In his Opinion piece in
yesterday’s Australian, In
A Limbo Beyond The Laws Of War, Neil James arrogantly criticises the Law
Council of Australia for speaking out on the continuing cruel & illegal
incarceration & torture of David Hicks.

Whilst an academic debate on the
meaning & applicability of the “laws of war” in the Hicks case is bound to
fascinate military buffs & the occasional lawyer, it would be of greater
value to the specific debate if it were relevant: which it isn’t. 

The facts of the Hicks case make
the “laws of war” an irrelevance & given that James knows the facts, one
has to question both his motives & his claims. 

The first most important fact to
recognise in the Hicks case is that Hicks never engaged in fighting against
members of the US lead invasion force. Quite to the contrary, Hicks was
captured & held by tribesman of the “Northern Alliance” & handed-over to
the US military, along with thousands of other people scooped-up in the
confusion of post-invasion Afghanistan. 

Having been “captured”, the key
question to be addressed was Hicks “status”. Was he a member of the Taliban
irregular armed forces (in which case he was entitled to be treated as a
prisoner of war & afforded the protections of the Geneva Convention)? Was
he a “civilian”? Or was he a member of the terrorist group, al-Qaeda? 

Hicks has always denied any
connection to al-Qaeda & the charges subsequently brought against him by
the US military make no such allegation. No one, including Hicks, has argued
that he was just a “civilian” & Hicks has acknowledged being a member of
the Taliban armed militia. 

But, instead of recognising Hicks
status (along with that of thousands of others in the same situation) as a
prisoner of war under the terms of the Geneva Convention, the US decided to
classify all its captives as “unlawful combatants”; the implicit &
convenient suggestion being that they were not members of a recognised armed
body (the Taliban militia) & were not therefore entitled to the protection
of the Geneva Convention. 

Whilst the US justified &
continues to justify its treatment of detainees on the basis that they are not
covered by the terms of the Geneva Convention, it also refused to formally
address confusion & doubt as to their status, even though the Convention
expressly requires such action. 

The second most important fact to
recognise is that Hicks has been charged with offences that did not exist in
law at the time that he was detained. 

Whilst John Howard has argued
repeatedly that Hicks cannot be brought to trial in Australia because he hadn’t
broken any law existent at the time of his capture, such trivial niceties don’t
bother the US. 

The fact is that
the President of the United States signed a Military Order on November 13, 2001
which established a Military Commission within the US armed forces expressly to
deal with non-US citizens who allegedly

-         

are members of al Qaeda

-         

were involved in acts of international terrorism against the
United States, and / or

-         

knowingly harboured such terrorists

Quite
apart from the fact that Hicks has not been charged with any offence remotely
resembling those enunciated in the Presidential Order, it wasn’t until May,
2003 that the US government published ‘draft’ procedures to govern the
operation of the Military Commission, including charges which may be brought
against people to appear before the Commission. 

In other
words, Hicks has been charged with offences that did not even exist until 18
months after his detention commenced. 

Whilst
John Howard publicly acknowledges that Hicks could not be charged with any
offence in Australia, he says nothing about the criminal deceit of the US
administration in bringing charges against Hicks for offences that did not
exist at the time that he was detained. 

Indeed, Article 99
of the Geneva Convention expressly forbids a Detaining Power from charging
& sentencing a prisoner for an act that is not forbidden by the law of the Detaining
Power or by international law, in force at the time the said act was committed. 

The third
most important fact to recognise is that if Hicks’ “trial” before the US
Military Commission proceeds, it will not be a fair trial. 

Whilst the Australian government,
in particular the Prime Minister, the Minister for Foreign Affairs & the
Attorney-General, have all defended the probity of the US Military Commission
& its rules, the fact remains that it falls far short of international, US
& Australian judicial standards. 

Throughout history, Mankind has
struggled for freedom & justice. Western liberal democracies can trace this
effort as far back as the Magna Carta. 

As a result of that struggle, the
principles of freedom & justice have become ‘embedded’ within the legal
frameworks of western liberal democracies & their military institutions,
with a common legal heritage being a feature of Great Britain, the US,
Australia & other Commonwealth countries, including Egypt & Pakistan.

At the same time, liberal democracies
have sought to extend these principles of freedom & justice to all of
humanity, by supporting global institutions [the United Nations] & legal
frameworks that establish & govern international law. 

These principles of freedom &
justice seek to guarantee & protect fundamental human rights, including 

·                    

equal, timely & public access to justice

·                    

the presumption of innocence

·                    

protection against unlawful & indefinite detention

·                    

the right to confront an accuser

·                    

protection against self-incrimination

·                    

fore-knowledge of penalties attached to offences

·                    

protection against hearsay

·                    

the rules of evidence, including the presentation of
exculpatory evidence

·                    

the right to a fair trial

·                    

the right to legal representation

·                    

adequate time to prepare a defence

      ·                    

standards of detention & treatment
 

The above list is not exhaustive
& the same legal frameworks which govern the civil criminal justice systems
or military criminal justice systems of liberal democracies & international
systems of justice, including international courts, tribunals &
commissions, set minimum standards of behaviour & process which must be
observed, which include the establishment of a prima facie case before the
arrest or detention of a suspect. 

In addition, the circumstances of
an alleged offence have historically determined the issue of jurisdiction ie: a
criminal offence committed by civilians would be dealt with by the criminal
justice system. Similar offences committed by military personnel would also
usually be dealt with by the criminal justice system, although offences against
military law would normally be dealt with by the military justice system via
courts martial. 

The same principles apply to
offences committed by military personnel during an armed conflict, whether in a
theatre of war or otherwise, except in the case of vanquished military
personnel who might be brought before a military commission or tribunal set-up
by a vanquishing party to the conflict. Where breaches of international law are
involved, both military & non-military personnel would normally be brought
before a duly constituted international tribunal [ Nuremberg, Kosova ]. 

Military courts, commissions and
/ or tribunals set-up by the military forces of liberal democracies, as well as
international tribunals set-up under the auspices of the United Nations, have
historically guaranteed that the highest principles & standards of justice
will be observed &, in the case of the United States armed forces, these
protections have always been equal to the standards observed under its non-military
criminal justice system [ie: protection afforded by the Bill of Rights &
the US Constitution].

Traditionally the laws of liberal
democracies, along with any military counterparts, have been legislated for
immediate & prospective observance & have not been legislated with any
retrospective effect. This is important because it means that a specific act
committed, which was not illegal at the time that it was committed, cannot
subsequently be rendered illegal.

The Geneva Convention also
defines both the obligations of the vanquishing party to captured enemy
combatants who are to be charged with breaches of the laws of war, or other
crimes under international law, & the rights & privileges of any such
enemy combatants. 

By denying that Hicks & his
fellow US detainees are entitled to the protection of the Geneva Convention,
other International Law & its domestic judicial principles, the US has
conveniently placed itself beyond the law & has been able to construct a
corrupt judicial process, in the form of its Military Commission, thereby
denying Hicks & his fellow detainees access to justice & the right to a
fair trial. 

In particular the US Military
Commission 

·        did not establish a prima facie case against Hicks
prior to his detention

·   has permitted Hicks to be detained without charge &
subjected to interrogation without the benefit of knowledge of any charges
which might be brought against him, without the benefit of the right of silence
or legal advice & effectively denied them the presumption of innocence

·  

will hear charges that did not exist in law until 18
months after any alleged offences were committed

·       

did not permit Hicks to select his own legal counsel,
with any non-military legal counsel permitted only to function as ‘consultants’
to the defence team & then only if they are US citizens able to obtain the
requisite security clearances

·      

will not be impartial, objective & independent:
designated military defence team members have observed in public interviews
that ‘the detainees held at Guantanamo
Bay had attacked the United States’; were ‘enemy combatants detained in the field by US forces’ & were ‘terrorists who deserved to be locked-up in
Guantanamo Bay’. (Notwithstanding this clear prejudice against the
detainees, the US has released some hundreds of them without charge, even
though they had been detained for periods of up to two years)

·    

is a part of the US military chain of command reporting
to the President of the United States. Given that the President has already
described the detainees as ‘killers’, it is difficult to accept that the
Commission’s proceedings will be impartial

·       

is not subject to an express requirement to preserve
the presumption of innocence

·       

observes a standard for conviction less than ‘proved
beyond reasonable doubt’

·       

can make findings that will not be subject to
independent appeal

·    

will permit charges without the defendant having
knowledge of the penalties attached to those charges

      ·       

provides for no automatic right of release in the face
of a finding of not guilty  
 

Clearly the standards of
protection to be offered to defendants before the US Military Commission are
unacceptable & unjust by the requirements of any western liberal democracy,
including Australia, Great Britain & the US. 

Finally, in his conclusion, James
reveals himself as simply an apologist for the Howard government over its
refusal to secure & protect the legal & human rights of David Hicks. 

Having taken readers up hill & down dale in a
confusing series of arguments over Hicks’ legal status, James concludes his
piece with the same “have you stopped beating your wife argument”
consistently used by the Howard government to deflect its critics on the issue,
namely: “releasing Hicks unilaterally would be wrong”. 

This argument is simply specious, as the overwhelming
majority of critics internationally are not arguing that Hicks should be
released “unilaterally” but rather that any trial mounted by the US Military
Commission would not serve the interests of justice, simply because the
standards that it will observe are unacceptable & unjust by the
requirements of any western liberal democracy, including Australia, Great
Britain & the US. 

It is this fact that has driven
the governments of Great Britain, Saudi Arabia, Egypt, Pakistan & even
Afghanistan to act to secure the release of their nationals held by the US
under the same circumstances as Hicks. 

Howard has argued that Hicks’
status is different to the other US detainees, in that he has been “charged”
with offences by the discredited Military Commission. 

However, Howard also argues that
Hicks could not be charged in Australia with any offence existent under our
laws at the time that he was detained. He conveniently skips over the fact that
the “charges” brought against Hicks by the US Military Commission did not exist
in law until at least 18 months after he was detained. 

James piously constructs another
straw man for his conclusion, by claiming that: “by condoning breaches of the
laws of war we risk making conflicts even worse”. Again, no one is arguing that
breaches of International Law should be “condoned” in the case of Hicks. Quite
to the contrary, International Law has been & is being breached via his
treatment by the US. 

Finally, if International Law is
so precious, let’s hear from Neil James on the actions of the US in breaching
same by mounting an illegal war of aggression against another sovereign state:
namely Iraq. That act, in which the Australian government was consciously
complicit, stands as the greatest of war crimes: a crime against humanity. 

And what does James have to say
about the latest deliberate attempt by the Bush administration to water down minimum
standards of decent behaviour historically required to be observed by US
military personnel towards prisoners of war (as required by the Geneva
Conventions), as prescribed in the US Army Field Manual Degrading
America's Image? 

The simple fact is that, guilty
or innocent, Hicks is entitled to the same standard of justice that we would
expect for ourselves. 

The failure of our government to
secure his rights represents a betrayal of the rights of all Australians.