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Pragmatism trumps principle

By Mirko Bagaric - posted Friday, 7 July 2006

David Hicks - just a trivial piece of collateral damage

After more than four years of doing hard time at the Guantanamo Bay US military prison in Cuba, David Hicks will get his day in court soon. That’s the only message to be gleaned from the fact that the Prime Minister John Howard and the Foreign Minister Alexander Downer are finally making noises that the US needs to get a wriggle on regarding its treatment of Hicks.

Until now the Australian Government has declined to make any negative public comments regarding the shabby treatment of an Australian citizen by the US. This has changed following the US Supreme Court ruling last week that the military commissions established by the US administration to prosecute Hicks and hundreds of others were illegal.


But don’t be conned into thinking that the changed stance by the Australian Government has anything to do with the legalities or ethics of Hicks’ detention. It is all about pragmatics. The Australian Government has known all along that Hicks’ detention was illegal. It did not criticise the US simply because it took the view that the welfare of Hicks wasn’t worth a diplomatic stoush with our closest foreign ally - the US.

They were right. International relations is a complex activity. You have got to know when to push and when to back off. Australia’s relationship with the US is its most important global connection. In dollar terms, the relationship is unquantifiable.

Was the Howard Government going to risk souring this by throwing a hissy fit at the treatment of one of its citizen who preferred to spend his spare time training with terrorists as opposed to watching the footy? Not likely.

Which is why the constant rhetoric by lawyer groups and civil libertarians over the past four years to rescue “Aussie David” was uninformed in the extreme.

When the global stakes are high, international law goes out the door. It always has and always will. The most cardinal prohibition in international law is the prohibition of the use of force against another state. Since World War II the US has used force against another state on more than 30 occasions - the most notable examples being South Korea, Vietnam, Nicaragua, Guatemala, Cambodia, Grenada, Afghanistan and Iraq (twice).

Arguably, some of these interventions were lawful. Almost certainly some were not, such as Nicaragua and the second Iraq campaign. Despite this, the sum total of the adverse consequences that have been imposed against the US, as a result of the implementation of international law, is zero. This reveals a fundamental shortcoming of the international law system - it is more akin to a system of etiquette, rather than a prescriptive set of rules.


The US locked up Hicks and more than 400 prisoners without trial in Guantanamo Bay for over four years for two reasons. First, because it wanted to make an example of them - get on the wrong side of the “war on terror” and you’ll come to regret it. Second, it kept them there because it could.

The current US military and economic dominance is unrivalled in human history. For the first time in memory we have a world which is totally dominated by a sole military power. As noted by Former Judge of the International Court of Justice, C.G. Weeramantry:

Never has it occurred before that one single nation has been universally looked upon as the world's leader, the pre-eminent power of the world. Not the Egyptians or the Persians or the Greeks or the Romans, not the Portuguese or the Spanish or the Dutch, not the Germans, the Japanese or anybody else ever had this universal recognition. No nation in history ever had this position, suddenly descending on it, of being the universally acknowledged superpower of the world.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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