The vexed legal situation of David Hicks: Why it is not just a case of "trying him or releasing him"

As confirmed by the late June 2006 US Supreme Court ruling in the Hamdan test case, David Hicks' internment under the Laws of Armed Conflict (LOAC) is a fundamentally separate legal issue to whether he can or indeed should be tried for terrorism offences, and if so, how and by whom. This distinction and its underlying principles of international law are not understood or are simply ignored by too many on either side of the David Hicks controversy.

There is often common confusion about his situation. 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, and practical resolution of them,  really boils down to a logical sequence of five key steps:

  • Was there an international armed conflict (war) occurring in Afghanistan at the time David Hicks was captured?
    • No-one seriously claims there was no war in Afghanistan at that time involving a UN-endorsed and US-led international coalition (together with a principal Afghan faction) on the one side, and the Afghan faction known as the Taliban and various international terrorist organisations on the other.
    • The international legal recognition of armed conflict, and which particular conflict might apply, is discussed below.
    • Whether the war in Afghanistan subsequently became a non-international armed conflict is irrelevant because at the time of Hicks' capture it was clearly an international one.
  • Was David Hicks a belligerent or a non-belligerent in the continuing armed conflict in Afghanistan at least (and perhaps the continuing wider international conflict with Islamist terrorism)?
    • The evidence overwhelmingly points to him being a belligerent of some sort, not least because his family acknowledge he served with one of the belligerent factions, the Taliban, during the war inAfghanistan and have publicised his letters and other communications to that effect.
    • The Australian Government also believes that David Hicks has admitted to training (at least) with various international terrorist organisations, including Al Qa'eda and Laskar-e-Toiba.
    • If he has trained or served with such organisations it may be logical to regard him as also a belligerent in the wider conflict between the international community and Islamist terrorism.
    • The consequences of either or both conflicts applying are discussed below.
  • 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 Afghanistan at that time).
    • He is therefore also covered by, at least, Common Article 3 of the four Geneva Conventions.
  • 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?
  • 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 interned 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 interned as a captured belligerent), or that he is being arbitrarily held indefinitely or illegally, jump the first three steps.

 They also often jump 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 internment and trial individually.

It also leads many to concentrate on the matter of trial alone, or consider his internment 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 internment, and the conditions of international humanitarian law governing his possible release from such internment 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 internment 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 internment 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 internment under the Laws of Armed Conflict, essentially because the competent tribunal involved was able to determine they had not been belligerents in the Afghanistan conflict specifically, or in the wider conflict with Islamist terrorism generally.

As in previous wars, other captured belligerents have been released because the relevant competent tribunal judged they no longer posed an unacceptable danger of renewing their belligerence in the armed conflict in which they were captured.

The best Australian historical example is during World War II when most Italian PW were released on parole to work on Australian farms (even well before Italy formally changed sides in the war).

In the current war inAfghanistan, virtually all Afghan captured belligerents who fought only for the Taliban have been released to the custody of the new Afghan Government.

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. They incorrectly described 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 too.
  • 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 internment, 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 interned at Guantanamo Bay are also facing possible civil criminal charges under international or US law. Nevertheless, all 100 per cent of them were or are still interned as captured belligerents under the Laws of Armed Conflict not as suspected or indicted criminals awaiting trial.

Moreover, just under half the internees ever held at Guantanamo Bay have been released from internment as captured belligerents after reviews by the competent tribunals constituted under the Geneva Conventions.

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 internment 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 internment 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 or under a false flag. 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 US constitutional responsibilities and powers involved for instituting a civil or military criminal trial in these circumstances.

As also expected, the ruling did not challenge the well-established international law relating to the continuing internment  of belligerents captured during continuing conflicts.

As Supreme Court Justice Stevens noted in the majority judgement: Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities.

The Supreme Court could not really challenge the general application of such international law because it is so firmly based in international treaty, precedent and practice.

Consistent with this approach, the majority judgement noted that Common Article 3 of the Geneva Conventions and Article 75 of Additional Protocol 1 applies to the treatment of all types of captured belligerent during their internment at Guantanamo Bay.

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 (even 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 internees 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 separately trying some internees for criminal offences.

Majority international law opinion undoubtedly supports the US Supreme Court position on criminal trials and the general international legitimacy of interning 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 theUS is among the countries that have not agreed to surrender to its jurisdiction (as is the right of any country).

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 2002 as inadequate for the task. Especially regarding the crime of treachery(as opposed to treason or sedition).

This should be borne in mind by those who agitate for the repeal of Australia's new or updated counter-terrorism, treachery and sedition laws without giving due regard to their wartime rather than peacetime context (and the constitutional heads of power consequently applying).

Quite rightly, under the Security Legislation Amendment (Terrorism) Act, 2002, an Australian citizen anywhere in the world now commits treachery if he or she (among other things): 

  • intentionally assists, by any means whatsoever, an enemy, at war with the Commonwealth;
  • intentionally assists, by ‘any means whatsoever’, another country or organisation that is engaged in armed hostilities against the Australian Defence Force (ADF); or
  • forms an intention to do any of the above acts and manifests that intention by an overt act.

The key point here is that if an Australian did today what David Hicks is alleged to have done in 2001, they would be liable to prosecution under our reformed and modernised treachery laws. We owe the men and women of our defence force no less.

Whatever his particular status as a captured belligerent might be now, if David Hicks could have been charged then and since with criminal offences in Australia commensurate to those considered for his proposed trial by a US military commission, theUS would have been willing to release Hicks from internment as a captured belligerent for such a trial. But his alleged offences occurred in 2001 — before our treachery laws were modernised. The resultant legal limbo he is in is discussed below.

Whether Australian or international law allows such a criminal trial for a captured belligerent is still not clear except where war crimes are involved.


Why internment 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 internment under the Laws of Armed Conflict.

In a nutshell, as with any belligerent captured during a war, David Hicks can be legally interned 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 internment 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 internment of captured belligerents in order to limit the effects of conflict on non-combatants (as defined in the Fourth Geneva Convention). It also protects those captured from arbitrary mistreatment such as killing after capture.

In terms of his internment  as a captured belligerent David Hicks is not being treated differently in this regard to any other belligerent who has been captured. 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 without any valid legal basis. Numerous wars before and since the Geneva Conventions came into force have involved the internment of captured belligerents from a very large number of countries, including Australia and Britain.

Whether David Hicks should be interned until the relevant conflict is over is a separate question and this is where the option of releasing captured belligerents on enforceable parole becomes relevant.

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 also 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, the sequence of events is also important in implementing international law.

  • The Islamist terrorist attacks in New York and Washington DC on 11 September 2001.
  • They were followed by a UN Security Council Resolution on 29 September. This authorised, among other things, the elimination of international terrorist sanctuaries in Taliban-controlled areas of Afghanistan.
  • Coalition air-strikes began on 07 October and some form of international conflict in Afghanistan definitely existed as a material fact from at least that date.
  • On13 October 2001 the US Government exercised its international right to suspend certain provisions of the ICCPR where they conflicted with, and were over-ridden by, the Laws of Armed Conflict.
  • Whatever his previous affiliations in Afghanistan may or may not have been, David Hicks returned to that country in order to serve with the Taliban or Al Qa’eda soon after the 11 September attacks.
  • He was captured on 09 December – well after the war started (and the Hague and Geneva Conventions kicked in) – and well after theUS legitimately suspended those provisions of the ICCPR which conflicted with LOAC.

In summary, David Hicks is currently being interned 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 internment 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 the Hague and Geneva Conventions respectively.

It does not depend on what any government or individual says about whether the conflict does or does not exist.

National declarations of war have had no validity since the UN Charter was signed in 1945. Since then there has been no such thing in international law as a declared or undeclared war.

In other words, on humanitarian grounds the fact of armed conflict is recognised rather than any country's subjective political claim in favour or to the contrary.

No-one seriously maintains there was no war going on in Afghanistan when David Hicks was living there under territory controlled by the Taliban. Nor is there any serious argument that he freely chose to return there at that time or that the war there is a continuing one.

The only real argument centres on what he was doing when he was there and his motivation for choosing to do so.

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 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 Afghanistan and in the broader sense.

Moreover, due to the involvement by terrorist organisations who refuse to comply with international law in their prosecution of conflict, questions of individual responsibility and allegiance become particularly relevant.

Membership of such terrorist organisations alone, even membership before they became universally proscribed by the UN and UN member states, could classify any member of those organisations as a belligerent and therefore, under the Laws of Armed conflict, liable for internment if captured.

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 Germany and therefore the civil crime of treason might apply in the country concerned.

In Hicks' case his admitted allegiance to the Taliban, and perhaps also to Al Qa'eda and Laskar-e-Toiba, are the principal determinants of his status as a belligerent and consequently as a captured belligerent of some description.

In the case of David Hicks, the claim is sometimes made that “he never fired a shot”. Or that he was captured by the Northern Alliance “at a taxi stand” and later “sold to the Americans”.

As noted above, such excuses are irrelevant. His his likely  membership alone of the Taliban (at least) is what counts, not what he had done or was necessarily doing at the time he was eventually captured.

Continuing the World War II analogy, using the “never fired a shot” and “taxi stand” arguments, an SS member of the Gestapo who had never fired a shot in anger and who was later captured by the French Resistance when he was fleeing towards Switzerland could not have been detained as a PW by the allies. Whether in uniform or not, or armed or not, such as SS member would clearly have been a PW (although also possibly guilty of war crimes for which a separate criminal trial would be necessary).


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 Afghanistan during an international armed conflict.

In such a case, whether he was still bearing arms when eventually captured or not, he would not be covered by the Fourth Geneva Convention because he was a belligerent in, not a civilian victim of, the conflict.

If it could be proved that David Hicks was fighting with only the Taliban when captured, he might be covered as a PW by the 1977 Additional Protocols to the Third Geneva Convention (governing members of irregular forces fighting in a civil war or international conflict).

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 interned 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 internment by the authorised detaining power until the conflict in Afghanistan ends.


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) insurgent or guerilla organisations.

In such a case, David Hicks could be legally interned as a captured belligerent, but not as a PW (or indeed as a prisoner necessarily awaiting civil criminal charges), until the wider continuing conflict between the international community and Islamist terrorism ends.

That such internment might be prolonged is in itself irrelevant. Many genuine PW, including numerous Australians, have been interned for very long periods in previous conflicts. In several wars in the second half of the 20th Century (India-Pakistan, Vietnam, Iran-Iraq, etc) internment for over a decade was not uncommon. The length thus far of David Hicks' internment as a captured belligerent is not unusual in historical terms.

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 internee subsequently renounced the parole, or otherwise resumed belligerent activities, they would become immediately liable for renewed internment 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 internment 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 an internment 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 internment as a captured belligerent can be counted towards time served in any subsequent prison sentence for criminal offences.


Treatment in internment and intelligence exploitation

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 US policy is to treat such captured belligerents as if they were PW as much as possible.

This explains, for example, the US facilitating random inspections of Guantanamo Bay by the International Committee of the Red Cross (ICRC) as the designated protecting power for captured belligerents under the Geneva Conventions. As the ICRC has noted, with reservations due to the interim or unprecedented circumstances involved, the internment camp at Guantanamo Bay broadly conforms to and generally exceeds the minimum standards laid down by the Geneva Conventions.

One significant issue relates to the questioning of captured belligerents and the rights of the internee 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 internment, 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 an internee.

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 internees 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 their conflict with the Taliban.

The grounds for the USA assuming the responsibility of detaining power in the case of David Hicks are essentially threefold.

  • First, the USA is a State that has acceded to the Geneva Conventions whereas the Northern Alliance's claim to this was more tenuous.
  • Second, his capture occurred during UN-sanctioned operations in which theUS was authorised to lead an international coalition to dislodge Taliban control of those areas of Afghan territory being used to provide territorial sanctuary for the internationally proscribed terrorist organisation Al Qa'eda.
  • Third, the Afghan factions who might have initially captured David Hicks were effectively operating in alliance with the UN-sanctioned US-led intervention. As the only nation-state involved the US automatically assumed moral and legal responsibility as the detaining power – especially as the Northern Alliance (and the Taliban) were well known for contravening the Geneva Conventions and international humanitarian law generally in their treatment of captured belligerents and non-combatants (civilians and other designated protected persons).

Although both the Taliban and the Northern Alliance claimed to be the legitimate government of Afghanistan at that time neither had a strong claim in international law or fact.

The Taliban controlled much of the country but was never recognised by the UN as the government. It was also only recognised as such by two other countries. In addition, Taliban activities were also in serious, extensive and continuous contravention of international humanitarian law, making it difficult at best to claim authority as a sovereign international actor.

Members of the Northern Alliance were recognised by the UN, and most UN members, as the continuing and legitimate Afghan government but at that time they controlled less territory than the Taliban. Their record in complying with international law was better than the Taliban but still not good.

There is now a new, democratically elected, government in Afghanistanthat is recognised by the UN and most UN members.

The Taliban and the previous government aligned with the Northern Alliance are not recognised as the Afghan government by any country.

A case could perhaps be made that the new Afghan government could accept responsibility as the detaining power for David Hicks, on the grounds that his initial capture might not have been by US forces and that the new Afghan government had somehow inherited the responsibility from any initial anti-Taliban Afghan captors.

A significant hurdle to overcome, as per the Geneva Conventions, is that the US would have to be satisfied that his internment as a captured belligerent would continue to be in accordance with the Conventions (and international law generally). The US, as the recognised initial detaining power, would also retain responsibility for ensuring this occurred.

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 internment camp for captured belligerents at Guantanamo Bay is at least the responsibility of a signatory to the Hague and Geneva conventions. This means the internees have the ICRC as the protecting power and the camp is subject to random inspections by Red Cross representatives. Declared US policy is also to treat the captured belligerents interned therein, as much as is possible, as if they had been classified as PW.

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 or otherwise 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 his case the fact that Australia is an ally of Afghanistan in its continuing war with the Taliban and Al Qa'eda would obviously work in his favour.

Detaining David Hicks in Australia as a captured belligerent (with the agreement of the detaining and protecting powers as defined in the Geneva Conventions) is also a possibility worth exploring.

It is likely that the legalities of such internment would not be readily understood, or supported, by those who do not understand his status as a captured belligerent (of whatever classification) and who believe, wrongly, that the issue is just one of trying Hicks on civil criminal charges or releasing him.

This complication is not insurmountable. But given the amount of misinformation in much of the publicity surrounding David Hicks, and general controversy about the Guantanamo Bay internment camp, an extensive education campaign would be needed to clarify relevant issues among the wider Australian community.


Is there a viable alternative to interning belligerents who are captured?

There is no doubt that wider international humanitarian law requires the internment of belligerents who are captured. Chiefly for the continuing protection of non-combatants from attack if those interned were released.

There is also no doubt that some of the circumstances and policies surrounding the internment camp at Guantanamo Bay (and the proposed separate criminal trials for a handful of the internees) are controversial.

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 Guantanamo Bay (including David Hicks) are also facing civil criminal or war crimes charges, all of them are being interned because their release poses an unacceptable danger they would renew their participation in the international armed conflict in which they were captured.

As prescribed by the Geneva Conventions the US, as the detaining power, has established a competent tribunal to regularly examine each internee's case to review their status and whether they can be released from internment as a captured belligerent. Nearly 400 captured belligerents have been released from the Guantanamo Bay camp by this tribunal.

As per longstanding legal precedent, the onus of proof under the Laws of Armed Conflict lies with those interned — 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, Italian PW were released in 1943 once Italy changed sides and ceased being an Axis belligerent.

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 generally, mean interned or detained terrorists should not be accorded the benefit of the doubt.

Criticism of the Guantanamo Bay internment camp for belligerents who have been captured is common and has been greatly exacerbated by poorly developed and articulated US legal analysis and policy.

Some of this criticism also stems from the facility and the legal principles underlying it being unfamiliar generally. Other criticism is justified because some of the legal interpretations and commensurate procedures involved are imperfect interim measures until the detail of international law, as is common, catches up with and refines its broad application in international practice.

The US authorities have not been good at explaining their position and have often been particularly bad at doing so.

Although not directly relevant to the accepted  legality of interning captured belligerents during a continuing conflict, much confusion and controversy has arisen from the protracted legal disputes in theUnited States over the constitutional legality of US Military Commissions trying foreigners for terrorism offences under US or international law.

The overall situation has also been confused by general international controversy and condemnation concerning alleged US practices regarding those captured. Such as the 'extraordinary rendition' of terrorist suspects between countries and the purported authorisation during questioning of coercive methods that could be defined as torture rather than legitimate means of interrogation. That most "rendition" cases do not involve capture in battle also causes confusion, as the conflict applying is the broader conflict with Islamist terrorism rather than just the continuing war in Afghanistan.

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 terminology 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 internment 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 internment 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. Particularly 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.

Even though it is not clear if David Hicks is a PW or not, or  a civilian non-combatant or not, his situation still requires a commensurate degree of definition and regulation. Especially as to the relevance to him of the existing four Geneva Conventions and their three Additional Protocols covering 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 (non-PW) captured belligerent status is to be specified and decided.

It also needs to specify appropriate safeguards, regulate internment, detention and interrogation conditions, and detail the rights and responsibilities of both those being interned or 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 Guantanamo Bay internment camp.


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 and quite separate criminal trial has obscured this danger.

Furthermore, at the very least, David Hicks apparently chose to serve with the Taliban in the Afghanistan war, probably even before the UN-endorsed international intervention to destroy Al Qa'eda's sanctuaries in Taliban-controlled territory.

He may also have willingly chosen to join or train with international terrorist organisations.

While his situation is unfortunate it is one that appears to have been formed in no small part by his own choices and actions.

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 and dilemmas. Particularly those dilemmas 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 internment.

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 internment 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. This makes no sense in international law or long-established international practice.

From the Australian viewpoint, as well as contravening well-established international law, such a stance also strongly contradicts Australia's longstanding legal 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 interned at Guantanamo Bay are entitled to the full protection of the Geneva Conventions in terms of the conditions of their internment and potential trial, but that the legitimate although to some degree indefinite aspects of such internment 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 join and fight for such groups.

Not condoning such major breaches of international law is particularly important. Not least because most of Australia's wartime enemies since 1939 have been countries or factions who have undertaken operations with little regard for the laws of war or indeed the cause of common humanity.

Most of them have also badly mistreated captured Australian (and other country's) military and civilian personnel in contravention of the Geneva Conventions and other protections provided by international humanitarian law.

To some extent, the plight of former genuine PW is also demeaned by those seeking to free David Hicks at all costs and without sufficient thought as to the consequences.

Releasing David Hicks unilaterally or unconditionally from internment 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 Afghanistan and against Islamist terrorism generally seem likely to continue for a lengthy period.

Whether he is ever tried or not for criminal offences, this means David Hicks’ internmentas a belligerent who has been captured could also be lengthy and would continue to be relatively indefinite in duration – although not arbitrary or illegal.

Other options need to be explored on legal, moral and practical grounds. This especially applies to consideration of whether continued internment is the only way, or indeed the best way, of stopping captured belligerents renewing their belligerency.

Assuming the US could be convinced to drop the intention to separately try him – and five years of internment constitutes a strong moral case — releasing David Hicks on parole from internment as a captured belligerent under the Laws of Armed Conflict would then be possible. This would require Hicks to give undertakings not to resume activities as a belligerent and to abide by this parole until the applicable conflict (whichever it is) ended.

It would also require that any undertakings he makes could be enforced, especially regarding his residence and activities, and that he did not renounce the parole before the relevant conflict ended. In order for his release on captured belligerent parole to be legal it is likely that wider international humanitarian law would also require Hicks to renounce any past or current affiliation or allegiance he might have, or be thought to have, to internationally-proscribed terrorist organisations.

No matter whether David Hicks’ separate criminal trial by the US continues to be delayed or not, and no matter why such delays occur, releasing David Hicks on captured belligerent parole to Australia — where he could as a condition of such parole be placed on a control order — is quite a viable solution.

As well as being legally and morally consistent with long-established international law it neatly sidesteps the real and supposed difficulties of trying him for civil crimes in Australia (and the USA). Just as importantly, it offers solutions to dilemmas of an international strategic, domestic political and (from Hicks’ viewpoint) personal nature, that save face all round.

Releasing him on parole from internment as a captured belligerent appears to be the best solution, not least because it would surely be the easiest one for Australiato negotiate with the US and the ICRC as the detaining and protecting powers respectively under the Geneva Conventions.

Conversely, calls that ignore the relevant international law — especially where they ignore that the internment 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 internment as a captured belligerent by addressing both the practical and legal aspects involved should surely be the real focus of public debate.