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UN: Australia Violated David Hicks’ Human Rights

Conviction challenge

On 16 February 2016, the chair of the United Nations Human Rights Committee, Fabian Salvioli, stated that the jailing of David Hicks in Australia was as a result of a ‘flagrant denial of justice’. The long awaited decision affirms what David Hicks has been stating for all of these years, not only about the unlawful and arbitrary nature of his detention, but also details the substantiated evidence of his torture and ill-treatment whilst detained at Guantanamo Bay.

The win for Mr Hicks comes as a result of a six year long wait, after a communication was submitted to the UN Human Rights Committee in 2010. You can read the content of the 2010 communication here.

UN Human Rights Committee Decision notes that the Australian government attempted to deny any responsibility for the detention and treatment of David Hicks, by stating that because Mr Hicks was detained in the US run facility at Guantanamo Bay, it was out of their jurisdiction. However, the UN found that this was not the case, given that the Australian government knew that Mr Hicks was likely to be subjected to an unfair system and he was subsequently imprisoned in Australia under a prisoner transfer agreement, despite this knowledge.

Torture

It is the comments the report makes about David Hicks’ torture that deserve particular mention. The decision details Mr Hicks’ torture and ill-treatment whilst detained in Guantanamo Bay. The report notes that David Hicks;

“was subjected to various forms of ill-treatment while in the custody of the United States. Such forms included: beatings, punching and kicking; sexual abuse and humiliation; repeated threats by weapons; being forced into painful stress positions; prolonged hooding and blindfolding; frequent tight handcuffing and shackling; enforced taking of medication or drugs; sleep deprivation; prolonged exposure to bright lighting and excessive continual noise; deprivation of the ordinary necessities of living, including adequate food, exercise and hygiene basics; threats of rendition to torture in Egypt; prolonged solitary confinement; witnessing abuse to other detainees; etc. The author reported his abuse to the International Committee of the Red Cross, family members and Australian officials who interviewed him in May 2002, including Australian Federal Police, Australian Security Intelligence Organisation and consular officials. Former detainees at Guantanamo Bay substantiated the author’s claims.

The author suffered significant physical injuries due to his ill-treatment, many of which require ongoing medical treatment. They include a fractured hand, back and jaw injuries, stress-fractured feet, eye injuries and affected vision, kidney stones, painful lumps on his chest, tooth decay and a double inguinal hernia. No explanation has been offered by the United States for those injuries.

...By interviewing [David Hicks] in the custody of the United States to gather intelligence, Australia recognized the author’s unlawful treatment by the United States and thereby encouraged and supported it.

The Australian government “has not taken adequate steps to investigate the author’s allegations of torture in the custody of the United States.” Given the evidence already made public about Mr Hicks treatment, and the recent revelations of CIA torture that have surfaced, an independent investigation would now certainly be warranted.

The report further notes, ”the State party had some influence over the way the United States treated the author and was in a position to take positive measures to ensure that the author was treated in a manner consonant with the Covenant, including to take measures intended to remedy violations of the author’s rights.” Because the Australian government imprisoned Mr Hicks upon his return to Australia “the State party violated the author’s rights under article 9(1) of the Covenant.”

The Committee also noted a breach of article 15(1) of the Covenant by participating directly in the retrospective punishment and imprisonment of David Hicks as the crime he was accused of committing (which was vacated this time last year), was a retrospective charge.

Importantly, the report notes that Mr Hicks “had no other choice than to accept the terms of the plea agreement that was put to him.” This position has long been held by Mr Hicks.

US Government Violations

The report also takes aim at the US government for a number of violations, including arbitrary detention and unfair trials;

 ”The author’s detention at Guantanamo Bay was arbitrary because the United States failed to establish a justification for it under international law. It did not properly determine his status in accordance with international humanitarian law and did not charge him with a valid criminal offence. Furthermore, the absence of a lawful, non-retrospective conviction renders the detention arbitrary and unlawful. Its lawfulness is assessed not only according to domestic law but also according to international law. As for arbitrariness, detention flowing from a retrospective offence is a paradigmatic example of it, since it is premised on capricious, post facto government action.”

Indeed, the committee notes that  ”The Military Commission was not a competent, independent and impartial tribunal.” and notes the repeated statements made by US and Australian officials of his guilt, prior to being placed on trial for anything.

The US is not a state party to the optional protocol, and therefore, no individual communications can be brought against them.

Where to from here?

Given this decision, it is time for the Australian government to investigate what took place in the David Hicks case, due to the serious human rights violations.

Mr Hicks continues to suffer from the injuries he sustained whilst the Australian government knew of his torture. The least the Australian government can do is pay for his medical expenses considering they left him there, knowing he was being subjected to conditions and treatment that amount to torture.