The international and Australian law applying to cases such as David Hicks

Many discussions of David Hicks continue to ignore the international law actually applying. And subsequent Australian law applying to someone who did now what he did in 2001. In particular, Hicks was controversially subject to criminal trial and conviction under US law, chiefly because Australia's pre-2002 treachery laws then had a loophole meaning he could not be tried here. But this criminal trial is an entirely separate legal issue to his prior lawful detention as a captured belligerent - under that part of international humanitarian law known as the Laws of Armed Conflict. At least until his criminal trial and sentence, Hicks was not detained "illegally" or "without trial" for a single minute as incorrect, polemical or emotive slogans often claim.


Letter to The Canberra Times
Friday, 09 January 2015
(published Monday, 12 January 2015)

In explanation for Richard Ryan (Letters, January 9), if another Australian did now what David Hicks did in 2001 they could be convicted of an Australian crime under 2002 reforms to our treachery laws.

Moreover, while Hicks’s US criminal conviction and sentence are rightly controversial, his prior and entirely separate detention as a belligerent captured in the Afghanistan War remains entirely legitimate under international humanitarian law (IHL).

This is why there are PW camps under the Third Geneva Convention and why even belligerents not qualifying for full PW status, such as Hicks, are still protected by IHL.

Finally, those who continue to deny or obfuscate Hicks’s belligerency, for at least the Taliban, simply ignore Hicks’s own claims to this effect before and after his capture.



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