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Comment
by the The Vexed Legal
Situation Applying to David Hicks: The legal situation applying to David Hicks is one of considerable complexity. There is often common confusion about his situation and resolution of the issues involved is not helped by uninformed, politically-partisan or emotional claims either for or against David Hicks as an individual. Objective analysis of the legal issues concerning him really boils down to a logical sequence of five key steps: First, was there an
international armed conflict (war) occurring in Second, was David Hicks a
belligerent or a non-belligerent in the continuing armed conflict in Third, if David Hicks was (or
still is) a belligerent is he now a Prisoner-of-War (PW)? If he is not a PW,
what is he then, and what protection might or does he have under the Laws
of Armed Conflict (chiefly the Geneva Conventions and their Additional
Protocols)? Without doubt, no matter what type of captured belligerent he
might be, David Hicks is covered by the1987 United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
At the time of his capture the armed conflict was, and probably still is, an
international one (especially if the Taliban is regarded as the government of
Fourth, irrespective of his status under the Laws of Armed Conflict, should David Hicks be tried for any civil criminal offences or war crimes he may have committed. Furthermore, if he is some form of captured belligerent, would such a trial be an affront to his status (whatever it is) under the Laws of Armed Conflict? Finally, no matter if he is a captured belligerent or not, if David Hicks is to be tried, who should try him, how can or should he be tried, and what universal or specific safeguards apply to any trial? Common Confusion About the Situation of David Hicks Consideration of the fourth and fifth points before analysis of the first three is what seems to lead so many astray on the vexed legal issues involving David Hicks. Those who understand that Hicks is primarily detained as a captured belligerent approach the analysis of his overall legal situation in the logical order outlined above. Those who simply assume, for
whatever reason, that David Hicks is imprisoned or is just in custody awaiting criminal trial
(rather than in detention as a captured belligerent) or that he is being arbitrarily held indefinitely
or illegally, jump the first three steps and also often the fourth,
and ignore the fundamental part of international law applying – the
well-established Laws of Armed Conflict based on the Hague and Geneva
Conventions. Ignoring this overall context results in many commentators
failing to consider the quite separate issues of detention and trial individually.
It also leads many to concentrate on the matter of trial alone, or consider
his detention as imprisonment and only a facet of such civil criminal
trial. Approaching the legal situation of David Hicks based on such preconceptions is putting the cart before the horse. It also has the disadvantage of diverting due attention from the true legal situation governing his detention, and the conditions of international humanitarian law governing his possible release from such detention even before the relevant conflict ends. Some confusion also seems to stem from not understanding that there are two broad categories of captured belligerent under the Laws of Armed Conflict. The first category are Prisoners-of-War as recognised by the Third Geneva Convention in particular. The second category are those captured belligerents who do not necessarily qualify for PW status (as discussed below) but whose participation and capture in a war invokes the Laws of Armed Conflict. Both categories of captured belligerent retain their protected status until the conflict in question is over, or a competent tribunal (as defined in the Geneva Conventions) judges that they can be released from detention as a captured belligerent. In some cases such a release will be absolute. In other cases it is conditional and may involve a form of belligerent parole not to re-engage in hostilities (as discussed below). In some cases release from detention as a captured belligerent may be followed by arrest, remand and trial on civil criminal charges under international or domestic law (especially if terrorism or other war crimes are involved). It is worth noting that Mamdouh
Habib and others were eventually released from detention under the Laws of
Armed Conflict, essentially because the competent tribunal involved was able
to determine they had not been belligerents in the The complexity of the legal issues surrounding David Hicks confuses even lawyers, particularly ones with little or no background in the relevant international law. Even some academic lawyers with general backgrounds in international law have demonstrated insufficient knowledge of the Laws of Armed Conflict (one of the oldest and most detailed bodies of international law). Recently, for example, the Law Council of Australia lapsed into purely domestic legal thinking and terminology in describing David Hicks as having “languished powerless in custody, principally at Guantanamo Bay, for a period of 30 months before he was even charged with any offence”. Similarly, a recent letter to the Prime-Minister from the Australian Section of the International Commission of Jurists (ICJ) implied (wrongly) that "indefinite" detention was illegal in all circumstances, mentioned "the Geneva Convention" (rather than show any understanding that there are in fact four Conventions and three Additional Protocols), and did not mention the Laws of Armed Conflict at all. Such statements, apparently premised on the narrow and incorrect supposition that this is only a form of civil criminal matter, are just further variations of the common but simplistic claim that it is merely a matter of someone trying David Hicks or releasing him.
As the five-step sequence above illustrates, the legal framework of David Hicks' situation is in fact a much more complex and nuanced problem, and one firmly involved in international law ― not Australian or US domestic law ― particularly that well-established part of international law known as the Laws of Armed Conflict. Many seem to avoid tackling this complexity because it is inconvenient to their particular public stance on wider political issues beyond the fate of David Hicks. However unintended or deliberate, this mistaken approach does not help resolve Hicks' situation. Two principles are important to help cut through the confusion. First, international humanitarian law is universal and applies to Australians. Second, lex specialis applies (meaning that the most relevant and specialist law must be used). In the case of David Hicks ― as with all belligerents captured in a war ― this means that part of international humanitarian law known as the Laws of Armed Conflict. By dwelling on domestic legal concepts and ignoring the relevant international law, the Law Council, the ICJ and many others appear to misunderstand that the legitimacy and duration of David Hicks’ continued detention, as a captured belligerent under the Laws of Armed Conflict, is a fundamentally separate issue to whether he can or should be tried on terrorism or other war crimes charges, and if so, how and by whom. It has never been just a simplistic choice between the US (or some other authority) trying David Hicks as a civil criminal or releasing him from some form of real or purported criminal custody. Advocacy of this invalid option is simply a slogan rather than considered analysis. Another way of demonstrating the
separation of these two legal issues is to note that only between ten and
twenty (under two per cent) of the 770 captured belligerents ever detained at
the Guantanamo Bay detention camp are also facing possible civil criminal
charges under international or US law. Nevertheless, all 100 per cent of them
were or are still detained as captured belligerents under the Laws of Armed
Conflict not as suspected or indicted criminals awaiting trial. Moreover,
just under half the detainees ever held at Although too often ignored in popular clamour, the correct position in international law is that even if criminal charges against David Hicks were dropped tomorrow this would not necessarily mean his unconditional release from detention as a captured belligerent under the Laws of Armed Conflict. The dropping of criminal charges would, however, probably assist the relevant tribunal in determining the likelihood of him resuming belligerent activities and therefore deciding whether his release on captured belligerent parole, for example, could be justified under international humanitarian law. Who Can or Should Try David Hicks? At the end of June 2006, in a test case relating to the trial (but not the detention as a captured belligerent) of a Yemeni member of Al Qa'eda detained at Guantanamo Bay, the US Supreme Court ruled on the internal US legality of the military commission process intended to try those captured belligerents also charged with terrorism offences under US or international law. During World War II military commissions dealt with cases of treason, assistance to the enemy, espionage, sabotage, subversion and various serious contraventions of the laws of war such as the murder of prisoners and belligerence whilst deliberately masquerading in friendly uniform. Until well after the end of World War II such commissions were widely considered adequate under US and international law to try offences against the accepted laws of war. As expected, in the Hamdan test case the US Supreme Court ruled against the military commission process if these commissions were established only by the executive prerogative of the US President (under his constitutional war-making and war-fighting powers) rather than by US legislation. As an alternative, the ruling also approved US civil trials or regular courts martial for foreigners charged with terrorism offences under international law. It is likely that many Australians would agree with these decisions based on beliefs that David Hicks and perhaps others should be tried by a standard US court or by an international court of some kind. Some may even believe that they should not be tried at all. The
Supreme Court ruling was, of course, confined to the In theory the US Supreme Court might have been able to recommend the individual release of Hamdan. This would have required the Court to assume the authority of a competent tribunal as specified in the Geneva Conventions and be overwhelmingly recognised as such by other signatories to those Conventions. This was always unlikely because there is no precedent for such an action by a national higher court (especially in a highly respected jurisdiction). Moreover, the Supreme Court did not direct that Hamdan's status and circumstances should be considered by such a competent tribunal, probably because this had already occurred and will continue to occur during the regular reviews of all detainees by the tribunals. It should also be noted that these competent tribunals are instituted under the Geneva Conventions. They are totally separate to any courts or military commissions that might be tasked with trying some detainees for criminal offences. Majority
international law opinion undoubtedly supports the US Supreme Court position
on criminal trials and the general legitimacy of detaining captured
belligerents during continuing conflicts. This widespread opinion is based on
the continuing evolution of the Laws of Armed Conflict (originally based
solely on the Hague and Geneva Conventions), and from the 1990s onwards the
institution of specific international war crimes tribunals for the conflicts
in Yugoslavia, Rwanda and Sierra Leone. In April 2002 the International
Criminal Court (ICC) was formally established to try individual
contraventions of international humanitarian law, although the The question of whether David Hicks and other captured belligerents can or should be tried in some other jurisdiction, and under what charges, remained unresolved in the US Supreme Court ruling. This too was expected as national higher courts cannot really establish international law unilaterally. Trial by an international court or an Afghan one remain two obvious possibilities but there are significant problems with both options, especially the latter (as discussed below). An
Australian trial for David Hicks is apparently unlikely – as it was for
Wilfred Burchett over his deliberate and active assistance to the enemy in
the Korean and Vietnam Wars – because the Australian government considers the
law applying until 2005 as inadequate for the task. This should be borne in
mind by those who agitate for the repeal of Australia's new or updated counter-terrorism
and sedition laws without giving due regard to their wartime rather than
peacetime context (and the constitutional heads of power consequently
applying). Whatever his particular status as a captured belligerent might be,
if David Hicks could have been charged with criminal offences in Why Detention is a Fundamentally Separate Issue to Trial None of these questions as to the appropriate criminal jurisdiction for potential criminal trials, or indeed whether David Hicks can or should be tried by anyone, affect the continued legitimacy of his detention under the Laws of Armed Conflict. In a nutshell, as with any belligerent captured during a war, David Hicks can be legally detained under international law as a captured belligerent until the applicable armed conflict is over. In certain circumstances he could also be released on captured belligerent parole as discussed below. For those unfamiliar with the Laws of Armed Conflict, or those who think only in terms of civil criminal law, especially domestic law, this situation might at first appear unusual or unreasonable. Such detention of captured belligerents, however, is firmly based in various treaties, conventions and longstanding legal precedent. The US Supreme Court acknowledged this in its recent judgement in the Hamdan test case. Furthermore, wider international humanitarian law requires the detention of captured belligerents in order to limit the effects of conflict on non-combatants (as defined in the Fourth Geneva Convention). In terms of detention as a
captured belligerent David Hicks is not being treated
differently in this regard to any other belligerent who has been captured and
his circumstances do not appear to be an unusual case warranting special
treatment. As all are equal under international humanitarian law his
nationality is irrelevant to his status as a captured belligerent
(although it may affect any criminal trial depending on the laws of the
country concerned). Claims that David Hicks should be treated differently as
a captured belligerent because he is Australian (or indeed British) are
essentially emotional appeals and do not have any valid legal basis. Numerous
wars before and since the Geneva Conventions came into force have involved
the detention of captured belligerents from a very large number of countries,
including The International Covenant on
Civil and Political Rights (ICCPR) does not necessarily apply to captured belligerents
because during armed conflicts, and where differences in applicability or
jurisdiction exist, the covenant is subordinate to the Laws of Armed Conflict
in international humanitarian law. The principle of international law
involved is that where there appears to be clash, the specialist body of law
applies, so the Laws of Armed Conflict apply during wars. As also provided in
the covenant, due to the exigencies of conflict, those parts of the ICCPR
which clash with the Laws of Armed Conflict can be suspended by due
declaration of a belligerent party. While the Taliban never accepted
or applied the ICCPR, and terrorist organisations such as Al Qa'eda obviously
do not by definition, it is the sequence of events that is fundamentally
important. The Islamist terrorist attacks in On In summary, David Hicks is currently being detained as a captured belligerent under the Laws of Armed Conflict. It is incorrect in both fact and law to regard him solely as someone imprisoned arbitrarily or imprisoned awaiting civil criminal trial under US or international law. This is a major source of confusion in debates about David Hicks, especially when arguments to free him are based on only domestic legal concepts (such as habeas corpus) and ignore the relevant international law. Which Conflict Applies to David Hicks and How? In terms of his detention the key and inter-related issues concerning David Hicks are which particular conflict applies and whether Hicks is a PW or some other type of captured belligerent. In
modern international law the existence
of an armed conflict (war) is a material fact alone, thus automatically triggering the
many restrictions and protections of No-one seriously maintains there
was no war going on in If, as the Australian Government
believes, David Hicks volunteered for and trained with various terrorist
organisations including Al Qa'eda and Laskar-e-Toiba the question of which
conflict applies becomes much more complicated. The conflict between Islamist
terrorism and the international community is a continuing one and is likely
to be prolonged in its duration. Given well-established precedents in
international law from numerous armed conflicts, citizenship alone of an
enemy country or membership of an enemy belligerent organisation is grounds
for internment or detention respectively after capture. Given the nature of
war and of battle, whether an individual belligerent was actually armed or
unarmed, or what they were doing, at the particular time of capture is
essentially irrelevant. It is their overall status as a member of a
belligerent organisation that dictates their liabilities, responsibilities
and rights under international law. This is also a continuing
international conflict, both in The precise circumstances of
Hicks' capture during the war in Afghanistan are relevant to some extent but
international law accords far greater weight to demonstrated allegiances
overall. For example, all German soldiers captured by the Allies in World War
II were detained as PW – no matter where, how and when they were captured –
because their membership of the German armed forces alone dictated their
status as belligerents. The same principles applied to foreign nationals
serving with German forces, unless they were citizens of countries at war
with In the case of David Hicks, the
claim is sometimes made that “he never fired a shot” and was captured by the Is David Hicks a Prisoner-of-War? The Laws of Armed Conflict undoubtedly apply in the broader sense to both international conflicts and to civil wars. One school of legal thought considers that the full protection of PW status only applies to international conflicts. Other schools of thought disagree and consider that PW status, or at least the general protections involved, also apply, to varying degrees, in internal conflicts within States. According
to his family and other public statements David Hicks is commonly regarded as
having served with the Taliban in There is a catch though. As it has never abided by international law in its pursuit of armed conflict, even under the Additional Protocols the Taliban would not appear to qualify for recognition as a responsible belligerent authority. If the Taliban does qualify there are two broad alternatives. First, David Hicks can be detained as a PW until the conflict in Afghanistan concludes. Second, under the Geneva Conventions, the detaining power could release him on parole, traditionally but not necessarily to a neutral country, once he guarantees to undertake no further actions of any kind as an individual belligerent. Any contravention or renunciation
of such parole, of course, would constitute a serious breach of international
law and render the violator liable to immediate surrender for renewed
detention by the authorised detaining power until the conflict in What if David Hicks is not a Prisoner-of-War? If David Hicks was (or is) a member of a group proscribed as an international terrorist organisation by the United Nations his status is more uncertain. He would not be covered by the Third Geneva Convention (governing PW). This is because even under the 1977 Additional Protocols to that Convention, terrorist organisations are not recognised as legitimate international actors who abide by international law in the conduct of their operations – and who can be held properly responsible and accountable for the actions of their subordinates. This is what generally separates terrorists from responsible (and recognised) guerilla organisations. In such a case, David Hicks could be legally detained as a captured belligerent but not as a PW (or indeed as a prisoner necessarily awaiting civil criminal charge) until the wider continuing conflict between the international community and Islamist terrorism ends. That such detention might be prolonged is in itself irrelevant. Many genuine PW, including numerous Australians, have been detained for very long periods in previous conflicts. In several wars in the second half of the 20th Century (India-Pakistan, Vietnam, Iran-Iraq, etc) detention for over a decade was not uncommon. The length thus far of David Hicks' detention as a captured belligerent is not unusual. The option of release on parole is uncertain in such circumstances as the precedents really only apply to PW but international law may evolve in this regard. David Hicks' Australian lawyers have claimed he is prepared to offer the undertakings needed for such parole. This may offer a way forward at some stage if his continuing adherence to the conditions of parole could be guaranteed. Who can provide these guarantees if Hicks is not a PW is a difficult problem. Internationally proscribed terrorist organisations, for example, could not be recognised as international authorities legally and practically capable of taking responsibility for enforcing his adherence and accepting penalties if he did not. This is not an insurmountable problem and perhaps the International Committee of the Red Cross, as the protecting power for captured belligerents, could do so. As in the case of PW, if parole occurred and a released detainee subsequently renounced the parole, or otherwise resumed belligerent activities, they would become immediately liable for renewed detention as a captured belligerent until the relevant conflict ended. This would need to be well understood by all concerned before parole could even begin to be considered a viable option. Moreover, any time spent in detention as a captured belligerent would not necessarily qualify as time already served in prison if David Hicks is subsequently convicted of criminal offences under US, Australian or international law. The main reason for this is that he is being currently held in a detention camp for captured belligerents established under the Laws of Armed Conflict. He is not being held in a civil or military prison on remand for criminal trial, nor is he imprisoned after being convicted of an offence. Again international law may need to evolve to determine what could happen in this regard. In the interim, the Australian and US Governments appear to have negotiated a commonsense agreement that time in detention can be counted towards time served in any subsequent prison sentence. Treatment in Detention and Interrogation In the absence of clear direction
in international law as to the responsibilities of a detaining power for
captured belligerents who are not PW, declared One significant issue relates to the questioning of captured belligerents and the rights of the detainee and the detaining power. Under the Third Geneva Convention, for example, a PW (as a member of an authorised armed force) does not have to answer questions beyond providing their name, rank, Service number and date of birth. A belligerent who is captured and does not qualify for PW status, however, has no right in international law to refuse to answer further relevant questions. Both types of captured belligerent are undoubtedly covered by the universal protections of the Convention Against Torture. Both are probably also protected by Common Article 3 of the Geneva Conventions and Article 75 of Additional Protocol 1, regarding the prohibition of violence to life, health or physical or mental well-being. In summary though, a PW has additional protection relating to methods of detention, general treatment and interrogation that other types of captured belligerent do not. In day-to-day practice, the main exception to PW status for other captured belligerents is that there is no restriction on the nature of the questions that can be asked of such a detainee. There are, of course, the standard universal provisions of international law, such as the Torture Convention (and probably Common Article 3 and Article 75 of Additional Protocol 1), which provide detailed restrictions on how such questioning can be conducted. Who is the Legitimate Detaining Power and Does it Matter? In the case of David Hicks and some other detainees there is some minor concern as to who might be the correct detaining power under the Geneva Conventions. Hicks is currently held by the US as the detaining power but some accounts have him being originally captured by elements of the Afghan faction, the Northern Alliance, during fighting with the Taliban. The grounds for the Although both the Taliban and the There is now a new, democratically
elected, government in Given the circumstances of the
continuing war in Afghanistan, and the variable human rights record of all
recent Afghan governments, such a
transfer of detaining power responsibility might not be in David Hicks' best
interests, even if it could be justified legally. For all its real and
alleged faults, the detention camp for captured belligerents at Given that David Hicks' claim to PW status is generally regarded as tenuous at best, a transfer to Afghan custody would also raise the possibility that the current Afghan government might seek to try Hicks for civil criminal offences or war crimes. The legality of such a trial under Afghan law poses the same type of problems as those discussed earlier. It would also present the difficulty of which Afghan criminal code would apply, given that the country has suffered a state of civil war and had numerous types of real, nominal and purported governing regime since the late 1970s. If David Hicks was transferred to
Afghan detention as a captured belligerent his continued access to Australian
consular visits for civil criminal matters concerning him might not be
guaranteed. Under the Geneva Conventions only the ICRC (as the protecting
power) has the absolute right to visit captured belligerents in detention. In
his case the fact that Detaining David Hicks in Is There a Viable Alternative to Detaining Belligerents Who are Captured? There is no doubt that wider
international humanitarian law requires the detention of belligerents who are
captured, chiefly for the continuing protection of non-combatants from attack
if those detained were released. There is also no doubt that some of the
circumstances and policies surrounding the detention camp at One fundamental question generally
ignored by critics is the lack of a viable alternative to such detention.
While only around two per cent of detainees in As prescribed by the Geneva
Conventions the As per longstanding legal
precedent, the onus of proof under the Laws of Armed Conflict lies with those
detained – and with the authority that commands them, accepts responsibility
under international law for their actions and which sanctions or purports to
sanction their belligerent status. In World War II, for example, the allies
did not generally release German and Japanese PW until the war was over
(except on parole in certain humanitarian circumstances such as terminally
ill or severely wounded personnel). On the other hand, most Italian PW were
released in 1943 once In assessing the risks posed in
releasing captured belligerents from terrorist groups further complications
arise. In particular, the deliberate and indiscriminate targeting of
non-combatants by terrorists, and their general refusal to abide by
international humanitarian law, mean detained terrorists should not be
accorded the benefit of the doubt. Criticism of the The The initial use of the interim terms illegal combatant, unlawful combatant and unprivileged belligerent by the US to describe belligerents who had been captured but who did not qualify for PW status, though long since discontinued, has also caused continuing confusion in some quarters. It has unfortunately encouraged mistaken concentration on the words illegal, unlawful and unprivileged rather than the more important words combatant or belligerent in the term concerned. To some extent it has also misdirected due attention away from the regrettable absence of the important and relevant word captured in such discourses. Most of these controversies are not directly applicable to David Hicks' continued detention or possible release as a captured belligerent. This has often been obscured by the subjective vehemence of argument on both sides ― especially where this has concentrated on the separate issue of his possible criminal trial and ignored the facts and the law relating to his detention as a captured belligerent. Hicks' Legal Limbo and the Need for a Fifth Geneva Convention Even if not tried for terrorist offences or other war crimes in some jurisdiction, largely by his own actions apparently, David Hicks inhabits a form of international legal limbo. This does not excuse international law from resolving the situation in detail, particularly as many more than David Hicks are or will be affected by it. His hopefully temporary predicament highlights the urgent need to negotiate a Fifth Geneva Convention to cover belligerents who have been captured but who do not qualify for PW status because their modes of combat, such as terrorism, disqualify them under the 1949 Third Geneva Convention and its 1977 Additional Protocols. No matter whether the armed conflict applying is an international or an internal one, the spirit and principles of international law embodied in the Laws of Armed Conflict undoubtedly cover all belligerents to some extent, including after their capture. It is the lack of detail for the precise situation of David Hicks and others that is the problem. In summary, international law tells us what David Hicks is probably not fairly clearly, but it does not yet adequately cover what he may be (as a belligerent who has been captured but who is probably not a PW) and how he should be treated. If David Hicks is not a PW or a
civilian non-combatant his situation still requires a commensurate degree of
definition and regulation to what the existing four Geneva Conventions and
their three Additional Protocols provide for wounded, sick and shipwrecked
members of armed forces in a conflict, Prisoners-of-War captured in a conflict,
and civilian non-combatants caught up in a conflict. An additional Geneva
Convention or Protocol is needed to set out how this particular type of
captured belligerent status is to be specified and decided. It also needs to
specify appropriate safeguards, regulate detention and interrogation
conditions, and detail the rights and responsibilities of both those being
detained and of the detaining power authorised to hold them. Only then will
we avoid drawn-out controversies over legally imperfect interim measures such
as the The Perils of Ignoring the Complexity of the Hicks Case Concern for the legal situation of David Hicks is natural but there are serious dangers in uninformed concern about this individual case over-riding the broader universality of long-established and hard-won international law. The controversy over his potential criminal trial has obscured this danger. Furthermore, at the very least,
David Hicks apparently chose to serve with the Taliban in the The problem of humanely dealing with proven and suspected terrorists in general also means we have to grapple with complex legal, moral and practical issues arising from the need to extend the protection of international humanitarian law to individuals and organisations that refuse to comply by such law ― and indeed exploit our adherence to it as a weakness in their prosecution of a continuing armed conflict against us. Determining the legal status of David Hicks involves issues of considerable complexity. This complexity is generally not reflected in public debate about his detention. The main reason for this is that issues concerning his potential trial take precedence in debate or are wrongly conflated and confused with the issue of his detention as a captured belligerent of some description. Many of the arguments being advanced on Hicks' behalf are fully or partially contradictory. The most common is the claim that David Hicks is a Prisoner-of-War but that he should still be either tried as a civil criminal or released. From the Australian viewpoint, as well as contravening well-established international law, such a stance also strongly contradicts Australia's longstanding position, going back to the 1954 McBride Declaration in federal parliament, that Australia would regard any reservation by (certain communist) states acceding to the Geneva Conventions, purporting to give them the authority to try Australian or other PW as 'war criminals', as a serious and fundamental breach of the Conventions. Another common contradictory claim is that those detained at Guantanamo Bay are entitled to the full protection of the Geneva Conventions in terms of the conditions of their detention and potential trial, but that the legitimate although to some degree indefinite aspects of such detention until the relevant conflict ends (or they are released on parole) somehow does not apply to them. The Law Council of Australia has accused the Government of being indifferent to David Hicks’ fate and has accused the Prime-Minister of rewriting history. Others have made similar statements. Whether these accusations are true or not, many critics have made commensurate mistakes by ignoring the complexity of David Hicks’ status as a captured belligerent of some description. Such critics also unfortunately tend to ignore history’s long struggle to curb uncivilised and unrestricted warfare through the development and consistent enforcement of the Laws of Armed Conflict. By condoning breaches of the Laws of Armed Conflict or applying them inconsistently we risk making conflicts even worse. Terrorist organisations, governments and armed factions that ignore their responsibilities under the Laws of Armed Conflict and wider international humanitarian law should not be rewarded. They should instead be punished for such contraventions. This includes those individuals who freely choose to fight for such groups. Not condoning such major breaches
of international law is particularly important because most of Releasing David Hicks unilaterally or unconditionally from detention as a captured belligerent, on the spurious grounds that he has not been tried or convicted with a civil criminal offence, is inconsistent with long-established international law in this regard and risks undermining such law. Such a step on such grounds would effectively punish responsible belligerents the world over who take the trouble, and often the increased personal risk involved, to abide by international humanitarian law in their conduct of armed conflict. Responsible belligerents should be rewarded not punished. Any unilateral or unconditional release of belligerents who have been captured but who do not qualify for PW status also unnecessarily risks undermining the protection that Australian PW in future conflicts should, and need to have, under the tried and tested provisions of the Laws of Armed Conflict. In the quest to free David
Hicks unilaterally at all costs, longstanding precedents are being
ignored and arguments are being posed to somehow make him an exception to the
consistent and fair application of the Laws of Armed Conflict. The rule of
law internationally is compromised by such apparent short-term and
short-sighted expediency. Much more thought needs to be given to the serious
longer-term consequences of such actions. Releasing David Hicks on Parole from Detention as Captured Belligerent The conflicts in Assuming the No matter whether David Hicks’
separate criminal trial by the Conversely, calls that ignore the relevant international law, especially where they ignore that the detention of David Hicks as a captured belligerent is a completely separate issue to his potential civil or military criminal trial, simply postpone the practical resolution of his vexed legal status. This is as much a moral issue as it is a legal and a practical one, particularly where David Hicks is employed as a pawn by both sides in domestic political disputes. Getting David Hicks released from detention as a captured belligerent by addressing both the practical and legal aspects involved should surely be the real focus of public debate. |
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