The U.S. military commission hearing the case of a Canadian teenager due to start today at Guantánamo Bay should take into account that he was only 15 years old at the time of his alleged offense, Human Rights Watch said today. U.S. authorities are prosecuting the youth, Omar Khadr, now 19, for allegedly killing a U.S. soldier in Afghanistan in 2002. The Pentagon refused to recognize his juvenile status when he was apprehended and during his detention, raising concerns that it will not take his age into account in conducting the military hearing.
“The U.S. government ignored Khadr’s rights as a child throughout his detention,” said Jo Becker, advocacy director of the Children’s Rights Division at Human Rights Watch. “The military commission should not do the same.”
The Pentagon violated international juvenile justice standards by refusing to separate Khadr from adult detainees, to provide him with opportunities for education or to allow him direct contact with his family during his detention at Guantánamo. International standards require the use of detention only as a last resort, as well as a prompt determination of all cases involving children, yet Khadr was held at Guantánamo for more than three years before being charged. Khadr’s attorneys claim that he was tortured at Guantánamo.
Khadr’s detention also violated international law relating to the treatment of former child soldiers. Khadr is one of an unknown number of Guantánamo detainees who were apprehended as children for alleged participation in armed activities. Under a treaty banning children under the age of 18 from participating in armed conflict, ratified by the United States in 2002, the U.S. is obliged to assist in the demobilization and rehabilitation of former child soldiers within its jurisdiction. In 2004, the Pentagon released from Guantánamo three children, believed aged between 13 and 15 at the time of their capture, to rehabilitation programs operated by UNICEF in Afghanistan. However, it refused to consider Khadr and other child detainees under the age of 18 for similar rehabilitation programs, or to provide them with special protection at Guantánamo. The Pentagon has also refused to confirm the number of Guantánamo detainees who were under 18 when first detained.
International standards recognize that children under 18 are a particularly vulnerable group and entitled to special care and protection because they are still developing physically, mentally and emotionally. In its March 2005 decision abolishing the use of the death penalty for crimes committed before age 18, the U.S. Supreme Court found that juveniles are “categorically less culpable” than adult criminals. Recent findings in the field of neuroscience have confirmed striking differences between the brains of adolescents and those of adults, finding that adolescents are less able to control impulsive behavior or weigh the long-term consequences of their actions.
Because of children’s relative immaturity and unique capacity for rehabilitation, international law emphasizes rehabilitation and social reintegration as a primary focus for all proceedings involving children. Trials of child offenders should take place before authorities trained in juvenile justice standards, should protect the best interests of the child and consider a range of sentencing options that will prepare the child to re-enter society.
Human Rights Watch reiterates its concerns that the military commissions created by the United States to try detainees for war crimes and related offenses fall far short of international standards for a fair trial.