Defining David Hicks

The question of whether Hicks and others should be tried in some other jurisdiction, and under what charges, is likely to remain unresolved in the supreme court ruling, although an international court or an Afghan one remain two obvious possibilities. An Australian trial for Hicks is apparently unlikely - as it was for Wilfred Burchett over his deliberate and active assistance to the enemy in the Korean and Vietnam Wars - because the Australian Government considers the law applying until 2005 as inadequate for the task. Those naively agitating for the repeal of these new laws should bear these cases in mind.

None of these questions as to the appropriate criminal jurisdiction, however, affect the continued legitimacy of detaining Hicks under the Laws of Armed Conflict. He can, and perhaps needs to be, detained until the applicable armed conflict is over.

The key inter-related issues here are which conflict applies, and whether Hicks is a PoW or some other type of captured combatant. In international law the existence of an armed conflict is a material fact alone, thus automatically triggering the many restrictions and protections of the Hague and Geneva Conventions respectively. It does not depend on what any government or individual says about whether the conflict does or does not exist. In other words, on humanitarian grounds the fact of conflict is recognised rather than any country's subjective political claim to the contrary.

According to his family, Hicks served with the Taliban in Afghanistan during the war. Whether he was bearing arms when eventually captured or not he is not covered by the Fourth Geneva Convention because he was a combatant, not a civilian victim. If it could be proved that Hicks was fighting with only the Taliban when captured he might be covered as a PoW by the 1977 Additional Protocols to the Third Geneva Convention (governing members of irregular forces fighting in a civil war or international conflict).

But because the Taliban has never abided by international law in its pursuit of armed conflict, it may not qualify for recognition as a responsible belligerent authority even under the Additional Protocols. If the Taliban does qualify, Hicks can be detained as a PoW until the conflict in Afghanistan concludes, or the detaining power (under the Geneva Conventions) releases him on parole to a neutral country once he guarantees to undertake no further actions as an individual belligerent.

Any contravention or renunciation of this parole, of course, would constitute a serious breach of the laws of war and render him liable to immediate extradition for renewed detention by the detaining power until the conflict in Afghanistan ends.

If Hicks was (or is) a member of a group proscribed as a terrorist organisation by the United Nations his status is more uncertain. He is not covered by the Third Geneva Convention. This is because even under the 1977 Additional Protocols terrorist organisations are not recognised as legitimate international actors who abide by international law in the conduct of their operations - and who can be held properly responsible and accountable for the actions of their subordinates.

In such a case, Hicks can unquestionably be detained as a captured combatant (but not as a PoW or indeed a prisoner necessarily awaiting charge) until the conflict between the civilised world and Islamist terrorism ends. That such detention might be prolonged is irrelevant. Many genuine PoW, including numerous Australians, have been detained for very long periods in previous conflicts. Similarly, any time spent in detention as a captured combatant would not normally qualify as time already served in prison if Hicks is subsequently convicted of criminal offences.

Even if not tried for terrorist offences, David Hicks inhabits a form of international legal limbo, largely by his own actions. His predicament highlights the need to negotiate a Fifth Geneva Convention to cover captured combatants who do not qualify for PoW status. In summary, international law tells us what Hicks is probably not (a PoW) but does not yet adequately cover what he is (as a captured combatant who is not a PoW).

Many of the arguments being advanced on Hicks' behalf are fully or partially contradictory, such as the claim he is a PoW but that he should still be either tried or released. This position strongly contradicts Australia's long standing position, going back to the 1954 McBride Declaration, that Australia would regard any reservation by (communist) states acceding to the Geneva Conventions, purporting to give them the authority to try PoW as "war criminals", as a serious and fundamental breach of the conventions.

The Law Council has accused the Federal Government of being indifferent to Hicks’ fate and has accused the prime-minister of rewriting history. The council has ignored the complexity of Hicks’ status and history’s long struggle to curb uncivilised and unrestricted warfare through the development and enforcement of the Laws of Armed Conflict among civilised countries.

By condoning breaches of the laws of war we risk making conflicts even worse. Terrorist organisations, governments and armed factions that ignore their responsibilities under the Laws of Armed Conflict should not be rewarded. This is particularly important because most of Australia's wartime enemies since 1939 have been countries or factions who have undertaken operations with little regard for the laws of war or common humanity. Most of them have also badly mistreated captured Australian military and civilian personnel in contravention of the Geneva Conventions and other protections provided by international humanitarian law.

Releasing David Hicks unilaterally, on the spurious grounds that he has not been tried or convicted with a criminal offence, would undermine long-established international law. It would also effectively punish responsible combatants the world over who take the trouble, and often the increased personal risk, to abide by international humanitarian law in their conduct of armed conflict.

Finally, the plight of former genuine PoW is demeaned by those seeking to free Hicks at all costs and without sufficient thought as to the consequences. The protection of future Australian PoW is also risked if the tried and tested provisions of the Laws of Armed Conflict are undermined. In the quest to free David Hicks apparent short-term expediency must be subordinated to the avoidance of serious longer-term consequences.