There are several international human rights Conventions, treaties and Covenants to which Australia and the United States are voluntary signatories. These internationally agreed instruments outline norms for the treatment of individuals and the responsibilities of states.
The UDHR was adopted by the United Nations General Assembly on December 10, 1948. The 30 Articles in this Declaration outline the most basic of rights and responsibilities and include;
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
International Covenant on Civil and Political Rights (1966 and into force 1976)
ICCPR is divided into six parts and includes the construct of a Human Rights Committee to which states are accountable for breaches of the Covenant.
In ratifying the ICCPR Australia and the USA have undertaken to ‘respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind’. These rights include the right to life; to be free from torture or cruel, inhuman or degrading treatment or punishment; to liberty and security; to be free from arbitrary detention; to free movement; equality before the law; and to freedom from arbitrary interference with privacy or family.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Detainees in Guantanamo Bay were subjected to a range of cruel, inhuman and degrading treatment.
The Senate Armed Services Committee Inquiry into the Treatment of Detainees U.S. Custody accepts that US senior officials “solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees”.
“Military medics often gave detainees tablets, injections and took ‘blood samples. While in kilo block this program of forced medication intensified…..refusal was not an option’
– p.252, Guantanamo: My Journey by David Hicks
“Outside the tent I was again stripped naked. My head, armpits, and crotch were shaved and I was covered with a liquid (by use of a sponge). Inside the tents, there were about ten US personnel at different stations. Inside the tent, I was photographed naked and white piece of plastic was forcibly inserted in my rectum for no apparent purpose during this process, and some of the staff joked about this procedure. The US personnel made remarks such as, “Extra-ribbed for your pleasure” (like a condom) as the item was stuck in my rectum.”
- p.208-209, Guantanamo: My Journey by David Hicks
See also the Convention against Torture and information on Torture at Guantanamo Bay.
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release…
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
David Hicks, Mamdouh Habib and many other Guantanamo detainees were subject to imprisonment without charge for many years.
US officials took custody of David in 2001 and did not charge him with any offence until August 2004. In March, 2007, David was the first detainee from Guantanamo to be taken before a military commission – this was nearly six years after his initial detention. Click here to view a Timeline outlining these events. During his time in Guantanamo Bay, David and other detainees were unable to challenge their detention in a regular court. The plea agreement that David signed in order to get out of Guantanamo Bay contained a clause signing all proceeds resulting from his imprisonment, including compensation, over to the Australian government.
ICCPR addresses the issue of human dignity – anyone deprived of their liberty is still entitled to be treated with humanity and with respect for the inherent dignity of the human person (ICCPR Article 10(1)). Article 10 goes on to state that accused people should be segregated from the convicted, and treated accordingly. It also stipulates that amongst the convicted, juveniles should be separated from adults and afforded treatment appropriate for their age and legal status. Read about Omar Khadr, a juvenile detained at Guantanamo Bay.
The ICCPR goes provides very detailed information regarding the standards needed for a fair trial.
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
It has been widely noted that the Military Commissions system used to try Guantanamo detainees did not constitute a fair trial. Guantanamo hearings are conducted behind closed doors on the basis of ‘national security’. The military commissions could not be considered independent and impartial since the prosecution, defence and convening authority (adjudicator) are all part of the one system, and that system was placed within a chain of political command. Figures in the Department of Defense and Department of Justice pushed for convictions of certain detainees with “strategic political value”.
Article 14(2) of ICCPR
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
From the time of his detention, David was assumed guilty.
His very presence in Guantanamo Bay was taken to confirm that he was a dangerous individual. There was no room for acquittals in the military commission.
“If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals- we’ve got to have convictions”
- William Haynes, former General Counsel of the US Department of Defense 2nd October 2005
Three prosecutors resigned claiming that they had witnessed criminal conduct in the military commission’s prosecution office, that the commissions were rigged to secure convictions, and that evidence supporting the detainees’ innocence was destroyed and false evidence was created to implicate them.
“When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused, instead, I find a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged.”
- Captain John Carr U.S. Military
The Howard Government also contravened the principle of justice enshrined in Article 14(2) of ICCPR by publicly stating that David was a member of al-Qaeda and “dangerous” before he had been tried. The US labeled David “the worst of the worst” before any trial had occurred and without revealing any accurate information of his alleged actions warranting such a title.
Article 14(3) of ICCPR reads:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
- (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
- (c) To be tried without undue delay;
- (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistances, of this rights; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
- (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- (g) not to be compelled to testify against himself or to confess guilt.
Article 14 (5) explains that everyone has the right to have their conviction reviewed by a higher court and Article 14(6) addresses the matter of compensation to be paid to the person if there is found to be a miscarriage of justice.
The plea bargain that brought David home contained a waiver of his right to appeal his conviction and he had to state that he was not ill-treated in any way whilst in US custody.
Prohibition on Retrospective Laws
Article 15 provides that:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
The same principle is found in Article 11 of the Universal Declaration of Human Rights (1948).
“The suggestion that the offence of Providing Material Support for Terrorism under the MCA is merely a codification of an existing Law of War or an existing domestic law of the United States, and is therefore not a retrospective criminal law, is untenable. This is a recently invented and new war crime created with the passing of the Military Commissions Act of 2006 on 17 October 2006.”
- Legal advice provided on David’s case by eminent Australian and international law experts.
In 2005 when asked why David Hicks could not be brought home and tried in Australia Prime Minister John Howard stated;
“We do not intend to pass retrospective criminal laws. That would represent a very significant regressive move and it would violate the basis of our criminal justice system.”
Yet, he and his Government did nothing to ensure that David didn’t face retrospective charges as metered by the USA.
Right to Remedy
Article 2(3) of the ICCPR also requires Parties to ensure effective remedy for individuals whose rights or freedoms have been violated, even where the violation has been committed by persons acting in an official capacity. Any person claiming such a remedy must have his claim determined by a competent authority that will enforce any remedy that is granted (Article 2(3)(b) and (c)).
The plea agreement that David signed in order to get out of Guantanamo Bay contained a clause that signed all proceeds resulting from his imprisonment, including compensation to the Australian government.
The Geneva Conventions codify the laws of war. The International Committee of the Red Cross works to ensure respect for these laws. The Bush administration argued that the Geneva Conventions did not apply to Guantanamo Bay detainees, President Obama has reinstated the Conventions since taking office.
Article 3 of the Geneva Conventions states that;
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
- (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
- (b) Taking of hostages;
- (c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
- (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.