David Hicks: Crime and punishment - morally at least

Most public debate concerning David Hicks has always floundered in subjectivity and confusion: outwardly because of emotive criticisms or defences of his actions; more deeply, through commonplace misunderstandings about the facts and law actually applying to his original and current legal predicaments. Objective discussion needs to distinguish carefully between Hicks’ internment and his later, separate, trial — and their consequences.


The Weekend Australian,
Saturday, 13 August 2011
(Inquirer Section, page 5)

The article below was supplemented with a series of 200-word exchanges between the ADA and Peter Van Onselen, author of the original opinion article commented on above, where he raised several points and misconceptions commonly made in public discussions about David Hicks and sought clarification of some issues.

The full exchange — less the omitted passages from ADA responses (as marked in red below) — can also be found at http://www.theaustralian.com.au/national-affairs/back-and-forth-on-legal-and-moral-grounds/story-fn59niix-1226113610339


David Hicks’ internment as a captured belligerent under the Laws of Armed Conflict, just like Australian and other personnel captured in previous wars, was entirely legitimate in international law (as reaffirmed by the US Supreme Court’s 2006 Hamdan decision). 

But the legitimacy of his subsequent, and completely separate, criminal-law plea bargain, trial and sentence by a US Military Commission for terrorist offences remains fiercely contested internationally.  

Peter Van Onselen [The Australian, Opinion, August 6] is not alone in believing, incorrectly, that Hicks was somehow “held without charge for more than five years”.

Based on such misconceptions, however, he and others view the Hicks saga backwards by not applying the relevant international and Australian law (then and now) in that order. 

Peter also equates justice with only what the law might say, not with moral justice, and suggests that confiscating Hicks’ book profits as the proceeds of crime would be both illegal and unjust. 

Our law’s non-retrospectivity principle probably makes such forfeiture impossible legally, especially if Hicks’ perceived crime internationally or domestically was only terrorism.

But what should be the moral consequences, at least, where his crime was also treachery? 

But Hicks was not prosecuted for treachery in Australia (and ironically not released from internment for criminal trial here much earlier) only due to a legal technicality that was most unjust to the men and women of our defence force. 

Every Australian has always had a clear, reciprocal, citizenship responsibility to our diggers not to assist an enemy which our government has lawfully deployed our defence force to fight on our national behalf. Where an Australian intentionally joins the enemy in such a war this is unequivocally treachery (and in some cases treason). 

After the 9/11 attacks, and after a UN-endorsed international force (including an ADF contingent) was deployed to Afghanistan, Hicks voluntarily returned there and served with the Taliban when it was engaged in warfare against that force. 

Hicks and his apologists are particularly prone to ignore, discount or obfuscate this fundamental detail. 

Hicks avoided justice by escaping prosecution and probable conviction for treachery, as Wilfred Burchett escaped during the Korean War, only because Australia’s archaic treachery laws required a war to be “declared” for serving with the enemy to be an offence. But declarations of war had been invalidated by the UN Charter from 1945. 

Thankfully, and of most continuing relevance, under our reformed 2002 treachery laws, anyone doing now what Hicks did in 2001 would swiftly face an Australian court. We owe our diggers no less. 

As the extensive omissions, evasions and tendentious claims in Hicks’ diatribe to the gullible show, he remains morally guilty of both treachery and of profiting from it. Even if another legal technicality allows him to keep his ill-gotten gains. 


First round:

International humanitarian law  (IHL) is universal and its Laws of Armed Conflict (LOAC) apply to all those captured in war under the principle of lex specialis (the most relevant body of law applies).

Hicks didn’t qualify for conventional prisoner-of-war status under the Third Geneva Convention because the Taliban don’t comply with LOAC and IHL generally.

Indeed a great irony of the Hicks saga is that no-one except Hicks apologists now, and the Bush administration originally, argue that those captured and interned should not be protected by at least Common Article 3 of all four Geneva Conventions. 

Hicks was not “held without trial” for a single minute — at least until his subsequent and separate criminal trial.

Just as Aussie PW in World War II were not “held without trial” by the Germans or the Japanese. 

Even if his later terrorism conviction is found invalid, and his book profits not the proceeds of that particular crime, there is still the moral question at least that Hicks escaped trial here for treachery only because of the Burchett loophole.

Members of our defence force remain puzzled why many Australians somehow condone treachery or assume, wrongly, that there is a magic “get-out-of-gaol-free” card for Australians captured in war. 


Second round: 

David Hicks remains controversial because his attitudes and actions, then and now, tend to polarise debate towards hard-line positions buttressed by emotive language.

The Australia Defence Association has always walked the middle ground by focusing on the facts and the law actually applying. 

By 2006 we argued for his (supervised) release from internment, before the Afghanistan War ended, on belligerent parole that he not return to the fight.

He was no longer a threat and the duration of his internment was broadly equivalent anyway to prison sentences in Australia for terrorist offences. 

On the evidence available he was not tortured while interned, but the duration and exile obviously encouraged a plea bargain when facing his separate criminal trial and potential prison sentence.

Torture is always illegal under international law.

Where the US, for a short time, used some coercive practices that Australia regards as torture (such as waterboarding), this was only done by the CIA, not the US military.

As a captured belligerent, under the terms of the Geneva Conventions, Hicks was always interned by the US military. 

His controversial Military Commission conviction, for an offence unknown to Australian (and perhaps US) law at the time, has always meant an Australian court might later decide his profits are not the proceeds of crime for that particular offence. 

But the overall justice paradox involved, morally and practically, remains that Hicks was tried and found guilty of an offence by the US that he may not have committed (at least technically), but could not be tried in Australia for the offence (treachery) he did commit.


Third round: 

Preserving the rule of law cuts both ways.

The commonplace confusion about Hicks, going back to 2001, has been particularly exacerbated by those of his defenders who only cite the law when it suits them.

They are keen to cite the US Supreme Court striking down the original military commissions established by presidential order, but ignore two other key parts of the Hamdan ruling. 

The first reaffirmed the right of the US (and any country) to intern enemy belligerents during a war.

The second noted that captured terrorists did not qualify for prisoner-of-war status under the Third Geneva Convention but were covered by Common Article 3 of all four Conventions.

This confirmed US responsibilities under LOAC as the detaining power and the International Committee of the Red Cross as the inspecting power. 

There is nothing inherently wrong in principle about military commission trials. German spies and saboteurs were tried by them in World War II.

When the commissions were re-established by legislation, with improved safeguards, Australia’s apparent position was that the US was entitled to try Hicks for alleged terrorist offences against US law. 

Especially when the US was prepared to release him from internment for separate criminal trial in Australia but our archaic treachery laws prevented this.


Fourth round: 

Even fervently held misconceptions cannot change objective reality or wish away its laws.

Otherwise we would have perpetual chaos domestically and internationally. 

David Hicks chose to serve in the Afghanistan War and was captured when doing so.

The Geneva Conventions necessarily specify that fighting in a war is not, in itself, criminal internationally unless an additional and specific war crime, or crime against humanity, is committed.

As for countless captured belligerents in countless wars, Hicks was lawfully interned to prevent him rejoining the fight and this could have lasted until the Afghanistan War ended. 

Civil-law concepts such as habeas corpus do not apply to war for obvious reasons.

Hicks was never "held without charge", or indeed "incarcerated", as those captured in war cannot be charged or punished just for being belligerents. 

Public confusion about Hicks' internment as a captured belligerent is due to insufficient research about longstanding and universally applicable international law before pontificating. 

Finally, under international law, the Laws of Armed Conflict only apply to real inter-State or civil wars.

Governments can't "declare war" on drugs, tax avoidance or other activities in the legal sense [as Peter Van Onselen fears] — and certainly not in any way that would have legal effect internationally and invoke internment under the Geneva Conventions.

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