The Youngest Gitmo Detainee: To Try or Not to Try?
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Washington Post reporter Peter Finn pits the youngest Guantanamo detainee against one of the youngest administrations in “a fierce debate over the propriety of putting a child soldier on trial.”
When a grenade left one American solider dead and another blind in Afghanistan, in late July 2002, then 15-year-old Omar Khadr was considered a suspect. The lawyer of the now 23-year-old charges that this conclusion is problematic, however; the case is far more complicated than originally believed. The blinded Special Forces officer who has little doubt about Khadr’s guilt, maintains the U.S should keep him in custody. But defense lawyers charge that "[Attorney General Eric] Holder’s assignment of the Khadr case to the military illustrates the Obama administration's acceptance of a two-tier system of justice."
This possible first full military tribunal under the Obama administration is drawing attention from U.N. officials, U.S. government officials, human rights advocates, defense lawyers, military prosecutors and even university professors.
Radhika Coomaraswamy, the U.N. special representative for children and armed conflict stated that "the U.N. position is that children should not be prosecuted for war crimes." As far as where governments stand, Canada’s Supreme Court voted unanimously that "it would not compel the Canadian government to seek [Khadr’s] repatriation." Khadr is a Canadian citizen. Still, U.S government officials maintain that a trial at Guantanamo Bay will take place, and Khadr will be put in front of a jury of military officers for charges including war crimes and murder.
This would not be the first trial against a minor that warrants such international attention:
I could have prosecuted anyone under the age of 18 for war crimes and crimes against humanity, but I chose not to," said David M. Crane, the former chief prosecutor for the Sierra Leone court and a law professor at Syracuse University....
Military prosecutors, who charge that Khadr threw the deadly grenade, said the Canadian's age does not excuse his actions. They note that a military judge in 2008 rejected a defense motion that the commissions did not have jurisdiction over the crimes of a child soldier.
John F. Murphy, the chief military prosecutor at Guantanamo Bay, proclaimed that “even in our traditional court system, we try 15-years-olds, and we try them as adults." Murphy also noted that “the United States and Britain prosecuted Nazi minors in military tribunals after World War II, and that some were imprisoned.”
Law versus morals: While the law may permit such prosecutions, is it the preferred route?
"The key issue is: Does international law prohibit the prosecution of people below the age of 18? And the answer is no," said [Michael A. Newton,] a professor of law at Vanderbilt University. "It's disfavored but not prohibited. Remedial training and rehabilitation is the norm. Prosecution is the exception, but prosecution is not prohibited."
(Photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)
