GUANTANAMO BAY NAVY BASE, Cuba—In July 2002, Omar Khadr was dispatched by his now deceased father to a compound in Afghanistan with other radical Islamists. He was 15 years old.
Monday, at age 20, Khadr will be arraigned before a U.S. military commission on charges that as an alleged al-Qaida guerrilla he murdered a U.S. Special Forces medic when he threw a grenade during a firefight at that Afghanistan compound.
The charge is the most serious to come before U.S. military authorities so far at the Guantanamo prison for suspected terrorists. It is also among the most disputed.
International law and human rights experts argue that as a 15-year-old, Khadr should have been considered a child-soldier when he was captured. They say that no person so young has ever been prosecuted for war crimes.
Moreover, Khadr, who grew to adulthood behind the barbed wire at Camp Delta, is defying the new war-court system.
Declaring his distrust of the free-of-charge Pentagon lawyers, he fired his entire American defense team, including some American University law professors who were developing the "child soldier" defense.
Instead, the Toronto-born Khadr wants the judge, Army Col. Peter Brownback, to let his Canadian family lawyers defend him.
"He will be not just the first child-soldier tried for war crimes in the United States, but in the world," said Brookings Institution scholar Peter Singer, author of "Children at War."
The Pentagon's chief prosecutor, Air Force Col. Morris Davis, says he's unconcerned about the precedent that might be set. He said the Bush administration took Khadr's age into account by choosing not to seek his execution if convicted.
Davis said 15 isn't too young to face prosecution. He noted that both Canada and the United States have young adults who murdered at age 15 serving life sentences and that the International Convention on the Rights of the Child makes it a war crime to conscript a child "under the age of 15."
More recently, the United Nations-sponsored Special Court for Sierra Leone made 15 the threshold age for a prosecution.
"It's not like we're blazing a new trail here, holding a 15-year-old accountable for an alleged murder," Davis said by telephone from the Pentagon.
But, some experts counter, the United States didn't choose to charge Khadr in a U.S. or Canadian criminal court—or even through some sort of legal system still evolving in faraway Afghanistan, where the firefight occurred.
Moreover, they note, a blood-drenched Sierra Leone, overwhelmed with gangs of children with guns, did create a "special kind of category" for 15- to 18-year-old soldiers at its U.N.-sponsored war court.
The Sierra Leone court included "a special stipulation in the statute, that indicated 15-18 should be treated with dignity and a sense of worth taking account their age and promoting rehabilitation and could serve a constructive role in society," says Stanford law professor Allen S. Weiner, a former State Department career lawyer.
Weiner said in the end Sierra Leone sent its children not to a war-crimes court but to a special Truth and Reconciliation Commission.
When it comes to Khadr, he said, the United States is choosing to set a precedent by prosecuting a 15-year-old not through established courts but in what he called "the law-free-zone status of Guantanamo."
Added Brookings' Singer, "If we were in U.S. criminal courts there would be a specific process for deciding whether someone should go through a juvenile process or be tried as an adult."
Moreover, Singer asks, what is the goal of the prosecution? To signal U.S. deterrence or vengeance, in a bid to state out new justice in extrajudicial territory in the still evolving war court system?
"Or is the message that we turn the young man into a martyr and he becomes a hero in jihad land?" he asks.
The United States alleges that, nine months into the U.S. invasion of Afghanistan that toppled the Taliban, Khadr was at an al-Qaida lair when a unit of U.S. Special Forces approached and a firefight ensued. A medic, Sgt. First Class Christopher Speer, 28, was wounded in the battle and subsequently died.
Khadr, they say, threw the grenade that wounded Speer. Khadr was himself shot by U.S. forces, then treated by the unit's other medic.
The U.S. charges against Khadr, the scion of a family with long ties to al-Qaida and Osama bin Laden, also include training with al-Qaida after the Sept. 11 attacks and planting roadside bombs to shred U.S. soldiers on passing patrol.
Khadr's treatment as one of the youngest prisoners at Guantanamo has long been a legal issue.
In December 2004, his law professor-lawyers filed a formal complaint with the U.S. military alleging that he'd been abused at the prison. In their complaint, they alleged that guards at the camp had used Khadr as a human mop after he'd urinated on himself while shackled during a prolonged interrogation. The guards doused him in disinfectant and dragged him across the floor, wiping up the mess with his jumpsuit.
They returned him to his cell, still soiled, and did not give him a shower for two more days, according to the account.
The military said the complaint was investigated, but on Sunday, a Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, declined to discuss the investigation's result, saying it was likely to come up at trial.
Human Rights Watch urged the Bush administration to move Khadr's case to civilian U.S. courts and let traditional justice address the challenges.
"This is hardly somebody that you look at and think, `This is the worst of the worst,'" said Jennifer Daskal, an observer of the tribunals. "Here we have a kid starting at the age of 10 who was dragged by his father to meet members of al-Qaida, sent to a military training camp at age 15 and from there set out to be fired at on the battlefield."
"If the United States is going to hold him accountable for alleged crimes, it needs to do so in a way that reflects his unique vulnerabilities and his unique capacity to be rehabilitated and his relative culpability as a child," she said.
(Rosenberg reports for The Miami Herald)
(c) 2007, McClatchy-Tribune Information Services.