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Child-soldier defence in grenade attack tossed out

May 01, 2008

by Steven Edwards and Juliet O'Neill, Canwest News Service

NEW YORK -- A U.S. military judge has dismissed the argument that Omar Khadr -- 15 at the time he allegedly threw a hand grenade that killed a U.S. serviceman -- should be spared a war crimes prosecution on grounds he was a "child soldier" under international law.

Col. Peter Brownback essentially endorsed the Pentagon argument that people under the age of 18 can be brought before the U.S. war crimes commissions at the U.S. naval base in Guantanamo Bay, Cuba, according to Khadr's military defence lawyer, Lt.-Cmdr. Bill Kuebler.

The rejection is a significant setback for Khadr's defence, and little now stands in the way of his trial going ahead as scheduled around the end of July.

But Kuebler says it reflects what he and a significant number of jurists and human rights activists around the world call the bias of the commissions.

"This ruling is an embarrassment to the United States," said Kuebler, who has vigorously campaigned for the Canadian government to call for Khadr's return from the United States on grounds he can't get a fair trial in Guantanamo.

"The military commission process has now clearly failed and Canada will share in the embarrassment if it does not act soon."

The process, authorized by U.S. Congressional legislation in 2006 after the U.S. Supreme Court said earlier versions set up by the Bush administration were illegal, can impose the death penalty on those convicted of capital crimes.

Khadr faces five war crimes charges, including murder -- though the prosecution has said it will not seek the death penalty in his case if he is convicted, but could ask that he be imprisoned for life.

At the Pentagon, the administration office for the commissions had yet to release the text of the ruling Wednesday, and U.S. defence department spokespeople familiar with the process were unavailable.

Kuebler, who arrived in Ottawa Tuesday to speak of Khadr's predicament at hearings held by the parliamentary human rights subcommittee, announced the conclusion of the ruling in a press statement.

In separate rulings the Pentagon did release Wednesday, Brownback also dismissed a bid by Kuebler to have the five charges dismissed on grounds the offences didn't exist at the time of Khadr's 2002 capture because Congressional authorization was not granted until four years later.

Brownback cited Supreme Court rulings that gave Congress the right to let the commissions "determine for themselves what are the violations of the law of war."

At a Guantanamo hearing before Brownback in February, Kuebler argued the U.S. Congress couldn't have wanted the commissions to try people under the age of adulthood because allowing such would be inconsistent with the terms of a child soldier "protocol" Congress has ratified.

The protocol -- which is attached to the global Rights of the Child treaty, and which Canada has also ratified -- says countries that take child soldiers into custody should help with their "rehabilitation and social integration."

Kuebler also pointed out that commission rules fail to follow historical military law in the U.S. by distinguishing between juveniles and adults -- therefore, he argued, the commissions are meant just for adults.

Prosecutors hit back by pointing out the protocol does not explicitly preclude prosecution of a child soldier -- and said there was no evidence Congress "had any qualms" about prosecuting Khadr for war crimes because he was first charged a year before the 2006 authorization act.

""Congress therefore knew that the government intended to prosecute Khadr," prosecutors say in a written argument.

Kuebler and his civilian co-counsel, Rebecca Snyder, have uncovered U.S. military records that suggest Khadr may not have even lobbed the hand grenade that mortally wounded Delta Force Sgt. Chris Speer in a firefight in Afghanistan -- and which led to the murder charge against him.

But while former Liberal administrations failed to consistently press for Toronto-born Khadr's return to Canada, the current Conservative government has said it intends to let the legal process play itself out before it goes beyond monitoring Khadr's detention conditions.

"Our best hope has always been intervention by the Canadian government to protect Omar's rights as a child soldier under international law," Kuebler said.

"I think if the Canadian government does not act soon, Omar is going to be convicted of a murder that he very likely did not commit and face a life sentence in a matter of months."

He spoke before meeting Liberal leader Stephane Dion, who has been calling for Khadr's repatriation since last September.

"If they are unable, our American friends, to give him a trial in a legal court, a regular court in the United States, we want him back in Canada," Dion told reporters.

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