What a to do about David Hicks

Another thing in common is that neither of these extreme positions actually helps David Hicks, especially in getting him released from Guantanamo Bay anytime soon.

What is instead required is an informed and dispassionate analysis of his actual legal situation and negotiation of a practical solution. The horse must be put before the cart for once. Irrespective of whether Hicks can or should be tried or not by anyone, the simple truth is that his actual detention is a fundamentally separate issue to any potential trial.

But this is also the truth that will set him free.

Why David Hicks is actually detained

David Hicks is detained (not imprisoned or incarcerated) because he was a belligerent for one side in a war and was captured by the other side - just as many people (military and civilian) have been detained after capture in numerous wars over centuries. He was not arrested by a police force for civil crimes and then imprisoned on some form of remand or by some arbitrary whim. David Hicks is not being held without trial nor is he being held without due process. In summary, he is not being detained so he can be tried and any trial, by any means, stems only from him also being accused of criminal offences or war crimes.

What’s more, in international law armed conflict (war) exists as a material fact - thus automatically triggering the limitations and protections of the Hague and Geneva Conventions respectively - not because some individual or some government (or even some lawyer) declares that the war concerned does or does not exist.

The only real argument among LOAC experts is which conflict applies to Hicks (the continuing war in Afghanistan or the wider conflict with internationally-proscribed Islamist terrorist organisations), whether either or both are strictly international armed conflicts as defined in the Geneva and Hague Conventions, and how an eventual cessation of hostilities in the latter conflict can be arrived at and measured in practical and legal terms.

Many Australians are shocked when advised of these facts because they have just wrongly assumed David Hicks is some form of alleged criminal prisoner and is being treated without appropriate due process. Some choose to ignore the facts with wishful thinking that they somehow do not apply. Others take the easy way out and opt for irrelevant slogans such as “try him or free him”. Such simplistic stances are adopted by some because it is just too hard to reason the problem through.

Others deliberately misrepresent the situation because the facts are contrary to what they want to believe on ideological or personal grounds. Some even do not really give a hoot about David Hicks. For them he is just another cause to burnish their self-righteousness inner glow or a convenient stick with which to beat an Australian Government they dislike.

But the facts rarely shock those Australians who lived through World War II or the Korean War where many fellow Australians became prisoners-of-war or civilian internees of the enemy for the duration of hostilities. They also do not shock members of the defence force because the facts are so obvious to them they usually cannot understand confusion on the matter among civilians.

Trust the lawyers … to confuse the issue

The uninformed opinions offered by many Australian lawyers have not helped. Nearly all Australian lawyers are understandably so steeped in domestic legal culture, such as the principle of habeas corpus, that they automatically revert to the familiar even when it does not apply. Again, this does not really help David Hicks.

The laws that do apply are that part of international humanitarian law known as the Laws of Armed Conflict (LOAC), primarily based on the Hague and Geneva Conventions. A significant cause of public misunderstanding concerning David Hicks is that there are only about a dozen lawyers in Australia with a good knowledge of LOAC, and how this relates to wider international humanitarian law.

Nearly all of them wear a regular or reservist defence force uniform and have therefore been absent from the public debate concerning Hicks. Even when the ADF’s Director of Military Prosecutions was recently feted publicly for her criticism of the military commission trial process, few noticed the important point that she had not actually questioned the legality of the separate detention of Hicks as a captured belligerent.