14 Apr Why the Law of War Permits the U.S. to Detain and Try 16-Year-Olds Like Omar Khadr
Christopher Jenks, Chief of the International Law Branch of the Office of the Judge Advocate General, has a pretty compelling defense here of the legality of the U.S. detention and trial of Canadian Omar Khadr for violations of the law of war, despite the fact that Khadr was not quite 16 when he committed his alleged crimes. The heart of his analysis seems to be based on Additional Protocols of the Geneva Conventions (which the U.S. is not a party to but to which it adheres as a matter of policy).
Additional Protocol I, which deals with IAC, discusses the protection of children in art. 77. While art. 77 affords special protections, those protections apply to children under 15. Even then, the special protections do not preclude children, even those under 15, from being arrested, detained, or interned if they take a direct part in hostilities. Under AP I, persons who had not reached 18 years of age when they committed an offense related to armed conflict are not subject to the death penalty. The clear inference is that such individuals may be held criminally responsible for their actions and subject to punishment, just not capital punishment.
Additional Protocol II, which deals with NIAC, describes the care and aid children require in art. 4, and in slightly more detail than AP I. It does so first as applied to children who do not take a direct part in hostilities or who have ceased to take part in hostilities. It then qualifies that the special protections remain applicable to children under 15 who have taken a direct part of hostilities. Again though, the special protections do not include protection or immunity from internment or detention, and wouldn’t apply to Khadr anyway as he was not under 15.