per se violations of the law of war.716 Khadr was charged and pled guilty to several offences, including murder in violation of the law of war. The US government said that Khadr, who was 15 years old at the time, intentionally threw a grenade that caused the death of a US Special Forces soldier during a firefight in Afghanistan on 27 July 2002.717 Intentionally targeting a soldier of an opposing force,718 however, is not in itself a violation of the law of war. Although the detention and trial of children is beyond the scope of this report, ODIHR also notes that children are to be provided with special protection and afforded procedures that take into consideration “their age and the desirability of promoting their rehabilitation”.719 In particular, children are to be “tried as soon as possible in a fair hearing” and detention before and during trial is to be “avoided to the extent possible”.720 317. Additionally, the MCAs provide military commissions with jurisdiction over several offences that are not among or not defined in accordance with recognized law of war offences, such as providing material support for terrorism, spying, solicitation and conspiracy.721 The US government recently conceded that conspiracy,722 solicitation and providing material support for terrorism are not violations of international humanitarian law.723 However, the US government has argued that these offences exist as part of the domestic common law of war724 that was in effect at the time the alleged conduct occurred.725 ODIHR is concerned that offences defined in the MCAs, which are not part of 716 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities”, op. cit., note 45, pp. 83-84. United States Military Commission, United States of America, v. Khadr, “Stipulation of Fact”, 13 October 2010, paras. 35, 42. 718 ICTY, Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, 2 November 2001, para. 124, <http://www.icty.org/x/cases/kvocka/tjug/en/kvo-tj011002e.pdf>: “An additional requirement for Common Article 3 crimes under Article 3 of the Statute is that the violations must be committed against persons ‘taking no active part in the hostilities’”; Rome Statute, Art. 8: in non-international armed conflict, a combatant adversary must be killed or wounded treacherously to be considered a war crime. 719 ICCPR, Arts. 10, 14(4). 720 UN HRC, General Comment No. 32, op. cit., note 648, para. 42. 721 “[O]ffences listed in Section 950v (24)-(28) of the Act (terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, and conspiracy) go beyond offences under the laws of war”. The offences in § 950v of the MCA 2006 cited by the Special Rapporteur are now defined in § 950t (24)-(27) and (29) of the MCA 2009. UN Special Rapporteur on human rights and counter-terrorism, Report to the Human Rights Council, A/HRC/6/17/Add.3, op. cit., note 22, para. 20. See, also, United States Assistant Attorney General David Kris, “Statement of David Kris, Assistant Attorney General, Before the Committee on Armed Services, United States Senate”, United States Department of Justice website, 7 July 2009, <http://www.justice.gov/sites/default/files/nsd/legacy/2014/07/23/AAG-Kris-testimony-7-7-09.pdf>: “there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war.” 722 During ODIHR meetings with US government representatives, it was noted that even though the conspiracy conviction was not vacated in al Bahlul v. United States of America (en banc), it did not mean that conspiracy was a healthy charge for pre-2006 conduct. ODIHR meeting with the Department of Defense Office of the Chief Prosecutor, 5 September 2014. 723 United States Court of Appeals for the District of Columbia Circuit, al Bahlul v. United States of America (en banc), 14 July 2014, op. cit., note 680: “The government has repeatedly conceded that the three offenses of which Bahlul was convicted [namely material support for terrorism, solicitation and conspiracy] are not, and were not at the time of Bahlul’s conduct, law-ofwar offenses under international law”. 724 US government representatives explained that the domestic common law of war includes crimes like conspiracy which have been tried before military commissions. They said that Congress can create military commissions to try offences triable by military commissions, including conspiracy, material support for terrorism and solicitation. ODIHR meeting with Attorneys from the Departments of State, Justice and Defense, op. cit., note 193. 725 The very existence of a domestic common law of war has been strongly challenged based upon, inter alia: (1) the contention that the concept was reportedly never raised until al Bahlul and related cases; (2) the concept was omitted from United States Department of Justice’s memo on the use of drones and (3) prior to the enactment of the MCA 2006 no court had upheld the power of a military commission to try an offence on the grounds that it violated domestic – but not international – laws of war. Marty Lederman and Steve Vladeck, “al Bahlul and the Future of ‘Domestic Law-of-War Offenses’ in Military Commissions”, Just Security website, 16 July 2014, <http://justsecurity.org/12948/al-bahlul-2/>; United States Court of Appeals for the District 717 138