Kep Enderby
Alfred Dreyfus was imprisoned on the remote, infamous Devil's Island for five years before, following 12 years of public protestation, his conviction was eventually overturned. David Hicks has been imprisoned on the United States military's detention centre at Guantanamo Bay, Cuba, for nearly five years, and he hasn't been convicted of anything.
As things stand, unless the Australian government intervenes on his behalf, he has no chance of being released in anything like the near future.
Prejudice had a lot to do with the Dreyfus case and, although of a different kind, it is playing a part in Hicks' case also.
While the legal and ethical issues are complex, there is much more involved in Hicks' case than an injustice and wrong being done to Hicks. It raises the question of whether his detention is legally justified at all, and whether the acts he is alleged to have done were crimes when he did them, and even if they were crimes, whether they have anything to do with why he is being detained.
It raises the question of how international criminal law is made, or is being made, and in Hicks' case, a consideration of the little understood and seldom thought about law of war, and how it is being made. Any law that justifies the taking away of a person's liberty should always be as certain as possible, and that has not been so in Hicks' case.
Hicks' imprisonment is a consequence of his having been captured in Afghanistan. He was there as a member of an irregular international Taliban militia, fighting, or being ready to fight, on the side of what was then the Taliban de facto government of Afghanistan and its military forces that were then resisting the United States' armed forces invasion to remove it. The Taliban government was believed to be harbouring the al Qaeda terrorist organisation following the September 11, 2001 attacks on the United States.
Hicks was captured by an Afghanistan armed force, the National Alliance, that was opposing the government forces, and handed over to the Americans, who sent him to Guantanamo Bay.
Two-and-a-half years later the US military charged him with three crimes: conspiracy, aiding the enemy and attempting to murder Americans.
Ordinarily, criminal law is something a sovereign state enacts in relation to events that occur within its own state or territory, and is usually called its "domestic criminal law". Alongside a state's domestic criminal law, there is international criminal law, and in this particular case, the law of war.
An early question that has to be asked in Hicks' case is by whose or which criminal law were the acts Hicks is alleged to have committed made crimes?
Broken rules
The principal reason why so many public figures have sprung to Hicks' defence is that, considered as a case of a person arrested and charged with having committed a crime, every basic rule associated with ensuring justice is done in determining guilt or innocence was, and is, being broken in Hicks' case.
Apart from the almost five years already in detention, without having had any kind of trial, a serious aspect of what was going to be part of that injustice was that the US President had made an order directed at the irregular militia, of which Hicks was a member, that gave extraordinarily wide discretionary powers to special military tribunals
that were going to try those militia members charged with having committed crimes.
In those tribunals, all the basic common law rules of evidence used in ordinary criminal trials, designed to ensure that they be fair, were not to apply. They were to be real kangaroo courts.
Among other detainees held at Guantanamo Bay was a Yemeni man, Hamdan. Hamdan, too, had been captured in Afghanistan and handed over to the US military and sent to Guantanamo Bay. His case is similar in many ways to that of Hicks. Unlike Hicks, Hamdan was charged with only one crime, the crime of conspiracy.
Pursuant to writs of Habeas Corpus (a court order demanding a prisoner be presented to a court) and Mandamus (a court order asking an authority to carry out its duty properly), Hamdan sought declarations in the US courts that conspiracy was not a crime pursuant to the law of war, and that the order the President had made could not be made relying solely on presidential power.
On June 29 this year, the US Supreme Court gave judgment in Hamdan's case (Hamdan against Rumsfeld), and Hamdan succeeded on both grounds.
The court ruled that conspiracy was not a crime under the law of war, was not a war crime, and that presidential power alone was insufficient to authorise such a drastic departure from the ordinary requirements of justice.
All legal argument before the court proceeded on the basis that, to be valid, the legal source of the crime Hamdan was alleged to have committed had to be the law of war, and not the law of, say, the US or Afghanistan where Hicks had been captured.
Hicks was not a party to the Hamdan case, and the court did not have to decide whether or not the other charges against him, of attempted murder and aiding the enemy, were war crimes.
The importance of Hamdan's case from Hicks' point of view is that if Hamdan's detention had been a consequence only of his having been kept in custody while awaiting his criminal trial, in ruling as it did that there was no crime of conspiracy, Hamdan would have been released from detention and discharged, but that did not happen. He was not released. He is still in detention.
At the conclusion of his judgment, Justice Stevens, giving the majority judgment of the court, said "Hamdan does not challenge ... the government's power to detain him for the duration of active hostilities ... "
It is this short reference to the source of the assumed legality of the detaining power of the US over detainees at Guantanamo Bay, and presumably other US bases around the world, that is the most worrying from Hicks' point of view.
According to it, Hicks' detention, like Hamdan's, is unrelated to, and does not depend, on whether he has committed any crime or not. Viewed that way, Hicks is being detained as a captured combatant in war or, if not strictly of war, of armed conflict, having either the status of being a prisoner of war, with the rights and protections given POWs by the four Geneva Conventions or, if not, the status of a POW, because of the irregularity of his type of combatancy, that of some
other ill or undefined type of captured combatant, with very ill defined rights not covered by the existing Geneva Conventions.
Justice Stevens did not elaborate when he referred to "active
hostilities". Was he referring to the ongoing fighting in Afghanistan, or to the ongoing so-called war against terrorism, or perhaps to both?
If the power to detain continues for the duration of hostilities, who is going to determine when they have ended?
While the court held that the president could not by Presidential Order alone have the special tribunals depart so drastically from the norms of criminal justice, the court did hold that the congress could give the president that power to have that done, and some members of the congress
have already indicated that they will introduce legislation to give the president that power.
Therefore, if Hicks ever goes to trial, there are three possibilities: an ordinary criminal trial; a US Court Martial type of trial; or a trial by a special tribunal, but this time one with its procedures "authorised" by congress.
If, following such a trial, he is convicted of some crime, the penalty imposed will not have to take into account the time he has already been in detention. This too will offend all traditional notions of criminal justice. It will be because his detention up until then would be regarded as time spent as a captured combatant and not as someone in custody awaiting trial.
Hicks is thus today more than ever in a state of limbo. If he is going to be kept in detention by the US military, either because he is regarded as a captured combatant in ongoing hostilities in Afghanistan, or a combatant in the general so-called war against terrorism, he could be there for a very long time.
Imprisoned combatants in other wars or armed conflicts have, in some cases, been detained for as much as eight or nine years, and they were wars of the more conventional kind.
Law of war
A large part of international criminal law is to be found in the law of war, and this only comes into operation and depends on there being a state of war. Whether a country is in a legal state of war or not today can be very uncertain.
There was a time when determining whether or not there was a legal state of war, which was usually between warring sovereign states, depended on whether there had been a declaration of war, or some authorisation of that war by government.
Over the years, as the nature of armed struggle between peoples changed, determining what was and what was not war, and when a state of war existed, and thus when the law of war came into being, also changed. It has now become largely a question of fact. It is no longer something "declared" by governments.
The trouble is that questions of fact can be very uncertain, and who is to decide those facts?
Determined in that way, whether there is a functioning, valid law of war or not can come down to a matter of opinion, and whose opinion?
Determining whether or not a crime has been committed in such situations can become very uncertain.
The great English jurist, Dicey, once said, "a man may be punished for a breach of the law but for nothing else. There must be no crime or punishment except in accordance with a fixed, pre-determined law."
Flowing from that is the principle that criminal laws should not be enacted so as to have retrospective effect. On that, the great philosopher Thomas Hobbes said, "No law, made after a fact done, can make that fact a crime ... Before a law, [is enacted] there can be no transgression of the law."
If criminal law can be brought into being, as though being enacted, by the existence of a disputed question of fact, and cease to be a law not by a lawmaker or a parliament, but by an answer given to the disputed question of fact as to whether an armed conflict is a war or not, by someone's opinion about it, then the basic requirement that there should be legality, validity in how criminal law is made and unmade, is put in jeopardy.
The ramifications go further.
Should captured international irregular militia fighters like the members of the Taliban, or Hezbollah, have Geneva Convention POW status or some different kind of status, and what about Hamas, jihadists and al Qaeda fighters? Not infrequently, one person's terrorist can be another person's freedom fighter.
The Australian Defence Association argues that the world urgently needs a Fifth Geneva Convention to cover the changes that have occurred in the nature of armed conflict in recent years. Who would be signatories to such a new convention? Would there be reciprocity?
World governance is in disarray.
David Hicks is a casualty, but so to a very great extent is global due process and the rule of law.
[Kep Enderby QC is a former federal attorney general and a former judge at the Supreme Court of NSW, Sydney. This is slightly abridged from the August 27 edition of Ochkam's Razor on ABC Radio National. Visit <http://www.abc.net.au/rn/ockhamsrazor.]