UNITED NATIONS - When the terror suspects held at Guantanamo Bay prison are brought before United States military judges next week, among them will be a minor captured as an "enemy combatant" by the U.S. army in Afghanistan some three years ago.
Omar Khadr, a Canadian citizen, faces imminent trial by military commission at Guantanamo Bay for war crimes he had allegedly committed at the age of 15, his lawyers say.
This photo of Omar Khadr was taken before he was imprisoned and distributed by his mother, Maha Khadr.
"This would be the first such trial of an individual under the age of 18 at the time of alleged offense in modern history," says American University law professor Richard Wilson who, along with Munir Ahmed, also a law professor, represents Khadr.
Khadr was born in Canada in September 1986 and is therefore a citizen of that country. He and his family left Kabul, Afghanistan in October 2001, shortly after his 15th birthday, as U.S. forces started military action in that country, according to the two lawyers.
Khadr was later captured by U.S. armed forces during a July 2002 skirmish near the town of Khost in which he allegedly lobbed a hand grenade that killed a U.S. soldier. He was then transferred to the U.S. air base at Bagram where his lawyers say interrogation, torture, and other severe mistreatment began immediately, although he was hospitalized and recovering from wounds.
Khadr was transferred to Guantanamo Bay in October 2002, and since then he has been held there in solitary confinement. In the face of intense criticism from human rights groups, the U.S. Defense Department released many children in January 2004, but Khadr was not one of them.
By then the military, according to Wilson, had decided that any child over the age of 16 at the time of his arrival at Guantanamo Bay would be treated as an adult for all purposes.
"Had Khadr not been held for more than two months in Bagram, when he was 15, before being transferred to Guantanamo, presumably he would have been treated as a child too and sent home," says Wilson, who claims that Khadr has been severely mistreated and continuously interrogated, without charges.
Khadr did not have access to counsel until July 2004 when Wilson and Ahmed entered into representation of him on pro bono basis, Wilson says, adding, "our appearance was limited at that time to representation in habeas corpus proceedings arising from the U.S. Supreme Court's decision in Rasul vs. Bush in 2004, which held that Guantanamo detainees had a right to access to the courts."
Now more than a year after that decision, the government continues to argue that the U.S. courts have no jurisdiction over the detainees, and refuses to provide even the most basic information about names and countries of origin for a majority of the detainees.
Wilson and Ahmed say they have visited Khadr only five times over the past 18 months because access is "extremely limited" due to court orders and other restrictions imposed by the military.
Two months ago, Khadr was finally charged with four alleged "war crimes," which also include "murder by an unprivileged combatant."
Khadr's lawyers say they have reviewed the records of trials held by international tribunals, beginning with Nuremberg after World War II, and have found no record of trial of a juvenile under the age of 18 for war crimes in any tribunal, including those for the former Yugoslavia, Rwanda, Sierra Leone, or East Timor.
Last week, Wilson and Ahmed sent a letter to Kofi Annan, the U.N. Secretary General, and Karin Sham Poo, Annan's special representative for Children and Armed Conflict, asking for U.N. intervention into Khadr's case.
"This unprecedented action cries out for your intervention," they wrote. "We request that your office fully investigate, document, and denounce this development."
They also urged Annan to send a representative to Guantanamo to attend the military hearings as an observer for "the protection of this child victim of armed conflict."
In October, U.N. Commission on Human Rights special rapporteur Leandro Despouy presented a report to the General Assembly in which he took the U.S. government to task for its policy on Guantanamo prisoners.
In his report, which focused on the independence of judges and lawyers, Despouy described the continued detention and trial of suspects at Guantanamo by the U.N. military commission as a "disturbing development."
"They do not allow appeals to be brought before a civil judge, and discriminate between national and foreign national among other things," he said.
Last year, the U.S. government continued to insist that the "circumstances were not favorable" to honor U.N. requests by several human rights experts to visit Guantanamo, Iraq, Afghanistan, and other detention centers.
In response the U.N. experts said they had decided to conduct an investigation regardless of whether or not they are allowed to visit the U.S.-run prisons.
In their appeal to Annan, Wilson and Ahmed drew Annan's attention to Khadr's case by citing the Optional Protocol to the U.N. Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and the Rome Statute of the International Criminal Court (ICC), which declines jurisdiction over any one under the age of 18 at the time of their alleged offenses.
But the U.S. has no obligation to abide by these treaties because it has not ratified any of them.
The military trial at Guntanamo Bay prison is scheduled to start Wednesday.
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