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No dice

The MPCC isn’t in session today, which means that we at the BCCLA national security blog can turn our attention to other matters in our portfolio.

Earlier this week, Lt.-Col. Chris Jenks (USA), Chief of the International Law Branch of the Office of the Judge Advocate General, wrote an op-ed setting out why he thinks Omar Khadr’s age at the time of his alleged offences should not be a bar to his prosecution.

To briefly recap:  Omar Khadr, a Canadian citizen, is alleged to have thrown a grenade which killed a U.S. soldier during a 2002 firefight in Afghanistan.  At the time of his capture, Mr. Khadr was 15 years old.  He has been detained at the U.S. Naval Base in Guantanamo Bay since 2003, where he is scheduled to stand trial by military commission this summer.  He is being charged with, among other things, war crimes and murder.

Lt.-Col. Jenks invokes a number of authorities to make his point.

He points out that the Fourth Geneva Convention contemplates detention of children.  Fair enough (though it’s interesting to note that the U.S. government is quick to invoke the Geneva Conventions in support of its conduct, despite claiming for years during the Bush administration that the GCs don’t apply to the so-called “war on terror”).

He also points out that the Convention on the Rights of the Child permits prosecution and punishment of children for criminal offences.  (Also interesting to note that the United States is only one of two countries in the world — the other one being Somalia — that has refused to ratify the Convention,  but is also content to rely on its authoritative value.)  And he points to several other international authorities supporting the notion that children can be held liable for criminal offences.

All fair enough.  But the critical point that is missing in Lt-Col. Jenks’s analysis — and one that he glosses over in his piece — is that Mr. Khadr isn’t simply being charged with “ordinary” offences:  he’s being charged with inchoate offences relating to the commission of war crimes.

Since the establishment of the GCs, norms concerning the treatment of child soldiers have evolved, such that juvenile combatants are considered victims of armed conflict in their own right.  Importantly, as we and others have stated before, no child soldier has ever stood trial for war crimes since Nuremberg.  While we may continue to prosecute children for more “ordinary” offences (something to be discussed in another post, perhaps), there is effectively an international consensus that children cannot have the mens rea — the “guilty mind” — to commit war crimes.

This idea was certainly in the mind of the Chief Prosecutor in the U.N.-backed international criminal tribunal set up to prosecute war crimes and other offences committed during the civil war in Sierra Leone, where the use of child soldiers in wartime atrocity was prevalent.  From a February 2010 piece in the Washington Post:

“I could have prosecuted anyone under the age of 18 for war crimes and crimes against humanity, but I chose not to,” said David M. Crane, the former chief prosecutor for the Sierra Leone court and a law professor at Syracuse University. “I didn’t think any person under that age had the requisite mens rea, the evil-thinking mind, to commit a war crime. It’s a rare thing, almost unheard of, that we prosecute children.”

Likewise, Radhika Coomaraswamy, the U.N. special representative for children and armed conflict, has stated that the U.N.’s position is that children should not be prosecuted for war crimes.

So close, but no dice.  There is no justification in law or norm for prosecuting a juvenile combatant for war crimes, and Lt.-Col. Jenks’s analysis doesn’t quite make the case for  doing so.