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Defence seeks dismissal on grounds Khadr was child soldier

By Sheldon Alberts

January 17, 2008

Lawyers for Canadian terror suspect Omar Khadr are asking a U.S. military judge to dismiss war crimes charges against their client on the grounds he was a child soldier whose prosecution breaks international law.

In a motion to be filed Friday with Col. Peter Brownback, Khadr's military defence lawyers contend the Bush administration's war crimes tribunals have no jurisdiction to try juveniles. They also argue any trial would violate United Nations conventions protecting children in armed conflict.

"If jurisdiction is exercised over Mr. Khadr, the military judge will be the first in western history to preside over the trial of alleged war crimes committed by a child," says the motion to dismiss, obtained by Canwest News Service.

"No international criminal tribunal established under the laws of war, from Nuremberg forward, has ever prosecuted former child soldiers as war criminals."

The U.S. Military Commissions Act, which established the Guantanamo tribunals, "expressed no intent to strip child offenders of their entitlement to heightened protection in all legal matters, particularly criminal prosecutions," says the court filing.

"A critical component of the response of our nation and the world to the tragedy of the use and abuse of child solders in war by terrorist organizations like al-Qaida is that post-conflict legal proceedings must pursue the best interest of the victimized child - with the aim of their rehabilitation and reintegration into society, not their imprisonment or execution."

The court filing marks the latest salvo in the protracted legal proceedings involving Khadr, who is accused of throwing a grenade that killed a U.S. army sergeant during a July 2002, firefight in southern Afghanistan.

Khadr, now 21, was 15 at the time of his capture and has been held at the U.S. military prison Guantanamo since the fall of 2002.

In the court motion, lawyers argue Khadr's trial runs contrary to the Optional Protocol of the UN Convention on the Rights of the Child. The protocol, which the United States ratified in 2002, states persons under the age of 18 years enlisted or conscripted into armed conflict "are entitled to special protection" under the law.

Defence lawyers maintain Khadr was a "a juvenile illegally used in combat by al-Qaida."

Khadr is the son of Ahmed Said Khadr, a former financier for Osama bin Laden who was killed in 2003 during a raid of suspected terrorists in Pakistan.

"The only age that is relevant in determining U.S. obligations under the Protocol is Mr. Khadr's age when he was 'used' in armed conflict as a 15-year-old," the motion argues.

"All members of a non-state armed group must be at least 18 years of age for them to be a combatant of any kind, either lawful or unlawful."

Khadr is scheduled to go on trial this May on charges of murder, attempted murder, conspiracy, providing material aid to terrorism and spying.

His case has proceeded in fits and starts over the past two years - it was dismissed once by the U.S. Supreme Court and once by Brownback himself - but the Pentagon is eager to win a conviction against Khadr before President George W. Bush leaves office.

The Canadian government has declined to intervene in the case, repeatedly saying Khadr faces serious charges and declining to seek his repatriation to Canada.

But Khadr's case has recently attracted a bevy of international interests from European lawyers, legislators and human rights activists. In December, five leading British legal groups wrote Prime Minister Stephen Harper asking him to request Khadr's release into Canadian custody.

"The Canadian government is using the unpopularity of the Khadr family as an excuse to ignore the plight of a Canadian citizen and subsidize an increasingly isolated and extreme position on Guantanamo," said Lt.-Cmdr. William Kuebler, Khadr's lead U.S. military lawyer.

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