Hicks
I have said from day one of Hick’s incarceration at Guantanamo that he should be treated as a Prisoner of War and released when the conflict is over. I have been bemused by legal opinion that demands he be charged and tried or released. To me this would be the same as if an Australian had left Australia in 1942 to train with and fight for the Japanese and was later captured on the battlefield. He would’ve been incarcerated until wars end and nobody would’ve demanded he be charged or released.
The Left wing legal activists are suggesting Hicks be charged as a common criminal when clearly he isn’t. He was fighting for the enemy and if he hadn’t been captured when he was, he could well have ended up being in a position to shoot at and kill Australians or allies.
In my reading on the subject I came across this study by the Australian Defence Association that delves into the fact that his detention as a captured combatant and his possible trial on criminal charges are two entirely separate issues.
The complexity of the legal issues surrounding David Hicks confuses even lawyers, particularly ones with little or no background in the relevant international law. Even some academic lawyers with general backgrounds in international law have demonstrated insufficient knowledge of the Laws of Armed Conflict (one of the oldest and most detailed bodies of international law). Recently, for example, the Law Council of Australia lapsed into purely domestic legal thinking and terminology in describing David Hicks as having “languished powerless in custody, principally at Guantanamo Bay, for a period of 30 months before he was even charged with any offence”. Similarly, a recent letter to the Prime-Minister from the Australian Section of the International Commission of Jurists (ICJ) implied (wrongly) that “indefinite” detention was illegal in all circumstances, mentioned “the Geneva Convention” (rather than show any understanding that there are in fact four Conventions and three Additional Protocols), and did not mention the Laws of Armed Conflict at all. Such statements, apparently premised on the narrow and incorrect supposition that this is only a form of civil criminal matter, are just further variations of the common but simplistic claim that it is merely a matter of someone trying David Hicks or releasing him.Being tried on terrorism or other war crime charges will not necessarily mean he would be released if found innocent.
Although too often ignored in popular clamour, the correct position in international law is that even if criminal charges against David Hicks were dropped tomorrow this would not necessarily mean his unconditional release from detention as a captured combatant under the Laws of Armed Conflict. The dropping of criminal charges would, however, probably assist the relevant tribunal in determining the likelihood of him resuming belligerent activities and therefore deciding whether his release on captured combatant parole, for example, could be justified under international humanitarian law.The article from the Australian Defence Association spells it out and is a bit lengthy but if you want to voice an opinion about Hicks then I recommend you read it first. In the meantime I will just accept that most of those clamouring for Hick’s trial and/or release do so based on ideology and in the absence of any impartial knowledge of the laws that govern detention of armed combatants. I’ve been to war and when we captured an enemy soldier we detained him for as long as was deemed necessary to avoid him getting back into the fray. It’s what armies do for God’s sake.
Facebook
Twitter
Welcome back Kev
Yep, this is not a civil case – people seem to forget that.
He’s lucky he wasn’t shot, after all he was an official Taliban member
He hasn’t had his day in court because of his legal team’s challenges.
His legal team would not take a plea.
His real name is Muhammed Dawood – he changed it, so why doesn’t he use it now?
Cheers
Cav
BTW Telstra have changed the address of my blog
Cav’s Cave
http://cav.bigblog.com.au
Dear Kev
It is always refreshing to see that you remian consistent in your view of Hicks’ incarceration.
I thought that the war tio liberate Afgnasitan was over then again I might be wrong just as Bush was wrong about Iraq. No more swaggering landings on aircraft carriers but a flop on the deck and down the tube as a lame duck.
If the war to overthrow the Taliban is over then why has he been kept without charge for 5 years. At Nuremberg they tried them in late 1945 and 1946 but this mob cannot get their act together after 5 years.
If he was guilty and the evidence so damning why has he not been tried.
There is a popularly elected government in Afghanistan and why has he not been charged when the campaign there is over.
When also did congress declare war?
I am pasionate about hicks, it seems that there are some people shouting loud and long that david hicks has chosen his own path. He chose to side with terrorists changed his name in doing this he also chose to declare a war of terrorism against all ‘non believing’ Australians. According to my understanding hicks also declared war on me and my family. In the instance of a terrorist war I am also prepared to fight to the end for my beliefs and freedom and thoise of my family. Perhaps those who are of similar beliefs to me should declare war on david hicks. I said once before that hicks and his father are both absolute grubs. I also said that I was prepared to stand toe to toe with firstly terry hicks and then his mongrel son to the last man standing. I have recently retired after 34 years so I am certainly not as young as the mongrel son. I have no doubt that I would be the last man standing in both cases, but there is no doubt in my mind that neither hicks senior or junior would have the intestinal fortutide to stand face to face one on one defending my country Australia and my way of life. Both are cowards.
Dear Kev
Since when does the Australian defence association have the monoploy on legal wisdom. The Us Siupreme Court may have a lot to say baout the charges agfainst Hicks especially the retrospective ones.
Hope I will be saying ” I told you so” again down the track.
Does Hicks have to rot in jail; for the next 40 years until the US wins the “war” ; one that they are lsoing in Iraq and now possbly in Afghanistan. Who are voctores when they peddle sa sytem of jsutice that Rawanda and Uganda would have been proud .
Is it right that we pretend to export better “values” and moral authority yet expend it and lose that authroioty becasue of Abh Ghraib and that bleeding sore at Gitmo.
Wake up Kev; the US’s on the nose and Bush is “gone” for a row.
The US has squanderd its goodwill in this expediton to iraq and the the farce of pretending that they have a just system of military justice in place. Their own Siupreme Court said that it violates human rights treaties and they will probably strike this system down.
How can he receive a fair trial when they are using the same basic method of applyingevidnce such as rumour and hearsay to convict a person of serious offences some of which are capital offences.
it smack of Roland Freisler and his peoples Court under the Nazis. I suppose the Nazis were woirse ebacsue they sued torture and inhumane emthods to extract confessions and evidence.
Then again this might also be happening at Gitmo.
It is sad to see you endorse a system of justice that Aussies would never impose on “combatants” and pisoners of ‘war”. The agains I might be wrong with Ruddock as the first law officer and “old bootlaces” Howard.
By the way it is refeshing to see that you have given up on the Iraq war and debate about the dreaded “c” word. i suppose that Hicks is a “softer target”.
Can’t wait to hear from Andrew Bolt when he chances the green zone for another glowing report on the success of that expedition.
Over to you kev.
Jeez Graham, re-holster those guns before you shoot someone. Your attack on Terry Hicks is way over the top. The man seeks a fair go for his son. What father wouldn’t regardless of what he has or hasn’t done?
The whole Hicks business is starting to smell and Howard’s nose is starting to twitch. After all this is an election year. While some might like to think that Hicks must be an Al Qaeda king pin, a Dr Evil of the terrorist world I reckon he is a midguided dope from Adelaide who is about as dangerous as Bert Newton. He threw in his lot with the Taliban (the official Govt of Afghanistan at the time), was subsequently captured by the Northern Alliance who no doubt wet themselves with excitement at the thought of the US dollars the Americans would hand over for a caucasian (“he’s Al Qaeda, he’s Al Qaeda”). The Americans admit that Hicks never shot at Americans ( he would be dead now if he had) and Ruddock says that he has not broken any Australian laws.
Now for the POW question. If he is a POW he can be held indefinitely until hostilities cease. Fair enough. But why Cuba? Why the need for criminal charges? Why were the Brits sent home and why are there no US citizens in Gitmo? Treating POW’s as criminals is something new is it not? Is he a POW or is he a criminal. You can’t have it both ways.
As Australians we are supposed to believe in a fair go for everyone. For God’s sake, even a paedophile gets a fair (and reasonably speedy) trial in this country.
“ethnic killing by the Taliban in Afghanistan” (2 September 1998)
‘The Taliban do not accept women as a part of society’
“Taliban Kills 2 Sisters for Crime of Teaching”
“Taliban jail 22 crimpers for crimes against hair”
“UNESCO Director-General Koïchiro Matsuura has condemned the Taliban’s destruction of the Buddhas of Bamiyan”
“Only Pakistan, Saudi Arabia and the United Arab Emirates recognize the Taliban as Afghanistan’s government, and international recognition as a legitimate government remains the movement’s most important foreign policy objective. The country’s seat at the United Nations is still held by representatives of the government overthrown by the Taliban in 1996, to which the opposition Northern Alliance remains loyal.”
http://en.wikipedia.org/wiki/Taliban
“United Nations rebuffs Taliban attempt to gain seat”
“KABUL, Afghanistan (AP) – Thousands of people watched as a woman, cowering beneath a pale blue all-enveloping burqa, was shot and killed today in the first public execution of a woman in Kabul since the Taliban religious army took control three years ago.”
the Taliban (the official Govt of Afghanistan at the time)
No it wasn’t. Only Saudi Arabia and Pakistan ever recognised the Taliban as the legitimate government of Afghanistan.
It is in any case not relevant as no one has produced any evidence that he wore the uniform, or the insignia of an officially recognised army, nor that he fulfilled any of the conditions that must be fulfilled if a prisoner is to be a POW.
There is precedent for this: shortly after the US entered WW2, a group of German sabatours (including a US Citizen) were dropped off on the east coast of the US to sabotage industrial and communications facilities. They did not wear uniforms, nordid they wear insignia. Roosevelt had them tried before a military tribunal (rather than a Court Martial, which is what a POW is entitled to), and executed.
Of course that was completely different: the left didn’t find supporting Nazis as fashoinable as supporting Islamofascists.
The reason the Poms and Yanks were removed from Guantanamo Bay was political.
Muhammad Dawood is what the US Government says he is: an illegal combatant, in the same category as a mercenary or a pirate.
Chris, I accept that calling the Taliban “the official govt of Afghanistan” was a little loose. It is certainly true that they controlled Afghanistan except for the NW corner (occupied by the Northern Alliance) at the commencement of the US bombing campaign and “official” usually refers to however can muster the most fighters. History also shows us that no Afghanistan govt has ever ruled much further than the outskirts of Kabul. You may have heard of Afghan president Hamid Karzai referred to as the “Mayor of Kabul.” Your last sentence may very well be true but at the end of the day what you or I think does not matter. Hicks will be whatever the electorate says he is and right now Howard’s polling and backbenchers are telling him that an Australian citizen banged up in a foreign country for five years without trial is electorally damaging. Ah the joys of living in a liberal democracy.