Gitmo Child Soldier in Legal Grey Area

Former child soldier Omar Khadr will have a tough battle in his trial in Guantanamo, and his case is in a legal grey area, says legal expert Paul Wolf.

Press TV has conducted an interview with human rights and international law expert Paul Wolf in Washington and Kim Petersen, the co-editor of Dissident Voice, from Vancouver Island about the unusual case of Omar Khadr, a Canadian citizen who has been held captive by the US in Guantanamo Bay since the age of 15.

Following is a transcript of the interview:

Press TV: How has the United States been able to hold this Canadian citizen, who was a minor at the time of his arrest, so long without charging him?

Wolf: Well, how have they been able to do it? Through force essentially and by denying him any kind of habeas corpus proceedings, that is, the proceedings to challenge the legality of his detention. It is true he was picked up in 2002. He was only 15 years old and he has been held. He was only charged with this crime in 2007.

So, to answer your question ‘how could they do it?’ — they could do it because they have the most powerful army in the world and they decided to deny these detainees’ rights. You know they are really in a legal grey area that did not exist before 2001.

Traditionally there had been two kinds of trials, civilian trials or military trials. And he is not being — just like everyone else in Guantanamo or in any of these other prisons that exist — afforded due process rights, habeas corpus, why am I here in prison, or any other rights for what appear to be years and years, because he is not considered a prisoner of war where he would be entitled to the protection of a soldier under the Geneva Convention and he is not being considered an ordinary criminal defendant in an ordinary trial.

And both of those types of detainees if you will, they do have to be charged with the crime. For a prisoner of war it is a little different. A prisoner of war usually is just held until the end of the war, you do not have to charge (him with) a crime, you can capture an enemy soldier and just hold him. And what is a little bit strange about these proceedings is that Mr. Khadr doesn’t look like he committed a war crime. I mean he is alleged to have thrown a hand grenade at US soldiers, but that is not a war crime, that is a legitimate attack in a war.

So, it is really hard to tell exactly what he did that was wrong. He was not an Afghan. He was living in Peshawar. He is described as a Canadian citizen, but he was living in Pakistan. He speaks Pashto, which is the ethnic language of the largest ethnic group in Afghanistan. I think he is best categorized as an Afghan insurgent. And, as you have said, he hasn’t been allowed to contest his detention, and now he is being charged with a crime that is not even a war crime.

Press TV: Mr. Petersen, how is it that they are able to get away with charging him with a war crime when he used a grenade against an American soldier?

Petersen: I agree with your guest Mr. Wolf, that the reason they can do it is because the US is the number one, sole, military superpower, and for that reason they can get away with it. Also, the Canadian government is actually collaborating with the US government on this. They have done everything to keep Mr. Khadr in Guantanamo Bay and done little to repatriate him, even though the Federal Court has ruled that he must be returned to Canada and the appeals court backed it up. The House of Commons and the Senate in Canada have both called for his repatriation, but the government in power, the right-wing Conservative Party, fights with the US government on this and for this reason Mr. Khadr has little to aid him in his quest for justice.

Press TV: As Khadr is basically classed as a citizen of their country, why are the Canadians cooperating with the Americans in this way? Why didn’t they, at least on the surface, protest their citizen being detained in this way?

Petersen: Well, even in the beginning when he was first captured and when they [the Canadians] were notified that a Canadian citizen was being held in Afghanistan, the Americans didn’t allow Canada access to him. Canada was first allowed access to Mr. Khadr when he was brought over to Guantanamo Bay. So even then, there is not much Canada can do when they are up against the United States, and there is not much any country can do in that circumstance.

But as to why they have continued and why the Canadian government has sided with the American government, well that has to do with the nature of politics. The party that is in power now, the Conservative Party, is led by Prime Minster Steven Harper, and he is quite right-wing, and they actually share the world view of the US governments of George Bush and Barack Obama.

Press TV: Mr. Wolf, how significant is this case and the way it may test the Obama administration as far as the military commission is concerned?

Wolf: Well, it is very significant. I think it is historically significant. First your other guest mentioned political considerations… [US President Barack] Obama, just after he was elected president, one of the things that he promised to do was to close Guantanamo and that has not happened.

What makes the case historically important? First I would have to say, [it is] to my accounting the third case of this type. We have the case of David Hicks and the case of John Walker Lind, and those two were an Australian and an American citizen who were in Afghanistan at the time of the invasion and fought on the side of the Taliban against the US forces. Both of those guys pled guilty and they are both serving lengthy prison sentences, about twenty years or so.

So, Mr. Khadr is a little different because he is not pleading guilty, he was apparently offered a 30-year plea bargain which he didn’t take. His first lawyer resigned from the case and said it was a kangaroo court or something along those lines. Then he was assigned another team of lawyers whom he fired two months ago.

So, I am not sure, I understand that there is a Canadian attorney assisting him, but he is essentially just going into this case cold, defending himself more or less, with the assistance of a Canadian attorney. That is not usually a good legal strategy. So he will be the first person of this type who has actually tried to defend the case.

Another thing that I think is historically important about these commissions in general is that if you look at other war crimes tribunals, the big ones were of course in Nuremberg after World War II, then you had some more international [ones] — I would say that Nuremberg was really the US primarily– and then there was another similar one in Japan. Then you had Rwanda, you had Yugoslavia, and an ongoing trial now in Cambodia that are really international tribunals where the judges are not from the country that won the war.

So, what is significant about these military commission trials is first of all they are not international criminal tribunals. This is victor’s justice. It is the winner putting the loser on trial while the war is going on.

And it is not a war crime where we are charging them — I mean I am a pacifist but these are legitimate military attacks — for throwing a hand grenade at a soldier. So, in terms of historical precedents, this is a very important case. It is a very bad case and really if Mr. Khadr is going alone, my personal feeling is that, that is a pretty tough battle.

The people deciding this case are in the US military. The judge has already made an evidentiary ruling that the confessions that he made — he signed confessions after being tortured — those are admissible and those are part of the evidence against him. So, I think he has got a pretty tough battle. I wish him well, but I think it is probably a pretty tough case for him.

Press TV: So what do you think of that Mr. Petersen, that the judge is allowing what many would say is a forced confession? What does that say to you?

Petersen: The New Statesman … calls it a mockery of US justice and I tend to agree with that. And another thing I would add that is important to this case is the age of when Mr. Khadr was captured. He was 15, and according to the Convention on the Rights of the Child, according to the United Nations, UNICEF said that all child soldiers, if indeed Mr. Khadr was a soldier, are to be considered victims and they shouldn’t be subject to military tribunals and what is happening here, according to UNICEF, is there is a danger of a precedent being set that child soldiers can be tried.

Press TV: Where is the global outrage then, with this trial going on as it is?

Petersen: I can speak of Canada. The Canadian public, according to an Angus Reid poll, have actually split on the case of Mr. Khadr. Even though the central government — the appeals court — has said that Mr. Khadr’s constitutional rights have been abused, and even though the Senate and the House of Commons have called for his repatriation, there is a split among the Canadian public on Mr. Khadr being repatriated.

Omar Khadr, captured by US troops in Afghanistan at the age of 15, is to face trial after being held captive for 8 years in the notorious US detention center Guantanamo Bay.

Press TV is the first Iranian international news network broadcasting in English on a round-the-clock basis. Read other articles by Press TV, or visit Press TV's website.

2 comments on this article so far ...

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  1. Josie Michel-Bruening said on August 17th, 2010 at 4:38am #

    Yes, that is my question too: “Where is the global outrage then, with this trial going on as it is?”
    Thanks to Press TV!!!
    Not only the credibility of US law and US foreign policy is on stake but also the achievements by international law.
    How will humanity be able to survive at all if the military power of one certain state by Super Power Principles can rule our living on this planet?
    As recently it was called by another author : “Vendetta moral”
    Where is the outrage of peace and justice loving US citizens?
    We all seem to live in kinds of alternative Ghetto . As long as we agree in being kept there we seem to tolerated by those in power.

  2. Jeff White said on August 17th, 2010 at 7:58am #

    The “right-wing Conservative party” that Kim Petersen refers to has been in power only since 2006. For the first four years of Omar Khadr’s detention and torture the right-wing Liberal party was in power. The Liberals actively supported the war in Afghanistan with infantry troops and commando death squads; happily handed Afghan detainees over to the U.S. for interrogation and torture; and even sent foreign affairs officials (posing as diplomatic assistance for Khadr) to Guantanamo Bay to help the U.S. interrogate him.

    The point that is rarely noted in Canada about Omar Khadr is that he is not being tried under international law, but under special laws of the United States. Under the international laws of war Khadr has committed no crime and is entitled to certain rights and protections – whether he be classified as a child, a child soldier, a soldier, or a civilian combatant – none of which he is being afforded by the U.S. The U.S. is a renegade that refuses to act in accordance with intenational law; it makes its own special laws defining war crimes and inventing categories like “illegal enemy combatant” and creates its own special kangaroo nilitary courts with their own special rules to allow for the trial and conviction of people who could otherwise not even be charged under international law.

    This is the main reason why the Conservative government refuses to call for the repatriation of Khadr. Canada does not have the Military Commissions laws that Khadr is being tried under in the U.S.; in Canada there is nothing under domestic or international law that Khadr could be charged with. So they are happy to let the U.S. persecute Khadr instead.