Whether David Hicks is "innocent" or not, and of what, depends on much more than his much later US criminal conviction being eventually struck down technically, on filing date and retrospectivity grounds. His actual activities in Afghanistan in 2001 also involved the international law applying; particularly to his entirely lawful internment as a captured belligerent in a war. In terms of Australian law, this surely includes him escaping criminal prosecution here only through the 1945-2001 Burchett loophole in Australia's then treachery laws. A loophole rightly closed by reformed legislation in 2002 - as a direct result of the Hicks case - but which (rightly) could not be applied to him retrospectively.
Letter to The Canberra Times
Monday, 23 February 2015
(published Tuesday, 03 March 2015)
Several recent correspondents have objected to the Australia Defence Association highlighting that international humanitarian law is necessarily universal and that Australians, such as David Hicks, are not somehow immune.
Moreover, Hicks’ own US military lawyer has acknowledged that the ADA’s objective analysis since 2002, and our public and private efforts calling for Hicks' release from internment (on his parole not to resume belligerence), helped resolve the complex legal limbo in which Hicks had placed himself.
A downloadable article in the Summer 2006/07 edition of our national journal subsequently summarised the politico-strategic, legal and moral complexity applying.
In short, as IHL has long required with prisoners-of-war in armed conflicts,* Hicks' entirely lawful internment — not “jailing without trial” — was solely due to him being a captured belligerent.
Hicks’ much later, and completely separate, criminal trial and imprisonment — now overturned on retrospectivity grounds (as the ADA has long predicted) — was under US domestic law.
The Burchett loophole in our 1945-2001 treachery laws prevented trial in Australia and ended up prolonging his internment, but resulted in 2002 reforms meaning Australians rightly now face prosecution for doing what Hicks then did.
Matters concerning Hicks’ motivation, activities, weight of responsibility for consequences, and the relevance of guilt, innocence or repentance, can surely only be adequately discussed across this whole context.
[* In its 2006 Hamdan ruling the US Supreme Court reaffirmed the longstanding international law that belligerents captured in a war, in this case the Afghanistan War, could be lawfully interned under the Laws of Armed Conflict (LOAC). Just as importantly the Supreme Court also ruled that while they did not qualify for full prisoner-of-war status under the Third Geneva Convention, because their methods of belligerence (terrorism) contravened LOAC and wider international humanitarian law, they were still protected by Common Article 3 of all four Geneva Conventions. Both rulings have been widely accepted internationally as definitive precedents in clarifying and bolstering customary international law concerning the internment of captured belligerents, even when the belligerents do not satisfy recognition as prisoners-of-war under the Third Geneva Convention.]
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