Today’s New York Times has an article regarding the plight of a young man named Omar Ahmed Kahdr who was captured on a battlefield in Afghanistan when he was fifteen. Kahdr has been held in Gitmo for the last five years, and the government is finally moving forward with a military tribunal to decide his fate (potentially a death sentence, but more likely a life sentence).
Kahdr’s situation points to a blank spot in international law and the trying of child soldiers and highlights an extremely tough question: at what age should a person be held responsible for their acts? The young Afghani probably does not present a sympathetic figure for most Americans: his family was an entrenched Al Qaeda family (his father was a high level associate of Osama bin Laden’s) and the boy probably could have left the compound that was the scene of his capture before the firefight took place (some women and children were allowed to leave before the attack began). But still, how young is too young?
Many people argue that child soldiers cannot be held accountable for their actions – that they should be considered victims as much or more so than agressors. The substantial pressures asserted on children in war zones, as well as general principles of knowledge and agency, support a lenient approach. At the same time, there is certainly an age where a young man makes his own choices, and the age of legal capacity in the United States (18) may be an arbitrary cut off, especially when dealing with groups of people who grow up under very different circumstances than US children (though this fact too may argue for leniency rather than harshness).
Unfortunately, like many of the Bush Administration’s actions in the war on terror, this “trial” will most likely take place under a veil of secrecy. Gitmo, and the military tribunals fashioned to deal with its occupants, is a legal black hole – the evidence and argument is hidden not only from the American public but also from the participants. The war on terror presents many interesting and novel legal questions. It is a shame that these questions are not opened for debate in the international community, where real answers could possibly be found.
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