Khadr was instead charged under the Military Commissions Act with murder and attempted murder “in violation of the laws of war.” While it is not a war crime to kill an enemy combatant on the battlefield, the prosecution insists that it becomes a war crime – a serious violation of the laws of armed conflict – if committed by an unlawful enemy combatant. Defense counsel Rebecca Snyder argued that a battlefield killing only becomes a war crime when a combatant – privileged or otherwise – targets a person with protected status, or uses prohibited methods of killing. Protected persons include civilians, all persons in custody, incapacitated military personnel, or military medical or religious personnel. Prohibited methods include the use of human shields, poison gas, or intentional deception designed to induce the enemy into believing that one is a protected person (which is known as perfidy). Therefore, unless the prosecution can prove beyond a reasonable doubt that Sgt. Speer was a protected person when killed (which the prosecution does not contend), or that Khadr used prohibited methods of killing (which has also not been argued), his alleged actions could not constitute murder “in violation of the laws of war” even if he were an unlawful enemy combatant at the time.
The prosecution seems to claim that international law does not matter. It claims that Congress can create a new war crime under US law – and has in the Military Commissions Act – even if it has never been considered a war crime under international law in this century or the last.
- [url=http://jurist.law.pitt.edu/forumy/2008/10/omar-khadr-case-redefining-war... Macklin, University of Toronto[/url]