JURIST Guest Columnist Devika Hovell
of the University of New South Wales Faculty of Law in Sydney, Australia, says that the trial of Australian Guantanamo detainee David Hicks by US military commission highlights his transformation from an alleged perpetrator of war crimes into a possible victim of one...
he trial of David Hicks, the so-called "Australian Taliban", before a United States Military Commission is scheduled to resume on November 18. Of the 500 detainees still imprisoned at Guantanamo Bay, Hicks is one of only four detainees formally charged with offences. The remaining detainees, many preparing to enter their fifth year of detention, have not yet been charged. In this sense, Hicks can be seen to be one of the ‘lucky’ ones, released from the limbo of detention in the absence of charge, trial or conviction. The paradox is that the treatment of David Hicks to date has transformed him from an alleged perpetrator of war crimes into a possible victim of one. This stems from his likely status as a prisoner of war.
David Hicks was captured by Northern Alliance troops on 9 December 2001 during armed conflict near Baghlan, Afghanistan. He was immediately handed over to the United States military. For two and a half years, David Hicks was then detained without charge at the United States military base at Guantanamo Bay, Cuba. On 10 June 2004, the United States Department of Defense charged Mr. Hicks with war crimes subject to trial by Military Commission. His trial is scheduled to begin this month. Beyond the impact of a four year delay on the fairness of any criminal trial, the Military Commission, as presently constituted, violates international fair trial standards. The following aspects of the process are of primary concern:
- Gravely limited rules of evidence: Military Commission Order No. 1 on Trial Procedure provides that evidence shall be admitted ‘if, in the opinion of the Presiding Officer…, the evidence would have probative value to a reasonable person’. No further limitation is provided. Moreover, the US President’s ruling can be overruled by a majority of the Commission. In a panel where only the President is required to be legally qualified, those making decisions on the admissibility of evidence may not even be aware of the rules of evidence, let alone apply them. This attracts greater concern in light of the power of the Commission to allow, in addition to live testimony from witnesses, ‘any other evidence including, but not limited to, testimony from prior trials and proceedings, sworn or unsworn written statements, physical evidence, or scientific or other reports’, the veracity of which would be unable to be tested by cross-examination. The negligible rules of evidence binding the Commission stand in stark contrast to the detailed rules of evidence contained in the United States Manual for Courts Martial.
- Diminished right of appeal: The appeal process is tightly controlled by the executive government of the United States, and accordingly lacks independence. Appeal against a decision of the Military Commission is to a Review Panel, consisting of three US military officers selected by the Secretary of Defense. The Panel may provide a recommendation to the Secretary of Defense, yet the President is to make the final decision as to whether this recommendation should be adopted. This should be contrasted with the thorough appeals process available to those subject to United States court martial. Court martial convictions are subject to an automatic appeal to a service Court of Criminal Appeals. If the conviction is affirmed by the service court, the appellant may request review by the Court of Appeals for the Armed Forces, a civilian court composed of five civilian judges, and ultimately the US Supreme Court.
Dissatisfaction with the military commission process has led a number of states to request the return of their citizens from Guantanamo Bay. The British Attorney-General described the military commission justice as ‘not…the type of process which we would afford British nationals’. As of November 2005, 76 detainees had been transferred to the custody of other governments, including the United Kingdom, France, Russia, Spain, Sweden, Sudan, Saudi Arabia and Afghanistan. Interestingly, even the American government has exempted its nationals from the process.
Regrettably for David Hicks, the Australian government has been exceptional in this respect. The Australian Prime Minister confirmed in July 2005 that he was ‘satisfied that the military commission process in relation to David Hicks…will provide a proper measure of justice’. It is perhaps unsurprising then (though somewhat curious) that one strategy employed by David Hicks’ lawyers has been to attempt to obtain British citizenship for Mr. Hicks.
The failure of the military commission process to provide David Hicks with a fair trial has significance beyond the violation of the rights of an individual detainee. Failure to provide a prisoner of war with a fair trial constitutes a war crime. Specifically, the Geneva Conventions require prisoners of war to be sentenced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, in this case, United States court martial. As demonstrated above, the US military commission process falls well below this standard. The implications are significant. Failure to provide David Hicks with a fair trial would not merely implicate the present administration in future war crimes’ allegations, but would threaten the reciprocal application of fundamental protections to US forces (and forces of other nationalities) in future armed conflicts.
The President’s 7 February 2002 blanket denial of prisoner of war status to all detainees captured in the war of Afghanistan indicated a dismissive approach to the significance of prisoner of war protections. In itself, this was in clear violation of the Article 5 of the Third Geneva Convention, which requires all persons falling into enemy hands to be presumed to be a prisoner of war until determined otherwise by a competent tribunal.
Even beyond the entitlement to an initial presumption, sufficient doubt exists in the case of David Hicks to prompt any government wishing to preserve respect for the Geneva Conventions in future conflicts to recognize his status as a prisoner of war. Mr Hicks’ moniker, the "Australian Taliban", has legal implications distinguishing his case from the decision of the Court of Appeals for the District of Columbia in Hamdan v. Rumsfeld
concerning the status of an Al Qaeda detainee (whatever the merits of that particular decision, or the result of the current Supreme Court appeal in that case). While David Hicks is alleged to have been associated with Al Qaeda, his involvement in the armed conflict in Afghanistan was also in support of the Taliban. In a letter to his father on 14 February 2000, he said ‘I am now officially a Taliban member’. Even the Charge Sheet prepared by the United States Department of Defense acknowledges Mr Hicks’ connection to the Taliban. Among the main conduct alleged against Mr Hicks to substantiate the charges is that he guarded a Taliban tank during the armed conflict in Afghanistan in 2001 and ‘intentionally aided the enemy, to wit: al Qaida and the Taliban’.
In his 7 February statement, the President failed to clarify why he labelled Taliban fighters as ‘unlawful combatants’ not entitled to prisoner of war status. The Third Geneva Convention clearly recognizes prisoners of war to include ‘[m]embers of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces’. A memorandum from then-White House counsel and now US Attorney General Alberto Gonzales to the President suggests that the rationale was that the Taliban were ‘militia’ forces rather than the regular armed forces of Afghanistan. This classification would be unlikely to survive serious legal challenge. The Third Geneva Convention expressly provides that prisoner of war protections apply in relation to ‘[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power’. Even if the Taliban armed forces included militia forces within its ranks, its members would still qualify as a prisoner of war under Article 4A(1) of the Convention, which expressly extends to ‘members of militias or volunteer corps forming part of such armed forces’.
The key issue that would need to be resolved by a competent tribunal established under Article 5 of the Third Geneva Convention is whether David Hicks distinguished himself from the civilian population. Even in the case of regular armed forces, combatants are expected to wear a uniform or a distinctive sign and must carry arms openly. Yet this does not require combatants to wear a uniform. Even the US Air Force Pamphlet acknowledges that ‘less than a complete uniform will suffice provided it serves to distinguish clearly combatants from civilians’. If David Hicks carried his arms openly, and was clearly distinguishable from civilians, he should be recognized as a prisoner of war. Until this is determined by a competent tribunal, it is hard to resist drawing the conclusion from his capture by the Northern Alliance and detention at Guantanamo Bay that the forces capturing him were able to clearly identify him as a combatant.
To suggest David Hicks may attract certain minimal protections under the law of armed conflict is not to legitimate his alleged conduct or the organizations he is alleged to have supported. The law of armed conflict is not concerned with legitimizing the causes of or participants in armed conflict, but with injecting a lowest common denominator of humanity into warfare. The Geneva Conventions were drafted in an attempt to rescue a modicum of humanity from a war which had exposed the perniciousness of uncompromising brutality, concentration camps and show trials. Attempts to circumvent the laws of war by labelling the armed forces of a party to the conflict a ‘militia’ and replacing the ‘prisoner of war’ status in the Geneva Conventions with a more flexible ‘enemy combatant’ status merely distorts these valuable legal standards, endangering their application in future conflicts. It is indisputable that, in the ‘war against terrorism’, the world is facing a monumental challenge. Yet if the trial against David Hicks continues in its present form, his accusers, rather than gracing the history pages as defenders of justice, may well themselves be judged for injustices perpetrated. Devika Hovell is Director of the International Law Project at the Gilbert and Tobin Centre of Public Law at the University of New South Wales, Sydney, Australia, where she lectures on public international law, international humanitarian law and international dispute settlement.