Background Briefing

I. US failure to implement juvenile justice standards

Both US and international law requires governments to provide children (persons under the age of 18) with special safeguards and care, including legal protections appropriate to their age.  While children should be held accountable for their crimes, international law requires that they be treated in a manner that takes into account their particular vulnerability and relative culpability as children, and focuses primarily on rehabilitation and reintegration.

A body of international treaty law and standards establish fundamental norms when dealing with alleged juvenile offenders.1 Yet, the United States has consistently failed to uphold these internationally accepted standards in the case of Omar Khadr. Specifically:

1) Length of detention/prompt determination of case: International standards provide that the arrest and detention of a child must be used only as a measure of last resort and for the shortest appropriate period of time, and that the case be handled as “speedily as possible.”2

Khadr was detained at Guantanamo for more than three years before he was charged in January 2006 under the first set of military commissions set up by President George W. Bush. His case was dismissed when the Supreme Court declared those commissions unlawful in the case of Hamdan v Rumsfeld in June 2006.  Now, nearly five years after he was first apprehended, he is being charged in the newly constituted military commissions authorized by Congress last October.

2) Legal Assistance: Every child deprived of his or her liberty is entitled to prompt access to legal and other appropriate assistance.3

Omar Khadr was not provided access to legal counsel until November 2004, more than two years after he was first transferred to Guantanamo.

3) Separation from adults: International law provides that every child deprived of his or her liberty shall be separated from adults, with the exception of unusual cases in which it is not in the child’s best interest to maintain such separation.4

Khadr has been detained with the general detainee population at Guantanamo since he was 16. In 2003, the US government took steps to segregate other child detainees (three children estimated to be between the ages of 13 and 15) from the adult population in a separate facility, but refused to take such action in the case of Khadr, despite his status as a minor.

4) Contact with family: Detained children have the right to maintain contact with their family through correspondence and visits.5

In five years of detention, Khadr has been allowed to speak to his family by telephone only once.  His family has never been allowed to visit him.

5) Education, recreation: Children deprived of their liberty have the right to special care and assistance, including the right to education and recreation.6

Although US authorities provided other children held at Guantanamo with access to specialized tutors, a designated social worker, and recreational opportunities, these options were not made available to Khadr.


6) Specialized juvenile justice systems and rehabilitation: Child offenders should have access to specialized juvenile justice systems, with specially-trained judges, prosecutors and attorneys. A cornerstone of international juvenile justice standards is also a focus on rehabilitation and social reintegration.7

Khadr has never had the opportunity to request that his case be transferred to a specialized juvenile justice system or the consideration of a non-judicial disposition.  He has not been afforded access to specially-trained judges or prosecutors with expertise in juvenile justice standards or the particular needs and rights of alleged juvenile offenders. No consideration has been given to his rehabilitation or eventual reintegration into society.

1 Notably the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the UN Rules for the Protection of Juveniles Deprived of their Liberty (UN Rules for the Protection of Juveniles), the UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), the Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles).

2 ICCPR 10. 2(b),  CRC art. 37(b), 40(2)(b)(iii); UN Rules 2.  

3 CRC art. 37(d), 40(2)(b)(ii).

4 ICCPR 10, 2,  CRC art. 37(c).

5 CRC art. 37(c).

6 Beijing Rules 13.5, UN Rules for the Protection of Juveniles 12, 18(b)(c), 38, 47.

7ICCPR 14 (4), CRC art.40(1), Beijing Rules 2.3.