Other issues are whether he was tortured.  

He's also not speaking to his American lawyers, won't participate in the proceedings and his Canadian lawyers have had a difficult time getting approval to visit him at Guantanamo.

It seems like he will be tried as if in abstentia.

No wonder so many people are tempted to equate what happened at Virginia Tech to what is happening in Iraq.

Attacking an occupying soldier is not an act of terrorism. And it most certainly is not attempted murder.  

2. Create a gulag

Once you have got everyone scared, the next step is to create a prison system outside the rule of law (as Bush put it, he wanted the American detention centre at Guantánamo Bay to be situated in legal "outer space") - where torture takes place.

At first, the people who are sent there are seen by citizens as outsiders: troublemakers, spies, "enemies of the people" or "criminals". Initially, citizens tend to support the secret prison system; it makes them feel safer and they do not identify with the prisoners. But soon enough, civil society leaders - opposition members, labour activists, clergy and journalists - are arrested and sent there as well.

This process took place in fascist shifts or anti-democracy crackdowns ranging from Italy and Germany in the 1920s and 1930s to the Latin American coups of the 1970s and beyond. It is standard practice for closing down an open society or crushing a pro-democracy uprising.

With its jails in Iraq and Afghanistan, and, of course, Guantánamo in Cuba, where detainees are abused, and kept indefinitely without trial and without access to the due process of the law, America certainly has its gulag now. Bush and his allies in Congress recently announced they would issue no information about the secret CIA "black site" prisons throughout the world, which are used to incarcerate people who have been seized off the street.

Gulags in history tend to metastasise, becoming ever larger and more secretive, ever more deadly and formalised. We know from first-hand accounts, photographs, videos and government documents that people, innocent and guilty, have been tortured in the US-run prisons we are aware of and those we can't investigate adequately.

But Americans still assume this system and detainee abuses involve only scary brown people with whom they don't generally identify. It was brave of the conservative pundit William Safire to quote the anti-Nazi pastor Martin Niemöller, who had been seized as a political prisoner: "First they came for the Jews." Most Americans don't understand yet that the destruction of the rule of law at Guantánamo set a dangerous precedent for them, too.

By the way, the establishment of military tribunals that deny prisoners due process tends to come early on in a fascist shift. Mussolini and Stalin set up such tribunals. On April 24 1934, the Nazis, too, set up the People's Court, which also bypassed the judicial system: prisoners were held indefinitely, often in isolation, and tortured, without being charged with offences, and were subjected to show trials. Eventually, the Special Courts became a parallel system that put pressure on the regular courts to abandon the rule of law in favour of Nazi ideology when making decisions.

First, before we start, let's be completely clear up front that this fellow--fighting and captured at sixteen years of age--was a child. It doesn't matter that he may have been regarded as an adult in Afghanistan or in inumerable other countries and cultures. The simple fact is, he's in our power now and we regard sixteen year-olds as children.

This conclusion is supported, at a minimum, by customary international law and possibly by treaty as well (more on the treatment of treaties below).

Second, I called him a "child soldier" in the title to this comment because, whether or not he is eligible for POW status, he was fighting in a war. Unless treaties or conventions exempt children from treatment under the usual laws of war, he will have the same burdens and protections placed on him as other war participants.

As I wrote upthread, the most common of these are the Geneva Conventions. Of significant importance in the last five years is the Rome Statute (even though the U.S. isn't a party).

With those preliminary matters out of the way, I started looking around to see what international laws specifically applied to children. At the top of the list is the 1990 Convention on the Rights of the Child ("CRC") (PDF). The CRC doesn't apply directly to the issue of war, but it does lay out how children are to be treated in many circumstances. (Incidentally, it defines "child" as anyone under the age of eighteen.)

Article 37 is most important for our discussion. It has several parts. First, it prohibits "torture or other cruel, inhuman or degrading treatment or
punishment," capital punishment, and life imprisonment for child offenders. Second, it places limits on the imprisonment or detention of children:

The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

It also provides that child prisoners be separated from adults, that they have access to lawyers, and that they have the right to challenge the legality of their imprisonment.

These prohibitions provide some idea of the treatment of children prisoners. Note, however, that it does not rule out trials for children. It just requires that they be fair and otherwise in accord with international human rights standards.

Though it never directly mentions war prisoners, Article 37 seems to be directly on point. There is one significant problem: the United States is not a party to the CRC. We signed it but never ratified it. (Somalia is the one other holdout, though this doesn't really mean much; Somalia hasn't had a government since 1990.)

It's possible that some will argue that the treatment of children codified in the CRC has actually passed into the ambit of customary international law. That argument faces two significant problems in the context of child soldiers.

First, customary international law is recognized as the widespread practice of states, believing that their conduct is required by law. There are two key elements to customary internationa law: (1) widespread practice; and (2) belief that they are obligated to behave that way. Unfortunately, it is doubtful that there is a widespread practice of treating children in accordance with the prohibitions in Article 37. Moreover, the very language of the CRC makes it clear that the parties joining the agreement that they believed they were doing something new, not codifying generally accepted practices.

Second, in the grand scheme of things, customary international law is trumped by actually signed treaties and conventions. It is analogous to the way that our government can overrule common law by the use of statutes or amendments. The U.S. is an actual party to the Geneva Conventions which regulate warfare. Therefore, those conventions will take precedence over customary international law; In other words, even if it were the case that the protections in Article 37 were customary international law, it is far from clear that the U.S. would be bound to follow it.

Because of my work with International Justice Mission, I knew that child soldiers were an important issue for the Special Court for Sierra Leone. The Special Court was formed by agreement between the government of Sierra Leone and the UN following the end of the civil war in that country.

After much debate and discussion, it was decided that child soldiers between the ages of 15 and 18 would be subject to trials at the Special Court. However, imprisonment was ruled out as a punishment. Instead, "alternative programs" were to be utilized in sentencing. Rehabilitation was a major goal of these alternative programs, but I have no information on whether this arrangement was carried out in good faith.

From the above, it is not plainly illegal to subject child soldiers to trial. However, it's possible that children are due special protections even in the course of their trials.

Because of that possibility, I also poked around to find out what I could about the treatment of children in trials. I found the U.N. Standard Minimum Rules for Juvenile Justice 1985 ("Beijing Rules"). Though the Beijing Rules are not binding, they provide a good idea of how juveniles are to be treated by court systems.

Of most importance to me was the emphasis on the future well-being of the child. Though it explicitly disclaims favoring rehabilitation over what it calls "just deserts," I think there is a clear preference for rehabilitative punishments (excuse the near-oxymoron). Note also that the Beijing Rules also prohibit capital punishment, but not imprisonment.