In discussing the international law applying to David Hicks, it is puzzling that Professor Tim McCormack does not point out that under the Laws of Armed Conflict (LOAC), Hicks is actually being interned as a captured belligerent, not imprisoned for a crime or awaiting trial for one.
29 December 2007
Letter to Melbourne's The Age (in answer to an opinion article by Professor Tim McCormack)
(not published)
Tim McCormack ("A shameful episode", December 28, p.19) rightly criticises the US military commissions used to try David Hicks for terrorism offences.
However, not once in his article does he discuss the specialist international humanitarian law covering Hicks' internment as a belligerent captured during a war.
Circumstances Hicks has long freely admitted to, although many apologists have tried to obfuscate his armed service with the Taliban as merely "guarding a tank" one autumnal afternoon.
Professor McCormack is one of only two or three civilian lawyers in Australia with a good knowledge of the Laws of Armed Conflict (LOAC) actually applying to Hicks' internment as a captured belligerent.
His omission is disappointing at best, not least because it perpetuates the popular myth that Hicks' internment was somehow unlawful or even (wrongly) a habeas corpus matter under civil law.
Hicks was never "held without trial" or "held pending trial".
Indeed under 15 or so of the 780 odd internees ever held at Guantanamo Bay face such separate criminal trials.
LOAC, and particularly the Geneva Conventions, clearly applied to Hicks and this is was confirmed by the US Supreme Court in the June 2006 Hamdan ruling.
This struck down the original military commission process being used to try the handful of Guantanamo detainees for separate criminal offences because they contravened their Geneva Convention protections.
Many former and current members of our defence force are deeply puzzled why some fellow Australians wrongly think that David Hicks should somehow be treated differently to Australian military personnel and civilians captured in previous, current or future wars.
Fighting for the enemy makes Hicks different morally but LOAC still applies to him because international humanitarian law is universal.
There is not somehow a "get out of gaol free" card just because you are an Australian.
The biggest benefit of the Hicks case, of course, is that subsequent Australian law now clearly outlaws fighting for, or assisting, the enemy we send our defence force to fight.
So no future David Hicks or Wilfred Burchett can escape their treachery through legal loopholes, governmental inaction or popular confusion.