The abuse of ambiguity : the uncertain status of Omar Khadr under international law
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Canadian yearbook of international law = Annuaire canadien de droit international, Vol. 50, 2012, p. 95-161
There has been a great deal of contemporary scholarly debate, in the abstract, surrounding many of the issues related to Khadr's case, such as the status of "unlawful combatants" and child soldiers. This article endeavours to clarify Khadr's status under international law. First, it analyzes Khadr's status under international humanitarian law,(IHL). In doing so, it considers the character of the conflict in which Khadr was captured, the concept of combatancy, the assertion that Khadr was an "unlawful combatant," and the rights guaranteed to Khadr under IHL as a result of his status. Second, the article assesses Khadr's potential protections as a child soldier by surveying the debate concerning the definition of child soldiers, the obligations of states detaining child soldiers, and the principles governing the treatment of minors involved in penal processes generally. This article focuses on the international legal status and protections Khadr should have been granted, rather than the question of whether any specific breaches of his rights in fact occurred. Nevertheless, even without a thorough review of the state conduct at issue, it is evident that the United States (and arguably Canada) breached some of the basic guarantees that should have been afforded to Khadr. While the law surrounding each aspect of his status is not clear, it seems the United States and Canada have exploited this very ambiguity to justify their disregard for Khadr's rights. The article concludes by observing that this approach to legal ambiguity is, itself, contrary to the foundational principles of IHL.