Trial without rule of law?

As Omar Khadr's pre-trial hearings wear on, it's becoming increasingly obvious that law and conventional rules of war take a back seat to the U.S.'s do-as-we-please policy - and it’s met by only silence from the international community. 



Khadr, a Canadian citizen, is the 23-year old Guantanamo inmate who was taken into custody when he was 15 for allegedly killing a U.S. Special Forces medic in Afghanistan with a grenade. Khadr will be tried this summer under a military court, a relatively new and flawed system.

How new? Robert Gates signed off on the revised Manual for Military Commissions, which details the rules and procedures of a military trial, on Tuesday night. The manual was given to prosecution and defense lawyers hours before the hearings began, and the judge reportedly received it 15 minutes prior to the start of the hearing. [http://www.aclu.org/blog/human-rights-national-security/making-it-we-go-along]

But that’s just only one of the most incredible parts of this entire case. From his custody in 2002 to the current hearings, Khadr’s case has been fraught with instances of U.S. bending international rules of war and punishment in order to accommodate its own agenda.

In 2002, the U.S. ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, under which the UN Committee on the Rights of the Child told the U.S. to:

“Conduct investigations of accusations against detained children in a prompt and impartial manner, in accordance with minimum fair trial standards. The conduct of criminal proceedings against children within the military justice system should be avoided.”

The U.S. didn’t react to the recommendation. Khadr has been in custody since 2002, and despite efforts by his lawyers to dismiss charges against him, or at least grant him a civilian trial, he is looking at a military trial with prosecution aiming for a 25-40 year sentence.

But Guantanamo Bay Prison is enough of a slap in the face of international law. Article 3 of the Geneva Conventions prohibits torture of prisoners of war while they are in custody, but the base has become notorious for acts of torture against inmates. Khadr alleges that any statement he gave to interrogators was taken under similar circumstances in which he was sleep-deprived and received threats of rape. Khadr's interrogator, FBI Special Agent Robert Fuller, isn't denying that he heard rumors about torture in Guantanamo Bay in 2002.

Fast forward through the years of keeping a juvenile in a detention center that tortures inmates, to the military hearings this week. David Frakt, Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps argued yesterday in Huffington Post that the revised manual for Military Commissions allows the government to broaden the scope of what is considered a war crime and who is considered an unlawful enemy combatant:

"Unfortunately, in enacting the Military Commissions Act of 2009, Congress did not strictly limit the jurisdiction of the military commissions to law of war violations and included non-war crimes like "Providing Material Support to Terrorism," a crime which even the Justice Department was forced to admit was not a traditional law of war offense. The Secretary of Defense, in publishing the new Manual for Military Commissions, has done Congress one better, attempting by regulation to broaden the scope of a real war crime to include conduct that does not violate the law of war in order to ensure convictions where they would otherwise be doubtful."

The U.S. doesn’t make it a secret of not always adhering to international norms of law. Under the section of Murder in Violation of the Law of War, the Manual claims: "an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war."

It should be clear by now that the U.S. will continue to follow its own standards of engagement in war and law. But why has the rest of the world decided that this is acceptable? Why hasn't the Canadian government stepped in to protect one of its citizens, especially one who was arrested when he was 15? After the U.S.’s decision to invade Iraq, despite UN’s opinion, and after 8 years of Guantanamo, the U.S. should not set the precedent of acceptable law for rules of engagement and prisoners of war. But for whatever reason, the international community has given the U.S. a moral green card, when it clearly doesn’t deserve one.