A new US law on military trials will be put to the test this week when a long-running case of the Canadian-born terrorist suspect Omar Ahmed Khadr, who was arrested in Afghanistan in 2002 aged just 15, resumes in Guantanamo.
Khadr is accused of killing an American soldier during a gun battle, but his lawyers claim that he only confessed to the killing after being tortured.
Under a new US law, evidence obtained through cruel, inhumane or degrading treatment cannot be used in trials. Other legislation rules out the prosecution of child combatants under 18.
“Back in 2002, the US signed and ratified the optional protocol which is a protocol to the Convention on the Rights of a Child. In that protocol, we determined as a nation that we were not going to prosecute children – child soldiers,” Eric Montalvo, who specializes in military law, pointed out.
Montalvo explained that “There are a number of reasons for that, given the mens rea, the different components of recruiting and manipulating children to serve in war. The issue is that we have created a criminal justice system to go after people for engaging in war and conflict. That would expose every US soldier that is now fighting abroad to the same circumstance.”
“The second component to this is that we have carved out this exception as a nation, we divided that line; we have set that line and said that children will not be prosecuted. Yet we are continuing to do that very thing,” he said.