POW transfer an option for Hicks

Professor Donald Rothwell is Professor of International Law at the ANU College of Law. After the recent visit to ANU by Major Michael Mori, defence counsel for Guantanamo Bay inmate David Hicks, Professor Rothwell considers the remaining legal options for Australia’s most prominent detainee.

Ever since his detention in Afghanistan in late 2001, the Australian Government has apparently been indifferent to the plight of David Hicks. Notwithstanding the refusal of the US government to grant detainees from the Afghan conflict prisoner of war (POW) rights under the Geneva Convention, the conditions under which detainees have been held at Guantanamo Bay, and the extraordinary trial procedures under the proposed military commissions, the Australian Government has generally been supportive of the US and even suggested that what was occurring was perfectly legal. Now, following a recent US Supreme Court ruling, the military commissions have been adjudged as contrary to both US and international law. However Hicks seems to be no closer to receiving a fair trial or being released, despite this very significant legal development.

What then are the possible scenarios that may eventuate for Hicks? One scenario is that a new trial procedure is established, consistent with US and international law, under which new charges are laid and Hicks is eventually convicted. Hicks’s US counsel, Major Michael Mori, recently visited ANU and seems comfortable with that outcome, providing the process permits for a fair trial similar to that provided by a US court martial.

If Hicks is convicted then two outcomes seem certain. The first is that he would not be subject to the death penalty. The recently arrived US Ambassador to Australia, Robert McCallum, made that clear during his first Canberra press conference. The second is that Hicks would be eligible for return to Australia under a prisoner transfer agreement which would allow him to serve part of whatever gaol term he faced in Australia.

Of course, another scenario is that the revised trial procedure like the first, runs afoul of the US courts and is struck down. By the time the various appeals were heard and final rulings issued by the US Supreme Court, this could be another few years of Hicks’s life spent at Guantanamo.

Even if Hicks is found not guilty of any charges brought against him, this would not automatically result in his release. No matter what interpretation is placed on the circumstances of his original detention in Afghanistan, the US would seem within its rights to continue to maintain that Hicks is a POW who can continue to be detained until the end of hostilities. While that is a position consistent with the Geneva Conventions, presently it is difficult to foresee when a formal cessation of hostilities with terrorist forces will occur. Under this scenario, Hicks could possibly face indefinite detention as a POW. However, given Hicks’s allegiance with the Taliban, the better view would be that he would be subject to release upon the cessation of hostilities in Afghanistan. Here, it needs to be remembered that there remain ongoing coalition military operations throughout Afghanistan to rid the country of Taliban, and Australian forces are actively engaged in that process. Unless the US was prepared to permit hi
s early release – and there is certainly precedent for this even in POW cases from past conflicts – then Hicks could still be facing more time at Guantanamo.

Some Guantanamo detainees have been released, including many from European countries and the Australian Mamdouh Habib. However, almost without exception the released detainees had not been charged under the military commission system, were no longer considered useful for intelligence gathering, or were from countries which actively challenged the legitimacy of their detention. Hicks does not fall within any of these exceptions.

With Hicks’s de facto POW status now effectively confirmed by the US Supreme Court, there is the potential for Australia to request his transfer back home. As both a party to the Geneva Convention and also the Afghan conflict, there is nothing under international law which would bar such a transfer the effect of which would not be dissimilar to the transfer of civilian prisoners.

Ultimately, if the US cannot devise a legitimate trial process for Hicks, his return to Australia as a POW is one option which the Howard Government could legitimately pursue. It would allow it to maintain its tough stance on terrorists, but also acknowledge that in the case of Australian citizens humanitarian considerations apply which justify their return to Australia. Such a government position would also address the anomaly which would arise if Australians duly convicted of drug crimes in Indonesia were able to return to Australia under a prisoner transfer agreement while Hicks, convicted of no crime and perhaps having even been found not guilty of crimes before a US court, continued to be held at Guantanamo. No matter what David Hicks is alleged to have done, as an Australian citizen he remains entitled to the protection of the law and of the Australian Government.

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ANU Reporter Spring 2006