Why the Law of War Permits the U.S. to Detain and Try 16-Year-Olds Like Omar Khadr

by Julian Ku

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.


8 Responses

  1. I have a question for those who claim national defense might be – in some circumstances – separate from armed conflict need not comply with the laws of war.  I think Jordan Paust is in this camp (but do not wish to speak for him).  I am uncertain the full extent of Ken Anderson’s views on the applicability of IHL to acts of national self defense.  The question is this:

    Can Omar Khadr successfully raise individual self defense or defense of others in response to a charge of murder?  If not, why not?

  2. The militants began the fire fight by killing in cold blood the two Afghans who came to the compound to talk to them. The US forces then fought their way into the compound to come to their aid, but only recovered their bodies. After that, it is difficult to claim that anything was in “self defense or defense of others”. Khadr could plausibly claim combatant immunity if he admits to being a regular member of the Afghan army or militia, in which case the engagement was combat and not murder.

  3. Howard,

    I certainly understand your point of view.  My point is that there are those who believe that national self defense need not comply with the international laws regulating aremd conflict to be consistent with international law.  I am very skeptical of that view from the perspective of international (rather than domestic) law, and this case presents a possible basis for discussing why.

    For me it is fairly clear that, provided there is legal authority in domestic law for their actions, those engaging in our national self defense do not violate domestic law.  Such domestic authority need not comply with international law if it stems from a proper domestic authority and is otherwise consistent with the Constitution.  As Louis Henkin said, the U.S. government possesses the power, but not the right, to violate international law.  That is a separate question from whether and under what circumstances U.S. agents may use force consistently with international law. 

    On the facts you present (I do not have any better knowledge of them), Khadr posed no direct or imminent threat to U.S. forces.  Those forces were not themselves acting in individual self defense or in defense of others when they attacked — the Afghans were already dead and U.S. forces had no independent legal authority to detain the individuals responsible for this “murder,” presumably a violation of Afghan law. 

    Khadr, therefore, responded to a potentially unjustified use of deadly force against him (and others) with deadly force.  It would be a classic case of self defense but for the existence of an armed conflict permitting the attack and the requirement for lawful combatant status to gain immunity for his conduct (or possibly that he was not a combatant or a civilian  taking a direct part in hostilities, but only a kid in the wrong at the wrong time and therefore undertook to defend himself when the firefight broke out – a potentially specious argument under the facts publicly available).

    I haven’t yet reached a firm conclusion on anything.  I am just trying to stimulate learned discussion.

  4. The enemy force was discovered in a civilian context in a compound mixed in with civilians. The Afghans accompanying the US forces approached the compound to talk and were disarmed and executed. A fire fight broke out. Civilians were given a chance and left the compound, so anyone left inside was presumed to be an enemy combatant. Airstrikes killed most of the enemy force. When US soldiers entered the compound, Khadr who was hidden under some debris threw a hand grenade and killed an American.

    Although the enemy was not wearing uniforms, they were after all surprised in a civilian context. Nothing in the narrative suggests that Khadr was mistaken for a civilian or took advantage of his civilian dress. Everyone remaining in the compound was regarded as an enemy and in the final critical operation nobody saw Khadr until after he had launched his attack. Therefore, I see no reason to not grant a claim of combatant status if he asks for it, recognizing that as an admitted combatant he can be detained for the duration of hostilities as a prisoner of war.

    If you insist that he is not a combatant then he is guilty of murder as an unprivileged belligerent (who had been given an opportunity but declined to leave with the other women and children) who participated in combat. Because of his age, he can only be imprisoned.

    Which means that Khadr will spend a long time in prison, and what we are discussing is which of two alternative legal mechanisms justifies the detention. Is he detained as a prisoner of war or as a criminal? I don’t see a third option, but would be interested if anyone can propose one.

  5. Lt. Col. Jenks’ argument does not mention the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, which the USA signed in 2000 & ratified in December 2002. Art 6(3) of that treaty requires that the USA accord to anyone within its jurisdiction who was “recruited or used in hostilities contrary to the present Protocol”, as Khadr seems to have been, “all appropriate assistance for their physical and psychological recovery and their social reintegration.” The USA did not, so far as I am aware, make any reservation relevant to this provision.

    Then there is the International Covenant on Civil and Political Rights (ICCPR), signed by the USA in 1977 and ratified in 1992. Art 14 [on fair trial] states “4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.”

    The USA did make a reservation to that latter provision, stating “the policy and practice of the United States are generally in compliance with and supportive of the Covenant’s provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding … paragraph 4 of article 14. The United States further reserves to these provisions with respect to States with respect to individuals who volunteer for military service prior to age 18.” Has the USA established, before any court of law, what precisely the “exceptional circumstances” of Omar Khadr’s case are that justify distinguishing it from the cases of other children accused of unlawful killings insofar as the appropriateness of the trial procedure or primacy of rehabilitation is concerned? Can he really be considered to have “volunteer[ed] for military service” with a “State” within the meaning of the reservation?

    One might also add, as potentially relevant to the treatment accorded Omar Khadr, the prohibition on torture and other cruel, inhuman and degrading treatment or punishment in the UN Convention against Torture (USA party since 1994) and ICCPR, with parallel prohibitions under the 1949 Geneva Conventions. There is also the positive requirement that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” under article 10 of the ICCPR. The ICCPR also requires that “All persons shall be equal before the courts and tribunals” and “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” [articles 14(1) and 26]. It is difficult to see how the military commission regime, which explicitly allocates to non-US citizens, and non-US citizens only, lesser legal protections in its criminal process than those to which a US citizen would be entitled in either the Uniform Courts of Military Justice or civilian federal courts, can be consistent with these provisions.

    I raise these points simply to suggest that the issue of Omar Khadr’s age is not relevant solely to the question whether he could or could not be detained and tried at all. Ought we not equally to look at exactly what treatment he was actually accorded while in detention, and the procedures, character and purpose of the trial to which he is actually to be subjected, when discussing his case in relation to the frameworks of international law applicable to child soldiers, or indeed those provisions of international human rights which are universally applicable to human beings in general?

  6. Military Commissions can be used to try alien unlawful enemy combatants. They should be used to try crimes defined under common international law using standards generally accepted by the international community. In particular, since the operation in Afghanistan is a joint NATO operation, any detainee should be provided with all protections provided by the military courts of all the NATO nations.

    The US Constitution guarantees citizens and legal residents certain additional protections that are not commonly provided by courts in other countries or international courts. The Third Geneva Convention requires that lawful enemy combatants be granted the same treatment in any criminal proceeding that we would grant to one of our own soldiers charged with the same offense. However, unlawful enemy combatants are not protected by the Third Geneva Convention and alien enemy combatants are not protected by the Constitution directly. So the Military Commissions are intended to provide unlawful enemy combatants the same rights they would be provided by any other NATO country that might try them for the same offense, without discrimination based on any consideration. Not granting them a few additional protections that exist in the US Constitution but are not provided by any other country is not discrimination in any rational definition of the term.

    I see nothing in any of the quoted treaty language that says that “A 15 year old can kill people and still must be released.” Unless it says something closely approximating this, then all the vague general language about “rehabilitation” seems to be unrelated to the case at hand.

    The first question before the Commission will be whether it has jurisdiction. That depends on Khadr being an unlawful enemy combatant, which could be challenged. Then there are a number of charges (like “spying”) that make no sense at all and should be dismissed out of hand.

    In this case, there are eye witnesses. There is every reason to believe that Khadr will be able to confront the witnesses against him. It is true that Khadr may not be allowed the insane discovery rules that are peculiar to US litigation, but it is not clear that this has any effect on the case. Doesn’t it make sense to hold the trial and then after it is done see if there was anything unfair, given the high probability that in this case the slightly different rules will make no difference?

  7. Howard, 

    As for your response to my comments, I certainly understand the law of armed conflict and how it effects this case.  I note, however, that punishment of an unlawful combatant for an act of murder can only be a domestic crime.  It is not a war crime unless it amounts to perfidy.  Under the facts you provide, perfidy does not lie in this case – just as it did not (as charged) in Hamdan’s case.  See John C. Dehn, The Hamdan Case and the Application of a Municipal Offense: The Common Law Origins of ‘Murder in Violation of the Law of War’, 7 J. Int’l Crim. Just. 63 (2009).

    Again, my point is that we may not be able to have it both ways.  See Gary Solis, America’s Unlawful Combatants, Wash. Post, Mar. 12, 2010, at 17.  I am hoping Jordan or Ken will explain how this situation differs from the ides of self defense that they advance (assuming I understand them correctly). 

  8. M Pollard

    I certainly don’t disagree with your list of relevant international agreements, particularly OP 1 to the CRC and the ICCPR (notwithstanding US views of extraterritoriality of the ICCPR).  Also, I agree that there are issues concerning the manner of detention, or at least for Khadr that there were for the first two years of detention. From my perspective, those issues are part of the broader conversation on child soldier detention and prosecution we should be having. My post was in response to a series of news stories and comments that seemed to reflect that detention and prosecution of Khadr was per se violative because of his age.

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