'It is time for the Australian government to increase efforts to secure a resolution to the case of David Hicks.'
The Australian Government must act immediately and decisively to end the indefinite detention of one of its citizens. If David Hicks has a case to answer it must be before a properly-constituted court - not trial-by-media or under an inferior system of justice.
by John Ferguson
For nearly five years David Hicks has been held in detention pending trial by a process that the U.S. Supreme Court has now ruled to be unconstitutional and contrary to the Geneva Conventions.
He was captured by the Northern Alliance, handed over to U.S. forces in Afghanistan in 2001 and transferred to a military detention complex at Guantanamo Bay, in Cuba. It was a further two years or more before he was deemed eligible to stand trial before a special military commission and charged with conspiracy, attempted murder and aiding the enemy.
The military commissions were disbanded after the U.S. Supreme Court brought down its recent ruling.
One of the reasons he has been detained for so long is that, under an order signed by President Bush, non-U.S. citizens picked up in Afghanistan could be treated as 'unlawful combatants'. This newly-created category removed detainees from the protections of international laws and conventions to which Australia and the U.S. are both signatories - including the Geneva Conventions and the International Covenant on Civil and Political Rights.
David Hicks continues to be held in a legal 'limbo'. He was initially interrogated without legal advice and without charge.
As the affair has dragged on, there are increasing concerns for his physical and mental health. He and the other detainees have been held in conditions and treated in a manner which reputable agencies such as the International Red Cross and Amnesty International say amount to torture. The legal challenges against the Pentagon's military tribunal process have taken more time.
Following the recent U.S. Supreme Court Decision, the U.S. Government has been required to ensure that its prisoners are treated according to the Geneva Conventions. The rights afforded under the Convention include, among others, the speedy laying of charges, no confinement beyond three months while awaiting trial, no moral or physical coercion to induce admissions and the right to a fair trial and appeal.
Currently the U.S. administration is working with Congress to determine a process by which military commissions can proceed with prosecutions against enemy combatants accused of war crimes. It is yet to be seen whether these tribunals will offer an adequate standard of justice. It is also unclear how long David Hicks' detention will continue while the new process is established.
An ongoing concern is the situation, begun under the now defunct military tribunals, whereby a defendant could continue be held as an 'enemy combatant' for the duration of hostilities even when exonerated - an indefinite period in the so-called ‘War on Terror’.
In fact, much damage has already been done. As Major Michael Mori rightly insisted in his recent visit to Australia, 'Justice delayed is justice denied'. We see this in the withholding of basic legal and human rights: A long delay in laying proper charges, faulty legal procedures, and the prospect of indefinite detention without trial. These are the conditions that David Hicks and several hundred others continue to endure at Guantanamo.
End the indefinite detention
Recent reports of statements by Attorney-General Philip Ruddock that the Australian Government will try to have Mr Hicks returned to Australia if no new charges are laid by November provide some encouragement. The Attorney General said, 'If it became clear that the United States were not proceeding with charges against him we would seek his return.'
Some people might say that because it is alleged David Hicks was found assisting the Taliban, and he 'should get what's coming to him'. Many other things have been alleged in public debate. He has been cast as 'traitor', an ‘Al Qaeda trainee', a 'homegrown terrorist', 'failed martyr', and branded 'the worst of the worst'.
The response of the Australian Catholic Social Justice Council is that, if he has a case to answer, it should be before a properly constituted court - not trial-by-media or under an inferior system of justice.
While many will be wondering about the guilt or innocence of David Hicks, surely all Australians citizens are entitled to a fair trial should they be accused of an offence. This right must be guaranteed, regardless of the nature of charges laid against an individual, as the only means for legitimately establishing their guilt or innocence.
More could be done
Attorney-General Ruddock's recent undertaking to try to have David Hicks returned to Australia if no charges are laid might provide some hope that the detention will end, but the Government could have gone further, and done so much sooner.
The Government did gain some concessions under the previous system - not least of which was protection from the death penalty. The Attorney General's office assured Australians recently that this important protection would remain in any new system that was established. A number of delegations have been sent to visit David, of course, and the Government says it has repeatedly made known to the U.S. that it wants a trial moved along quickly.
The British Government secured the release of its nationals after their Attorney-General, Lord Goldsmith, protested that the U.S. tribunals would not deliver a fair trial in accordance with international standards. The Canadian Government did the same. Even the fledgling government in Kabul has been able to secure the return of a number of Afghan nationals.
Now, international momentum is growing for the U.S. to close Guantanamo and afford detainees basic justice. British Prime Minister Tony Blair and the Archbishop of Canterbury have both called Guantanamo a legal anomaly that needs to end. Cardinal Renato Martino, President of the Pontifical Council for Justice and Peace at the Vatican, says that human dignity is not being respected in this prison. There are scores of others - among them Lex Lasry, Jimmy Carter, Geoffrey Robertson, Mary Robinson, Malcolm Fraser - who have joined this call for justice.
Justice, even in times of war
Many will find the call for justice on behalf of David Hicks, or any other detainee, a challenge. David Hicks is not a popular man. But this is not a popularity contest.
As Christians we believe that human dignity belongs to all people by virtue of the fact that we have been created in the image and likeness of God. The basic dignity owed is not withdrawn because of what someone is alleged to have done or the circumstances in which they are apprehended. There should be no place where human dignity and fundamental human rights are not to be respected - even in the context of the 'War on Terror'.
In his World Day of Peace message for 2006, Pope Benedict XVI emphasised the importance of humanitarian law by recalling the words in the Pastoral Constitution Gaudium et Spes, that 'not everything automatically becomes permissible between hostile parties once war has regrettably commenced'. (n.7)
The Compendium of the Social Doctrine of the Church highlights the appropriate response to the scourge of terrorism: "Acts of terrorism strike at the heart of human dignity and are an offence against all humanity; there exists, therefore, a right to defend oneself from terrorism. However, this right cannot be exercised in the absence of moral and legal norms, because the struggle against terrorists must be carried out with respect for human rights and for the principles of a State ruled by law." (n.514).
The Church also highlights some basic principles of human rights and the rule of law - like the prohibition against torture or the need to maintain the presumption of innocence. The Compendium warns against the 'use of detention for the sole purpose of trying to obtain significant information for the trial' and the impact of excessive delays which result in 'a real injustice'. (n.404)
We can be reasonably sure that all Australians would like to think that, if a family member or loved one found themselves in strife overseas, even through their own fault, poor decisions, or bad luck, that the Government would do everything in its power to protect their rights. This expectation should extend to all Australians. Indeed, under the international human rights treaties and conventions to which Australia and the U.S. are both signatories, the expectation should extend further.
Out of a basic concern for David Hicks' physical and mental health, five years is too long and the Australian Government needs to do more to end the indefinite detention now. To date, every effort to bring him to trial has failed. The extended process of putting in place another special procedure must not condemn him to further detention with no end in sight.
John Ferguson is the National Executive Officer of the Australian Catholic Social Justice Council. This article, which has been shortened slightly, was written for the September edition of ACSJC Briefing and is reprinted with permission.