Attorney General of Australia
The Honourable Robert McClelland
Dear Sir
It is with much dismay and revulsion that many Australians, inclusive of legal practitioners, observe the ongoing persecution of David Hicks, under the guise of mounting an action to confiscate his book royalties under the Proceeds of Crime Act 2002. After five and a half years of incarceration in the legal black hole of Guantanamo Bay, subjected to torture and numerous other breaches of his human rights including an unfair trial, application of retrospective law, abandonment by the then government of Australia (and active cooperation by it in his abuse): it is an act that reiterates, condones or inherently approves of - and raises yet again, the question of accessorial liability for - the internationally recognised, egregious and illegal acts of the US administration at that time.
The facts of the matter are that David Hicks, to end his unjust ordeal, under extreme duress and coercion, pleaded to a charge of providing material aid to a terrorist organisation: that US law being retrospectively applied contrary to the ICCPR and under a flawed Military Commission Act disowned by the current president . The Australian government aided and abetted that plea, knowing of the abuse, and with domestic legislation cooperated with the US to see to it that David Hicks served out the remainder of his sentence in an Australian jail, prohibited from speaking out under a further Control Order, which was at that time, not just, but such a politically convenient result for John Howard, prior to the 2007 election.
273. To summarise, the ill-treatment of Mr Hicks by US authorities which…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 handcuffng 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) Deprivátion 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 theats 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.
All this egregious treatment Minister was:
390 …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.
And as to his abandonement by the Howard government:
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 Convention1949, article 147), for which Australia would bear international legal responsibility.
Minister, giving you the benefit of the doubt that you didn’t instigate this legal action; that you ignored Senator Brandis and left the decision to the Director of the Commonwealth’s Department of Public Prosecutions; that you do indeed support free speech and would never seek to muzzle publication of politically unpalatable truths exposing the US and Australian governments to opprobrium for illegal acts: it is suggested that you have an obligation to advise the Director that his action may well be a further breach of the ICCPR, that it reinforces (arguably accessorises) the effect of the above posited war crimes against Hicks.
Further, in one sense, it is also a contempt of the Optional Protocol and Communication by Hicks’ counsel to the UNHRC, quoted above, which additionally seeks a remedy of undertaking by the Australian government not to proceed on this very course of confiscation.
Lastly, should the matter unfortunately resolve in the favour of the DPP, we look forward to a case in the High Court with perhaps more than passing mention of the implied rights of political communication under our Constitution. In that case the Director may well have the undivided sympathy of one Mr Theo Theophanous, former Labor party member
Yours Faithfully
Peter Kemp
Solicitor of the Supreme Court of NSW.
The Attorney General can be contacted at: attorney@ag.gov.au
Correction thanks @melbourneninja (The Honourable Robert McClelland is not a senator.)
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Expiditionary Ventures
As not one country declared war before invading Iraq and Afghanistan, then the governments of those invading countries are criminally liable for the consequences. This may well extend to those people in government who by aquiecence allowed the invasions to occur. Not one of the participating invaders/(Adventurers), has conclusively proven harm or threat from the governments or military of Iraq, Afghanistan, and now Libya, prior to the invasions. Instead these invaders have relied on the contrived sanctions of the United Nations.
War Crimes prosecutions:
It appears that the governing structures of all the countries involved in the invasions of Iraq and Afghanistan are intent on pursuing a course of delay and denial. It might be assumed that very many people are as you suggested, 'accessories', both before and after the fact. Were all these people held personally accountable the entire structure might be collapsed. This is obviously something that people who rely on their offices for privilage and purse, would resist.
Perhaps, as in the American case, accountability is seen as a row of dominos. We may have recently seen the same mindset in Britain where the Parliament appears to have passed on Mr. Murdoch inspite of the harm his businesses appear to have done to the country and to individual persons.
Hi Paul
One of the problems of the ICC is that there is no agreement on what constitutes the crime of aggressive war. Secondly, even with war crimes, (and given that the USA is not not a signatory nation) individuals like Rumsfeld when threatened with legal action abroad tend to avoid visiting that nation. For the rest, the USA puts on political pressure not to prosecute.
But the times will change as international law advances by increments - note Pinochet as one example. And as US power declines.
Personally I think that NATO assisting the Libyan rebels is justified however the system is selective and unbalanced - 'mates' like Saudi Arabia are very immune. Libyan, Egyptian and Tunisisan former 'mates' were much less immune and were ultimately expendable.
Justice on crimes against humanity perpetrated by dictators is, if you like, inversely proportional to the current usefulness of the dictator to the USA or, in the case of the USA with Iraq and Afghanistan, justice is inversely proportional to the level of hatred they had for Mullar Omar, Saddam Hussein and at the bottom of the war chain, hatred of people like David Hicks.
While the USA considers itself to be a highly selective global policeman, we have no international "guards" to guard the "guardians" That's the dilemma of human rights in the unipolar world today. How it gets better in a fast developing multipolar world depends on us, and lawful, continual human rights activism, chipping away, exposing and condemning the perpetrators.