Offshoring Justice: David Hicks, Australia and the UN Human Rights Committee

Written on February 27th, 2016 in politics Comments Off

Published on Dissident Voice, by Binoy Kampmark, Feb 25, 2016 (also on International Police Digest).

He always had a rough deal. He strayed as a young man, a situation that would have been perfectly acceptable if he had picked the approved rogue group or terrorist collective to vent his adolescent angst. Al Qaeda, and their Taliban hosts, were not on that list. Having fallen out of favour with the Oscar equivalent of good terrorist nominees, Australia’s David Hicks found himself in the dark, picked up in Afghanistan in November 2001 and conveyed to that terrestrial nightmare known as Guantánamo Bay soon after.  

From January 2002 to March 2007, he was detained at the US Naval Base on the island. Over five years later, he was sentenced (on March 31, 2007) by Military Commission to a term of imprisonment of seven years. A bilateral transfer prison arrangement between the US and Australia followed, with Hicks returning to Australia in May 2007 to serve seven months of his sentence. Suspecting that his behaviour might turn, the Federal Magistrates Court imposed an interim control order on Hicks on his release on December 28, 2007.

Unfortunately for Hicks, the military commissions, fanciful creatures of executive contrivance, were more real than most. It would take till February 2015 for the courts to find in David Hicks v United States of America that he was innocent, an acknowledgment that led to the vacation of his sentence for providing material support for terrorism. That greatest of legal sins – retroactivity – had come into play … //

… The main question charging the UNHRC was whether Australia had jurisdiction over the subject “while he was in the custody of the United States.” The fact that the US had not ratified the Optional Protocol to the Covenant did not prevent the committee from examining Hicks’ concerns regarding Australian responsibility even during his time in US custody … //

… Hicks’ powerful argument on torture centred on Australia’s failure to investigate allegations of its commission while in US custody. In rebuttal, Canberra’s argument was that it had no obligation under the Covenant “to investigate allegations of torture relating to conduct outside the jurisdiction of a State party.” Such an argument, if accepted, would suggest that torture can, by its very nature, be outsourced, kept beyond the jurisdictional control of the citizen’s country. If another state is doing it, one is under no obligation to intrusively assist citizens.

The Committee went so far as to note that Australian officials continued to interview Hicks several times while in US custody and the efforts of Australian agents to investigate other claims of torture made against its nationals. These did not, however, constitute acts of “control” over Hicks, even if Australia might have done more to help their national. Its officials were “in a position to take positive measures to ensure that [Hicks] was treated in a manner consonant with the Covenant, including to take measures intended to remedy violations of the author’s rights.”

Having considered that aspect, the Committee still felt, rather fancifully, that spending seven months in Australia, despite being a violation, was a form of mitigation of harm “he would have suffered had he continued to be kept” at the Guantánamo Bay facility. One ill had been mitigated by another … //

… Hicks did get some satisfaction regarding his claim of arbitrary detention (Art. 9(1)) for the seven months of his sentence served in Australia proper. But in doing so, the UNHRC’s verdict was narrow, and its effect limiting. The large points were left undisturbed. As the Director of the Castan Centre for Human Rights Law at Monash University observed, “the UNHRC ultimately focused on the lowest-hanging fruit”. The sordid tale of Australian complicity remains unchallenged.

(full text).

(Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne and can be reached here.  Read other articles by Binoy).

Related Links:

on en.wikipedia:

Other Links:

BND-Szenarien, auf Neue Rheinische Zeitung, von Hans Georg, 27. Feb 2016;

Schweiz: Marschbefehl für 5000 Soldaten, auf KOPP online, von Udo Ulfkotte, 26. Feb 2016: In wenigen Tagen schon könnte die EU wieder auseinanderbrechen. Das sagen nicht Verschwörungstheoretiker, sondern ein EU-Kommissar. Die Schweiz reagiert und bereitet die Armee mit militärischen Mitteln auf die Grenzsicherung vor. 5000 Soldaten haben den Marschbefehl bekommen, die Schweizer Armee ändert die Aufgebote. Deutsche Propagandamedien schauen lieber weg und verbreiten Durchhalteparolen.
Kennen Sie Dimitris Avramopoulos? Wahrscheinlich haben Sie seinen Namen noch nie gehört. Dimitris Avramopoulos ist seit November 2014 EU-Kommissar für Migration. Sein Chef heißt Jean-Claude Juncker. Dimitris Avramopoulos hat auf einer Pressekonferenz gesagt, dass der Countdown für den Zusammenbruch der bestehenden Grenzsicherung in der EU laufe …;

Threat me, threat me not? State Dept, Pentagon split on whether Russia is enemy or partner, on RT, Feb 26, 2016;

Iraqi militia seize ISIS chemical weapons store (VIDEO), on RT, Feb 25, 2016;

Robots will take your job, on Boston Globe, by Scott Santens, Feb 25, 2016;

Doughnut or double – bankers’ bonuses and spousal maintenance, on LEXOLOGY, by Kingsley Napley, Feb 24, 2016;

again – project Camelot: a Rothschild speaks out, 68.47 m in, uploaded by Project Camelot channel, May 29, 2013;

… and this:

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