Disturbing details have emerged about the treatment of juveniles in the custody of US forces, writes Carol J Williamsin Guantánamo Bay
TWO DAYS after he was pulled unconscious from the rubble of a bombed al-Qaeda compound in southern Afghanistan, 15-year-old Omar Khadr lay strapped to a gurney, his left eye blinded by shrapnel, gunshot wounds to his back still raw.
US agents who conducted the first interrogation of the Canadian teenager at Bagram Air Base near Kabul on July 29th, 2002, gauged the effects of their questioning by the blood-pressure meter attached to him, as Khadr, injured and inert, could do little more than grunt.
The latest, and possibly last, sessions of the Guantánamo war crimes tribunal revealed disturbing details about Khadr's treatment during three months in the custody of US forces at Bagram who were convinced he had thrown the grenade that killed a soldier.
Subsequent interrogations during more than six years in US custody have involved snarling dogs, his limbs chained in "stress positions", and his shackled body upended by guards and used as a human mop to clean the interrogation room floor.
Khadr is one of at least a dozen minors captured and brought to Guantánamo in the Bush administration's war on terrorism after the attacks of September 11th, 2001.
Among the 19 Guantánamo prisoners charged with war crimes, Khadr and Mohammed Jawad, an Afghan believed to be a year younger than the Canadian, are the only ones who were juveniles at the time of their alleged offences.
Human-rights advocates consider the prosecution of Khadr and Jawad another blot on the Guantánamo prisons and court. Neither was accorded the protections promised by treaties to which the United States is signatory.
"Under international law, adults who recruit children for combat are to be prosecuted for that offence. But the children caught up in combat are to be protected, not prosecuted," said Diane Marie Amann, a University of California, Davis law professor who observed the latest hearing in Khadr's case for the National Institute of Military Justice.
The institute joined legal scholars, parliamentarians and human rights proponents in arguing in amicus briefs that underage combatants should be treated as victims, not responsible adults who made conscious decisions to join the fight.
Khadr's trial is set to begin on January 26th, with pretrial hearings starting on the eve of the inauguration of president-elect Barack Obama, who has vowed to shut down Guantánamo.
The Geneva Convention and the UN Convention on the Rights of the Child hold that it is the responsibility of the state whose soldiers capture juveniles on the battlefield to work to rehabilitate and integrate them into society. Appeals for consideration of Khadr's and Jawad's ages have been consistently rebuffed at the tribunal.
Col Patrick Parrish has ruled that Khadr's trial can go forward on charges of murder, attempted murder, spying, conspiracy and material support for terrorism.
His predecessor as judge in Khadr's case, Col Peter E Brownback III, ruled this spring that the defendant's age and upbringing were "interesting as a matter of policy" but irrelevant to prosecution under the Military Commissions Act of 2006.
Jawad's military judge, Col Stephen R Henley, ruled similarly on the child soldier question, but has excluded key evidence the government was relying on to convict him of attempted murder and other charges.
Henley ruled that Jawad's confessions were coerced - a decision that prosecutors have asked the Court of Military Commissions Review to overturn, but it is unclear when that appeal will be decided.
"My hope is that the Obama administration as its first action will say, 'We don't want to be the first administration in history to preside over the trial of a child soldier for war crimes'," said Lieut Cmdr William C Kuebler, Khadr's lead defence lawyer.
Kuebler said he was troubled by the mid-December hearing before Parrish, who refused to allow him to introduce as evidence photographs taken at the scene of the July 27th, 2002, firefight near Khost, Afghanistan, in which Khadr is charged with throwing the grenade that killed Sgt Christopher Speer.
The photographs taken by US soldiers as they stormed the bombed-out compound show Khadr lying face down in the dirt under the blasted remnants of a roof. The soldiers didn't know he was there until one stepped on rubble and felt something underneath give way.
Kuebler said Khadr could hardly have thrown the grenade that killed Speer if he was buried and unconscious when the Delta Force soldier entered.
Guantánamo supporters defend Khadr's treatment. The tribunal's prosecution chief, Col Lawrence J Morris, dismisses critics' contentions that juveniles are prohibited from being held accountable for war crimes by the UN Convention on the Rights of the Child adopted in 2000 and a supplemental protocol two years later.
"The convention is misunderstood, if not intentionally misrepresented," Morris said. "It is not a bar to prosecution."
Capt Keith Petty, on the prosecution team in Khadr's case, says it is up to military jurors at time of sentencing to consider a convict's age at the time of the offence.
The UN special representative for children in armed conflict, Radhika Coomaraswamy, has lodged a protest over Khadr's prosecution, warning that it could set a precedent and undermine the protections intended by the convention.
UN tribunals established to prosecute alleged war criminals from Yugoslavia, Sierra Leone and Rwanda have tended to treat child soldiers as victims.
David Crane, a Syracuse University law professor who served as chief prosecutor of the Special Court for Sierra Leone, has written of his belief that "no child had the mental capacity to commit mankind's most serious crimes".
Canadian politicians have long resisted calls to bring Khadr to his homeland for trial, though Kuebler hopes the impending change of US administrations will apply new pressure on Ottawa to demand repatriation of Guantánamo's last Western detainee.