NEW YORK - Legal experts and human rights advocates are challenging the public to remember Guantanamo's "child soldiers" when the detainees there are characterised as "the worst of the worst".
Since the iconic detention centre in Cuba opened in 2002, some 22 juveniles have been imprisoned there. And contrary to the U.N.'s Rights of the Child protocol, all but three have been housed with the general population, despite their being obliged to promote "the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict".
Former Vice President Dick Cheney, Defence Secretary Donald Rumsfeld, and many other senior George W. Bush administration officials have repeatedly described all the Guantanamo detainees as "the worst of the worst".
Two "child soldier" cases in particular are being highlighted by human rights advocates.
Mohammed el-Gharani, a Chadian national and Saudi resident, was just 14 years old when he was seized by Pakistani forces in October 2001, in a raid on a mosque in Karachi, Pakistan, 700 miles from the battlefields of Afghanistan.
El-Gharani's defence lawyers charge he was treated with appalling brutality. They say that, after being tortured in Pakistani custody, he was sold to U.S. forces, who flew him to a prison at Kandahar airport, where, he said, one particular soldier "would hold my penis, with scissors, and say he'd cut it off".
They claim his treatment did not improve in Guantánamo. Subjected relentlessly to racist abuse, because of the colour of his skin, he was hung from his wrists on numerous occasions, and was also subjected to a regime of "enhanced" techniques to prepare him for interrogation - including prolonged sleep deprivation, prolonged isolation and the use of painful stress positions - that clearly constitute torture.
As a result of this and other abuse, including regular beatings by the guard force responsible for quelling even the most minor infractions of the rules, el-Gharani became deeply depressed, and tried to commit suicide on several occasions.
But last month, just days before President Barack Obama's inauguration, a federal judge, Richard Leon, ruled that the government had not proven that el-Gharani was an enemy combatant and said he must be released and sent home "forthwith". Judge Leon said the government had relied mainly on information from two other detainees at Guantánamo Bay whose reliability and credibility was questionable. He is unlikely to be released soon, however, because it is not clear if the government of Chad will accept him.
Over the past month, federal judges in Washington have been moving ahead with case-by-case reviews of about 200 detainee legal challenges. The review by civilian courts on the U.S. mainland is happening because of a Supreme Court ruling in June 2006 which gave terror suspects the right to challenge their detention in federal court.
The Bush administration had said that el-Gharani had stayed in an al Qaeda guest house in Afghanistan, had fought in the battle of Tora Bora - from where Osama bin Laden escaped in late 2001 - and had served as a courier for senior al Qaeda operatives. He was also accused of being a member of a London-based al Qaeda cell.
The other "child soldier" still at Gitmo is Omar Khadr. He was taken into custody in Afghanistan at the age of 15, and was in the midst of his trial when President Obama's first executive orders suspended all Military Commission proceedings for 120 days pending a case-by-case review of all cases and mandated an inter-agency task force to review the Military Commission system and alternatives for prosecutions.
Khadr was born in Toronto, and is the only citizen of a Western country currently detained by U.S. authorities in Cuba. He was captured after a four-hour firefight in the village of Ayub Kheyl, Afghanistan, and has spent the past six years at Guantanamo. He is charged with war crimes, providing support to terrorism and throwing a grenade that killed a U.S. soldier.
But according to lawyers who were present at the hearing, the case against him was unraveling as the trial proceeded. Unintentionally released U.S. military documents revealed that original reports said that Kadr was not the person who threw the grenade, and additional testimony by government witnesses has proven "unreliable".
One of the lawyers said, "There was little expectation that the mere failure to prove its case would cause the prosecution much trouble. A verdict of 'guilty' was almost assumed."
Gabor Rona, international legal director for Human Rights First, told IPS that Khadr's case "should be dismissed in its entirety". He pointed out that Khadr was 15 years old at the time he was taken into custody.
"If his trial proceeds - and no matter in what forum it proceeds - it will be the first instance of a child soldier being prosecuted in a U.S. court for conduct in wartime. This would be contrary to international legal principles, which counsel rehabilitation and protection, rather than punishment of, child soldiers," Rona said.
He added, "The conduct with which he is charged - defending against an attack by American soldiers - is not a crime under the laws of war. Prosecution an individual for conduct that was not a legal violation at the time of its commission is, itself, a war crime in international law, as well as a violation of the U.S. Constitution."
Canada's Prime Minister Stephen Harper has steadfastly refused to intervene in the Kadr case, and has declined to seek extradition to Canada while legal proceedings were ongoing. However, Rona told IPS that Canada and the U.S. are now reported to be discussing Khadr's possible repatriation to Canada.
"Whether this will happen and if so, under what conditions, is uncertain," he said.
According to recent reliable polling, 64 percent of Canadians have expressed the desire to have Kadr returned to Canada, and international and domestic organisations such as Amnesty International and the Canadian Bar Association have pressed the Conservative minority government to bring Kadr home.
Rona told IPS, "The issue of child soldiers is notable mainly when Western societies take umbrage about the recruitment of adolescents to fight in civil wars. The outrage curiously subsides when the child is one of our own, 'recruited' in this case by his father, a notorious al Qaeda sympathiser. Prime Minister Harper, however, appears deaf to the entreaties of UNICEF and other advocates for children."
He added, "As Americans contemplate a decade of abuse of their Constitution and increasingly urge that Mr. Bush and his associates be held accountable for their illegal actions at home and abroad, Canadians should also hold Mr. Harper accountable for trampling on the rights of one of his fellow-citizens."