Wednesday, November 3, 2010

America's Justice

The case of Omar Khadyr is an emotional one, no doubt. How you perceive Mr. Khadyr, as a war criminal, a child combatant, or a civilian says much about how you view the United States' strategy in its war on terror. The United States recent sentencing of Mr. Khadyr to eight years in a maximum-security prison, by a military commission, has wide implications to the laws of war.

Such is the chief point made in a very well-written and thought out article in The Guardian on America's initiates in rewriting the laws of war. As Jason Ralph, a professor in international relations at the University of Leeds, writes:
The issue here is that "murder in violation of the laws of war" – the charge laid against Khadr – is not recognised internationally as a war crime. Following the Bush administration's lead, the US Congress insisted in the 2009 Military Commission Act that any civilian targeting an American soldier was an unprivileged belligerent guilty of murder or attempted murder. But "unprivileged belligerent" is not a category of combatant defined in the laws of war.

Under the Geneva conventions, violent individuals are either combatants or civilians. As an enemy combatant, one would have expected Khadr (age aside) to be targeting US soldiers. The only way the US government could have prosecuted him under the laws of war, therefore, was to charge him with killing while disguised as a civilian or with "perfidy".
As the defence counsel argued in the similar case of Mohammed Jawad, however, al-Qaida fighters do not have uniforms to give up, so their civilian appearance was not a disguise. They were, therefore, in the eyes of the laws of war, civilians. As a non-combatant throwing a grenade, Khadr could certainly have been prosecuted for murder – but not under the laws of war and not in a military commission. He should have been due a trial in the civilian courts of Afghanistan, the US or Canada, where the rules of evidence would have been very different.
Prof Ralph, an expert in international law, further elucidates about the U.S.'s lone ranger approach to the laws of war:
Above all, the Khadr ruling is a case where the US has pursued its own definition of the laws of war. "Murder in violation of the laws of war" was codified by the US Congress alone, and many experts consider it a rank misinterpretation of international law. If other states adopt the American example, then we may look back at the Khadr trial as the moment when a new form of war crime was created, unilaterally and for the expediency of the world's pre-eminent military power.
If other states do not follow America's example, the U.S. might risk isolation from the international community. That might not necessarily be a bad thing, as it might make America think hard about waging any future wars. Or, equally important, it might compel America to rewrite its laws of war in conformity with the long-standing and accepted legal practices of the Geneva Convention.

That would be a win for democracy and individual dignity, and bring America back to the good graces of the international community. I sense most Americans and their many loyal friends would greatly welcome such a return.
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