Omar Khadr, accused of war crimes and assisting Al Quade, has been imprisoned in Guantanamo since 2002. He was only 15 when he was captured. Is prosecuting a child under the age of 18 violates international law? Can a 15-year-old child commit war crime?
The UN Convention on the Rights of the Child (Art.38) and the Rome Statute (Part 2, Art.8(2)(b)(xxvi)) prohibits children under the age of 15 form taking part in hostilities. The Optional Protocol to the Convention on Rights of the Child (Art.1) and the 1st Additional Protocol (Art.77) to the Geneva Convention forbids the use of children under 18 in combat. However, these provisions create responsibility for states that use child soldiers, and United States is not a party to these treaties.
According to the past practice, for example, the Chief Prosecutor of Sierra Leone, David Crane, refused to prosecute any child soldiers under the age of 18. Moreover, in the domestic law of the United States, the minimum age for joining the armed forces is 17.
From the above, it’s reasonable to assume that there is a customary international law that anyone under the age of 18 shall receive special protection. In fact, whether prosecuting a minor violates the international law, the inhumane interrogations violate the basic principle of Geneva Convention and human rights. The Omar Khadr just makes the Guantanamo Bay detention camps even more disgraceful.
2 comments:
You are correct that the US is not a party to the Convention on the Rights of the Child, the Rome Statue or the Additional Protocol I. However the US is a state party to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (a little fact I wasn't aware of either until I looked up a few things for my own blog post). The US ratified the protocol on December 24, 2002. There's also the International Labor Convention No. 182, which the US has also ratified, that prohibits the forced or compulsory recruitment of children for use in armed conflict. So with those two treaties, you can make the argument that the US is obligated under international law to assist in the rehabilitation of former child soldiers...which it has clearly not done in Omar's case.
Here's a HRW report concerning Omar that you might be interested in: http://hrw.org/backgrounder/usa/us0607/us0607web.pdf
It makes the interesting point that since the US has identified Omar as an "unlawful enemy combatant" that means the US also recognizes him as a child soldier, which would then mean the US was obligated to treat him as such.
Post a Comment