Hicks can, and should, be tried here
Melbourne Age September 27 2004
Howard seems willing to sacrifice an Australian's rights so as not to offend Bush, writes Devika Hovell.
David Hicks can be tried by an Australian court. There is no need to resort to the legally questionable route of enacting retrospective legislation to enable domestic prosecution. The Australian legal system has, and always has had, all the tools necessary to enable the prosecution of Hicks in Australia.
Yet the message delivered consistently by the Howard Government is that there is no basis on which Hicks or Mamdouh Habib can be prosecuted under Australian law. For example, Attorney-General Philip Ruddock said last Tuesday: "The only basis upon which (Hicks and Mamdouh Habib) could be brought back to Australia under our existing law is to be freed - that's the only basis."
Certainly, as the actions of the British Government have shown, one option would be to obtain the return of our citizens and free them in the event it was found that their prolonged detention at Guantanamo Bay was unjustified. Pressure by the British Government on the US has led to the release of five Britons detained at Guantanamo Bay without cause.
It is notable, however, that the British Government also continues to push for the return of the four remaining Britons whose legal position is less clear. British Attorney-General Lord Goldsmith has said that the military commissions "as presently constituted would not provide the type of process which we would afford British nationals".
Even the Americans have seen fit to exempt their nationals from the military commission process. The only American detainee, John Walker Lindh, is being tried before a US District Court in Virginia. His trial began in January 2002.
By contrast, three years after he was detained at Guantanamo Bay, David Hicks stands charged before a US Military Commission in Cuba.
The first report of the independent legal observer for the Law Council of Australia, released this month, found that "as a matter of fundamental principle of criminal justice, these proceedings are (and will continue to be) flawed and that a fair trial of David Hicks in the miliary commission is virtually impossible".
The independence and impartiality of the commission has been questioned on the basis of the close control exercised by the executive of the US government. Five of the six members of the commission are not legally qualified, let alone expert in the complex matters of international law and criminal procedure they will be called upon to resolve.
Hicks has been brought before the commission on three charges: conspiracy to commit war crimes, attempted murder by an unprivileged belligerent, and aiding the enemy. Military Commission Instruction No. 2, which sets out the elements of these crimes, states that all "crimes and elements derive from the law of armed conflict, a body of law that is sometimes referred to as the law of war".
The laws of war are essentially found in the four Geneva Conventions and two Additional Protocols. Far from being separate from Australian law, these conventions have formed a part of the domestic legal system since 1957 when they were implemented into Australian law by the Geneva Conventions Act. This act vested jurisdiction in state supreme courts to hear offences against the Geneva Conventions and Additional Protocol I.
In 2002, the relevant part of the Geneva Conventions Act was replaced by the International Criminal Court Act, which expanded the offences recognised by the Australian legal system even beyond those recognised by the Geneva Conventions Act.
At the relevant time, the offences with which Hicks has been charged formed part of Australian law. There is no need to enact new legislation to enable his prosecution by Australian courts. Alleged terrorist acts committed as part of an armed conflict are covered by the Geneva Conventions, and therefore Australian law.
The fact that the Australian Government has consistently denied the possibility of trying Hicks before an Australian court is, at best, a remarkable error. It demonstrates an unfortunate lack of knowledge or initiative on the part of the Australian Government to provide an Australian citizen with the protections offered by the Australian legal system. At worst, it shows a willingness to sacrifice the fundamental rights of an Australian national to a reluctance to offend the US Administration.
There must be a limit to the extent to which the Government is prepared to support the actions of the US, and accommodate its will. Australia's relationship with the US is undoubtedly important in this essentially unipolar world. However, the balance arguably tilts too far where a government's desire for the ear of the prince renders it deaf to the cries of its own citizens.
Devika Hovell is director of the international law project in the Gilbert + Tobin Centre of Public Law at the University of New South Wales.