US: End Military Commission Trial of Former Child Soldier

The US government should stop the Guantanamo military commission trial of Omar Khadr,
a former child soldier captured when he was 15, Human Rights Watch said
today. According to news reports, US military prosecutors are currently
in talks with Khadr's defense counsel regarding a plea agreement before
trial proceedings resume on October 25, 2010.

Khadr, a Canadian citizen, has spent more than eight years in US
military custody. He faces charges of murder and attempted murder in
violation of the laws of war, conspiracy, providing material support for
terrorism, and spying.

"Omar Khadr was picked up at age 15 and has now spent a third of his life at Guantanamo,"
said Andrea Prasow, senior counterterrorism counsel at Human Rights
Watch. "The US government has mistreated Khadr as a child offender and
now is misusing discredited military commissions to try him."

Khadr's military commission trial began in August, but was delayed
when his military lawyer, US Army Lt. Col. Jon Jackson, collapsed in
court while cross-examining a witness. The trial was scheduled to resume
on October 18, but recent news reports indicate that the two sides are
negotiating a plea deal. On October 14, the military judge issued an
order delaying the trial until October 25.

If a plea deal is reached, a sentencing hearing would still take
place and the military jury would still decide upon a sentence. That
sentence would only be imposed on Khadr if it was lower than the
sentence under the plea agreement.

US forces captured Khadr, who is now 24, on July 27, 2002, after a
firefight in Afghanistan in which Khadr is alleged to have thrown the
grenade that killed US Army Sgt. 1st Class Christopher Speer and injured
other US soldiers. Khadr was seriously injured during the firefight and
taken to Bagram Air base in Afghanistan.

While detained at Bagram he was forced into painful stress positions,
threatened with rape, hooded, and confronted with barking dogs. The
government's own witnesses confirmed some of this treatment when they
testified that Khadr was interrogated while strapped down on a stretcher
just 12 hours after sustaining his life-threatening injuries. They also
testified that he was threatened with rape if he did not cooperate.

In October 2002 Khadr was transferred to Guantanamo where the abuse
continued. He told his lawyers that he was shackled in painful
positions, told he would be sent to Egypt, Syria, or Jordan for torture,
and used as a "human mop" after he urinated on the floor during one
interrogation session. He was deprived of all access to legal counsel
until November 2004, more than two years after he was first detained.

The military judge assigned to his case, Army Col. Patrick Parrish,
ruled that despite the ill-treatment, all statements made by Khadr could
be used as evidence against him.

"Any decision rendered by the fundamentally flawed military
commissions will be subject to legal challenges for years to come,"
Prasow said. "If the US is serious about its international legal
commitments, it will stop this trial before it becomes an even bigger
embarrassment."

Human Rights Watch will send observers to the Khadr proceedings, as
it has with most military commission proceedings and selected federal
court trials.

Concerns about the fairness of prior Khadr proceedings were
heightened by the apparent withholding of important evidence from the
defense during pretrial hearings. The prosecution had initially claimed
Khadr was the only insurgent alive and in the vicinity at the time the
grenade was thrown. However, a document released inadvertently in
February 2008 revealed that two versions of the Khadr incident report
existed, one stating the insurgent who threw the grenade had been killed
- and thus could not have been Khadr - and another indicating that he
was still alive.

While child offenders may be prosecuted for war crimes, the US has
failed throughout Khadr's detention to afford him the protections
provided to children under international law. The US government has
refused to acknowledge Khadr's status as a child at the time of the
alleged offense or to apply universally recognized standards of juvenile
justice in his case. International law requires that certain procedural
protections be followed when prosecuting child offenders and that
rehabilitation and reintegration be primary considerations. No
international court or Western country has prosecuted a child offender
for alleged war crimes in decades.

Under the Optional Protocol to the Convention on the Rights of the
Child on the Involvement of Children in Armed Conflict (Optional
Protocol), which the United States ratified in 2002, the US is obligated
to recognize the special situation of children who have been recruited
or used in armed conflict. The Optional Protocol requires the
rehabilitation of former child soldiers within a state party's
jurisdiction, mandating that states provide "all appropriate assistance
for their physical and psychological recovery and their social
reintegration."

Referring to the Khadr case and others, the United Nations committee
that monitors the rights of children found that the United States has
held alleged child soldiers at Guantanamo without giving due account of
their status as children. It also emphasized that "criminal proceedings
against children within the military justice system should be avoided."

"Any plea deal with Khadr needs to fully recognize his status as a
child offender, making his rehabilitation top priority," Prasow said.