At Guantanamo Bay, Cuba, Omar Ahmed Khadr waits for his trial for war crimes, allegedly committed when he was fifteen years old, to resume. (2) Mr. Khadr's case raises the question of when, if ever, children should be prosecuted for violations of the laws of war. (3) In 2008, the Military Commission in the Khadr case ruled that the law does not prohibit the prosecution of juveniles for violations of the laws of war. (4) While the Commission's holding may have been accurate as a matter of law, the policy of the United States to detain and prosecute juveniles for war crimes is inconsistent with the United States' obligations to rehabilitate and reintegrate child soldiers. (5)
Omar Ahmed Khadr, a Canadian citizen, was born on September 19, 1986 in Toronto, Canada. (6) In 1990, at the age of four, Khadr moved with his family to Pakistan and then in 1996, to Afghanistan. (7) On July 27, 2002, Khadr was captured by U.S. forces and held in detention in Afghanistan for three months before being transferred to Guantanamo Bay, Cuba. (8) On February 2, 2007, more than four years after his capture, Khadr was charged with murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, providing material support to terrorism, and spying. (9) At the time of the alleged offenses, Mr. Khadr was fifteen years old. (10) On January 21, 2009, following the inauguration of President Obama, the Commission granted a four month continuance of Mr. Khadr's case while the new administration conducts a review of the Military Commission system and all cases before it. (11)
The Military Commissions Act
The Military Commissions Act (MCA) of 2006 authorized the President to establish Military Commissions to try "alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war." (12) The MCA defines unlawful enemy combatants as:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its cobelligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. (13)
International Law of Child Soldiers
International law maintains the somewhat contradictory views that child soldiers are to be treated as both victims and perpetrators. (14) Children unlawfully forced to participate in hostilities are to be disarmed, demobilized, and reintegrated into society, as required by the Optional Protocol to the Convention on the Rights of the Child (Optional Protocol to C.R.C), State practice and opinio juris. (15) Significantly, the United States is a signatory to the C.R.C. (16)
While international law gives preference to the rehabilitation and reintegration of child soldiers, it does not expressly prohibit the prosecution of children for violations of the laws of war. (17)
Following the Second World War, at least two Allied military tribunals in Germany prosecuted children for war crimes.18 Matthew Happold has documented numerous examples of prosecutions of child soldiers at the national level, notably in the Democratic Republic of Congo and Uganda. (19) The statute of the Special Court for Sierra Leone expressly grants the court jurisdiction over persons aged fifteen and above. (20) Even Amnesty International has implied that prosecution may be appropriate where the "child soldier concerned was clearly in control of his or her actions," "committed atrocities voluntarily" and was "not coerced, drugged or forced into committing atrocities." (21) Nonetheless, should a State choose to prosecute child soldiers for war crimes, it is bound to afford them both the general protections extended to all accused as well as specific protections owed toward juvenile defendants. (22) Furthermore, juveniles are to be afforded the defenses of infancy, duress, involuntary intoxication and any other available defense to negate or mitigate criminal responsibility. (23)
Notwithstanding the express protections afforded juvenile defendants and the absence of a clear prohibition on the prosecution of child soldiers, there is considerable State practice and opinio juris counseling against the prosecution of child soldiers. (24) For example, during the drafting of Additional Protocol I to the Geneva Conventions in the 1970s, at least one state delegate sought to prohibit the penal prosecution of children. (25) During the drafting of the Rome Statute in the late 1990s, child rights advocates called upon delegates to specify eighteen as the minimum age of criminal responsibility. (26) The state delegates settled on a procedural, rather than normative, solution to the question by deciding to exclude jurisdiction over persons who were under the age of eighteen at the time of the alleged commission of a war crime. (27) To date, this provision has been accepted by the 139 states that have since signed or ratified the Rome Statute. (28)
Following the civil war in Sierra Leone in 2001, international and local children's rights organizations were unanimous in their opposition to the prosecution of children under eighteen on the grounds that prosecution would undermine efforts to disarm, demobilize, and reintegrate child combatants into society. (29)
Although the Statute of the Special Court ultimately authorized the prosecution of child soldiers over the age of fifteen, the Chief Prosecutor declined to seek the indictment of child soldiers for war crimes stating: "The children of Sierra Leone have suffered enough both as victims and perpetrators. I am not interested in prosecuting children. I want to prosecute the people who forced thousands of children to commit unspeakable crimes." (30) Instead of prosecution, participation of child soldiers in forums such as the Truth and Reconciliation Commission served to find forgiveness, reconciliation, and justice in Sierra Leone. (31)
The Optional Protocol to the C.R.C., adopted in 2000 and ratified by the United States in 2002, requires states to "take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities are demobilized or otherwise released from service," and are given "all appropriate assistance for their physical and psychological recovery and their social reintegration." (32) The Optional Protocol to the C.R.C. further obligates states to prevent "any activity contrary to ... the rehabilitation and social reintegration of [child soldiers]." (33) The Convention on the Rights of the Child, adopted in 1989 but not ratified by the United States, binds states to "take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of ... armed conflicts," including child soldiers. (34)
Most recently, the 2007 Paris Principles expressly state that "children who are accused of crimes under international law allegedly committed while they were associated with armed forces or armed groups should be considered primarily as victims of offenses against international law." (35) The Paris Principles go on to state that "wherever possible, alternatives to judicial proceedings must be sought, in line with the Convention on the Rights of the Child and other international standards for juvenile justice." (36) The Principles iterate that, at the international level, "[c]hildren should not be prosecuted by an international court or tribunal," while at the national level, alternatives to judicial prosecution of children should be sought. (37) The Paris Principles were endorsed by fifty-nine states at the 2007 International Conference in Paris on Children Involved in Armed Forces and Armed Groups, and since 2007, new endorsements brought the total to sixty-eight states in support of rehabilitation over prosecution. (38) Many jurisdictions assert that this weight of State practice and opinio juris establishes a customary norm of international law that precludes prosecution absent extraordinary circumstances. (39) At the very least, the volume of evidence weighs heavily in favor of rehabilitation over prosecution. (40)
REASONING OF THE COMMISSION
In the case of the United States v. Omar Ahmed Khadr, (41) Mr. Khadr filed a motion on January 18, 2008 to dismiss his case for lack of jurisdiction on the basis of his status as a juvenile. (42) On April 30, 2008, the Commission denied the motion, holding that Congress placed no age restriction on the jurisdiction of the military commission, as evidenced by the language of the MCA. (43) Specifically, the Commission noted that the MCA grants the Commission personal jurisdiction over persons who are unlawful enemy combatants. (44) The Commission then turned to the Rules of Construction under Title 1 of the United States Code (U.S.C.), which defines the term "person" as including, "every infant member of the species homo sapiens who is born alive at any stage of development." (45) Reading the MCA and the U.S.C. together, the Commission concluded that Congress did not restrict the jurisdiction of the military commission to persons above a certain age. (46)
The Commission also held that neither customary law nor treaty law prohibited the prosecution of child soldiers. (47) The Commission reasoned that nothing in the Optional Protocol to the C.R.C. explicitly prohibited the Commission's exercise of jurisdiction over Mr. Khadr. (48) The Court also noted that while the Optional Protocol and the Committee on the Rights of the Child General Comment No. 10 on Children's Rights in Juvenile Justice address ways in which children are to be treated "before, during, and after criminal prosecutions," neither instrument directly addresses the issue of whether or not juveniles could be tried for violations of the laws of war. (49)
The Commission took note of policy arguments against the criminal prosecution of child soldiers, but ultimately found they were not binding, and, in any event, the Convening Authority held the discretion to decide whether a case met the legal and policy requirements before referring an accused to trial. (50) The Commission also noted that the prohibition on the recruitment and use of child soldiers was not germane to the question of whether the MCA authorized jurisdiction over juveniles. (51)
The purpose of juvenile justice is rehabilitation; therefore criminal prosecution should be a last resort. (52) Nonetheless, the Military Commission was correct in holding that neither Congress nor international law restricted the jurisdiction of the Commission to try juveniles. (53) Thus, the Khadr Commission was correct in applying the M.C.A. and retaining jurisdiction over the accused. (54)
Having asserted jurisdiction over Mr. Khadr, the Commission erred in failing to rely on its authority to immediately, sua sponte, remedy the situation of the accused juvenile as called for under international law. (55) Specifically, as a matter of law under the Optional Protocol to the C.R.C., the Military Commission erred in failing to hold that Mr. Khadr was entitled, as a child combatant, to be rehabilitated and reintegrated into society, rather than prosecuted as an unlawful enemy combatant. (56) This failure of the Commission not only runs against the express obligations of the Protocol, but is also contrary to State practice and opinio juris that rehabilitation and reintegration are preferable to prosecution. (57) Thus, the proper conclusion would require the Commission to order Mr. Khadr be deferred from criminal proceedings in Guantanamo and be placed into an established juvenile rehabilitation program in Canada. (58) Such a holding is authorized under the MCA, fulfills the United States' obligations under the Optional Protocol, and is consistent with State practice and opinio juris on the issue. (59)
Finally, as a matter of policy, the United States should not prosecute child soldiers such as Mr. Khadr, because its policy is based upon contemporary State practice, opinio juris, and international public policy, which call for the reintegration of child soldiers, rather than their prosecution. (60) From President Obama down the chain of command to the Convening Authority and the individual prosecutors, there should be a firm commitment to the reintegration of child soldiers into society through non-judicial measures. (61) Congress should take immediate steps to amend the MCA to exclude jurisdiction of the Commissions--or any other judicial forum--over child soldiers. (62) Such policy initiatives would serve to hold child soldiers accountable through age-appropriate rehabilitation programs, fulfill the United States' obligations under the Optional Protocol, and restore the United States to a position of leadership in developing, promoting, and protecting the rights of children in armed conflict. (63) Because of the contrary authority and policy, the Military Commission in the case of United States v. Omar Ahmed Khadr was incorrect in holding that juveniles should be prosecuted as unlawful enemy combatants rather than placing them into rehabilitation and reintegration programs, as called for by the Optional Protocol to the C.R.C., State practice, opinio juris, and international public policy.
(1.) Referred Charges, United States v. Omar Ahmed Khadr, (Military Comm'n, referred Apr. 24, 2004), available at http://www.defenselink.mil/news/commissionsKhadr.html.
(2.) Id. (detailing alleged war crimes committed by Mr. Khadr).
(3.) See infra text accompanying notes 52-63 (analyzing issue of whether child soldiers should be prosecuted).
(4.) Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of Child Soldier para. 7, Khadr, D-022 (Military Comm'n, Apr. 30, 2008), available at http://www.defenselink.mil/news/commissionsKhadr.html [hereinafter D-022 Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction] (holding domestic and international law does not prohibit prosecution of juveniles and MCA authorizes prosecution).
(5.) See infra text accompanying notes 52-63 (determining child soldiers should not be prosecuted).
(6.) Sworn Charges, para. 4, Khadr (Military Comm'n, Feb. 2, 2007), available at http://www.defenselink.mil/news/commissionsKhadr.html.
(7.) Id. paras. 4, 7.
(8.) Id. para. 12; Michelle Shephard, Khadr charged by U.S.: Canadian held almost five years at Guantanamo, TORONTO STAR, Apr. 25, 2007, at A1.
(9.) See Sworn Charges, supra note 6, at 2 (noting date charges filed); id. paras. 25-34 (outlining charges against Khadr).
(10.) Id. paras. 4, 12.
(11.) Government Request for a Continuance (MJ's Order), Khadr (Military Comm'n, Jan. 21, 2009) available at http://www.defenselink.mil/news/commissionsKhadr.html.
(12.) Military Commissions Act of 2006, Pub. L. No. 109-366, [section] 948(b)(a), 120 Stat. 2600, 2602 [hereinafter MCA](codified as 10 U.S.C. [section] 948(a)).
(13.) Id.; see also D-022 Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction, supra note 4, paras. 5-7 (finding statutory definition of unlawful enemy combatant conveys jurisdiction over crimes by child soldiers) (emphasis added).
(14.) See infra notes 23-40 and accompanying text (discussing international treatment of child soldiers).
(15.) See Optional Protocol on the Involvement of Children in Armed Conflict to the Convention on the Rights of the Child, G.A. Res. 54/263, art. 7, U.N. Doc. A/RES/54/49/Annex 1 (May 25, 2000) [hereinafter Optional Protocol to C.R.C.] (obligating States Parties to prevent any activity contrary to rehabilitation and social reintegration of child soldiers); Id. art. 6, para. 3 (obligating States Parties to demobilize and reintegrate child soldiers); see also Convention on the Rights of the Child, G.A. Res. 44/25, art. 39, U.N. Doc. A/44/736 (Nov. 20, 1989) [hereinafter C.R.C.] (obligating States to promote rehabilitation of child soldiers). DDR is defined as:
"Disarmament: The collection of small arms and light and heavy weapons within a conflict zone.... Demobilization: The formal and controlled discharge of soldiers from the army or from an armed group .... Reintegration: A long-term process which aims to give children a viable alternative to their involvement in armed conflict and help them resume life in the community."
DDR, Coalition to Stop the Use of Child Soldiers, http://www.chHdsoldiers.org/childsoldiers/ddr (last visited Feb. 10, 2010).
(16.) Status of ratification, declarations and reservations for the Convention on the Rights of the Child, U.N. Treaty Collection, http://treaties. un. org/P ages/ViewDetails. aspx ?src=TREATY&mtdsg_no=IV11&chapter=4&lang=en (last visited Feb. 10, 2010) (recognizing United States signed convention on Feb. 16, 1995 but never ratified).
(17.) See Statute of the Special Court for Sierra Leone, S.C. Res. 1315, art. 7, para. 1, U.N. Doc. S/RES/1315 (Aug. 14, 2000) [hereinafter S.C.S.L.] (extending jurisdiction to persons over 15 years old); Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 68, Aug. 12, 1949, T.I.A.S. No. 3365, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention] (declaring civilians under (18) may be prosecuted but not sentenced to death for serious crimes); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 77, June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Protocol I] (implying child soldiers under 18 may be prosecuted but not sentenced to death for serious offences); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts art. 6, June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Protocol II] (implying child soldiers under 18 may be prosecuted, but not sentenced to death, for serious offences); C.R.C., supra note 15, art. 40 (enumerating fundamental rights of due process for children in judicial proceedings implying children may be prosecuted). Implying that children may be subject to prosecution for war crimes, UNICEF's Guide to the Optional Protocol recommends that child protection agencies and advocates: "Advocate with States to ensure that domestic judicial systems relating to child soldiers fully respect the rights of the child and maintain international juvenile justice standards." UNICEF COALITION TO STOP THE USE OF CHILD SOLDIERS, GUIDE TO THE OPTIONAL PROTOCOL ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT 54, (Dec. (2003) (emphasis added). The Committee on the Rights of the Child advises states to report on "the various measures adopted to ensure the social reintegration of children, e.g.... relevant judicial measures" and also information on "the criminal liability of children for crimes they may have committed during their stay with armed forces or groups and the judicial procedure applicable, as well as safeguards to ensure that the rights of the child are respected." U.N. Comm. on the Rights of the Child, Guidelines Regarding Initial Reports of States Parties Under Article 8(1) of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, art. 6, para. 3, U.N. Doc. CRC/OP/AC/1 (Oct. 12, 2001) (emphasis added); see also The Paris Principles, Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, arts. 3.6-3.9, 8.0-8.17 (Feb. 7, 2007), available at http://www.diplomatie.gouv.fr/en/IMG/pdf/Paris_Conference_Principles_English_ 31_January.pdf [hereinafter The Paris Principles] (implying children may be prosecuted for war crimes); Prosecutor v. Oric, Case No. IT-03-68-T, Judgment, para. 400 (Jun. 30, 2006) (rejecting notion that persons under eighteen not criminally responsible for war crimes); Matthew Happold, The Age of Criminal Responsibility in International Criminal Law, in INTERNATIONAL CRIMINAL ACCOUNTABILITY AND CHILDREN'S RIGHTS 1 (Karin Arts & Vesselin Popovski eds., T.M.C. Asser Press 2006) (noting numerous prosecutions of child soldiers under national law for conduct in armed conflict); Major John T. Rawcliffe, Child Soldiers: Legal Obligations and U.S. Implementation, Army Law. 1, 5 (Sept. 2007) (asserting child soldiers may be prosecuted for war crimes).
(18.) See Trial of Alois and Anna Bommer & Their Daughters, Perm. Milt. Tribunal at Metz, Feb. 19, 1947, IX L. Rep. Trials of War Criminals 62 (1949) (convicting two sixteen-year-old sisters for receiving stolen goods while acquitting younger sister); see also Trial of Johannes Oenning and Emil Nix, British Military Court, Borken, Germany, Dec. 21-22, 1945, XI L. Rep. Trials of War Criminals 74 (1949) (describing military court conviction of fifteen-year-old ex-Hitler Youth for killing prisoners of war).
(19.) See Happold, supra note 17, at 1 (noting prosecution and conviction of child soldiers in Dem. Rep. Congo and Uganda).
(20.) S.C.S.L., supra note 17, art. 7, para. 1 (extending jurisdiction to persons fifteen and over).
(21.) Amnesty International, Child Soldiers: Criminals or Victims? 2 (Dec. 2000), http://www.amnesty.org/en/library/info/IOR50/002/2000 (noting some child soldiers "should be held to account for their actions in appropriate setting").
(22.) See Ruling on Defense Motion to Dismiss for Lack of Jurisdiction over Child Soldier, 5 n.13, D-012 (Military Comm'n, filed Sep. 24, 2008), available at http://www.defenselink.mil/news/Ruling%20D-012%20(child%20soldier).pdf (stating juvenile combatant may request segregation from adult detainees and relief from unlawful treatment); Geneva Convention Relative to the Treatment of Prisoners of War arts. 82-88, 99-104, Aug. 12, 1949, 3 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention] (enumerating specific due process protections afforded prisoners of war in judicial proceedings); Fourth Geneva Convention, supra note 17, art. 68 (prohibiting execution of juvenile offenders); Fourth Geneva Convention, supra note 17, at arts. 14, 23, 24, 38, 50, 51, 89 (providing special protection to civilians under fifteen); Protocol I, supra note 17, art. 75 (ensuring fundamental guarantees of humanity without distinction for persons in power of a Party to Protocol); Protocol I, supra note 17, art. 77 (enumerating specific protections afforded children in armed conflict); Protocol II, supra note 17, art. 6 (enumerating rights of accused in criminal proceedings for offenses related to armed conflict); C.R.C., supra note 15, art. 37 (enumerating specific protections for children lawfully deprived of their liberty); C.R.C., supra note 15, art. 40 (enumerating fundamental rights of due process for children in judicial proceedings); United Nations Rules for the Protection of Juveniles Deprived of their Liberty, G.A. Res. 45/113, Annex, U.N. Doc. A/RES/45/113/Annex (Dec. 14, 1990) (outlining fundamental protections for children under age eighteen detained, imprisoned or otherwise deprived of their liberty); United Nations Standard Minimum Rules for the Administration of Juvenile Justice, G.A. Res. 40/33, Annex, U.N. Doc. A/40/33/Annex (Nov. 29, 1985) (detailing specific rights of children in juvenile proceedings) [hereinafter The Beijing Rules]; The Paris Principles, supra note 17, at arts. 3.6-3.9, 8.0-8.17 (regarding protection of children accused of war crimes under international law); International Covenant on Civil and Political Rights art. 14, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] (enumerating specific rights of due process); S.C.S.L., supra note 17, art. 7 (enumerating fundamental guarantees of juvenile defendants).
(23.) Amnesty International, supra note 21, at 2; Happold, supra note 17, at 2 (noting children have a presumed lack of mens rea).
(24.) See infra notes 33-49 and accompanying text (noting recent international opinion disfavoring prosecution of children); see also Matthew Happold, Child Prisoners in War, in PRISONERS IN WAR (Sibylle Scheipers ed., forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1321546 (noting contemporary international legal opinion opposes prosecution of child soldiers).
(25.) YUES SANDOZ ET AL., COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 509 (1987) (noting Committee responsible for drafting A.P.I. article 77 ultimately left decision to prosecute to States).
(26.) Happold, supra note 17, at 6 (detailing negotiations and solutions surrounding minimum age).
(27.) Rome Statute of the International Criminal Court art. 26, July 17, 1998, 2187 U.N.T.S. 90 (excluding jurisdiction over persons who were under age eighteen at time of alleged commission). Happold notes that the exclusion of juveniles from the Rome Statute is strictly procedural and designed to leave the prosecution of child soldiers to the national courts. Happold, supra note 17, at 71 (noting exclusion of jurisdiction done to avoid disagreements).
(28.) Coalition for the International Criminal Court, World Signatures and Ratifications of the Rome Statute, http://www.iccnow.org/?mod=romesignatures (last visited Feb. 10, 2010).
(29.) See The Secretary-General, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, [paragraph] 32 UN Doc. 2/2000/915 (Oct. 4, 2000) (noting unanimous opinion of DDR organizations in Sierra Leone); Avril D. Haines, Accountability in Sierra Leone: The Role of the Special Court, in ACCOUNTABILITY FOR ATROCITIES: NATIONAL AND INTERNATIONAL RESPONSES 173, 224 (Jane E. Stromseth, ed., 2003) (citing UN Chief Recommends Prosecution of Sierra Leone Child Soldiers, CNN (Oct. 5, 2000) (quoting UNICEF director as vehemently opposed to prosecution of child soldiers)); Haines, supra at 224 (citing letter from Kenneth Roth, Executive Dir. Human Rights Watch, to Security Council Members, United Nations (Nov. 1, 2000) (recommending SCSL not try persons under the age of eighteen)); U.N. Sec. Council, Report of the Security Council Mission to Sierra Leone, [paragraph] 50, U.N. Doc. S/2000/992, (Oct. 16, 2000) (noting NGO and UN agencies were opposed to prosecution of children under 18); see also S.C.S.L. supra note 17, art. 15, para. 5 (requiring prosecutor seek alternatives to prosecution where appropriate).
(30.) Press Release, Public Affairs Office, Special Court for Sierra Leone; Special Court Prosecutor Says He Will Not Prosecute Children (Nov. 2, 2002), available at http://www.sc-sl.org/LinkClick.aspx?fileticket=JdyF7IVNEvA%3D&tabid=115.
(31.) See Saudamini Siegrist, Child Participation in International Criminal Accountability Mechanisms: The Case of the Sierra Leone Truth and Reconciliation Commission, in INTERNATIONAL CRIMINAL ACCOUNTABILITY AND THE RIGHTS OF CHILDREN 53, 65 (Karin Arts & Vesselin Popovski, eds., 2006).
(32.) Optional Protocol to C.R.C., supra note 15, art. 6, para.3.
(33.) Id. art. 7, para. 1.
(34.) Id. art. 39.
(35.) The Paris Principles, supra note 17, art. 3.6.
(36.) Id. art. 3.7.
(37.) Id. arts. 8.6, 8.7, 8.9.
(38.) UNICEF List of Attendees, Paris Conference, 5th & 6th of February 2007, available at http://www.UNICEF.org/protection/files/attendees.pdf (listing countries which endorsed at conference); E-mail from Geoffrey Keele, Communication Specialist, UNICEF, to author (Mar. 31, 2009, 22:42 EST) (on file with author) (providing list of post-conference endorsements).
(39.) See Brief for Canadian Parliamentarians and Law Professors et al. as Amici Curiae Supporting Respondant, Khadr (Mil. Comm'n, referred Apr. 24, 2007) at 11 (Jan. 18, 2008) http://www.defenselink.mil/news/commissionskhadr.html (arguing prosecution of child soldiers inconsistent with contemporary customary international law).
(40.) Happold, supra note 24 (detailing international opinion favoring reintegration and rehabilitation over prosecution child soldiers).
(41.) Referred Charges, United States v. Omar Ahmed Khadr (Military Comm'n, referred April 28, 2004).
(42.) Defense Motion for Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier, (Military Comm'n, Jan. 18, 2008).
(43.) See D-022 Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction, supra note 4, at para. 7.
(44.) Id. paras. 4-5 (citing MCA [section] 948(d)(a)--Jurisdiction of Military Commission).
(45.) Id. para. 6 (citing 1 U.S.C. [section] 8 where "person," "human being," "child," and "individual" all mean born-alive infant).
(46.) Id. para. 7.
(47.) Id. para. 18.
(48.) Id. para. 16.
(50.) See id. para. 17.
(51.) Id. para. 13.
(52.) Happold, supra note 17, at 82.
(53.) See D-022 Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction, supra note 4, para. 18; supra notes 16-22 and accompanying text.
(54.) See supra notes 16-22.
(55.) See supra notes 23-39 and accompanying text.
(56.) See supra notes 23-39 and accompanying text.
(57.) See supra notes 23-39 and accompanying text.
(58.) See supra notes 23-39 and accompanying text; see also Samantha Nutt, Omar Khadr: Why Canada Should Take Back Its Troubled Child, WAR CHILD CANADA, available at http://www.warchild.ca/index.php/news/article/54 (stating Canadian aid agencies prepared to assist in Khadr's rehabilitation and reintegration).
(59.) See MCA [section] 948(d) (defining jurisdiction and authority of military commissions); Optional Protocol to C.R.C. arts. 6(3), 7; supra notes 23-39 and accompanying text.
(60.) See supra notes 23-39 and accompanying text (recognizing state practice, opinio juris, and international policy disfavor prosecution of child soldiers).
(61.) See supra notes 23-39 and accompanying text (noting international support for reintegration and rehabilitation of child soldiers).
(62.) See supra notes 12-13 and accompanying text (citing MCA as not expressly excluding juveniles).
(63.) See supra notes 23-39 and accompanying text (noting international obligations of United States).
Ryan, Daniel. "International law and laws of war and international criminal law - prosecution of child soldiers - United States v. Omar Ahmed Khadr." Suffolk Transnational Law Review 33.1 (2010). General OneFile. Web. 4 Sept. 2010.
Gale Document Number:A225740388
Saturday, September 4, 2010
International law and laws of war and international criminal law -prosecution of child soldiers - United States v. Omar Ahmed Khadr.