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CONTENTS Page ICCPR ARTICLES VIOLATED / SUMMARY OF MERITS 4

PART I: SUMMARY OF FACTUAL BACKGROUND 6

PART II: EXHAUSTION OF DOMESTIC REMEDIES 8

A. The applicable law 8 B. Proceedings taken to date 8 C. Ineffective, futile or unavailable remedies 10 D. No other international procedures are being pursued 14 E. Other matters concerning admissibility 14

PART III: MERITS ARGUMENTS 15

A. Application of the ICCPR to Mr Hicks’ Circumstances 15

B. Violation of Article 15 – retroactive punishment of Mr Hicks by Australia 16

B.1. The prohibition on retrospective criminal punishment 16 B.2. Mr Hicks’ conviction under the Military Commission Act 2006 (US) 17 B.3. The MCA offence of ‘providing material support for terrorism’ is not a war crime 19 B.4. Mr Hicks’ alleged conduct does not constitute the war crime of terrorism 24 B.5. The offence was not a crime under general international law at the time 27 B.6. The offence was not a crime under US domestic law at the time 29 B.7. The offence does not satisfy the principle of legality and is retrospective 31 B.8. Australia’s participation in Mr Hicks’ retrospective punishment 33 B.9. Humanitarian and policy considerations 34 B.10. Remedies sought

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C. Violation of Article 9 – unlawful, arbitrary detention of Mr Hicks by Australia 36

C.1. Mr Hicks’ detention was based on a retroactive offence 36

C.2. Mr Hicks’ detention flowed from a procedurally unfair criminal trial 36

C.2.1. Mr Hicks was not tried before a competent, independent, impartial tribunal 38 C.2.2. Mr Hicks was not tried before a regularly constituted court 43 C.2.3. Mr Hicks was not presumed innocent 45 C.2.4. Mr Hicks was not promptly informed of the charges against him 46 C.2.5. Mr Hicks was not able to communicate freely with legal counsel 48 C.2.6. Mr Hicks was not tried without undue delay 51 C.2.7. Mr Hicks was not entitled to be tried in his presence 52 C.2.8. Mr Hicks was not able to adequately examine or produce evidence 53 C.2.9. Mr Hicks did not enjoy a privilege against self-incrimination 56 C.2.10. Mr Hicks did not enjoy a right of full judicial review of his conviction 57

C.3. Other defects tainting Mr Hicks’ trial 57

C.3.1. Unlawful discrimination against foreign nationals 57 C.3.2. Admission of evidence obtained by torture or ill-treatment 58 C.3.3. Mr Hicks was ill-treated in US custody 61 C.3.4. Mr Hicks’ legal status and eligibility for trial were doubtful 69

C.4. Humanitarian and policy considerations: Articles 9 and 15 75

C.5. Statement by Australian Government officials as to Mr Hicks’ trial 77

C.6. Remedies sought 78

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D. Violation of Articles 2, 14, 17, 19 – by agreement with the United States, Australia adopted the US’ unlawful Plea Agreement with Mr Hicks, which violated his rights

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D.1. Outline of Mr Hicks’ Plea Agreement 79

D.2. The compatibility of plea agreements with human rights law 79

D.3. Reliance upon Mr Hicks’ guilty plea was unlawful in the circumstances 81

D.4 The conditions of the Plea Agreement violate the ICCPR 84

D.5. Australia’s responsibility for rights violations by the Plea Agreement 84

D.5.1. Australia adopted the US’ conduct as its own 85 D.5.2. Australia aided or assisted the US in breaching Mr Hicks’ ICCPR rights 86

D.6. Remedies sought 88

E. Violation of Articles 7, 9, 10 – Australia unlawfully participated in the unlawful detention, interrogation, and treatment of Mr Hicks at Guantanamo Bay

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E.1. Remedies sought

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F. Violation of Article 14 – Australia unlawfully participated in the unfair trial of Mr Hicks by the United States

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F.1. Remedies sought

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G. Violation of Article 7 – Australia failed in its duty to investigate credible allegations of torture committed against one of its nationals by the United States

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G.1.Australia did not adequately investigate Mr Hicks’ allegations of ill-treatment 95

G.2. Remedies sought 95

H. Violation of Articles 12, 14, 17, 22 – by Australia imposing a ‘control order’ 96

H.1. Mr Hicks was subject to a control order in Australia 96 H.2. Mr Hicks did not receive a fair hearing 97 H.3. The control order was not necessary to prevent terrorism 100 H.4. Remedies sought

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PART IV: RESTATEMENT OF REMEDIES SOUGHT 105

ANNEXURES: SUPPORTING DOCUMENTATION 106

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ICCPR ARTICLES VIOLATED & SUMMARY OF MERITS

B. Violation of Article 15 – retroactive punishment of Mr Hicks by Australia

In 2007, a United States (US) military commission at Guantanamo Bay, Cuba, convicted Mr Hicks of the offence of ‘providing material support for terrorism’ under section 950v(25) of the Military Commission Act 2006 (USA) (‘MCA’) (Annexure C). That offence was unknown to international law or US domestic law at the time of Mr Hicks’ alleged conduct and Mr Hicks was thus subject to retroactive criminal punishment, contrary to article 15 of the ICCPR.

By entering into a Prisoner Transfer Arrangement (Annexure Q) with the US, to enforce Mr Hicks’ sentence of imprisonment in an Australian prison, and by enacting related domestic legislation, Australia assumed direct responsibility for the unlawful, retrospective criminal punishment of Mr Hicks. Such conduct was not justifiable and reasonable alternatives to it were available in order to achieve the humanitarian purpose of securing Mr Hicks’ release from Guantanamo Bay.

C. Violation of Article 9 – unlawful, arbitrary detention of Mr Hicks by Australia

Australia’s imprisonment of Mr Hicks for seven months in Yatala Prison, Adelaide, was unlawful and/or arbitrary under the ICCPR because it flowed from: (a) his unlawful retrospective conviction; and/or (b) a flagrant and irremediable denial of justice, caused by Mr Hicks’ manifestly unfair criminal trial before an irregular US military commission.

D. Violation of Articles 2 (right to an effective remedy), 14 (the right to appeal a criminal conviction), 17 (the right to privacy), and 19 (freedom of expression) – by agreement with the United States, Australia adopted as its own the United States’ unlawful Plea Agreement with Mr Hicks, or otherwise unlawfully assisted the US in that Plea Agreement

Mr Hicks’ conviction was based on an unlawful Plea Agreement (Annexure J) with the US, since there can be no legal authority for a State to offer or rely upon a plea in relation to a retroactive offence. Duress of circumstances surrounding Mr Hicks’ plea, particularly the imminent prospect the manifest denial of a fair trial and his cumulative ill-treatment in US custody, further rendered it null and void under international law.

The Plea Agreement required Mr Hicks to surrender his right of appeal, freedom to speak freely for 12 months after conviction, and freedom from undue interference by law enforcement authorities. By adopting the Plea Agreement as its own, or otherwise by assisting in its adoption by the US, Australia is internationally responsible for violations of Mr Hicks’ rights stemming from the conditions of the unlawful Plea Agreement.

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E. Violation of Articles 7 (freedom from ill-treatment), 9 (freedom from arbitrary, unlawful detention), 10 (humane treatment in detention) – Australia unlawfully participated in the unlawful detention, interrogation, and treatment of Mr Hicks at Guantanamo Bay

By interviewing Mr Hicks in US custody to gather intelligence, and in utilising that evidence in control order proceedings in Australia, Australia recognised Mr Hicks’ unlawful treatment by the US and thereby encouraged, supported and participated in it. In doing so, Australia unlawfully aided or assisted the US in the commission of internationally wrongful acts against Mr Hicks.

F. Violation of Article 14 (right to a fair criminal trial) – Australia unlawfully participated in the unfair trial of Mr Hicks by the United States

Australia’s express public and practical support for the trial of Mr Hicks by the US military commission amounts to unlawful aid or assistance to the US in the commission of an internationally wrongful act, that is, the manifestly unfair trial of Mr Hicks.

G. Violation of Articles 7 (freedom from torture and other ill-treatment) and 2 (effective remedies for rights violations) – Australia failed in its duty to investigate credible allegations of torture committed against one of its nationals by the United States

Australia was repeatedly placed on notice that one of its nationals, Mr Hicks, had been seriously ill-treated while in US custody, in circumstances where the US had failed to account for injuries caused to Mr Hicks while in US custody. Australia violated its obligation under articles 7 and 2 of the ICCPR to independently investigate credible allegations of torture made by an Australian national present in Australia concerning his ill-treatment abroad by a foreign State, in circumstances where that State, the US, failed to conduct a full independent inquiry or to otherwise explain the causes of injuries to Mr Hicks which did not exist prior to his entering into US custody.

H. Non-interference in the home, correspondence, privacy and family (ICCPR, article 17); freedom of movement (ICCPR, article 12); freedom of association (ICCPR, article 22); the right to a fair hearing (ICCPR, article 14)

Australia imposed a ‘control order’ (Annexures U, V) on Mr Hicks under the Criminal Code Act 1995 (Cth) (Annexure R) which (a) was not shown to be necessary to prevent him committing terrorism, and (b) was imposed following a procedurally unfair court proceeding. In such circumstances, the various restrictions placed upon the rights of Mr Hicks by the control order were not demonstrated to be necessary or proportionate in pursuit of any legitimate public security aim.

Further, the completion of Mr Hicks’ term of imprisonment in Australia should have been regarded as expiating his criminal responsibility for any past wrongful conduct. Yet, the control order was subsequently imposed upon him on the basis of that same past conduct, contrary to the ne bis in idem principle under international law.

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PART I: SUMMARY OF FACTUAL BACKGROUND

A. Background

1. In December 2001, the Australian citizen David Hicks was apprehended by the Northern Alliance (a non-State armed group) during a mixed international and non-international armed conflict in Afghanistan, after allegedly being involved with armed groups in Afghanistan. At the time of his apprehension, Mr Hicks had fled the area of hostilities and was attempting to make his way to Pakistan.

2. The US and Australia allege that Mr Hicks was involved with the Al-Qaeda organisation. Mr Hicks maintains that he was under the command authority of the Taliban, then the effective government of Afghanistan and responsible for its State armed forces. Mr Hicks’ actual status under international humanitarian law depends upon the characterisation of the conflict in Afghanistan and his personal role in it. These matters remain disputed and are discussed below at B.4.1 of this communication.

3. Mr Hicks was transferred into United States custody in Afghanistan on or about 15 December 2001, held by the US in various facilities and on board US naval vessels, and was later transferred to the US Naval Base at Guantanamo Bay, Cuba, where he was detained from January 2001 to March 2007.

4. The United States initially detained Mr Hicks under the purported authority of the US Congress’s Authorization for Use of Military Force of 18 September 2001, Public Law 107-40 [S. J. RES. 23] 115 Stat. 224 (2001) (Annexure B).

5. On 30 September 2004, a US Combatant Status Review Tribunal, established by Order of the US Deputy Secretary of Defense of 7 July 2004 (Annexure G), finally determined that Mr Hicks could be detained as an ‘alien unlawful enemy combatant’ as a member of, or affiliated with, Al Qaeda (Annexure H).

6. The US Supreme Court subsequently qualified the violence between the US and Al Qaeda in Afghanistan as a non-international armed conflict (see Hamdan v Rumsfeld, 548 U.S. (2006)) and that legal characterisation also shaped Mr Hicks’ treatment by the US authorities.

B. The Prosecution of Mr Hicks

7. On 3 July 2003 the US President determined that Mr Hicks was subject to the President’s Military Order of 13 November 2001 on the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57833, which authorised the detention and prosecution by military commission of persons designated by the President as members of Al Qaeda or otherwise involved in international terrorism (Annexure A).

8. On 10 June 2004 Mr Hicks was charged with a number of offences before a US Military Commission established by the US Department of Defence in its Military Commission Instruction No 2: Crimes and Elements for Trials by Military Commission’, 30 April 2003. The charges purportedly reflected violations of the law of war and were as follows: attempted murder by an unprivileged belligerent, aiding the enemy, and conspiracy. Mr Hicks pleaded not guilty in August 2004 and was due to be tried in January 2005.

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9. In November 2004, a US trial court invalidated the military commission system but the ruling was later reversed: Hamdan v Rumsfeld, 344 F. Supp 2d 152 (DDC 2004), rev’d 415 F. 3d 33 (DC Cir. 2005). Pending an appeal to the US Supreme Court by another detainee, Salim Hamdan, the proceedings against Mr Hicks were stayed in November 2005 (Hicks v Bush, US DC Dist. Col., Nov. 14 2005).

10. On 29 June 2006 the US Supreme Court in Hamdan v Rumsfeld, 548 U.S. (2006) declared that the military commissions established by US Military Instruction No. 2 of 30 April 2003 did not provide for a fair trial as required by common article 3 of the 1949 Geneva Conventions. The charge of ‘conspiracy’ was ruled invalid. The US Congress reconstituted the commissions under the Military Commission Act 2006 (US) (‘MCA’) (Annexure C).

11. On 2 February 2007, Mr Hicks was charged under the MCA with ‘providing material support for terrorism’ (under 950v(b)(25)) and ‘attempted murder in violation of the law of war’ (section 950(t)). On 1 March 2007 the charge of attempted murder was struck out and the sole charge of providing material support for terrorism retained (Annexure I).

12. On 26 March 2007, Mr Hicks pleaded guilty to the charge of providing material support for terrorism under a Plea Agreement accepted and endorsed by the Convening Authority of the Military Commission (Annexure J). On 31 March 2007, he was sentenced by the Military Commission to a term of seven years imprisonment, with six years and three months suspended (formalised by Military Order on 1 May 2007) (Annexure L).

C. Mr Hicks’ Transfer to Australia

13. Following a bilateral prisoner transfer arrangement between the US and Australia which was implemented in Australian domestic law on 29 March 2007 (Annexure Q), Mr Hicks was returned to Australia on 20 May 2007, where he served seven months of his sentence at Yatala prison, Adelaide. He was released on 29 December 2007.

D. Mr Hicks’ Control Order

14. Just prior to his release from prison, an interim ‘control order’ was imposed upon Mr Hicks by the Australian Federal Magistrates Court on 21 December 2007 (see Jabbour v Hicks [2007] FMCA 2139 (21 December 2007) (Annexure U), under section 104.4 of the Australian Criminal Code Act 1995 (Cth) (Annexure R). The control order placed a combination of restrictions upon the rights and freedoms of Mr Hicks for a period of one year. The interim order was confirmed on 19 February 2008 (see Jabbour v Hicks [2008] FMCA 178 (19 February 2008) (Annexure V) and expired on 21 December 2008, whereupon the Australian Federal Police did not seek to renew it

E. Mr Hicks’ Current Circumstances

15. Mr Hicks is now living and working in Sydney, Australia, and experiences ongoing physical and mental health issues as a result of his treatment in US custody and by Australia. In order to rebuild his life, he feels that it is important for the violations of his rights to be vindicated by the UN Human Rights Committee. In particular, he suffers from the ongoing stigma of his conviction as a ‘terrorist’ and would like the unlawful, retrospective nature of that conviction to be recognised, along with the unfairness of his trial, detention and control order.

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PART II: EXHAUSTION OF DOMESTIC REMEDIES

A. The Applicable Law

16. Mr Hicks is required to ‘have exhausted all available domestic remedies’ in Australia: First Optional Protocol, article II. Such remedies include judicial remedies (R.T. v France (262/1987) at para. 7.4) and non-judicial or administrative avenues that offer a reasonable prospect of success (Patino v Panama (437/1990) at para. 5.2). The domestic remedy must have the capacity to deliver a binding decision and to provide effective relief, and not be merely recommendatory or hortatory: C v Australia (900/1999) at para. 78.

17. Remedies are usually considered exhausted when a final judicial decision has been rendered and there remains no right of appeal. Where available remedies have not been pursued, the apparent inaction must be justified: Communication No. 1065/2002 (Mankarious v Australia).

18. There is no requirement to exhaust (objectively) futile remedies (Pratt and Morgan v Jamaica (210/, 225/87); R.T. v France; Kaaber v Iceland), such as where a remedy would be plainly ineffective (because the law is clear and a communication would inevitably be dismissed by the highest domestic court (Communication No. 941/2000 (Young v Australia)), including as a result of a decision that a law is constitutionally valid: Des Fours Walderode and Kammerlander v. The Czech Republic, Communication No. 147/1997, 30 October 2001 at para. 6.3).

19. Where remedies are unavailable (for example, because a relevant cause of action does not exist in domestic law), the requirement to exhaust domestic remedies is necessarily fulfilled.

B. Proceedings Taken To Date

B.1 Australian Proceedings

B.1.1.Federal Court Proceeding in 2007

20. In March 2007 Mr Hicks initiated proceedings in the Federal Court of Australia involving two causes of action against Australia: (a) an order of habeas corpus for release from Guantanamo Bay, Cuba, on the basis that Australia was constructively detaining Mr Hicks there as a result of its ability to direct the US’s treatment of Mr Hicks; and (b) judicial review of the administrative decision not to request the US to release Mr Hicks from Guantanamo Bay to Australia, on the grounds that Australia had taken irrelevant considerations into account (namely, that Mr Hicks could not be prosecuted in Australia) and had not satisfied its ‘imperfect duty’ to make diplomatic representations on behalf of Australians at risk abroad.

21. In a preliminary hearing to deal with the Commonwealth’s application to dismiss the proceedings as having ‘no reasonable prospects of success’, Justice Tamberlin of the Federal Court of Australia decided that Mr Hicks had an arguable case which should proceed to a merits hearing: Hicks v Ruddock [2007] FCA 299, Federal Court of Australia (Annexure M).

22. Those proceedings did not continue to a merits hearing or decision as a result of Mr Hicks pleading guilty in a US Military Commission and being transferred to Australia as a prisoner. The proceedings were discontinued because the remedies sought were no longer capable of having any practical effect.

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23. The remedies sought in this communication are not capable of vindication through proceedings by way of further habeas corpus and judicial review because:

(a) Mr Hicks is no longer in US or Australian custody and so cannot be released; and his detention was lawful under Australian law and no declaration of false imprisonment or ensuing compensation claim can be sought.

(b) An application for judicial review of Australia’s decision not to seek the return of Mr Hicks to Australia before trial no longer has any purpose. Further, judicial review remedies are directed towards correcting governmental decisions or actions and do not provide relief equivalent to that available under human rights law (namely, acknowledgement, apology, and compensation).

B.1.2. Control Order Proceedings in 2007 and 2008

24. As detailed below in Part III(H) of this communication, Mr Hicks was subject to two proceedings for the imposition of a control order, in December 2007 and February 2008 (Annexures U, V). Those proceedings resulted in the imposition of an interim and confirmed control order.

25. The Federal Magistrates Court was only empowered to determine whether there were grounds for issuing a control order under the limited terms of the federal legislation. The Court was not authorised by law to determine whether the control order was, in substance, in conformity with Australia’s obligations under the ICCPR.

B.1.3. Good Faith Exhaustion of Discretionary Remedies

26. Mr Hicks has not only exhausted binding local remedies (as required by the First Optional Protocol to the ICCPR), but has also exhausted discretionary avenues of redress available to him (though this is not required). In 2008 Mr Hicks repeatedly contacted the office of the Commonwealth Attorney-General to request a meeting to seek a resolution of his situation, but at no stage did the Commonwealth agree to discuss his situation.

27. Further, by letters dated 30 June 2009 and 14 July 2009 (available on request), Mr Hicks’s legal representatives in Australia, Gilbert + Tobin Lawyers and Dr Ben Saul, barrister, wrote in good faith to the Commonwealth Attorney-General detailing the nature of this (then proposed) communication to the UN Human Rights Committee and offering the Commonwealth an opportunity to discuss, in confidence, the remedies sought by Mr Hicks. By letter dated 3 August 2009 (available on request), the Commonwealth, through counsel Mr Bill Campbell QC, declined Mr Hicks’ offer to negotiate in its reply as follows:

The Commonwealth appreciates having been given notice of Mr Hicks’ intention to submit the communication to the Human Rights Committee. However, given the content of the outline of the complaint as well as the remedies sought by Mr Hicks, the Commonwealth believes that there is little prospect of a meeting achieving the outcomes you seek. Australia will of course respond to any communication made to the Human Rights Committee in accordance with established processes.

B.2 United States Proceedings

28. Mr Hicks was involved in various proceedings in US administrative tribunals or judicial bodies between 2001 and 2007, namely, before the Combatant Status Review Tribunal, the first and second military commission systems, and in federal US civil courts.

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29. The United States is not the subject of this communication and Mr Hicks is not required to demonstrate the exhaustion of US remedies for the purposes of this communication.

30. Further, as detailed later in this communication, Mr Hicks’ Plea Agreement in the United States prohibits him from appealing or collaterally attacking his conviction and a breach of that prohibition permits the United States to enforce Mr Hick’s suspended sentence of imprisonment (Annexure J). Mr Hicks cannot be expected to bear a risk of imprisonment by pursuing US remedies prohibited under US law. As is further demonstrated in this communication, that Plea Agreement was involuntary and Mr Hicks’ cannot be held to it under international human rights law. Further, Mr Hicks now lives in Australia and cannot reasonably be expected to be put to the expense of litigation in the United States.

B.3. United Kingdom Proceedings

31. Mr Hicks applied for British citizenship based on his British ancestry under the Nationality, Immigration and Asylum Act 2002 (UK). The decision by the UK Home Office to refuse his application was overturned by Lord Justice Collins of the High Court of England and Wales (on 13 December 2005), a decision upheld by the Court of Appeal on 12 April 2006: R (on the application of Hicks) v Secretary of State for the Home Department [2006] EWCA Civ 400.1

32. On 6 July 2006 Mr Hicks was granted British citizenship. On 7 July 2006 the British Government responded by exercising its discretion to revoke Mr Hicks’ citizenship under section 56 of the Immigration, Asylum and Nationality Act 2006 (UK).

Appeal to the House of Lords was denied.

33. The United Kingdom is not the subject of this communication and Mr Hicks is not required to demonstrate the exhaustion of UK remedies for the purposes of this communication.

C. Ineffective, Futile or Unavailable Remedies

34. The availability of remedies under Australian law is discussed below by reference to each of the ICCPR rights allegedly violated by Australia in respect of Mr Hicks. In general it is noted that Australia does not have a federal constitutional or statutory bill of rights which would enable Mr Hicks to directly vindicate the violations of his rights alleged in this communication.

35. Mr Hicks is not required to avail himself of domestic procedures which would only have a recommendatory or hortatory effect and would therefore not be effective remedies, such as findings by the Commonwealth Ombudsman or the Australian Human Rights Commission (see, eg, Brough v Australia, Communication No. 1184/2003; C v Australia, Communication No. 900/1999; Madafferi v Australia, Communication No. 1011/2001).

C.1. Violation of Article 15 – Retroactive Criminal Punishment

36. There is no federal Australian constitutional bill of rights which prohibits or remedies retroactive criminal punishment in Australia.

1 Available at http://www.bailii.org/ew/cases/EWCA/Civ/2006/400.rtf.

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37. There is no other relevant protection against retroactive criminal punishment under the Commonwealth Constitution 1901. There is good authority from the High Court of Australia for the validity of legislation with retrospective effect: see R v Kidman (1915) 20 CLR 425; Polyukhovich v Commonwealth (1991) 172 CLR 501. While Australian courts will attempt to restrictively interpret legislation so that it does not operate retrospectively, legislation with a clear and unambiguous retrospective operation will be given effect.

38. The International Transfer of Prisoners Act 1997 (Cth) as amended, and its regulations (Annexures N-Q), is a validly enacted federal statute which is within the legislative power of the Parliament under the Commonwealth Constitution.

39. There is no federal statutory bill or rights, or other superior federal legislation, which prohibits or remedies retroactive criminal punishment in Australia.

40. There is no public/administrative law or common law cause of action available to Mr Hicks to vindicate his retroactive punishment where it is authorised by a valid statute.

C.2. Violation of Article 9 – Unlawful, arbitrary detention in Australia

41. Since the prisoner transfer legislation authorising Mr Hicks’ imprisonment in Australia is constitutionally valid, that legislation provided sufficient authority in domestic law for the imprisonment of Mr Hicks.

42. There is no federal Australian constitutional or statutory bill of rights, or other superior federal legislation, which prohibits arbitrary or unlawful imprisonment (within the meaning of international law), or which provides remedies equivalent to international human rights law, where such imprisonment is authorised by a valid statute.

43. The common law right of habeas corpus does not safeguard against detention which is authorised by a valid federal statute. Any habeas corpus application made by Mr Hicks while still in an Australian prison could only have tested the undisputed fact that Mr Hicks was a prisoner to whom valid prisoner transfer legislation applied, and not whether his detention was unjustified because it was based on a retroactive offence and an unfair trial. Such a remedy would not have been effective, just as in previous communications the UN Human Rights Committee has determined that habeas corpus would not be an effective remedy for unauthorised immigrants detained under constitutionally valid mandatory detention legislation in Australia: see, eg, Communication No. 1050/2002 (D and E); Communication No. 900/1999 (Mr C).

44. Likewise, any other common law action, such as in tort for unlawful or false imprisonment, or in administrative law, would only be actionable if there was no valid statutory (or other lawful) authority for Mr Hicks’ imprisonment in Australia.

C.3. Violations of articles 12, 14, 17, 22 – Imposition of a Control Order

45. Australia’s control order legislation was upheld as constitutionally valid by the High Court of Australia in Thomas v Mowbray (2007) 233 CLR 307. Given the recent, clear decision of the High Court, any constitutional challenge brought by Mr Hicks would have no reasonable prospect of success: see, for example, UNHRC, Des Fours Walderode and Kammerlander v. The Czech Republic, Communication No. 147/1997, Views of 30 October 2001 at [6.3].

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46. There is no federal Australian constitutional or statutory bill of rights, or other superior federal legislation, which prohibits or provides remedies for the interference in Mr Hicks’ rights resulting from a control order imposed under valid legislation (namely, non-interference in the home, correspondence, privacy and family (ICCPR, article 17); freedom of movement (ICCPR, article 12); freedom of association (ICCPR, article 22); and the right to a fair hearing (ICCPR, article 14);

47. There is no common law cause of action, or administrative law remedy, available to Mr Hicks to vindicate the interference in his rights where it is authorised by a valid statute.

48. It is acknowledged that Mr Hicks was, in theory, provided with an opportunity to contest the imposition of his control order at both the interim and confirmation proceedings in the Federal Magistrates Court (see Jabbour v Hicks [2007] FMCA 2139 (21 December 2007) (Annexure U) and Jabbour v Hicks [2007] FMCA 178 (19 February 2008) (Annexure V) respectively). In both proceedings, Mr Hicks did not seek to contest the evidence brought by the Australian Federal Police, resulting in the magistrate’s acceptance of that evidence.

49. Mr Hicks should, however, be found not to have exhausted local remedies as a result of his failure to contest the control order at those hearings. Mr Hicks was unable to challenge the control order at those hearings because under his Plea Agreement (Annexure J) he was: (a) still at that time prohibited from speaking publicly about his conduct, capture or detention for a period of one year (Plea Agreement, para. 2(b)); and (b) prohibited from collaterally attacking his ‘conviction, sentence, or any other matter relating’ to his Military Commission prosecution, including under ‘Australian law’ (Plea Agreement, para. 4).

50. Mr Hicks justifiably believed that any challenge to the control order, for instance by adducing evidence as to his conduct, would place him in breach of his Plea Agreement, and consequently render him liable to serve the remaining term of his suspended prison sentence. In the circumstances of a history of close cooperation between the US and Australian authorities in relation to his case, he could not reasonably be expected to take the real risk of breaching his Plea Agreement and being returned to imprisonment in the US.

51. There are further reasons why Mr Hicks was not required to contest the evidence at those hearings in order to exhaust local remedies. Mr Hicks firstly submits that his failure to call evidence would not have materially affected the substantive outcome of the proceeding and thus the compatibility of the control order with his ICCPR rights. The statutory grounds on which control orders could be imposed did not allow for the review of the necessity (within the meaning of international human rights law) of imposing the rights restrictions on Mr Hicks. In particular (as set out at Part III(H.3) of this communication), a control order could be imposed merely for prior training with a terrorist organisation, in the absence of any proof of the person’s continuing intention to commit terrorism. Thus any evidence adduced or contested by Mr Hicks during the control order proceedings could not have materially affected or remedied the incompatibility of the legislation with the ICCPR, once it was accepted that Mr Hicks had prior involvement with an organization suspected of terrorism. His rights were violated in consequence of the design of the statute and its unopposable application to his case.

52. Mr Hicks secondly submits that the procedure for imposing a control order was procedurally unfair, contrary to article 14 of the ICCPR (see below at Part III (H.2.)). Any evidentiary challenges Mr Hicks may (or may not) have brought during the control order proceedings themselves could have not have affected or remedied the fundamental procedural unfairness of the statutory scheme, which again is inherent in the design of the legislation.

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53. It is further acknowledged that Mr Hicks did not seek to appeal the imposition of his control order to a higher court. However, for the same reasons given above, any such appeal would place Mr Hicks in breach of his Plea Agreement. Any such appeal would also be limited to assessing the correctness of the decision on the terms of the (valid) legislation. Such appeal would not have enabled Mr Hicks to challenge the compatibility of the legislation (including the grounds on which control orders may be issued, and the procedures for issuing orders) with Australia’s obligations under the ICCPR – which is the focus of this communication. Any such appeal could not therefore have provided Mr Hicks with an effective remedy.

54. Furthermore, at the time of the control order proceedings, Mr Hicks was not in a sufficiently fit state of mind to participating meaningfully in the control order proceedings and did not seek to bring or contest evidence for that additional reason. As Mr Hicks’ Australian lawyer at the time, Mr David McLeod, explained at the time:

People may be wondering why he did not appear to provide the sort of evidence that the magistrate said might have assisted him. The answer lies in his abuse and mistreatment over the more than 5 and a half years at the hands of the United States, aided and abetted by the Australian authorities, who not only stood by while his abuses took place but served to legitimise his detention by actively supporting the discredited military commission process. (Quoted in T. Dornin, ‘Hicks unable to face day in court’, The Canberra Times, 20 February 2008.)

55. Mr Hicks was traumatized by his detention in Guantanamo Bay and in prison in Australia. During the first control order hearing, he was still in detention and did not wish to jeopardize his prospects for release and freedom by appearing to be a ‘trouble-maker’ – in a context where he had recently felt compelled to plead guilty in order to return to Australia, and where the Australian Federal Police were still threatening him if he did not speak to them. After six years in detention, and protracted legal wrangling, he felt that there was no point in continuing to fight government legal action against him. He felt unable to move easily from six years in isolation in detention into a court-room ‘filled with vultures’, including the media. During the second control order hearing, he had only been out of prison for one month and was still being hounded by the media, and similar considerations applied. He also believed that the court process was unfair would not allow him to fully explain his story and that it would be futile to oppose the order, not least because the very limited number of judges authorised to hear control order applications in Australia were selected by the Australian Government.

C.4. Violation of Articles 2, 14, 17, 19 – Australia’s Adoption of the Plea Agreement

56. The Plea Agreement is an instrument of US criminal law and has not been given direct legal effect in Australian law by the Parliament. Under Australian private international law, the penal law of a foreign sovereign cannot be enforced (and therefore cannot be challenged) in the Australian courts. In the absence of the Plea Agreement having any formal legal status under Australian law, the validity of Mr Hicks’ foreign Plea Agreement cannot be challenged in any Australian court. Consequently there is no effective remedy available to Mr Hicks.

57. At the same time, Mr Hicks remains at risk of the Plea Agreement being invoked by the United States in its dealings with Australia on the international plane, with possible adverse consequences for Mr Hicks under the US-Australia Prisoner Transfer Arrangement (Annexure Q). Paragraph 10 of that Arrangement requires Australia ‘to respect and maintain the legal nature and duration of the sentence as determined by the United States’, which necessarily includes the Plea Agreement which is an essential precondition of the sentence.

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Mr Hicks is at risk of Australia acting subsequently to enforce the Plea Agreement at the request of the US, if, for instance, Mr Hicks violates a condition of the Plea Agreement.

58. Since Mr Hicks is unable to attack the Plea Agreement itself, he cannot afford to risk violating its conditions in order to activate any other potential remedies under Australian law. For example, if Mr Hicks violated the requirement not to speak publicly for 12 months after his conviction, refrained from cooperating with Australian law enforcement officials, or made profit from telling his story, he risked the US seeking to enforce, through Australia, the remainder of his suspended sentence.

59. That risk was too great to justify violating any of those conditions of the Plea Agreement and then seeking to challenge any possible adverse action taken against him under Australian law. The Plea Agreement thus had a concrete chilling effect on his capacity to exercise his rights, such that he could not risk exercising those rights in the hope that there might be some (unknown) remedy or challenge to the Plea Agreement available in Australian law.

D. No other international procedures are being pursued

60. Mr Hicks regards the UN Human Rights Committee as the most appropriate international forum for remedying the violations of his rights.

E. Other Matters Concerning Admissibility

61. Mr Hicks is within the territory and jurisdiction of Australia. This communication focuses on the conduct of Australia towards Mr Hicks.

62. The communication is not directed at the conduct of the United States. Communications under the First Optional Protocol must be submitted by victims of violations ‘by that State party’, so State Parties are generally not liable for violations of ICCPR rights by other States: E.M.E.H. v France (409/1990).

63. It is incumbent on Australia to prove the existence and efficacy of any effective remedies available to Mr Hicks under Australian law: UNHRC, C.F. v Canada (118.1981).

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PART III: MERITS ARGUMENTS

A. Application of the ICCPR to Mr Hicks’ Circumstances

64. Both Australia and the United States are parties to the ICCPR.

65. For the purposes of this communication, it is assumed that the US’s relevant obligations under the ICCPR apply extraterritorially to the US Naval Base at Guantanamo Bay, Cuba, consistent with the jurisprudence of the International Court of Justice in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) p. 146 at paras. 112, and the views of the UN Human Rights Committee: see, eg, Concluding Observations of the UN Human Rights Committee: United States of America, CCPR/C/USA/CO/3 (15 September 2006), para. 10.

66. This communication also proceeds on the basis that human rights law continues to apply in situations of armed conflict to complement international humanitarian law (‘IHL’) as found by the International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Reports, p. 226 at para. 25 and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) p. 146 at paras. 105-106, and by the UN Committee against Torture in its Conclusions and Recommendations on the United States of America, CAT/C/USA/CO/2 (25 July 2006), at paras 14-15.

67. The assessment of international human rights law obligations in this communication necessarily involves an assessment of international humanitarian law obligations, to the extent that humanitarian law operates as lex specialis in relation to particular rights at issue.

68. Neither Australia nor the United States declared or notified a public emergency under article 4 of the ICCPR in connection with the 11 September 2001 terrorist attacks, armed conflicts in Afghanistan, or subsequent terrorist acts. Consequently neither State has sought to derogate from any of the ICCPR obligations at issue in this communication.

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B. By imprisoning Mr Hicks, Australia retroactively punished Mr Hicks and thus violated article 15

B.1. The Prohibition on Retroactive Criminal Punishment

70. Article 15 expressly encompasses two distinct prohibitions: a prohibition on retroactive criminal liability for conduct which was lawful at the time it was committed, and a prohibition on a post facto penalty increase for an existing offence. Article 15(1) of the ICCPR provides that:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

71. Freedom from retroactive punishment requires that penal provisions are to be restrictively interpreted (X v Belgium (1962) 5 YB 168 at 190) and not construed extensively to an accused’s detriment, for instance by analogy: EK v Turkey (2002) 35 EHRR 41 at para. 51. An offence must further be clearly defined by law, as stated in Kokkinakis v Greece (1993) 17 EHRR 397 at para. 52:

... [freedom from retroactive punishment] also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable.

72. Freedom from retroactive criminal punishment encompasses a number of different situations:

(a) No criminal liability had been previously imposed for the conduct;

(b) The substantive elements of an existing offence were retroactively modified and applied to the detriment of a hitherto innocent accused;

(c) The scope of application of an existing offence was not reasonably foreseeable and thus the offence was not capable of satisfying the principle of legality;

(c) The personal jurisdictional scope of an existing offence was retroactively extended, for example, where an offence applying only to public officials was retroactively applied to prosecute private sector employees: Dragotoniu and Militaru-Pidhorni v Romania (2007), ECHR No.s. 77193/01 and 77196/01, No. 97; see also EK v Turkey (2002) 35 EHRR 41 at para. 55 (prohibiting the detrimental application by analogy of a penalty for editors to a publisher). (Likewise, in non-criminal cases, creating new subject matter jurisdiction (such as a new cause of action) where none previously existed affects a person’s substantive rights and is retroactive under US constitutional law: Hughes Aircraft Co v United States ex rel Shumer, 520 US 939, 951 (1997));

(d) Mutatis mutandis, the jurisdictional scope (territorial/geographical) of an existing offence was extended, for example, by asserting extraterritorial jurisdiction over an offence which was previously only territorial in application.

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(e) Changes are made to the rules of procedure and evidence applicable to an alleged criminal act after the conduct was performed, where ‘such changes affect the nature of an offence’: Nicholas v Australia, Communication No. 1080/2002, para. 7.7.

(f) A statute of limitations is retroactively modified to permit the prosecution of conduct which would otherwise have been time-barred: see, eg, Stognar v California, 539 US 607 (2003).

(g) The penalty applicable to an existing offence is retroactively increased, including in relation to terrorism offences: Gómez Casafranca v Peru, Communication No. 981/2001, para. 7.4.

73. Article 15(2) provides an exception, where a conviction which results from the retrospective application of domestic law will not breach the prohibition if the accused’s conduct was a crime under international law at the time it occurred (see also K-HW v Germany (2003) 36 EHRR 59, paras 92-106; Kessler and Krenz (2001) 34 EHRR 751):

Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

74. Freedom from retrospective criminal punishment is a non-derogable right under article 4(2) of the ICCPR and thus cannot be suspended in an armed conflict.

75. Article 15 requires that ‘[n]o-one shall be held guilty’ of conduct which was not criminal at the time it was committed, and as such it is not open to a person to ‘consent’ to retrospective punishment when faced with the State’s threat of arbitrary retrospective punishment at trial. Given its status as a non-derogable right, its character as a safeguard against the arbitrary abuse of power by the State, its essential importance in maintaining fairness and the rule of law, and its ancient Roman roots as a general principle of justice, a person cannot validly waive his or her freedom from retroactive punishment, for example, by pleading guilty to a retroactive offence.

B.2. Mr Hicks’ conviction for an offence under the Military Commission Act 2006 (US)

76. Mr Hicks was convicted of the sole offence of ‘providing material support for terrorism’ under section 950v(25) of the Military Commission Act 2006 (‘MCA’) (Annexure C), and defined as follows:

(A) OFFENSE.—Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.

(B) MATERIAL SUPPORT OR RESOURCES DEFINED.—In this paragraph, the term ‘material support or resources’ has the meaning given that term in section 2339A(b) of title 18.

77. The offence actually comprises two distinct alternative offences: providing material support or resources for ‘an act of terrorism’, or ‘to an international terrorist organisation’. Mr Hicks was charged with, and convicted of, the latter form of the offence. The US did not allege that Mr Hicks provided material support for any ‘act of terrorism’ as such.

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78. The offence under section 950v(25) is expressly connected to the definition of the ‘terrorism’ offence under section 950v(24) as follows:

(24) TERRORISM.—Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

79. The elements of the offence of providing material support for terrorism in s. 950v(25) are set out in the Military Commission Manual (2007) at Part IV-18-19 (pp 261-262) (Annexure D):

The elements of this offense can be met either by meeting (i) all of the elements in A, or (ii) all of the elements in B, or (iii) all of the elements in both A and B:

A. (1) The accused provided material support or resources to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24));

(2) The accused knew or intended that the material support or resources were to be used for those purposes; and

(3) The conduct took place in the context of and was associated with an armed conflict.

or

B. (1) The accused provided material support or resources to an international terrorist organization engaged in hostilities against the United States;

(2) The accused intended to provide such material support or resources to such an international terrorist organization;

(3) The accused knew that such organization has engaged or engages in terrorism; and

(4) The conduct took place in the context of and was associated with an armed conflict.

c. Definition. “Material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

80. The elements of the offence of terrorism in s. 950v(24) are set out in the Military Commission Manual (2007) at Part IV-18 (pp 261):

b. Elements.

(1) The accused intentionally killed or inflicted great bodily harm on one or more protected persons or engaged in an act that evinced a wanton disregard for human life;

(2) The accused did so in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct; and

(3) The killing, harm or wanton disregard for human life took place in the context of and was associated with armed conflict.

c. Comment.

(1) This offense includes the concept of causing death or bodily harm, even if indirectly.

(2) The requirement that the conduct be wrongful for this crime necessitates that the conduct establishing this offense not constitute an attack against a lawful military objective undertaken by military forces of a State in the exercise of their official duties.

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81. Both offences were enacted into US law upon signature of the congressional Act by US President Bush on 17 October 2006. They constitute a statutory revision of earlier offences of terrorism and providing material support for terrorism which had been created by the US Department of Defence, Military Commission Instruction No 2: Crimes and Elements for Trials by Military Commission’, 30 April 2003.

82. The MCA conferred temporal jurisdiction upon military commissions ‘to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on or after September 11, 2001’: MCA, s. 948d(a). The MCA could therefore exercise jurisdiction over conduct which occurred prior to the enactment of the MCA, including the conduct allegedly committed by Mr Hicks between December 2000 and December 2001.

83. Two questions arise: first, whether the MCA offence was not retrospective because the conduct it criminalized was already criminal under international law at the time of Mr Hicks’ alleged conduct; and secondly, whether pre-existing US domestic law offences already made criminal conduct which was substantively the same as that embraced by the MCA offences.

B.3. The MCA offence of ‘providing material support for terrorism’ is not a war crime

84. The MCA is premised on the express assertion that the conduct for which Mr Hicks was convicted was a crime under the international law of war, and that the application of the MCA to conduct which occurred prior to its enactment would not infringe the prohibition on retrospective punishment. Section 950p of the MCA provides:

(a) PURPOSE.—The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.

(b) EFFECT.—Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.

85. It is firstly submitted that the MCA offence for which Mr Hicks was convicted is not recognised as a war crime by international humanitarian law (‘IHL’). Secondly, none of the facts alleged against Mr Hicks by the United States discloses evidence of any such recognised war crime under IHL.

86. While there are various explicit prohibitions on terrorism under IHL, and a specific war crime of terrorism is now recognised by IHL, Mr Hicks’ alleged conduct would not be captured by any of those prohibitions or the war crime of terrorism as understood in IHL. IHL contains the following prohibitions on terrorism:

(a) Article 33(1) of the 1949 Fourth Geneva Convention prohibits ‘collective penalties and likewise all measures of intimidation or of terrorism’ against protected persons (that is, chiefly civilians) in international armed conflict. The prohibition particularizes the more general prohibition in article 27 on violence and inhumane treatment against civilians and was designed to outlaw repressive violence against civilians within the power of an occupier in occupied territory, of the kind perpetrated by the Nazis in occupied Europe in the Second World War.

(b) Identical provisions in article 51(2) of 1977 Additional Protocol I (applying to international armed conflicts) and article 13(2) of 1977 Additional Protocol II (applying to non-international conflicts) prohibit ‘acts or threats of violence the primary purpose

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of which is to spread terror among the civilian population’. Both provisions are part of broader treaty prohibitions on attacking civilians. The decisive element in both prohibitions is the primary purpose to spread terror, although terror need not result.

(c) Article 4(2)(d) of 1977 Additional Protocol II prohibits ‘acts of terrorism’ in non-international armed conflicts ‘at any time and in any place whatsoever’, as well as threats to commit such acts (article 4(2)(h)). The provision is modelled on article 33 of the Fourth Geneva Convention but applies to non-international conflicts.

87. The common feature of these prohibitions is the protection of civilians or other protected persons from terrorism. The prohibitions are not designed to cover violence directed against military personnel or objects during the conduct of hostilities. The prohibition on terror is not intended to address forms of accepted violence (and the inevitable terror they cause) in war, but rather refers to acts of violence the primary purpose of which is to spread terror among the civilian population.

88. None of the prohibitions are listed as ‘grave breaches’ of the 1949 Geneva Conventions or Protocol I (while Protocol II contains no grave breach provision). However, in 2003 the International Criminal Tribunal for the former Yugoslavia held in the Galic decision that a violation of article 51(2) could amount to a criminal violation of the laws and customs of war: Prosecutor v Galic, ICTY-98-29-T (5 December 2003), paras 65-66. On the facts of the Galic case, the war crime of terror had been committed through the perpetration of a campaign of sniping and shelling at the civilian population in Sarajevo (at para. 597), the primary purpose of which was to spread terror. The intent to spread terror was evident from the widespread targeting of civilian activities, the manner of the attacks, their timing and duration, and the lack of a legitimate military purpose to them.

89. The ICTY found (at para. 133) that the elements of the war crime of terror comprised: (1) acts of violence against the civilian population or civilians not taking direct part in hostilities, causing death or serious injury to body or health; (2) wilfully making civilians the object of the violence; and (3) committing the offence ‘with the primary purpose of spreading terror among the civilian population’.

90. The distinctive feature of the crime of terror is its mens rea element: the primary purpose of spreading terror. The ICTY regards terror as a crime of ‘specific intent’, which excludes ‘dolus eventualis or recklessness from the intentional state specific to terror’ (at para. 133). The perpetrator must have been aware of the possibility or likelihood that terror would result from acts of violence, and that such terror was the result specifically intended.

91. The ICTY interpreted ‘terror’ simply as ‘extreme fear’ (at para. 137). Significantly, however, there is no wider notion of terrorizing for an ulterior political purpose, objective, or motive, such as coercing a government or political institutions to do or refrain from doing something. There is similarly no requirement that terror be motivated by any political aims; it is sufficient that terror against civilians is committed or threatened. The meaning of terrorism in IHL is thus more limited than many definitions of terrorism outside the context of armed conflict.

92. On appeal, the ICTY Appeals Chamber found that the prohibition on spreading terror amongst civilians in article 51(2) of Protocol I and article 13(2) of Protocol II were also reflected in customary international law: Prosecutor v Galic (Appeals Chamber Judgment), IT-98-29-A, 30 November 2006, paras 87-90. Customary law also imposes individual criminal liability for violations of those prohibitions in both international and non-international armed conflicts: para. 98.

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93. On the scope of the prohibitions on terror in armed conflict, see generally Hans-Peter Gasser, ‘Acts of Terror, “Terrorism” and International Humanitarian Law’ (2002) 84 IRRC 547; Ben Saul, ‘Crimes and Prohibitions of “Terror” and “Terrorism” in Armed Conflict: 1919-2005’ (2005) 4 Journal of the International Law of Peace and Armed Conflict 264.

B.3.1. The MCA offence is different from the war crime of spreading terror among civilians

94. The MCA offence of ‘terrorism’, upon which the offence of providing material support for terrorism depends, is substantially different in its elements and material scope from the accepted war crime of spreading terror amongst a civilian population, for these reasons:

(a) The MCA offence criminalizes attacks by non-State actors on State or non-State armed forces in the course of an armed conflict, whereas the war crime of spreading terror amongst civilians does not criminalize hostile attacks on military objectives within the meaning of international humanitarian law. (The MCA offence only excludes lawful attacks on military objectives by State armed forces.)

(b) The MCA offence essentially operates as a crime of ‘unlawful’ civilian participation in hostilities. Yet, the mere participation of civilians (or ‘unlawful combatants’) in hostilities, including acts or attempts of violence against the military personnel or military objectives, is not criminal under international humanitarian law: Derek Jinks, ‘The Declining Significance of POW Status’ (2004) 45 Harvard International Law Journal 367, 438; see also Timothy McCormack, ‘David Hicks and the Charade of Guantanamo Bay’ (2007) 8 Melbourne Journal of International Law 273. Any criminal liability for such acts can only exist under validly enacted, non-retroactive domestic law (including the law of the detaining State), and in conformity with international human rights law. As the US Army, Judge Advocate General’s Legal Center and School, Operational Law Handbook (2006) states, at 17: ‘Unprivileged belligerents are not entitled to prisoner of war status, and may be prosecuted under the domestic law of the captor.’

(c) The war crime of terror is directed towards protecting civilians from terror, whereas the MCA offence is cast far more broadly to protect governments from being violently ‘influence[d] or affect[ed]’ by ‘intimidation or coercion’. The definition of terrorism in the MCA offence draws inspiration from article 2(1)(b) of the 1999 Terrorist Financing Convention, which, inter alia, prohibits the financing of acts ‘intended to cause death or serious bodily injury… when the purpose… is to intimidate a population, or to compel a government’. However, that Convention only requires States to criminalize the financing of such acts, and not the acts themselves, and does not establish any international crime of terrorism upon which the MCA offence could be based. Further, that Convention explicitly excludes attacks on persons taking an active part in hostilities in armed conflict (article 2(1)(b)), unlike the MCA offence, which only excludes lawful attacks on military objectives by State armed forces. The MCA offence conflates different definitions of terrorism from within and outside armed conflict and is not grounded in any accepted international crime.

(d) An intention under the MCA offence merely to ‘influence or affect’ the conduct or civilian population ‘by intimidation or coercion’ falls short of the standard of ‘extreme fear’ directed at civilians established in Galic, and inferred from the ordinary meaning of ‘terrorism’.

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95. The war crime of spreading terror under IHL focuses on the alleged offender’s acts intended to spread terror, not on wider, inchoate support to a terrorist organisation where others may commit such acts, but where the alleged offender him or herself does not commit such acts. The war crime of spreading terror does not encompass the extended forms of criminal liability created by the MCA offence of ‘providing material support’ for a primary offence of terrorism. The elements of the war crime set out in Galic do not extend as far as the MCA offence in, for instance, criminalizing the provision of property, services or other forms of assistance, to be used by others in the commission of terrorism (as defined more broadly by the MCA).

96. The MCA offence of ‘providing material support for terrorism’ is constituted as a stand-alone offence and as such, if any element of the offence is retroactive then the offence as a whole is contrary to article 15 of the ICCPR. As set out above, the predicate ‘terrorism’ offence, which comprises part of the ‘providing material support for terrorism’ offence, is itself retroactive and therefore the latter offence as a whole is also retroactive.

97. If the compound elements of ‘providing material support for terrorism’ are disaggregated, however, it also becomes clear that the element of ‘providing material support’ was also unknown to international law at the time of Mr Hicks’ alleged conduct. International humanitarian law, and international criminal law generally, do not recognise ‘providing material support’ for war crimes (or other international crimes) as an extended mode of criminal participation attracting individual liability, whether in treaty or customary law. The concept of ‘providing material support’ for an international crime does not correspond to any mode of criminal participation recognised by international law at the time of Mr Hicks’ alleged conduct.

B.3.2 Other authorities support the view that the offences are retroactive

98. That the MCA offences of ‘terrorism’ and ‘providing material support for terrorism’ were unknown to the international law of war at the time of Mr Hicks’ alleged conduct is supported by a number of authoritative sources:

(a) In his Statement on Military Commissions to the US Senate Committee on Armed Services on 7 July 2009 (at pp 3-4), US Assistant Attorney General David Kris (US Department of Justice’s National Security Division) said as follows:

... there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

(b) The UN Special Rapporteur on Promotion and Protection of Human Rights While Countering Terrorism, Martin Scheinin, stated in his Preliminary Findings on Visit to the United States, 29 May 2007, that the MCA offences of terrorism and providing material support for terrorism ‘go beyond offences under the law of war’ and

... to the extent they were not covered by the law applicable at the time of the commission of the actual acts, the military commissions will be applying criminal law retroactively, in breach of ICCPR Article 15 and universally acknowledged general principles of law.

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B.3.3. US Military Commission Ruling on the Offence

99. Another accused at Guantanamo Bay, Salim Ahmed Hamdan, was charged with the same offence as Mr Hicks of providing material support for terrorism. In that case a military commission ruling denied a motion to dismiss that charge on the basis that constituted post facto application of the law: USA v Salim Ahmed Hamdan (D012 Ruling on Motion to Dismiss (Ex Post Facto)), 14 July 2008 (Judge Allred). Judge Allred accepted (at p. 6) the US Congress’s determination in the MCA that the offence was not new and that ‘[t]here is adequate historical basis’ for the offence.

100. The Judge did not analyse the competing arguments of the defence and the government for and against the existence of the MCA offence as an offence against the law of nations. The Judge merely asserted that a ‘preponderance of the evidence’ supports the government (p. 6), even though the evidence was ‘mixed’ (p. 5), on the basis that ‘deference’ is owed to the legislature under US constitutional law when defining law of nations offences (p. 5).

101. A careful analysis of the arguments presented by the US government in that proceeding demonstrates that the military commission decided incorrectly. Contrary to the assertions of the US government in that case:

(a) Pre-existing criminalization of violations of common article 3 under US law (at p. 3) does not encompass substantively similar conduct as the MCA offence, the compound elements of which are substantially different to that proscribed by common article 3;

(b) Pre-existing terrorism offences in federal law (at p. 3) were substantively different from the MCA offence (see analysis below at Part III(B.6) of this communication);

(c) UN Security Council resolutions (at p. 3) do not support the application of the MCA offence to conduct committed prior to the domestic enactment of the offence (see analysis below at Part III(B.5.2) of this communication);

(d) Transnational anti-terrorism treaties (at p.3) do not support the MCA offence (see analysis below at Part III(B.5.1) of this communication);

(e) A single State’s domestic law offences directed against ‘rebels’ or ‘guerillas’ in the American Civil War (and not then described as terrorism offences) in the mid-19th century, and prior to the codification of modern IHL, are not adequate evidence of ‘constant and uniform’ State practice (as required in the Lotus Case (1927) PCIJ Ser. A, No. 10) nor of widespread and representative contemporary State practice (as per North Sea Continental Shelf cases (Germany v Denmark; Germany v Netherlands) (1969) ICJ Reports 3 at para. 73). No evidence of any supporting practice of other States is reported in the published decision of the Hamdan proceeding. The most recent and authoritative statement of customary international humanitarian law provides no support for the view that IHL criminalizes support for rebels or guerrillas in non-international armed conflict (see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (ICRC, Geneva, 2004) (‘ICRC Customary Law Study’). There are no treaty provisions to that effect. In the absence of sufficient State practice (and necessarily of the requisite accompanying opinio juris), the MCA offence cannot be recognised as a war crime under customary international humanitarian law. The preponderance of jurists also support the contrary view that civilian participation in hostilities, and civilian support for such participation, is not of itself a war crime under IHL: see also above at Part III(B.3.1) of this communication.

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102. In addition, the degree of deference owed by a military commission judge to the US Congress under US constitutional law is not relevant to a determination on the international plane of whether such offence exists at customary law or is retrospective. Compliance with a domestic law obligation cannot excuse the breach of an international obligation: see Article 3 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001 (2001 ILC Yearbook Vol. II (Part Two); annexed to UN General Assembly Resolution 56/83 (12 December 2001)). The State must do so with knowledge of the circumstances of the other State’s internationally. The relevant question here is whether the MCA offence was actually an offence under international law at the relevant time, not whether the US Congress believed it to be (in good faith or otherwise).

103. It is notable that in the case of another person convicted of providing material support for terrorism under the MCA, Ali Hamza Ahmad Suliman Al Bahlul, there is a current legal challenge to the retrospective nature of the offence before the Court of Military Commission Review: see US v Al Bahlul, Appellant Brief of 1 September 2009, CMRC Case No. 09-001.

B.4. Mr Hicks’ alleged conduct does not constitute the war crime of terrorism

104. None of the facts alleged by the US against Mr Hicks suggest that his conduct involved any of the elements of the war crime of spreading terror identified by the ICTY in Galic, for these reasons:

(a) There is no allegation that Mr Hicks committed or threatened violence against any civilian population or protected person, causing death or serious injury;

(b) There is no allegation that Mr Hicks wilfully made civilians the object of such violence;

(c) There is no allegation that Mr Hicks committed or threatened such violence with the primary purpose of spreading terror amongst the civilian population;

(d) There is no allegation that Mr Hicks was recruited to participate in any particular terrorist act by Al Qaeda that was designed to spread terror among civilians in armed conflict.

(e) Most of the conduct alleged to have been committed by Mr Hicks personally in Afghanistan (in paragraphs 26-49 of the Stipulation of Fact of 29 March 2007) concerns his involvement in military activities or hostilities against armed forces (Annexure K). In particular, paragraphs 26-35 primarily concern Mr Hicks’ training for military fighting; paragraphs 37-45 concern his presence in the theatre of military hostilities; paragraphs 45-49 concern his retreat from military hostilities and consequent capture.

(f) Only paragraph 33 of the Stipulation of Fact involves civilians, and then only in the context of training in surveillance (of embassies) but not any actual planning for violence or war crimes directed against embassies. Paragraph 35 states that ‘the accused had no specific knowledge of the attacks in advance’.

(g) Further, the Stipulation of Facts indicates that Mr Hicks was primarily present in an area of hostilities between Taliban and/or Al Qaeda forces and the Northern Alliance, rather than involved in any direct hostilities against US or Coalition forces;

(h) As regards Mr Hicks’ alleged participation in military hostilities, there is no allegation that Mr Hicks discharged any weapon towards any adversary in Afghanistan.

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B.4.1. The lawfulness of Mr Hicks’ alleged conduct depends upon his legal status

105. The lawfulness of Mr Hicks’ alleged presence in areas of hostilities in Afghanistan primarily depends upon his personal status under international humanitarian law. There remains doubt about Mr Hicks’ status upon capture in Afghanistan, given the defects of the US’ Combatant Status Review Tribunal (see Part III(C.3.4.1) of this communication) and the fact that his status was never determined by an independent judicial body in a fair criminal trial.

106. Mr Hicks has always maintained, including in interviews with Australian and US authorities, that he accompanied Taliban forces, and that he was not aware of any bright lines between the fluid assortment of different groups acting under the Taliban’s authority. Mr Hicks never identified himself as a member of Al Qaeda, or believed that he was fighting for Al Qaeda, and was not aware of Al Qaeda as a distinct group. Mr Hicks believed that he was an individual acting under the immediate command of foreign Arab or Pakistani commanders of foreign militia forces of mixed nationalities, who were directly commanded by the Taliban. On these matters see Australian Federal Police Record of Interview with David Hicks, 14 May 2002, pp. 6, 38, 57-58 (associated with and took orders from the Taliban), 9, 22, 46 (was not a member of Al Qaeda and did not undertake activities for them) (Annexure CC).

107. If Mr Hicks was affiliated with the Taliban, then his status was as follows:

(a) In hostilities against the Northern Alliance (as alleged by the US), he was authorised under Afghan national law to fight alongside the national armed forces of Afghanistan, the Taliban, in a non-international armed conflict between the Afghan Government and a non-State armed group, the Northern Alliance. Afghan national law and common article 3 of the Geneva Conventions 1949 were the applicable laws governing Mr Hicks’ conduct. There are no allegations by the US that Mr Hicks violated either Afghan law or common article 3. There is no evidence that Northern Alliance forces were incorporated into the national armed forces of the United States, or otherwise ‘belonged’ to the US, so as to transform that non-international armed conflict into an international one.

(b) In any hostilities against the US or Coalition forces, pursuant to article 4(2) of the Third Geneva Convention 1949, his status would have been as a member of irregular forces belonging to the Afghan national armed forces, in an international armed conflict between Afghanistan and the United States or Australia. At all relevant times Mr Hicks wore what was known as the ‘Kashmiri uniform’, consisting of a clothing pattern of ‘woods’ camouflage and a black turban, and which identified him part of a foreign militia force commanded by the Taliban.2

108. Alternatively, if it is determined that Mr Hicks was a member of Al Qaeda forces or some other group in Afghanistan, then his status was as follows:

Such militia force was commanded by responsible commanders, uniformed, carried weapons openly, and had received military training. As such, Mr Hicks would have enjoyed combatant immunity for any lawful acts of belligerency. Again, the US’ Stipulation of Facts does not allege that Mr Hicks committed any criminal ‘grave breaches’ of any of the four Geneva Conventions of 1949 in the context of an international armed conflict.

2 Mr Hicks stated to the Australian Federal Police that he wore a military uniform in Afghanistan, but was not questioned further about it: see Australian Federal Police Record of Interview with David Hicks, 14 May 2002, p. 43 (Annexure CC).

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(a) If those Al Qaeda or other forces were still commanded by the Taliban in hostilities against the Northern Alliance, then Mr Hicks was authorised by Afghan national law to fight alongside Afghan State forces, as part of an authorised paramilitary force known as Al Qaeda, in a non-international armed conflict against a non-State group, the Northern Alliance.

(b) If those Al Qaeda or other forces were not commanded by the Taliban, then he was a member of one non-State group, Al Qaeda, fighting in a non-international armed conflict against a second non-State group, the Northern Alliance.

(c) If those Al Qaeda or other forces were participating in hostilities against US or Coalition forces, and those forces were controlled by the Taliban, then again Mr Hicks was likely a member of an irregular armed force ‘belonging’ to the Taliban (as the State of Afghanistan) in an international armed conflict, under article 4(2) of the Third Geneva Convention 1949.

(d) If those Al Qaeda or other forces were participating in hostilities against the US or Coalition but were not controlled by the Taliban (or otherwise failed to satisfy the conditions of combatancy for irregulars under article 4 of the Third Geneva Convention 1949), then Mr Hicks’ status was as a civilian participating ‘unlawfully’ in hostilities (that is, without authorisation), most likely in a non-international armed conflict between Al Qaeda (or other armed groups) and the US on Afghan territory. Mere unlawful civilian participation in hostilities is not, however, a war crime under IHL, unless such participation involves specific conduct amounting to a war crime (such as perfidy or the wilful killing of civilians). Further, as noted below (at Part III(B.6) of this communication), mere participation in hostilities was not a crime under US law at the relevant time of Mr Hick’s alleged conduct.

B.4.2. Much of Mr Hicks’ alleged conduct occurred before any armed conflict commenced

109. Mr Hicks’ conviction is based on his alleged conduct from December 2000 to December 2001 during ‘hostilities’ and ‘armed conflict’ between Al Qaeda and the United States and its Coalition partners in Afghanistan: Hicks Charge Sheet of 2 February 2007, Specification 1, paragraph 22 (Annexure I). The Stipulation of Fact of 29 March 2007 does, however, also raise allegations concerning Mr Hicks’ earlier conduct (from May 1999 onwards) outside Afghanistan (see paragraphs 5-13), as well as general allegations about the worldwide activities of Al Qaeda between 1989 and 2001 (see paragraphs 15-25) (Annexure K).

110. It is manifest that Mr Hicks could only be liable for violations of the law of war which occurred after the commencement of the armed conflict in which they purportedly occurred. The law of war does not apply absent the existence of an armed conflict, due to the threshold conditions of application under both treaty and customary law. A non-international armed conflict under common article 3 of the 1949 Geneva Conventions requires protracted armed violence of sufficient intensity between a State and organised armed groups, or between organised armed groups: Prosecutor v Tadic (Interlocutory Appeal on Jurisdiction), IT-94-1, Appeals Chamber, 2 October 1995, para. 70; Prosecutor v Limaj et al, IT-03-66-T, ICTY Trial Chamber II Judgment, 30 November 2005, para. 83.

111. In the US Supreme Court case of Hamdan v Rumsfeld, 548 U.S. (2006), Justice Stevens (joined by Justices Souter, Ginsburg and Breyer) observed that the US Government (including the Congress and President) identified the attacks of 11 September 2001 as the

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relevant date of commencement of the armed conflict between Al Qaeda and the United States: at pp 34-35. (Relevantly, the use of military force in Afghanistan was authorised by Congress on 18 September 2001: Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001)).

112. In that context, Justice Stevens noted that allegations of war crimes committed by Mr Hamdan during the five-year period from 1996 to November 2001 largely preceded (but for two months) the commencement of the armed conflict on 11 September 2001: at pp. 34-35. Given that there exists no war crimes liability for conduct outside an armed conflict, Justice Stevens concluded that ‘These facts alone cast doubt on the legality of the charge and, hence, the commission’: at p 35.

113. Mutatis mutandis, the conduct allegedly committed by Mr Hicks occurred during a 13 month period (December 2000 to December 2001), only three months and three weeks of which occurred after 11 September 2001. In fact, Mr Hicks was captured in late November 2001, further reducing the period during which he could have participated in the armed conflict to two months and three weeks.

114. Of the 50 paragraphs in the agreed Stipulation of Fact of 29 March 2007, the first 35 paragraphs pertain to conduct prior to 11 September 2001 and are irrelevant to Mr Hicks’ conduct during the armed conflict which commenced on or after that date. Moreover, the inclusion of such allegations in the Stipulation of Fact (and in the charge sheet before it) was highly prejudicial to Mr Hicks and taint such little remaining conduct of Mr Hicks which occurred after 11 September 2001. Of the remaining 15 paragraphs concerning conduct after 11 September 2001, a further five (paragraphs 46-50) relate to Mr Hicks’ decision to leave the battlefield, to cease any participation in hostilities, and to flee to Pakistan.

115. Viewed as a whole, the allegations against Mr Hicks concern conduct which occurred mostly outside the temporal scope of application of the law of armed conflict to the armed conflict in Afghanistan. In addition, a substantial number of allegations relate to alleged conduct outside the territory of Afghanistan (such as in Kosovo, India and Pakistan) and prior to the commencement of the conflict in Afghanistan, such that many of the allegations are also outside the territorial scope of application of the non-international armed conflict in Afghanistan from September 2001 onwards.

116. As such, many of the allegations were irrelevant to Mr Hicks’ liability under the law of armed conflict as it applied to the conflict in Afghanistan. Furthermore, many of those allegations were highly prejudicial to him at his trial. The inclusion of allegations about his prior activities in other countries (such as Kosovo or India) and with organisations other than Al Qaeda could not relevantly prove whether he committed the alleged conduct in Afghanistan and for Al Qaeda. Rather, such allegations were only capable of tainting the military commission’s perception of Mr Hicks, as a person with a violent history who was predisposed to terrorism.

B.5. The offence was not a crime under general international law at the time

B.5.1. Terrorism was not a discrete offence under international treaty or customary law

117. Outside the specialised branch of IHL, general international law did not recognise an international crime of terrorism as defined in the MCA at the time of Mr Hicks’ alleged conduct. Numerous efforts by the international community to define terrorism since the 1920s, including ongoing negotiations for a UN Comprehensive Terrorism Convention, have

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still not produced agreement on an international treaty crime of terrorism: see Ben Saul, Defining Terrorism in International Law (Oxford University Press, Oxford, 2006), chapters 3-4; Gilbert Guillaume, ‘Terrorism and International Law’ (2004) 53 ICLQ 537; Rosalyn Higgins, ‘The General International Law of Terrorism’, in R. Higgins and M. Flory (eds), Terrorism and International Law (Routledge, London, 1997) 13, 13-14; J-M. Sorel, ‘Some Questions About the Definition of Terrorism and the Fight against its Financing’ (2003) 14 AJIL 365, 370.

118. While there are numerous ‘sectoral’ conventions which address specific criminal methods often used by terrorists, none of those treaties establishes a general international crime of terrorism, as such. At most, specific offences in some of the treaties may have entered into customary law, such as aircraft hijacking (US v Yunis, 924 F.2d 1086 (DC Cir 1991), 1092; (1991) 30 ILM 403; Burnett et al v Al Baraka Investment and Development Corporation et al, Civil Action No 02-1616 (JR), US District Crt, Distr Columbia, 25 Jul 2003, 274 F Supp 2d 86).

119. There is insufficient evidence to establish that terrorism, as such, is a customary international crime: see, eg, US v Yousef et al, 327 F.3d 56 (US Crt App, 2nd Cir), 4 April 2003 at 34, 44, 46, 53-60; affirming Tel-Oren v Libyan Arab Republic 726 F.2d 774 (DC Cir 1984) at 795 (Edwards J) and 806-07 (Bork J) (USA); see also Bulletin des arrest de la Cour de Cassation, Chambre criminelle, mar 2001, no 64, 218-219 (Ghaddafi case) (France); Madan Singh v State of Bihar [2004] INSC 225 (2 April 2004) (Indian Supreme Court); Ben Saul, Defining Terrorism in International Law (Oxford University Press, Oxford, 2006), chapter 4.

120. Even if a general international crime of terrorism existed at the relevant time of Mr Hicks’ alleged conduct, its definition and elements would be substantially different from the MCA offence. The clearest expression of any nascent agreement on a core international definition of terrorism is that provided by the UN Security Council in its ‘guideline’ Resolution 1566 (2004). The MCA offence does not contain the cumulative elements present in that Resolution and is therefore considerably wider in scope than the international consensus. As the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, states, in his Report of 28 December 2005, E/CN.4/2006/98, para. 42:

It is essential to ensure that the term “terrorism” is confined in its use to conduct that is of a genuinely terrorist nature. The three-step characterization of conduct to be prevented – and if not prevented, punished – in the fight against terrorism in Security Council resolution 1566 (2004) takes advantage of the currently agreed upon offences concerning aspects of terrorism by using these as trigger-offences and goes on to establish an appropriate threshold by requiring that such offences are also: committed with the intention of causing death or serious bodily injury, or the taking of hostages; and for the purpose of provoking a state of terror, intimidating a population, or compelling a Government or international organization to do or abstain from doing any act.

121. Further, even if a general international crime of terrorism existed at the relevant time of Mr Hicks’ alleged conduct, international criminal law or anti-terrorism law does not recognise the extended mode of criminal participation of ‘providing material support’ for any such crime: see above at Part III(B.3.1-B.3.2) of this communication.

B.5.2. The MCA offence was not authorised by the UN Security Council

122. UN Security Council Resolution 1373 (28 September 2001) did not authorise the US to legislate to retroactively criminalize Mr Hicks’ conduct. UN Security Council Resolution 1373, in paragraph 2(e), required all States to, inter alia:

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Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;

123. The article 15(2) exception to retroactive punishment in domestic law only applies to conduct which was ‘criminal according to the general principles of law recognized by the community of nations’. But a single Security Council Resolution cannot have the effect of immediately establishing any general international law crimes of terrorism or ‘supporting terrorism’ from 28 September 2001 onwards. The requisite State practice and opinio juris is simply absent.

124. Rather, the Resolution provides international legal authorisation for States to enact such offences in domestic law, potentially with extraterritorial reach, and which would have prospective effect in the ordinary manner from the date of domestic enactment. Nothing in Resolution 1373 authorises States to enact retrospective offences in domestic law.

125. Any authorisation by the Security Council for States to enact retrospective offences would have to be explicit, since it would entail the infringement of a fundamental, non-derogable right under article 15 of the ICCPR. The Security Council cannot be presumed to override fundamental rights by mere implication, particularly when such rights are classified as non-derogable even in times of public emergency under article 4 of the ICCPR. Ordinarily, ‘international law itself... may not make certain criminal offences punishable with retroactive force’: Manfred Nowak, UN Covenant on Civil and Political Rights (2nd ed, NP Engel, Kehl, 2005), p. 368.

126. The MCA offence of providing material support for terrorism was enacted in US law on 17 October 2006, upon US President Bush’s signature of the congressional statute. Security Council Resolution 1373 would only, therefore authorise this particular US offence of providing material support for terrorism to apply to Mr Hicks’ conduct outside the US from 17 October 2006. (Equally, an earlier formulation of the terrorism offence in the US President’s Military Commission Instruction No 2: Crimes and Elements for Trials by Military Commission of 30 April 2003, would only be validly authorised by the Security Council in relation to conduct after 30 April 2003.) All of the relevant conduct alleged to have been committed by Mr Hicks occurred before December 2001.

B.6. The offence was not a crime under US domestic law at the relevant time

127. The offence of ‘providing material support for terrorism’ was created by a US statute, section 950v(25) of the MCA. Such offence, which became law in the US after signature by US President Bush on 17 October 2006, did not exist in US law at the time at which Mr Hicks allegedly committed the relevant conduct (December 2000 to December 2001, as specified in paragraph 22 of the Charge to which Mr Hicks pleaded guilty).

128. At the time of Mr Hicks’ alleged conduct, existing US war crimes legislation (18 USC 118, s. 2441(c)(1)) did not recognise spreading terror amongst civilians or violations of article 51(2) of Protocol I or article 13(2) of Protocol II as a crime: Prosecutor v Galic (Appeals Chamber Judgment), IT-98-29-A, 30 November 2006, Separate and Partially Dissenting Opinion of Judge Schomburg, para. 11.

129. At the relevant time of the alleged conduct, US law contained two offences which bore some similarities to the offence charged against Mr Hicks: ‘providing material support to terrorists’ (18 USC 2339A, originally enacted on 13 September 1994) and ‘providing material support to a designated terrorist organisation’ (18 USC 2339B, enacted by the Antiterrorism and

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Effective Death Penalty Act 1996). The MCA offence is, however, substantively different from the pre-existing US Code offences for the following reasons:

(a) The offences under s. 2339A (until 26 October 2001) and s. 2339B (until 2004) were jurisdictionally limited to conduct within the United States, whereas all of Mr Hicks’ alleged conduct took place outside the US. The geographical/territorial scope of liability was thus different at the time Mr Hicks’ alleged conduct.

(b) While extraterritorial jurisdiction was asserted over the s. 2339A offence on 26 October 2001 (through amendment by the Uniting and Strengthening America by Providing Appropriate Tools Requires to Intercept and Obstruct Terrorism (USA PATRIOT Act), Public Law 107-56, 26 October 2001, section 805), the amended offence remained limited in application to US citizens and permanent residents. At no time was Mr Hicks a US citizen or permanent resident. The personal scope of liability was thus different at the time of Mr Hicks’ alleged conduct.

(c) While extraterritorial jurisdiction was asserted over the s. 2339B offence in relation to certain categories of person from 2004 onwards (through section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004), such extension remained limited to conduct which had occurred within the US. All of Mr Hicks’ alleged conduct took place outside the US and at no time did Mr Hicks fall within a designated category of person to which the amended offence applied. The personal and territorial scope of liability thus remained different.

(d) A required element of the substantive offence under s. 2339A is that the support provided must be in the form of preparation for, or carrying out of, prohibited conduct under other specifically enumerated US criminal statutes.3

(e) The offence under s. 2339B of the USC required a terrorist organisation to be designated as such by the US Secretary of State, whereas no such designation is required by the MCA offence. An indispensible element of the pre-existing offence is thus absent from the MCA offence and their material scope differs.

In contrast, the MCA offence removes the linkage to existing, defined offences in US law and substitutes a reference to the broader, generic offence of ‘terrorism’ as defined in s. 950v(b)(24) of the MCA. The MCA offence is thus substantively different from the pre-existing offence in 18 USC s. 2339A, since the MCA offence does not additional require proof of the criminal elements of a connected USC offence.

(f) The maximum penalty for each offence under ss. 2339A and 2339B of the USC was 10 years imprisonment (until 26 October 2001), then 15 years imprisonment (following the PATRIOT Act amendment), or life imprisonment if death resulted. In contrast, the MCA offence uniformly attracts a maximum penalty of life imprisonment, including in relation to conduct committed prior to 26 October 2001 and even where the suspect is not alleged to have caused anyone’s death.

(g) The pre-existing US offences could only be prosecuted in US civilian courts. The trial of Mr Hicks for such conduct before a US military commission fundamentally, retrospectively, and detrimentally alters the manner by which such offences were authorised to be tried under pre-existing US legislation.

3 The enumerated offences are: 18 U.S.C. §§ 32, 37, 81, 175, 229, 351, 831, 842(m) or (n), 844(f) or (i), 930(c), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 1992, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, or 2340A; 42 USC §2284; or 49 U.S.C. § 46502 or 60123(b).

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130. Crucially, the conduct proscribed by the s. 2339A offence includes providing support only for specified acts of terrorism (which are enumerated by reference to other US statutory provisions), but does not also encompass providing support for terrorist organisations. While the MCA offence covers support for both terrorist acts and organisations, Mr Hicks was charged and convicted only of supporting a terrorist organisation, not terrorist acts. The s. 2339A offence accordingly had no relevant application to Mr Hicks’ case.

131. If it were correct that Mr Hicks’ conduct was already criminal under US law at the time of its commission, then it would not have been necessary for the US to try him under the MCA offence. US civilian courts would have had jurisdiction to prosecute him under the existing US Code. The MCA’s premise that it embodies existing, non-retrospective law of war offences (s 950p, MCA) is an implicit admission by the US that ordinary US domestic criminal law did not already cover such conduct abroad and that accordingly it was necessary to seek to characterise such conduct as a war crime attracting universal jurisdiction.

132. It is also likely that the MCA offences of terrorism and providing material support for terrorism violate the freedom from retroactive criminal punishment under the US Constitution: see Advice in the Matter of the Legality of the Charge against David Hicks, by Peter Vickery QC, Professor Tim McCormack, Hon Alastair Nicholson, Professor Hilary Charlesworth, Gavan Griffith AO QC, Professor Andrew Byrnes, Gideon Boas, Professor Stuart Kaye and Professor Donald Rothwell, 8 March 2007 (Annexure Z); see also Peter Vickery QC, ‘David Hicks and Retrospective Criminal Laws’, February 2007; former Chief Justice of the Australian High Court, Sir Anthony Mason, and leading constitutional lawyer Professor Geoffrey Lindell in (2008) 9 Melbourne Journal of International Law 155.

133. While some of the other numerous MCA offences may constitute war crimes under IHL, the offences of terrorism and providing material support for terrorism were not known to IHL, general international law, or US domestic law at the time of Mr Hicks’ alleged conduct. By holding Mr Hicks criminally liable for conduct which was not criminal under international law or US law at the time of its commission, the US inflicted retrospective criminal punishment on Mr Hicks, contrary to the obligation owed by the United States under article 15(1) of the ICCPR. Mr Hicks could not have reasonably foreseen at the time that his conduct in Afghanistan would be criminal under international or US law.

B.7. The offence does not satisfy the principle of legality and is additionally retrospective

134. The prohibition on retrospective punishment also requires that an offence be sufficiently certain to enable a person to prospectively know the scope of their legal liabilities. As stated by the European Court of Human Rights in Kokkinakis v Greece (1993) 17 EHRR 397 at para. 52, the prohibition:

... also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable.

135. Similarly, the Inter-American Court of Human Rights found in Castillo Petruzzi et al v Peru [1999] IACHR 6 (30 May 1999), para. 121, that

… crimes must be classified and described in precise and unambiguous language thus giving full meaning to the principle of nullum crimen nulla poena sine lege praevia in criminal law. This means a

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clear definition of the criminalized conduct, establishing its elements and the factors. Ambiguity in describing crimes creates doubts and the opportunity for abuse of power, particularly when it comes to ascertaining the criminal responsibility of individuals.

136. The principle of legality and its requirements of clarity and precision in offences are non-derogable even in times of public emergency: UN Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 7.

137. The UN Human Rights Committee has previously criticised the vagueness of some national terrorism laws: see Concluding Observations of the UN Human Rights Committee: United States of America, CCPR/C/USA/CO/3 (15 September 2006), para. 11 (‘The Committee expresses its concern about the potentially overbroad reach of the definitions of terrorism under domestic law...’); Algeria, CCPR/C/79/Add.95, 18 August 1998, paragraph 11; Egypt, CCPR/C/79/Add.23, 9 August 1993, paragraph 8; Democratic Peoples’ Republic of Korea, CCPR/CO/72/PRK, 27 August 2001, paragraph 14; Portugal (Macao), CCPR/C/79/Add.115, 4 November 1999, paragraph 12; Peru, CCPR /C/79/Add.67, 25 July 1996, paragraph 12.

138. As the UN High Commissioner for Human Rights observed in her Report on the protection of human rights and fundamental freedoms while countering terrorism (A/HRC/8/13), paras 20-23:

... many States have adopted national legislation with vague, unclear or overbroad definitions of terrorism. These ambiguous definitions have led to inappropriate restrictions on the legitimate exercise of fundamental liberties, such as association, expression and peaceful political and social opposition... Some States have included non-violent activities in their national definitions of terrorism. This has increased the risk and the practice that individuals are prosecuted for legitimate, non-violent exercise of rights enshrined in international law, or that criminal conduct that does not constitute ‘terrorism’ may be criminalized as such... There are several examples of hastily adopted counter-terrorism laws which introduced definitions that lacked in precision and appeared to contravene the principle of legality...

Particular care must be taken ... in defining offences relating to the support that can be offered to terrorist organizations or offences purporting to prevent the financing of terrorist activities in order to ensure that various non violent conducts are not inadvertently criminalized by vague formulations of the offences in question....

139. In this context, the scope of the MCA offence of providing material support for terrorism is too vague and uncertain to satisfy the principle of legality. In particular, the requirement that the accused’s conduct intends to ‘influence or affect the conduct of government or civilian population by intimidation or coercion’ is indeterminate and over-broad and captures conduct which may not be unlawful under international law (such as, for example, attacks by non-State forces on military objectives in the course of an armed conflict, or even mere participation in hostilities of the kind alleged against Mr Hicks).

140. In the application of the MCA offence to Mr Hicks, the allegations do not identify which instances of ‘material support or resources’ under the definition are said to have been committed by Mr Hicks. The charge sheet asserts (Annexure I at para. 24) in an abstract manner that the material support or resources provided by the accused ‘included, but were not limited to, the following’, that is, those facts specified in sub-paragraphs (a)-(x). But those facts do particularise which definitional limbs of ‘providing material support or resources’ that those alleged facts purportedly evidence. Such failure made it difficult for Mr Hicks to answer the charge against him. For example, many of the allegations against Mr Hicks concern his receiving training from Al Qaeda: see, eg, para. 24(a)-(i). Yet, receiving training does not fall within the (exhaustive) definition of providing ‘material support or resources’ (including training) used by the MCA. The ambiguity of the offence manifests itself in doubt about the relevance of some of the allegations purportedly sustaining the charge.

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B.8. Australia’s Participation in Mr Hicks’ Retrospective Punishment

141. Australia entered into a prisoner transfer arrangement (Annexure Q) with the United States which recognised Mr Hicks’ conviction and by which Australia agreed to imprison him in Australia to serve out the remainder of his sentence. By virtue of that arrangement Australia itself participated directly in the retrospective punishment and imprisonment of Mr Hicks.

142. The International Transfer of Prisoners Act 1997 (Cth) (Annexure N) is Australian legislation which enables Australians imprisoned in a ‘transfer country’ to be transferred to Australia to serve their sentences of imprisonment in Australia, in circumstances where Australia has entered into a prisoner transfer agreement with that country. Under section 8 the Act, transfer countries are declared by regulations, which are made under section 58 the Act. The United States was declared as a transfer country by Regulations 4 and 5 and Schedule 2 of the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002 No. 296 (Annexure P)

143. The International Transfer of Prisoners Act 1997 (Cth) was amended on 23 March 2004 by the International Transfer of Prisoners Amendment Act 2004 (Cth) (Annexure O) to enable the transfer to Australia of prisoners convicted in US Military Commissions at Guantanamo Bay, Cuba. The amending legislation inserted a new section 4A into the International Transfer of Prisoners Act 1997 (Cth), which provides as follows:

... a military commission of the United States of America is taken to be a court or tribunal of the United States of America; and

any punishment or measure involving deprivation of liberty ordered by a military commission of the United States of America is taken to have been ordered by a court or tribunal of the United States of America in the exercise of its criminal jurisdiction; and

any direction or order given or made by a military commission of the United States of America with respect to the commencement of such punishment or measure is taken to have been given or made by a court or tribunal of the United States of America.

144. The amending legislation also amended section 8(5)(b) of the primary Act to ensure that a ‘foreign country’ under the Act is taken to include, inter alia, a region over which the foreign country ‘exercises jurisdiction or control’, even where sovereign legal title to such territory is not held by the foreign country.

145. Transfers from Guantanamo Bay are specifically facilitated by the International Transfer of Prisoners (Military Commissions of the United States of America) Regulations 2007 (Select Legislative Instrument 2007 No. 79) (29 March 2007) (Annexure Q). Relevantly, Regulation 1(4) applies the International Transfer of Prisoners Act 1997 to the transfer to Australia of a prisoner:

(a) serving a sentence of imprisonment ordered by a military commission established under chapter 47A of title 10 of the United States Code; and

(b) subject to the arrangement set out in Schedule 1.

146. Schedule 1 of the Regulations is a copy of an Arrangement between the Government of Australia and the Government of the United States of America on the Transfer of Prisoners Sentenced by United States Military Commissions Established Pursuant to the Military Commissions Act of 2006 and the United States Code and on Cooperation in the Enforcement of Sentences Imposed by those Military Commissions. The Arrangement in Schedule 1 provides in paragraph 2(2):

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A person sentenced by a United States military commission in the applicable United States area [defined as the US Naval Base at Guantanamo Bay, Cuba, under Schedule 1, para. 1(a)] may be transferred to Australia in accordance with the provisions of this arrangement, in order to serve the sentence imposed on him or her.

147. Upon the transfer of a prisoner, the United States agrees to suspend its enforcement of the sentence (Schedule 1, para. 8(1)) and Australia agrees to continue the enforcement of the sentence (Schedule 1, para. 9(1)). Such enforcement is based on Australia agreeing ‘to respect and maintain the legal nature and duration of the sentence as determined by the United States’: Schedule 1, para. 10(1). Australia assumes full responsibility for the enforcement of the sentence under Schedule 1, para. 9(2):

The enforcement of the sentence in Australia is to be governed by the law of Australia and Australia alone is to be competent to take all appropriate decisions.

148. The prohibition on retroactive criminal punishment in article 15(1) of the ICCPR relevantly provides that ‘[n]o one shall be held guilty’ of a retrospective criminal offence. Under article 31 of the Vienna Convention on the Law of Treaties 1969, article 15 must be interpreted according to its ‘ordinary meaning’ in its ‘context’ and light of the ‘object and purpose’ of the ICCPR.

149. The ordinary meaning of ‘held guilty’ encompasses not only the moment of judgment and conviction before a criminal court, but also the enforcement of any sentence of punishment which follows from that conviction. Such interpretation is logically supported by the safeguards elsewhere in article 15(1) concerning the application of ‘penalties’ and in article 15(2) concerning ‘trial and punishment’ (emphasis added), which indicate that the scope of the protection extends to whatever punishment follows from a conviction.

150. Further, the protection of article 15 must extend to wherever enforcement of a sentence takes place, including where a sentence is enforced by another State in its own territory. Otherwise one State would be free to enforce retroactive penalties imposed by another State’s courts without itself violating article 15. This would create an incentive to ‘contract out’ the enforcement of sentences to other States, whose imprisonment of an offender could not be challenged in the second State for retroactivity.

151. It is clear that Australia’s explicit legislative recognition and assumption of full responsibility for the enforcement of Mr Hicks’ MCA conviction makes Australia directly responsible for his retroactive punishment, contrary to Australia’s obligations under article 15 of the ICCPR.

B.9. Humanitarian Considerations

152. It is acknowledged that there are compassionate and humanitarian considerations which may appear to weigh in favour of Australia’s conduct in seeking the prisoner transfer of Mr Hicks to Australia, notwithstanding that it involved the enforcement of retroactive punishment and consequent unlawful detention. Those humanitarian considerations are considered in detail at Part III(C.4) below, after this communication establishes below that Mr Hicks’ detention in Australia was unlawful as a result of its retrospective basis and the procedurally unfair trial from which it stemmed.

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B.10. Remedies Sought

153. Australia should be urged to:

(a) Publicly acknowledge its participation in Mr Hicks’ retrospective punishment;

(b) Apologise to Mr Hicks for his retroactive punishment;

(c) Provide full and prompt compensation to Mr Hicks for his retroactive punishment;

(d) Eliminate any further consequences in Australian law which may follow from Mr Hicks’ retroactive punishment. In particular, Australia should provide an assurance to Mr Hicks that it will not seek a literary proceeds order, under the Proceeds of Crime Act 2002 (Cth), to confiscate any profits which Mr Hicks may seek to accrue from publicising his own account of his retrospective conviction and related matters.

(e) Australia should request the US authorities to formally overturn Mr Hicks’ conviction under US law and to nullify the Plea Agreement by which his conviction was secured.

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C. Australia violated article 9 by unlawfully and arbitrarily detaining Mr Hicks in an Australian prison

C.1. Mr Hicks’ imprisonment was based on a retrospective offence

154. If Hicks’ imprisonment constitutes retrospective punishment, then his detention by Australia in an Australian prison amounted to unlawful, arbitrary detention, contrary to Australia’s obligation under article 9 of the ICCPR. The absence of a lawful, non-retrospective conviction in conformity with international human rights law necessarily renders his imprisonment arbitrary and unlawful.

155. The lawfulness of detention is assessed not only according to domestic law but also according to international law. The European Court of Human Rights has held that imprisonment is unlawful (under the equivalent provision of the European Convention on Human Rights, article 5(1)) if it is based on a conviction for conduct which was not criminal at the time it was committed: Loukanov v Bulgaria (1997) 24 EHRR 121 at paras 43 and 45. Freedom from unlawful or arbitrary detention would be deprived of much content if imprisonment based on a retrospective offence were to be regarded as lawful.

156. In addition, the ‘arbitrariness’ of detention is determined not only by whether it is against the law, but more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law: A v Australia, Communication No. 560/1993, 3 April 1997, CCPR/C/59/D/560/1993, para. 9.2; Communication No. 1134/2002: Cameroon, 10 May 2005, CCPR/C/83/D/1134/2002, para. 5.1; Van Alphen v The Netherlands, Communication No. 305/1988, 23 July 1990, para. 5.8; Mukong v Cameroon, Communication No. 458/1991, 21 July 1994, para. 9.8. Detention flowing from a retrospective offence is a paradigmatic example of arbitrariness, since it is premised on capricious, post facto governmental action.

C.2. Mr Hicks’ imprisonment also flowed from a procedurally unfair trial

157. Mr Hicks’ trial before a US Military Commission did not meet the minimum requirements of a fair trial under article 14 of the ICCPR (and under common article 3 of the 1949 Geneva Conventions), due to a range of procedural and institutional defects which have now been recognised by the US Government itself. The denial of a fair trial may also amount to a war crime under international humanitarian law: Fourth Geneva Convention1949, article 147.

158. The UN Working Group on Arbitrary Detention (UNWGAD) recognises detention as arbitrary when it results from the whole or partial non-observance of the right to a fair trial under article 14 of the ICCPR, of such gravity as to give the deprivation of liberty an arbitrary character: UNWGAD, Criteria, Category III; UNWGAD Resolution 1997/50. Numerous Opinions in individual cases have been issued on that basis: UN Human Rights Council, Report of UNWGAD, 16 February 2009, A/HRC/10/21, table 1; see, for example, UN Docs. E/CN.4/2000/4/Add.1 (1999); E/CN.4/1999/63/Add.1 (1998); E/CN.4/1998/44/Add.1 (1997).

159. Relevantly to Mr Hicks, such cases have included the following circumstances: Dec. No. 51/1993 (Yemen) E.CN.4/1995/31/Add.1 (where a tribunal lacked impartiality and objectivity); Dec. No. 47/1994 (Cuba) E/CN.4/1996/40/Add.1 (involving summary procedure

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before a specially constituted, post facto military tribunal); Dec. No. 47/1994 (Republic of Korea) E/CN.4/1996/40/Add.1 (involving forced confessions); Dec. 13/1995 (Peru) E/CN.4/1996/40/Add.1 (involving forced confession and an inability to cross-examine a key witness); Dec. 14/1995 and Eec. 17/1995 (Peru) E/CN.4/1996/40/Add.1 (involving torture, no choice of counsel, inequality in preparing evidence, and denial of private communication with counsel); Opinion No. 38/2006 (Algeria) A/HRC/7/4/Add.1 (serious lack of equality of arms); Opinion No. 8/2007 (Syria) A/HRC/7/4/Add.1 and Opinion 10/2007 (Lebanon) A/HRC/7/4/Add.1 (inter alia, no right of appeal in terrorism cases).

160. Imprisonment following conviction resulting from a procedurally unfair trial may still be arbitrary and unlawful where the courts of one State convict the offender and then a second State assumes responsibility for carrying out the sentence and punishment.

161. Not every procedural defect in a foreign trial will render the subsequent conviction arbitrary and unlawful, but at a minimum a State must not cooperate in the enforcement of a foreign judgment which ‘is the result of a flagrant denial of justice’: Drozd and Janousek v France and Spain (1992) 14 EHRR 745, para. 110. In that case, the European Court of Human Rights stated as follows:

As the [European] Convention does not require the Contracting Parties to impose its standards on third States or territories, France was not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the requirements of Article 6 of the Convention [on a fair criminal trial]. To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would also thwart the current trend towards strengthening international cooperation in the administration of justice, a trend which is in principle in the interests of the person concerned. The Contracting States are, however, obliged to refuse their cooperation if it emerges that the conviction is the result of a flagrant denial of justice. [Emphasis added]

162. That reasoning was adopted notwithstanding the objection by France that if it were required to assess the fairness of a foreign trial before enforcing in France the sentence of a person convicted in the foreign country, ‘the result would be to make the transfer of prisoners extremely difficult, or even impossible’: Drozd and Janousek v France and Spain, para. 109.

163. In addition, procedural irregularity in a trial will not taint a subsequent conviction provided that it can be remedied, for example by a right of appeal: UN Working Group on Arbitrary Detention Opinion No. 33/2006 (Iraq and USA) in A/HRC/7/4/Add.1.

164. Mr Hicks’ imprisonment in Australia flowed directly from his unfair, unlawful trial in a US military commission. Australia’s imprisonment of a person who was subjected to a manifest and flagrant denial of justice in a foreign tribunal further renders his detention in Australia arbitrary and unlawful under article 9 of the ICCPR. Mr Hicks further did not enjoy adequate appeal rights to enable the procedural defects of his trial to be appropriately remedied (see further below at Part III(C.2.10) of this communication).

165. The unfairness of Mr Hicks’ US trial was manifest and flagrant for the reasons set out below. In sum, the military commission was not a ‘competent, independent and impartial tribunal established by law’ as required by article 14(1) of the ICCPR, nor was it a ‘regularly constituted court’ as required by common article 3 of the 1949 Geneva Conventions.

166. Further, the military commission was not capable of providing Mr Hicks with ‘a fair and public hearing’ as required by article 14. For the same reasons, nor could it provide Mr Hicks with ‘all the judicial guarantees which are recognized as indispensable by civilized peoples’ as required by common article 3 of the 1949 Geneva Conventions (as understood in accordance with the fundamental customary law standards which are reflected in article 75 of

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1977 Additional Protocol I and applicable equally to non-international conflicts: Hamdan v Rumsfeld 548 U.S. (2006) at pp 70-71).

167. It is noted here that, if (as discussed earlier in Part III(B.4.1) Mr Hicks was a member of irregular forces ‘belonging’ to the Taliban (that is, the State armed forces of Afghanistan), and therefore entitled to POW status and combatant immunity for lawful acts of belligerency in an international armed conflict between Afghanistan and the United States, then Mr Hicks was entitled to the fair trial guarantees accorded to POWs under the Third Geneva Convention 1949. For the purposes of this communication, however, Mr Hicks was at the very least entitled to the minimum guarantees of common article 3 of the Geneva Conventions 1949, which for present purposes largely correspond with those in both article 75 of Additional Protocol I of 1977 and article 14 of the ICCPR.

168. The next section sets out each individual elements of the unfairness in Mr Hicks’ trial. It is noted, however, that the right to a fair trial is broader than the sum of the individual guarantees within article 14, and depends on the entire conduct of the trial: Yves Morael v France, Communication No. 207/1986, para. 9.3; UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, Report to the General Assembly, 6 August 2008, A/63/223, para. 36. Viewed in its individual elements and in its entirety, Mr Hicks’ trial was manifestly unfair for the reasons set out below.

C.2.1. Mr Hicks was not tried before a competent, independent, impartial tribunal

169. The minimum procedural standards in article 14 apply to military tribunals, as the UN Human Rights Committee stated in General Comment No. 13, para. 4:

The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialised. The Committee notes the existence, in many countries, of military or special courts by which to try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14....

170. The requirements of independence and impartiality are not met if ‘the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former’: Bahamonde v Equatorial Guinea Communication No. 468/1991), para. 9.4; see also UNHRC, Concluding Observations: Romania (1999) CCPR/79/Add. 111, para. 10.

171. Some factors relevant to an assessment of ‘independence’ include how judges are appointed, their tenure, whether they are safeguarded from external pressure, and whether there is an appearance of independence: Findlay v United Kingdom (1997) 24 EHRR 221; see also Incal v Turkey, ECHR, 9 June 1998, para. 65. Factors relevant to an assessment of ‘impartiality’ include whether judges are free from prejudice or bias, including the appearance of bias. As the European Court of Human Rights stated in Ocalan v Turkey 46221/99 [2003] ECHR 125 (12 March 2003), para. 114:

What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. In deciding whether there is a legitimate reason to fear that a particular court lacks independence and impartiality, the standpoint of the

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accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified.

172. In that case, the mere presence of a military judge (on a panel with two civilian judges) on the Turkish State Security Court ‘can only have served to raise doubts in the accused person’s mind as to the independence and impartiality of the court’, in circumstances where the accused had allegedly fought against the armed forces in a protracted armed conflict.

173. In general, military tribunals must still meet the minimum requirements of independence, impartiality and competence: in addition to the above cases, see UN Human Rights Committee, General Comment No. 32, Article 14: Right to Equality before Courts and Tribunals and to Fair Trial, 24 July 2007, para. 22; Grieves v United Kingdom, ECtHR Reports 2003-XII, paras. 70-91; Civil Liberties Organisation and Others v Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 218/98, 7 May 2001, paras. 27 and 44; Salinas v Peru, Inter-American Commission on Human Rights, Case No. 11.084, Report No. 27/94, 30 November 1994, section V(3). Military prosecutions of civilians are of particular concern where ‘the military exercise the functions of investigation, arrest, detention and interrogation’: UNHCR, UN Doc. CCPR/C/79/Add.76 (1997), para. 19.

174. Mr Hicks did not receive ‘a fair and public hearing by a competent, independent and impartial tribunal established by law’ as required by article 14(1) of the ICCPR. The military commission was not a competent, independent and impartial tribunal for the following reasons:

(a) While military commissions were formally enabled by an Act of Congress, the Act delegates authority to the US President to establish the military commissions (MCA, s. 948b(b)) and to the US Secretary of Defence to convene them (MCA, s. 948h) (Annexure C). The US President is commander-in-chief of the US armed forces and the US Secretary of Defense is head of the US Department of Defense, which is responsible for the US armed forces. Mr Hicks was therefore subject to a tribunal which was in essence an organ of the US military against which he was allegedly engaged in hostilities in an armed conflict;

(b) The jurisdiction of the military commission to prosecute Mr Hicks flowed from a ‘dispositive’ determination of a Combatant Status Review Tribunal (Annexure H) (also under the authority of the US President and Secretary of Defense) that he was an ‘unlawful enemy combatant’: MCA, s. 948d(c). Mr Hicks’ exposure to trial before a military commission accordingly flowed from an earlier executive determination by US military forces against which he was allegedly at war and not from any independent inquiry into his status. The US Secretary of Defense was also the authority detaining Mr Hicks;

(c) The US Secretary of Defense prescribed the regulations by which military judges were appointed to the military commission (MCA, s. 948j(a)), and assigns judges to the Court of Military Commission Review (MCA, s. 950f(b)). Those judges were commissioned officers of the armed forces (s 948j(b)) under the command of, and responsible to, the US President and/or the US Secretary of Defense;

(d) Members of the military commission were US military officers on ‘active duty’ and empowered to act as a jury on questions of fact and to determine the sentence: MCA, ss. 948i (b) and 949m(a)-(b)). Those officers were under the command of, and responsible to, the US President and/or the US Secretary of Defense, thus undermining the appearance of impartiality: UN Special Rapporteur on Promotion and Protection of

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Human Rights While Countering Terrorism, Martin Scheinin, Preliminary Findings on Visit to the United States, 29 May 2007;

(e) The US Secretary of Defense appointed the Convening Authority as his delegate, who in turn appointed the members of the military commissions (MCA, ss. 948h and 948i(b)). Those members were not appointed with the degree of independence typifying a regular court or court martial (such as by ballot/lottery, rotation, roster or internal appointment system), thus undermining the appearance of impartiality: UN Special Rapporteur Scheinin, above. Members of a commission could also fall within the same chain of command, or be of different ranks, so that more junior officers might be influenced by their seniors. The US Secretary of Defense was also empowered to ‘excuse’ a member from sitting (even after a commission has been assembled) ‘for good cause’ (MCA, ss. 948i(c) and 948m(b)) and to appoint new members to make up the required numbers (MCA, s. 948m(c));

(f) The US Secretary of Defense prescribed the regulations (Annexure E) for the appointment of prosecution and defence counsel: MCA, ss. 948k(a) and 948k(a)(4). The prosecution (which charged Mr Hicks) and defense counsel (who defended Mr Hicks) were military employees of the US Department of Defense;

(g) The US Secretary of Defense determined or could influence a number of vital procedural matters, including the availability of evidence to the defence (MCA, s. 949j(a)), the protection of classified information (s 949d.(f)(4)), access of the defence to the unredacted trial record (s 949o(c)), and the elements and modes of proof as ‘practicable or consistent with military or intelligence activities’ (s 949a).

(h) The MCA vested exclusive authority in the US President to interpret the 1949 Geneva Conventions and those interpretations were binding and authoritative in domestic law (MCA, s. 6(3)), while foreign and international law sources were excluded (MCA, s. 6(a)(2)). The independence of the military commissions to interpret the law was thus fettered by executive determinations and interference;

(i) The US Secretary of Defense prescribed the maximum penalties (MCA, s. 949t) and enjoyed a discretion to mitigate the findings and sentence of a commission in a particular case (MCA, s. 950b).

C.2.1.2. Direct Political Interference in the Conduct of Mr Hicks’ Trial

175. According to the then Chief Prosecutor of the Military Commission, Colonel Morris Davis, there was direct political interference in the decision to prosecute Mr Hicks, through the intervention of Department of Defense General Counsel, Jim Haynes. That interference is set out in a Defense Motion to Dismiss the Charges for Unlawful Influence of 27 March 2008 in the later case of United States v Salim Ahmed Hamdan, as follows:

[5] vi. On January 9, 2007, Mr. Haynes called Colonel Davis and asked him how quickly he could charge David Hicks. Colonel Davis replied that the Secretary of Defense had not yet promulgated the Rules for Military Commissions (Annexure F) or the Regulation for Military Commissions (Annexure E) and that he could not charge Mr. Hicks before the Secretary of Defense had issued the Manual for Military Commissions.

vii. Ten days later, the Pentagon announced the issuance of the Rules for Military Commissions and the Regulation for Military Commissions. That same day, Mr. Haynes called Colonel Davis. He told Colonel Davis that he now had the Manual for Military Commissions and again asked how quickly he could

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charge David Hicks. He also asked Colonel Davis to charge a few additional detainees along with Mr. Hicks.

viii. On February 2, 2007, Colonel Davis had charges sworn against David Hicks, Omar Khadr, and Salim Hamdan to the Convening Authority. He was unable to forward the charges to the Convening Authority because there was no Convening Authority until February 7, 2007, when Mrs. Susan Crawford was appointed to her current position.

176. Further, the Convening Authority also intervened in the prosecution’s conduct of the trial (as envisaged by Military Commission Manual, Rule 705). In Mr Hicks’ case, the Legal Adviser to the Convening Authority, General Hartmann, directly negotiated the Plea Agreement with Mr Hicks’s counsel, without the involvement of the prosecution, as follows:

[5] ix. On March 26, 2007, David Hicks pleaded guilty to one charge of material support for terrorism. Colonel Davis was not informed of the pre-trial agreement until he arrived at Guantanamo Bay to attend the scheduled arraignment of Mr. Hicks. After Colonel Davis spoke publicly about not being included on pretrial negotiations, the Convening Authority privately counseled Colonel Davis on publicly breaking ranks with the Office of the Convening Authority. (Defence Motion to Dismiss in Hamdan, above).

177. In the subsequent prosecution of Salim Hamdan, the US Military Commission itself held that the Legal Advisor only enjoyed a power to initiate pre-trial agreement negotiations, but it was unlawful ‘to personally conduct them without any consultation with or the company of the trial counsel’: US v Hamdan, D-026 Ruling on Motion to Dismiss (Unlawful Influence), US Military Commission, 9 May 2008 (Judge Keith J. Allred), para. 4(a). Thus, the manner of the negotiation of Mr Hicks’ Plea Agreement was analogously unlawful according to the rules and rulings of the Military Commission on the issue of prosecutorial independence.

178. Colonel Morris describes the political interference and procedural irregularity in the conduct of Mr Hicks’ trial as follows (Interview by Amy Goodman, ‘Fmr. Chief Guantanamo Prosecutor Says Military Commissions “Not Justice”’, Democracy Now, 16 July 20084

... I know some folks who said, well, there’s no—you know, what’s the proof that this was political pressure? If you look—Jim Haynes, as I mentioned, was the DOD general counsel. He had been nominated by President Bush for a seat on the Fourth Circuit Court of Appeals, and his nomination was held up after the torture memo and the torture policy came to light. Mr. Haynes pretty much had a hands-off policy the first year I was in the job. But on January—I believe it was January 9, 2007, was the day that President Bush withdrew Mr. Haynes’ nomination for the seat on the federal bench, and that was the day, for the first time ever, Mr. Haynes called me up on a specific case and asked, “How quickly can you charge David Hicks?”

):

If you look at it at that point in time, the only thing that was in place was the Military Commissions Act. No one had been appointed as the convening authority. There was no Manual for Military Commissions, which is the thick book that lays out the elements of the offenses. So the pieces were not in place to charge anyone, yet I’m getting a call from the general counsel saying, “How quickly can you charge David Hicks?” So, maybe that was just coincidence, but one thing I found in dealing with Mr. Haynes and with the military commissions is things rarely happened by coincidence.

... Well, as I said, you know, I get a call from him asking how quickly I can charge David Hicks, when there’s only one piece of the puzzle in place. That was the statute. My job as chief prosecutor was—you know, when I swear charges, I forward them to the convening authority for review before the charges are referred to trial. Well, at that point in time, there was no convening authority, so there was no one for me to send charges to, because no one had been appointed to that position. The Manual for Military Commissions, to charge someone, there are elements of the offense that the prosecution has to prove, and those are laid out in the Manual for Military Commissions. That document had not been published on January 9, 2007, so I had no elements of proof to look at to determine what to charge David Hicks with. Yet I’m getting a call from the general counsel saying, “How quickly can you charge him?”

4 See http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/testimonies/testimonies-of-prosecution-lawyers/fmr-chief-guantanamo-prosecutor-says-military-commissions-201cnot-justice201d.

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We eventually charged him on February 2nd, along with Omar Khadr and Salim Hamdan. But again, if you look at the timing of it, Susan Crawford, who is the convening authority, wasn’t appointed until, I believe, February the 7th. So, here we are charging people five days before there’s a convening authority to refer charges to, which I think to a reasonable person just doesn’t make much sense.

Also, the regulation for trial by military commissions, which is kind of the deep-in-the-weeds details on how the commissions are conducted, wasn’t published until late April 2007, which was after the David Hicks trial was completed. So we didn’t even have the regulation written at the time we prosecuted David Hicks.

179. To put it mildly, ‘[t]he involvement of the executive in such matters is troubling’: UN Special Rapporteur Scheinin, above. Interference in the conduct of trial and the plea negotiation occurred because of political pressure from the US President and the Australian Prime Minister to expeditiously conclude Mr Hicks’ trial: Timothy McCormack, ‘David Hicks and the Charade of Guantanamo Bay’ (2007) 8 Melbourne Journal of International Law 273, at part V.

180. In the later case of Salim Hamdan, the US Military Commission itself disqualified the Legal Advisor to the Convening Authority, General Hartmann, from any further participation in that case, on the following basis (US v Hamdan, D-026 Ruling on Motion to Dismiss (Unlawful Influence), US Military Commission, 9 May 2008 (Judge Keith J. Allred)):

The Commission is not persuaded, beyond a reasonable doubt, that the Legal Advisor to the Convening Authority retains the required independence from the prosecution function to provide fair and objective legal advice to the Convening Authority. These are substantial doubts about that ability based on the length and intensity of the Legal Advisor's involvement with the Prosecution in general, as well as the impact his actions have had on the prosecutors in this case.

To ensure that the accused receives the fair and objective advice to which he is entitled during the balance of this case, the motion to disqualify the Legal Advisor to the Convening Authority from further participation in the case of United States vs. Hamdan is GRANTED.

181. Many of the findings supporting that decision against the Legal Advisor are equally applicable to the concurrent treatment of Mr Hicks’ case (in addition to the pre-trial negotiation irregularity mentioned above), as follows (D-026 Ruling, para. 4):

4. The Commission is troubled by the following actions of the Legal Advisor that reflect too close an involvement in the prosecution of commission cases:

...

(b) Telling the Chief Prosecutor (and other prosecutors) that certain types of cases would be tried, and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play.

(c) Appearing to direct, or attempting to direct, the Chief Prosecutor to use evidence that the Chief Prosecutor considered tainted and unreliable, or perhaps obtained as the result of torture or coercion, was clearly an effort to influence the professional judgment of the Chief Prosecutor. While it is true that the trial judge is ultimately the gatekeeper for each item of evidence, each Prosecutor also has an ethical duty not to present evidence he considers unreliable.

(d) Challenging the Chief Prosecutor's decision to take to trial first the cases he considered most serious suggests an improper influence on the Chief Prosecutor's discretion.

(e) Making public statements in which he aligned himself with the prosecution, took credit for their success and indicated that he is their leader.

(f) ‘Nanomanagement’ of the Prosecutors’ office to such an extent that it could be considered ‘cruelty and maltreatment’ suggests a greater level of involvement than a Legal Advisor can properly engage in without becoming identified as part of the prosecution.

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(g) The Legal Advisor's intimate involvement in the details of prosecutorial decision making have led one prosecutor to resign, another to seek ethical guidance from the Navy JAG ethics office, and has led both prosecutors in this case, and their former supervisor, to believe they were being "nano-managed" in both the performance of his duties and the exercise of their discretion.

182. The above ruling of the Military Commission itself casts grave doubt upon the lawfulness of Mr Hicks’ conviction, on account of the high degree of unlawful interference in prosecutorial independence and in the fair conduct of Mr Hicks’ case. Mr Hicks was, however, unable to challenge the conduct of his trial because his Plea Agreement precluded any such review.

183. In the case of Mr Hicks, the Australian Government also negotiated directly with the US concerning the trial standards which would apply to Mr Hicks. Such guarantees secured by Australia (which were still not sufficient to make his trial fair) did not apply to any other detainees at Guantanamo Bay. As a result, the military commission could not be seen as an independent or impartial tribunal because trial standards depended entirely upon the nationality of a particular offender and the willingness and capacity of their government to negotiate with the US. The military commission were thus dependent on both the US executive government and upon foreign governmental authorities in individual cases, making the standard of justice variable and unequal as between different cases.

184. Leading jurists also support the view that the MCA scheme lacked independence:

(a) UN Special Rapporteur Martin Scheinin, above, noted that he had ‘serious concerns about the independence and impartiality of the commissions, their potential use to try civilians, and the lack of appearance of impartiality’;

(b) A group of eminent Australian international law experts observed as follows (Peter Vickery QC, Professor Tim McCormack, Hon Alastair Nicholson, Professor Hilary Charlesworth, Gavan Griffith AO QC, Professor Andrew Byrnes, ‘Legal Opinion on David Hicks – Military Commissions Act 2006 – Compliance with Common Article 3 of the Geneva Conventions, the Hamdan Decision and Australian Law’, 9 November 2006) (Annexure AA):

In short, the same official, the US Secretary of Defense, is responsible for the original detention of accused persons, selecting the members of the tribunals that will hear charges against them, prescribing important procedural rules for the running of trials and making the final decision as to an accused person’s guilt or innocence.

(c) A former Chief Justice of the Australian High Court, Sir Anthony Mason, and one of Australia’s pre-eminent constitutional lawyers, Professor Geoffrey Lindell, wrote (in (2008) 9 Melbourne Journal of International Law 515) of Mr Hicks’ trial that ‘it may still remain essentially true, as was once said of the military tribunals considered in Clifford v O’Sullivan [1921] AC 570 that they were ‘not courts at all, but mere committees of officers meeting to inform the mind and carry out the orders of the Commander-in-Chief’.

(d) See also James Stewart, ‘The Military Commissions Act’s Inconsistency with the Geneva Conventions: An Overview’ (2007) 5 Journal of International Criminal Justice 26 at 30.

C.2.2. Mr Hicks was not tried before a regularly constituted court

185. At a minimum, Mr Hicks had a right to receive the minimum fair trial protections of common article 3(1)(d) of the 1949 Geneva Conventions, which requires ‘judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples’.

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186. The original military commission constituted under the US Military Instruction of 2003 was found not to be ‘regularly constituted’ by the US Supreme Court in Hamdan v Rumsfeld, 548 U.S. (2006) at 69-70. The Court defined ‘regularly constituted’ as follows:

Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 6 U. S. T., at 3320 (Art. 3, ¶1(d)). While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”);

see also Yamashita, 327

U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340(observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”). [footnotes omitted]

187. The original military commission was not regularly constituted because the regular military courts in the US system are courts martial established by congressional statutes: Hamdan v Rumsfeld, 548 U.S. (2006) at 69-70. The US Government had not shown ‘some practical need’ for deviation from the regular courts martial system: Hamdan v Rumsfeld, 548 U.S. (2006) at 70. That was so notwithstanding the serious threat of terrorism which the military commissions were purportedly designed to deal with. At its heart, the requirement of a ‘regularly constituted’ court ‘it relies upon the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms’: Hamdan v Rumsfeld, 548 U.S. (2006), Opinion of Justice Kennedy at 2.

188. The subsequent military commission established under the MCA which tried Mr Hicks was not a ‘regularly constituted’ court for substantially similar reasons to those set out by the Supreme Court in Hamdan v Rumsfeld, 548 U.S. (2006) in relation to the original military commission. No military commission existed at the time of Mr Hicks’ alleged conduct, capture or detention. Mr Hicks could have been tried by pre-existing, regular US courts martial, which have jurisdiction to try ‘any person’ for war crimes (see 10 USC s. 818) and which largely afford a fair trial. Alternatively, Mr Hicks could have been tried by a military commission which guaranteed procedural protections and a fair trial.

189. Instead, Mr Hicks was prosecuted before a post-facto tribunal, largely controlled by the executive (as demonstrated in the above section), the procedural rules of which could change at any moment, and which only prosecuted ‘alien enemy unlawful combatants’ (as designated by a procedurally unfair, executive Combatant Status Review Tribunal). No need was shown for deviation from the courts martial system.

190. In addition, the military commission was not regularly constituted because it did not exhibit ‘an acceptable degree of independence from the Executive’ (Hamdan v Rumsfeld, 548 U.S. (2006), Opinion of Justice Kennedy at 9-10). In Mr Hicks’ case, the lack of independence of the military commission from the executive is explained above at Part III (C.2.1.-C.2.2).

191. As noted earlier, in the case of Mr Hicks, the Australian Government also negotiated directly with the US concerning the trial standards which would apply to Mr Hicks. Such negotiation of trial standards rendered the military commissions highly irregular in their operation.

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C.2.3. Mr Hicks was not presumed innocent

192. Mr Hicks did not enjoy ‘the right to be presumed innocent until proved guilty according to law’, contrary to article 14(2) of the ICCPR. Adverse public comment about an accused by high ranking public officials may violate the presumption of innocence where the guilt of the accused is asserted or implied (and not where it is merely stated that a person is suspected of a crime): Allenet de Ribemont v France (1995) 20 EHRR 557; see also Gridin v Russia, Communication No. 770/97, para. 8.3. The same is true in terrorism cases: Ismoilov and others v Russia, ECHR Judgment of 24 April 2008, at paras 166-170.

193. Public statements asserting Mr Hicks’ guilt which were repeatedly made by senior US and Australian officials, and widely publicized in the media, severely prejudiced Mr Hicks’ ability to receive a fair trial. Such statements generate severe adverse publicity against Mr Hicks and had the capacity to influence or prejudice judges and jurors of the military commission against Mr Hicks. Since those judges and jurors were US military personnel, they were particularly susceptible to influence by statements from their military chain of command, including from the US President and US Secretary of Defense, particularly in the highly charged, emotive aftermath of the 11 September 2001 attacks on the US and US military headquarters (the Pentagon). Some illustrative examples are as follows:

(a) US President Bush, 28 January 2002: ‘These are killers. These are terrorists.’ (Quoted in ABC Television, Four Corners Program, 31 October 2005)

(b) US President Bush, White House Press Release: ‘President Bush, Prime Minister Blair Discuss War on Terrorism’, 17 July 2003: ‘... these are bad people’.

(c) US President Bush, State of the Union Address, 29 January 2002: ‘Terrorists who once occupied Afghanistan now occupy cells at Guantanamo Bay.’

(d) US Secretary of Defense Rumsfeld, Roundtable with Radio Media, US Department of Defense News Transcript, 15 January 2002: ‘... [these are] people that are very dangerous.... They are the hardest of the hard core’.

(e) US Secretary of Defense Rumsfeld, US Department of Defense, News Transcript, ‘Secretary Rumsfeld News Stakeout at NBC’, 20 January 2002: ‘These are very tough, hard-core, well-trained terrorists’.

(f) US Secretary of Defense Rumsfeld, US Department of Defense, News Transcript, ‘Secretary Rumsfeld Media Availability en route to Guantanamo Bay, Cuba’, 27 January 2002: ‘these are among the most dangerous, best trained vicious killers on the face of the earth’.

(g) US Rear Admiral John D. Stufflebeem, US Department of Defense, American Forces Information Service, ‘US Gains Custody of More Detainees’: ‘... they are bad guys. They are the worst of the worst, and if let out on the street, they will go back to the proclivity of trying to kill Americans and others’.

(h) Australian Minister for Foreign Affairs Alexander Downer, Transcript of interview with Mathew Abraham, ABC Radio Adelaide, 24 May 2004: ‘Remember though, these people have been detained because of their involvement with Al Qaeda - this is the world's most evil terrorist organisation and if you get involved with an organisation like Al Qaeda you are going to get into a lot of trouble’.

(i) Australian Attorney-General Daryl Williams, Transcript of Doorstop Interview, Perth, 14 January 2002: ‘You have to be realistic about the nature of the potential threat that the prisoners who have been transferred to Cuba represent. They have been trained to be terrorists and to act in accordance with the objective of al-Qaida. That makes them about as dangerous as a person can be in modern times.’

(j) Attorney-General Daryl Williams, Transcript of Doorstop Interview, Perth, 17 January 2002: ‘It needs to borne in mind that the people in question were either members of the Taliban or associated with al-Qaeda and had, as in the case of Mr Hicks, extensive training. Now, that makes them potentially quite dangerous terrorists’.

(k) Minister for Foreign Affairs Alexander Downer, Media Conference following the Commonwealth Ministerial Meeting on Terrorism, London, 29 January 2002: ‘We have no illusions about this that he was

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a very very foolish person to have got involved with an organisation like al-Qaeda. It was an extraordinarily foolish thing to do.... they [the US] are perfectly entitled to take very tough action against organisations which are committed to killing their citizens and David Hicks was a complete fool to get wound up with an organisation like al-Qaeda, a complete fool and I don’t think the vast majority of Australian citizens sympathise with someone who has done something as foolish as that.’

194. Mr Hicks’ pre-trial classification by a Combatant Status Review Tribunal (‘CSRT’) as an ‘enemy unlawful combatant’ further undermined the presumption of innocence, since his purported, proven status as an ‘enemy’ engaged in ‘unlawful’ combat was highly prejudicial and pejorative and must have tainted the military commission’s perception of him. As noted elsewhere in this communication, the CSRT did not provide a fair hearing or procedure.

195. An excessive period of preventive detention can also affect the right to be presumed innocent and violate article 14(2): UN Human Rights Committee, Cagas, Butin and Astillero v Philippines (788/97), para. 7.3 (involving nine years in detention). Mr Hicks was detained for more than five years before trial. Such a lengthy period of pre-trial detention, coupled with high level of publicity surrounding alleged ‘terrorists’ at Guantanamo Bay, and the remote, highly militarised conditions in which Mr Hicks was held, conveyed a clear impression that Mr Hicks was a notorious and dangerous criminal. In such circumstances, his right to be presumed innocent was further violated, particularly when there was still doubt about his status under international humanitarian law and thus his eligibility for administrative detention in armed conflict was not established to the requisite standard.

196. In sum, as a former Chief Justice of the Australian High Court, Sir Anthony Mason, and leading constitutional law Professor Geoffrey Lindell wrote (in (2008) 9 Melbourne Journal of International Law 155):

An egregious departure from due process was the highly disparaging public statements made by senior members of the Australian Government, which prejudged Hicks’s guilt and treated him as a most dangerous terrorist, an allegation that was outrageous in the light of all that we now know.

C.2.4. Mr Hicks was not promptly informed of the charges against him

197. Mr Hicks was not ‘informed promptly’ of the nature and cause of the charges against him, as required by article 14(3)(a) of the ICCPR. The UN Human Rights Committee’s General Comment No. 13, para. 8, explains the scope of the right:

... the right to be informed of the charge ‘promptly’ requires that information is given in the manner described as soon as the charge is first made by a competent authority.... this right must arise when in the course of an investigation a court or an authority of the prosecution decides to take procedural steps against a person suspected of a crime or publicly names him as such.

198. A person is subject to a ‘charge’ when he or she is ‘substantially affected’ by the proceedings taken against him: Deweer v Belgium (1980) 2 EHHR 439, para. 46; Eckle v Germany (1982) 5 EHRR 1 (both cases applying the equivalent protection in article 6 of the ECHR). While ordinarily this is the date the charge is laid (Ewing v United Kingdom (1986) 10 EHRR 141), where the laying of a charge is delayed or a charge is added it may be the date of the person’s initial arrest, or the date on which the person becomes aware that ‘immediate consideration’ is being given to a prosecution: X v United Kingdom (1978) 14 DR 26. Otherwise a person could be held without charge for prolonged periods preparatory to a foreshadowed trial and there would be no violation of the right to be promptly informed of the charges.

199. Mr Hicks was detained without charge for a protracted period of almost two and a half years until the first charges were issued against him in June 2004. Those charges were subsequently

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withdrawn after being cast into doubt by the US Supreme Court’s decision in Hamdan v Rumsfeld, 548 U.S. (2006). The new charges were not brought until late 2006, almost five years after Mr Hicks was first detained.

200. Given the prolonged detention of Mr Hicks without charge, the critical date at which Mr Hicks should have been promptly informed of the charges was either:

(a) The date of his detention by US authorities, that is, December 2001. Upon his detention at that time, the US denied that Mr Hicks was entitled to be protected as a prisoner of war under the Third Geneva Convention 1949. (If Mr Hicks was, in fact, entitled to POW status, then he enjoyed combatant immunity for his alleged conduct.) As such, the United States arguably should have treated Mr Hicks as a civilian suspected of criminal activity, and accordingly the US should have informed Mr Hicks of the charges against him within a reasonable time of his apprehension. Informing him of the charges in June 2004 – approximately two and a half years after his apprehension – did not satisfy article 14(3)(a) of the ICCPR; or

(b) At a minimum, the date on which charges were being seriously considered, that is, 3 July 2003. On 3 July 2003, the US President determined that Mr Hicks was subject to his Military Order of 13 November 2001 on the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57833 (Annexure A): US Department of Defence, Press Release, ‘President Determines Enemy Combatants Subject to His Military Order’, No. 485-03, 3 July 2003.

201. In the latter situation, the purpose of the Military Order of 2003 was to provide for the prosecution of persons subject to that order. The determination that Mr Hicks was subject to the order was a clear step preparatory to his prosecution and crystallised the commencement of the criminal process. It was not merely a routine or preliminary step in ongoing investigations, given that Mr Hicks was among the first group of six detainees designated under the order on 3 July 2003, while hundreds of other detainees remained undesignated. That Mr Hicks was being detained pending prosecution is further demonstrated by the announcement on 23 November 2003 by the US and Australian Governments that they had reached agreement on ‘case specific’ assurances in any trial ‘[i]f David Hicks is charged’: US Department of Defence, ‘U.S. and Australia Announce Agreements on Guantanamo Detainees’, No. 892-03, 25 November 2003.

202. Yet, Mr Hicks was not informed of any charges until June 2004, almost one year after his designation under the order, which indicated that ‘immediate consideration’ (X v United Kingdom (1978) 14 DR 26) was being given to his prosecution. That protracted delay violated article 14(3)(a) of the ICCPR.

203. It is conceded that war crimes or terrorism offences may be complex and warrant extended investigative periods before a person in detention is charged. However, once Mr Hicks became subject to ‘charge’ in the relevant sense, that is, he had been designated for prosecution on 3 July 2003, the US was required to inform him of the charges against him. No adequate justification was presented for the 11 month delay (until 10 June 2004) in so informing him of the charges against him.

204. It has been suggested that civilians who have participated ‘unlawfully’ in hostilities may be subject to administrative detention for the duration of hostilities. Mr Hicks does not concede that point, given that there is no clear authority in international law for it. Even on that assumption, however, once the US decided to prosecute Mr Hicks, he should have been ‘promptly’ informed of the charges against him. Any authority to administratively detain Mr

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Hicks under international humanitarian law does not displace the right under human rights law to be promptly informed of any planned criminal charges and proceedings.

205. Even if the US enjoyed the international legal authority to detain ‘unlawful combatants’ in non-international armed conflict, such authority would only endure for such time as a person posed a continuing and serious security risk, so as to justify administrative detention. At the time of Mr Hicks’ apprehension by the Northern Alliance, there was no evidence that he was still actively participating in hostilities. The evidence brought by the US itself discloses that instead of returning with Arab fighters to Konduz to ‘fight to the death’, it is alleged that Mr Hicks ‘decided to use his Australian passport and flee to Pakistan’ (Stipulation of Fact of 29 March 2007, para. 47 (Annexure K)) and was captured after he ‘took a taxi and fled towards Pakistan’ (para. 49); see also Australian Federal Police Record of Interview with David Hicks, 14 May 2002, pp. 31-33, 42-43, 122-123 (Annexure CC). There is, therefore, considerable doubt about whether Mr Hicks was an ongoing security risk so as to justify his administrative detention without charge (beyond any initial and limited period necessary to identifying him and determining his status).

C.2.5. Mr Hicks was not able to communicate freely with legal counsel

206. Mr Hicks was not able ‘to communicate with counsel of his own choosing’ as required by article 14(3)(b) of the ICCPR. The right includes ‘full respect’ for confidentiality of lawyer-client communications: UN Human Rights Committee, General Comment No. 13, para. 9. It also ensures that lawyers ‘should be able to counsel and represent their clients in accordance with their established professional standards and judgment without any restrictions, influences, pressures, or undue interference from any quarter’: ibid, para. 9.

207. The right to legal counsel under article 14(3)(b) is ordinarily activated from the moment of criminal charge, or in Mr Hicks’ circumstances, from when a criminal prosecution is under ‘immediate consideration’ (see above at Part III(C.2.5) of this communication). Mr Hicks was not provided with legal representation until 28 November 2003 when Major Michael D. Mori was appointed as his military defence counsel (see US Department of Defense Press Release, ‘DoD Assigns Legal Counsel for Guantanamo Detainee’, No. 912-03, 3 December 2003) – approximately five months after he was designated for trial by military commission, and almost two years since his initial detention on suspicion of criminal involvement in terrorism. His US civilian defense counsel (Joshua Dratel) and one foreign attorney consultant (Stephen Kenny) were also not appointed until after that time, with Stephen Kenny commencing to represent Mr Hicks from December 2003.

208. Accordingly, at a minimum, Mr Hicks’ right to counsel was denied for at least five months; at most, his right to counsel was denied for almost two years. In addition to the violation of article 14(3)(b) in relation to the criminal process against Mr Hicks, there was likely a violation of article 9(4) of the ICCPR concerning the denial of legal representation to Mr Hicks from November 2001 to November 2003. Access to legal representation is essential in order to meaningfully challenge the lawfulness of detention under article 9: UNHRC, Berry v Jamaica (330/88). That includes detention purportedly pursuant to any administrative detention powers which may apply under the international law of armed conflict.

209. Mr Hicks was also unable to freely choose his legal representation. The US military assigned his US military lawyer, Major Michael Mori, and Major Mori himself conceded that he lacked experience in the relevant law and procedure. By contrast, the prosecution legal team had both more experience and greater resources at their disposal, undermining equality of

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arms and thus the overall fairness of the trial procedure. In addition, as a member of the US armed forces, bound by US military law and discipline, Major Mori was inherently constrained in representing Mr Hicks by his legal obligations to the United States.

210. Mr Hicks’ rights under article 14(3)(b) were also violated for a number of other reasons. First, during his prolonged pre-charge and pre-trial detention, Mr Hicks was interrogated on numerous occasions without the presence of his lawyer. Interrogation in the absence of counsel, after it has been requested, is a violation of article 14(3)(b) of the ICCPR: Gridin v Russian Federation, Communication No. 770/1997, para. 8.5. Information gathered during those interrogations was later used as evidence against Mr Hicks in the military commission proceedings, and not just for any intelligence gathering purposes (for instance, on the basis that Mr Hicks was administratively detained for security reasons in armed conflict).

211. Mr Hicks repeatedly requested that he be allowed to contact a lawyer through direct verbal requests to his interrogators. Mr Hicks first requested to see a lawyer on board the USS Bataan, in or around December 2001 or January 2002, after a fellow detainee, US national John Walker Lindh, received a letter from a lawyer which alerted Mr Hicks to his rights. US military personnel refused to allow Mr Hicks access to lawyer and his treatment by US military personnel deteriorated as a result of him asking for a lawyer.

212. In his 2007 affidavit (Annexure X), at para. 14, Mr Hicks stated that soon after his arrival at Camp X-Ray in Guantanamo Bay, ‘I asked for a lawyer and whether the Geneva Conventions applied (as I had been told I was a prisoner of war). I was told I would not need a lawyer if I cooperated and that the Geneva Conventions did not apply’. Thereafter, Mr Hicks was repeatedly told by US military personnel or interrogators that he was “not allowed to” have a lawyer, to the point that Mr Hicks ceased requesting a lawyer because he felt to do so would be pointless and would worsen his treatment in detention.

213. Mr Hicks also requested a lawyer when being interviewed in US custody by Australian officials (from the Australian Federal Police, Australian Security Intelligence Organisation, and consular officers from the Department of Foreign Affairs and Trade) in May 2002, but was told that he was not entitled to a lawyer. See, in particular, the following excerpt from the Australian Federal Police Record of Interview with David Hicks, 14 May 2002, pp. 98-99 (Annexure CC):

Q1234: Due to our current location it is not possible for me to provide you with communications that would enable you to contact a friend or relative at this time. Do you understand that?

A [Mr Hicks]: Yes.

Q1235: Nor is it possible for us to allow you to contact a legal practitioner. Do you understand that?

A: Yes.

214. Secondly, Mr Hicks’ ability to communicate with his lawyers was impaired by the remote location of his detention at a US Naval Base at Guantanamo Bay, Cuba, making it difficult for his lawyers to gain regular and adequate access to him. Mr Hicks was only able to communicate with his lawyers when they were personally present at Guantanamo Bay. He was rarely provided with the means or opportunity by which to communicate with them at other times and places (including in Australia or the US), such as by telephone, fax or email. Such limitations additionally impaired Mr Hicks’ right to adequately prepare his defence under article 14(3)(b) of the ICCPR.

215. Thirdly, Mr Hicks’ US civilian attorney, Joshua Dratel, was unjustifiably excluded from the military commission proceedings in March 2007 by military judge Marine Colonel Ralph Kohlmann, for seeking to comply with his ethical and professional obligations as a lawyer.

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(Another of Mr Hicks’ US lawyers, Rebecca Synder, was also excluded on the technicality that she was a civilian employee of the US Department of Defense). The US Department of Defence reported as follows (American Forces Press Service, ‘Australian Detainee Arraigned Before Military Commission’, 26 March 2007):

Dratel, Hicks’ civilian attorney, was removed because he refused to sign an agreement stating that he would comply with all applicable rules and regulations for the commissions. Dratel did sign an agreement, but with revised language stating he would comply with all “existing” rules and regulations. He argued this was because at the time he was asked to sign the agreement, the regulations for civilian attorneys in military commissions had not been created by the Defense Department, and he didn’t want to sign anything prematurely. “I cannot sign a document that provides a blank check that draws on my ethical obligations as a lawyer,” Dratel said.

216. Fourthly, Mr Hicks’ right to communicate confidentially with his lawyers was not fully respected. The US authorities searched, copied and/or seized confidential legal documents from Mr Hicks on numerous occasions, as follows:

(a) Twice when Mr Hicks was detained in Tango Block in Camp Delta (in 2005 and 2006);

(b) Three times when Mr Hicks was detained in Camp 5:

(i) Once when Mr Hicks was writing notes and considering whether to plead guilty, he was chained up by guards, everything was taken out of his cell, and he was told that everything was being photocopied;

(ii) Once when Mr Hicks was showering, in the mirror he saw a guard (block sergeant) using a camera in his cell, which the guard tried to hide when he exited Mr Hicks’ room. All of Mr Hicks’ legal papers had been moved around;

(iii) Once after suicides had occurred, Mr Hicks’ cell was cleared and he was stripped to his shorts only, without any blankets.

217. In addition, all materials brought into Guantanamo Bay by lawyers was monitored and filtered, while video cameras were present in the rooms where Mr Hicks met with his legal counsel (Mr Hicks does not know whether the video cameras also recorded sound).

218. While the US has claimed that such searches are justified for security reasons (such as to prevent a suspected terrorist plot or attacks on guards), no evidence has been presented to suspect Mr Hicks as involved in any such suspected plots or attacks. As such, there was no justification for interfering in the confidentiality of his legal communications. Since his lawyers were required to be security cleared, and Mr Hicks otherwise had negligible access to the outside world, there could be no justification for additionally monitoring communications between Mr Hicks and his lawyers.

219. Fifthly, Mr Hicks’ military counsel, Major Mori, was subjected to pressure and undue interference by the prosecution. The chief prosecutor for the military commissions, Colonel Morris Davis, alleged in March 2007 that Major Mori’s public criticism of the commissions amounted to the use of ‘contemptuous words against’ the President the Congress, the Secretary of Defense or other specified US officials in violation of 10 USC §§ 888: David Nason, ‘Mori Charges Could Be Laid after Trial’, The Australian, 3 March 2007, p. 3. Colonel Davis emailed the Convening Authority of the military commissions, Judge Crawford, to that effect: United States of America v David Matthew Hicks, Defense Motion for Appropriate Relief: Prosecutorial Misconduct (19 March 2007). Such prosecutorial interference with the defence is contrary to article 14(3)(b) of the ICCPR: UN Human Rights Committee, General Comment No. 13, para. 9.

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220. Finally, Mr Hicks’ Australian foreign civilian lawyers, Stephen Kenny and David McLeod, were required to sign undertakings in relation to the trial and were prohibited from disclosing the content of those undertakings. It is understood, however, that those undertakings sought to impose considerable restrictions on the capacity of Mr Hicks’ civilian lawyers to freely represent their client. For example, foreign civilian attorneys were required to agree to their extradition from Australia to the US if the US wished to prosecute the lawyer for a breach of the undertakings. Further, the undertakings sought to require Mr Hicks’ Australian lawyers not to publicly comment to the media, or to any other person, about the trial without the permission of the military commissions.

C.2.6. Mr Hicks was not tried without undue delay

221. Mr Hicks was not tried without ‘undue delay’, as required by article 14(3)(c) of the ICCPR. In addition, Mr Hicks’ period of pre-trial detention was not ‘as short as possible’ in the circumstances, as required by article 9(3) of the ICCPR: UNHRC, General Comment No. 8, para. 3. The UN Human Rights Committee has previously held that pre-trial detention of 16 months (Teesdale v Trinidad and Tobago (677/96), para. 9.3) or 22-23 months (Sextus v Trinidad and Tobago (818/1998), CCPR/C/72/D/818/1998; Brown v Jamaica (775/1997), CCPR/C/65/D/775/1997) without adequate explanation by the State will violate articles 9(3) and/or 14(3)(c).

222. The assessment of ‘undue delay’ involves consideration of (i) the conduct of the applicant, (ii) the complexity of the case, (iii) the importance of what is at stake for the applicant, and (iv) the conduct of the authorities: Philis v Greece (No. 2) (1998) 25 EHRR 417 at para. 35 (applying an ECHR provision equivalent to article 14(3)(c) of the ICCPR). See also Johnson v Jamaica, Communication No. 588/1994, para. 8.8; Shaw v Jamaica, Communication No. 704/1996, para. 7.4; Mansur v Turkey, ECtHR Series A, No. 319-B, para. 61; Hozee v Netherlands, ECtHR Reports 1998-III, para. 45; Suarez Rosero v Ecuador, IACtHR Series C, No. 35, 12 November 1997, paras. 70-73 (concerning the comparable test of ‘reasonable time’). These criteria are applied to Mr Hicks as follows.

223. (i) Conduct of the defendant: There is no evidence to suggest that Mr Hicks vexatiously obstructed the military commission process, for instance, by abusing procedural rights to avoid trial. Rather, he often cooperated with the US authorities (often under duress) and only made objections (thus causing justified delay) when challenging fundamental procedural irregularities affecting the fairness of his detention and the proceedings against him. A defendant has every right to make full use of available procedural remedies and their proper use should not count against a defendant in excusing a State for causing undue delay. Given his prolonged confinement in difficult conditions at Guantanamo Bay, Mr Hicks had a special interest in receiving a speedy trial.

224. (ii) Complexity of the case: It is acknowledged that the complexity of transboundary war crimes or terrorism prosecutions may practically require longer than usual periods of pre-trial detention. Even making generous allowance for such complexity, Mr Hicks was detained without trial from December 2001 to March 2007, a period of almost five years and three months, which was manifestly excessive in the circumstances. The US could readily have disposed of the case in a substantially shorter time, particularly when, as in Mr Hicks’ case, much of the evidence was based on Mr Hicks’ own admissions in interrogations conducted soon after his capture in 2001.

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225. (iii) Importance for the defendant: Given the highly stigmatizing allegation of terrorism against Mr Hicks, his potential exposure to life imprisonment, and his already prolonged detention before being charged, a prompt trial assumed particular importance for Mr Hicks. In such circumstances, the US ought to have exercised extra diligence in ensuring trial within a reasonable time. To the contrary, the US explicitly removed regular ‘speedy trial’ protections in US law, including those applicable to courts martial: MCA, s. 948b(d)(A) (removing section 810 of article 10 of the Uniform Code of Military Justice).

226. (iv) Conduct of the authorities: Mr Hicks’ prolonged detention was due largely to the repeated refusal of US authorities to accord him a fair procedure for both challenging his status and detention and in relation to his criminal trial. Specifically these delays included or were caused by:

(a) A delay in providing a competent tribunal to determine the status of detainees held at Guantanamo Bay, including Mr Hicks, in circumstances where doubt had arisen about their status under international humanitarian law, and as required by article 5 of the Third Geneva Convention 1949;

(b) The establishment of the earlier system of military commissions by US Military Order of 13 November 2001 on the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57833 (Annexure A), which the US Supreme Court in Hamdan v Rumsfeld, 548 U.S. (2006) found did not satisfy the minimum requirements of a procedurally fair trial under common article 3 of the four 1949 Geneva Conventions. The finding of unlawfulness by the US Supreme Court required the US to reconstitute a new system of military justice at Guantanamo Bay, which still did not meet the minimum international requirements of a fair trial. The MCA 2006 system preserved many of the defects of the earlier commissions: UN Special Rapporteur on Promotion and Protection of Human Rights While Countering Terrorism, Martin Scheinin, Preliminary Findings on Visit to the United States, 29 May 2007;

(c) Limitations on Mr Hicks’ access to civilian lawyers, which rendered it difficult for Mr Hicks to obtain full and expeditious legal advice and representation in his dealings with the US military authorities.

227. In sum, Mr Hicks was not tried without undue delay. The UN Special Rapporteur, Martin Scheinin, has expressed ‘serious concerns about the overall length of detention of detainees at Guantanamo Bay (for a period of several years without charge), which fundamentally undermines the right of a fair trial’: UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, Report to the General Assembly, 6 August 2008, A/63/223, para. 22. Likewise, a former Chief Justice of the Australian High Court, Sir Anthony Mason, and a leading Australian constitutional lawyer, Professor Geoffrey Lindell, stated that: ‘an unconscionable delay occurred before Hicks was charged and brought to trial’: (2008) 9 Melbourne Journal of International Law 155.

C.2.7. Mr Hicks was not entitled to be tried in his presence

228. Mr Hicks did not fully enjoy the rights under article 14(3)(d) of the ICCPR to be tried in his presence, or to defend himself through counsel of his own choosing. First, an accused could be excluded from any hearing to determine whether to protect against the disclosure of classified information under s. 949d(f). If counsel objected at trial that a witness would

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disclose classified information, the military judge could review the claim of privilege in camera and on an ex parte basis (MCA, s. 948d(f)(2)(C). Claims of classified information privilege generally ‘are to be considered in camera and shall not be disclosed to the accused’ (s 948d(f)(3)).

229. That procedure unjustifiably impaired Mr Hicks’ ability to know and test the evidence against him. Mr Hicks could not attend, participate in, or even be aware of the existence of such proceedings had he proceeded to trial. Given that the claim for privilege is initially asserted by the head of the relevant US government department or agency (s 948d(f)(1)(B)), a military judge, faced with no other information, would be highly likely to defer to the expertise of very senior US government officials (such as the head of the Department of Defense (who employs the judge and to whom the judge is responsible), the head of the CIA or FBI).

230. Secondly, an accused could be excluded from any portion of the proceedings if, after a warning from the judge, the judge determined that his exclusion was necessary to ensure the physical safety of individuals or to prevent the accused from disrupting the proceedings: MCA, s. 949d(e). The exclusion of an accused from their own trial is highly likely to prejudice the right to a fair trial and any restrictions on their presence require the strongest justification. In the circumstances of the cumulative deprivations of fair procedure faced by Mr Hicks, the grounds for excluding him from trial were cast too broadly to be justified as a lawful restriction on his right to be present at trial:

(a) The notion of ‘disrupting’ proceedings is vague, subjective and open to abuse in its potential application by military judges who are not independent of the US executive and where an accused is not assured of the regular guarantees of a fair trial and would therefore likely have legitimate reasons for strenuously objecting to the process and not cooperating with it;

(b) The protection of the physical safety of individuals could readily become a back-door method of protecting the sources of classified information, for example, where excluding the defendant is considered necessary to protect the identity of an informant or witness but the ordinary procedure for protecting classified information would not be satisfied.

C.2.8. Mr Hicks was not able to adequately examine or produce evidence

231. Mr Hicks did not fully enjoy the right under article 14(3)(e) of the ICCPR and article 75(4)(g) of Additional Protocol I of 1977 to ‘examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’. Mr Hicks’ rights were impaired for the reasons below.

232. It is noted, however, that a lack of ‘access to documents and other evidence which the accused requires to prepare his case’ may also result in a violation of the related right to be afforded ‘adequate time and facilities for the preparation of his defence’ in article 14(3)(b) of the ICCPR: UN Human Rights Committee, General Comment No. 13, para. 9.

C.2.8.1. Limited access to witnesses and evidence

233. Firstly, the defence was only entitled to a ‘reasonable opportunity’ to obtain witnesses and other evidence: Military Commission Manual: Rules for Military Commissions, Rule 703(a) (Annexure D). In the application of the same legal test in the Combatant Status Review

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Tribunal, all requests for the attendance of exculpatory witnesses located outside Guantanamo Bay were rejected, while 74% of requests for witnesses located at Guantanamo were rejected: M Denbeaux et al, No Hearing Hearings: CSRT: the Modern Habeas Corpus? An Analysis of the Proceedings of the Government’s Combatant Status Review Tribunals at Guantanamo, November 2006. In addition, all requests for the inspection of classified evidence were denied, and almost all requests for unclassified evidence: ibid.

234. Further, the prosecution was entitled to rely on statements from witnesses who were released from Guantanamo Bay, in circumstances where Mr Hicks could not have secured their repatriation to Guantanamo to cross-examine them. Other witnesses may have been unavailable because of the long delay in bringing Mr Hicks to trial. While there was some funding available to the defence to bring witnesses to Guantanamo Bay, the prosecution had to approve the appearance of any witnesses. There was also no procedure available to the defence for the compulsory subpoena of witnesses, including those essential to the case.

235. Secondly, a defendant was not entitled to the presence of a witness who was deemed ‘unavailable’ at the discretion of the military judge: Military Commission Manual: Rules for Military Commissions, Rule 703(c)(3)(A). The only exception was where a witness ‘is of central importance to the resolution of an issue essential to a fair trial, and there is no adequate substitute for such testimony’ (Rules, 703(c)(3)(B)). Even then, a judge is only required to postpone or abate the proceedings if the unavailability of the witness is ‘within the control’ of the United States. It would therefore be possible for a trial to proceed in the absence of an essential defence witness where that witness is not obtainable by the US, even though that would result in an unfair trial.

C.2.8.2 Admission of prejudicial hearsay or coerced evidence

236. Thirdly, the military commissions permitted the admission of hearsay evidence and ‘hearsay within hearsay’ evidence. Section 949a(b) of the MCA expressly permits the admission of hearsay evidence which would be excluded by general courts martial, as long as the other party is notified in advance and provided with particulars (including information on the ‘general circumstances under which the evidence was obtained’). A reverse onus is then placed on the accused to demonstrate that the admission of the evidence would be ‘unreliable or lacking in probative value’.

237. There is thus no onus on the party adducing the evidence to demonstrate why reliance on hearsay evidence is necessary or not unduly prejudicial. In addition, the protections against disclosure of classified evidence (under MCA, s. 949j(c); see further below) expressly apply under s. 949a(b), such that the accused may not even be able to know the circumstances in which the evidence was obtained or to assess its reliability. The accused thus may not be able to cross-examine persons who have made accusations against him, ‘and may in fact only have the opportunity to cross examine a witness twice removed from his accuser’: Law Council of Australia, Letter to President of the US Senate, 23 January 2007, p. 3. The admission of hearsay evidence without an opportunity to cross-examine may render a trial unfair: Unterpertinger v Austria (1986) 13 EHRR 175.

238. Fourthly, while evidence obtained by torture is inadmissible, as UN Special Rapporteur Scheinin observed in his ‘Preliminary Findings on Visit to the United States’, 29 May 2007: ‘an accused may not become aware of the fact that evidence has been obtained by torture or coercion since the interrogation techniques used to obtain evidence subsequently presented at trial may themselves be classified and thereby outside the knowledge of the accused.’

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239. The failure to exclude hearsay or coerced evidence, and the inability of the accused to readily challenge such evidence, is compounded by the very low threshold for the admissibility of evidence generally – that the evidence ‘would have probative value to a reasonable person’: MCA, s. 949a(b)(2)(A). This departs from the higher, more protective threshold for regular US courts martial, which allow the admission of ‘relevant evidence’, defined as ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence’: Manual for Courts-Martial: United States (2008), Military Rules of Evidence, Rules 401-402.

240. Mr Hicks’ Plea Agreement (Annexure J) was based entirely on the Stipulation of Facts (Annexure K) of the prosecution. The evidentiary bases of the allegations in the Stipulation were not disclosed to Mr Hicks, making it impossible for him to properly know the provenance of the evidence or to challenge its reliability or the methods of its collection.

C.2.8.3. Non-disclosure of classified information unjustifiably withheld essential evidence

241. Fifthly, measures for the protection of classified information did not enable Mr Hicks to know the allegations against him with sufficient particularity and he was thus unable to adequately answer the charges against him. The protection of classified information may be justified under human rights law to protect national security, but it must be balanced against the requirements of procedural fairness and a fair trial: A and others v United Kingdom (Application no. 3455/05), Judgment, 19 February 2009, at paras. 217-218. In that case the Grand Chamber of the European Court of Human Rights found that where full disclosure is not possible, a person must still have ‘the possibility effectively to challenge the allegations against him’: at para. 218. In particular, an affected person must be provided with sufficient, specific information to enable him or her to challenge the evidence: at para. 220. Allegations of a general nature are not sufficient. See also Secretary of State for the Home Department v AF [2009] UKHL 28, at paras. 59 and 65.

242. The MCA requires the non-disclosure of classified information if disclosure ‘would be detrimental to the national security’ (MCA, s. 948d(f)(1)(A)). In place of disclosure, the military judge shall authorise, ‘to the extent practicable’, the deletion of material from a classified document, the provision of a portion or summary of it, or the ‘substitution of a statement of relevant facts that the classified information would tend to prove’ (MCA, s. 948d(f)(2)(A)(i)-(iii)).

243. These alternatives provided to disclosure of classified information were not adequate to ensure Mr Hicks could receive a fair trial, particularly where it is deemed not ‘practicable’ to disclose. Most importantly, Mr Hicks’ military lawyer, Major Mori, was prohibited from sharing classified evidence with his client, such that Mr Hicks could not be informed of all of the evidence against him. Such circumstances ‘undermine the ability of a person to instruct counsel for the purpose of answering the case’: UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, Report to the General Assembly, 6 August 2008, A/63/223, para. 41.

244. Further, the deletion of material may alter its emphasis and meaning, while the mere provision of a summary of information ‘gives an accused no proper facility to know what the actual evidence presented against him is, and lessens his ability to test the summary against the original document’: Peter Vickery QC, Professor Tim McCormack, Hon Alastair Nicholson, Professor Hilary Charlesworth, Gavan Griffith AO QC, Professor Andrew

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Byrnes, ‘Legal Opinion on David Hicks – Military Commissions Act 2006 – Compliance with Common Article 3 of the Geneva Conventions, the Hamdan Decision and Australian Law’, 9 November 2006 (Annexure AA).

245. At trial, a military judge could also admit evidence without disclosing ‘the sources, methods, or activities by which the United States acquired the evidence’ if the judge finds that manner of acquisition is classified and the evidence is reliable (s 948d(f)(2)(B)). The judge ‘may’ require the prosecution to present to the military commission and the defence ‘an unclassified summary of the sources, methods or activities’.

246. In a criminal trial, the non-disclosure of the sources of evidence effectively prevent the accused from being able to challenge the reliability of the evidence, including testing whether such evidence was obtained by coercion or other improper inducements. The accused also has no way of testing whether the summary of the evidence is accurate or whether exculpatory evidence has been omitted from the summary provided. Ultimately, the accused cannot know whether the source even existed and must accept, on faith, that a US military prosecutor and US military judge are not fabricating or distorting evidence or inventing witnesses. In these circumstances, it is unsurprising that the UN Human Rights Committee has previously found that the use of ‘anonymous witnesses’ may be incompatible with a fair trial: UN, Concluding Observations: The Netherlands (2001) CCPR/CO/72/NET, para. 12.

C.2.9. Mr Hicks did not enjoy a privilege against self-incrimination

247. Mr Hicks did not fully enjoy the right under article 14(3)(g) of the ICCPR ‘[n]ot to be compelled to testify against himself or to confess guilt’ for the following reasons:

(a) While Mr Hicks could not be compelled to testify directly against himself in a military commission proceeding (MCA, s. 948r(a)), his protection against extended forms of self-incrimination were removed (MCA, s. 948b(d)(B), in particular those protections in section 831, articles 31(a)-(b) and (d) of the Uniform Code of Military Justice (which include protection against self-incrimination in interrogation, notice of the right to silence in interrogation and of the effect of making statements, and the exclusion of evidence obtained by compulsory self-incrimination, coercion, unlawful influence, or unlawful inducement).

(b) Evidence obtained from him by coercion during interrogation was admissible at the judge’s discretion where ‘the degree of coercion is disputed’ (MCA, s. 948r(c) and (d)) (see further below at Part III(C.3.2.2) of this communication). There was such dispute in Mr Hicks’ case. The US denied that evidence was obtained from Mr Hicks by coercion. But it was incumbent on the US authorities to demonstrate that any statements made by Mr Hicks, or by others against Mr Hicks, were made freely and without duress: UNHCR, Concluding Observations: Romania (1999) CCPR/C/79/Add. 111. Mr Hicks’ sworn Affidavit of 5 August 2004 (and his UK affidavit of 2006) details the extensive ill-treatment he was subjected to during his interrogation or in detention (the purpose of which was related to his interrogation). For example, Mr Hicks stated as follows:

[para] 5. I have been beaten before, after, and during interrogations.

[para] 6. I have been menaced and threatened, directly and indirectly, with firearms and other weapons before and during interrogations.

[para] 7. I have heard beatings of other detainees occurring during interrogations, and observed detainees' injuries that were received during interrogations.

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C.2.10. Mr Hicks did not enjoy a right of full judicial review of his conviction

248. Mr Hicks did not fully enjoy the right to have his conviction and sentence reviewed by a higher tribunal according to law, as required by article 14(5) of the ICCPR. The right to appeal must be full and not limited to matters of law only: UNHCR, Domukovsky et al v Georgia (623-4, 626-7/95), para. 18.11; Gomez Vazquez v Spain (701/96), para. 11.1.

249. The MCA limited Mr Hicks’ right to appeal to matter of law: MCA, s. 950g(c). Mr Hicks was therefore deprived of ‘a full evaluation of the evidence and the conduct of the trial’ (Domukovsky) and of his ‘conviction and sentence’ (Gomez Vazquez).

250. In addition, paragraph 4 of the Plea Agreement (Annexure J) upon which Mr Hicks’ conviction is based required Mr Hicks to surrender any right of appeal, including the limited right of appeal on matters of law provided for in the MCA:

In exchange for the undertakings made by the United States in entering this Pretrial Agreement, I voluntarily and expressly waive all rights to appeal or collaterally attack my conviction, sentence, or any other matter relating to this prosecution whether such a right to appeal or collateral attack arises under the Military Commissions Act of 2006, or any other provision of United States or Australian law. In addition, I voluntarily and expressly agree not to make, participate in, or support any claim, and not to undertake, participate in, or support any litigation, in any forum against the United States or any of its officials, whether uniformed or civilian, in their personal or official capacities with regard to my capture, treatment, detention, or prosecution.

251. As set out at Part III(D.2-D.3) of this communication, Mr Hicks Plea Agreement cannot be recognised under international law because it involved a retroactive offence and it was tainted by duress in the face of an irrevocably unfair trial procedure and arbitrary detention.

C.3. Other Defects Tainting the Fairness of Mr Hicks’ Trial

C.3.1. Unlawful Discrimination

252. Mr Hicks trial involved unlawful discrimination on the basis of national origin, contrary to article 2 (protecting against discrimination) and 26 (requiring equal protection of the law without discrimination) of the ICCPR. As the UN Human Rights Committee stated in General Comment No. 15 (1986), para. 2:

... the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike.

253. Relevantly, in A v Secretary of State for the Home Department [2004] UKHL 56, the UK House of Lords declared that a special regime of potentially indefinite detention for foreign suspected terrorists was unlawfully discriminatory (under the equivalent provisions of the UK Human Rights Act and European Convention on Human Rights), since dangerous UK citizens suspected of terrorism were not treated similarly. As Lord Bingham stated (at para. 68): ‘What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another.’ In A and Ors v United Kingdom [2009] ECHR 3455/05 [Grand Chamber] (19 February 2009), at para. 190, the European Court of Human Rights agreed that the UK’s derogating measures (of detention of non-nationals only) discriminated unjustifiably on the basis of nationality.

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254. In establishing unlawful discrimination on the basis of national origin, it must be shown that (1) there is preferential treatment between persons in an analogous or relevantly similar situation, and (2) such discrimination in not objectively and reasonably justified by a legitimate aim in a democratic society: A v Secretary of State for the Home Department [2004] UKHL 56 at para. 50.

255. Applying the first criterion to Mr Hicks, the MCA only provides for the prosecution of ‘alien’ unlawful combatants (section 948d(a)) and has no application to US citizens, even if US citizens participated in hostilities in Afghanistan against the US or were otherwise suspected of being a terrorist risk. The relevant comparator class is persons suspected of committing offences against the laws of war. By subjecting only non-citizens to trial by military commission, the US accorded preferential treatment on the basis of nationality to US citizens, who were entitled to enjoy a higher standard of justice in either regular US military courts martial or in US civilian courts, and were not exposed to the lesser procedural protections provided in military commissions under the MCA.

256. The prosecution of nationals and non-nationals alike for war crimes was already possible under US law prior to the establishment of the military commission system. As the UN Special Rapporteur on Promotion and Protection of Human Rights While Countering Terrorism, Martin Scheinin, noted in his Preliminary Findings on Visit to the United States, 29 May 2007:

... ordinary courts martial have had the jurisdiction to try violations of the laws of armed conflict since 1916 under the Uniform Code of Military Justice, and that the nexus between the events of 11 September and United States citizens would allow ordinary courts to try other offences such as conspiracy and terrorism.

257. Applying the second criterion, there is no rational or reasonable justification for the differentiation in trial standards between US citizens and non-citizens. The prosecution of non-citizens suspected of war crimes could have been accomplished by recourse to the regular system of US courts martial under the Uniform Code of Military Justice. The legitimate aim of prosecuting, punishing and deterring non-citizen war criminals could thus have been achieved without subjecting them to military commission trials. The only real purpose in prosecuting non-citizens in military commissions was to expose them to less protective trial standards, and to retroactive offences, so that they could be convicted under conditions which would not apply to similarly-situated US citizens suspected of crimes.

258. In sum, as the UN Special Rapporteur, Martin Scheinin, has observed, ‘[i]ndividuals accused of the same or similar offences should not be treated with different standards of justice at the whim of the executive’: UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, Report to the General Assembly, 6 August 2008, A/63/223, para. 26.

C.3.2. Admission of Evidence Obtained by Torture or Ill-Treatment

259. Under article 7 of the ICCPR (and article 15 of the 1984 Convention against Torture, reflecting customary law), evidence obtained by torture or cruel, inhuman or degrading treatment or punishment cannot be admitted in a judicial proceeding: UNHRC, General Comment No. 20, para. 12.

260. Evidence obtained by torture is excluded from military commission proceedings: MCA, s. 948r(b). The rules on the admission of evidence in military commissions are not, however, in conformity with international human rights law for a number of reasons. There was

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accordingly a high likelihood that evidence obtained against Mr Hicks was tainted by the torture, inhuman or degrading treatment of witnesses under interrogation by the US authorities, and in obtaining admissions from Mr Hicks.

C.3.2.1. Torture is defined too narrowly

261. First, for the purpose of the evidentiary exclusion rule in s. 948r(b), ‘torture’ is defined more narrowly than in international human rights law, thus enabling the admission of evidence obtained by torture proper. The MCA itself does not define ‘torture’ for the purpose of the exclusionary rule, but only defines crimes of torture for the purposes of prosecutions in military commissions (s 950v(b)(11) and as war crimes violations of common article 3 under the federal criminal code (s 6(b)(1)(B)). However, the Military Commissions Manual (2007), Rule 304 (Annexure D), defines torture for the purpose of the evidentiary exclusion rule as follows:

... an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control.

“Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

262. While ‘severe mental pain or suffering’ is defined, there is no further definition provided of ‘severe physical ... pain or suffering’. Since the MCA prohibits the use of foreign or international legal materials in interpretation (s. 6(a)(2)), this undefined phrase must be interpreted by reference to relevant US law sources. By analogy, the MCA offence of ‘cruel or inhuman treatment’ (s. 950v(b)(12)) contains a definition of ‘serious physical pain or suffering’ as ‘bodily injury that involves’:

(I) a substantial risk of death;

(II) extreme physical pain;

(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

(IV) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

263. If the above definition is the operative definition for the purpose of the exclusionary rule, then it is manifestly too narrow to exclude the range of evidence which should properly be excluded as obtained by torture under human rights law. There is no authority or jurisprudence in international law to support the view that ‘torture’ is limited to acts which substantially risk death, inflict extreme pain, burn or physically disfigure a person, or significantly impair bodily organs or functions. As the UN Special Rapporteur observed in March 2007:

... the definition of torture for the purpose of proceedings before a military commission is restricted so that it does not catch all forms of coercion that amount to torture or cruel, inhuman or degrading treatment, equally prohibited in non-derogable terms by Article 7 of the International Covenant on Civil

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and Political Rights (ICCPR). It is a clear and established principle of international law that no evidence obtained by torture or cruel, inhuman or degrading treatment may be used for the purpose of trying and punishing a person.

264. The definition of ‘severe mental pain or suffering’ in Rule 304 above, which requires ‘prolonged mental harm’, also allows the admission of evidence which should be excluded, since it also defines that form of torture too narrowly. The UN Committee against Torture (Concluding Observations: United States of America (2006) CAT/C/USA/CO/2, para. 14) has previously urged the US to:

... ensure that acts of psychological torture, prohibited by the Convention, are not limited to “prolonged mental harm” as set out in the State party’s understandings lodged at the time of ratification of the Convention, but constitute a wider category of acts, which cause severe mental suffering, irrespective of their prolongation or its duration.

C.3.2.2. Evidence obtained by ill-treatment is not excluded

265. The MCA permits evidence obtained by ‘coercion’ to be admitted in certain circumstances, contrary to article 7 of the ICCPR:

(a) Evidence obtained by coercion prior to 30 December 2005 may be admitted at the judge’s discretion where ‘the degree of coercion is disputed’ and these conditions are met: ‘(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) the interests of justice would best be served by admission of the statement into evidence’: MCA, s. 948r(c).

(b) Evidence obtained on or after 30 December 2005 may be admitted in the same circumstances as long as ‘the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005’: MCA, s. 948r(d).

266. For evidence obtained prior to 30 December 2005 (which includes the period in which Mr Hicks and other detainees were extensively interrogated), the MCA does not automatically exclude evidence obtained by cruel, inhuman or degrading treatment or punishment. The rule is thus contrary to article 7 of the ICCPR, which does not permit a discretionary judicial balancing of interests in assessing coerced evidence. Such evidence must always be excluded under international human rights law.

267. Evidence obtained from 30 December 2005 onwards must be excluded if the methods used amount to cruel, inhuman or degrading treatment. The operative definition used by the MCA is that in s. 1003 of the Detainee Treatment Act of 2005, which defines such treatment as:

... the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

268. However, that definition is not compatible with article 7 of the ICCPR because ‘cruel, inhuman or degrading treatment’ is defined more narrowly than its meaning in international law. The US reservation (21 October 1994) to the Convention against Torture states:

That the United States considers itself bound by the obligation under article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment’, only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

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269. UN treaty bodies have previously expressed concern that the US reservation limits the application of the Convention: UN Committee against Torture, Concluding Observations: United States (2000), A/55/44, para. 179(b); see also UN Committee against Torture, Concluding Observations: United States (2006), CAT/C/USA/CO/2, para. 40; John Parry, ‘Escalation and Necessity: Defining Torture at Home and Abroad’ in Sanford Levinson (ed), Torture: A Collection (Oxford University Press, Oxford, 2006), 145 at 150-151.

270. It is known that the US Government authorised numerous aggressive interrogation techniques which were used against people subject to interrogation in US custody during the armed conflict in Afghanistan and which could amount to torture or cruel, inhuman or degrading treatment. For example, the US Secretary of Defense authorised coercive interrogation techniques in the US Army Field Manual which were in force between 2 December 2002 and 15 January 2003, as below:

(a) The use of stress positions (like standing) for a maximum of four hours;

(b) Detention and isolation up to 30 days;

(c) The detainee may have a hood placed over his head during transportation and questioning;

(d) Deprivation of light and auditory and literary stimuli;

(e) Removal of all comfort items;

(f) Forced grooming, shaving the facial hair etc.

(g) Removal of clothing.

(h) Interrogation for up to 20 hours.

(i) Using detainees individual phobias (such as fear of dogs) to induce stress.

271. Further techniques authorised in the US Army Field Manual by the US Secretary of Defense were in force between 15 January 2003 and 9 December 2006 included:

(a) Incentive/removal of incentive i.e. comfort items,

(b) Change of scenery down (sic) might include exposure to extreme temperatures and deprivation and auditory stimuli;

(c) Environmental manipulation: altering the environment to create moderate discomfort (e.g. adjusting temperature or producing unpleasant smells);

(d) Sleep adjustment; adjusting the sleep times of the detainee (e.g. reversing sleep cycles from night to day). This technique is not sleep deprivation;

(e) Isolation: clearly isolating the detainee from any other detainee while still complying with basic standards of treatment.

C.3.3. Mr Hicks Was Ill-Treated in US Custody

272. In his affidavit of 5 August 2004 (Annexure W), and in his detailed affidavit of 31 January 2007 prepared for UK court proceedings (21 pages) (Annexure X), Mr Hicks alleges that he was subject to various forms of ill-treatment in US custody (including on board US warships

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and aircraft, and at Guantanamo Bay). The substance of those affidavits is incorporated here in this communication and the Committee is urged to read the affidavits in their entirety.

273. To summarise, the ill-treatment of Mr Hicks by US authorities which is detailed in those affidavits included:

(a) Assaults and violence against his person (including beatings, punching, kicking, slapping, being stepped or trodden on, being repeatedly hit in the head by rifle-butts, and having his arm twisted);

(b) Sexual abuse and humiliation; and being stripped naked;

(c) Repeated threats by weapons (including shotguns, pistols and semi-automatic rifles);

(d) Forced kneeling or being forced into other painful stress positions in interrogation or during detention;

(e) Prolonged hooding and blindfolding;

(f) Frequent tight handcuffing and shackling, causing extreme pain to Mr Hicks’ wrists and ankles;

(g) Enforced medication or drugs (including when notified of the charges against him);

(h) Sleep disruption and sleep deprivation;

(i) Prolonged exposure to bright lighting and excessive continual noise;

(j) Deprivation of the ordinary necessities of living (including adequate food, exercise and hygiene basics such as a toothbrush and toilet paper); lack of food resulted in Mr Hicks’ weight dropping from 160 to 128 pounds between December 2001 and early 2003;

(k) Threats of rendition to torture in Egypt;

(l) Verbal threats and harassment;

(m) Prolonged solitary confinement; and

(n) Fearfully witnessing or learning of abuse of other detainees, including use of attack dogs, serious violent assaults, ‘IRF-ing’ (use of excessive force by ‘Initial Reaction Force’), religious humiliation, exposure to extreme temperatures.

274. Mr Hicks reported his abuse to the International Committee of the Red Cross when he was visited by them at Kandahar Airport in Afghanistan in December 2001, and again soon after his arrival at Guantanamo Bay in late January 2002. Mr Hicks was given a prisoner of war identity card by the ICRC but it was confiscated by US personnel, who ‘joked’ about it.

275. Mr Hicks also reported his abuse to his father, Mr Terry Hicks, to his lawyers, to other detainees at Guantanamo Bay at various times, and to Australian officials when he was interviewed by them in May 2002 (including Australian Federal Police, Australian Security Intelligence Organisation, and consular officials from the Department of Foreign Affairs and Trade). See also a written list of complaints provided by Mr Hicks to the Australian authorities in 2006 (Annexure DD) about some selected concerns, including abuse by guards, inadequate and unhygienic conditions of confinement, and untreated medical problems.

276. Former detainees at Guantanamo Bay have substantiated Mr Hicks claims. For example, three former British detainees (the ‘Tipton Three’) stated that ‘[t]hey also treated David Hicks in a very aggressive way’ (Composite statement: Detention in Afghanistan and

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Guantanamo Bay Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed, 26 July 2004, para. 120) and further (at para. 305):

Asif says “I first saw David Hicks in Camp X -Ray. ... He told us he had endured an extremely bad experience having been held on a ship where he had been interrogated by Americans and hooded and beaten. Despite that experience, he was in better shape then that he was when we last saw him in Mike block. We thought that he had gone downhill. By downhill we mean that he seemed to be losing all hope and more willing to co-operate as a result. We were interrogated a lot but he used to get interrogated every two to three days, sometimes every day. He was told that if he didn’t cooperate he would never go home. It started when he was moved to Delta, that he began to be moved all the time. They wouldn’t let him settle with anyone. We met him again in Mike block after Delta and had the impression that he was being forced to make admissions, the “force” consisting of offers of benefits if he co-operated and removal of anything that could make life slightly easier if he did not. We were aware for instance that he needed essential medical treatment for a hernia and that he was told he would only get it if he cooperated. We do not know the reason for his appearance when he arrived at Mike block; he had always been proud of his hair, but when he arrived there his head hair was shaved off, although he still had a beard. We were told by some guards that he was taken to Echo after he started cooperating and that in Echo he had access to more basic comforts as a reward, although it is our understanding that he was in Camp Echo i.e. in complete isolation from the summer of 2003 onwards and we presume still there, where the only people he could communicate with would be interrogators. The same guards also told us that he had been taken out of Echo for another operation, but we don’t know if that is correct...

277. Another British national detained at Guantanamo Bay, Martin Mubanga, stated that Mr Hicks had told him about the abuse on board the USS Peleliu (detailed by Mr Hicks’ in his 2007 affidavit, Annexure X), in the following terms:

He was thrown onto the chopper. His hands were in shackles and chains. And basically they was taken to, by helicopter, to a place. They was blindfolded, and there they was beaten and spat upon, and he was abused and assaulted. Things like, "You Aussie kangaroo", and things like that. Yeah, while they were beating and spitting on him and things like that. So, he was called a traitor. And then basically they brought him back blindfolded, so he never saw his...his attackers or his abusers, basically. And then he was brought back to the ship. (Quoted in ABC TV, Four Corners Program Transcript, ‘The Case of David Hicks’, 31 October 2005.)

278. A Pakistani national, Shah Mohammad, who was detained in a cell with Mr Hicks in Afghanistan, stated that US personnel mistreated Mr Hicks as follows: ‘They used to tie him up, they used to tie his feet and his hands and he said with other people, they’d only tie one hand, but with him, they tied both.... When they were doing the interrogations they used to beat David Hicks up a lot’ (quoted in ABC Radio (The World Today), 20 May 2004, available at www.abc.net.au/worldtoday/content/2004/s1112199.htm). Shah Mohammad also said the US videotaped Mr Hicks’ beatings (‘Hicks was abused’, The Age, 21 May 2004).

279. A former detainee, Tarek Dergoul, stated of Mr Hicks: ‘I could see him being dragged by chains that were attached to his feet, and him screaming in agony’ (quoted in ABC TV Lateline Program Transcript, 20 May 2004).

280. Another detainee, Moazzam Begg, stated as follows (ABC TV Lateline Program Transcript, Interview – Moazzam Begg, 31 October 2005):

I think also that seems quite clear that with David Hicks, because he speaks English, because he’s white, because he’s from a Christian or whatever background, um he has been doubly singled out and targeted by the authorities. And even through Hicks’ own mouth when he told me that when he was taken into custody and held ah on one of the ships they were calling him a traitor and they were calling him a turn coat and they singled him out for extra punishment more than the others. …

The most that I remember about what he told me was on the ship that he was beaten and kicked and punched and singled out again specifically because he was white and so when he was sent to Camp X-Ray I think he suffered, ah you know the on-mass punishment that everybody would suffer there, in the notorious

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Camp X-Ray where they were all herded into these little cages that were even worse than the cages that we were later on held in. I wasn’t in Camp X-Ray so I couldn’t comment on exactly what took place there. But from speaking to people like David Hicks who were held at that time it was ah I think the worst treatment that was metered out initially, because there was definitely a feeling, that people are being held here right now and there’s nobody on earth who is ready and willing to do a thing about it. And they absolutely felt that. I think one of the main things was the deprivation of food; the loss of weight; regular storming into the cells, what they called ERFs, or the reaction force teams that would enter and throw people to the ground; people’s faces were beaten and um their clothes were ripped off. And I think this happened to Hicks. I think with David Hicks his clothes were stripped and he was beaten a few times, um and then they started offering him all sorts of deals to cooperate with the government or the United States military against other people to basically admit to anything that they said, you know sign almost a blank document, for which they would give him ah a commuted, or reduced sentence.

281. Mr Hicks’ US military lawyer, Major Mori, stated that: ‘I believe he’s been mistreated and physically assaulted, and, through my investigation, I've confirmed it’ (ABC TV Enough Rope Program, Interview with Major Mori, 14 August 2006).

282. There is ample evidence in the public domain that the treatment of detainees generally at Guantanamo Bay may have involved either torture or other cruel, inhuman or degrading treatment or punishment, and that such techniques were authorised by US government or military lawyers. For example, the US Senate Armed Services Committee Report, Inquiry into the Treatment of Detainees in US Custody, 20 November 2008 (263 pages),5

283. Further, field agents of the US Federal Bureau of Investigation reported more than 211 abusive techniques used on detainees by Department of Defense interrogators at Guantanamo Bay: Mark Denbeaux et al, Torture: Who knew An Analysis of the FBI and Department of Defense Reactions to Harsh Interrogation Methods at Guantanamo, Seton Hall Law Center for Policy and Research, 1 April 2009 (analysis based on US government documents).

found, in Conclusion 13, that: ‘Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there.’ That report documents the extensive abuse at Guantanamo Bay, especially at pages 38-145, and including sexual abuse, strobe lights, loud music, forced shaving, threats of death or disappearance, water boarding, use of dogs, hooding, shackling, sleep disruption or deprivation, exposure to high temperatures, forced standing for long periods, deprivation of sunlight, among others).

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284. The Center for Constitutional Rights has also documented abuse of detainees at Guantanamo Bay in its Report on the Torture and Cruel, Inhuman or Degrading Treatment of Prisoners at Guantanamo Bay, Cuba, July 2006 (55 pages).

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285. Further, the UN Human Rights Committee noted as follows in its Concluding Observations on the United States of America, CCPR/C/USA/CO/3 (15 September 2006) at paras. 14-15:

That report includes direct evidence of protracted solitary confinement, sleep deprivation, extreme temperatures, beatings, threats of rendition to torture, sexual abuse, deprivation of medical care, protracted shackling, and forced injections. That report also documents the abuse of Mr Hicks. See also the evidence of abuse provided by former US military guards at Guantanamo Bay, for example, Testimony of Specialist Brandon Neely, Center for the Study of Human Rights in the Americas, University of California Davis, 4 December 2008.

The Committee notes with concern shortcomings concerning the independence, impartiality and effectiveness of investigations into allegations of torture and cruel, inhuman or degrading treatment or punishment inflicted by United States military and non-military personnel or contract employees, in

5 See http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf. 6 See http://law.shu.edu/publications/guantanamoReports/torture_who_knew_final.pdf. 7 See http://ccrjustice.org/files/Report_ReportOnTorture.pdf.

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detention facilities in Guantanamo Bay, Afghanistan, Iraq, and other overseas locations, and to alleged cases of suspicious death in custody in any of these locations.

The Committee notes with concern that section 1005 (e) of the Detainee Treatment Act bars detainees in Guantanamo Bay from seeking review in case of allegations of ill-treatment or poor conditions of detention....

286. Mr Hicks also alleges that numerous photographs or images were taken of his ill-treatment and have not been publicly released by the US. In late October 2009 US President Obama authorised the Department of Defense to continue to suppress the release of photos of detainee abuse through exemption from US freedom of information legislation. In particular, photographs were taken of Mr Hicks on the following occasions:

(a) When Mr Hicks was detained in Kandahar, Afghanistan, a large number of photos of Mr Hicks were taken by western men in civilian clothing, including while Mr Hicks was naked. More photos were taken of Mr Hicks being processed in the medical tent at Kandahar, a time when a plastic object was violently inserted into Mr Hicks’ anus;

(b) Approximately 14 hours before Mr Hicks boarded a helicopter to be processed on board the USS Peleliu, at an airport in Afghanistan his head was rammed into the concrete several times and he was badly beaten. US personnel took photos of the resulting fresh wounds on the right side of Mr Hicks’ head;

(c) Numerous photos (at least 100 shots) were taken by US personnel when Mr Hicks was taken to an unknown offshore location (somewhere during his transfer from the USS Bataan to a US aircraft), where he was brutalised. These photos show boot marks on his clothing (white dust marks showing on his blue overalls) resulting from beatings, and spittle from US soldiers. At this time one American called Mr Hicks a ‘kangaroo fucker’ and told him that ‘you’re fucking with a New Yorker now.’ On one occasion whilst waiting for the plane to Guantanamo, a male US soldier said ‘Let’s have some fun with him’ then a female soldier sarcastically replied ‘we can’t ... the Geneva Conventions’. Many ‘trophy shots’ of Mr Hicks were taken, for example, of an American posing with a weapon while resting his foot on Mr Hicks’ shoulder.

(d) In this regard, a former Chief Justice of the Australian High Court, Sir Anthony Mason, and leading constitutional lawyer, Professor Geoffrey Lindell, comment that: ‘there is nothing on the public record to show that the US naval authorities were pressed to provide, or that they actually produced, records to show that Hicks had not been taken off the vessel in question at the time alleged by him’: (2008) Melbourne Journal of International Law 155. US naval records are almost certainly likely to exist and corroborate Mr Hicks’ transfers.

(e) Many photos were taken of Mr Hicks on board the aircraft to Guantanamo Bay, including depicting Mr Hicks in stress positions.

287. Much of the above treatment of Hicks constituted, individually or in combination, torture or other cruel, inhuman or degrading treatment or punishment, prohibited by article 7 of the ICCPR, the 1984 Convention against Torture, the 1949 Geneva Conventions and customary international law. Torture is a war crime and an international crime.

288. The European Court of Human Rights, for instance, has previously found that techniques such as forced wall-standing, hooding, subjection to noise, and deprivation of sleep, food and drink may constitute inhuman and degrading treatment, since their used aroused ‘in their victims feelings of fear, anguish, and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance’: Ireland v United Kingdom, ECHR,

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18 January 1978, para. 167; see also Loayza Tamayo case, Inter-American Court of Human Rights, Judgment of 17 September 1997, para. 57.

C.3.3.1. Prolonged, Punitive Solitary Confinement

289. Mr Hicks was detained in solitary confinement for extended periods as follows:

(a) His detention at Camp X-Ray and Camp Delta was in ‘single cell occupancy’, and Mr Hicks was forbidden to talk to other detainees or to physically move for the first two weeks;

(b) At Camp Echo, Mr Hicks was kept in complete isolation continuously for 16 months (around 2003), and denied sunlight for 8 of those months; there were no windows in the pre-fabricated huts, and his hair changed colour (becoming very dark) as a result of the lack of sunlight; guards nicknamed him ‘Casper’ because his skin had become very white and puffy;

(c) At Camp 5, Mr Hicks was kept in isolation for over six months;

(d) At Camp 6, Mr Hicks was held in isolation;

(e) During legal visits to Camp Echo, Mr Hicks was isolated for four or five days at a time, and blindfolded and shackled when transported there in a van);

(f) At Camp Echo, before return to Australia, Mr Hicks was held in isolation for two months.

290. Prolonged solitary confinement can amount to inhuman or degrading treatment in breach of article 7 of the ICCPR: UNHRC, General Comment No. 20, 10 March 1992, para. 6; see also Polay Campos v Peru, Communication No. 577/1994, para. 8.7. The UNHRC has stated that ‘solitary confinement is a harsh penalty with serious psychological consequences and is justifiable only in case of urgent need... [and only] in exceptional circumstances and for limited periods’: Concluding Observations on Denmark (2000), CCPR/CO/70/DNK), para. 12 (concerning article 10(1) of the ICCPR).

291. Similarly, the European Court of Human Rights has found that ‘complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason’: Ocalan v Turkey, ECHR, 12 March 2003, paras. 231-232. Likewise, the Inter-American Court of Human Rights has found that ‘isolation from the outside world produces moral and psychological suffering in any person, [and] places him in a particularly vulnerable position’: Suarez Rosero case, IACHR, Judgment of 12 November 1997, paras. 90-91. Prolonged isolation is ‘cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being’: Velasquez Rodriguez case, IACHR, Judgment of 28 July 1988, para. 156.

292. Prolonged periods of isolation had a profound impact on Mr Hicks’ mental health. Mr Hicks describes experiencing the following feelings as a result: confusion; depression; feelings of despair; inability to concentrate; impaired ability to think and remember; dramatic mood swings; hallucinations; feeling ‘close to losing sanity’; suicidal thoughts and feelings; and extreme anxiety. Mr Hicks is currently receiving mental health counselling in Australia in an attempt to deal with the ongoing psychological consequences of his isolation. There were also no legitimate security or public order reasons that could justify holding Mr Hicks in solitary confinement for such protracted periods.

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C.3.3.2. Impact of Mr Hicks’ Ill-Treatment on the Fairness of his Trial

293. The ill-treatment of Mr Hicks in US custody substantially impaired Mr Hicks’ ability to receive a fair trial. It tainted admissions made by him to US and Australian investigators during interrogation; it pre-disposed him to agreeing, under duress, to a plea bargain admitting his guilt (and purportedly disclaiming that he was ill-treated and requiring him to surrender all claims); and it impaired his ability to prepare an adequate defence, because of the psychological harm inflicted by prolonged detention, substantial parts of which were in solitary confinement. The combination of acute stresses affecting him at Guantanamo severely prejudiced his criminal trial.

294. In his affidavit of 2007 (Annexure X), Mr Hicks details how his own ill-treatment, threats to further ill-treat him, the ill-treatment of other detainees combined to exert profound pressure upon him to cooperate with the US authorities and to provide them with answers which would prevent his further abuse. For example, Mr Hicks states as follows:

(a) ‘All of these incidents led me to commit to doing anything to please the US interrogators in order to avoid any further physical harm’: para. 6(b);

(b) ‘Again, these incidents taught me not to resist either the guards or the interrogators, as I feared that I would suffer such beatings and was very anxious to avoid that’: para. 9;

(c) ‘It put me in such fear that I just knew that I would “cooperate” in any way with the US in order to avoid giving the guards cause to subject me to an IRF’ing’: para. 10;

(d) ‘This regular brutality left me in a heightened state of fear and anxiety about my own safety… I was terrified into doing whatever was necessary to avoid being a victim of it again. The mental stress from living in fear of physical assault that could happen without provocation was very difficult…. Early on, I realised that if I pleased the interrogators, I could avoid the physical abuse’: para. 14;

(e) [After being shown a photo of Australian Mamdouh Habib’s bruised face and threatened with rendition to Egypt]: ‘this reinforced my intention to say what the interrogators wanted to hear in order to avoid such physical abuse’: para. 15;

(f) ‘It was clear to me from all that I was experiencing and witnessing that the key to my physical safety was interacting with my interrogators’: para. 23;

(g) ‘The clear message was that I had better keep talking or I would end up back in isolation’: para. 25;

(h) ‘Telling the interrogators what they wanted to hear became the only source of obtaining any relief from the harsh treatment and conditions’: para. 27;

(i) ‘Exposure to these techniques made me fear their use upon myself, and worked to keep me interacting with the interrogators in an effort to avoid any harsh interrogations’: para. 29;

(j) ‘I felt that I had to ensure that whatever I did pleased the interrogators to keep from being physically abused, placed in isolation, and remaining at Guantanamo Bay for the rest of my life’: para. 31;

(k) ‘I was led to believe that if I displeased the British interrogators, then it would displease the US interrogators as well’: para. 32;

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(l) ‘Looking back, I understand I was completely at the mercy of that psychological manipulation in this controlled environment’: para. 32;

(m) ‘I felt like I was being intentionally isolated to break my will to resist my upcoming trial’: para. 34.

C.3.3.3. Continuing Injuries to Mr Hicks as a result of his Ill-Treatment

295. Mr Hicks suffered significant physical injuries due to his ill-treatment in US custody (many of which require ongoing medical treatment), including the following:

a) A fractured right hand, resulting in ongoing arthritic pain; difficulties in performing duties at work due to the pain; and aggravated pain during cold temperatures;

b) Back injury, including two herniated discs (active facet joint arthropathy at L4/5, L3/4, and L2/3) from being chained to the floor and being locked in a small cell for so many years. These injuries make it difficult for him to walk on some days and impair his ability to work. Mr Hicks requires ongoing regular osteopathic treatment of it; takes high strength painkillers every day for the constant pain; has had to have cortisone injections to treat it; and may require surgery in future;

c) Jaw injury, due to heavy blows in the face which dislocated his jaw. Mr Hicks suffers ongoing pain, and his jaw cracks into place when he opens his mouth widely. He requires ongoing osteopathic treatment;

d) Stress-fractured feet, caused by Mr Hicks attempting to exercise on the concrete in the inadequate ‘rec’ yards at Guantanamo Bay. The space for exercise was so small that Mr Hicks ran in small circles and fractured his feet, being unable to walk for periods;

e) Eye injuries and affected vision, caused by the ‘diamond wire’ in Camp X-Ray, Delta, and Echo. One of Mr Hicks’ eyes deteriorated very badly and he consequently suffered from severe headaches, which worsened after Mr Hicks was issued spectacles. Mr Hicks believes he was deliberately provided with spectacles with an incorrect prescription. Mr Hicks continues to have difficulties as a result of continuing blinking;

f) Numerous kidney stones, which were common among detainees at Guantanamo Bay as a result of drinking desalinated water for so many years. As a result Mr Hicks has had to take medical leave from work in the past and suffered many days of intense pain. He has also had to have surgery for them. Mr Hicks’ family has no medical history of kidney stones. He requires ongoing treatment;

g) Serious tooth decay and gum problems, as a result of being unable to brush his teeth. Mr Hicks has already had to have one tooth extracted and another two teeth are fractured. This requires ongoing, expensive dental treatment;

h) Painful lumps on his chest, discovered in September or October 2003 and which had to be removed by surgery. Mr Hicks had just lost an large amount of weight due to stress and lack of food in detention, and was advised that hormonal changes due to severe stress may have caused them;

i) A double inguinal hernia in August 2002, discovered a few months after Mr Hicks was severely beaten, and requiring surgery. Mr Hicks’ family has no medical history of this condition. Other detainees also suffered from hernias.

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296. Mr Hicks was not affected by the above injuries prior to his detention by the US. Under general international law, it is well accepted that a State is responsible for injury to an alien taken into its custody in circumstances where the State fails to account for such injury: see Quintanilla (Mexico) v US (1926) 4 EIAA 101.

297. While a US naval investigation concluded that Mr Hicks had not been ill-treated in US custody, the US has failed to account for the above injuries caused to Mr Hicks which did not exist prior to entering US custody. No other plausible explanation has been offered by the US for the existence of these injuries and there was no evidence, for instance, that they were caused by other detainees or were self-inflicted.

C.3.4. Mr Hicks’ Status and Eligibility for Trial Remain in Doubt

298. There is a further critical defect underlying the US prosecution of Mr Hicks: his classification as an unlawful combatant, which triggered his liability for prosecution under the MCA (which only prosecutes ‘alien enemy unlawful combatants’: MCA, s. 948(b)(a)). Mr Hicks’ trial was consequent to his designation as an alien enemy unlawful combatant by a Combatant Status Review Tribunal (CSRT) on 30 September 2004 (Annexure H), established pursuant to an executive order by the Deputy Secretary of Defense on 7 July 2004 (Annexure G).

299. If the CSRT process was seriously flawed, then there can be no confidence or certainty that Mr Hicks was eligible for trial under the MCA, providing a further basis of the unlawfulness of Mr Hicks’ trial and conviction. In addition, if the CSRT does not meet the requirement (in article 5 of the 1949 Third Geneva Convention) of a ‘competent tribunal’ for determining entitlement to POW status where a person’s status is in doubt (as it was in Mr Hicks’ case) upon capture in an international armed conflict, then Mr Hicks remained entitled to presumptive POW status until his status was properly determined by a competent tribunal. As a presumptive POW he could certainly not be tried for conduct which attracts combatant immunity (which is the substance of the charge of ‘providing material support for terrorism’).

C.3.4.1. Mr Hicks’ status was not properly assessed by a competent tribunal

300. The UN Human Rights Committee has previously found that the CSRT ‘may not offer adequate safeguards of due process’, in particular for lack of independence from the executive, restrictions on access to evidence and witnesses, and the admissibility of evidence obtained coercively: UN Human Rights Committee, Concluding Observations: United States of America, 15 September 2006, CCPR/C/USA/CO/3, para. 18. The UN Special Rapporteur on Promotion and Protection of Human Rights While Countering Terrorism, Martin Scheinin, also reported on the CSRT as follows in his Preliminary Findings on Visit to the United States, 29 May 2007:

There are serious concerns about the ability of detainees at Guantánamo Bay to seek a judicial determination of their status, and of their continuing detention. ... As confirmed by the United States Department of Defense, these are administrative processes, rather than judicial ones. Detainees are not provided with a lawyer during the course of the Combatant Status Review Tribunal hearing. Even more problematic is the fact that decisions of the Combatant Status Review Tribunal and Administrative Review Board are subject to limited judicial review only, meaning that any reference to ordinary courts is limited to the question of whether these bodies acted in accordance with applicable rules of procedure. The most that a reviewing court may do is to order reconsideration of a decision, not release. These restrictions result in non-compliance with the International Covenant on Civil and Political Rights (ICCPR), which prohibits arbitrary detention (Article 9 (1)), requires court review of any form of

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detention and entailing a possibility of release (Article 9 (4)), and provides a right to a fair trial within reasonable time for anyone held as a criminal suspect (Article 9 (3) and Article 14 (3)).

301. The CSRT was only empowered to determine whether Mr Hicks was an ‘enemy combatant’ and not to determine what was his actual status under the 1949 Geneva Conventions: Hamdan v Rumsfeld, Civil Action No. 04-1519 (JR), US District Court for the District of Columbia, at 18. In addition, there was a ‘rebuttable presumption’ that the detainee was an enemy combatant (rather than the more favourable presumption of POW status required by the article 5 of the Fourth Geneva Convention); hearings could be closed to the public; the decision-makers were US military personnel rather than neutral and independent; and the US reserved the right to alter the nature and procedures of the tribunals by executive fiat.

302. In the In re Guantanamo Detainee Cases (355 F.Supp.2d 443 (DDC 2005)), Judge Green found that the CSRT procedures denied (constitutionally protected) due process because the affected person was denied access to classified information and to the assistance of a lawyer in challenging evidence on their behalf, thus depriving the person of ‘sufficient notice of the factual basis for which he is being detained and with a fair opportunity to rebut the government's evidence supporting the determination that he is an “enemy combatant”’ (at 76). It was also held that some CSRT decisions may have been tainted by an overly broad definition of ‘enemy combatant’ (at 88) and by evidence obtained by torture or coercion.

303. Mr Hicks refused to participate in his CSRT hearing because he was denied legal representation and he did not believe that the CSRT hearing would be fair.

C.3.4.2. Mr Hicks could not invoke rights to habeas corpus, or under the Geneva Conventions

304. The unfairness of the CSRT process was compounded by Mr Hicks’ inability to invoke the 1949 Geneva Conventions themselves as a source of rights in military commission proceedings (MCA, s. 948b(g)), in circumstances where the commissions did not conform to those Conventions.

305. In addition, the removal of habeas corpus rights under section 7 of the MCA, which denies the jurisdiction of US civilian courts to hear habeas corpus applications, rendered it difficult for Mr Hicks to seek review of the accuracy of his CSRT determination.

306. In this respect article 9(4) of the ICCPR requires the full protection of judicial scrutiny even in cases of military detention: UNHRC, Vuolanne v Finland (265/87), para. 9.6; De Jonge, Baljet and Van den Brink v Netherlands (1986) 8 EHRR 20; Duinhoff v Netherlands (1991) 13 EHRR 478; Van der Sluijs, Zuiderveld and Klappe v Netherlands (1991) 13 EHRR 461.

307. The non-judicial nature of the CSRT and the removal of habeas corpus rights by the MCA are contrary to article 9(4) of the ICCPR, which requires access to review of the legality of detention by an independent ‘court’. As the UN Human Rights Committee stated in General Comment No. 8 (1982):

... the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention... Also if so-called preventative detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), information of the reasons must be given (para. 2) and court control of the detention must be available (para. 4), as well as compensation in the case of breach (para. 5)...

308. The right to challenge the lawfulness of detention applies to all persons deprived of their liberty in non-international armed conflict: ICRC Customary Law Study, Vol. 1, p. 352. It

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cannot be suspended in times of public emergency: UN Human Rights Committee, Concluding observations on Israel, UN Doc. CCPR/C/79/Add.93, 18 August 1998, at para. 21; Inter-American Court of Human Rights, Habeas Corpus case, Advisory Opinion, 30 January 1987, para. 42; Inter-American Court of Human Rights, Judicial Guarantees case, Advisory Opinion, 6 October 1987, para. 41(1); see also ICRC Customary Law Study, Vol. 2, Part 2, p. 2361.

309. Review must be undertaken by a court which is independent of the executive body responsible for the detention: ECtHR, Lawless case, Judgment (Merits), 1 July 1961, para. 14; African Commission on Human and Peoples’ Rights, Communications Nos. 48/90, 50/91, 52/91 and 89/93. For the reasons outlined above, the CSRT was not sufficiently independent of the US military to satisfy the requirements of article 9.

310. There was considerable doubt about Mr Hicks’ status, not least due to the scarcity of intelligence and evidence available as to his activities in the relatively inaccessible and rapidly moving Afghan theatre of conflict in which he was captured. In Rasul v Bush, 215 F. Supp. 2d 55 (DDC 2002), for instance, it was suggested that Mr Hicks ‘had joined the Taliban’ rather than Al Qaeda. The evidence presented by the US at Mr Hicks’ CSRT hearing itself stated that Mr Hicks was an ‘Al-Qaida fighter... [who] affiliated himself with the Taliban’: CSRT, Summary of Evidence for Combatant Status Review Tribunal – HICKS, David Matthew, 7 September 2004, para. 3(a)(1) (Annexure H). As noted earlier, Mr Hicks himself has always maintained that he was, at one time part, of an irregular force of foreign volunteer fighters and which was under the command of the Taliban. Further, at the time of his capture, Mr Hicks was fleeing from the battlefield and did not constitute a continuing security risk.

C.3.4.3. Mr Hicks’ pre-trial custody at Guantanamo Bay was unlawful because the charge was retrospective

311. Given the retroactive nature of the MCA offence charged against Mr Hicks, once charges had been brought against him, the protracted time he spent in pre-trial custody (between charge in 2004 and conviction in 2007) was arguably not justified under international law and amounted to arbitrary detention by the US, contrary to article 9 of the ICCPR. His detention on the basis of a retrospective charge renders his pre-trial detention unlawful, at least for the period from the commencement of the criminal charge process and to the extent that his detention was purportedly justified as an incident of the criminal process.

312. The decision to charge Mr Hicks with a criminal offence must have had the legal effect of suspending any other legal basis for Mr Hicks’ continuing detention (such as any right of security, preventive or administrative detention under US law, assuming it existed in international humanitarian law and was permitted by human rights law in non-international conflicts). Otherwise an acquittal could potentially have the same practical effect on an accused as a conviction: the continuation of potentially indefinite detention, regardless of the outcome of the criminal trial.

313. Australia itself took the view that Mr Hicks must be prosecuted or released, and is good evidence of prevailing State practice on the issue:

(a) ‘The Australian Government has consistently made representations to US authorities that Australians detained in Guantanamo Bay should be prosecuted or released’: Senator Coonan, Question on Notice No. 1607, ‘Guantanamo Bay’, 30 March 2006;

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(b) Minister for Foreign Affairs Alexander Downer, Transcript of interview with ABC 702, 14 December 2005 (‘in the case of Habib I made it perfectly clear to the Americans that they couldn’t just hold him indefinitely. They had to charge him at some point, or release him... Now in the case of Hicks it was the same. Now they did charge Hicks’).

C.3.4.4. Mr Hicks’ pre-trial custody at Guantanamo Bay was also unlawful because the duration of detention was too long

314. The length of Mr Hicks’ pre-trial detention additionally rendered it unlawful. Freedom from arbitrary detention implies that, ordinarily, a person who has been charged with a criminal offence should be released unless detention pending trial can be justified. The European Court of Human Rights holds that ‘relevant and sufficient’ reasons are required to justify ongoing detention: Punzelt v Czech Republic (2001) 33 EHRR 49, at para. 73 (concerning article 5(3) of the ECHR). For present purposes, it is accepted that a suspicion of serious terrorist crimes may provide a relevant and sufficient reason not to release a person who has been charged pending trial.

315. The lawful continuation of pre-trial detention requires, however, ‘that there must be special diligence in the conduct of the prosecution of the cases concerning such persons’: Stögmüller v Austria (1969) 1 EHRR 155 at para. 5. The Court elaborated as follows in Punzelt v Czech Republic (2001) 33 EHRR 49, at para. 73:

The court reiterates that the reasonableness of the length of detention must be assessed in each case according to its special features. Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty .... The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The court must then establish whether the other grounds given by the judicial authorities continues to justify the deprivation of liberty. Where such grounds were ‘relevant’ and ‘sufficient’, the court must also ascertain whether the competent national authorities displayed ‘special diligence’ in the conduct of the proceedings. [Emphasis added]

316. The UK House of Lords has added that, in the assessment of whether diligence has been exercised, ‘the prosecution is to be judged by realistic, not impossible, standards’ and it must be shown that ‘its lack of due diligence and expedition has in fact delayed the trial date’: O (FC) (Appellant) v Crown Court at Harrow (Respondents) [2006] UKHL 42 at para. 57.

317. The US authorities at Guantanamo Bay failed to exercise the degree of diligence required in bringing Mr Hicks speedily to trial. Section C.2.6 above of this communication particularizes the lack of special diligence by the US authorities in bringing Mr Hicks to trial and is reiterated here. The US’ lack of special diligence renders Mr Hicks’ post-charge, pre-trial detention unlawful.

C.3.4.5. Mr Hicks pre-charge detention at Guantanamo was unlawful

318. There is no express treaty power in international humanitarian law to detain ‘unlawful combatants’ in non-international armed conflicts (unlike the security power of administrative detention enjoyed by Occupying Powers in international conflicts under the Fourth Geneva Convention). Nor does international humanitarian law prohibit the administrative detention of civilians. Rather, it falls to national law, as limited by international human rights law (particularly freedom from arbitrary detention), to authorise any security or administrative

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detention of civilians: Gabor Rona, ‘An Appraisal of US Practice Relating to “Enemy Combatants”’ (2007) Yearbook of International Humanitarian Law 232 at 240-41.8

319. The US Government relies upon the US Congress’s Authorization for Use of Military Force of 18 September 2001, Public Law 107-40 [S. J. RES. 23] 115 Stat. 224 (2001) (‘AUMF’) (Annexure B) for the security detention of persons such as Mr Hicks detained at Guantanamo Bay: see, for example, Respondent’s Memorandum Regarding the Government’s Detention Authority Relative to Persons Detained at Guantanamo Bay, In Re: Guantanamo Bay Litigation, Misc. No. 08-442 (TFH), US District Court for Columbia, 13 March 2009. Section 2(a) of the AUMF provides:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

320. The US asserts that the authorization to use force against such targets necessarily encompasses the lesser authority to detain persons. The US did not allege that Mr Hicks had any knowledge of, or involvement in, the terrorist attacks of 11 September 2001. However, the US asserts (Respondent’s Brief, above) that:

... under the AUMF, the President has authority to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks. The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.

321. Article 9 of the ICCPR applies to all forms of detention, including preventive detention: UNHCR, General Comment No. 8, paras 1 and 4. It must be ‘based on grounds and procedures established by law’: infra, para. 4. Detention must be ‘specifically authorised and sufficiently circumscribed by law’: Sarah Joseph et al, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, Oxford University Press, 2004), 308. A ‘vague formulation’ in a law empowering detention ‘gives too generous an opportunity’ to the authorities to detain and such broad discretion does not adequately guard against arbitrariness: UNHRC, Concluding Observations: Trinidad and Tobago, para. 16.

322. It is doubtful whether a very wide and general authorization in US law ‘to use all necessary and appropriate force’ (AUMF, above) is a sufficiently clear and specific basis under national law under which to administratively detain civilians in a non-international armed conflict. In the absence of express authority to detain in international humanitarian law itself, any national law authority to detain should be sufficiently clear, precise and predictable so that a person can prospectively know their liability for detention. Freedom from arbitrary deprivation of liberty is understood as one of the most fundamental freedoms and any legal

8 Cf Goodman, who suggests that State practice establishes a power under IHL to detain civilians in non-international conflict and which roughly follows the rules for international conflicts: ‘IHL requires a specific determination that each civilian who is detained poses a threat to the security of the state’, whether because of direct or indirect participation in hostilities: Ryan Goodman, ‘The Detention of Civilians in Armed Conflict’ (2009) 103 American Journal of International Law 48 at 53, citing the Inter-American Commission on Human Rights, Third Special Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, doc. 9, rev. 1, 26 February 1999. Practice to that effect is, however, almost non-existent; Goodman cites a single report of a human rights body, while the more authoritative ICRC study of customary law finds no such practice. The better view is that national law may authorise preventive detention as long as it is compatible with the ICCPR.

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interference with it must be both explicitly expressed and clear in scope, so that the freedom is not abused by arbitrary, unstructured executive action.

323. Such a requirement is particularly pressing when, as in the case of Guantanamo Bay, detention is administrative (rather than consequent to a criminal conviction following the guarantees of a fair trial), removed from ordinary judicial oversight, potentially protracted, taking place in a remote and inaccessible location, and limited to non-citizens.

324. Further, in ‘transnational’ non-international armed conflicts, there would ordinarily be no expectation by any person in Afghanistan that they would be subject to the detention powers under United States domestic law, as opposed to the laws of the local State. The extraterritorial application of such law is not ordinarily foreseeable and as such, such foreign law must be explicit and clear so as not to endanger the freedoms of people in Afghanistan.

325. The authorisation to detain under the AUMF is also limited to those involved somehow in the terrorist acts of 11 September 2001. At no stage has the United States or Australia ever alleged that Mr Hicks was involved in, or knew in advance of, those attacks. Mr Hicks has never admitted as such and has always denied any knowledge of or involvement in those attacks: Australian Federal Police Record of Interview with David Hicks, 14 May 2002, p. 45 (Annexure CC). Mr Hicks in fact expressed his opposition to those attacks when interviewed by the Australian Federal Police in 2002, at p. 45: ‘Of course it’s horrific, It’s not Islam, is it?’. There is thus serious doubt about the lawfulness of Mr Hicks’ detention under US law, given that there is no evidence to suggest that he fell within the material scope of the US law.

326. As a civilian detained in a non-international armed conflict, Mr Hicks should have been promptly charged with a valid criminal offence, or released if there was insufficient evidence of his criminal conduct.

327. Ordinarily a person detained under criminal investigation should not be held without charge for any longer than, for instance, seven days under article 9(2) of the ICCPR: UNHRC, Grant v Jamaica (597/94), para. 8.1. Even a week is very generous, and many legal systems limit pre-charge detention to between 4 and 12 hours. Even where pre-charge detention is extended in under anti-terrorism laws, periods of detention as still heavily circumscribed, usually allowing only for a matter of days, and certainly not months or years.

C.3.4.6. Any security detention of Mr Hicks should have been temporally limited to the duration of the armed conflict

328. Even if a period of preventive or administration detention of Mr Hicks were lawful under international humanitarian law or US domestic law, by mid-2003, by the US Government’s own admission there was arguably no longer violence of sufficient intensity in Afghanistan to constitute a continuing non-international armed conflict, such as would permit the continuing detention of dangerous civilians. For instance:

(a) US Secretary of Defense Rumsfeld stated that on 1 May 2003 that ‘we’re at a point where we clearly have moved from major combat activity to a period of stability and stabilization and reconstruction activities. The bulk of this country today is permissive, it’s secure’: ‘Rumsfeld: Major combat over in Afghanistan’, CNN, 1 May 2003 (Joint Press Conference with Afghan President Hamid Karzai, Washington DC); and

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(b) The Chairman of the US Joint Chiefs of Staff stated in mid-2004 that ‘[s]ecurity wise, the al Qaeda threat is virtually nonexistent in the country: Armed Forces Information Service, ‘Joint Chiefs Chairman Notes Improvement In Afghanistan’, 16 August 2004.

C.4. Humanitarian and Policy Considerations: Articles 9 and 15

329. It is accepted that prisoner transfer arrangements have, inter alia, a humanitarian purpose – that is, to enable nationals convicted abroad to serve their sentence in prison in their own country, closer to family, friends and one’s own community. It also enables Australians to be released from prisons in foreign countries which do not meet minimum international standards of detention, and so that they may serve their sentences in Australian prisons which are of a higher standard. Australia has prisoner transfer arrangements with numerous States and Australia cannot be expected to make prisoner transfers to Australia contingent upon perfect compliance with human rights law (including non-retroactivity and a fair trial) in every foreign proceeding.

330. Yet, it would be inaccurate to suggest that Australia was acting predominantly for a humanitarian purpose in pursuing the prisoner transfer of Mr Hicks to Australia, such as to somehow excuse Australia from its retrospective punishment and arbitrary detention of Mr Hicks. Australia did not face a ‘lesser of two evils’ choice between leaving Mr Hicks at Guantanamo Bay to serve his prison sentence or bringing home to serve his sentence in Australia. Rather, Australia could have avoided breaching its human rights obligations towards Mr Hicks and simultaneously achieved its humanitarian purpose of freeing him from Guantanamo Bay by following the different course of action pursued by the United Kingdom.

331. The British Government insisted to the US that British nationals must not be tried before US military commissions because of the manifest unfairness of that process: UK Foreign Secretary Jack Straw, ‘Foreign Secretary Statement on Return of British Detainees’, Press Release, 19 February 2004; UK Attorney-General Lord Goldsmith, Speech to the Royal United Services Institute, London, 10 May 2006.9

332. With the precedent set by Britain, and Australia enjoying a comparably close relationship as a US ally, there is no reason to believe that the US would not have acceded to a similar request from Australia for the release of Mr Hicks from Guantanamo Bay. During the period of Mr Hicks’ detention at Guantanamo Bay, senior Australian Government officials repeatedly stressed the closeness of Australia’s relationship with the United States and Australia’s capacity to secure outcomes, as is illustrated by the following statements:

Britain thereby secured the release of all its nationals (five Britons in February 2004 and four in January 2005), without subjection to an unfair trial, from Guantanamo Bay.

(a) Australian Minister for Foreign Affairs Alexander Downer, Transcript of interview with CNN International Television, 4 December 2003: ‘...we have a close relationship with the Americans. We make no secret of that. And we’re able to talk to them about issues that might be of concern to us. And we can get good outcomes because we work closely with them.’

(b) Australian Minister for Foreign Affairs Alexander Downer, Doorstop Interview, Melbourne, 24 July 2003: ‘Britain and Australia have particularly close relations with the Americans, it gives us very good access there. It gives us the opportunity to try to persuade the Americans of improvements we’d like to see in the procedures and they’ve been pretty responsible.’

(c) Secretary of the Australian Attorney-General’s Department, Mr Robert Cornall, Questions in the Senate Legal and Constitutional Legislation Committee, Estimates, 16 February 2004: ‘We have an agreement

9 See http://news.bbc.co.uk/1/hi/uk_politics/4760031.stm.

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with the United States that, if the outcome negotiated by the British in respect of their detainees is more favourable than the outcome we have negotiated, then the benefit of those additional negotiations should flow through to the Australian detainees as well.’

333. The Australian Government reportedly made various representations over time to the US Government which sought to improve the procedures and protections available to Mr Hicks before US military commissions. The Australian Government emphasized the success and influence of its representations to the US on the matter of trial standards, as the following statements illustrate:

(a) Joint News Release, Philip Ruddock, Attorney-General and Alexander Downer, Minister for Foreign Affairs, ‘Government Accepts Military Commissions for Guantanamo Bay Detainees’, 25 November 2003: ‘The Government has reached an understanding with the US concerning procedures which would apply to possible military commission trials of the two Australians detained at Guantanamo Bay, David Hicks and Mamdouh Habib.... As part of the Government’s extensive discussions with the US concerning military commission processes.... the US made significant commitments on key issues, including... [five commitments are listed].... The Gov. has since continued its high-level dialogue with the US. As a result, the US has made further important commitments, including... [another five commitments are listed].... The US commitments are in addition to rights which would be afforded to Mr Hicks and Mr Habib under military commission rules...’.

(b) Joint Media Release, Alexander Downer, Minister for Foreign Affairs, and Daryl Williams, Attorney-General, ‘Delegation Concludes Successful Talks on David Hicks’, 24 July 2003: ‘As a result of discussions, the US has made several significant commitments on key issues of concern to the Government: [lists seven commitments]...’

334. Australia consequently had the capacity to influence the US Government and, as the British experience illustrates, the US was willing to be so influenced. Australia secured the release of the only other Australian detained at Guantanamo Bay, Mr Mamdouh Habib. Yet, Australia did not make strong protests or representations to the US Government to object either to the retroactivity of the charge laid against Mr Hicks or to the unfairness of the military commission trial procedures as ultimately applied to Mr Hicks. To the contrary, numerous public statements by senior Australian officials expressed support for Mr Hicks’ prosecution and trial under that system. To provide some illustrative examples:

(a) Joint Media Release, Alexander Downer, Minister for Foreign Affairs, and Daryl Williams, Attorney-General, ‘David Hicks Eligible for US Military Commission Trial’, 21 August, 2003: ‘The Government has held detailed discussions with the US concerning any possible trials and is confident that any Military Commission trials will be fair and transparent. We have made every effort to ensure procedures for any possible trial will provide the fundamental guarantees of normal criminal processes. The US has indicated that those to be tried before a Military Commission will be afforded a range of legal rights outlined in the Military Commission Orders and Instructions designed to allow for a fair trial.’

(b) Joint News Release, Philip Ruddock, Attorney-General and Alexander Downer, Minister for Foreign Affairs, ‘Government Accepts Military Commissions for Guantanamo Bay Detainees’: ‘...we accept Mr Hicks and Mr Habib could be tried by the US, providing that their trials are fair and transparent while protecting security interests. The Government believes that military commission processes will fulfil these criteria.’

(c) Ministerial Statement, ‘Government Accepts Military Commissions for Guantanamo Bay Detainees’ (Attorney-General), 25 November 2003: ‘I would remind the honourable members that the rules governing the military commission trials provide fundamental guarantees for the accused. These guarantees are similar to those found in our own criminal procedures and in fact they are the basis upon which our criminal justice system is founded.’

(d) Philip Ruddock, Attorney-General, Press Conference Transcript, 22 January 2004: ‘we are satisfied that... the trial will be a fair one.... I'm convinced that the trial under the guidelines that have been outlined will be fair’.

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(e) Chris Ellison, Minister for Justice and Customs, Doorstop Interview, Embassy of Australia, Washington, 23 July 2003: ‘We have every faith in the American judicial system...’.

(f) Alexander Downer, Minister for Foreign Affairs, Transcript of interview with Sky TV, 30 June 2004: ‘...in the end they satisfied us with the structure of the Military Commission’.

(g) Philip Ruddock, Attorney-General, ‘Legal Responses to the Threats of Terrorism’, Anglo-Australasian Lawyers Society, Sydney, 22 July 2004: ‘The government considers that the military commission process recognises fundamental legal principles. The commissions also provide the basic protections found in the legal systems of common law countries.’

(h) Alexander Downer, Minister for Foreign Affairs, Doorstop Interview, Adelaide, 25 August 2004: ‘I am satisfied that the Military Commission procedure will be fair’.

(i) Chris Ellison, Minister of Justice and Customs, Doorstop Interview, 1 August 2005: ‘there are adequate safeguards, we believe, in the military commission process to guarantee a fair trial’.

335. The Australian Government defended its difference in approach from the United Kingdom by arguing that that Mr Hicks had already been charged, whereas the repatriated British nationals had not been charged (see Australian Minister for Justice, Senator Ellison, questioned in Senate Legal and Constitutional Legislation Committee, Estimates, 14 February 2005).

336. However, that no British national was charged is precisely due to British objections that the trial procedures were not fair and could not be made sufficiently fair, and in that context, the British objection was to charge and trial at all. That view is supported by the British Government itself. As the UK Attorney-General Lord Goldsmith explained in a speech at the Royal United Services Institute in London on 10 May 2006:

... there are certain principles on which there can be no compromise. Fair trial is one of those - which is the reason we in the UK were unable to accept that the US military tribunals proposed for those detained at Guantanamo Bay offered sufficient guarantees of a fair trial in accordance with international standards. As you may know having spent time negotiating with counterparts in the United States I was unable to accept that the procedures proposed for the military tribunals were adequate to ensure a fair trial. I am pleased to note that, following this decision, all the British detainees were returned to the UK. [Emphasis added]

C.5. Statements by Australian Government Officials as to the Fairness of Mr Hicks’ Trial

337. It is noteworthy that current senior members of the Australian Government previously and repeatedly expressed their grave doubts about the fairness of the US military commissions as they applied to Mr Hicks:

(a) Kevin Rudd, immediate past Australian Prime Minister, then Opposition Leader, quoted in The Age newspaper, ‘Leader pledges to bring Hicks home quickly’, 14 December 2006: ‘He will not be given recourse to a fair trial under the US military commission, however it is constituted. There will be no presumption of innocence. The evidentiary tests are poor. And therefore this is a question of basic civil rights and civil liberties for all of us.’

(b) Kevin Rudd, then Shadow Minister for Foreign Affairs, Doorstop Interview, Perth, 2 August 2005: ‘Look, we now have Australian military lawyers on top of US military prosecutors saying that US military tribunals are not providing fair trials. When are Mr Downer, Mr Howard and Mr Ruddock going to finally accept the reality that this is simply unfair? We have a zero tolerance attitude to terrorism but like all Australians we have a view that every Australian deserves a fair trial. When the American military prosecutors are now saying that US military tribunal are unfair, that it is fraudulent, and that it is rigged, and you have Australian military lawyers raising doubts as well, it is time for Mr Howard to finally accept the reality that enough is enough. This is unacceptable, it is not a fair trial, and it is time that these individuals were provided with a fair trial.’

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(c) Kevin Rudd, then Leader of the Opposition, quoted in ‘Retrospective law all right for Hicks: Howard’, Sydney Morning Herald, 5 February 2007: ‘I have been a consistent defender of Mr Hicks’s legal rights and his human rights, and this US military commission is itself a travesty of justice’.

(d) Robert McClelland, now Australian Attorney General, then Shadow Attorney-General, Press Release: ‘Howard let’s US Military Commission devalue our citizenship’, 9 July 2003: ‘The limited protections announced by the US Government cannot disguise how alien the practices of military commissions are to Australians’ expectations of a fair trial under our own criminal justice system. The processes are chalk and cheese.’

(e) Robert McClelland, now Australian Attorney General, then Shadow Minister for Foreign Affairs, Speech to the Lowy Institute for International Policy, Sydney: ‘The Federal Government’s tolerance of the proposed military commission trial of David Hicks is a dangerous abandonment of international human rights, the laws of armed conflict and domestic criminal law. Adequate provision exists under international law to prosecute both regular enemy combatants under the laws of armed conflict and those who do not come under this definition for unlawful acts of belligerence. By supporting the Guantanamo detention regime, the Howard Government has demonstrated how its blind loyalty to the policies of the current United States administration has been placed above its defence of the right of a citizen to due process. This is particularly short sighted given the seriousness of the charges and hence the need to be scrupulous in ensuring fair process so that any potential penalty has legitimacy. On any criteria, the Howard Government has tarnished our international reputation as a “responsible member of the international community”’.

C.6. Remedies Sought in respect of article 15

338. Australia should be urged to:

(a) Acknowledge that Mr Hicks was unlawfully detained in an Australian prison;

(b) Apologise to Mr Hicks for his unlawful detention; and

(c) Compensate Mr Hicks for the period he spent in unlawful detention.

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D. By entering into a prisoner exchange agreement with the US, Australia adopted as its own a foreign Plea Agreement, and aided and assisted the US in that agreement, which violates articles 2, 7, 14, 17 and 19 of the ICCPR

D.1. Outline of Mr Hicks’ Plea Agreement

339. Hicks signed a pre-trial Plea Agreement (Annexure J) which was approved and accepted by the Convening Authority of the US Military Commission on 26 March 2007. Australia was not a direct party to the Plea Agreement, which is an instrument of US criminal law. Among other things, by that Plea Agreement Mr Hicks purportedly agreed not to challenge his conviction (para. 4):

… I voluntarily and expressly waive all rights to appeal or collaterally attack my conviction, sentence, or any other matter relating to this prosecution whether such a right to appeal or collateral attack arises under the Military Commissions Act of 2006, or any other provision of United States or Australian law. In addition, I voluntarily and expressly agree not to make, participate in, or support any claim, and not to undertake, participate in, or support any litigation, in any forum against the United States or any of its officials, whether uniformed or civilian, in their personal or official capacities with regard to my capture, treatment, detention, or prosecution.

340. The Plea Agreement also explicitly requires Hicks to:

(a) Fully cooperate with Australian law enforcement and intelligence authorities and any further judicial proceedings (para. 2(c));

(b) Assign to the Australian government any proceeds of his alleged crime (para. 2(d));

(c) Not speak publicly about his conduct, capture or detention for a period of one year (para. 2(b));

(d) Agree that he was not tortured or illegally treated and to surrender any such claims (para. 5(i));

(e) Agree that he was an ‘alien unlawful enemy combatant’ who was lawfully dealt with under the law of war (paras 5(h) and (j)); and

(f) Face possible consequences under Australian law for non-compliance, by stipulating that any failure to fully cooperate with Australian or US authorities may delay his release from confinement or custody under applicable provisions of Australian law (para. 5(g)).

D.2. The compatibility of plea agreements with human rights law

341. The right ‘not to be compelled to testify’ against oneself ‘or to ‘confess guilt’ in article 14(3)(g) of the ICCPR necessarily prohibits guilty pleas that are tainted by compulsion. Such protection is elaborated expressly in article 8(2)(g) of the American Convention on Human Rights in the following terms: ‘a confession of guilt by the accused shall be valid only if it is made without coercion of any kind’ but equally reflects the scope of the ICCPR right.

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342. The UN Human Rights Committee has previously indicated that the right includes ‘the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt’: Berry v Jamaica, Communication No. 330/1988, Views of 7 April 1994.

343. While the right of access to a court implied in the right to a fair trial may be waived in criminal cases, for instance, where an accused pleads guilty prior to trial, the waiver must be subject to a high degree of ‘vigilance’ to ensure that there is an ‘[a]bsence of constraint’: Deweer v Belgium (1980) 2 EHRR 439 at para. 49 (where the government’s threat to close the defendant’s shop if he proceeded to trial, rather than enter a plea and pay a fine, caused ‘serious prejudice’ or ‘serious and immediate peril’ to the defendant and deprived him of a fair trial).

344. In the international criminal law context, the International Criminal Tribunal for the former Yugoslavia has set out the minimum pre-conditions of a guilty plea (Prosecutor v Erdemovic (Appeals Chamber Decision), IT-96-22-A, 7 October 1997 (Joint Separate Opinion of Judge McDonald and Judge Vohrah), para. 8):

(a) The guilty plea must be voluntary. It must be made by an accused who is mentally fit to understand the consequences of pleading guilty and who is not affected by any threats, inducements or promises.

(b) The guilty plea must be informed, that is, the accused must understand the nature of the charges against him and the consequences of pleading guilty to them. The accused must know to what he is pleading guilty.

(c) The guilty plea must not be equivocal. It must not be accompanied by words amounting to a defence contradicting an admission of criminal responsibility.

345. National law may also assist in the interpretation of international law to guide the true meaning of concepts (such as a guilty plea) originally derived from national laws: Prosecutor v Erdemovic (Appeals Chamber Decision), IT-96-22-A, 7 October 1997 (Joint Separate Opinion of Judge McDonald and Judge Vohrah), para. 6. Many legal systems share the fair trial principle that a Plea Agreement, or an admission or confession at trial, must be freely or voluntarily made, and must not involve improper compulsion, coercion or duress.

346. For example, in US constitutional law, a guilty plea must represent ‘a voluntary and intelligent choice among the alternative courses of action open to the defendant’ (North Carolina v Alford, 400 US 25 (1970) at 31). A plea will not be voluntary if it is tainted by ‘[i]gnorance, incomprehension, coercion, terror, inducements, subtle or blatant threats’ (Boykin v Alabama, 395 US 238 (1969) at 243) or if it is ‘unfairly obtained or given through ignorance, fear or inadvertence’ (Kercheval v United States, 274 US 220 (1927) at 224). As the US Supreme Court stated in Kercheval v United States, 274 US 220 (1927) at 223:

Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.

347. The requirement of the voluntariness of a guilty plea (the effect of which is to waive a full trial) is similar to the requirement that any admission or confession (at trial) must be voluntary and without coercion. As the US Supreme Court stated in Jackson v Denno, 378 US 368 (1964) at 376:

It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of

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the confession... and even though there is ample evidence aside from the confession to support the conviction.

348. The Supreme Court stated further at 390:

Expanded concepts of fairness in obtaining confessions have been accompanied by a correspondingly greater complexity in determining whether an accused’s will has been overborne.... The overall determination of the voluntariness of a confession has thus become an exceedingly sensitive task, one that requires facing the issues squarely, in illuminating isolation and unbeclouded by other issues and the effect of extraneous but prejudicial evidence.

349. Likewise in Australian common law, the High Court of Australia summarised the relevant principles in R v Lee (1950) 82 Commonwealth Law Reports 133 at 142:

... a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) ... a statement is not voluntary if it is preceded by an inducement, such as a threat, or promise, held out by a person in authority...

350. Australian law recognises that ‘interrogation may be made the means or occasion of imposing upon a suspected person such a mental and physical strain for so long a time that any statement he is thus caused to make should be attributed not to his own will, but to his inability further to endure the ordeal and his readiness to do anything to terminate it’: Cornelius v The King (1936) 55 Commonwealth Law Reports 235 at 241-252 (Dixon, Evatt and McTiernan JJ).

351. Even voluntary confessions may be excluded if the probative value is low and the prejudicial effect is high; if it would be unfair to an accused (R v Lee (1950) 82 CLR 133); or if it was unlawfully, unfairly or improperly obtained (Cleland v The Queen (1982) 151 CLR 1).

D.3. Reliance upon Mr Hicks’ guilty plea was unlawful in the circumstances

352. Firstly, the lawfulness of a plea agreement under international law necessarily depends upon the lawfulness of the underlying offence. Given that the MCA offence of ‘providing material support for terrorism’ was retroactive and unlawful under the ICCPR:

(a) There can exist no lawful authority under international law to offer a plea agreement in connection with a retroactive charge; and

(b) There is no lawful basis under international law to rely upon such a plea to sustain a conviction for a retroactive offence.

353. Secondly, a plea agreement cannot be ‘voluntary’ where, but for the plea, the person faces a manifestly unfair criminal trial, such as that provided by the US military commission. In such circumstances, a plea can only be regarded as an (understandable) attempt to mitigate the serious adverse effects of proceeding to a full trial.

354. Mr Hicks’ Plea Agreement was not freely and voluntarily entered into in the circumstances and there was not the required ‘absence of any direct or indirect physical or psychological pressure from the investigating authorities’: Berry v Jamaica, above. Mr Hicks’ plea was clearly based on unlawful psychological coercion, pressure and duress in circumstances where, cumulatively:

(a) While in US custody he had been tortured or ill-treated, held in prolonged solitary confinement amounting to inhuman treatment, subjected to threats and inducements,

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and witnessed the ill-treatment of other detainees, bringing irresistible psychological pressure upon him to admit guilt to US interrogators;

(b) His mental health had substantially deteriorated as a result of his protracted pre-trial detention, including long periods in solitary confinement. For example, as early as 2004, in letters to his father in Australia, Mr Hicks wrote:

Dear Dad, I feel as though I'm teetering on the edge of losing my sanity after such a long ordeal - the last year of it being in isolation. There are a number of things the authorities could do to help to improve my living conditions, but low morale and depression seems to be the order of the day. They're also making sure that I'm disadvantaged as possible when it comes to defending myself….

I've reached the point where I'm highly confused and lost - overwhelmed, if you like. I suffer extreme mood swings every half hour, going from one extreme to the other. I can no longer picture what happens outside. My entire world has become this little room, and everything beyond is nothing but an echo. Love, David. (Quoted in ABC TV, Four Corners Program Transcript, ‘The Case of David Hicks’, 31 October 2005.)

(c) Mr Hicks believed that unless he pleaded guilty, he would likely remain indefinitely detained at Guantanamo Bay: ‘The message from the guards was that the detainees were going to stay at Guantanamo for the rest of their lives’: 2007 Affidavit of Mr Hicks, para. 31 (Annexure X). US authorities had repeatedly stated that the US was empowered to administratively detain ‘enemy unlawful combatants’ for the duration of the ‘war on terror’, which the US asserted may last for decades. The US had further asserted that it was empowered to administratively detain such persons even after their criminal conviction by military commission (eg, in the case of Salim Hamdan).

(d) Mr Hicks was detained without charge for a protracted period in which his treatment was arbitrary and unlawful because: (i) there was ongoing, unresolved doubt about his status and eligibility for detention under international humanitarian law; (ii) he was denied access to judicial review of his detention for a protracted period; (iii) he was denied access to a lawyer for almost two years after being detained, and denied access to a lawyer for almost five months after being charged; (iv) he was detained without access to Australian consular assistance or to the International Committee of the Red Cross for a protracted period; and (v) his detention for over five years was at a remote and inaccessible detention facility at Guantanamo Bay, far from his home, family and lawyers in Australia. Given the difficult circumstances of his protracted detention, Mr Hicks was desperate for his case to be resolved, including by pleading guilty, since he saw a guilty plea as the only real alternative available to achieve that legitimate end.

(e) Mr Hicks had no real prospect of challenging the retroactive character of the offence before the US military commission, and faced up to life imprisonment if convicted of that retroactive offence in an unfair trial system, even if he were in truth innocent. If Mr Hicks had sought to challenge the legality of his offence, he faced the prospect of many further years in detention, additional to the six years he had already spent at Guantanamo Bay, as the ongoing appeal of Salim Hamdan demonstrates.

(f) Mr Hicks faced the prospect of a deeply flawed trial before the US military commission, including the denial of the presumption of innocence and other indispensible elements of a fair trial, as set out earlier. He had not been tried within a reasonable time of being charged. He was detained for more than five years in pre-trial detention, where the delay in prosecuting him was primarily attributable to the internationally unlawful conduct of the US. His fears about an unfair trial were heightened when, during trial proceedings on 26 March 2007, two of his civilian lawyers were refused permission to represent him by the military commission.

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(g) His doubts about the fairness and independence of the military commission were confirmed by the willingness of the Convening Authority to negotiate his Plea Agreement directly with him, without the participation of the prosecution. Even the letter of appointment of his military lawyer, Major Mori, had provided that Major Mori’s access to Mr Hicks was only guaranteed for the purpose of pre-trial negotiations for a guilty plea, further indicating executive pressure to plead guilty. He was induced to believe that he would be sentenced more leniently if he accepted the plea. He was aware that there was intense political pressure on both the Australian and US authorities to swiftly resolve his case. In such circumstances, the only real alternative available to Mr Hicks was to plead guilty, or otherwise face an unfair trial in which it was almost certain that he would be convicted and as a result of which he would likely receive a much higher penalty.

355. In the above circumstances, Mr Hicks did not enjoy any real or meaningful choice in whether to accept the Plea Agreement. His real options were as follows:

(a) He could have proceeded to trial before a military commission in which the procedures were manifestly incompatible with his right to a fair trial under article 14 of the ICCPR, as set out above, potentially leading to life imprisonment;

(b) He could have remained in detention pending further US litigation challenging the new military commissions under the MCA, which would likely have involved more years without trial at Guantanamo Bay, and where he had already been detained without charge or in pre-trial detention for almost six years; or

(c) He could accept the Plea Agreement, in which he understood that he would likely receive a more lenient sentence, exit Guantanamo Bay, and be promptly returned to Australia.

356. In such circumstances, accepting the Plea Agreement provided him with the only real prospect of release from Guantanamo Bay within a reasonable time, and was the only course of action available to him in the circumstances. His acceptance of the Plea Agreement cannot be understood as an expression of free choice, unburdened by the situation of duress in which he found himself. Such conclusion has also been expressed by a range of others:

(a) Mr Hicks’ father, Terry Hicks, stated: ‘David was – yeah, you could tell he was – he was desperate. He wanted to – he – he’s had enough. He just wanted to get out of the place’ (Quoted in ABC TV, Four Corners Program Transcript, 2 April 2007).

(b) Amnesty International argued in relation to Mr Hicks (‘USA: Another day in Guantánamo’, AI Index: AMR 51/055/2007): ‘Amnesty International questions whether a guilty plea made by a detainee held for more than five years in indefinite and virtual incommunicado military detention, thousands of miles from home, without judicial review, and facing the possibility of a life sentence after an unfair trial by military commission, can be considered to have been made voluntarily.’

(c) A former Chief Justice of the Australian High Court, Sir Anthony Mason, and leading constitutional law Professor Geoffrey Lindell wrote (in (2008) 9 Melbourne Journal of International Law 155): ‘There may well have been an understandable desire of anyone detained at Guantánamo Bay to avoid further detention for an indeterminate period of time under the kind of conditions that prevailed there.’

(d) The Law Council of Australia’s Independent Observer of Mr Hicks’ trial, Mr Lex Lasry QC, reported on 24 July 2007, at p. 4, that: ‘his plea of guilty was the product of an inherently oppressive and coercive system’.

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D.4 The conditions of the Plea Agreement violate the ICCPR

357. The US’ acceptance of Mr Hicks’ Plea Agreement, where the plea relates to a retroactive offence and was made under duress, constitutes a denial of Mr Hicks’ right to a fair trial.

358. In addition, various specific conditions of the Plea Agreement, set out above at Part III(D.1) of this communication, constitute separate and additional violations of the ICCPR, namely:

(a) Paragraph 4 of the Plea Agreement denies to Mr Hicks the right to appeal his criminal conviction under article 14 of the ICCPR, and additionally amounts to a denial of the right to an effective remedy for a violation of a human right under article 2;

(b) Paragraph 2(d) of the Plea Agreement constitutes an unjustifiable and unlawful interference in Mr Hicks’ freedom of expression under article 19 of the ICCPR, by requiring him to assign to the Australian Government any proceeds of his (retrospective) crime;

(c) Paragraph 2(b) of the Plea Agreement constitutes an unjustifiable and unlawful interference in Mr Hicks’ freedom of expression under article 19 of the ICCPR, by requiring him not to speak publicly about his conduct, capture or detention for a period of one year;

(d) Paragraph 5(i) of the Plea Agreement constitutes a denial of Mr Hicks’ right to a remedy for acts of torture or ill-treatment, contrary to articles 2 and 7 of the ICCPR;

(e) Paragraphs 2(c) and 5(g) of the Plea Agreement constitutes a denial of Mr Hicks’ right to privacy under article 17 of the ICCPR, since they unlawfully require Mr Hicks to cooperate with Australian law enforcement and intelligence authorities and any further judicial proceedings, and threatens him with delayed release from prison under Australian law for non-compliance;

(f) Paragraph 5(h) of the Plea Agreement stipulates that Mr Hicks is an ‘alien unlawful enemy combatant’ who was lawfully dealt with under the law of war and is contrary to Mr Hicks’ right under article 5 of the Third Geneva Convention to have his doubtful Prisoner of War status assessed by a competent tribunal (which was not satisfied by his CSRT determination: see Part III(C.3.4) of this communication);

(g) Paragraph 5(j) of the Plea Agreement deems lawful Mr Hicks’ entire period of detention by the United States and thus constitutes a denial of Mr Hicks’ right to seek effective remedies under article 2 of the ICCPR for his unlawful detention (see Part III(C.3.4)) of this communication, setting out the unlawfulness of his detention);

(h) Paragraph 5(f) of the Plea Agreement stipulates that if the Plea Agreement ‘becomes null and void for any reason’, the United States may prosecute Mr Hicks again for the same conduct, and is this contrary to Mr Hicks’ right to be protected against double jeopardy under article 14(7) of the ICCPR.

D.5. Australia’s responsibility for breaches of the ICCPR occasioned by the Plea Agreement

359. Australia was not a direct party to the Plea Agreement between Mr Hicks and the US. The US naturally bears its own separate responsibility for breaches of its ICCPR obligations owed towards Mr Hicks arising from the Plea Agreement. Nonetheless, it is submitted there are two alternative possible bases for holding Australia responsible for the breaches of Mr Hicks’ ICCPR rights arising from the Plea Agreement.

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D.5.1. Australia adopted the US’ conduct as its own

360. Firstly, Australia is responsible for the violations of Mr Hicks’ ICCPR rights by subsequently acknowledging and adopting as its own the US’ conduct in accepting the Plea Agreement. Under the customary international law of State responsibility, as reflected in Article 11 of the ILC Draft Articles of State Responsibility 2001:

Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

361. While this principle of attribution most commonly applies to the post-facto adoption by a State of the conduct of non-State actors, it may also apply to the adoption of one State’s conduct by another. In the case of Mr Hicks, for the reasons set out below, it is submitted that Australia adopted as its own the conduct of the US in accepting Mr Hicks’ Plea Agreement.

362. The principle in Article 11 applies where the relevant conduct was not attributable to the State at the time of its commission: ILC Commentary to Article 11, para. 1. In the case of Mr Hicks, for the reasons set out below, Australia did not itself enter into the Plea Agreement at the time of its adoption by the US, but did later adopt the Plea Agreement as its own.

363. The principle in Article 11 requires that the State ‘acknowledges and adopts the conduct in question as its own’. There must be more than ‘mere support or endorsement’, ‘approval’, or the ‘general acknowledgement of a factual situation’: ILC Commentary to Article 11, para. 6. Further, ‘the act of acknowledgment and adoption, whether it takes the form of words or conduct, must be clear and unequivocal’: ILC Commentary to Article 11, para. 8. In the Tehran Hostages case (United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p. 3, at p. 35, para. 74), the International Court of Justice found that conduct was adopted by Iran in the following circumstances:

The policy thus announced by the Ayatollah Khomeini, of maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the United States Government was complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts. The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State.

364. In the case of Mr Hicks, Australia clearly and unequivocally acknowledged and adopted as its own the original conduct of the US in accepting and upholding Mr Hicks’ Plea Agreement, for the following reasons:

(a) Mr Hicks’ conviction was based wholly on the US military commission’s acceptance of his Plea Agreement, which operated to waive a full criminal trial. In accepting Mr Hicks’ plea, the military commission conducted no independent inquiry into its truthfulness or reliability, or into whether the sources of evidence upon which it was based were properly obtained, or whether the prosecution’s case against Mr Hicks would support a conviction.

(b) Accordingly, Mr Hicks’ conviction and the sentence which followed stemmed entirely from his plea; but for the plea, there would be no conviction. The Plea Agreement was thus the indispensible element of the conviction and the sentence which followed. In these circumstances, any enforcement of Mr Hicks’ sentence of imprisonment necessarily constitutes an acknowledgment and adoption of the Plea Agreement upon which it depends by the State enforcing the sentence, that is, Australia.

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(c) As set out above at Part III(B.8), the prisoner transfer arrangement (Annexure Q) between the US and Australia, and its implementation in Australian law, expressly recognises sentences imposed by the US military commission. Australia assumed full responsibility for the enforcement of Mr Hicks’ sentence (see Part III(B.8) above): US-Australia Prisoner Transfer Arrangement, in Regulations 2007, Schedule 1, paras. 9-10 (Annexure Q). In particular, as set out earlier, the US suspended its enforcement of Mr Hicks’ sentence in favour of Australia’s assumption of full responsibility for its enforcement. In such circumstances, Australia’s conduct goes beyond mere support or approval of the military commission process as it applied to Mr Hicks and instead constitutes an acknowledgement and adoption by Australia of the US conviction and underlying Plea Agreement upon which it is based. Australia thereby made the Plea Agreement its own.

(d) Australia was aware of the circumstances of Mr Hicks’ Plea Agreement, not only from its close consular attention to the matter, but also under the terms of the US-Australia Prisoner Transfer Arrangement, which required to the US to provide Australia with detailed documentation relating to Mr Hicks’ case, including ‘a certified copy of all judgments, sentences and determinations’ (at para. 5(1)(d)).

(e) There is no evidence that the Australian authorities independently assessed the evidence upon which the US authorities relied in framing the Stipulation of Facts in the Plea Agreement. No Australian court has ever reviewed or tested the allegations.

(f) Australian authorities have sought to invoke the Plea Agreement in their dealings with Mr Hicks in Australia. For example, the Australian Federal Police have threatened Mr Hicks that his suspended sentence would be revived if Mr Hicks’ refuses to cooperate with Australian law enforcement authorities as required under the Plea Agreement. Australia’s purported reliance upon the Plea Agreement is a further indication of its adoption of the Plea Agreement as Australia’s own. The Australian Federal Police also requested Mr Hicks to sign a version of a plea agreement when he was in prison in Adelaide, which he refused.

365. As such, while Australia was not formally a party to the Plea Agreement initially signed between Mr Hicks and the US, by its subsequent conduct Australia must be regarded as having adopted the Plea Agreement as its own, including by enforcing the key legal consequence (imprisonment) which flowed from it. In consequence, the violations of Mr Hicks’ ICCPR rights manifest in the Plea Agreement, as set out above at Part III(D.4) of this communication, are attributable to Australia under the law of State responsibility.

D.5.2. Australia aided or assisted the US in breaching Mr Hicks’ ICCPR rights

366. Secondly, under the customary international law of State responsibility, a State is responsible for aiding or assisting another State in the commission of an internationally wrongful act: see Article 16 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001 (2001 ILC Yearbook Vol. II (Part Two); annexed to UN General Assembly Resolution 56/83 (12 December 2001)). The State must do so with knowledge of the circumstances of the other State’s internationally wrongful act, and assistance must be intended to facilitate the commission of the wrong and have contributed to it: ILC Commentary to Article 16, para. 5.

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367. In this respect, there are indications that Australia is internationally responsible for its own role in aiding or assisting the US to accept the Plea Agreement, for the following reasons:

(a) Australia’s influence on the content, formulation and adoption of the Plea Agreement can be implied or inferred from the multiple references in the Plea Agreement to Australian law, Australian authorities, and conduct to be performed or restrained in Australia (such as cooperation with Australian law enforcement, assigning any profits to Australia, and not speaking publicly). It can be naturally inferred from the inclusion of provisions beneficial to the Australian authorities that Australia exercised a significant degree of influence over the content and formulation of the Plea Agreement, or was apprised of it and acquiesced in it.

(b) The Plea Agreement is clearly premised on the assumption that Mr Hicks would be imminently returned to Australia to serve out his sentence there, further indicating Australian influence or agreement on its adoption. Paragraph 3(g) of the Plea Agreement contemplates that Mr Hicks would serve his sentence in Australia: ‘I understand and agree that my failure to fully cooperate with Australian or United States authorities may delay my release from confinement or custody under applicable provisions of Australian law.’ Further, the Plea Agreement was accepted on 26 March 2007 and three days later, on 29 March 2007, Australia gave domestic effect to the inter-government agreement between and Australia and the US to transfer Guantanamo prisoners (see International Transfer of Prisoners (Military Commissions of the United States of America) Regulations 2007 (Select Legislative Instrument 2007 No. 79), scheduling the US-Australia Agreement) (Annexure Q). The timing implies that Australia must have been earlier involved in constructing the Plea Agreement’s premise that Mr Hicks would serve his sentence in Australia.

(c) Australian assurances that Mr Hicks would be properly imprisoned and monitored upon return to Australia must have played a role in the US accepting a Plea Agreement with provisions requiring Mr Hicks to cooperate with and assign profits to the Australian authorities. The US would not have accepted the Plea Agreement but for Australian assurances that its relevant provisions would be implemented and upheld in Australia.

(d) The known, close cooperation between the US and Australia in relation to Mr Hicks’ case generally (see Part III(C.5) of this communication) further implies that Australia must have been involved in the formulation and adoption of the terms of the Plea Agreement. By its own admission, at that time Australia was pressuring the US to expeditiously conclude Mr Hicks’ prosecution, which likely included support for a speedy resolution through the Plea Agreement, on terms known to Australia.

(e) There were direct negotiations at the time between Australian and US authorities on the resolution of Mr Hicks’ case, as a result of domestic political pressure faced by the Australian Prime Minister John Howard in the lead up to an Australian election. Prime Minister Howard negotiated directly with US Vice-President Richard Chaney shortly before the Plea Agreement was concluded to rapidly dispose of Mr Hicks’ case.

(f) Australia must have known that, in Mr Hicks’ circumstances (detailed above at Part III(D.3)), any Plea Agreement would be involuntary and amount to a violation of a fair criminal trial under article 14 of the ICCPR. Further, from those same circumstances, Australia must have known that the terms of the Plea Agreement violated a number of Mr Hicks’ rights under the ICCPR as detailed above.

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(g) Australia’s conduct in influencing the negotiation and adoption of the Plea Agreement was intended to facilitate the wrongs done by it and significantly contributed to them. It need not be shown that Australian aid or assistance was determinative of the wrongs done by the Plea Agreement.

368. Australia consequently bears responsibility (pursuant to the customary rule of attribution reflected in article 16 of the ILC Draft Articles) for aiding or assisting the US in negotiating and accepting an involuntary Plea Agreement which violated Mr Hicks’ ICCPR rights. Australia’s responsibility for such conduct is separate from and additional to its subsequent conduct in post-facto adopting the Plea Agreement, which gives rise to Australia’s responsibility under Article 11 of the ILC Draft Articles (see Part III(D.5.1) above).

D.6. Remedies Sought

369. Australia should acknowledge that it violated Mr Hicks’ ICCPR rights by (a) adopting the US Plea Agreement by which Mr Hicks’ conviction was secured, and/or (b) aiding and abetting the US in the offer of that Plea Agreement.

370. Australia should apologise to Mr Hicks for violating his rights by Australia’s adoption of, or assistance in, the Plea Agreement.

371. Australia should compensate Mr Hicks for the violations of his rights.

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E. Australia participated in the unlawful detention, interrogation and treatment of Mr Hicks at Guantanamo Bay, contrary to articles 7, 9 and 10 of the ICCPR

372. Mr Hicks’ detention at Guantanamo Bay was arbitrary (contrary to article 9 of the ICCPR) because the US failed to establish a justification under international law for his continuing detention: (a) it did not properly determine his status in accordance with international humanitarian law; and (b) it did not charge him with a valid criminal offence. Further, Mr Hicks’ ill-treatment in detention (see above at Part III(C.3.3)) violated article 7 of the ICCPR, while the inadequate conditions of his confinement involved a further violation of article 10 of the ICCPR, since he was not treated ‘with humanity’ or with respect for his ‘inherent dignity’.

373. As noted above, a State is responsible for aiding or assisting another State in the commission of an internationally wrongful act: see Article 16 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001 (2001 ILC Yearbook Vol. II (Part Two). In the context of counter-terrorism cooperation, the UN Special Rapporteur on Promotion and Protection of Human Rights While Countering Terrorism, Martin Scheinin, has criticised States for knowingly engaging in, rendering aid to or assisting in the commission of violations of human rights in counter-terrorism: Report to UN Human Rights Council, A/HRC/10/3, 4 February 2009, para. 53.

374. In particular, the UN Special Rapporteur has observed (at para. 53) that States should ‘place serious constraints on policies of cooperation’ with States that are known to violate human rights, such as by torture or arbitrary detention. Further, the participation or ‘even the mere presence’ of foreign intelligence agents in the interrogation of a person detained in a place where his rights are violated ‘can be reasonably understood as implicitly condoning such practices’ (at para. 54). Moreover, the ‘continuous engagement and presence of foreign officials has in some instances constituted a form of encouragement or even support’ (para. 54). In such circumstances, according to the UN Special Rapporteur (at para. 54):

the active or passive participation by States in the interrogation of persons held by another State constitutes an internationally wrongful act if the State knew or ought to have known that the person was facing a real risk of torture or other prohibited treatment, including arbitrary detention.

375. It may also be wrongful for a State to take ‘advantage of the coercive environment’ such as by receiving intelligence from another State which results from torture or arbitrary detention (at para. 55). As the UN Special Rapporteur observes (at para. 55):

reliance on information from torture in another country, even if the information is obtained only for operational purposes, inevitably implies the “recognition of lawfulness” of such practices and therefore triggers the application of principles of State responsibility. Hence, States that receive information obtained through torture or inhuman and degrading treatment are complicit in the commission of internationally wrongful acts. Such involvement is also irreconcilable with the obligation erga omnes of States to cooperate in the eradication of torture.

376. In July 2010, for instance, the UK Government initiated an official inquiry into whether and to what extent, the UK government and its intelligence agencies were involved in improper treatment of detainees held by other countries in counter-terrorism operations overseas, or were aware of improper treatment of detainees in operations in which the UK was involved.

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377. On numerous occasions, various Australian officials interviewed/interrogated Mr Hicks while he was in US custody, in circumstances where those Australian officials knew of, or should reasonably have been aware of, serious violations of Mr Hicks human rights, including: (a) his ill-treatment in custody; (b) the arbitrary, unlawful nature of his detention, including denial of access to a lawyer, judicial review, of independent review of his status; (c) the inhumane and undignified conditions of Mr Hicks’ detention (and solitary confinement); and (d) his exposure to an unfair trial process.

378. In particular, Australian officials interviewed Mr Hicks on the following occasions:

(a) In December 2001, Mr Hicks was visited by a uniformed officer of the Royal Australian Navy while he was in detention on board a US naval vessel;

(b) In December 2001, Mr Hicks was interviewed by two officers of the Australian Security Intelligence Organisation (ASIO) while on board a US naval vessel;

(c) In May 2002, Mr Hicks was interviewed by officers of the Australian Federal Police, ASIO, and consular officials from Australia’s Department of Foreign Affairs and Trade;

(d) Mr Hicks was visited by ASIO one or two months after the Bali terrorist attacks of October 2002;

(e) Mr Hicks was visited by ASIO while in Camp Delta, some time in 2002 or 2003;

(f) Mr Hicks was visited by Australian consular officials on a number of occasions, including in August or September 2003 and thereafter (including by a Japanese Australian officer in May 2002, an officer named Mr Tucker in 2004, and an officer named Mr McNolty after 2004. The latter officer, McNolty, repeatedly stated to Mr Hicks that he did not believe Mr Hicks’ claims about his mistreatment and that they were “bullshit”. Mr Hicks was also punished by US guards after making complaints to McNolty, leading Mr Hicks to believe that McNolty was reporting on Mr Hicks to the US authorities);

379. Australian officials knew of should reasonably have known that Mr Hicks’ detention involved the violations of international law set out above because:

(a) The US President and US Government had publicly stated on numerous occasions that the US would withhold the protections of the Geneva Conventions of 1949 to enemy unlawful combatants detained in Afghanistan, including the denial of an independent status review process and the denial of a fair trial in accordance with international law;

(b) Mr Hicks complained directly and repeatedly to Australian officials of his ill-treatment;

(c) Australian officials visited Guantanamo Bay and witnessed conditions there first-hand;

(d) Numerous independent assessments of conditions at Guantanamo Bay were progressively available in the public domain, including criticisms by the International Committee of the Red Cross, photographic evidence, and the testimony of former detainees, among others;

(e) Australia was a close ally of the US, including in intelligence sharing, and must have had knowledge directly from the US of the system in place at Guantanamo Bay;

(f) Mr Hicks’ lawyers, and his father Terry Hicks, frequently spoke publicly about the conditions experienced by Mr Hicks at Guantanamo Bay;

(g) The rules and procedures of the military commissions were publicly available and, with diligent legal advice, Australia should have known that the trial procedure was not in

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conformity with international standards. Yet, while the US Supreme Court in Hamdan v Rumsfeld found in 2006 that the original version of the military commissions did not provide the minimum international standards of a fair trial under common article 3 of the Geneva Conventions 1949, up until that time Australia had maintained always maintained that that first iteration of the military commissions would provide a fair trial. Australia has still never publicly released its legal advice concerning the lawfulness of either the first or subsequent system of military commissions.

380. By interviewing Mr Hicks in US custody to gather intelligence, Australia recognised Mr Hicks’ unlawful treatment by the US and thereby encouraged and supported it. In doing so, Australia aided or assisted the US in the commission of internationally wrongful acts against Mr Hicks. Further, Australia made use of the intelligence gathered in those interviews in the control order proceedings against Mr Hicks in the Australian courts in 2007-08.

E.1. Remedies Sought

381. Australia should acknowledge that it violated Mr Hicks’ ICCPR rights by participating in his unlawful detention, interrogation and treatment at Guantanamo Bay.

382. Australia should apologise to Mr Hicks, and compensate him, for violating his rights.

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F. Australia unlawfully participated in the unfair trial of Mr Hicks, contrary to article 14 of the ICCPR

383. As set out above at Part III(C.2), Mr Hicks was subjected to an unfair trial before the US military commission, in violation of article 14 of the ICCPR (the content of which is specified by, at a minimum, the lex specialis of common article 3 of the Geneva Convention 1949, as shaped by article 75 of Additional Protocol I of 1977).

384. As also set out earlier at Part III(C.5) and reiterated here by reference to those paragraphs, senior Australian Government officials repeatedly expressed Australia’s approval of the military commission system to which Mr Hicks was subjected.

385. In accordance with the principle of State responsibility reflected in article 16 of the ILC’s Draft Articles on State Responsibility, as contextualised for counter-terrorism cooperation by the UN Special Rapporteur Martin Scheinin, above at Part III(E), Australia’s repeated expressions of support for Mr Hicks’ trial by military commission condoned and encouraged that trial system, and helped to defend that system in the face of robust criticism from other governments (such as the United Kingdom) and the bulk of international legal opinion.

386. In such circumstances, Australia’s express support for the trial of one of its nationals, Mr Hicks, by the US military commission necessarily constitutes unlawful aid or assistance to the US in the commission of an internationally wrongful act, that is, the unfair trial of Mr Hicks contrary to article 14 of the ICCPR, common article 3 of the Geneva Conventions 1949, and customary international law.

387. Further, to the extent that Mr Hicks was denied a fair trial in the context of an international armed conflict, the involvement of individual Australian government personnel in such denial may amount to a war crime under international humanitarian law (Fourth Geneva Convention 1949, article 147), for which Australia would bear international legal responsibility.

F.1. Remedies Sought

388. Australia should acknowledge that it violated Mr Hicks’ ICCPR rights by participating in his unlawful, unfair trial by US military commission at Guantanamo Bay.

389. Australia should apologise to Mr Hicks, and compensate him, for violating his rights.

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G. Australia failed in its duty to investigate credible allegations of torture by the US: ICCPR, article 7

390. As detailed above at PartIII(C.3.3), Mr Hicks was subjected to torture or cruel, inhuman or degrading treatment whilst in the custody of US personnel in Afghanistan, on board US vessels, and in Guantanamo Bay, contrary to article 7 of the ICCPR, the 1984 Convention against Torture, common article 3 of the 1949 Geneva Conventions and customary international law. Torture is a war crime and an international crime.

391. Article 7 of the ICCPR states simply that: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. That scope of that provision is not, however, exhausted by its literal meaning, but derives content also from its object and purpose and from subsequent practice. For example, it is accepted that article 7 also implies a duty on a State not to return a person to where they face a risk of torture: see Sir Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in E. Feller, V. Türk, and F. Nicholson (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (CUP, Cambridge, 2003).

392. Notably, the prohibition on torture in article 7 must be read in conjunction with article 2 of the ICCPR, which requires a State Party to take legislative, administrative, judicial and other measures to prevent, punish and remedy acts of torture and cruel, inhuman and degrading treatment in any territory under its jurisdiction: UN Human Rights Committee, General Comment No 20, 10 March 1992, para. 8.

393. Providing remedies for torture requires that ‘[c]omplaints about ill-treatment must be investigated effectively by competent authorities. Those found guilty must be held responsible, and the alleged victims must themselves have effective remedies at their disposal, including the right to obtain compensation’: UN Human Rights Committee, General Comment No. 7 (article 7), 30 May 1982, para. 2; see also General Comment No 20, para. 14; Velásquez Rodríguez Case, Judgment of 29 July 1988, Inter-American Court of Human Rights, Series C, No. 4. This is so notwithstanding that article 7 does not itself expressly require investigation of torture: by analogy with the European Convention on Human Rights, see Aksoy v Turkey (Application No. 21987/93), Judgement of 18 December 1996, para. 98.

394. To date, jurisprudence on the duty of a State to investigate torture has generally dealt with allegations of torture which have been committed within the territory or jurisdiction of that same State. It is submitted, however, that the duty to investigate is not so confined, and that the case of Mr Hicks provides an opportunity to elaborate the full scope of the duty to investigate. It is a proper function of the UN Human Rights Committee to interpret the scope of article 7 in cases where the law is indeterminate. As the UN Human Rights Committee stated in General Comment No. 33, 5 November 2008, para. 13:

The views of the Committee under the Optional Protocol represent an authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument. These views derive their character, and the importance which attaches to them, from the integral role of the Committee under both the Covenant and the Optional Protocol. [Emphasis added]

395. While a State is primarily required to investigate torture committed within its territory or jurisdiction, it is submitted that there is also a duty on a State to investigate torture where:

(a) A person presently within the State’s territory or jurisdiction makes a credible allegation that they were tortured in the territory or jurisdiction of a foreign State;

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(b) The foreign State itself is alleged to have committed the act of torture; and (c) The foreign State has failed to adequately discharge its own duty to investigate the

act of torture committed in its territory or jurisdiction.

396. Such a duty flows from the combined purpose of article 7 and article 2 of the ICCPR, which is to ensure effective remedies for violations of the ICCPR. Such remedies may include both criminal prosecution of perpetrators, and compensation for victims. Neither remedy can be secured unless credible allegations of torture are properly investigated by State authorities.

397. Further, neither remedy can be secured if a foreign State is responsible for perpetrating ill-treatment, that State does not discharge its duty to investigate, and the victim is resident in another State. In such cases, impunity would result unless the burden of investigation properly shifts to the State of residency of the victim, which can then provide protection.

398. The object and purpose of the prohibition on torture or cruel, inhuman or degrading treatment is to ensure that such treatment is universally repressed; that perpetrators are held to account; and that victims of torture secure remedies. That scheme of universal repression cannot be accomplished if article 7 and 2 are restrictively interpreted only to require investigation of torture committed in the State’s own territory.

399. Moreover, the Convention against Torture 1984 can assist in determining the scope of the general protection in article 7 of the ICCPR. Article 14 of the Convention against Torture requires each State Party to ‘ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible’.

400. That protection is not limited to remedies for torture occurring on the territory of the State Party, but also obligates the State to provide remedies for torture committed abroad in a second State, where the victim is present in the first State. The State Party must provide a procedure permitting victims to obtain reparations from those responsible for torture regardless of where it was committed: UN Committee against Torture, Conclusions and Recommendations, 34th Session, 2 – 20 May 2005, UN Doc. CAT/C/CR/34/CAN, 7 July 2005, paras. 4(g), 5(f); see also Christopher Hall, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’ (2007) 18 European Journal of International Law 921.

401. At the same time, it would expect too much of States to require them to investigate every allegation of torture around the world, regardless of any connection to that State. Rather, it is submitted that the proper scope of articles 7 and 2 of the ICCPR is that the duty to inquire or investigate (at a minimum, in civil cases, but also for criminal prosecution purposes) also extends to cases where victims resident in a State raise credible allegations of torture by another State, where the other State has failed to investigate.

402. There is no sufficient countervailing reason not to accept this interpretation, which is consistent with the object and purpose of article 7 of the ICCPR. Notably, the UN Committee against Torture has recently called on Australia ‘establish its jurisdiction’ over torture offences ‘including when the victim is a national of the State party’, and expressed its concern that Australia ‘might have failed to establish its jurisdiction in some cases where Australian nationals have been victims of torture abroad’: CAT, Concluding Observations on Australia, 15 May 2008, CAT/C/AUS/CO/1, para. 19. Furthermore, as the UN Human Rights Committee stated in General Comment No. 31: ‘Nature of the Legal Obligation Imposed on States Parties to the Covenant’, 26 May 2004, para. 2:

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While article 2 is couched in terms of the obligations of State Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations. This follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the Covenant, there is a United Nations Charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms. ...

Accordingly, the Committee commends to States Parties the view that violations of Covenant rights by any State Party deserve their attention. To draw attention to possible breaches of Covenant obligations by other States Parties and to call on them to comply with their Covenant obligations should, far from being regarded as an unfriendly act, be considered as a reflection of legitimate community interest.

G.1.Australia did not adequately investigate Mr Hicks’ credible allegations of ill-treatment

403. A formal complaint is not considered necessary to activate the State’s duty to investigate; it is sufficient that the State is put on adequate notice. On numerous occasions, Australia was put on notice of Mr Hicks’ allegations of torture or other ill-treatment, including through:

(a) Mr Hicks’ direct communications with Australian officials (including consular officers from the Department of Foreign Affairs and Trade; Australian Federal Police officers; and officers of the Australian Security Intelligence Organisation);

(b) Mr Hicks’ affidavits of 2004 and 2007 that he was ill-treated (Annexures W, X); (c) Repeated representations from Mr Hicks’ lawyers; (d) Media disclosures of Mr Hicks’ ill-treatment, including corroborating witnesses.

404. The evidence detailed above at Part III(C.3.3) clearly discloses credible allegations that Mr Hicks was tortured or ill-treated in US custody in Afghanistan, on board US vessels, and at Guantanamo Bay. Mr Hicks suffers ongoing physical and psychological harm in Australia as a result of that mistreatment which has never been adequately explained by the US.

405. Australia has not taken adequate steps to investigate credible allegations of torture in US custody raised by Hicks in his affidavit. Australia has refused to conduct its own independent inquiry into whether Hicks was tortured or ill-treated.

406. Instead, Australia has sought to rely upon a US Navy investigation into the allegations, which found that there was insufficient evidence to substantiate them. Such reliance is not sufficient in the circumstances to discharge Australia’s own obligation to investigate Mr Hicks’ allegations. US Navy investigators were part of the same military apparatus which detained, interrogated, prosecuted and convicted Mr Hicks, and which operated the US naval facility at Guantanamo. Such an investigation could not offer sufficient impartiality and independence to sustain confidence in the accuracy, propriety and legitimacy of the investigation and its findings. That investigation failed to account for the injuries which Mr Hicks sustained while in US custody, which did not exist prior to his detention and which were not explained by the US Navy investigation. As noted earlier (at Part III(C.3.3.3)), the US has otherwise never accounted for the injuries which Mr Hicks sustained in US custody.

407. It is incumbent upon Australia to fully inquire into Mr Hicks’ ill-treatment in US custody, in order that effective remedies may be available to him in respect of his ill-treatment.

G.2. Remedy sought

408. Australia should initiate and conduct an independent investigation into allegations that David Hicks’ was tortured or subjected to cruel, inhuman or degrading treatment in US custody.

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H. Australia violated articles 12, 14, 17, 19 and 22 by imposing a control order on Mr Hicks

H.1. Mr Hicks was subject to a control order

409. Upon release from Yatala prison, Adelaide, after the expiry of his sentence in December 2007, Mr Hicks was subjected to an interim control order, subsequently confirmed, which imposed a range of restrictions on Mr Hicks: Jabbour v Hicks [2007] FMCA 2139 (21 December 2007) (interim order, (Annexure U)); Jabbour v Hicks [2007] FMCA 178 (19 February 2008) (confirmation order, (Annexure V)). By those restrictions Mr Hicks was:

(a) Required to remain at specified premises between specified times;

(b) Required to report at regular intervals to the police;

(c) Required to have his fingerprints taken by the police;

(d) Prohibited from leaving Australia except with the prior permission of the Australian Federal Police;

(e) Prohibited from any dealings with explosives and documents regarding explosives, weapons, combat skills or military tactics; and from communicating to any person about terrorist methods or tactics or the names on contact details of terrorists;

(f) Prohibited from communicating or associating with any individual that Mr Hicks knew to be a member of a terrorist organisation;

(g) Prohibited from accessing or using various forms of telecommunications or other technology which were not approved by the Australian Federal Police, including telephone, internet and email; (The AFP approved one landline and one mobile phone for use by Mr Hicks.)

(h) Prohibited from possessing or using firearms, ammunition or explosive devices.

410. Reasons for judgment indicate that the interim control order was imposed because Mr Hicks had previously expressed support for terrorist acts, he had the capacity to commit terrorist acts because of his prior training, and that on the balance of probabilities there was a risk that Mr Hicks would participate in a terrorist act or train others in terrorism: Jabbour v Hicks [2007] FMCA 2139 at para. 31.

411. In the alternative, it was considered sufficient to impose a control order because Mr Hicks had received training from a listed terrorist organisation (both Lashkar-e-Tayyiba and Al-Qa’ida) under the Criminal Code Regulations 2002: Jabbour v Hicks [2007] FMCA 2139 at para. 32. These reasons were affirmed in the confirmation hearing: Jabbour v Hicks [2007] FMCA 178 (19 February 2008) at paras 33-34.

412. In principle, and depending on the circumstances of the affected person, it is accepted certain kinds of control orders may impose justifiable limitations on certain human rights where they are designed to prevent terrorism and safeguard public security, and where the particular restrictions imposed are necessary to prevent the threat of terrorism and a proportionate response to that threat. Any order must also accord an affected person a fair hearing.

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413. Australia’s control order scheme as it applied to Hicks did not meet minimum human rights law standards because there was no necessity for the restrictions imposed and the hearings were not procedurally fair (contrary to article 14(1) of the ICCPR).

H.2. Mr Hicks did not receive a fair hearing in the issue of the control order

414. Article 14(1) of the ICCPR provides for a fair civil hearing as follows:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

415. A procedure for imposing a control order attracts the right to a fair hearing: see Secretary of State for the Home Department v AF and another [2009] UKHL 28 (concerning article 6 of the European Convention on European Rights, which is functionally equivalent to the protection in article 14 of the ICCPR). In that case, the ‘special advocate procedure’ in the UK, pursuant to which security sensitive evidence could be withheld from an affected person and their lawyer, was deemed incompatible with a fair hearing.

416. While a control order proceeding might be characterised as civil rather than a criminal proceeding (because it does not involve the imposition of a criminal penalty: Secretary of State for the Home Department v AF and Secretary of State for the Home Department v MB [2007] UKHL 46, for the purposes of determining ‘the minimum of disclosure necessary for a fair trial’, the more stringent standard of fairness applicable in criminal trials applies: Secretary of State for the Home Department v AF and another [2009] UKHL 28, at para. 57.

417. The proceedings for the imposition of a control order on Mr Hicks were not fair hearings for the purposes of article 14 of the ICCPR for the following reasons.

H.2.1. Low standard of proof

A control order is made on the balance of probabilities that the order is reasonably necessary, appropriate and adapted for the purpose of protecting the public from a terrorist act (Criminal Code, s. 104.4, (Annexure R)). Considering the seriousness of the rights restrictions which were imposed by Mr Hicks’ control order, the civil standard of proof was inappropriate: see, eg, UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, Report to the General Assembly, 6 August 2008, A/63/223, para. 42. Some of the conditions which may be imposed by control orders are harsher than those imposed as penalties for breaching the criminal law. Considering their restrictive character, the court should be required to be satisfied to a higher standard of proof that the order is necessary.

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H.2.2. The evidence was not adequately tested due to restrictions on classified evidence

418. Mr Hicks was not able to fully test the evidence brought by the authorities and upon which the order was issued, because of restrictions on his access to evidence. In the issuing of a control order, Australia was not required to disclose any information to Mr Hicks if that disclosure was ‘likely to prejudice national security’ within the meaning of National Security Information (Criminal and Civil Proceedings) Act 2004) (Cth): Criminal Code (Cth), ss. 104.2(3A), 104.5(2A), 104.12(3)(a) and 104.23(3A)(a) (Annexure T).

419. The National Security Information (Criminal and Civil Proceedings) Act 2004) (Cth), Part 3A, relevantly provides for the non-disclosure in a civil proceedings of any information that is ‘likely to prejudice national security’. Section 8 of the Act defines ‘national security’ as ‘Australia’s defence, security, international relations or law enforcement interests’. Many of those terms are in turn separately defined in ss. 9-11 of the Act, as follows:

(a) ‘security’ has the same meaning as in the Australian Security Intelligence Organisation Act 1979 (Cth), namely (in s. 4): ‘(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from: (i) espionage; (ii) sabotage; (iii) politically motivated violence; (iv) promotion of communal violence; (v) attacks on Australia’s defence system; or (vi) acts of foreign interference... and (b) the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a)’.

(b) ‘international relations’ means ‘political, military and economic relations with foreign governments and international organisations’;

(c) ‘law enforcement interests’ includes: ‘(a) avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence; (b) protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence; (c) the protection and safety of informants and of persons associated with informants; (d) ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation’s government and government agencies’.

420. The availability of the non-disclosure provisions to the Australian authorities substantially impaired Mr Hicks’ right to a fair hearing for the following reasons:

(a) The definition of ‘national security’ and its sibling definitions are cast so widely and ambiguously so as to potentially enable the non-disclosure of a wide range of innocuous or non-sensitive information which has no material bearing on Australia’s national security, and which could prevent an affected person from knowing and challenging the full circumstances of the case alleged against them, or accessing exonerating or exculpatory information. The Australian Senate Legal and Constitutional Affairs Committee has described the definition as ‘broad in the extreme’, ‘unhelpful or unworkable’ for an affected person, and susceptible to abuse by the authorities: Report of Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004, 19 August 2004, at paras. 3.20 and 3.22.

(b) The Act protects national security information through the use of closed hearings, ministerial certificates and security clearances. However, as the Australian Law Reform Commission noted in its report, Keeping Secrets: The Protection of Classified and Security Sensitive Information (which led to the proposal of the legislation), other

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measures are available to achieve the same objective of protecting sensitive information (see ALRC recommendation 11-10). In particular, measures that interfere less in the ordinary conduct of civil proceedings should be considered before resorting to the more intrusive measures;

(c) The Act requires certain proceedings to be held in closed session, rather than leaving the courts with the discretion whether to close the court (as the ALRC recommended), which would be an approach more capable of balancing the right to a fair hearing with national security interests in particular cases: Australian Human Rights Commission, Submission to the Australian Senate Legal and Constitutional Committee Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004, 2 June 2004, at pp. 5-6;

(d) The Act regards a disclosure as ‘likely to prejudice national security’ where ‘there is a real, and not merely a remote, possibility that the disclosure will prejudice national security’ (s. 17). However, a more appropriate standard for ensuring the fairness of the hearing would be to require a showing of a probability or likelihood of prejudice, rather than the much lower standard of a ‘real possibility’;

(e) The Act permits the court to exclude a party and their legal representative from a closed hearing to determine whether to order the non-disclosure of information, where the person lacks the required security clearance: s. 38I(3). However, the judicial discretion to exclude a person is not accompanied by a requirement on the court to equally consider the adverse impact of the exclusion upon an affected person’s right to a fair hearing: Australian Human Rights Commission, Submission to the Australian Senate Legal and Constitutional Committee Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004, 2 June 2004, at p. 7; see also Australian Senate Legal and Constitutional Affairs Committee, Report into the provisions of the National Security Information Legislation Amendment Bill 2005, 11 May 2005, Recommendation 9. The provision is accordingly likely to undermine the principle of equality of arms in the proceeding, to the detriment of a person seeking to contest a control order.

(f) The Act’s requirement that counsel be security cleared is not compatible with the rights under 14(3)(b) and (d) of the ICCPR to communicate with a counsel of one’s own choosing and to defend oneself through legal assistance of one’s own choosing, particularly as the court has no discretion whether to permit access to non-cleared lawyers: Australian Human Rights Commission, Submission to the Australian Senate Legal and Constitutional Committee Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004, 2 June 2004, at p. 5;

(g) In deciding to make an order of non-disclosure under the Act, the court is directed to consider whether an order would have a substantial adverse effect on the substantive hearing in the proceeding (s. 38L(7)(b)), but is also directed to ‘give greatest weight’ to the likelihood of prejudice to national security (s. 38L(8)). A general direction to prioritise the protection of national security over the protection of the right to a fair hearing, regardless of the context and individual circumstances, is not compatible with article 14 of the ICCPR;

(g) The Act imposes strict criminal liability for a failure to notify the Attorney-General of the existence of information potentially prejudicial to national security, regardless of whether a party unintentionally, inadvertently or mistakenly failed to so notify, and in circumstances where the definition of ‘national security’ information is so broad as to

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make it impossible for any person to know what information they are supposed to legally disclose;

(h) In combination, the availability of the non-disclosure measures under the Act, and the risks of further criminal prosecution entailed in them, substantially deterred Mr Hicks from seeking to adduce or contest evidence at the control order hearings.

H.2.3. The evidence against Mr Hicks was otherwise not tested or proven to be reliable

421. Mr Hicks’ decision not to adduce evidence in the control order proceedings was regarded as follows by the magistrate: ‘It must be clearly understood that the Court can only make decisions based upon evidence presented to it and each party has had and continues to have the opportunity to properly present its case’ (Interim Order, para. 4; Confirmation Order, para. 7).

422. Faced with an absence of evidence from the accused, it was open to, and incumbent upon the judge, to more closely scrutinise the evidence presented by the Australian Federal Police. Nothing in the adversarial, common law system precludes a judge from testing evidence where one of the parties does not do so, particularly where that party is potentially exposed to substantial human rights restrictions, based on a decision taken on a low standard of proof, and in the absence of any statutory or constitutional human rights protections. While the judge cannot make the case for a party, the judge can scrutinise obvious deficiencies or inconsistencies in the evidence which are apparent on the papers, including the absence of a current threat or risk posed by the affected person (see Part III(H.3) below).

423. The evidence adduced by the Australian Federal Police (‘AFP’) appears to be based solely upon interviews conducted by the AFP while Mr Hicks was detained at Guantanamo Bay: see ‘Application for Interim Control Order – Summary of Grounds’ (Annexure BB). Given the unlawful mistreatment of Mr Hicks at Guantanamo Bay, the coercive environment there, and the denial of his rights under international humanitarian law and international human rights law, there are serious doubts about the lawfulness of the manner of obtaining that evidence, the propriety of its admission in court, and its reliability. As detailed in Part E of this communication, by interviewing Mr Hicks in US custody to gather intelligence, Australia recognised Mr Hicks’ unlawful treatment by the US and thereby aided or assisted the US in the commission of internationally wrongful acts against Mr Hicks.

H.3. The control order was not necessary to prevent terrorism

424. There was no necessity for the restrictions imposed for the following reasons. First, under human rights law, the necessity of restricting Mr Hicks’ rights could not be effectively determined in the absence of a fair hearing, as detailed above. The procedural defects of the hearings impaired the ability of the court to be properly informed of, and to accurately assess, whether Mr Hicks posed a genuine threat.

425. Secondly, the legislation did not require the court to determine whether other less invasive methods were available to the authorities for achieving the same purpose of preventing terrorism, for example, by assessing whether surveillance or other methods of crime prevention were reasonably capable of controlling the risk. During the control order hearings, Magistrate Donald stated that ‘the means of... [for example, mounting surveillance of Mr Hicks] are unknown to the Court’ (Confirmation Order, para. 47). A control order could thus

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be imposed even if it were unnecessary for the reason that less restrictive forms of crime prevention could have achieved the same end.

426. By contrast, the UK House of Commons Home Affairs Committee recently concluded that control orders ‘no longer provide an effective response’ because of the UK courts’ concerns about their compatibility with human rights, and that security services should instead ‘rely on other forms of monitoring and surveillance’: The Home Office’s Response to Terrorist Attacks, Sixth Report of Session 2009-10, 26 January 2010, HC 117-I, p. 20.

427. Thirdly, the order was designed to prevent ‘terrorism’ as defined under a broad and vague definition of terrorism in Australian law which does not satisfy the principle of legality (and which is compounded by the low standard of proof used to assess the threat of terrorism). The UN Human Rights Committee has criticised the vagueness of the definition of ‘terrorist act’ in Australian law (under section 101.1 of the Criminal Code (Cth) (Annexure S)) and recommended that Australia ‘ensure that its application is limited to offences that are indisputably terrorist offences’: UN Human Rights Committee, Concluding Observations: Australia, CCPR/C/AUS/CO/5, 7 May 2009, para. 11. UN Special Rapporteur Martin Scheinin has also suggested that the Australian definition of terrorism exceeds the scope of the guideline definition stipulated in Security Council resolution 1566 (2004): Martin Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Australia: Study on human rights compliance while countering terrorism, 14 December 2006, A/HRC/4/26/Add.3, paras. 15-17.

428. As set out in Part III(B.4) of this communication, much of Mr Hicks’ alleged conduct is in the nature of participation in military hostilities in armed conflict, which is not criminal under international humanitarian law. Yet, precisely such conduct is captured by Australia’s definition of terrorism, which criminalises certain acts committed by persons participating in hostilities in armed conflict that are not presently criminal under international humanitarian law and are already regulated by international humanitarian law.

429. The Australian Government explicitly rejected the recommendation of the Australian Parliamentary Joint Committee on Intelligence and Security (in its Review of Security and Counter-Terrorism Legislation, 4 December 2006, Recommendation 12), that the terrorism definition exclude conduct regulated by the law of armed conflict: Australian Government, Response to PJCIS Review of Security and Counter-Terrorism Legislation, December 2008, stating as follows:

Acts of terrorism may still occur during armed conflict; therefore the unqualified exclusion of armed conflict will encourage misapplication of the principles of public international law. The express exclusion of conduct regulated by the law of armed conflict from the definition of terrorist act would neither add to nor detract from Australia’s international obligations and is unlikely to add clarity to the operation of relevant Criminal Code provisions.

430. Australia’s definition of terrorism remains problematic for these reasons:

(a) Acts of terrorism against civilians (such as suicide bombings or other violence) during or connected with armed conflict are already war crimes under international humanitarian law, and there is no purpose in additionally criminalizing them under anti-terrorism law by applying Australia’s terrorism definition to such conflicts;

(b) Acts of terrorism committed against civilians in a country experiencing armed conflict, in circumstances where such acts are not connected to the armed conflict, are ordinary crimes not covered by international humanitarian law. In such cases, it would be

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appropriate for such acts to be covered by Australia’s definition of terrorism, since such acts are not relevantly connected with any armed conflict. Australia’s terrorism definition could still carve out or exclude ‘acts committed during or in connection with an armed conflict’ while still covering violence unrelated to a conflict;

(c) Australia’s definition of terrorism covers not only violence against civilians, but also violence against military forces, in circumstances where such violence is not criminal under international humanitarian law (for example, violence by State or non-State armed forces, and direct participation in hostilities by civilians). Consequently, Australia’s terrorism definition criminalizes any regular member of State and non-State armed forces (including Australia’s own forces), as well as ‘unlawful combatants’. Such interference in the finely-tuned balance of interests under international humanitarian law could be avoided by inserting an exception to the terrorism definition for acts committed during or in connection with an armed conflict.’

431. Fourthly, prior training alone is not a sufficient justification for an order, without evidence of any continuing intention on the part of the affected person to engage in terrorism. Mr Hicks’ control order was imposed on the alternative legislative ground that he had previously trained with a listed terrorist organisation. Yet, prior training alone cannot reasonably justify a control order where there is no other evidence that the person poses a continuing terrorist threat. Otherwise, a person’s prior conduct, unrelated to their present intentions and circumstances, and regardless of their intervening behaviour (including renunciation of terrorism) would forever expose a person to liability to a control order.

432. Fifthly, none of the facts before the court disclosed evidence of any current or future intention by Mr Hicks to deliberately harm civilians. No contemporaneous evidence was presented by the Australian Federal Police at either of the two hearings to suggest that Mr Hicks posed an ongoing terrorist threat at the date of hearings in 2007 and 2008. In the first hearing which imposed an interim control order, Magistrate Donald conceded that the allegations concerning Mr Hicks’ involvement in terrorism were ‘somewhat aged’ and he stated further that: ‘Unfortunately, at this time I do not have the benefit of any evidence of the Respondent and I must act on the basis of the evidence before the Court’ (at para. 30; see also Confirmation Order, para. 32). However, the Magistrate’s acceptance of that old evidence effectively reversed the onus of proof in that proceeding. The age of the police evidence could prove only establish Mr Hicks’ conduct more than six years ago, and did not evidence any present intention of Mr Hicks to continue such involvement.

433. In the intervening period between late 2001 and late 2007, Mr Hicks had been detained, prosecuted, convicted, had served a sentence of imprisonment for that past conduct, and been released. No evidence whatsoever was presented that he had expressed a continuing intention to be involved in terrorism during that intervening period. Following a conviction and the serving of a prison sentence, the ordinary presumption of any legal system is that a person has discharged their legal responsibility for past conduct, absent evidence of any continuing threat. The purpose of criminal punishment is to specifically deter the convicted person from future criminal activity and to rehabilitate that person.

434. The presumption of expiation of guilt following the serving of a criminal sentence is supported by international human rights law. The imposition of a control order on Mr Hicks on the basis of the same conduct that sustained his conviction and penal imprisonment in Australia is contrary to the ne bis in idem principle – that a person should not be tried or punished twice for the same offence. Prior to the imposition of Mr Hicks’ control order, the

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UN Special Rapporteur on human rights and terrorism, Martin Scheinin, had presciently warned Australia against offending the principle:

It is an offence, by way of example, for a person to receive or provide training connected with a terrorist act. Upon completion of sentence, it is conceivable that a person convicted of such an offence (because of the conviction) may thereafter be made the subject of a control order, including conditions of house arrest. The Special Rapporteur urges Australia to ensure that control orders are not imposed in a manner that would offend the ne bis in idem principle. (UN Special Rapporteur Martin Scheinin, Australia: Study on human rights compliance while countering terrorism, 14 December 2006, A/HRC/4/26/Add.3, para. 40).

435. Likewise, in another area of international law, a person should not be excluded from protection as a refugee (under article 1F of the 1951 Refugee Convention) for past criminality where ‘expiation of the crime is considered to have taken place’: UN High Commissioner for Refugees, Guidelines on International Protection: Application of the Exclusion Clauses – Article 1F of the 1951 Convention Relating to the Status of Refugees, at HCR/GIP/03/05, 4 September 2003, at para. 23; and providing further:

This may be the case where the individual has served a penal sentence for the crime in question, or perhaps where a significant period of time has elapsed since commission of the offence. Relevant factors would include the seriousness of the offence, the passage of time, and any expression of regret shown by the individual concerned.

436. Upon release from prison, Mr Hicks should have been entitled to the benefit of a presumption that any danger he posed as a result of his prior conduct had been expiated by: his term of penal imprisonment; the elapse of six years since his prior alleged involvement with Al Qaeda; his protracted period of administrative detention at Guantanamo Bay; and his clear renunciation of terrorism.

437. No evidence was presented in the control order hearings to suggest that the purposes of Mr Hicks’ criminal punishment had not been achieved or that Mr Hicks continued to express criminal intentions. The only evidence presented was that relating to his conduct prior to his prolonged detention and subsequent conviction and imprisonment. Criminal justice becomes superfluous if the punishment of conduct no longer discharges the person’s legal responsibility for that conduct. As the UK’s Independent Reviewer of terrorism laws has noted, control orders are only appropriate where there is ‘robust information’ that a person is a ‘considerable risk to national security’ and where ‘conventional prosecution is not realistic’: Lord Carlile of Berriew QC, Fifth Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (UK), 1 February 2010, p. 1.

438. Instead, faced with the same evidence which had led to his US conviction, Mr Hicks was effectively required to prove that he was no longer a threat, rather than the police being required to prove that he was still a threat (rather than relying on information about past conduct which had already been punished). Even that limited evidence available should have raised questions in the magistrate’s mind about whether the threat posed by Mr Hicks was ongoing. It was known from Mr Hicks’ military commission conviction, for instance, that Mr Hicks had allegedly fled from the battlefield in Afghanistan, sold his weapon, and was apprehended while seeking to escape from the conflict into Pakistan – that is, to no longer participate in hostilities in that armed conflict and to resume his civilian status.

439. Further, there was evidence available on the public record which indicated that Mr Hicks had renounced any violence whatsoever and committed himself to good behaviour. In his interview at Guantanamo Bay by the Australian Federal Police in May 2002, Mr Hicks said of the 11 September 2001 attacks that ‘it’s horrific, It’s not Islam, is it?’ and that ‘It’s like the opposite of what I… wanted to do, [I] meant to help the people, stop oppression, and they did the opposite’: Australian Federal Police Record of Interview with David Hicks, 14 May 2002,

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pp. 45 and 122 respectively (Annexure CC). Further, in a letter dated 21 January 2005 (Annexure Y), Mr Hicks wrote to Australian Prime Minister John Howard:

I am not an evil person or a risk to the Australian public and it saddens me that some may think so. On the contrary, I like to think of myself as a true blue Aussie....

I am determined to fit back into society and be a model citizen. I have tried to better myself and improve my education whilst here in Guantanamo by working my way to completing high school and I intend to further my education when I return.

Please could you ask the American government for my release and help me to return home. I have many friends and loving family whom I wish to be reunited with, especially my two beautiful children, aged 11 and 10. The separation from my family has taught me the importance of strong family relationships. I am not the same person I was three years ago. As you can imagine, I have had ample amount of time to reflect on who I am and what is the most important in life, family. To be united family again is the most important issue in my life.

Prime Minister Howard, If you could secure my release I shall not let you down. I will do all I can for my country and live in a law abiding manner, proving that you will not have made a mistake in your judgment and I shall be forever grateful to you.

440. Sixthly, the organisations with which Hicks allegedly trained were not proscribed in Australian law at the time and Mr Hicks could not have known at the time that his conduct would subsequently attract a penalty or liability under a future law.

441. Seventhly, the alleged activities of Hicks were not unlawful at the time, since there is no allegation by the US that Mr Hicks had committed a war crime or intended to commit a war crime (as known to international humanitarian law). As established earlier, nor has there ever been any allegation by the US or Australia that Mr Hicks endangered any civilians.

442. Eighthly, Mr Hicks’ alleged support for jihad, such as his letters to his family quoted in the control order hearing (Confirmation Order, paras. 29-30) could be reasonably interpreted to refer to a duty upon Muslims to participate in the military defence of Afghanistan from military attack by foreign States, and not in any attacks upon civilians as such. For example, in the first letter quoted (in Confirmation Order, para. 29), Mr Hicks writes that ‘[m]yself as a practising Muslim with military experience can go to help in any of these conflicts’, indicating only that he intended to participate in military fighting (and only in 2001). Likewise, in the second letter (in Confirmation Order, para. 30 (Annexure V)), Mr Hicks writes of his desire ‘to protect them [his ‘Muslim brothers’] from aggressive non-believers’, again suggesting only an intention to participate in defensive military conflict, not attacks on civilians.

443. In circumstances where a control order was neither necessary nor imposed in a procedurally fair manner, the restrictions on Mr Hicks’s right resulting from the conditions of the order arbitrarily and unlawfully interfered in his protected ICCPR rights, namely: freedom of movement, non-interference in the home, correspondence, privacy and family life, freedom of expression and freedom of association.

H.4. Remedies sought

444. Australia should acknowledge that it violated Mr Hicks’ rights by imposing a control order.

445. Australia should apologise to Mr Hicks, and compensate him, for violating his rights.

446. Australia should amend its legislative scheme for the issue of control orders to ensure that Australia complies with its obligations under the ICCPR.

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ANNEXURES: SUPPORTING DOCUMENTATION

United States Legal Materials Hardcopy (H)

Electronic (E)

A. US President, Military Order of 13 November 2001 on the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57833

H & E

B. Authorization for Use of Military Force of 18 September 2001, Public Law 107-40 [S. J. RES. 23] 115 Stat. 224 (2001)

H & E

C. Military Commission Act 2006 (US) H & E

D. Military Commission Manual 2007 (265 pages) E only

E. Military Commission Regulations 2007 (186 pages) E only

F. Military Commission Rules of Court 2007 (39 pages) E only

G. Deputy Secretary of Defense Paul Wolfowitz, Order Establishing Combatant Status Review Tribunal, 7 July 2004

H & E

US Legal Materials concerning Mr Hicks

H. Combatant Status Review Tribunal, Documents concerning the Determination of Mr Hicks’ Status, 30 September 2004

H & E

I. US Military Commission, Charge Sheet – David Hicks, 2 February 2007, as amended to 1 March 2007

H & E

J. US Military Commission, Pre-Trial Agreement of 26 March 2007 H & E

K. US Military Commission, Stipulation of Fact of 29 March 2007 H & E

L. US Military Commission, Military Commission Order No. 1 – David Matthew Hicks, 1 May 2007

H & E

Australian Legal Materials

M. Hicks v Ruddock [2007] FCA 299, Federal Court of Australia (application for habeas corpus and judicial review)

H & E

N. International Transfer of Prisoners Act 1997 (Cth) H & E

O. International Transfer of Prisoners Amendment Act 2004 (Cth) H & E

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P. International Transfer of Prisoners Regulations (Transfer of Sentenced Persons Convention) Regulations 2002 (Cth)

H & E

Q. International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007 (Cth)

H & E

R. Criminal Code Act 1995 (Cth), Sch. 1, Division 104 (control order scheme) H & E

S. Criminal Code Act 1995 (Cth), Sch. 1, section 101.1 (‘terrorist act’ definition)

T. National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)

H & E

U. Jabbour v Hicks [2007] FMCA 2139 (21 December 2007) (Federal Magistrates Court of Australia (interim control order decision)

H & E

V. Jabbour v Hicks [2008] FMCA 178 (19 February 2008) (Federal Magistrates Court of Australia (confirmation control order decision)

H & E

Other Documents Provided by Mr Hicks

W. Affidavit of Mr Hicks dated 5 August 2004 (detailing ill-treatment) H & E

X. Affidavit of Mr Hicks dated 31 January 2007 (detailing ill-treatment) H & E

Y. Letter from Mr Hicks to Prime Minister John Howard dated 21 January 2005 H & E

Z. Peter Vickery QC, Professor Tim McCormack, Hon Alastair Nicholson, Professor Hilary Charlesworth, Gavan Griffith AO QC, Professor Andrew Byrnes, Gideon Boas, Professor Stuart Kaye and Professor Donald Rothwell, Advice in the Matter of the Legality of the Charge against David Hicks, prepared for the Law Council of Australia, 8 March 2007

H & E

AA. Peter Vickery QC, Professor Tim McCormack, Hon Alastair Nicholson, Professor Hilary Charlesworth, Gavan Griffith AO QC, Professor Andrew Byrnes, Legal Opinion on David Hicks – Military Commissions Act 2006 – Compliance with Common Article 3 of the Geneva Conventions, the Hamdan Decision and Australian Law, Law Council of Australia, 9 November 2006

H & E

BB. Australian Federal Police, ‘Application for Interim Control Order – Summary of Grounds’, Federal Magistrates Court Proceedings, 2007

H & E

CC. Australian Federal Police Record of Interview with David Hicks at Guantanamo Bay, 14 May 2002

H & E

DD. List of Complaints by Mr Hicks of 2006 provided to the Australian authorities, attached to Letter of 23 March 2006 from Simeon Golding, Consular Branch, Australian Department of Foreign Affairs and Trade, to Mr Hicks’ Australian lawyer, Mr David McLeod

H & E