This law of war obligation to treat juvenile detainees different from adults

This law of war obligation to treat juvenile

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This law-of-war obligation to treat juvenile detainees different from adults, and to assist them with rehabilitation and reintegration, is confirmed by other international sources that help define the law of war. See, e.g. , Convention on the Rights of the Child, Nov. 20, 1989, art. 38(2), 1577 U.N.T.S. 3 (“States Parties shall take all feasible measures to ensure that [juveniles] do not take a direct part in hostilities.”); id . art. 39 (“States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; . . . or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.”); id . art. 37(b) (“[t]he arrest, detention or imprisonment of a child . . . shall be used only as a measure of last resort and for the shortest appropriate period of time”). Moreover, the fact that the United States signed and ratified the Child Soldier Protocol demonstrates not simply that the United States recognizes its provisions as part of the law of war, but also that it creates independently binding treaty-based obligations on the United States. Nothing in the AUMF suggests that Congress, in authorizing the President to use “necessary and appropriate” force, intended to permit the President to violate U.S. treaty obligations imposed only two years before. See, e.g ., Weinberger v. Rossi , 456 U.S. 25, 32 (1982) (“an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains”) (citing Charming Betsy , 6 U.S. (2 Cranch) 64, 118); Cook v. United States , 288 U.S. 102, 120 (1933) (“A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly 42
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expressed.”). It is thus clear that the AUMF permits the Government to detain juveniles arrested in armed combat only consistent with the provisions of the law of war, as set forth in the Child Soldier Protocol. And here, there is no serious dispute that Petitioner has not been detained in this manner. As noted above, Petitioner has, since his capture and transfer to Guantánamo Bay, been detained in adult facilities together with the rest of the adult population at Guantánamo Bay: Petitioner has at no time been purposely segregated from adult detainees or afforded special treatment because of his status as a juvenile when initially charged. See Kuebler Affidavit ¶ 3. He has certainly not been placed into a rehabilitation and reintegration program consistent with the requirements of the Child Soldier Protocol. 25 Petitioner’s detention in this manner—as an adult, rather than as a juvenile—exceeds the President’s authority under the AUMF. The preceding discussion also makes clear that Petitioner’s detention as an adult, and the Government’s failure to assist in his rehabilitation and reintegration, also violates the United States’s obligations under the Child Soldier Protocol itself. As discussed above, this Court has
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  • Summer '16
  • Ramon Wawire
  • Supreme Court of the United States, Habeas corpus, Hamdan v. Rumsfeld, Boumediene v. Bush, military commission

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