What a to do about David Hicks

Terrorist organisations are not legitimate international actors that can practically be held responsible for the activities of those fighting on their behalf, and which can be punished for infringements as, for example, Germany and Japan were in World War II. But perhaps the International Committee of the Red Cross would accept responsibility for enforcing Hicks’ adherence to parole, as it did for Soviet Prisoners-of-War released by the Mujahideen during the 1979-1989 war in Afghanistan.

While release to detention in a neutral country has been the traditional option it would be much harder to negotiate politically. But Australia is an ally to the US in the same war so he could be easily transferred here.

Transfer to Australia for further detention or paroled release in the community under a control order is therefore a much more achievable solution. As well as being legally and morally consistent with long-established international law, it neatly sidesteps the real and supposed difficulties with trying David Hicks for civil crimes in Australia.

Just as importantly, after five years it offers practical solutions to dilemmas of an international strategic, domestic political and (from Hicks’ viewpoint) personal nature, that save face all round. All sides have painted themselves into different corners over David Hicks and face-saving solutions are now much in demand on all sides (including Hicks).

In practical and moral terms, releasing Hicks on parole is surely the easiest resolution to negotiate with the US and the International Committee of the Red Cross as the authorised detaining and protecting powers respectively under the Geneva Conventions. It is also the most humane solution.

Conversely, arguments dwelling almost entirely on the unfairness of his potential criminal trial, or which incorrectly view his detention as a captured belligerent as merely a form of criminal custody (and mistakenly as a case of habeas corpus), simply postpone practical resolution of his actual legal status under LOAC. Legally incorrect and simplistic calls to “try him or release him”, for example, do not really help David Hicks one iota.

More disturbingly, many ostensibly championing Hicks are merely using him as a proxy issue for moral posturing in wider ideological feuding.