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.
