David Hicks: an analysis of one man's rights

Human Rights and Ethics Issues: David Hicks' trial Current mood: distressed Category: News and Politics





For some of you who may not know, I am studying Arts/Law at the moment at QUT. I am particularly trying to major in Human Rights and Ethics for my Arts degree.

Since I mentioned David Hicks' in the previous post, I decided to post this. It a couple of months old and I originally posted it on a discussion board on a uni related site. Anyways, you are all probably aware that the hype surrounding his case has sort of subdued, but here it goes:

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The David Hicks' trial has been pondered upon, in particular the human rights abuses that he has claimed to have suffered while incarcerated at the controversial Guantanamo Bay prison in Cuba. Here's just a brief discussion of claims of human rights abuses and how these claims (if they eventuated) breach international human rights laws and guidelines.

In an affidavit David Hicks claimed that his human rights were violated through the following (here is a summary of some of his claims):

• Ten-hour torture sessions, which involved him being shackled and blindfolded, marked by kicking, beatings with rifle butts, punching about the head and torso,



• Death threats at gunpoint and anal penetration with objects



• While in custody of American officers he was placed in a self-contained cell designed to deny all stimuli (this is a CIA sensory-deprivation torture technique) which continued for 8 months.



• Hicks experienced extreme mood swings and became suicidal.

An American attorney "found Hicks at the brink of despair...unable to comprehend
the reality of his trial..." claim of suicide supported by Moazaam Begg, a
British man formerly held at Guantanamo Bay who recounted in his book after
release Enemy Combatant: A British Muslim's Journey to Guantanamo and Back of
Hicks talking about suicidal impulses during his periods in
isolation
"He often talked about wanting to smash his
head...against the metal of his cage and just end it all"

• His head had been rammed into asphalt several times



• He was forced medication of which the identity was unknown to him including the influence of sedatives which were forced upon him.
• He was forced to run in leg shackles that regularly ripped the skin off his ankles (physical
  torture)
  
• As a matter of policy, he was deprived of sleep.

It is notable that if these statements were indeed true, the U.S. government has breached Common Article 3 of the Geneva Conventions which states that all military detainees are entitled to humane treatment.

On 6 December 2006, Hick's legal team lodged documents with the Federal Court of Australia, arguing that the Australian government had breached its protective duty to Hicks as an Australian citizen in custody overseas, and failed to request that Hicks's incarceration by the U.S. comply with the Geneva Convention, the International Covenant on Civil and Political Rights and the Universal Declaration of HUman Rights. So has the Australian government done enough to protect the human rights of David Hicks? Well earlier this year, in an interview with Southern Cross Broadcasting, Mr. Howard said the following: "....let me simply say that it has gone on for so long now that we will be pressing the Americans almost on a daily basis". Former PM, Malcolm Fraser speaking at the Human Rights Education Conference of 2007, accused the Aus government of betraying Hick's rights and said that the military commission (where Hicks' trial is to commence on Mar 26) had been structured to produce a guilty verdict.
To support Malcolm Fraser's questioning of the legality of the Military Commission in which Hick's trial will be heard, it can be argued that such military commissions breach Common Article 3 of the Geneva Conventions as it does not amount to a "regularly constituted court aaffording all the judicial guarantees which are recognised as indispensable by civilized peoples". Also, the Int'l Committee of the Red Cross' Customary International Humanitarian Law 355 (2005) explains that courts are 'regularly constituted' under Common Article 3 if they are "established and organised in accordance with the laws and procedures already in force in a country". It must be noted that the military commission which david hicks' trial is to be heard, only came into effect with the passing of the Military Commissions Act 2006 and therefore does not amount to a "regularly constituted" court.

Article 14 of the International Covenant on Civil and Political Rights states that "everyone shall be entitled to a fiar and public hearing by a competent, independent and impartial tribunal established by law". Similarly, Article 75 (4) of Protocol 1 to the Geneva Conventions 1949 also reiterates this right to a trial before an "impartial" court. Notably, under the Military Commmissions Act 2006, the military commission will be composed of officers appointed from the U.S. armed forces who will act as the jury on questions of fact and will detrmine the sentence if an accused is found guilty by them. Undoubtedly, the system lacks the necessary degree of independent to be impartial and independent. The Military Commission system, therefore, does not safeguard David Hicks' fundamental right as stated in the Geneva Convention and the International Covenant on Civil and Political Rights.

So will David Hick's receive a fair trial? The Military Commission rules do not exclude evidence obtained by the use of moral or physical coercion exerted on a prisoner in order to induce him to admit himself guilty of the fact of which he is accused. This breaches the requirement of a fair hearing stated by Article 14 (1) of the International Covenant on Civil and Political Rights as well as the fundamental guarantees provided by Article 75(4)(f)of Protocol 1.