Glazier and Solis are two US Military experts who are working with Omar’s lawyer Dennis Edney to secure bail for Omar.
“The only war crime present in Khadr‘s Guantánamo courtroom appears to be denial of a fair trial, and the perpetrator is the government, not the defendant.”
Loyola Law professor David Glazier wrote that the crimes with which Omar Khadr was charged were unlawful as set out in his detailed 32-page article – “A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr“:
“The U.S. approach has the practical effect of converting this armed conflict into a human hunting season; the government asserts U.S. combatants had the right to shoot Khadr on sight (he was shot twice in the back based on his being a “hostile” rather than because he posed any particular threat at the time) yet criminally prosecute him for fighting back. This approach repudiates the functional equivalence between the conflict parties which is a core element of the LOAC and attempts to transform this law from one evenhandedly regulating the conduct of both parties into a unilateral shield for one side.”
And as he concluded after an exhaustive review of domestic US law and international law including the law of armed conflict (LOAC):
“The Guantánamo trials must be legally grounded in the LOAC or else they constitute an impermissible ex post facto application of law enacted well after the defendants were in custody. Yet despite the fact that he faces five separate charges, the specifications lodged against Canadian defendant Omar Khadr either fail to state a recognized violation of the law of war, or where the offense is facially valid, the specific conduct charged does not meet the law’s definition of the crime. The perverse irony is that the only war crime present in Khadr’s Guantánamo courtroom appears to be denial of a fair trial, and the perpetrator is the government, not the defendant. “
At the time the impugned acts were committed, they were not crimes (and there is a serious question whether they are crimes in fact). It was not until years later that the US Congress created these “war crimes” that do not accord with international LOAC (Law On Armed Conflict). It is a basic principle that you cannot be convicted of an “ex post facto” (i.e. created after the fact) crime.
The issue here is that “murder in violation of the laws of war” – the charge laid against Omar Khadr – is not recognized 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”. Neither of which apply to Khadr – Perfidy is set out Art 37. Prohibition of Perfidy in the 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). In the Mohammed Jawad case in the US it was determined that al-Qaida fighters do not have uniforms to give up, so their civilian appearance was not a disguise.
As Professor David Glazier concludes in “A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr “The Guantánamo trials must be legally grounded in the LOAC or else they constitute an impermissible ex post facto application of law enacted well after the defendants were in custody.”