UNITED STATES: Omar Khadr and the child soldiers of the war on terror

13 years in detention

Omar Khadr, the Canadian born ex-Guantanamo detainee has been released on bail. Son of Ahmed Khadr, an alleged al-Qaida financier, Omar was captured in Afghanistan in 2002 at the age of 15.  Khadr has spent over 13 years in detention, and is the most recognisable juvenile known to have been held in Guantanamo bay.

During his imprisonment, Khadr was subjected to both physical and psychological torture. Upon capture, suffering from two life threatening bullet wounds to the chest, Khadr was strapped to a stretcher for prolonged periods of interrogation, and threatened with rape. Khadr gives an account of being forced into painful stress positions, hooded, confronted by dogs, and used as a “human mop” after he urinated on the floor during one interrogation session. Khadr also claims he was threatened with rendition to Egypt, Syria, and Jordan for torture, and was refused access to legal advice for two years after his capture.[1]

Right to a fair trial?

In 2010 during a military hearing Khadr pled guilty to charges of murder during an armed conflict, attempted murder, conspiracy, providing material support for terrorism and spying. The charges related to a grenade attack that is believed to have lead to the death of a US Soldier.[2] Khadr has stated that he accepted a plea bargain, which required he serves an eight-year sentence so that he would be released from Guantanamo.[3]

Nevertheless, it remains that the charges against him have no basis in international law. First and foremost, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OPAC), ratified by Canada and the US[4], places an obligation on States to facilitate the physical and psychological recovery and social reintegration of any child under 18, found to be participating in hostilities.[5] Second, Khadr’s lawyers are currently in the process of appealing the charge of murder in violation of the laws of war. The key argument being that the allegation of killing another soldier in armed conflict is not a crime. Two of the listed charges have already been overturned, and there is hope for further success considering the circumstances of his arrest and manner of interrogation.[6]

US policy on the detention of child soldiers

However, Khadr’s story is not unique in the war on terror. Hamidullah Khan was just 14 in 2008 when he went missing after leaving his home in Karachi to visit his grandparents in Waziristan, Pakistan. It was not until 2009 that his father finally learned from the International Committee of the Red Cross (ICRC) that his son was being held in detention in Bagram.[7] Omar and Hamidullah’s situations are only two of perhaps a handful of stories that we know about. Most are never reported due to US policy not to release specific information on cases.[8]

This is particularly true when it comes to non-western citizens for whom identity and age can often be difficult to verify. As a result, the exact number of child soldiers in US custody at this time is unknown. However, in 2008 the US government published a report stating that it had taken 2,500 under-18s into custody since 2003, most of whom were in Iraq.[9] However, in 2012, in its Second Periodic Report to the Committee on the Rights of the Child under OPAC, the US government stated that in “the last several years the United States had captured more than 200 individuals under the age of 18.” The report gave few details, but stated the average age of the children as 16[10]; suggesting that children as young as 13 or 14 were in US custody at the time.[11] Controversially, the government makes no efforts to hide its belief that indefinite detention without charge and without legal advice is consistent with international standards established on the detention of enemy combatants; so as to prevent them from returning to the battlefield.[12] The US government also admits to transferring many of these juvenile detainees to the Iraqi and Afghani authorities, prompting concern from the Committee with regards to the potential risks these children face in the hands of these States.[13]

Khadr’s case and the US’s most recent statement of policy on the detention of child soldiers, demonstrates how complicated the dynamics of balancing security concerns with public perceptions of the US human rights record in the war on terror has become. The US is just one of the states that have openly violated its obligations under international law to rehabilitate and reintegrate child soldiers back into society. The torture of these child soldiers is well documented. However, the Obama administration’s rush to step away from the crimes of his predecessors may result in the further abuse of a vulnerable group of children, as opposed to providing them with any future possibility of justice.

No rights for children in conflict?

With the increasing number of children participating in wars in countries like Iraq and Syria, from both the Middle East and abroad, the question of adherence to international standards on the treatment of captured or returning juveniles believed to have been participating in hostilities is more relevant than ever. The recent debate surrounding the potential fate of three British school girls highlights this issue. In February this year the three girls travelled from London to Syria, and are believed to have married members of the Islamic State (IS).[14] The UK government’s current refusal to discuss the possibility of their return demonstrates a dangerous trend among states to consider themselves unbound by a basic premises of children's rights in armed conflict. [15]