But after the motions hearing had ended, the question became: will Omar Khadr, charged with murder and attempted murder in violation of the law of war for a grenade attack in July 2002 in Baghram, Afghanistan that claimed the life of Army Sgt. 1st Class Christopher Speer, actually be tried for war crimes?
In addition to murder, Khadr is charged with conspiracy, providing material support for terrorism and spying. the killing of a lawful combatant by an unlawful combatant constitutes a war crime. The defense countered that this is not the case, as demonstrated by military commission rulings for Ahmed Hamdan and Mohamed Jawad, and that combatant acts by non-combatants do not violate the law of war. The defense further argued that, by definition, Khadr was not an unlawful combatant but an unprivileged belligerent who does not qualify as a prisoner of war.
“If [Army Col. Patrick Parrish ] follows the other judges, he’ll say it’s not a war crime,” Navy Lt. Cmdr. William Kuebler said during a post-court press conference. “The question is when he’ll say that.”
Petty, speaking after court, said the unresolved issue before the judge is what instruction he will give the jury.
The defense continued to contend that Khadr did not throw the grenade in question. Kuebler attempted in court to display photos taken of the compound at the time of the attack by Soldiers at the scene to bolster the defense claim that Khadr was buried facedown under the debris of a collapsed roof and was unable to commit the crime for which he is charged. Parrish did not allow the photos to be shown Friday.
“The most significant thing is what didn’t happen,” Kuebler told reporters later, referring to the photos. “It’s indicative of the nature of this process to conceal information.”
John Murphy, assistant prosecutor, said the government was not concerned about the photos in question.
“We provided them,” he said. Petty added that the defense has had the photos for more than a year.
“We are confident about our case,” “We urged the judge to decide this issue prior to trial,” Petty said. He indicated that Navy Capt. Keith Allred, who presided over the Hamdan case, regretted the instructions given to that jury.
Army Capt. Keith Petty, assistant prosecutor, cited military judge Army Col. Peter Brownback’s ruling on a defense motion to dismiss murder charges to bolster the government’s argument that Murphy continued. “We will have evidence that we are willing to present that [Khadr] is guilty.”
Murphy suggested that the defense was seeking to try the case in the media. He declined to discuss specifics about the photos or evidence to avoid prejudicing the accused as well as potential jury members.
The defense team appeared willing to entertain the notion that Khadr’s wounds – he was shot twice in the back – may have occurred after he was discovered and cleared of the debris, but would not venture so far as to officially make that claim. Kuebler said he would not speculate how Khadr was shot in the back.
Petty said prosecution witnesses have been notified of the Jan. 26 trial, but conceded that those witnesses most likely keep up with the news.
“The bottom line is, since Nuremberg we have never prosecuted a child for war crimes,” Kuebler said, adding that Khadr would be safe if returned to Canada. Khadr was born in Toronto in 1986 but had lived with his family in Peshawar, Pakistan mostly since birth.
Marine Maj. Jeffrey Groharing, lead prosecutor in the Khadr case, was not present at Friday’s hearing.