What a to do about David Hicks

The narrow approach of many Australian lawyers specialising in domestic human rights law has also not helped effective public debate. Most have not been aware of the LOAC actually applying or have mistakenly dismissed it.

Others have tried to twist other international law to sideline LOAC somehow. One Melbourne QC, for example, recently cited the International Covenant on Civil and Political Rights (ICCPR) as the only relevant law applying to Hicks, whereas the covenant is clearly subordinate to LOAC in international humanitarian law during wars (under the principle of lex specialis - that the most specialist law applies). It is particularly irrelevant to Hicks’ predicament because, as provided in the ICCPR, due to the exigencies of conflict those parts of the covenant which clash with LOAC can also be suspended by due declaration of a belligerent party - and in the case of David Hicks they were.

While the Taliban never accepted or applied the ICCPR, and terrorist organisations such as al-Qaida obviously do not by definition, it is the sequence of events that is fundamentally important.

The Islamist terrorist attacks in New York and Washington DC on September 11, 2001 were followed by a UN Security Council Resolution on September 29 authorising, among other things, the elimination of international terrorist sanctuaries in Taliban-controlled areas of Afghanistan. Coalition air-strikes began on October 7 and some form of international conflict in Afghanistan definitely existed as a material fact from at least that date.

In mid October 2001 the US Government exercised its 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 apparently returned to that country in order to serve with the Taliban or al-Qaida soon after the September 11 attacks. He was captured by anti-Taliban forces on December 9 - well after the war started (and the Hague and Geneva Conventions kicked in) - and well after the US legitimately suspended those provisions of the ICCPR which conflicted with LOAC.

Not forgetting the Geneva Conventions

As the US Supreme court emphasised in the June 2006 Hamdan test case (covering a Yemeni member of al-Qaida), those held at Guantanamo Bay are legitimately detained as captured belligerents and can be so detained until active hostilities end. Indeed it was Common Article 3 of the Geneva Conventions that the court mainly used to strike down the separate criminal trials for some detainees, including David Hicks, by military commissions established by presidential order and not legislation.

Even if every criminal charge against David Hicks was dropped tomorrow he could still be legitimately detained under LOAC until the relevant conflict ends. But, more importantly, he could also be released earlier if appropriate steps are taken under wider international humanitarian law to ensure he could not resume activities as a belligerent.

The truth that will set him free

David Hicks is no different in this regard to all 770 of the captured belligerents ever detained at Guantanamo Bay - with only 10-20 of them (around 2 per cent) also facing criminal or war crimes charges in front of a military commission. Nearly half of those ever detained, some 375, have already been released over the last five years after examination by competent tribunals constituted under the Geneva Conventions. The nub of the matter in practical terms is to get David Hicks into the latter group not the former.

The Australian Government needs to convince the US to drop the intention to also try Hicks as a criminal. Surely this cannot be difficult on practical and moral grounds, particularly given that the duration of his detention thus far has not been that different from the type of prison sentence he might expect if tried and found guilty of many (but not all) of the criminal offences with which he is accused.

Australia and the US have also been supportive allies to each other in various wars over the last 90 years. This must surely count for something, even given the professed gravity of the war crimes offences with which Hicks has been accused. Moreover, if trying and punishing him for alleged war crimes is judged as no longer a legal or moral issue, the only remaining issue is the practical one of how to prevent David Hicks from resuming activities as a belligerent in the relevant war - and whether this can be achieved by other than continued detention.

Once the option of trying him for criminal offences or war crimes is off the table, Australia can then mount a practical case to release him on parole from detention as a captured belligerent.

Hicks would need to give undertakings not to resume activities as a belligerent and to abide by this parole until the applicable conflict ended. His lawyers have indicated he is prepared to do this. Wider international humanitarian law means he would also need to renounce any past or current affiliation he might have, or be thought to have, to internationally-proscribed terrorist organisations.