Defining David Hicks

The issues concerning David Hicks boil down to four key points:

First, was he a combatant in an armed conflict? The evidence overwhelmingly points to the answer being "Yes", not least because his family acknowledge he served with the Taliban during the war in Afghanistan.

Second, if he was a combatant is he now a prisoner-of-war (PoW)? If not, what is he then and what protection does he have under the Laws of Armed Conflict (chiefly the Geneva Conventions), assuming he is always covered by the International Convention Against Torture anyway?

Third, should he be tried for any criminal offences he may have committed and, if he is some form of captured combatant, would this be an affront to his status (whatever it is) under the Laws of Armed Conflict?

Finally, if he is to be tried, who should do it, how and with what safeguards?

Consideration of the third and fourth points before thinking about the first two is what seems to lead so many commentators and observers astray. It is surely not just a simplistic choice between trying Hicks as a criminal or releasing him? It is also worth noting that Mamdouh Habib and others were eventually released, essentially because it could not be proved they had been combatants in Afghanistan.

Recently the Law Council of Australia unfortunately lapsed into domestic legal terminology in describing David Hicks as having “languished powerless in custody, principally at Guantanamo Bay, for a period of 30 months before he was even charged with any offence”. Such a mix of fact, supposition and error is the latest version of the common but simplistic claim that it is merely a matter of trying Hicks or releasing him.

As the four points above illustrate, it is in fact a much more complex and nuanced situation, and one firmly involved in international not Australian (or US) law.

The Law Council (as do many others) appears to misunderstand that the legitimacy and duration of Hicks’ continued detention, as a captured combatant under the Laws of Armed Conflict, is a fundamentally separate issue to whether he can or should be tried on terrorism or other war crimes charges, and if so, how and by whom.

The US Supreme Court is shortly to rule on the internal US legality of the military commission process intended to try Hicks. Until well after the end of World War II such commissions were widely considered adequate under US and international law to try offences against the accepted laws of war.

Majority international opinion is that this is now not the case. This is based on the continuing evolution of the Laws of Armed Conflict (originally based on the Hague and Geneva Conventions), and the institution of specific international war crimes tribunals for the conflicts in Rwanda and Yugoslavia. More recently these developments have included the constitution of the International Criminal Court, although the US is among the countries that have not surrendered to its jurisdiction.

It may be that the supreme court forbids Hicks from being tried by a US military commission. It is likely that many Australians would agree with such a ruling. However, such a ruling does not necessarily mean Hicks can or should be released.