Far from having proof that only he could have thrown the grenade that killed their soldier, the U.S. appears to have hidden the truth: that the teenage Canadian was in the company of an adult al-Qaeda fighter and was himself unarmed, on his knees and facing away from battle when a U.S. soldier shot him twice — in the back.
But the falsehoods are only part of the reasons why Canadians let the 15-year-old disappear six years ago into the legal black hole of Guantanamo Bay, Cuba, in which he had no access to a lawyer for the first 27 months and no way to contest his detention. Canadians accepted that Mr. Khadr be held fully responsible for his actions. As if he were an adult.
The irony has never really penetrated Canadians' consciousness. Canada, the country of the liberal Youth Criminal Justice Act, is the only Western nation to give the United States carte blanche with one of its nationals at Guantanamo. Britain, Australia, Sweden and Germany fought to repatriate their nationals — adults, all of them. And Canada let a juvenile languish.
The reply from our government is but a single, vapid refrain: "Let the process work." But this is a process that, even apart from its other flaws, aims at punishing Omar Khadr for the accident of his birth in an al-Qaeda family.
A VICTIM OF HIS OWN HOME
When a young person raised in a terrorist family becomes a terrorist at 15, does he join voluntarily? Can he give free and informed consent? To say yes is to let al-Qaeda and Toronto's Khadr family off the hook for grooming children for terrorism. It puts the onus on the children to resist.
Most Canadian children grow up in circles within circles of benign, positive influences — family, school, neighbourhood, the larger culture. Omar's circles of influence were pro-terror. His late father, Ahmed Said Khadr, was a senior financier with al-Qaeda who prodded Abdurahman, Omar's elder brother, to become a suicide bomber. Even his mother and sister boasted on national television of the glories of terrorism.
From age 11, Omar was inculcated in terror, according to the U.S. charge sheets. "From 1996 to 2001, the Khadr family travelled throughout Afghanistan and Pakistan, including yearly trips to Usama bin Laden's compound in Jalalabad for the Eid celebration at the end of Ramadan. While travelling with his father, Omar Khadr saw or personally met senior al-Qaeda leaders, including Usama bin Laden, Doctor Ayman Al-Zawahiri, Muhammad Atef (aka Abu Hafs al Masri), and Saif al Adel. Khadr also visited various al Qaeda training camps and guest houses."
Only an extraordinary 15-year-old could have withstood that grooming process. The Khadr son who did resist, Abdurahman, did not do so until he was in his 20s. A younger brother, Abdul Karim, was paralyzed in battle in Pakistan in 2004 at 14. (His father was killed in the same battle.) The oldest brother, Abdullah, faces extradition from Toronto to the United States on terrorism charges from Afghanistan.
Yet many Canadians insist he acted of his free will. "Real child soldiers are forcibly taken from their parents (who are often killed)," one Globe reader wrote in an unpublished letter to the editor. "These children are drugged, brainwashed, and abused so they become killers. Khadr became a soldier/terrorist because his family encouraged it. He was a willing participant. Where was the coercion?"
This is a narrow view of coercion. Could there be a worse form of coercion than that in a father's wish that his son become a suicide bomber? "Blow yourself up or lose your father's esteem." Omar's family culture promoted dying for the cause. That was what it meant to be a good boy in that family.
CHILD SOLDIERS ELSEWHERE
The world is rife with child soldiers. Peter Singer of the Brookings Institution in Washington, D.C., estimates that as many as 300,000 child soldiers are in combat around the world. Yet none of today's international war-crimes tribunals prosecute child soldiers or terrorists.
No one under 18 has been charged before the tribunals for Rwanda or the former Yugoslavia. No one has been charged in East Timor, in Cambodia, in Bosnia and Herzegovina. "To date, there is no precedent in history for the prosecution of a child soldier before an international criminal tribunal, and similarly there is no precedent in the Western world for prosecution of a child soldier before any state tribunal," says Sarah Paoletti, a professor at the University of Pennsylvania School of Law, in a friend-of-the-court brief to the military commission that is to try Mr. Khadr. (Among those whose names are on that brief are former Canadian justice ministers Irwin Cotler and Allan Rock.) The U.S. says there are in fact precedents, but its examples predate the Nuremberg Tribunals. For instance, a British Military Court in northwestern Germany convicted and jailed a 15-year-old Hitler Youth member for his role in killing a British serviceman.
More recently, at the Special Court for Sierra Leone in 2004, the U.S. prosecutor, David Crane, was given the option of putting on trial, in a court without punishment, those age 15 to 17 who committed war crimes. Memorably, Mr. Crane rejected that idea. "The children of Sierra Leone have suffered enough both as victims and perpetrators. I want to prosecute the people who forced thousands of children to commit unspeakable crimes."
If international practice is clear, the law as written is less so.
The relevant text is the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Both Canada and the U.S. are among the 150 signatories. "The Protocol prohibits the United States from using child soldiers, not from prosecuting them," says the U.S. brief to the military commission.
It's right. The protocol is silent on its face. Emboldened by that silence, the U.S. stretches the point: "If anything, the Protocol obligates the United States to prosecute Khadr" because not punishing Mr. Khadr would "further incentivize" al-Qaeda in recruiting young people.
If the U.S. is right, where is the outcry that all the world's child soldiers are going unpunished at all the world's tribunals except this one?
Omar Khadr was a war crime waiting to happen. Anyone in al-Qaeda or the Taliban is an unlawful enemy combatant under U.S. law. Anything such a combatant does to fight, even in battle, is a war crime.
"In a normal war," explained John Bellinger, a legal adviser to the U.S. state department, "where both sides have a right to engage in combat with one another, if a soldier kills a soldier on the other side, it's not murder unless it is done somehow contrary to the laws of war perfidiously, or killing someone when they have already surrendered.
"In this case, though, the members of al-Qaeda and the Taliban, while they may have thought they were defending themselves, they had no legal right under the laws of war to be engaging in combat." There's a legitimate expectation that young people know and abide by the criminal law of their countries; the minimum age of criminal responsibility is usually 12 (as it is in Canada). But how could a 15-year-old of Mr. Khadr's experience and background have been aware of the laws of war, especially laws that hadn't been invented yet?
And speaking of inventions: "According to the reports of the action we have available, the last surviving enemy in that compound … as his last act at the firefight rose up with a pistol and hand grenade, and engaged the coalition forces, threw the grenade," Col. Roger King, a U.S. spokesman based in Afghanistan, told the Associated Press in September, 2002. We now know that the U.S. had an eyewitness report that painted a very different picture.
A CASE FOR CANADIAN PROCESSES
And what has Canada done to help Mr. Khadr? It sent intelligence officers to interrogate him without counsel, and passed summaries of the interrogations to the Americans. Some help. (The Supreme Court of Canada is hearing Mr. Khadr's request next week for access to Canada's files from those visits.)
"The recruitment and use of child soldiers is one of the most flagrant violations of international norms," says Mr. Singer. Why? Because children are not to be made a mere instrument of the state or terror group. Because children are manipulable. Because children cannot assess risk as adults can. To prosecute children as if they were fully responsible for war crimes is to legitimize their recruitment.
As other Western countries have repatriated adult suspected terrorists — several, in Britain's case — it seems strange that Canada would not bring a lone 21-year-old home to face fair processes that would take into account his age and background, and his long incarceration at Guantanamo. Omar Khadr, child soldier, has been dehumanized enough. Bring him home.
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