David Hicks - Where to Next?

On a recent visit to Australia, Bono, the lead singer of U2, joined the chorus of voices calling for the release of David Hicks from Guantanamo Bay. Following the return of Mamdouh Habib to Australia in early 2005, Hicks remains the only Australian detained in Guantanamo Bay, a United States’ naval base in Cuba. Unlike the British Government, which has successfully called for the release of British nationals from the naval base, the Australian Government has not asked for Hicks to be returned to Australia. Instead, it continues to rely upon assurances given by the Bush administration concerning the fairness and legality of the United States military commission process.

Background

David Hicks, a 30 year old South Australian, was captured in Afghanistan by the Northern Alliance in November 2001 and transferred to US custody as a result of the United States’ war on terror. In early 2002, he arrived at Guantanamo Bay where he has remained in detention without trial for the last five years. As is the case with the other detainees at the naval base, Hicks has been denied the status of a prisoner of war pursuant to Geneva Convention III. Instead he has been classified by the US as an ‘unlawful enemy combatant’ - a term that is defined in US legislation, although it has no specific meaning in international humanitarian law.

Pursuant to Geneva Convention III, a combatant that has been captured in an international armed conflict is entitled to the status of prisoner of war – a status that enables a person to be repatriated to their home country at the end of a conflict. At the very least, in case of doubt, the person will be entitled to the protections of Geneva Convention III until his or her status has been determined by a competent tribunal. Although the US has held Combatant Status Review Tribunal hearings, this procedure would not satisfy the relevant provision of Geneva Convention III.

Following the establishment of the Military Commission process in the United States, it was alleged that Hicks had undertaken military training in Pakistan and Afghanistan with terrorist groups, including al Qaeda. In June 2004, two and half years after he was captured, he was charged with three separate crimes: (1) conspiracy to commit murder, attack civilians and civilian objects, destroy property and terrorism; (2) attempted murder by an unprivileged belligerent; and (3) aiding the enemy. Of the approximately 460 detainees held at Guantanamo Bay at that time, only ten were formally charged. However, as a result of the decision of the Supreme Court in Hamdan v Rumsfeld in June 2006, the military commission process was ruled unlawful, resulting in the suspension of the trials. The charges against Hicks also appear to have fallen into abeyance. In Hamdan, the Supreme Court recognised that Common Article 3 of the Geneva Conventions, a provision which guarantees basic standards of treatment, including the right to a fair trial, applies to those detained in US custody. It is the right to fair trial which is at the crux of the case.

Current Status

Since the decision in Hamdan, the United States Congress has passed new legislation, the Military Commissions Act of 2006. Many believe that this legislation suffers from similar defects as the regulations that have already been ruled invalid by the US Supreme Court. Thus, it would appear that further challenges can be expected.

Other legal strategies have also been pursued. For example, lawyers in the United Kingdom invoked Hicks’ right to British citizenship by virtue of the fact that his mother was born in the UK and has retained her British passport. However, hours after it was conferred, the British Government informed Hicks that they were revoking his citizenship. Lawyers in Australia have written an open letter to the Prime Minister calling on the Australian Government to condemn the military commission process as a violation of international law. Recently, a group of Australian lawyers have opined that not only would the new military commission process violate fair trial procedures according to international law, but it would also contravene certain provisions of the Criminal Code Act 1995 (Cth) that implement the Rome Statute of the International Criminal Court in Australia. In their view, Australian officials who urge or counsel that such a trial should take place could be in violation of domestic law. In spite of these objections, the Australian Government continues to urge that Hicks’ trial should take place as quickly as possible.

Politicians throughout Australia have echoed the words of international human rights groups and lawyers, calling for the release of David Hicks given the inherent flaws in the future trial process. With the fifth anniversary of David Hick’s detention approaching, rallies are being organised around the country to protest for justice in the Hicks’ case. It remains to be seen whether such calls will be effective.