For five years we have been told that David Hicks must remain in Guantanamo Bay because he committed war crimes. We now know this to be untrue. When Hicks was finally charged last week, all that was left of years of allegations was an offence that is not a war crime and did not even exist when Hicks was in Afghanistan in 2001.
Gone are the allegations of conspiracy and aiding the enemy, as is the charge of attempted murder sought by the prosecution. This last charge was dismissed by the chief judge of the military appeals court because of a lack of evidence.
This was not surprising given that the prosecutor had admitted that there was no evidence that Hicks had fired a gun at anyone, only that he had a gun and had positioned himself where he thought he might encounter US and allied forces.
Just one charge has been left standing. That charge, providing material support for terrorism, does not exist in the laws of war. Nor is there any suggestion that Hicks breached the law in 2001. It was only by making the law retrospective that he could be tried. The US and Australian Governments say that this offence is not new because it is based on existing American domestic law. However, that law is fundamentally different. It did not apply to foreign nationals. The new offence is also broader and carries a much higher penalty.
Retrospective criminal laws breach the rule of law. They can result in a person being found guilty for doing something that was not a crime at the time they did it. This means a person can never know whether they are doing something illegal. It is for this reason that such laws are prohibited in legal systems around the world.
The Australian Government long ago ruled out any possibility of creating a retrospective offence to allow Hicks to be brought home and charged in Australia. They were correct that prosecuting a retrospective crime is wrong in principle.
However, the Government has now abandoned principle. If trying Hicks in Australia under a retrospective law is abhorrent, it is hypocritical to support such a trial under the new American law.
Prime Minister John Howard said earlier this year that he believed Hicks would be sent back to Australia if he requested it. The British Government demanded this and their citizens were dealt with at home in accordance with their system of justice. It was found that their detainees had not breached the law and they were set free.
If Hicks is brought home there are two options for dealing with his alleged conduct in Afghanistan.
First, it is possible that the Government could try to have him charged under Australian law for breaching laws such as the Geneva Convention or the Foreign Incursions Acts. These laws were in force when Hicks was in Afghanistan.
The problem is that Australian prosecutors are unlikely to charge him under these laws. There is simply not enough evidence considered admissible by Australian courts to secure a conviction.
It seems that the only way that Hicks could be tried was for the US Government to set up a process that bends the rules by allowing hearsay and evidence obtained by coercion. This is one reason why the military commission process is unfair and unjust. It has the appearance of being doctored to secure a conviction rather than to find the truth. The process permits Hicks to be convicted as a result of evidence that we regard as inherently unreliable.
Second, if Hicks is brought home and not charged the Government can ensure he poses no threat to the community. He might have his passport confiscated and could be placed under 24-hour surveillance. He might even be the subject of a control order. If there is evidence that Hicks received training from a terrorist organisation or that a control order would help prevent terrorism, a court can issue the order to protect the public. The order could place Hicks under house arrest, restrict who he can speak to and generally ensure that he does not cause trouble. Such an order has already been put on Jack Thomas.
Hicks has been detained for five years and now, as his trial approaches, there is not one charge left that could stand up in a court of law. The Government must demand his return to Australia where, based on the evidence, he can be held accountable for his actions or treated so that he poses no danger to the public.
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