Mar. 13, 2006 – With the US military moving forward with the unprecedented trial of a prisoner captured at age 15, human rights lawyers are appealing to an international body for an injunction.
American University attorneys will present testimony in Washington, DC today before the Inter-American Commission on Human Rights (IACHR) in an attempt to suspend the trial before military tribunal of Omar Khadr, a Canadian-born youth held for four years at GuantÃ¡namo.
Khadrâ€™s attorneys say the trial of their client would violate international treaties to which the US is a party. They accuse the US of denying Khadrâ€™s rights by placing him in harsh facilities with adult detainees, denying him access to lawyers for over two years, and subjecting him to humiliation and torture.
"Regardless of his status â€“ whether he was a civilian, a combatant or an unlawful combatant â€“ the US simply isnâ€™t respecting the minimal guarantees of due process and protection of children that it owes him," said Sheku Sheikholeslami, an AU law-clinic student and member of Khadrâ€™s defense team.
A Child Defendant
After detaining Khadr since 2002, the US finally issued charges against him last November, accusing him of murder, attempted murder, aiding the enemy, and conspiring with Osama bin Laden and other Al Qaeda leaders.
Khadr first appeared before the military commission in January of this year; a motions hearing is scheduled for the first week of April.
"Regardless of his status â€“ whether he was a civilian, a combatant or an unlawful combatant â€“ the US simply isnâ€™t respecting the minimal guarantees of due process and protection of children that it owes him" -- Sheku Sheikholeslami, legal advocate for Omar Kadhr
"I think the important thing not to forget is that [Khadr] may be 19 now, but he was 15 at the time of these alleged offenses, he was a child," said Julie Engel, another law student working on Khadrâ€™s defense.
The Convention on the Rights of the Child â€“ to which the US is a signatory â€“ instructs governments to provide "physical and psychological recovery and . . . social reintegration" to juveniles recruited or used in hostilities. Khadrâ€™s lawyers argue that while other children captured in the so-called "war on terror" were held in Camp Iguana â€“ facilities that provided classes, physical activities, roommates, and better food -- Khadr was physically and psychologically abused during detention.
Legal documents to be filed with the Inter-American commission today allege that when Khadr was recovering in Afghanistan from gunshot wounds he sustained before his capture in Afghanistan, interrogators denied him pain medication, forced him to carry heavy buckets of water, and "made him stand with his hands tied above his head for hours at a time." The documents also allege that interrogators put a bag over Khadrâ€™s head in a room with barking dogs.
Defense attorneys say that conditions worsened after Khadr arrived at GuantÃ¡namo, where his captors put him in stress positions during interrogations. During one such incident, Khadr says, his questioners would not allow him to use the bathroom, and he urinated on himself. He said military police then poured pine oil on the floor and dragged Khadr, still shackled, through the mixture of fluids. Other interrogators allegedly threatened that Khadr would be sent to another country where he would be raped.
Human rights advocates cite the lack of legally trained military judges, the secrecy of some hearings and the authority to remove a defendant from proceedings as highly disturbing.
In a written response to The NewStandard, the Defense Department said the it has "taken and continues to take all allegations of abuse very seriously, [and] when a credible allegation of improper conduct by DoD personnel surfaces, it is reviewed, and when factually warranted, investigated." The Department told TNS it knew of no such allegations in Khadrâ€™s case that have been substantiated.
Capture and Detention
US forces captured Khadr in Bagram, Afghanistan in July 2002 after he was severely wounded in an attack by US Special Forces on what the US military says was an Al-Qaeda compound. The Department of Defense accuses Khadr, then 15 years old, of throwing a grenade that killed Sergeant First Class Christopher Speer during the attack.
US military and intelligence officials have taken special interest in Khadr because of his deceased fatherâ€™s alleged ties to Al-Qaeda and Osama bin Laden. The DoD insists that Khadrâ€™s father, Ahmad Khadr, was a senior Al-Qaeda member who used his Canadian-based charity as a front to send money to the terrorist group. Federal officials also say that Omar "saw or met" senior Al-Qaeda leaders, including bin Laden. And they accuse him of receiving "private Al-Qaeda basic training" and joining Al-Qaeda operatives in planting improvised explosive devices "at a point where US forces were known to travel."
The government also accuses Khadr of joining an organization that conspired with Al-Qaeda leaders to attack civilians but makes no connections between Khadr and any such acts.
Responding to questions The NewStandard submitted by e-mail, the DoD stated that Khadr was placed with adult detainees because he arrived at the camp when we was 16 years old.
"Omar Khadr is properly detained as an enemy combatant after being picked up on the battlefield directly fighting against US and coalition forces. His status as an enemy combatant is the basis for his detention," Shavers wrote.
US allegations that Khadr intentionally aided Al-Qaeda put him in the status of "unlawful belligerent" or "enemy combatant," a designation the US government has used to deny him the rights normally guaranteed to soldiers under international laws of war.
Defending attorneys and military-justice lawyers and scholars consider the military commissions before which Khadr will be tried arbitrary and flawed, and say his trial should be suspended until the commission meets standards for international law.
Kathleen Duignan, executive director of the National Institute for Military Justice, a nonprofit education and advocacy group that recently joined with American Universityâ€™s law school, said her group has a host of concerns. She cited the lack of legally trained military judges, the secrecy of some hearings and the authority to remove a defendant from proceedings as highly disturbing. Her group is also troubled by the denial of defendantsâ€™ rights to self-representation or counsel of choice, or the right to appeal sentences under ten years.
Human rights groups are also concerned that the military commissioners have not ruled out the admittance of evidence obtained through torture. Additionally, US Army Captain John Merriam, the military counsel representing Khadr at his first appearance before the commission last month, expressed "serious concerns about the openness and fairness" of the proceedings.
"So as you can see," Duignan said, "there are lots and lots of issues that are of concern to those that believe in our justice system and who donâ€™t want to see it essentially perverted for the purposes of... making things easier for the government."
Khadrâ€™s defense team says the military commissions violate the American Declaration on the Rights and Duties of Man, an international human rights treaty signed by the 35 North and South American nations that form the Organization of American States (OAS). The IACHR, which is hearing the case today, is an autonomous arm of the OAS created to promote and protect human rights.
"Omar will suffer irreparable harm if he is tried by a military commission," Sheikholeslami said. "He may be deprived permanently of his liberty in a fundamentally unfair process as well as continuing to be subjected to prolonged punitive detention."
Lawyers working on Khadrâ€™s case concede that even if the IACHR rules in his favor, it can only make recommendations to the United States to reform the military commissions and conditions at GuantÃ¡namo Bay.
Nevertheless, Sheikholeslami said, the defense team believes "any statement from the Inter-American Commission which upholds Omarâ€™s right as a childâ€¦ will go a long way to influencing policy and public opinion in the international community as well as at home here in the United States."
The defense team is asking the commission to respond before April 3, when Khadrâ€™s next military commission hearing is scheduled.