96 | Towards the Closure of Guantanamo all the various procedural instances. Therefore, the right to appeal is not satisfied merely because there is a higher court. 266 231. The IACHR is also concerned with regard to the scope of the military commissions. The 2009 MCA punishes offenses committed “before, on, or after September 11, 2001” 267 and defines an “unprivileged enemy belligerent” as an individual who “(A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the alleged offense under this chapter.”268 The MCA takes, therefore, a broad view of the “hostilities,” covering offenses committed before September 11, 2001, and includes a broad definition of the persons subject to the military commissions, extending the scope to individuals not engaged in hostilities. 232. The Inter-American Commission has interpreted the principle of legality as requiring crimes to be described in precise and unambiguous language that narrowly defines the punishable offense. This in turn requires a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from behaviors that are either not punishable offenses or are punishable by other penalties. The ambiguity in describing crimes creates doubts and the opportunity for abuse of power. As the IACHR has indicated in its Report on Terrorism and Human Rights, “these principles are particularly significant in the context of domestic laws that prescribe crimes relating to terrorism.” 269 The Commission and the Court have found certain anti-terrorism laws to violate the principle of legality because they attempted to prescribe a comprehensive definition of terrorism that is overbroad and imprecise. 270 The IACHR finds, in this regard, that the broad and imprecise definitions contained in the 2009 MCA do not satisfy the principle of legality. 233. The 2009 MCA also fails to expressly exempt from its jurisdiction persons who committed the offense when they were under the age of 18. Although there is no indication that persons in that situation are currently detained at Guantanamo, the IACHR notes that at least 22 juveniles between the ages of 13 and 17 at the time of capture, have been held at Guantanamo;271 two of them, Omar Khadr and Mohamed Jawad, were tried by military commissions. According to information received by the IACHR in 2006, Omar Khadr, a Canadian citizen, was tried for a crime allegedly committed in Afghanistan when he was 15 years old. During his detention and interrogation by military personnel, he was allegedly denied medical attention; his 266 267 268 269 270 271 See in this regard, I/A Court H.R., Case of Castillo Petruzzi et al. v. Peru. Merits, Reparations and Costs. Judgment of May 30, 1999. Series C No. 52, para. 161. MCA 2009, 10 U.S.C. § 948(d). MCA 2009, 10 U.S.C. § 948(a)(7) IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116.Doc.5 rev.1, October 22, 2002, para. 226. IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116.Doc.5 rev.1, October 22, 2002, paras. 225226. See in this regard, Andy Worthington (Guantanamo expert), The Pentagon Can’t Count: 22 Juveniles Held at Guantanamo, November 22, 2008. Available at: http://www.andyworthington.co.uk/2008/11/22/thepentagon-cant-count-22-juveniles-held-at-guantanamo/ Organization of American States | OAS