Sunday, May 2, 2010

Trial of Guantanamo Bay Detainee Khadr presents many challenges

Last week, the U.S. began trying Omar Khadr, one of the detainees at Guantanamo Bay, in the first military commission case to go foward since President Obama suspended legal proceedings at Guantanamo Bay in 2009.  Khadr was captured in Afghanistan in 2002 and is accused of throwing a hand grenade that killed U.S. Special Forces Medic, Christopher Speer.  At the time of his capture, Khadr was only 15 years old. 

Khadr's young age presents difficult legal issues for the prosecution because international human rights law requires that a juvenile's status be taken into account in charging, trying and sentencing for a crime.  See, e.g., International Covenant on Civil and Political Rights (ICCPR) at article 10 and the Convention on the Rights of the Child (CRC), at article 37.  International humanitarian law bans the use of children under the 15 in military endeavors (see, e.g., Geneva Convention III at Article 68), but is less clear regarding the status of juveniles between the ages of 15-18. 

With respect to the possible punishment, juveniles cannot be sentenced to death under both U.S. law (see Roper v. Simmons) and international law (see, e.g., Geneva Convention IV at art. 68); however, the U.S. is seeking life imprisonment against Khadr.  Life imprisonment for juveniles is banned under international law, (see, e.g., the CRC at article 37), but not yet under U.S. law.  The U.S. Supreme Court is currently considering the constitutionality of life imprisonment for juveniles in two cases, Sullivan and Graham, with decisions expected by the end of June.

In addition to being a juvenile at the time of his arrest, Khadr claims to have been severely mistreated while in detention.  Khadr allegedly has confessed to throwing the hand grenade, but has since changed his story and now claims that confession was made under duress as a result of cruel, inhuman and degrading treatment (which, of course, is banned by many international human rights treaties, including article 7 of the ICCPR and article 37 of the CRC).  He claims he was subjected to threats of rape, beatings and sleep deprivation while being held at Bagram Air Base and at Guantanamo Bay.  The U.S. government denies these allegations and claims Khadr was always well treated.  However, Khadr's youth and allegations of mistreatment may make him a more sympathetic figure to the military jury and may cast doubt on the reliability of his earlier confession.

Because of these difficult legal issues, the U.S. government is reportedly actively seeking to settle the case by reaching a plea agreement with Khadr. 


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