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UN Human Rights Communication

In 2010 David Hicks’ legal team submitted a Communication to the United Nations Human Rights Committee.

The Communication outlines a number of breaches under the International Covenant on Civil and Political Rights to which Australia is a party to.

The below is a summary of the main breaches raised in the complaint:

Summary of ICCPR Articles Violated

1. Violation of Article 15 – retroactive punishment of Mr Hicks by Australia

In 2007, a United States (US) military commission at Guantanamo Bay, Cuba, convicted Mr Hicks of the offence of ‘providing material support for terrorism’ under section 950v(25) of the Military Commission Act 2006 (USA) (‘MCA’) (Annexure C). That offence was unknown to international law or US domestic law at the time of Mr Hicks’ alleged conduct and Mr Hicks was thus subject to retroactive criminal punishment, contrary to article 15 of the ICCPR. By entering into a Prisoner Transfer Arrangement (Annexure Q) with the US, to enforce Mr Hicks’ sentence of imprisonment in an Australian prison, and by enacting related domestic legislation, Australia assumed direct responsibility for the unlawful, retrospective criminal punishment of Mr Hicks. Such conduct was not justifiable and reasonable alternatives to it were available in order to achieve the humanitarian purpose of securing Mr Hicks’ release from Guantanamo Bay.

2. Violation of Article 9 – unlawful, arbitrary detention of Mr Hicks by Australia

Australia’s imprisonment of Mr Hicks for seven months in Yatala Prison, Adelaide, was unlawful and/or arbitrary under the ICCPR because it flowed from: (a) his unlawful retrospective conviction; and/or (b) a flagrant and irremediable denial of justice, caused by Mr Hicks’ manifestly unfair criminal trial before an irregular US military commission.

3. Violation of Articles 2 (right to an effective remedy), 14 (the right to appeal a criminal conviction), 17 (the right to privacy), and 19 (freedom of expression) – by agreement with the United States, Australia adopted as its own the United States’ unlawful Plea Agreement with Mr Hicks, or otherwise unlawfully assisted the US in that Plea Agreement

Mr Hicks’ conviction was based on an unlawful Plea Agreement (Annexure J) with the US, since there can be no legal authority for a State to offer or rely upon a plea in relation to a retroactive offence. Duress of circumstances surrounding Mr Hicks’ plea, particularly the imminent prospect the manifest denial of a fair trial and his cumulative ill-treatment in US custody, further rendered it null and void under international law. The Plea Agreement required Mr Hicks to surrender his right of appeal, freedom to speak freely for 12 months after conviction, and freedom from undue interference by law enforcement authorities. By adopting the Plea Agreement as its own, or otherwise by assisting in its adoption by the US, Australia is internationally responsible for violations of Mr ‘Hicks’ rights stemming from the conditions of the unlawful Plea Agreement.

4. Violation of Articles 7 (freedom from ill-treatment), 9 (freedom from arbitrary, unlawful detention), 10 (humane treatment in detention) – Australia unlawfully participated in the unlawful detention, interrogation, and treatment of Mr Hicks at Guantanamo Bay

By interviewing Mr Hicks in US custody to gather intelligence, and in utilising that evidence in control order proceedings in Australia, Australia recognised Mr Hicks’ unlawful treatment by the US and thereby encouraged, supported and participated in it. In doing so, Australia unlawfully aided or assisted the US in the commission of internationally wrongful acts against Mr Hicks.

5. Violation of Article 14 (right to a fair criminal trial) – Australia unlawfully participated in the unfair trial of Mr Hicks by the United States

Australia’s express public and practical support for the trial of Mr Hicks by the US military commission amounts to unlawful aid or assistance to the US in the commission of an internationally wrongful act, that is, the manifestly unfair trial of Mr Hicks.

6. Violation of Articles 7 (freedom from torture and other ill-treatment) and 2 (effective remedies for rights violations) – Australia failed in its duty to investigate credible allegations of torture committed against one of its nationals by the United States

Australia was repeatedly placed on notice that one of its nationals, Mr Hicks, had been seriously ill-treated while in US custody, in circumstances where the US had failed to account for injuries caused to Mr Hicks while in US custody. Australia violated its obligation under articles 7 and 2 of the ICCPR’ to independently investigate credible allegations of torture made by an Australian national present in Australia concerning his ill-treatment abroad by a foreign State, in circumstances where that State, the US, failed to conduct a full independent inquiry or to otherwise explain the causes of injuries to Mr Hicks which did not exist prior to his entering into US custody.

7. Non-interference in the home, correspondence, privacy and family (ICCPR, article 17); freedom of movement (ICCPR, article 12); freedom of association (ICCPR, article 22); the right to a fair hearing (ICCPR, article 14)

Australia imposed a ‘control order’ (Annexures U, V) on Mr Hicks under the Criminal Code Act 1995 (Cth) (Annexure R) which (a) was not shown to be necessary to prevent him committing, terrorism, and (b) was imposed following a procedurally unfair court proceeding. In such circumstances, the various restrictions placed upon the rights of Mr Hicks by the control order were not demonstrated to be necessary or proportionate in pursuit of any legitimate public security aim. Further, the completion of Mr Hicks’ term of imprisonment in Australia should have been regarded as expiating his criminal responsibility for any past wrongful conduct. Yet, the control order was subsequently imposed upon him on the basis of that same past conduct, contrary to the ne bis in idem principle under international law.

The Full 107 Page document can be downloaded HERE.