October 15, 2010
Omar Khadr was picked up at age 15 and has now spent a third of his life at Guantanamo. The US government has mistreated Khadr as a child offender and now is misusing discredited military commissions to try him.
Andrea Prasow, senior counterterrorism counsel

(New York) - The US government should stop the Guantanamo military commission trial of Omar Khadr, a former child soldier captured when he was 15, Human Rights Watch said today. According to news reports, US military prosecutors are currently in talks with Khadr's defense counsel regarding a plea agreement before trial proceedings resume on October 25, 2010.

Khadr, a Canadian citizen, has spent more than eight years in US military custody. He faces charges of murder and attempted murder in violation of the laws of war, conspiracy, providing material support for terrorism, and spying.

"Omar Khadr was picked up at age 15 and has now spent a third of his life at Guantanamo," said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "The US government has mistreated Khadr as a child offender and now is misusing discredited military commissions to try him."

Khadr's military commission trial began in August, but was delayed when his military lawyer, US Army Lt. Col. Jon Jackson, collapsed in court while cross-examining a witness. The trial was scheduled to resume on October 18, but recent news reports indicate that the two sides are negotiating a plea deal. On October 14, the military judge issued an order delaying the trial until October 25.

If a plea deal is reached, a sentencing hearing would still take place and the military jury would still decide upon a sentence. That sentence would only be imposed on Khadr if it was lower than the sentence under the plea agreement.

US forces captured Khadr, who is now 24, on July 27, 2002, after a firefight in Afghanistan in which Khadr is alleged to have thrown the grenade that killed US Army Sgt. 1st Class Christopher Speer and injured other US soldiers. Khadr was seriously injured during the firefight and taken to Bagram Air base in Afghanistan.

While detained at Bagram he was forced into painful stress positions, threatened with rape, hooded, and confronted with barking dogs. The government's own witnesses confirmed some of this treatment when they testified that Khadr was interrogated while strapped down on a stretcher just 12 hours after sustaining his life-threatening injuries. They also testified that he was threatened with rape if he did not cooperate.

In October 2002 Khadr was transferred to Guantanamo where the abuse continued. He told his lawyers that he was shackled in painful positions, told he would be sent to Egypt, Syria, or Jordan for torture, and used as a "human mop" after he urinated on the floor during one interrogation session. He was deprived of all access to legal counsel until November 2004, more than two years after he was first detained.

The military judge assigned to his case, Army Col. Patrick Parrish, ruled that despite the ill-treatment, all statements made by Khadr could be used as evidence against him.

"Any decision rendered by the fundamentally flawed military commissions will be subject to legal challenges for years to come," Prasow said. "If the US is serious about its international legal commitments, it will stop this trial before it becomes an even bigger embarrassment."

Human Rights Watch will send observers to the Khadr proceedings, as it has with most military commission proceedings and selected federal court trials.

Concerns about the fairness of prior Khadr proceedings were heightened by the apparent withholding of important evidence from the defense during pretrial hearings. The prosecution had initially claimed Khadr was the only insurgent alive and in the vicinity at the time the grenade was thrown. However, a document released inadvertently in February 2008 revealed that two versions of the Khadr incident report existed, one stating the insurgent who threw the grenade had been killed - and thus could not have been Khadr - and another indicating that he was still alive.

While child offenders may be prosecuted for war crimes, the US has failed throughout Khadr's detention to afford him the protections provided to children under international law. The US government has refused to acknowledge Khadr's status as a child at the time of the alleged offense or to apply universally recognized standards of juvenile justice in his case. International law requires that certain procedural protections be followed when prosecuting child offenders and that rehabilitation and reintegration be primary considerations. No international court or Western country has prosecuted a child offender for alleged war crimes in decades.

Under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (Optional Protocol), which the United States ratified in 2002, the US is obligated to recognize the special situation of children who have been recruited or used in armed conflict. The Optional Protocol requires the rehabilitation of former child soldiers within a state party's jurisdiction, mandating that states provide "all appropriate assistance for their physical and psychological recovery and their social reintegration."

Referring to the Khadr case and others, the United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantanamo without giving due account of their status as children. It also emphasized that "criminal proceedings against children within the military justice system should be avoided."

"Any plea deal with Khadr needs to fully recognize his status as a child offender, making his rehabilitation top priority," Prasow said.