We hear confident
claims that Omar Khadr should have been treated as a child soldier, as if
international law imposed some such obligation on the US. It doesn't. The UN convention on the rights of the child
binds only its ratifiers. The US (not to
mention the Taliban) never ratified the convention. Since child soldiers appear only as an
'optional protocol' to the convention, the US can hardly have incurred an obligation
to respect its provisions or heed signatories' complaints.
But that's not the most troubling aspect of
the child soldiers' defense. The
defense, even if valid, essentially abandons the field to United States'
mouthpieces. It suggests that but for
his age, Omar Khadr would have been guilty as charged. If you suppose his age is the only legal
reason for letting him go free, the implication is that the US would otherwise
be within its rights to convict and punish him for war crimes. This is arrant nonsense. Omar Khadr, child or adult, may not have been
justified in fighting the Americans, and the Americans may have been justified
in fighting him; indeed in their invasion of Afghanistan. But the American invasion of Afghanistan was
certainly illegal, so to accuse Omar Khadr of war crimes is mere impertinence.
Invading another country is, under
international law, legal only in urgent, imminent self-defense - that is, if it is undertaken to fend off an
attack known to be conducted in hours or days, not months or years. The US never even claimed this. Even if they had, the idea that bombing and
attacking the Taliban, who had offered to turn Bin Laden over given evidence of
his guilt, isn't even a remotely plausible case of 'staving off'. How would bombing and attacking the Taliban
have disrupted Al Qaeda plans, if these plans were so far advanced that an
attack was truly imminent? You stop an
attack by attacking or capturing the attackers, not by waging war against some
people who were sort of associated with them.
The invasion might have been a reasonable long-term strategy to combat a
broad terrorist threat, but that doesn't even come close to urgent self-defense
against an imminent attack by an underground, internationally based movement - one which wasn't known to be on the brink of launching such an attack. Again, to be clear: the invasion might have been 'justified' in
some broad sense of the term. It
certainly wasn't legal.
If the invasion wasn't legal, resistance to
the invasion was at least not illegal:
nothing in international law forbids countering an illegal attack. So when Omar Khadr tossed a grenade, not at
civilians, but at heavily armed illegal invaders who had attacked his position,
the idea that he could have been committing any kind of 'war crime' is
ludicrous. Stop letting him off as a
child soldier. Start noticing that as a
member of a force countering illegal state violence, he was entirely within his
rights under international law.
