Judges seek fair trial for Hicks

Case Information
Richard Kerbaj - June 03, 2006

A GROUP of the nation's eminent legal minds, including four former Supreme and Federal Court judges, have warned John Howard that terrorism would destroy civilised society if Australia continued to back the detention and military trial of David Hicks.

Former Federal Court judge Ron Merkel and former NSW Liberal attorney-general and Supreme Court judge John Dowd are among the 76 signatories on an open letter to the Prime Minister arguing that Hicks - who remains in indefinite US detention in Guantanamo Bay, Cuba - is being held illegally and deserves a fair trial.

"Whether or not David Hicks is in fact guilty or innocent is not the issue. The illegality lies in the process of indefinite detention and unfair trial by military commission," the lawyers say.

They argue that the federal Government is complicit with the US in breaking international law and "undermining international legal order", and urge Mr Howard to act or lose the war against terrorism.

"The menace of terrorism is real. However, to meet the danger the world needs not only a military solution, but renewed and sustained commitment to the rule of law and to fundamental principles of human dignity and respect for human rights," says the letter, which is also signed by former Supreme Court judges George Hampel and Tony Pagone. "This is the shared heritage of a civilised world. Unless we are vigilant, terrorism may achieve the destruction of these values. We should not give it such a victory."

The lawyers describe the military commission, set up by US President George W. Bush in the wake of the 2001 September 11 attacks without the approval of Congress, as an "affront to international legal standards".

They claim that the commission denies the right to "an independent and impartial trial" and does not "exclude evidence obtained by coercion, including the use of cruel, inhuman or degrading treatment".

The move by the judicial elders follows a similar revolt by more than 400 European and British parliamentarians earlier this year, which backed a submission to the US Supreme Court in relation to another Guantanamo inmate, Salim Ahmed Hamdan, arguing that the military commission trials contravened international humanitarian and human rights laws.

The letter, written through the Australian branch of the International Commission of Jurists and published by The Weekend Australian today, says Australia must follow the British in condemning the military commission, "a process which expressly has no application to any American citizen".

"The imprisonment at Guantanamo Bay and the unfair trial of David Hicks by military commission are an affront to international legal standards, indeed all civilised standards," it says.

The US naval base at Guantanamo Bay, where Hicks has been detained at Camp X-Ray for more than four years after he was captured with Taliban insurgents in Afghanistan in 2001, was set up as a detention centre in the wake the attacks on the US on September 11.

Mr Dowd, ICJ president, said the letter followed a decision by the lawyers to take a stand against the "inherent unfairness of the planned trial".

Natasha Stott Despoja: Speak out in the name of democracy
LAST month, I joined US peace activist Cindy Sheehan in addressing a rally to speak out against the atrocities in Iraq and the need to close Guantanamo Bay.

Ms Sheehan lost her son, specialist Casey Sheehan (U.S. Army) in the war in Iraq. She has been an outspoken campaigner against what she views as an illegitimate and illegal war, and against President Bush, ever since. She is gaining support across the world.

While most of us cannot appreciate her pain, we can join her in calling for a halt to the bloodshed and stand together to defend democratic freedoms, including the rule of law.

Guantanamo Bay is an affront to rule of law and our civil and human rights.

Australia still has a citizen in Guantanamo Bay. David Hicks has been abandoned by his Government. He is a South Australian citizen and a constituent. He has been languishing in Gitmo (as Guantanamo is often referred to) for more than four years. He was detained for around two years before he was even charged.

Guantanamo's existence is a violation of International Humanitarian Law (IHL).

The four Geneva Conventions and their additional protocols are the core treaties of IHL.

The purpose of the conventions is to limit the barbarity of war and the treaties have specific rules for dealing with prisoners of war. No such reference to IHL in Guantanamo Bay. Detainees are not PoWs; they are illegal combatants, which is a sneaky way of stripping detainees of any legal or human rights.

Among other flaws, Guantanamo allows people to be held indefinitely without charge and without sufficient legal safeguards. There is no way of guaranteeing a fair trial without independent judicial review by civilian courts. Only recently, the Military Commission process ruled out the use of evidence obtained by torture.

Yet, the Australian Government is one of the few uncritical supporters of the Military Commission process. We are positive cheerleaders in comparison to the more considered views of our foreign counterparts.

Last month, United Kingdom Attorney-General Lord Goldsmith called for the closure of Guantanamo Bay on human-rights grounds. Only a fortnight ago, a UN panel urged the closing of Guantanamo, while exposing interrogation techniques that amount to torture. The panel also raised concerns about reports of secret prisons and the return of prisoners to countries with poor human-rights records.

Unlike countries such as the UK, Spain and France, who have repatriated their citizens, Australia has deserted David Hicks to such an extent that he has been forced to turn to the UK (the country of his mother's birth) for citizenship. His application has been successful despite UK government appeals.

At this stage, he is yet to have his citizenship conferred. David Hicks's immediate future is a bleak one. He is not assured a fair trial. He is thrown into solitary confinement without reason. According to his civilian and military lawyers, he cannot even get a pair of sneakers so he can exercise in the yard.

I want people guilty of terrorist acts to be brought to justice, not civilians to be accused and tried in the media arena without respect for basic civil and human rights. I do not want people detained without charge in my own country or held in dubious detention facilities in foreign lands.

I do not want our country – or any other – fighting a so-called "war on terror" if, in the process, we undermine the very democratic principles and processes that we are trying to defend.

  • Natasha Stott Despoja is Democrats senator for South Australia.
  • Hicks letter welcomed
    By Xavier La Canna

    THE father of Australian Guantanamo Bay detainee David Hicks has welcomed an open letter to Prime Minister John Howard which argues the US detention of his son is illegal, but said he doubts it will make a difference to the Federal Government.

    The letter, with 76 signatories including four former Supreme and Federal Court judges, demands a fair trial for Hicks.

    It was penned by the president of the Australian section of the International Commission of Jurists, John Dowd QC, and published today in the Weekend Australian newspaper.

    "As Australian lawyers we wish to bring it to your attention that the imprisonment of David Hicks at Guantanamo Bay and his proposed trial by a US Military Commission are illegal under international law," the letter said.

    "The imprisonment at Guantanamo Bay and the unfair trial of Hicks by military commission are an affront to international legal standards, indeed all civilised standards."

    It said principles of human dignity and respect for human rights were the shared heritage of the civilised world, and after being imprisoned for four-and-a-half years David Hicks had been denied the right to an expeditious trial.

    Hicks' father Terry Hicks said today he doubted the letter would change the minds of Mr Howard or Attorney-General Philip Ruddock.

    "I would like to think the Government will look at it and do something, but Mr Ruddock is really onside with the commissions," he said to AAP.

    "I think if you had 50,000 signatories he (Mr Ruddock) still wouldn't change his views."

    He said the prime minister had listened to Australians when he changed his position on the sale of Snowy Hydro, but would not listen to pubic opinion on the incarceration of his son.

    Mr Hicks said the detention was illegal, and the tribunal system was unfair and should be scrapped.

    "I believe these commissions were set up to find these people guilty," he said, adding he believed his son was being used as a "token white man" to prove the system was not racist.

    "He would have been better off being treated as a prisoner of war."

    The letter argued that by failing to condemn the violations of law, Australia was complicit in undermining international legal order.

    "The menace of terrorism is real," the letter stated. "However, to meet the danger the world needs not only a military solution, but also renewed and sustainable commitment to the rule of law and to fundamental principles of human dignity and human rights."

    Among the signatories are former Federal Court judge Ron Merkel and the president of Liberty Victoria, Brian Walters SC.

    David Hicks stays put in limbo
    Charles Richardson

    As the Hicks case drags on, even hard-line defenders of the Howard Government's stance are having some doubts, says Charles Richardson

    The Howard Government and its allies evidently still regard international terrorism as a political plus for them, but that doesn't necessarily extend to all of its incidents. One issue the government must wish would just go away is that of David Hicks, still, after four and a half years, a prisoner of the US military in Guantanamo Bay. In this month's Monthly magazine, a feature essay by Alfred W McCoy, "Outcast of Camp Echo", puts the focus back on Hicks's predicament.
    McCoy says that Australians face a choice: "They can break with Canberra's policy and press their government to honour its commitments, under domestic and international law, to protect the human rights of all Australians. Or, they can support the Howard government's decision to placate a powerful ally by consigning David Hicks to further inhumane torture and illegal incarceration".

    A response, of sorts, from the anti-Hicks camp appears in today's Australian, where Neil James, head of the Australian Defence Association, maintains that "Releasing Hicks unilaterally would undermine long-established international law". But even hard-liners like James appear having some doubts.

    The case against Hicks depends on two claims: that he is an "unlawful combatant", not a prisoner of war, and that the military commissions are an appropriate and lawful way of dealing with such cases. James is quite right to insist that these are separate issues. But in the past he has explicitly defended the first and seemed at least reasonably comfortable with the second.

    Today, however, he concedes that Hicks "might be covered as a PoW by the 1977 additional protocols to the Third Geneva Convention", and also that "Majority international opinion ... based on the continuing evolution of laws of armed conflict" holds that the military commissions are illegitimate. But he still clings to the view that there is an intermediate situation, or "limbo", between prisoner of war and common criminal, into which he hopes Hicks can be fitted.

    The Australian Defence Association has no official status, but from its origins as a right-wing lobby group it has acquired considerable credibility as an advocate for the pro-military "line". If that line is softening, then maybe there is a glimmer of hope yet for David Hicks.


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