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Santa Clara Journal of International Law






This essay explores the intersections and tensions between international human rights law and international humanitarian law as those two doctrinal areas played out in the concrete situation of Omar Khadr, a Canadian child detainee at Guantanamo Bay. Particular focus is given to how issues regarding his youth were addressed by the many tribunals involved: in the multiple venues of courts in the United States and Canada, and in international human rights bodies. The issues on Omar’s youth span many contexts, raising judicial questions regarding the legality of his detention, his treatment and separation from adults while detained, jurisdiction to prosecute him for war crimes, and the inadmissibility of statements based on his youth. My thesis here is simple: None of the tribunals that reviewed Omar’s legal issues, national or international, gave proper attention to his status as a child, nor to the special obligations in both human rights and humanitarian law with regard to that status. Some courts or human rights bodies ignored the status and some distinguished it away, but no final judicial decision acknowledged his juvenile status as a factor in the analysis, whether relief was granted or not. Omar Khadr as a trope for terrorist won out every time over Omar as a trope for child victim of war. Omar was neither the youngest juvenile nor the only juvenile at Guantanamo, and he was not the first juvenile in modern history to be tried for war crimes, but his treatment is an example to the world. The conclusion to this article points out that Omar’s sentencing by military commission at Guantanamo may have been the only context in which his youth played any role, albeit implicit.



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