Omar Khadr was captured during the war in Afghanistan in 2002, suspected of throwing a grenade that fatally wounded American soldier Christopher Speer. At the time of his capture he was 15 years old. He confessed to the murder and has been detained at Guantanamo Bay (GMTO) ever since. However, he confessed after being subjected to physical torture and threatened with rape and death. He was held at GTMO for eight years before being charged with a murder that there is no evidence he committed. In fact, the war crime he was charged with is not a war crime at all, and the court he was tried in has been declared illegal twice by the US Supreme Court. After pleading guilty in October 2010, he received an eight year sentence. It is for these reasons that the case of Omar Khadr deserves our attention.
The third Geneva Convention specifically covers the Treatment of Prisoners of War, affording them such measures as protection against inhuman treatment and torture, and “respect for their persons and honour”. Since his capture, Khadr has been denied both prisoner of war (POW) status and any protection under the Geneva Conventions. The US has specified that only lawful combatants are POW once captured, and that those deemed to be affiliated with al Qaeda are, in fact, unlawful enemy combatants. The term unlawful enemy combatant was derived from the US Supreme Court ruling of Ex Parte Quirin (1942), where it was used to define the status of eight Nazi soldiers who went to the US dressed as civilians in order to commit atrocities. Sixty years later, it has been resurrected to deny those captured during the War on Terror (WOT) basic human rights.
It is difficult to defend the notion of an unlawful enemy combatant – seemingly a prisoner with barely any rights. Until the Supreme Court ruling in Rasul v Bush (2004) unlawful enemy combatants were not granted habeas corpus – the right to challenge the legality of their detention. Additionally, in Boumediene v Bush (2004) it was established that the term was so broad it could go so far as to include “a little old lady in Switzerland who writes cheques to what she thinks is a charity that helps orphans in Afghanistan but really is a front to finance al Qaeda activities”. Thus, the term could include any person with a remote connection to the WOT, who could then feasibly find themselves in GMTO without charge. Furthermore, the concept of an illegitimate combatant void of the same rights as other combatants is alien to the Geneva Conventions, which state that there are combatants and non-combatants and no intermediate status. If the US wishes to deny Khadr combatant status, then he can only legally be a non-combatant.
Although charged with five war crimes, Khadr’s main charge was that of murder in violation of the laws of war. During periods of warfare, International Humanitarian Law (IHL) rather than domestic law is applicable. Consequently, soldiers are granted the ‘combatants privilege’ – whereby they may lawfully kill another combatant without facing the domestic charge of murder. IHL does not cover the actions of non-combatants, as they are covered by domestic law with the rest of society. As the US has stressed the fact that Khadr does not fit the criteria of a combatant, by this determination, he is a non-combatant. Therefore any murder he may or may not have committed would be a domestic crime, and not a war crime.
Even if considered to be a combatant, under IHL, murder is only a violation if the person in question purposely targets a protected person, or if the methods used to kill are prohibited. As Khadr is claimed to have used a grenade and Speer was a combatant, neither requirement is met. However, Khadr’s charges did not derive from IHL. They were created in the Military Commissions Act (MCA) 2006, which was updated by the Obama administration in 2009. The MCA defines murder in violation of the law of war as applying to “any person subject to this chapter who intentionally kills one or more persons, including privileged belligerents, in violation of the law of war.” Whereas under IHL murder is only a violation if the victim is a protected person, under the MCA it only has to be of “one or more persons”, with that of a protected person being a mere inclusion. This means that any unlawful enemy combatant (which we have established, could be an old lady from Switzerland) that kills any person during a war, is liable under this act to be prosecuted for a war crime. Additionally, in the comments section of the Manual for Military Commissions, it is stated that an unlawful enemy combatant can be prosecuted even if the act does not violate the law of war. This comment not only contradicts what the crime is in its entirety, but narrows the crime to just murder alone. Effectively, the US has taken a domestic charge and made it a war crime in order to secure a conviction in military courts.
As part of his plea deal, Khadr was granted the right to return to Canada after one more year in GTMO and conclude the rest of his sentence in a Canadian prison. The delay in the Canadian government’s request to transfer Khadr has been heavily influenced by his father, the late Ahmed Khadr. Ahmed Khadr was arrested in 1995 for his alleged funding of the Egyptian group responsible for embassy bombings in Pakistan. Following his arrest the then Prime Minister, Jean Chretien, requested Khadr’s release and transfer back to Canada. His appeal to the Pakistani government was successful, although it was later described as “an appalling political error” once Ahmed Khadr’s increased involvement in the funding of al Qaeda became apparent. This led to what is now referred to as the ‘Khadr effect’ – the Canadian fear of requesting the release of a national from foreign imprisonment. Encouragingly, however, a formal request for the return of Khadr has been received by the Canadian government and he should be transferred in the coming months.
Omar Khadr’s case has tested the limits of IHL. In the course of my correspondence with his Canadian attorney, Dennis Edney, he professed that “the legal journey on behalf of Omar has been a sober reminder about the very limits of justice, itself. The Rule of Law is a wonderfully sounding phrase but is all dressed up with nowhere to go”.