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The Abuse of Ambiguity: The Uncertain Status of Omar Khadr under International Law

Published online by Cambridge University Press:  09 March 2016

Ryan Liss
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Summary

This article addresses the unresolved question of the international legal status, and resulting rights, of Omar Khadr — a Canadian national detained by the United States on the battlefield in Afghanistan at the age of fifteen and subsequently incarcerated at Guantanamo Bay. The article focuses primarily on Khadr’s potential status as an “unlawful combatant” and as a child soldier. Acknowledging that there has been a great deal of scholarly debate surrounding these issues, it provides an overview of this debate through the lens of Khadr’s particular case. As the author observes, international law surrounding each aspect of Khadr’s status is far from clear. However, even accepting the existence of controversy and ambiguity surrounding Khadr’s status, the author argues that the United States and Canada have, seemingly, sought to exploit this ambiguity in order to justify disregard for his rights. The article concludes by observing that this approach is, in itself, contrary to the foundational principles of international humanitarian law.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 50 , 2013 , pp. 95 - 161
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2013

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References

1 Those held at Guantanamo Bay were originally detained in a multitude of settings, including international armed conflict, non-international armed conflict, and what resembles transnational criminal law enforcement. While each category of detainees is entitled to unique treatment under law, the United States initially adopted a homogeneous approach.

2 Memorandum from Major General Geoffrey D Miller, Department of Defense (DoD) to Commander, United States Southern Command (24 January 2004), “Recommendation to Retain under DoD Control for Guantanamo Detainee, Omar Ahmed Khadr, ISN: US9CA-00766DP,” in Williamson, Janice, ed, Omar Khadr: Oh Canada (Montreal and Kingston: McGill-Queen’s University Press, 2012) 152 at 152 Google Scholar [“DoD Retention Memo”].

3 Sheppard, Michelle, Guantanamo’s Child (Mississauga, ON: John Wiley and Sons Canada, 2008) at iix, 31.Google Scholar

4 Janice Williamson, “Introduction: The Story So Far,” in Williamson, supra note 2, 3 at 17.

5 Ibid at 16.

6 Ibid at 17.

7 Ibid at 16.

8 Ibid at 16-17.

9 Ibid at 17.

10 Ibid at 18.

11 Tietz, Jeff, “The Unending Torture of Omar Khadr,” Rolling Stone (24 August 2006) 60 at 62.Google Scholar

12 Sheppard, supra note 3 at 79.

13 Williamson, supra note 4 at 18, citing Paul Koring, “U.S. Must ‘Certify’ Canada before Khadr Can Return,” Globe and Mail (21 November 2011), online: Globe and Mail <http://www.theglobeandmail.com/news/world/americas/us-must-certify-canada-before-khadr-can-return/article2244046/>.

14 Sheppard, supra note 3 at 81-82.

15 “DoD Retention Memo,” supra note 2 at 152.

16 Williamson, supra note 4 at 18, citing Koring, supra note 13.

17 Williamson, supra note 4 at 9.

18 Tietz, supra note 11 at 60; Sheppard, supra note 3 at 12-13.

19 Tietz, supra note 11 at 60.

20 Williamson, supra note 4 at 9.

21 Ibid at 11; Sheppard, supra note 3 at 15.

22 United States of America v Omar Khadr (Military Commission Guantánamo Bay, Cuba), Filing Designation PE012 (13 October 2010) (Stipulation of Fact), online: US Military Commissions <http://www.mc.mil/CASES/MilitaryCommissions.aspx>; also available online: CBC <http://http://www.cbc.ca/newsblogs/politics/inside-politics-blog/2010/10/stipulation-of-facts-in-khadr-case.html>. This article does not assess factual claims, although it is noted that this particular claim has been contradicted by military sources themselves and has been questioned elsewhere. See Williamson, supra note 4 at 11-12.

23 Sheppard, supra note 3 at 89-97.

24 Ibid at 97. See also Affidavit of Omar Ahmed Khadr (30 July 2008), in Williamson, supra note 2, 154 at 154-62; Audrey Macklin, “Rule of Law, Force of Law, and the Rule of Force,” in Williamson, supra note 2, 222 at 233-40 (describing the motion to exclude evidence extracted through torture).

25 United States of America v Omar Khadr (Military Commission Guantánamo Bay, Cuba), Filing Designation AE341 (13 October 2010) (Offer for Pre-Trial Agreement), in Williamson, supra note 2, 247 at 247 [Plea Agreement].

26 See “Re: Notification of the Swearing of Charges,” Memorandum from DoD, Office of the Chief Prosecutor, Office of Military Commission to Detainee Omar Ahmed Khadr 0766 (2 February 2007), online: DoD <http://www.defense.gov/news/d2007Khadr%20-20%-Notification%20of%20Sworn%20Charges.pdf> [Sworn Charges] DoD, Referred Charges in the Case of United States of America v Omar Ahmed Khadr (24 April 2007), online: <http://www.defense.gov/news/Apr2007/Khadrreferral.pdf> [Referred Charges], as amended by United States of America v Omar Khadr (Military Commission Guantánamo Bay, Cuba), Filing Designation AE290-C (3 August 2010) (Ruling on Government Motion for Appropriate Relief to Amend the Charges and Specifications P-028), online: DoD <http://www.defense.gov/news/AE%20290-C%20-AE%20290-%20Ruling%20P-028%20Motion%20to%20Amend%20Charges.pdf>.

27 Anna Mehler Paperny, “Khadr “Relieved” as Return to Canada Puts His Fate in Prison System’s Hands,” Globe and Mail (29 September 2012), online: <http://www.theglobeandmail.com/news/national/khadr-relieved-as-return-to-canada-puts-his-fate-in-prison-systems-hands/article4576945/>.

28 See Oona Hathaway et al, “The Power to Detain: Detention of Terrorism Suspects after 9/11” (2013) 38 YaleJ Int’l L 123 (discussing the alternative legal frameworks that could govern detentions related to American extraterritorial anti-terrorism measures). Tied to this important question is the emerging debate concerning the extension of international humanitarian law to “transnational armed conflict” or armed conflict concerning non-state transnational groups. See, for example, Hoffman, T, “Squaring the Circle? International Humanitarian Law and Transnational Armed Conflict” in Matheson, Michael J and Momtaz, Djamchid, eds, Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts (The Hague: Martinus Nijhoff, 2010) 217 Google Scholar; Marco Sassòli, Transnational Armed Groups and International Humanitarian Law, Harvard Program on Humanitarian Policy and Conflict Research Occasional Paper No. 6 (2006), online: HPCR <http://www.hpcrresearch.org/sites/default/files/publications/ OccasionalPaper6.pdf>. Without delving deeply into this debate, this article accepts that transnational groups can be engaged in (and governed by the rules of) armed conflict when active on territory where other parties (that is, Taliban forces and Coalition forces) are engaged in armed conflict strictly defined: “[I]t must be underlined that the members of [a transnational] group may be bound and protected by IHL even if their group does not fulfill the criteria of a party to a conflict, but an armed conflict nevertheless exists between other parties on the territory on which the members of the group are found” (at 11-12). This does not suggest, however, that the actions of the transnational group are always governed by IHL: “If IHL of international armed conflicts applies somewhere to a transnational armed group ... it does not ensue that it applies to that group everywhere” (at 5).

29 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 [Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 [Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 [Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 [Geneva Convention IV] [collectively referred to as the Geneva Conventions].

30 International Committee of the Red Cross (ICRC), Parties to Main IHL and Other Related Treaties, online: ICRC <http://www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf> [Parties to IHL Treaties].

31 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 [Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609 [Protocol II] [collectively referred to as the Additional Protocols].

32 It is worth noting, however, that the US Secretary of State, on 7 March 2011, announced the US administration’s intention to seek ratification of the Additional Protocols “as soon as practicable.” US Secretary of State, Reaffirming America’s Commitment to Humane Treatment of Detainees, Press Statement PRN: 2011/343 (7 March 2011), online: US Department of State <http://www.state.gov/secretary/rm/2011/03/157827.htm> [Clinton Statement on Protocols].

33 See, for example, ICRC, Study on Customary International Humanitarian Law, online: <http://www.icrc.org/customary-ihl> [ICRC Study]. See also Barber, Rebecca J, “The Proportionality Equation: Balancing Military Objectives with Civilian Lives in the Armed Conflict in Afghanistan” (2010) 15(3) J Confl & Sec L 467 at 474 Google Scholar (asserting that most provisions of Protocol I represent customary international law).

34 Targeting is not directly addressed in this article.

35 Geneva Conventions, supra note 29, Articles 2-3. The concept of non-international armed conflict is to be interpreted broadly to include “protracted armed violence” between government forces and an organized armed group or between two such groups. ICRC, How Is the Term ‘Armed Conflict’ Defined in International Humanitarian Law? ICRC Opinion Paper (2008) at 3-4, online: ICRC <http://www.icrc.org/eng/resources/documents/article/other/armed-conflict-article-170308.htm>.

36 Pictet, Jean S, ed, Commentary to the Geneva Conventions of 12 August 1949, volume 1 (Geneva, Switzerland: ICRC, 1952) at 50 Google Scholar [Commentary to Geneva Convention]; Garraway, Charles, “Afghanistan and the Nature of Conflict,” in Schmitt, Michael N, ed, The War in Afghanistan: A Legal Analysis (Newport, RI: US Naval War College, 2009) 157 at 164 Google Scholar. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits), [1986] ICJ Rep 14 at para 218.

37 Protocol I, supra note 31, Article 1.

38 Protocol II, supra note 31, Article 1(1).

39 Garraway, supra note 36 at 160.

40 Ibid at 160-61.

41 Letter from John Negroponte, Representative of the United States of America to the United Nations, to the President of the Security Council (7 October 2001), online: Yale Avalon Project <http://avalon.law.yale.edu/sept11/un_006.asp>. This article does not consider the legality of the invasion. International humanitarian law (IHL) is applicable to conflict whether or not the initial resort to force was legal. See, for example, Protocol I, supra note 31, Preamble; Jasmine Moussa, “Can Jus ad Bellum Override Jus in Bello? Reaffirming the Separation of the Two Bodies of Law” (2008) 90 Int’l Rev Red Cross 963. As the UN Security Council did not respond to Negroponte’s letter asserting that the action was taken in self-defence, some have suggested that the operation was never sanctioned by the United Nations. See, for example, John Quigley, “The Afghanistan War and Self-Defense” (2003) 37 Val U L Rev 541 at 549, 553. Notably, however, the preamble to Security Council Resolution 1373, issued in the wake of the 11 September 2001 attacks, reaffirmed the inherent right of self-defence. SC Res 1373, UN SCOR, 56th Sess, 4385th Mtg, UN Doc S/RES/1373 (2001).

42 Human Rights Watch (HRW), “’Enduring Freedom,’ Abuses by US Forces in Afghanistan” (March 2004) 16:3(¾ Human Rights Watch Report 1 at 8; Garraway, supra note 36 at 160-61; Barber, supra note 33 at 469.

43 HRW, supra note 42.

44 Ibid.

45 Lang, Eugene and Stein, Janice Gross, The Unexpected War: Canada in Kandahar (Toronto: Viking Canada, 2007) at 11, 18–19.Google Scholar

46 Bonn Agreement, SC Res 1386, UN SCOR, 56th Sess, 4443d Mtg, UN Doc S/ RES/1386 (2001); Bonn Agreement, in Letter dated 2001/12/05 from the Secretary-General Addressed to the President of the Security Council, UN Doc S/2001/1154 (2001) (setting out the interim administration agreement and the structure of the ISAF) [Bonn Agreement].

47 Bonn Agreement, supra note 46.

48 HRW, supra note 42 at 47.

49 North Atlantic Treaty Organization (NATO), “Ministerial Meeting of the North Atlantic Council Held in Madrid on 3 June 2003,” Final Communiqué no (2003) 059 (3 June 2003), online: NATO <http://www.nato.int/docu/pr/2003/p03-059e.htm>; NATO, History of International Security Assistance Force Afghanistan, online: NATO <http://www.isaf.nato.int/history.html>; Lang and Stein, supra note 45 at 95-100.

50 NATO, “NATO-ISAF Expands to Southern Afghanistan,” Press Release no (2006) 096 (31 July 2006), online: NATO <http://www.nato.int/cps/en/natolive/news_22206.htm>; Peace Operations Monitor, “Afghanistan Peace Operations,” online: Peace Operations Monitor <http://pom.peacebuild.ca/Afghanistan PeaceOperation.shtml>; NATO, History, supra note 49; NATO Allied Command Operations, Anti-Terrorism Operations, online: NATO <http://www.aco.nato.int/page142123533.aspx>.

51 “Re: Humane Treatment of al Qaeda and Taliban Detainees,” Memorandum from George W Bush to Vice President et al (7 February 2002), reprinted in Greenberg, Karen J and Dratel, Joshua, eds, The Torture Papers: The Road to Abu Ghraib (Cambridge: Cambridge University Press, 2005) 134 at 134 CrossRefGoogle Scholar [emphasis added] [Bush Memorandum].

52 See Sworn Charges, supra note 26; Referred Charges, supra note 26.

53 At one extreme, see Yutaka Arai-Takahashi, “Disentangling Legal Quagmires: The Legal Characterisation of the Armed Conflicts in Afghanistan since 6/7 October 2001 and the Question of Prisoner of War Status” (2002) 5 YB Int’l Human L 61 at 64 (arguing that there have been five distinct conflicts in Afghanistan since October 2001).

54 See, for example, Letter from Philip Spoerri, Legal Adviser, ICRC, to Clerk of UK Committee on International Development (20 December 2002), reprinted in United Kingdom, HC International Development Committee, “International Development: First Report,” Sessional Papers Cm 2002-03, Appendix 8, online: UK Parliament <http://www.publications.parliament.uk/pa/cm200203/cmselect/cmintdev/84/84ap09.htm> [ICRC Letter].

55 See, for example, Robert K Goldman and Brian D Tittemore, “Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights under International Humanitarian and Human Rights Law,” American Society of International Law (ASIL) Task Force on Terrorism Paper (2002) at 23-25, online: ASIL <http://www.asil.org/taskforce/goldman.pdf>.

56 See, for example, Goldman and Tittemore, supra note 55; see also Office of the Press Secretary, Statement by the Press Secretary on the Geneva Convention (7 February 2002), online: US Department of State <http://www.state.gov/s/l/38727.htm> [White House Statement]. It is necessary to observe that effective control over territory, while significant, is not the sole prerequisite for the establishment of an entity as a state’s government. See, for example, Oona A Hathaway et al, “Consent-Based Humanitarian Intervention: Giving Sovereign Responsibility Back to the Sovereign” (2013) Cornell Int’l LJ at 43-45. However, a full discussion of standards concerning government recognition is beyond the scope of this article.

57 Goldman and Tittemore, supra note 55 at 23-24; ICRC Letter, supra note 54. But see Hoffman, supra note 28 (questioning the proposition that an armed conflict can be internationalized through foreign intervention).

58 See, for example, Arai-Takahashi, supra note 53 at 66. See also Goldman and Tittemore, supra note 55 at 29-30 (suggesting that, while some members of al Qaeda fought alongside the Taliban, those who did not would need to qualify independently for POW status under Geneva Convention III, supra note 29). By suggesting that Geneva Convention III applies, the authors imply that even these independent fighters are involved in an international armed conflict. But Arai-Takahashi notes arguments against subsuming the conflict in this manner (at 99).

59 Geneva Convention III, supra note 29, Article 4(2)(a); see Goldman and Tittemore, supra note 55 at 29-30.

60 ICRC Letter, supra note 54.

61 Ibid; HRW, supra note 42 at 47.

62 See, for example, Arai-Takahashi, supra note 53 at 70; Goldman and Tittemore, supra note 55 at 23-24, n 82; HRW, supra note 42 at 47.

63 However, as the allegations against Khadr span the period from 1 June 2002 to the date of his capture (see Referred Charges, supra note 26), an argument could be made that the conflict was international in nature at the time of some of his alleged offences.

64 See, for example, Barber, supra note 33 at 473-74.

65 Ibid at 474; see also Arai-Takahashi, supra note 53 at 70.

66 However, see note 63 in this article.

67 See, for example, Hamdan v Rumsfeld, 548 US 557 at 628-30 (2006) [Hamdan]; see also White House Statement, supra note 56; “Re: Application of Treaties and Laws to al Qaeda and Taliban,” Memorandum from John Yoo and Robert Delahunty to William J Haynes, General Counsel, DoD (9 January 2002), reprinted in Greenberg and Dratel, supra note 51 at 38.

68 Hamdan, supra note 67.

69 Ibid at 628-30.

70 Ibid.

71 Ibid at 629-30. This perspective had been endorsed in the decision below. See Hamdan v Rumsfeld, 415 F 3d 33 at 41(DC Cir 2005).

72 Hamdan, supra note 67 at 630-31, citing Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by Burns, JH and Hart, HLA (London: Athlone Press, 1970) at 6 and 296 Google Scholar; Pilloud, Claude et al, eds, Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949 (The Hague: Martinus Nijhoff, 1987) at para 1351 [Commentary on the Additional Protocols].Google Scholar

73 Hamdan, supra note 67 at 630-31.

74 Ibid at 628-30.

75 ICRC, supra note 35 at 1. Geoffrey Corn, however, has suggested that the Hamdan decision is better understood as representing an emerging, nuanced assessment of the character of armed conflict that distinguishes between the application of specific treaty provisions (that is, obligations engaged by true Article 2 and Article 3 conflicts) and a general customary law obligation of humane treatment applicable to all armed conflicts. In Corn’s view, the reasoning of the Supreme Court of the United States (SCOTUS) in Hamdan, supra note 67, and of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Tadić, for example, demonstrate a flexible approach to the regulation of armed conflict, which requires at minimum an extension of humane treatment to all conflicts. Geoffrey S Corn, “Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, al Qaeda and the Limits of the Associated Militia Concept” in Schmitt, supra note 36, 181 at 184-86, citing Prosecutor v Dusko Tadić, Case IT-94-1-A (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (2 October 1995) at 126 (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber) [Tadić]. However, even if other instances of conflict between the United States and al Qaeda could be classified as “transnational armed conflicts” or fall within some other flexible category, this article takes the position that, due to its association with the broader armed conflict with the Taliban, and its extensive and ongoing nature, the engagement with al Qaeda in Afghanistan should be examined under traditional IHL. See further note 28 in this article and accompanying text.

76 Glazier, David, “Playing by the Rules: Combating al Qaeda within the Law of War” (2009) 51 Wm & Mary L Rev 957 at 960–62Google Scholar, citing, inter alia, Authorization for Use of Military Force, Pub L No 107-40, 115 Stat 224 (2001) (codified at 50 USC § 1541 (Supp III 2003)); Hamdi vRumsfeld, 542 US 507 at 518-21 (2004) [Hamdi]; North Atlantic Treaty Organization (NATO), “NATO’s Position on 9/11 Attack Against US,” Statement by Lord Robertson, Secretary General of NATO (2 October 2001), online: NATO <http://www.nato.int/docu/speech/2001/s011002a.htm> (declaring the 11 September 2001 attack an armed attack triggering a right of collective self-defence).

77 Glazier, supra note 76 at 960. However, Glazier also discusses subsequent decisions by SCOTUS — including Hamdan, supra note 67 — which make it less clear that the court necessarily considers the conflict to be governed by the law of international armed conflict. See also John Cerone, “Status of Detainees in International Armed Conflict, and Their Protection in the Course of Criminal Proceedings” (2002) ASIL Insight Paper 1 at n 1, online: ASIL <http://www.asil. org/insigh81.cfm>.

78 Dörmann, Knut, “The Legal Situation of ‘Unlawful/Unprivileged Combatants’” (2003) 85 Int’l Rev Red Cross 45 at 47 Google Scholar, citing Organization of American States (OAS), Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, Doc OR OEA/Ser.L/V/II.116 Doc.5, rev. 1 corr (22 October 2002) at para 70 [Inter-American Report].

79 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), [1996] ICJ Rep 226 at para 78 [Nuclear Weapons]; Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004) at 27.CrossRefGoogle Scholar

80 Inter-American Report, supra note 78 at para 70; Dörmann, supra note 78 at 47; ICRC, The Relevance of IHL in the Context of Terrorism, Statement (21 July 2005) online: ICRC <http://www.icrc.org/eng/resources/documents/misc/terrorism-ihl-210705.htm>. See also ICRC, Study on Customary International Humanitarian Law: Rule 3. Definition of Combatants, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule3> [ICRC Study: Combatants] (observing the same is true under customary international law).

81 This is not to deny, however, that detention might be permissible under some other source of law, such as the domestic law of the host state.

82 Dörmann, supra note 78 at 45. This is implicit throughout the Geneva Conventions, supra note 29, and stated explicitly in Protocol I, supra note 31, Article 43(2).

83 Inter-American Report, supra note 78 at para 68. Combatant’s privilege was codified as early as the Lieber Code of 1863. Lieber, Francis, Instructions for the Government of Armies of the United States in the Field (Washington, DC: Government Printing Office, 1989), Articles 56–57 Google Scholar (providing that, when under a “soldier’s oath” to a government, an individual “is a belligerent: his killing, wounding, or other warlike acts are not individual crimes”). The concept of the “privileged” or “lawful” combatant is not explicitly addressed in the Geneva Conventions or Additional Protocols. However, as scholars observe, “this immunity ... is inferentially recog-nized in Article 87 of [Geneva Convention III],” which provides that POWs may only be sentenced to penalties that members of the armed forces of the detaining state would be subject to for the same acts, and “[s]ince the detaining power would not prosecute its own soldiers for their legitimate acts of war, it cannot try [POWs] for comparable acts.” Goldman and Tittemore, supra note 56 at 3-4, referring to Geneva Convention III, supra note 29, Article 87. See also Protocol I, supra note 31, Article 43(2) (recognizing the combatant’s “right” to participate).

84 ICRC, “Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law” (2008) 90:872 ICRC Reports and Documents 991 at 1045-47.

85 Including civilians, POWs, injured combatants, as well as medical and religious personnel. See, for example, Geneva Convention I, supra note 29, Articles 3, 12-13, 50; Geneva Convention IV, supra note 29, Articles 3-4, 27, 32; Geneva Convention III, supra note 29, Articles 3-4, 13, 130; Protocol I, supra note 31, Article 43(2).

86 The choice of means and methods of warfare is not unlimited. See, for example, Hague Convention no IV of 18 October 1907, Respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat 2227 [Hague Convention IV]; and the annexed Regulations Respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat 2295 [Hague Regulations], Article 22; Protocol I, supra note 31, Article 35(1). Means and methods causing unnecessary suffering or superfluous injury are forbidden. Hague Regulations, Article 23(e); Protocol I, Article 35(2).

87 Sassòli, Marco and Olson, Laura M, “The Relationship between International Humanitarian Law and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts” (2008) 90:871 Int’l Rev Red Cross 599 at 605–6Google Scholar; Solis, Gary, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2010) at 41–42 CrossRefGoogle Scholar, 188; Glazier, David, A Court without Jurisdiction: A Critical Assessment of the Military Commission Charges against Omar Khadr, Loyola Law School Legal Studies Paper no 2010-37 (2010) at 10, online: SSRN <http://ssrn.com/ abstract=1669946>.Google Scholar

88 Solis, supra note 87 at 41-42.

89 Geneva Convention III, supra note 29, Article 13.

90 Ibid, Article 130.

91 Ibid, Article 118. In contrast, civilians interned or detained during international armed conflict must be returned as soon as the reason justifying their internment no longer exists. Geneva Convention IV, supra note 29, Article 132. See ICRC, Prisoners of War and Detainees Protected under International Humanitarian Law,” Overview (29 October 2010), online: ICRC <http://www.icrc.org/eng/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm>.

92 Geneva Convention III, supra note 29, Article 119.

93 Ibid, Articles 22-25.

94 Ibid, Articles 26-31.

95 Ibid, Articles 82-88.

96 Ibid, Article 17.

97 Geneva Conventions, supra note 29, Article 3; Protocol II, supra note 31; Commentary to the Geneva Conventions, supra note 36, volume 3 at 40; Solf, Waldemar A, “The Status of Combatants in Noninternational Armed Conflicts under Domestic Law and Transnational Practice” (1983-84) 33 Am ULR 53 at 54–55, 58–59Google Scholar. See also ICRC Study: Combatants, supra note 80 (noting the term “combatant” is “used only in the generic meaning” in non-international armed conflict and “does not imply a right to combatant status or prisoner-of-war status”).

98 Henderson, Ian, “Civilian Intelligence Agencies and the Use of Armed Drones” (2010) 13 YB Int’l Human L 133 at 150.Google Scholar

99 Solf, supra note 97 at 59. However, serious violations of IHL (including the provisions of Common Article 3) still constitute war crimes.

100 Geneva Conventions, supra note 29, Article 3.

101 Ibid.

102 Protocol II, supra note 31, Article 13.

103 Geneva Conventions, supra note 29, Article 3; Protocol II, supra note 31, Article 13(3). This limitation is also recognized under customary international law. ICRC, Study on Customary International Humanitarian Law: Rule 6: Civilians’ Loss of Protection, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_ rul_rule6>. The ICTY’s judgment in Tadić also provides an initial indication of the development of these protections under customary international law: see Tadić, supra note 75 at para 126.

104 ICRC Study: Combatants, supra note 80; see also ICRC, Study on Customary International Humanitarian Law: Rule 1: The Principle of Distinction, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule1>; see also ICRC, Study on Customary International Humanitarian Law: Rule 5: Definition of Civilians, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule5> (noting that practice is not clear as to whether members of armed opposition groups are civilians for the purpose of the distinction).

105 The definition of “direct participation in hostilities” is a matter of some dispute. See ICRC, supra note 103.

106 Goldman, Robert Kogod, “International Humanitarian Law and the Armed Conflicts in El Salvador and Nicaragua” (1987) 2 Am UJ Int’l L & Pol’y 539 at 545.Google Scholar See also ICRC, Study on Customary International Humanitarian Law: Rule 99: Deprivation of Liberty, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule99> (observing that if a state involved in non-international armed conflict “claimed for itself belligerent rights,” so called “combatants” “should benefit from the same treatment as granted to [POWs] in international armed conflicts”).

107 Lootsteen, Yair M, “The Concept of Belligerency in International Law” (2002) 166 Mil L Rev 109 at 110–12, 117-20.Google Scholar

108 Ibid at 120 (discussing the need for some formal recognition).

109 Sworn Charges, supra note 26 at para 2; US DoD, Combatant Status Review Tribunal, Review of Combatant Status Review Tribunal for Detainee ISN 766 (10 September 2004), online: US Military Commissions <http://www.mc.mil/Portals/0/pdfs/Khadr%20(AE011).pdf> [CSRT Review].

110 supra note 51; White House Statement, supra note 56.

111 Referred Charges, supra note 26.

112 Geneva Convention III, supra note 29, Article 4A(1).

113 Ibid, Article 4A(2)(a)-(d); Hague Regulations, supra note 86, Article 1; see also Maxwell, Mark David and Watts, Sean M, “‘Unlawful Enemy Combatant’: Status, Theory of Culpability, or Neither” (2007) 5 J Int Criminal Justice 19 at 20.Google Scholar

114 Commentary to the Additional Protocols, supra note 72 at paras 1685, 1672.

115 Protocol I, supra note 31, Article 43. See also Commentary to the Additional Protocols, supra note 72 at para 1681.

116 Protocol I, supra note 31, Article 44(1)-(2).

117 Ibid, Article 44(3).

118 Ibid, Article 44(4).

119 See, for example, Dinstein, supra note 79 at 46-47.

120 While lacking an explicit uniform requirement, Protocol I states it is “not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict.” Protocol I, supra note 31, Article 44(7).

121 Parties to IHL Treaties, supra note 30. But see the recent change in position by the US Department of State. Clinton Statement on Protocols, supra note 32.

122 Dinstein, supra note 79 at 47; see also Commentary to Additional Protocols, supra note 72 at para 1685.

123 Dinstein, supra note 79 at 47. In light of the recent statements by the US Department of State regarding the Additional Protocols (see Clinton Statement on Additional Protocols, supra note 32), the status of the provision may have to be reconsidered.

124 While not legally binding per se on the United States, it is nonetheless important to note the nature of the obligations that would arise under Protocol I, supra note 31, in light of Secretary Clinton’s recent statements in support of the protocols (see Clinton Statement on Protocols, supra note 32). Moreover, it is important to note that other parties to the conflict, the most relevant for our purposes being Canada, were parties to Protocol I at the time of Khadr’s capture. See Parties to IHL Treaties, supra note 30.

125 Geneva Convention III, supra note 29, Article 5.

126 Bush Memorandum, supra note 51.

127 White House Statement, supra note 56.

128 Ibid.

129 Ibid.

130 ICRC, Geneva Conventions on Prisoner of War, Statement (9 February 2002), quoted in Association of the Bar of the City of New York (Committees on International Human Rights and Committee on Military Affairs and Justice), “Report: Human Rights Standards Applicable to the United States’ Interrogation of Detainees,” in Greenberg and Dratel, supra note 52, 557 at 586. As discussed earlier, the ICRC believes the conflict has since become a non-international armed conflict. ICRC Letter, supra note 54.

131 See, for example, Goldman and Tittemore, supra note 55 at 29-30; Dinstein, supra note 79 at 49.

132 Goldman and Tittemore, supra note 55 at 30.

133 See, for example, ibid at 31-32 (discussing US practice in Vietnam and the first Gulf War).

134 US Department of the Air Force, “International Law: The Conduct of Armed Conflict and Air Operations” Air Force Procedures (1976) 110-31 at 3-3(2), cited in Goldman and Tittemore, supra note 55 at 31.

135 US Department of the Army, Field Manual 27-10: The Law of Land Warfare (1956), cited in Goldman and Tittemore, supra note 55.

136 Goldman and Tittemore, supra note 55 at 30-32.

137 Notably, in Justice Souter’s concurrence he suggested that US army regulations governing combatant status determinations — premised upon Article 5 of Geneva Convention III —preclude a categorical determination of an individual’s status. Hamdi, supra note 76 at 550. However, the majority grounded the right to review in the existence of a habeas entitlement, not in Geneva Convention III. See also the habeas motion granted for three Guantanamo Bay petitioners in Rasul v Bush, 542 US 466 (2004) (Kennedy J, concurring, noted “the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status” (at 487-88)).

138 CSRT Review, supra note 109; see also “Re: Summary of Evidence for Combatant Status Review Tribunal, Khadr, Omar Ahmed,” Memorandum from the Officer in Charge, US DoD, Combatant Status Review Tribunal to Personal Representative (31 August 2004) at 7, online: New York Times <http://projects. nytimes.com/guantanamo/detainees/766-omar-khadr/documents/5> (summarizing the evidence against Khadr).

139 United States of America v Omar Ahmed Khadr, Case CMCR 07-001 (Court of Military Commission Review 2007), online: SCOTUSblog <http://www.scotusblog.com/archives/CMCRruling9-24-07.pdf> [USA v Khadr (CMRC)].

140 Military Commissions Act of 2006, Pub L No 109-366 at para 948a, 120 Stat 2600 (2006) [MCA 2006].

141 Military Commissions Act of 2009, Pub L No 111-84 at para 948a, 123 Stat 2190 (2009) [MCA 2009].

142 United States of America v Omar Khadr (Military Commission Guantánamo Bay, Cuba) (Defence Motion for Article 5 Status Determination and Dismissal for Lack of Personal Jurisdiction (D-113)) (26 April 2010), online: DoD <http://www.defense.gov/news/Khadr_D-113.pdf>.

143 Sworn Charges, supra note 26 at para 2.

144 See, for example, Glazier, supra note 87 at 13; see also Dinstein, supra note 79 at 49.

145 As noted earlier, this article does not address the important and much examined question as to whether ongoing or past conflicts between the United States and al Qaeda in other contexts should be governed by international humanitarian law, and relatedly whether al Qaeda forces elsewhere could be characterized as affiliated forces. Rather, this article embraces the position that, in light of the particular circumstances of the conflict in Afghanistan, that engagement should be viewed as governed by IHL.

146 Goldman and Tittemore, supra note 55 at 29-30. The authors focus on the status of members of al Qaeda fighting alongside the Taliban more directly; admittedly there is no such evidence in the case of Khadr.

147 Glazier, supra note 87 at 13; see also Dinstein, supra note 79 at 49. But one scholar observes that some members of al Qaeda were observed wearing uniforms, at least in the early stages of the US invasion. Glazier, supra note 87 at 13, citing Williams, Brian Glyn, “The Al-Qaida We Don’t Know: The 055 Brigade,” World Politics Review (26 October 2008)Google Scholar, online: WPR <http://www.worldpoliticsreview.com/articles/2821/the-055-brigade>.

148 Hajjar, Lisa, “Travesty in Progress: Omar Khadr and the US Military Commissions,” Middle East Report Online (26 July 2010)Google Scholar, online: Middle East Research and Information Project <http://www.merip.org/mero/mero072610>, as cited in Glazier, supra note 87 at 11.

149 While the United States was not a party to Protocol I, other states involved at the time of Khadr’s capture were, including Canada. Afghanistan acceded to Protocol I in 2009. See Parties to IHL Treaties, supra note 30.

150 Dinstein, supra note 79 at 49.

151 Ibid.

152 Bravin, Jess, “At Guantanamo, Even ‘Easy’ Cases Have Lingered,” Wall Street Journal (18 December 2006)Google Scholar, online: Wall Street Journal <http://online.wsj.com/news/articles/SB116640769061653103>. But see Sheppard, supra note 3 at 12.

153 MCA 2006, supra note 140 at para 948a.

154 MCA 2009, supra note 141 at para 948a.

155 See, for example, The Public Committee against Torture in Israel v The Government of Israel (2006), HCJ 769/02 at para 28 (Supreme Court of Israel). ChiefJustice Barak states: “It is difficult for us to see how a third category [unlawful combatants] can be recognized in the framework of the Hague and Geneva Conventions. It does not appear to us that we were presented with data sufficient to allow us to say, at the present time, that such a third category has been recognized in customary international law.”

156 Dörmann, supra note 79 at 46.

157 Ex Parte Quirin, 317 US 1 at 31 (1942) [Quirin], stating: “Lawful combatants are subject to capture and detention as prisoners of war. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” This statement has been criticized for its inaccuracy. See Dehn, John C, “The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of ‘Murder in Violation of the Law ofWar’” (2009) 7 J Int Criminal Justice 63 at 74.CrossRefGoogle Scholar

158 Maxwell and Watts, supra note 113 at 21.

159 Dörmann, supra note 79 at 46.

160 See USA v Khadr (CMRC), supra note 139 (discussing the existence oftwo distinct legal statuses as a result of the change).

161 See MCA 2009, supra note 141 at para 948a.

162 See Baxter, Richard R, “So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas, and Saboteurs” (1951) 28 Brit YB Int’l L 323 at 343.Google Scholar

163 Dörmann, supra note 79 at 46.

164 Ibid at 59 (observing that such commentators insist that Geneva Convention IV is inapplicable to unlawful combatants but fail to provide anyjustification for this contention, and citing, for example, Detter, Ingrid, The Law of War (Cambridge: Cambridge University Press, 2000) at 136)Google Scholar; Goldman and Tittemore, supra note 55 at 38; Christopher Greenwood, “International Law and the ‘War against Terrorism’” (2002) 78 International Affairs 301 at 316.

165 White House Statement, supra note 55 [emphasis added].

166 Baxter, supra note 162 at 327. Baxter was an academic specializing in military law and a member of the Judge Advocate General Corps of the US army. Interestingly, Baxter placed unlawful combatants under Geneva Convention IV when detained in occupied territory, but not when detained in non-occupied territory, seemingly grounding this in the distinction in Geneva Convention IV, supra note 29, Article 5. However, this seems to take the language in Article 5 to an unnecessary extreme and has not been endorsed by other commentators.

167 Maxwell and Watts, supra note 113 at 19-20.

168 Ibid at 20.

169 Arai-Takahashi, supra note 53 at 99.

170 Dinstein, supra note 79 at 29-30. Despite making a distinction, Dinstein states that the rights of unlawful combatants would be subject to derogations under Geneva Convention IV, supra note 29, Article 5, thus implicitly classifying such individuals as civilians.

171 Aldrich, George H, “The Taliban, al Qaeda, and the Determination of Illegal Combatants” (2002) 96 Am J Int’l L 891 at 893, n 12.CrossRefGoogle Scholar

172 See Dörmann, supra note 79.

173 Geneva Convention IV, supra note 29, Articles 4-5; Arai-Takahashi, supra note 53 at 99.

174 Geneva Convention IV, supra note 29, Article 4 [emphasis added]; see also Protocol I, supra note 31, Article 50(1): “A civilian is any person who does not [fit the definition of ‘armed forces’].”

175 Geneva Convention IV, supra note 29. The significance of Khadr’s Canadian citizenship is discussed later in this article.

176 See, for example, Dörmann, supra note 79 at 49.

177 Commentary to the Geneva Conventions, supra note 36, volume 4 at 51 [emphasis added].

178 Geneva Convention IV, supra note 29, Article 5. As well, such civilians would lose protection from attack by opposing belligerents. See, for example, Protocol I, supra note 31, Article 51(3) (providing that “[c]ivilians shall enjoy the protection afforded by this section unless and for such time as they take a direct part in hostilities.”)

179 Dörmann, supra note 79 at 49-50, citing Geneva Convention IV, supra note 29, Article 5.

180 Dörmann, supra note 79 at 52-58.

181 See, for example, Brigadier Page (UK), Committee III (Civilians), 2nd meeting (26 April 1949), Final Record, Vol II A at 621, cited in Dörmann, supra note 81 at 58: “In its present form, [Article 4] would mean that persons who were not entitled to protection under the Prisoners of War Convention would receive exactly the same protection by virtue of the Civilians Convention, so that all persons participating in hostilities would be protected, whether they conformed to the laws of war or not.”

182 Dörmann, supra note 79 at 58.

183 Geneva Convention IV, supra note 29, Article 5 [emphasis added].

184 Glazier argues the contemporary application of the concept represents a greater error than that in Quirin. Glazier, supra note 87 at 12.

185 Dörmann, supra note 79 at 59-60.

186 Prosecutor v Zejnil Delalić, Zdravko Muciœ also known as “Pavo,” Hazim Delie, Esad Landzo also known as “Zenga” (Judgment) Case IT-96-21-T (16 November 1998) at para 271 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) [Delalić]; see also Dörmann, supra note 79 at 60.

187 Geneva Convention IV, supra note 29, Article 4; Arai-Takahashi, supra note 53 at 99-100.

188 Delalić, supra note 186 at paras 51-106 (in particular, paras 73-83); see Arai-Takahashi, supra note 53 at 99-100.

189 Arai-Takahashi, supra note 53 at 99-100.

190 See, for example, Khan, Sheema, “Politics over Principles: The Case of Omar Khadr,” in Williamson, , supra note 4, 52 at 55–56.Google Scholar

191 Williamson, supra note 4 at 10.

192 Amnesty International, “USA: Who Are the Guantánamo detainees? CASE SHEET 14: Omar Khadr,” Facts Sheet AMR 51/184/2005 (November 2005), online: Amnesty International <http://www.amnesty.org/en/library/info/ AMR51/184/2005> [Amnesty Facts Sheet].

193 See, for example, Khan, supra note 190.

194 Canada (Justice) v Khadr, 2008 SCC 28, [2008] 2 SCR 125 at para 7 [Khadr 2008]; Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44 at para 5 [Khadr 2010]. Family members in Canada brought a court motion seeking consular support for Khadr before Canadian officials acted to provide such support. See Khadr v Canada (Minister of Foreign Affairs), 2004 FC 1145 at para 3 (FC TD).

195 See Affidavit of Omar Khadr, supra note 24 at para 43-53.

196 Khadr 2010, supra note 194 at paras 5, 20, 24-25; Khadr 2008, supra note 194 at paras 3, 23-27. Moreover, the Supreme Court of Canada found that, as the consequences of the violation aided the ongoing military commissions proceedings, the breach of his right remained “ongoing.” Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

197 Khadr 2010, supra note 194 at paras 6-7; see also Tibbetts, Janice, “Government Signals No Change in Khadr Repatriation Stance,” Ottawa Citizen (29 January 2010)Google Scholar, online: Ottawa Citizen <http://www.ottawacitizen.com/news/decision-canada/Supreme+Court+rejects+Khadr+repatriation+order/2499011/story.html>.

198 Khadr 2010, supra note 194 at para 30.

199 “Re: Mr. Omar Khadr,” Memorandum from Stephen D Mull to Michael L Bruhn, Executive Secretary, DoD (24 October 2010), online: DoD <http://www.defense.gov/news/Khadr%20Convening%20Authority%20Diplomatic%20Papers%20AE%20342%2013%20Oct%202010%20(redacted).pdf>.

200 Paperny, supra note 27.

201 Canada (PrimeMinister) v Khadr, 2010 SCC 3 (Affidavit of Lt Cdr William Kuebler of 4 August 2008), online: Faculty of Law, University of Toronto <http://www.law.utoronto.ca/documents/Mackin/khadr_repat_LCDRKuebleraffidavit.pdf>; Amnesty Facts Sheet, supra note 192; Pardy, Gar, “The Long Way Home: The Saga of Omar Khadr,” in Williamson, , supra note 4, 67 at 80–81.Google Scholar

202 Glazier, supra note 87.

203 Ibid; see also Dehn, supra note 157.

204 MCA 2009, supra note 141 at para 950(15); MCA 2006, supra note 140 at para 95ov(15).

205 See, for example, MCA 2009, supra note 141 at para 950(1), (17) ; and MCA 2006, supra note 140 at para 950v(b)(1), (2), (8), (17). As a principle of statutory interpretation, a reading of the provision that renders it redundant (as conflating “violation of the law of war” with these specific offences would) should be avoided. See Dehn, supra note 161 at 70.

206 US DoD, Manual for Military Commissions (18 January 2007) at IV-12, online: DoD <http://www.defense.gov/pubs/pdfs/The%20Manual%20for%20Military%20Commissions.pdf> [emphasis added].

207 Edwards, Steven, “U.S. Edit Would Have Foiled Khadr Case; Guantanamo Tribunal; Obama Officials Pushed for New Rules, but Failed,” National Post (25 May 2010) at A7.Google Scholar

208 US DoD, Manual for Military Commissions 2010 (27 April 2010) at IV-13, online: DoD <http://www.defense.gov/news/d2010manual.pdf> [emphasis added].

209 Referred Charges, supra note 26.

210 While Sergeant Speer was also a combat medic, at the time he was wounded he was acting as an armed member of the Special Operations team.

211 If the death was a consequence of perfidy, it could amount to a war crime; however, Khadr was never charged with perfidy. See Glazier, supra note 87 (noting US forces were able to track down Khadr and his associates). See also Dehn, supra note 157 at 73 (dismissing the possible application of perfidy in Hamdan’s case). Dehn argues that the offence is better understood as a municipal, common law, “law of war” offence rather than a violation of IHL (at 81). However, on the commissions’ lack of jurisdiction to try municipal offences, see Glazier, supra note 87 at 30..

212 Baxter, supra note 162 at 344: “[T]he capturing state is not precluded from punishing an unprivileged belligerent for a war crime stricti juris, if he has, for example, killed civilians, or pillaged or refused to give quarter.”

213 Dinstein, supra note 79 at 31 [emphasis added]; see also Glazier, supra note 90 at 10: “There is no reason for the LOAC to criminalize the use of force by unprivileged belligerents, however, because these individuals lack immunity from [domestic criminal law and can be tried accordingly;] ... and LOAC experts are in general agreement that it does not.”

214 ICRC, supra note 84 at 1045-46.

215 Baxter, supra note 162 at 342-43 (describing this conflation as “based upon a misconception”); see also Maxwell and Watts, supra note 113 at 22 (noting that in Quirin “the Court improperly converted the Nazi saboteurs’ lack of combatant status into a violation of the law of war itself.”)

216 US Department of the Air Force, supra note 134 at 3.5, n 15.

217 United States v Hamdan (Military Commission Guantánamo Bay, Cuba) (Transcript of Record) (1 August 2008) at 3826, online: DoD <http://www.defense.gov/news/commissionsHamdan.html> [Hamdan, Transcript].

218 Ibid at 3823; see also Frakt, David JR , “Mohammed Jawad and the Military Commissions of Guantánamo” (2011) 60 Duke LJ 1367 at 1386; Dehn, supra note 157 at 65.Google Scholar

219 See Frakt, supra note 218 at 1386-89.

220 Edwards, supra note 207; see also Heller, Kevin Jon, “The Non-Existent ‘Murder in Violation of the Law of War’ Redux,” Opinio Juris (26 May 2010)Google Scholar, online: Opinio Juris <http://opiniojuris.org/2010/05/26/the-non-existent-murder-in-violation-of-the-law-of-war-redux/>. But see Scott Horton, “The Khadr Boomerang,” Harper’s Magazine (25 May 2010), online: Harper’s Magazine <http://harpers.org/archive/2010/05/hbc-90007108> (indicating a possible ulterior motive for the State Department’s desire to exclude the offence).

221 Referred Charges, supra note 26.

222 See Glazier, supra note 87; see also Baxter, supra note 162 at 331 (explaining that spying is not a violation of the law of war). See also Frakt, David JR, “Direct Participation in Hostilities as a War Crime: America’s Failed Efforts to Change the Law of War” (2012) 46 Val UL Rev 729.Google Scholar

223 Glazier, supra note 87 at 30. In addition, there are further concerns regarding the jurisdiction of the commissions, including the retroactive application of a crime defined in 2006 to events that took place in 2002, in violation of the US Constitution and international law (at 4-5).

224 MCA 2009, supra note 141 at para 948d (providingjurisdiction to try any offence made punishable by a provision of the MCA or the law of war). Similarly see MCA 2006, supra note 140 at para 948d.

225 See, for example, Quirin, supra note 161 at 29 (noting the “first inquiry” in determining whether the commission had jurisdiction was “whether any of the acts charged is an offense against the law of war”). In re Yamashita, 327 US 1 (1946) at 17-18. Both cases are discussed in Glazier, supra note 90 at 7-8.

226 Hamdan v United States of America, 696 F 3d 1238 (DC Cir, 2012).

227 Ibid at 1246-48.

228 Ibid at 1248-49.

229 Ibid at 1250, 1252-53. Notably, the court left open the possibility that the US could include non-internationally recognized war crimes under the commissions’ jurisdiction on a non-retroactive basis.

230 Ibid at 1243, 1248-49, 1251.

231 Plea Agreement, supra note 25. An argument could be made that these circumstances should be considered in the context of, for instance, a potential claim for damages under the Charter, supra note 196.

232 Mas, Susana, “Omar Khadr Will Appeal War Crimes Convictions, Lawyer Says,” CBC News (27 April 2013), online: CBC <http://www.cbc.ca/news/politics/story/2013/04/27/pol-omar-khadr-appeal.html>.Google Scholar

233 “Remarks by the President on National Security,” Speech made by Barack Obama (21 May 2009), online: White House <http://www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09>.

234 “Statement of David Kris Assistant Attorney General before the Committee on the Judiciary Subcommittee on Terrorism and Homeland Security United States Senate,” US Senate Committee on the Judiciary, Testimony (28 July 2009), online: US Senate <http://www.justice.gov/ola/testimony/111-1/2009-07-28-nsd-kris-gtmo.pdf> [emphasis added].

235 See “Fact Sheet: New Actions on Guantánamo and Detainee Policy,” Office of the Press Secretary, Press Release (7 March 2011), online: White House <http://www.whitehouse.gov/the-press-office/2011/03/07/fact-sheet-new-actions-guant-namo-and-detainee-policy>; Anne E Kornblut and Peter Finn, “Obama Advisers Set to Recommend Military Tribunals for Alleged 9/11 Plotters,” Washington Post (5 March 2010), online: Washington Post <http://www.washingtonpost.com/wp-dyn/content/article/2010/03/04/AR2010030405209.html>.

236 ICRC, Study on Customary International Humanitarian Law: Rule 47: Attacks against Persons Hors de Combat, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule47>, citing Protocol I, supra note 31, Article 41(2); Geneva Conventions, supra note 29, Article 3; Protocol II, supra note 31, Article 4.

237 See, for example, Solf, supra note 97 at 59 (noting that the basic rules governing the treatment of detained individuals in Common Article 3 and Protocol II “apply equally to captured combatants and to any other person thus detained.”)

238 “There is no doubt that, in the event of international armed conflicts, [Common Article 3] also constitute[s] a minimum yardstick.” Nicaragua, supra note 36 at para 218. See also Barber, supra note 33 at 473. This notion is also implicit in Hamdan where the majority concludes that, having found that the conflict was at least a non-international armed conflict and that Common Article 3 was violated, it was unnecessary to determine whether it constituted an international armed conflict. Hamdan, supra note 67 at 628-631.

239 Protocol I, supra note 31, Article 75.

240 Inter-American Report, supra note 78 at para 76; see also Dinstein, supra note 79 at 33; Dörmann, supra note 81 at 70. US officials recognized the customary status of core provisions of Article 75 as early as 1987. See Michael Matheson, “The United States’ Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions” (1987) 2 Am UJ Int’l L & Pol’y 419 at 427-28.

241 Clinton Statement on Protocols, supra note 32 (stating that the US would adhere to Article 75 “out of a sense of legal obligation”).

242 In the international context, see Geneva Convention I, supra note 29, Article 12(1); Geneva Convention II, supra note 29, Article 12(1); Geneva Convention III, supra note 29, Article 13; Geneva Convention IV, supra note 29, Articles 5, 27(1); and Protocol I, supra note 31, Article 75(1). In the non-international context, see Geneva Conventions, supra note 29, Article 3; and recognized as a fundamental guarantee in Protocol II, supra note 31, Article 4(1). It is also recognized under customary international law in both contexts: ICRC, Study on Customary International Humanitarian Law: Rule 87: Humane Treatment, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule87>.

243 ICRC, supra note 242.

244 Geneva Conventions, supra note 29, Article 3; Geneva Convention III, supra note 29, Article 16; Geneva Convention IV, supra note 29, Article 13. ICRC, Study on Customary International Humanitarian Law: Rule 88: Non-Discrimination, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule88>.

245 Geneva Conventions, supra note 29, Article 3.

246 Geneva Convention I, supra note 29, Article 50; Geneva Convention II, supra note 29, Article 51; Geneva Convention III, supra note 29, Article 130; Geneva Convention IV, supra note 29, Article 147. While the distinct status understanding does not view unlawful combatants as protected persons, the Common Article 3 prohibition remains. See also ICRC, Study on Customary International Humanitarian Law: Rule 89: Violence to Life, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule89>. This does not prohibit the death penalty for individuals found guilty of a criminal offence. Geneva Convention IV, supra note 29, Article 68.

247 Geneva Conventions, supra note 29, Article 3.

248 Geneva Convention I, supra note 29, Article 12; Geneva Convention II, supra note 29, Article 12; Geneva Convention III, supra note 29, Articles 17(4), 87(3), 89; Geneva Convention IV, supra note 29, Article 147.

249 Protocol I, supra note 31, Article 75(2); Protocol II, supra note 31, Article 4(2).

250 ICRC, Study on Customary International Humanitarian Law: Rule 90: Torture, Cruel and Inhume Treatment, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule90>. As the ICRC notes, its status as a customary norm is further evidenced by its inclusion as a war crime in the statutes of various international criminal tribunals.

251 ICRC, Study on Customary International Humanitarian Law: Rule 99: Deprivation of Liberty, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule99>. This prohibition is grounded in, inter alia, the requirement that civilians and persons hors de combat be treated humanely (as discussed earlier), with which arbitrary deprivation of liberty is not consistent.

252 See Geneva Convention I, supra note 29, Articles 28, 30, 32; Geneva Convention II, supra note 29, Articles 36-37; Geneva Convention III, supra note 29, Articles 21, 90, 95, 103, 109, 118; Geneva Convention IV, supra note 29, Articles 42, 78.

253 ICRC, supra note 250.

254 Protocol I, supra note 31, Article 75(3). The commentary observes, “it is difficult to determine a precise time limit, but ten days would seem the maximum period.” Commentary to the Additional Protocols, supra note 73 at para 3072.

255 ICRC, supra note 250, citing the International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Article 9(1) [ICCPR]; Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Article 37(b) [CRC]; and UN Security Council resolutions condemning arbitrary detention in non-international armed conflicts. For example, Security Council Resolution 1019, SC Res 1019, UN SCOR, 50th Sess, 3591st Mtg, UN Doc S/RES/1019 (1995).

256 ICRC, supra note 250.

257 Geneva Conventions, supra note 29, Article 3.

258 Protocol I, supra note 31, Article 75(4).

259 Commentary to the Additional Protocols, supra note 70 at para 3092.

260 ICRC, Study on Customary International Humanitarian Law: Rule 100: Fair Trial Guarantees, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule100>, citing, inter alia, the Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, Article 67(1) [Rome Statute]; and the Statute of the International Criminal Tribunal for the Former Yugoslavia, in Security Council Resolution 827 on Establishment of the International Tribunal for Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, SC Res 827, UN SCOR, 48th Sess, 3217th Mtg (1993), Annex, Article 20(2) [ICTY Statute].

261 Geneva Convention III, supra note 29, Article 99(1).

262 Geneva Convention IV, supra note 29, Article 67.

263 Protocol II, supra note 31, Article 6(2)(c).

264 Protocol I, supra note 31, Article 75(4)(c).

265 ICRC, Study on Customary International Humanitarian Law: Rule 101: Principle of Legality, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule101>.

266 Geneva Convention IV, supra note 29, Article 42. The International Criminal Tribunal for the Former Yugoslavia (ICTY) interpreted this to permit internment only where there were “serious and legitimate reasons” to think the individual would seriously prejudice the security of the detaining power. See Prosecutor v Zejnil Delalić, Zdravko Mucić, Hazim Delić, and Esad Landžo (Appeals Judgment), Case IT-96-21-A (20 February 2001) at paras 328-29 (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber). See also ICRC, supra note 250 (observing that this heightened standard is applicable to detention of alleged “enemy aliens”).

267 Geneva Convention IV, supra note 29, Article 78.

268 Ibid, Article 147. The Rome Statute and ICTY Statute provide that the unlawful confinement of any protected person under the Geneva Conventions constitutes a war crime: Rome State, supra note 264, Article 8(2)(a)(vii); ICTY Statute, supra note 264, Article 2(g).

269 Geneva Convention III, supra note 29, Article 130; Geneva Convention IV, supra note 29, Article 147; Protocol I, supra note 31, Article 85(4)(e). Likewise, such deprivation is recognized as a war crime under the Statutes of the International Criminal Court, the International Criminal Tribunal for Rwanda, the ICTY, and the Special Court for Sierra Leone. See, for example, Rome Statute, supra note 264, Article 8(2)(a)(vi), (c)(iv); and ICTY Statute, supra note 260, Article 2(f).

270 See Cerone, supra note 77.

271 See Watkin, Kenneth, Warriors without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy, Harvard Program on Humanitarian Policy and Conflict Research Paper No 2 (2005) at 55–56 Google Scholar, online: HPRC <http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper2.pdf>. The argument that the US and its allies were occupying powers in Afghanistan is grounded in the broad definition of “occupation” endorsed by the Commentary to Geneva Convention, supra note 36, volume 4 at 60.

272 Geneva Convention IV, supra note 29, Article 66.

273 Ibid, Article 49; but see Abu Awad v Commander of the Judea and Samaria Region (1979), HC 97/79, 33(3) PD 309 (HC Israel), cited in ICRC, Study on Customary International Humanitarian Law: Rule 129: The Act of Displacement, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule129> (observing that some believe Article 49 was not intended to prohibit the deportation of individuals for security reasons).

274 Dinstein, supra note 79 at 29-30; Baxter, supra note 162 at 344.

275 Geneva Convention IV, supra note 29, Article 49.

276 See, for example, ibid, Articles 147-48; see also Protocol I, supra note 31, Articles 85-86.

277 Geneva Convention I, supra note 29, Article 49; Geneva Convention II, supra note 29, Article 50; Geneva Convention III, supra note 29, Article 129; Geneva Convention IV, supra note 29, Article 146.

278 See, for example, Dallaire, Romeo, “Bring Omar Khadr Home,” National Post (22 May 2008)Google Scholar, online: Senator Romeo Dallaire <http://romeodallaire.sencanada.ca/en/p102900/>; Savage, Michael, “Canadian Becomes First Child Soldier since Nuremberg to Stand Trial for War Crimes,” The Independent (7 May 2008)Google Scholar, online: The Independent <http://www.independent.ie/world-news/americas/canadian-becomes-first-child-soldier-since-nuremberg-to-stand-trial-for-war-crimes-26444257.html>.

279 Horton, supra note 220.

280 See, for example, Sheppard, supra note 3.

281 Letter from Radhika Coomaraswamy, Special Representative of the UN Secretary-General for Children and Armed Conflict, to Members of the Military Commission (27 October 2010) at 1, online: CBC News <http://www.cbc.ca/news/pdf/omar-khadr-letter.pdf> [Coomaraswamy Letter].

282 Konge, Paola, “International Crimes and Child Soldiers” (2010) 16 Sw J Int’l L 41 at 57.Google Scholar

283 Geneva Convention IV, supra note 29, Articles 14, 23-24, 38, 50, 89; nor do the other three Geneva Conventions, supra note 29, address such a prohibition.

284 Protocol I, supra note 31, Articles 77(2)-(3).

285 Protocol II, supra note 31, Article 4(3).

286 CRC, supra note 255.

287 Konge, supra note 282 at 47; UN Treaty Collection, “Status of Ratification of the CRC,” online: UN <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en.>

288 CRC, supra note 255, Article 1.

289 Ibid, Article 38. The provision discusses “armed conflict” and “hostilities” generic-ally, establishing a standard relevant to both international and non-international armed conflict. See also Cynthia Price Cohen, “Introductory Note: United Nations: Convention on the Rights of the Child” (1989) 28 ILM 1448 at 1451 (observing that the United States was the “lone dissenter” against a minimum age of eighteen for individuals involved in armed conflict).

290 Statute of the Special Court for Sierra Leone (16 January 2002), Article 4(c), online: Special Court for Sierra Leone <http://www.sc-sl.org/LinkClick.aspx?fileticket=uClnd1MJeEw=&tabid=176> [Statute of SCSL].

291 Rome Statute, supra note 260, Article (8 )(2)(b)(xxvi).

292 Prosecutorv SamHinga Norman (Decision on Preliminary Motion Based on Lack ofJurisdiction: Child Recruitment), Case SCSL-2004-14-AR72(E) (31 May, 2004) (Special Court for Sierra Leone). See also UN Security Council, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc S/2000/915 (2000) at para14 (observing that the prohibition of the conscription of children has “long been considered customary international law”).

293 Rome Statute, supra note 260, Article 26.

294 UN Children’s Fund (UNICEF), Cape Town Principles and Best Practices (27-30 April 1997), online: UNICEF <http://www.unicef.org/emerg/files/Cape_Town_Principles(1).pdf>. See also UNICEF, Paris Principles and Paris Commitments (February 2007), online: ICRC <http://www.icrc.org/eng/resources/docu-ments/misc/paris-principles-commitments-300107.htm> [Paris Principles and Commitments].

295 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, UN General Assembly Resolution A/RES/54/263 (25 May 2000), Article 1 [Optional Protocol]. Significantly for Khadr’s case, the Optional Protocol also provides at Article 4(1): “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.”

296 Ibid, Article 2.

297 Ibid, Article 4.

298 UN Treaty Collection, “Status of Ratification of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict” online: UN <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-b&chapter=4&lang=en#EndDec>.

299 Grossman, Nienke, “Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations” (2007) 38 Geo J Int’l L 339 at 334 Google Scholar, cited in Konge, supra note 282 at 57. But see ICRC, Study on Customary International Humanitarian Law: Rule 137: Participation of Children in Hostilities, online: ICRC <http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule137> (acknowledging the emerging views but indicating that only the absolute minimum of fifteen is settled law).

300 United States v Khadr (No D-022) (US Military Commission at Guantanamo Bay, Cuba) (Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction under the MCA in Regard to Juvenile Crimes of a Child Soldier) (30 April 2008) at para 7 [Khadr, Child Soldier Motion].

301 Ibid at para 18.

302 United States v Khadr (No D-022) (US Military Commission at Guantanamo Bay, Cuba) (Defense Reply to Government Response to Motion for Dismissal Due to Lack ofJurisdiction under the MCA in Regard to Juvenile Crimes of a Child Soldier) (21 January 2008) at 1.

303 United States v Khadr (No D-022) (US Military Commission at Guantanamo Bay, Cuba) (Paoletti amici Brief in Defense Motion on Lack of Jurisdiction) (28 January 2008) at 11 [Khadr, Paoletti amici Brief].

304 Ibid at 3.

305 Ibid at 11.

306 Konge, supra note 282 at 42. Reviewing various jurisdictions, Konge observes that the MACR for ordinary criminal offences ranges from seven to eighteen (at 47).

307 Konge, supra note 282 at 34.

308 Human Rights Watch, “The Omar Khadr Case: A Teenager Imprisoned at Guantanamo” ( June 2007) 1 Human Rights Watch Reports at 6.

309 Rome Statute, supra note 260, Article 26; but see Konge, supra note 282 at 50 (discussing how delegates made the choice to exclude jurisdiction rather than articulate a substantive rule of international criminal law for “minimum age of criminal responsibility” because debate existed on the issue).

310 Human Rights Watch, supra note 308 at 6.

311 Statute of SCSL, supra note 290, Article 7 (specifically requiring that any proceedings involving an accused under the age of eighteen be undertaken with rehabilitative intent, and providing only for non-penal sanctions against such individuals at sentencing). See also Human Rights Watch, supra note 308 at 6.

312 Ibid.

313 David M Crane, “The Scourge of Child Soldiers,” Toronto Star (22 February 2008), online: Toronto Star <http://www.thestar.com/comment/article/305813>.

314 Optional Protocol, supra note 295, Articles 6(3), 7; Grossman, supra note 299 at 346. While not recruited by the United States, once in American custody, Khadr was quite literally a “person within their jurisdiction” who had been “recruited or used in hostilities contrary to [the Optional Protocol].”

315 However, it must be reiterated that the provisions of the Additional Protocols, supra note 31, only address those children below fifteen years of age.

316 Protocol I, supra note 31, Article 77(3); Protocol II, supra note 31, Article 4(3)(d).

317 Arai-Takahashi, supra note 53 at 104.

318 UNICEF, “Paris Conference: Free the Children from War — Attendees,” 5-6 February 2007, online: UNICEF <http://www.unicef.org/protection/files/Attendees.pdf>. To date, the Paris Principles and Commitments, supra note 292, have been endorsed by 100 states: see ICRC, List of States that Have Endorsed the Paris Commitments (October 2011), online: ICRC <http://www.icrc.org/ eng/assets/files/2012/paris-principles-adherents-2011.pdf>.

319 Paris Principles and Commitments, supra note 294, Principle 3.6.

320 Ibid.

321 Ibid, Principles 3.7, 8.9.0, 8.9.1.

322 Ibid, Principles 8.8-8.9.

323 Coomaraswamy Letter, supra note 281.

324 Elaine L Chao, “Opening Remarks Prepared for Delivery by U S Secretary of Labor Elaine L Chao” (Speech delivered at the Conference on Children in the Crossfire: Prevention and Rehabilitation of Child Soldiers, Washington DC, 7 May 2003), [unpublished], online: US Department of Labor <http://www.dol.gov/ilab/programs/iclp/childsoldiers/chaospeech.htm>.

325 Khadr, Child Soldier Motion, supra note 300 at paras 17, 22.

326 Jamison, Melissa A, “The Sins of the Father: Punishing Children in the War on Terror” (2008) 29 U La Verne L Rev 88 at 144–45.Google Scholar See United States v Blanton, 7 USCMA 664 (15 March 1957); and United States v Brown, 23 USMCA 162 (28June 1974). Admittedly, the military commissions have a different structure than military courts.

327 Khadr v United States (Decision on Respondents’ Motion to Dismiss the Petition for Review for Lack of Jurisdiction) , 529 F 3d 1112 (DC Cir, 2008) at 11-12.

328 “US Kept Khadr at Gitmo to Grill Him: WikiLeaks,” CBC News (25 April 2011) online: CBC News <http://www.cbc.ca/news/canada/story/2011/04/25/us-guantanamo-khadr-wikileaks.html>

329 Grossman, supra note 299 at 346.

330 Optional Protocol, supra note 295, Article 6(3). The Youth Criminal Justice Act, governing criminal proceedings for youths, is similarly animated by rehabilitation and reintegration. See Youth Criminal Justice Act, SC 2002, c 1, Preamble.

331 See notes 194-96 in this article and accompanying text.

332 The Supreme Court of Canada concluded that this conduct violated a principle of fundamental justice under the Charter, supra note 196, s 7: Khadr 2010, supra note 194 at para 24.

333 Optional Protocol, supra note 295, Article 7. While Article 7 is often interpreted as being concerned with the provision of international aid or development funds in support of general rehabilitative programs for child soldiers, the terms of the provision do not preclude its application in other contexts.

334 Despite Canada’s failure to intervene on Khadr’s behalf, other countries felt compelled to do so. See, for example, “France Wanted ‘Assistance’ on Khadr: WikiLeaks,” CBC News (1 December 2010), online: CBC News <http://www.cbc.ca/news/canada/story/2010/12/01/wikileaks-khadr-kouchner.html>; “France Asks U.S. to Drop Charges against Khadr,” CBC News (28 January 2008), online: CBC News <http://www.cbc.ca/news/world/story/2008/01/24/khadr-france.html>; Letter from British Parliamentarians to Prime Minister Harper (7 February 2008), online: University of Toronto, Faculty of Law <http://www.law. utoronto.ca/documents/Mackin/Khadr_British_letter.pdf> (urging Prime Minister Harper to act).

335 Human Rights Watch, supra note 308 at 1. This report set out the obligations owed to juvenile detainees under international law and applied them to Khadr’s case. This section follows the categories of rights set out in that report and updates the treatment of Khadr as appropriate.

336 ICCPR, supra note 255, Article 4(4); CRC, supra note 255, Article 40(1), (3); United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”): Resolution Adopted by the General Assembly, GA 40/33, UN GAOR, 40th Sess, 96th Mtg, UN Doc A/RES/40/33 (29 November 1985) at 2.3 [Beijing Rules]. See Human Rights Watch, supra note 312 at 3.

337 See, for example, CRC, supra note 255, Article 37(a).

338 Arai-Takahashi, supra note 53 at 104.

339 “UNICEF Head Opposed to Khadr Trial at Guantanamo,” Reuters (27 May 2010), online: Reuters <http://uk.reuters.com/article/2010/05/27/uk-guantanamo-canadian-un-idUKTRE64Q5C820100527>

340 Khadr, Child Solider Motion, supra note 300 at paras 17, 22.

341 Khadr v United States (US Military Commission at Guantanamo Bay, Cuba) (Sentencing Instructions) (30 September 2010) at 2, online: DoD <http://www.defense.gov/news/Khadr%20MJ’s%20Sentencing%20Instructions%20AE%20383%2030%20Oct%2010.pdf>

342 ICCPR, supra note 259, Article 10(2); CRC, supra note 255, Article 37(c); Protocol I, supra note 31, Article 77(4); Standard Minimum Rules for the Treatment of Prisoners, 77(1), adopted Aug 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc A/CONF/611 (1957) annex I, approved by the Economic and Social Council, Resolution 663C, 24 UN ESCOR, Supp No 1 at 11, UN Doc E/3048 (1957), extended by Resolution 2076, 62 UN ESCOR, Supp No 1 at 35, UN Doc E/5988 (1977).

343 See news reports from Brown, Matthew Hay, “At Camp Iguana, the Enemies Are Children,” Hartford Courant (20 July 2003), online: Hartford Courant <http://articles.courant.com/2003-07-20/news/0307200015_1_human-rights-watch-child-rights-advocacy-director-fringe-benefit> Google Scholar; Zavis, Alexandra and Therolf, Garrett, “Militants Use Children to Do Battle in Iraq: As More Youth Are Recruited, Boys Outnumber Foreign Fighters at US Detention Camps,” LA Times (27 August 2007), online: LA Times <http://articles.latimes.com/2007/aug/27/world/fg-childfighters27>.Google Scholar

344 Human Rights Watch, supra note 308 at 2.

345 ICCPR, supra note 259, Article 10(2)(b); CRC, supra note 255, Articles 37(b), 40(2)(b)(iii); UN Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN GAOR, 45th Sess, 68th Mtg, UN Doc A/RES/45/113 (14 December 1990) at 2 [UN Rules for the Protection of Juveniles]; Human Rights Watch, supra note 308 at 2.

346 Human Rights Watch, supra note 308 at 2.

347 Rosenberg, Carol, “Inside the Convicts Cellblock Where War Criminals Stay at Guantánamo,” Miami Herald (28 February 2011), online: Miami Herald <http://www.miamiherald.com/2011/02/27/v-fullstory/2090624/inside-the-convicts -cellblock.html>..>Google Scholar

348 Paperny, supra note 27.

349 Jamison, supra note 326 at 150; Juridical Condition and Human Rights of the Child (2002), Advisory Opinion OC-17/02, Inter-Am Ct HR (Ser A) No 17 at paras 75, 77.

350 CRC, supra note 255, Article 37(c); Human Rights Watch, supra note 308 at 2.

351 Letter from Lois Whitman, Executive Director, Human Rights Watch, to Donald Rumsfeld, Secretary of Defense (24 April 2003), cited in Jamison, supra note 326 at 150.

352 ICRC, Operational Update — Guantanamo Bay: The Work Continues (18 July 2003), online: ICRC <http://www.icrc.org/eng/resources/documents/misc/5g2gt7.htm>.

353 Human Rights Watch, supra note 308 at 3; Jamison, supra note 326 at 151.

354 Sheppard, supra note 3 at 220.

355 Human Rights Watch, Omar Khadr: Military Commission Trial of Ex-Child Soldier (15 October 2010), online: Human Rights Watch <http://www.hrw.org/en/news/2010/10/15/qa-omar-khadr-trial>.

356 Beijing Rules, supra note 336, s13.5; UN Rules for the Protection of Juveniles, supra note 345, Articles 12, 18(b)(c), 38, 47; Human Rights Watch, supra note 308 at 3; Juridical Condition and Human Rights of the Child, supra note 346.

357 Becker, Jo, “The War on Teen Terror,” Human Rights Watch (24 June 2008), online: Human Rights Watch <http://www.hrw.org/en/news/2008/06/24/war-teen-terror>;Google Scholar Human Rights Watch, supra note 312 at 3.

358 Becker, supra note 357.

359 Rosenberg, supra note 347.

360 To whatever extent this may be true, the conflict in Afghanistan — the focus of this analysis — challenges the traditional paradigm less than other aspects of the “war on terror.”

361 Commentary to the Geneva Conventions, supra note 36, volume 4 at 21.

362 Information on the Martens clause can be found in Rupert Ticehurst, “The Martens Clause and the Laws of Armed Conflict” (1997) 37 Int’l Rev Red Cross 125 at 125, 127 (reviewing the history of the clause, first incorporated into the preamble of Convention [No. II] with Respect to the Laws and Customs of War on Land, with annex of regulations, 29 July 1899, 32 Stat 1803 [Hague Convention 1899], and later affirmed in attenuated forms in various other treaties).

363 See, for example, Nuclear Weapons, supra note 79 at para 84 (describing the clause as a fundamental principle of IHL, and a customary international law norm of “continuing existence and applicability”).

364 Hague Convention 1899, supra note 362, Preamble.

365 See generally Cassese, Antonio, “The Martens Clause: Half a Loaf or Simply Pie in the Sky” (2000) 11 EJIL 187.CrossRefGoogle Scholar

366 Meron, Theodor, “The Martens Clause, Principles of Humanity, and Dictates of Public Conscience” (2000) 94 Am J Int’l L 78 at 87–88 CrossRefGoogle Scholar; Cassese, supra note 365 at 212.

367 See Commentary to the Geneva Conventions, supra note 36, volume 4, and accompanying text.

368 Harold Hongju Koh, “Address” (Dean’s Lecture delivered at Yale Law School, 2 November 2012) [unpublished]. Koh grounds this position in his broader support for a three-part, “smart power” approach to contemporary international law challenges, which involves (1) engagement, (2) translation, and (3) leverage of relations and legal concepts. See, for example, Harold Hongju Koh, “How to End the Forever War?” (Speech delivered at the Oxford Union Society, Oxford, UK, 7 May 2013) [unpublished], online: Yale Law School <http://www.law.yale.edu/documents/pdf/Faculty/KohOxfordSpeech.pdf>.

369 Cassese, supra note 365.