The Case of Omar Khadr

It’s a valuable lesson we’re being taught by the administration. We are learning that 15-year olds may be treated as adults when they misbehave if those pretending to be adults believe that is appropriate punishment for the children. We are learning that 15-year olds may be punished as adults even though they are not old enough to drive, drink, vote, or do any of the other fun things that adults get to do. And that’s not all we, and Omar Khadr, are learning.

We are learning that even if you are at war with someone and are on the battlefield, if you kill someone you have been taught to believe is your enemy and get caught, you may be charged with murder and other crimes. That is going to come as a surprise to lots of people in the military who thought it was OK to shoot and kill the person you believe to be your enemy when you are on the battlefield. Indeed, it is even OK to kill your friends so long as you don’t do it on purpose. Omar Khadr is teaching us about 15-year olds. Pat Tillman’s death has taught us about the lack of consequences of killing your friends.

Omar was born in 1986 and is a Canadian citizen. As a youngster he spent time in both countries with his family and in 1996 the family moved to Jalalabad, Afghanistan where Omar had home schooling. His father and his father’s friends did not like the United States and did not like the fact that the United States had invaded Afghanistan, a dislike that was imparted to the young Omar. Since he was only 15–years old, he was very much influenced by what the adults with whom he associated believed.

On July 27, 2002, a group of American soldiers was sent to search a house that intelligence suggested was being used as a bomb-making site by a wheelchair bound old man. When those occupying the house were informed that the soldiers wanted to search the house, instead of inviting the soldiers in, its occupants began shooting at the soldiers and throwing hand grenades. Although accounts are inconsistent, it is clear that an engagement between opposing forces took place during the course of which the 15-year old Omar who was in the house, allegedly threw a hand grenade that killed Christopher Speer. Omar himself was severely wounded. The encounter was brief. Between the time it started and the time it ended, Omar remained 15. If he had been in school he would have been entering the 10th grade. He did not enter the 10th grade. He was captured and allegedly tortured in order to force him to confess to being a an “unlawful enemy combatant.” He was 15. He did not know that if you are in combat and kill the enemy you could be considered a murderer. Being 15 there was a lot he didn’t know. He may have even thought it was OK to kill people with whom many of your family and friends were at war who were shooting at you.

According to Human Rights First, The International Covenant on Civil and Political Rights and international juvenile justice standards require “prompt determination of juvenile cases and discourage detainment of juveniles at all except as a last resort.” Omar was 15 years old when captured. Human Rights First says Omar was not permitted to see an attorney for two years and was not charged with any offense for three years. He has been in Guantanamo for 8 years, sometimes in solitary confinement and at other times kept with adult prisoners in violation of rules that say minors must be kept separate from adult detainees.

In 2002 the U.S. ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in Armed Conflict that requires the rehabilitation of former child soldiers and requires that those children be provided “all appropriate assistance for their physical and psychological recovery and their social reintegration.”

Omar’s trial before a military commission has now begun. Omar is being tried for murder, attempted murder, conspiracy, providing material support for terrorism and spying on U.S. forces in Afghanistan. He was 15-years old when he did all those things. Had he not been home schooled he would have just completed the 9th grade.

No one has explained to Omar why when NATO forces kill civilians no one is charged with murder. He would wonder when, under the rules of war, it is OK to kill the person you believe to be your enemy who is trying to kill you, and when it is not. He might wonder why, when Pat Tillman was killed by his colleagues, no one was held responsible, much less charged with murder. Being only 15 he would probably not have understood the explanation. Neither do I.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.

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