Just about everyone has heard of Omar Khard: the one Canadian languishing in Guantanamo Bay detention camp.
Most people – whatever their views and opinions are on the circumstances that lead to his current predicament – agree that his situation is quite tragic. The kid never had a chance to grow up ‘normally’.
Born into a family which was legally in Canada, emotionally in Pakistan and philosophically in 8th century Arabia, his childhood could not be considered ‘normal’ by any standards.
Both his parents were religious fanatics (his mother still is, his father gave his life to conduct violent jihad). He was physically bumped around, from living in the ‘Secular West’ at some points to a Muslim school in Pakistan to terrorist training camps. His sister was given in marriage at the age of 15 to an Al-Qaeda buddy of her father (the wedding is said to have been attended by Osama himself), his brothers actively conducted violent jihad (not all survived), and so on.
It really is a sad story. I can understand why it pulls at all our collective heartstrings!
Currently, the public debate is focused on what is to be done with young Omar now?
This is a very, very important decision: whatever action is taken (on not taken) on behalf of Omar Khadr will set THE legal precedent for future situation that are similar.
So, let us get it right!
In order to make the best possible decision, we must objectively examine what Omar Khadr is – and what he is not.
This is an essential step, because it will define under which circumstances the legal precedent set by the ‘Omar Khadr case’ will be applicable.
The most common description of Omar Khadr one hears in the MSM (mainstream media) – as well as one often repeated by his defense lawyers – is that Omar Khadr is a ‘Child Soldier’.
So, let us examine if this is the case:
Is Omar Khadr a ‘Child Soldier’?
The definition of ‘Child Soldier’ has two parts: ‘Child’ and ‘Soldier’.
First: is Omar Khadr a ‘Soldier’?
No, he is not.
At least, not according to the UN laws on the matter (or any other law I am aware of which defines who is, and who is not, a ‘soldier’).
The UN laws were written in order to protect the innocent civilians who get in the way of a war first, then the protection of legitimate soldiers second. And, they are very clear on who is and who is not a ‘soldier’ (again – basic Wikipedia search provides clear answers – but much more material confirming this is easily available through any major search engine…):
‘To qualify under the Third Geneva Convention, a combatant must have conducted military operations according to the laws and customs of war, be part of a chain of command, wear a “fixed distinctive marking, visible from a distance” and bear arms openly.’
Omar Khadr, unfortunately, does not satisfy these qualifications.
Not only was he not a part of a recognized military ‘chain of command’, and not wearing any ‘badges’ or ‘distinctive markings’ that could, even remotely, be construed as ‘uniform’ or ‘fixed distinctive marking’: the crime he is accused of having committed is against the laws and customs of war. ( I can expand on this, at length, if asked, in the comments sections.)
Therefore, Omar Khadr DOES NOT satisfy the qualifications of having the status of a ‘soldier’. Therefore, he cannot be treated as a ‘soldier’: a ‘Child Soldier’, an ‘adult soldier’, or any other kind of ‘soldier’.
But, even if Omar Khadr were a ‘Soldier’: would he qualify as a ‘Child Soldier’?
This is a more difficult question – but there is a legal answer!
Omar Khadr was aged 15 when he was detained by UN troops and when the premeditated murder of a UN non-combatant medic, which he is accused of having committed, occurred.
Different people mature at different rates: at 15, some people really are still children while others are quite adult. Both individual maturing rates and cultural influences are important in determining if a 15-year-old is ‘an adult’ or ‘a child’. What does the law say?
Omar Khadr straddled two cultures:
- In Canada, a 15-year old is, legally, a child.
- Still, 15-year-olds are able to become emancipated, and legally become adults.
- Under some circumstances, non-emancipated 15-year-olds are charged with crimes as adults – so the ‘legal precedent’ can be applied both ways: it is a bit of a legal ‘gray area’ in Canada.
- In Islamist culture, a 15-year-old is considered to be an adult, without any reservations.
- The Khadr family certainly considers 15 years of age to be ‘adult’ – that is the age at which their daughter was given away in marriage!
It is obvious that in his own eyes, as well as according to the culture of his family, Omar Khadr is ‘an adult’. And, in our multicultural society, would it not be offensive to dismiss Omar Khadr’s minority cultural view of his status at that time?
OK, ok – so, the ‘multiculturalism’ thing is kind of messed up – and we all know it. Let’s look elsewhere:
What does the International Human Rights Law have to say on the subject? (The following is a cut-and-paste of what Wikipedia has to say on this: I usually like to paraphrase things, but I could not hope to make it more clear than they had…)
International humanitarian law
According to Article 77.2 of the Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977:
‘The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.’
Well, that seems rather clear: once a person has reached the age of 15, he/she cannot be considered to be a ‘Child Soldier’ – even though it’s better to recruit people who are over the age of 18…. 15-year-olds are ‘regular soldiers’!
Omar Khadr HAD ‘attained the age of fifteen years’ – so he IS, according to international law, ‘regular soldier’!
In other words, legally, Omar Khadr CANNOT be considered a ‘Child Soldier’, because he is not a ‘Child’: he would have had to have been FOURTEEN years of age or younger in order to be considered a ‘Child Soldier’!
OK – so we are nowhere closer to the answer of what Omar Khadr actually is: but, I have (hopefully) demonstrated that whatever he is, he is NOT a ‘Child Soldier’!
I know – the facts of the situation are unlikely to affect the direction of the public debate…. I have no illusions about it. People who point out the laws and the rules are nowhere near as interesting – and nowhere near listened to – as people who play on our emotions…
But, we MUST TRY, mustn’t we?
Xanthippa's Chamberpot 
August 28, 2009 at 04:09
[…] Omar Khadr is NOT a “Child Soldier” – as per UN Laws. ‘To qualify under the Third Geneva Convention, a combatant must have conducted military operations according to the laws and customs of war, be part of a chain of command, wear a “fixed distinctive marking, visible from a distance” and bear arms openly.’…Not only was he not a part of a recognized military ‘chain of command’, and not wearing any ‘badges’ or ‘distinctive markings’ that could, even remotely, be construed as ‘uniform’ or ‘fixed distinctive marking’: the crime he is accused of having committed is against the laws and customs of war. ( I can expand on this, at length, if asked, in the comments sections.)….The Khadr family certainly considers 15 years of age to be ‘adult’ – that is the age at which their daughter was given away in marriage! […]
November 5, 2010 at 03:01
Write to your MP’s, Khadr’s mother should be charged with breaking the law by allowing, consenting to and encouraging her son to become a member of a terrorist group as a minor. We could maybe win that case if it came about. Now for the lashing… This is a poorly researched blog.
First I should say that you should never paraphrase when quoting from a statute or a convention. I also a found factual problem in your reply to another poster. The UN never authorized the US invasion of Afghanistan. The war is under the authority of NATO. The US and Britain also have or had, campaigns that were independent of NATO and subject exclusively to their own authority.
I am not in the slightest sympathetic to Omar Khadr or his family who are certainly not Canadians and don’t deserve to bear that title. However I don’t think your legal analysis is anywhere rigorous enough to reach a sound conclusion.
The USA ratified the in 2002.
Article 4 (1) of this document states that “Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.”
Omar Khadr was 15.
Article 6 (3) states “States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. State Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.”
I think, and I could be wrong, that Omar Khadr was tried and admitted to being a member of Al Qaeda, which is a non-state group. That means upon capturing him, the US would have to give him special consideration as to his age as per sections 4(1) and 6(3). So while he might not technically be a ‘child soldier’ as defined in the Geneva Conventions, he would get the same treatment as a child soldier with “all appropriate assistance for…. their social reintegration”.
In other words, he might not technically meet the separate, stand alone definitions of ‘child’ and ‘soldier’, but that doesn’t mean necessarily mean he isn’t a ‘child soldier’. Even if he isn’t one, he would still be required to be treated as one by the US upon his capture.
You have got to be way more careful in the way you argue when you are dealing with law. I don’t know any law professors in my program that make statements about issues as complex and nuanced as these with the same amount of certainty as you do on this blog. You failed to check the additional protocols of the Geneva Conventions which had been ratified by the USA.
There are also all of these treaties:
International Covenant on Civil and Political Rights (ICCPR),
• Convention on the Rights of the Child (CRC),
• UN Rules for the Protection of Juveniles Deprived of their Liberty (UN Rules for the
Protection of Juveniles),
• UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)
• UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing
Rules)
• Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules)
• Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment (Body of Principles).
Which you would have to look through to be sure about the statements you are trying to make. There is a reason that governments pay lawyers in their foreign affairs departments millions of dollars a year. It is because the answer to a relatively simple question “who is a child soldier” can be very complex.
When talking about the law, get used to using phrases like “I think”, “maybe” and “upon my consideration of the relevant laws, which may be incomplete, my preliminary opinion is…”.
November 5, 2010 at 14:52
Whoops, I mistakenly omitted something, The USA ratified the Optional Protocol to the Convention on the Rights
of the Child on the Involvement of Children in Armed Conflict in 2002.
This is where you find the aforementioned articles 4(1) and 6(3).
Sorry about the mistake
July 26, 2012 at 09:11
Bruce: Your comments are most helpful, refering to actual relevant documents rather than secondary source propaganda and “straight from the gut opinions as proposed by their professors” used by other commenters in this section. You will go far. Thank you for your post.
August 31, 2009 at 14:46
[…] THE VILE AL-QAEDA WARRIOR Omar Khadr is NOT a ‘Child Soldier’ – as per UN laws …. […]
January 19, 2010 at 20:11
Who are child soldiers?
While there is no precise definition, the Coalition considers a child soldier any person under the age of 18 who is a member of or attached to government armed forces or any other regular or irregular armed force or armed political group, whether or not an armed conflict exists. Child soldiers perform a range of tasks including participation in combat, laying mines and explosives; scouting, spying, acting as decoys, couriers or guards; training, drill or other preparations; logistics and support functions, portering, cooking and domestic labour; and sexual slavery or other recruitment for sexual purposes.
http://www.child-soldiers.org/childsoldiers/questions-and-answers
i trust a definition written by a trusted and impartial source rather than your obviously biased opinion.
Xanthippa says:
You stated: Who are child soldiers? While there is no precise definition…’
Well, actually, that is not correct.
To the contrary: the United Nations – whose jurisdiction the military action in Afghanistan falls – have a very specific definition of ‘Who are child soldiers’. And, Omar Khadr does not satisfy 2 of the criteria necessary for him to be a ‘child soldier’ under the UN definition thereof. That was rather the point of the post…
He fails to satisfy two of the criteria: age (Omar Khadr, at the time the incident occurred, was too old, as per UN’s definition) and markings (he did not wear any markings which would identify him as a member of any army, something that is 100% required under the UN’s rules to be considered a ‘soldier’ and therefore be eligible to be protected by any of the Geneva Convention rules…).
Look – the UN is the one who sent the armies into Afghanistan.
The war there is under the UN’s jurisdiction.
The UN has a very, very specific definition of who is and who is not a ‘child soldier’.
Omar Khadr is not a ‘child soldier’ according to the UN’s definition thereof.
Anyone can make up definitions of ‘stuff’ and put them up onto a website – but, that does not mean that such definitions (even if done up with the best of intentions by people or organizations who truly care) have any legal standing.
When we engage in a public debate on a subject, we must use the applicable definitions of terms, or our debate will be devoid of meaning. After all, if we use the same word, but we each understand it to mean a different thing, we’ll never be able to understand each other’s side…and if we don’t understand each other, we will not be able to negotiate a mutually acceptable solution.
That is why it is essential that people use the terms in the way that they legally apply.
If you disagree with the UN’s definition of ‘child soldier’ – that is a very valid point and I would support you in this 100%. I am not too keen on it myself.
But, that is a different debate altogether: one about lobbying the UN to change its definition of ‘child soldier’ – and NOT a debate whether or not Omar Khadr qualified as ‘child soldier’ under the currently existing, very specific definition the UN has now.
October 15, 2010 at 11:11
The US-decision to treat Omar Khadr as an adult was based on politics, not international law. The courts in Canada have affirmed again this year that Oamr Khadr’s rights were violated. Harper’s refusal to bring Omar home is also just about politics. Internationa law is on Mr. Khadr’s side.
Khadr’s lawyers have argued that the fact that their client was only 15 at the time of battle is crucial; so is the fact that he was only 17, and still a child, when he was sleep-deprived for weeks in Guantanamo Bay in order to make him more willing to talk to investigators, as recently released documents have suggested.
But military judge Col. Peter Brownback previously ruled that the defence cannot raise matters of international law in Khadr’s trial. The trial will therefore only be considering the events that occurred on the day that Khadr allegedly killed Speer.
http://www.cbc.ca/world/story/2008/07/16/f-khadr-legal-options.html#ixzz12RSKlzup
“Under international law, the USA should have taken full account of Omar Khadr’s age at the time of his arrest, and treated him according to principles of juvenile justice,” Rob Freer said.
“It utterly failed to do so, instead holding him for more than two years virtually incommunicado, subjecting him to repeated interrogations without access to a lawyer or the courts, and is now putting him through a military commission trial that would fail to meet international standards even if it were being applied to accusations against an adult.”
After eight years of ignoring its human rights obligations, the USA is now set to try Omar Khadr under procedures that fail to meet international fair trial standards”, Rob Freer continued. “History will not judge its actions kindly”.
http://www.amnesty.org/en/news-and-updates/omar-khadr-guant%C3%A1namo-military-trial-condemned-2010-08-12
In late 2003, the United States released three children (ages 13-15) detained at
Guantanamo to UNICEF to enable them to receive rehabilitation and reintegration assistance in
Afghanistan. However, the United States government has not made any such rehabilitation
assistance available to Omar Khadr, nor acknowledged his possible status as a child used in
armed conflict.
No international criminal tribunal established under the laws of war, from Nurember forward, has prosecuted a former child soldier for violating the laws of war. There is an overriding presumption in international law that any exception be expressly authorized. The
Special Court for Sierra Leone (“SCSL”) is one such exceptional case and its jurisdiction was
limited to promoting the child’s “rehabilitation, reintegration into and assumption of a
constructive role in society.” Even with these qualifications, the SCSL has made it its policy not
to prosecute any former child soldiers.
In 2000, the United States signed the Optional Protocol to the Convention on the Rights
of the Child on the Involvement of Children in Armed Conflict and ratified it in December 2002.
Click to access Khadr_ChildSoldier.pdf
By the way: Tha war in Afghanistan is a US/Nato operation.
Xanthippa says:
The war in Afghanistan is a UN operation: they asked Nato to ‘put boots on the ground’. US is there as part of NATO.
If you put as much effort into checking your facts and self-education as you put into ideological rhetoric, perhaps you might get somewhere. That, of course, presumes that you would permit a glimmer of reason in…
October 24, 2010 at 11:28
“The war in Afghanistan is a UN operation”
“If you put as much effort into checking your facts and self-education as you put into ideological rhetoric…”
….your ignorance is breathtaking.
The UN didn’t even pass a resolution on the Afghan conflict until Dec. of 2001, almost 2 months after US forces began Operation Enduring Freedom with the assistance of British forces and other NATO members who volunteered. At that point, the UN Security Council authorized the creation of ISAF which was to assist the Afghan Interim Authority to maintain security, but remained separate from US-led military operations in Afghanistan.
The UN was created and still functions to promote and maintain peace in the world, not help wage war. The UN Charter, which the US ratified, states that all member states are to resolve their differences through peaceful means and that members shall not use military force except in self-defense. Ergo, the UN security council, nor the UN, ever authorized the US-led invasion of Afghanistan.
When NATO assumed control of ISAF in 2003, it was largely to give some sort of international legitimacy to the conflict and to convince tacit observers like yourself that the UN supports the war in Afghanistan, which it does not, nor any other war in the world….that’s not what the UN does.
Perhaps it is you who should check your facts?
Xan says:
Fact: US led the international forces invasion of Iraq, not Afghanistan
Fact: the UN gave NATO the task of going into Afghanistan
Fact: the UN does NOT function, or the whole Iraq mess would never have happened. Passing resolutions without any intent or ability to enforce them makes things worse, not better
Fact: the world would be a much better AND safer place WITHOUT the UN
Fact: Canada would be better off if it resigned from the UN – the sooner, the better
October 29, 2010 at 13:13
If the rights of the Geneva Convention are not applicable to irregular soldiers, that cuts both ways. If you wish coalition irregulars (CIA, FBI, informants, diplomats, etc.) to be treated humanely then treat the other side so as well.
Your arguement that Omar (along with the others at camp x-ray) can be treated inhumanely because he was not in uniform is zero sum and ends with torture on all sides (and there are sides, whether wearing uniforms or not).
Xanthippa says:
But, I do think it OUGHT TO cut both ways!
The Geneva convention is written specifically so that spies and combatants who hide among the population are completely stripped of any rights and protections – and that is a good thing! It is meant to discourage this behaviour!
Any humane treatment these people receive is therefore a privilege, not a right.
Yes, of course, CIA operatives would ALSO fall into this category – and I fully agree that they SHOULD! Their presence among the general populace endangers ‘regular people’ – they have to pay the price for this. And, to be fair, most spies fully know this and expect nothing less and nothing more. That is how it ought to be.
As for collaborators – that is a different category altogether, as they are not combatants.
Diplomats – come on! There are specific international laws that govern the treatment of diplomats. Tossing that in here is a bit disingenuous!
Now, I am not stating that ANY ‘detainees’ ‘ought to’ be treated inhumanely.
What I AM saying is that there are two specific rules to be applied here.
One is to ‘non-military combatants’ – people who took up arms and hid among the populace. These do NOT have ANY rights under the Geneva Convention, specifically in order to discourage this type of behaviour which endangers the populace. Being treated humanely is a privilege, not a right.
The other is a set of rules regarding ‘non-combatant, but hostile civilians’. The Geneva Convention provides for the treatment of civilian populations which are not militarized, but are actively hostile to the troops in the area. This population, according to the Geneva Convention, can be ‘detained’. In detention, these people must be fed, provided medical care, etc. – but they may be moved out of the area of engagement and held in detention until after the war is over. Not nice, but true.
But, the best thing would be for you to read the Geneva Convention – it is available online. That is the best way to learn all the rules which govern the various situations.
And, you will remove the fear that I (or others) are somehow attempting to manipulate the information…. I have no desire to do that – but it angers me when people have misconceptions about what the Geneva Convention is and what it says and then get belligerent when their misconceptions are not lived up to….
I am also not saying that I think anyone SHOULD be treated inhumanely. Not in the least. ‘SHOULD’ is not the same as ‘HAVE TO’.
What I AM saying is that under the rules set out by the Geneva Convention, these people (like Omar Khadr) DO NOT HAVE TO be treated humanely. That is, that there are no international laws or rules which would compel the US to treat these combatants humanely.
To argue (as many people have) that ‘under the Geneva Convention, these people’s rights have been broken’ is patently incorrect. It is at best an ignorance of the rules – or an intentional lie and manipulation. Either way, that claim is false and ought to be revealed as such.
That is what I am saying.
I think that if we treat others nicely, even if we do not have to, it is a reflection of our nature.
It would be nice if our nature were good.
But that is different, very different, from saying humane treatment is Khadr’s ‘right’. It is not his ‘right’ – he gave that ‘right’ up when he murdered a medic in cold blood. Yes, I do think he should be treated humanely – but that is a privilege, not a right, for him, under the rules of the Geneva Convention.
When we confuse ‘privileges’ and ‘rights’, we devalue both!
November 1, 2010 at 19:51
Oh dear. This analysis gets a failing grade. Best remove this blog item, take courses in international human rights and international humanitarian law, and then rewrite the article completely.
January 10, 2011 at 23:13
Your UN defenition of a child soldier is wrong so your points on him not being one are compleatly incorrect, a child soldier is defined by the UN to be “A child soldier is any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.”
And by that definition he is clearly and ireafutably a child soldier. do some fucking research before you spread your redneck Conservative shit all over the place!
March 6, 2011 at 03:24
Bruce
According to the Chairperson of the Committee on the Rights of the Child, Ms. Yanghee Lee*, Somalia and the United States have yet to ratify the Convention on the Rights of the Child. The two are the only countries that have not ratified the 1989 Convention that sets out economic, social, cultural, civil and political rights as well as special protection measures for all persons under the age of 18 years.
That was announced in October, 2010. The US drafted it, but did not ratify it.
July 17, 2012 at 08:47
[…] A similar exploration of this issue. […]
April 20, 2016 at 02:57
Yay! Congrats to Omar and his dear fiance – and welcome to Canada, my brother from another cultural mother! Have some maple syrup, some beavertails, some poutine and some Tim Horton’s and celebrate your special day with your bride-to-be. Let the naysayers neigh, you’ve got your pie in the sky after the pit in the shhhh! Don’t let the bastards hear you laughin’!
April 20, 2016 at 10:09
Yes, congratulations to Omar Khadr on his engagement. There is hope for all people who want Canada to be a real democracy with equal rights for all citizens. And an end to the apartheid policies towards First Nations, may I ad.
August 24, 2017 at 19:31
Very interesting commentary. But in every case it boils down to the big boy on the block syndrome. The Americans are the big boys therefor they may use, change, manipulate or simply make up new rules altogether as long as it doesn’t apply to them in any way that would in their eyes seem unjust, unfair, unethical and immoral towards themselves. The fact is that as a soldier when you go into combat you take certain risks. And you are fully aware and accept those risks. It doesn’t mean that he or she likes the risks as it all seems really cool in the movies before one dives into combat. The immediate family members that don’t accept the fact that their husband or wife may die in combat is entirely unrealistic and shockingly stupid! I am saying as a retired soldier myself. Not as an armchair athlete as I suspect many of you are. Yes the boy was a child soldier. By invading Afghanistan the Americans fought the Taliban army. And by the way….partly trained by non-other than the American government who once got their fingers whacked years later after sticking their noses again in foreign affairs. All in the name of defending the american way. In which, by the way, the rest of the world has no real understanding as to what that is! Now isn’t great that they now have Donald Trump as their president? Lets be clear here. You the people, american educated and all, have put him there and you keep him there. So forget Khadr, pop your pants back open, just turn the tube back on, go back to your armchair and video games, eating your heart stopping delicious super sized American cuisine, and keep your proud double chins up and keep spending your time trying to figure who the next person or country that might be screwing you poor innocent people over.
So cheers to you all.
August 24, 2017 at 19:59
Seems to me that the ‘big kid on the block’ is Islam, not the USA – and it’s doing a great amount of damage to our Western Civilization.
‘Child Soldier’ is a legal term, not a descriptive. Not every child who happens to be a soldier fits the legal definition of ‘child soldier’. Omar Khadr clearly fails ti fit the legal definition of ‘Child Soldier’.
This is not a matter of opinion, it is a matter of legal description.
Also, I am not an American. Please, do not assume my nationality or race or genders or anything else…
Nor am I a fan of most of US foreign policy – and don’t even get me started on the criminal Clinton-Bush Cabal…
But this is a matter of legal definitions not of fee-fees and safe-spaces.