At the opening concert of their Australian tour, Irish rock band U2 called for the release of Australian David Hicks from Guantanamo Bay detention camp in Cuba, where he has been awaiting trial on charges of conspiracy to commit war crimes, attempted murder and aiding the enemy since 2001.

U2 joins a long line of global Hicks supporters, who make no judgement on Hicks’ guilt, but rather the system that has detained him without proper judicial process or regard for human rights.

Earlier this year the US Supreme Court ruled that the military commission, which Hicks was to appear before, was illegal and in contravention of the Geneva Convention and the US military code of justice. It was a landmark ruling bringing into question the presidential powers used to establish the first US war crimes tribunals since World War II.

So what does this mean for Hicks and the future of Guantanamo?

Recently, the US government ratified a new military commission process via the Military Commissions Act 2006 (the Act), which has been criticised for its failure to satisfy the Supreme Court’s concerns. It is argued that while the new process allows for plea bargaining, it also permits accused persons to be pre-judged as terrorists without rights to a fair trial. Considering David Hicks’ case does not fall within the perimeters of the Act, a question remains about what will happen to him.

The only way out for Hicks right now is repatriation by the Australian government. But, while Prime Minister Howard has expressed concern regarding the time that is being taken with Hicks’ trial, he has also pointed out that if Hicks is brought back to Australia, he cannot be tried for the same offences because they were not offences under Australian law at the time they are alleged to have taken place. Instead, Mr Howard has suggested other methods of trial in the US be considered, for instance a court martial or civilian trial conforming to the US Supreme Court decision.

Hicks’ military lawyer, Major Michael Mori, has criticised the lack of action from the Australian government, suggesting that five years detention in Guantanamo is penalty enough for someone who has never violated Australian law.

But terrorism is a hot topic in Australia and the rule of law gets controversial wherever the threat of terrorism is concerned. Victorian Jack Thomas was recently cleared of charges of receiving funds from a terrorist organisation, but was issued with a control order which limits his use of telecommunications, imposes a curfew and requires him to regularly report to police. Might this be what awaits David Hicks if he is returned to Australia?

At a recent meeting of Australian state and territory Attorneys-General, discussion about Hicks’ case concentrated on the serious break down in fundamental principles of law. The Attorneys-General met recently in Fremantle, along with Major Mori, to sign the Fremantle Declaration, which upholds the right to a fair trial, the prohibition of detention without trial, the prohibition of torture and the prohibition of the death penalty and, in addition, called for urgent action on Hick’s ongoing detention.

As we approach the fifth anniversary of the detention of David Hicks, the pressure is definitely still on. In the meantime Mr Hicks continues to wait and the principles of human rights continue to be tested.

More information

>From the LIV Bookshop
Torture: A Human Rights Perspective , by Kenneth Roth (ed), $30

Useful web links

For general information on international human rights standards, visit the official United Nations web site: www.ohchr.org.