United States of America v. Omar Ahmed Khadr

Court	Military Commission, United States
Case number	D-022
Decision title	Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier
Decision date	30 April 2008
Parties	United States of America Omar Ahmed Khadr, a.k.a. Akhbar Famad, a.k.a. Akhbar Farnad, a.k.a. Ahmed Muhammed Khahi
Other names	Ahmed Muhammed Khahi Akhbar Famad Akhbar Farhad
Categories	War crimes
Keywords	child, child soldier, jurisdiction, Murder, Non-international armed conflict, Terrorism
Links	Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier
Other countries involved	Afghanistan Canada

Summary

Omar Ahmed Khadr was 15 years old when he was captured by United States forces in Pakistan in 2003 and transferred to detention at Guantanamo Bay, Cuba. His first trial before a military commission was due to proceed until the United States Supreme Court ruled that such commissions were unlawful. Following Congress’ enactment of the 2006 Military Commissions Act, Khadr was again charged and due to stand trial before the new military commissions for conspiracy, murder, attempted murder, spying and material support for terrorism for his alleged involvement with Al Qaeda.

The present decision is the result of a motion by lawyers for Khadr attempting to halt the proceedings by arguing that the military commissions have no jurisdiction to try child soldiers. The motion was rejected by the Judge on the grounds that nothing in customary international law or international treaties, or indeed in the text of the Military Commissions Act bars proceedings against child soldiers for violations of the laws of war. This decision paved the way for Khadr’s trial to begin in October 2010. It concluded following a plea arrangement in which Khadr pleaded guilty to the charges and received an 8-year sentence. He has recently been transferred to his native Canada to carry out the remainder of his sentence.

Procedural history

Omar Ahmed Khadr, a Canadian citizen, was captured in Afghanistan in July 2002 at the age of 15. He was transferred to Guantanamo Bay in November 2002.

On 8 September 2004, the Combatant Status Review Tribunal concluded that Khadr was an “enemy combatant”.

On 7 November 2005, Khadr was charged with conspiracy, murder, attempted murder and aiding the enemy for his involvement with al Qaeda.

After the Supreme Court of the United States ruled that the Military Commissions were unlawful, a new 2006 Military Commissions Act re-established them. Pursuant to this act, Khadr was charged again on 2 February 2007 with murder, attempted murder, conspiracy, providing material support for terrorism and spying.

On 4 June 2007, all charges against Khadr were dismissed because he was not classified as an “unlawful enemy combatant”, a prerequisite for the exercise of jurisdiction by Military Commission.

On 9 September 2007, this decision was overturned and charges were reinstated against Khadr.

Related developments

On 23 May 2008, the Supreme Court of Canada ruled that Khadr had a constitutional right to see the confidential documents provided by the Canadian government to the US authorities following the Canadian’s interrogation of Khadr in 2003. The Court, however, further held that some information could be withheld for national security purposes (see here).

On 23 April 2009, the Federal Court of Canada ordered the Canadian government to seek Khadr’s repatriation. The Federal Court of Appeal of Canada upheld this decision on appeal. On 29 January 2010, however, the decision was reversed by the Supreme Court of Canada which held that the government had no such obligation.

On 5 July 2010, the Federal Court of Canada held that the Canadian government had seven days to remedy its breach of Khadr’s rights. See also Department of Justice (Canada), 'Statement by Justice Minister Rob Nicholson Regarding the Government of Canada’s Appeal of the Federal Court’s Khadr Decision', 12 July 2010. In appeal, on 22 July 2010, the Federal Court of Appeal of Canada reversed the decision by holding that the lower court has no authority to impose this remedy and the decision had interfered with matters solely in the domain of the government.

On 2 August 2010, the Supreme Court of the United States denied Khadr’s petition for a writ of mandamus to review the constitutionality of the Military Commissions and the validity of the proceedings against him. The trial against Khandr commenced on 10 August 2010.

On 14 October 2010, proceedings were suspended as the parties began to negotiate a plea agreement, which was announced on 15 October.

On 31 October 2010, the details of the plea agreement and the sentene were released. Khadr admitted his guilt and would receive a sentence of 40 years’ imprisonment. Under the terms of the agreement, Khadr would serve a maximum of 8 years (see Department of Defense, 'DoD Announces Sentence for Detainee Omar Khadr'; and Department of Defense, 'Details of Omar Khadr Plea Agreement Released').

In April 2012, Khadr sent an application to the Canadian government requesting a transfer to his home state. On 29 September 2012, Khadr was transferred to Canada where he will serve the remainder of his 8-year sentence. See Department of Defense, 'Detainee Transfer Announced'.

Legally relevant facts

According to the charges, Omar Ahmed Khadr lived in Pakistan and travelled throughout Pakistan and Afghanistan from 1996 until 2001. He is alleged to have visited the compound of Usama bin Laden with his family, and to have personally met Al Qaeda leaders, and visited training camps and guest houses.

In the summer of 2002, Khadr received private Al Qaeda basic training. Upon completion, Khadr joined a team of Al Qaeda operatives and converted landmines into remotely detonated explosive devices with the purposes of targeting US and coalition forces.

Khadr was captured by US forces on 27 July 2002 (pp. 3-4, Charges of 2 February 2007).

Core legal questions

Are Military Commissions under the 2006 Military Commissions Act entitled to exercise jurisdiction over crimes committed by child soldiers, that is children under the age of 15 at the time of the alleged acts?

Specific legal rules and provisions

Paragraphs 948a(1), d(a), 950v(b)(15),(25),(27),(28) and 950t of the US 2006 Military Commissions Act.
Paragraph 5031 et seq. of the Juvenile Delinquency Act.
Article 7(1) of the Optional Protocol to the Convention on the Rights of the Child.

Court's holding and analysis

The 2006 Military Commissions Act does not expressly provide for an age limitation, thus it is clear that Congress did not limit the jurisdiction of a military commission so that persons of a certain age could not be tried (pp. 2-3). Neither can such a limitation be imported from the Juvenile Delinquency Act, which does not apply in the instant case as military commissions are not courts of the United States within the meaning of that Act (pp. 3-4). Finally, the Optional Protocol to the Convention on the Rights of the Child does not bar proceedings against Mr Khadr as the Committee on the Rights of the Child has only identified 12 years of age as the absolute minimum age of criminal responsibility. Mr Khadr was fifteen at the time of the alleged events (pp. 5-6).

The Commission concluded that neither customary international law nor international treaties binding upon the United States prohibit the trial of a person for alleged violations of the law of nations committed when he was 15 years old. The motion for dismissal was denied (pp. 6-7).