David Hicks, Victim's Compensation and International Law
Monday 23 February 2015 @ 10.53 a.m. | Crime | Legal Research
Mr David Hicks (Hicks), a former prisoner at the US Navy base at Guantanamo Bay, has won a legal challenge to his terrorism conviction before a military court in Cuba. However, now the question has arisen as to who is responsible for the costs of his substantial ongoing medical expenses.
Background to the Hicks Case
Hicks was captured in 2001 and alleged to have aided the Taliban in Afghanistan against US interests. Several charges were laid, but after a series of legal challenges in and to the Military Commissions, all but the charge for “material support for terrorism” were dropped.
To gain his freedom, Hicks eventually entered what is known as an “Alford plea”, a US legal device which lets the defendant accept punishment without actually confessing guilt. As a result, he was sentenced in March 2007 to seven years’ imprisonment, suspended for all but nine months. After two months, he was transferred to Australia to serve the remainder of his sentence.
In 2012, the DC Appeals Court held – in a separate but related case – the charge to be ill-founded. Although part of Hicks’ plea agreement was that he would not challenge his conviction, Hicks has maintained he only signed the agreement under duress, calling its validity into question.
As such, it was appropriate for Hicks’ legal representatives to lodge an appeal – which they did in mid-2013, resulting in the current legal win in the US Military Court in Cuba.
Position of the Australian Government
In a media release on 19 February 2015, the Attorney General noted the decision by the US Military Tribunal, however qualified that the admissions made by Hicks were of involvement with a terrorist organisation. Although the current anti-terrorism laws were not yet in force at the date on which Hicks committed his crimes, the Attorney-General maintained that "The Australian Government's dealings with Mr Hicks, at all times, have been in accordance with Australian laws."
As Lawyer's Weekly confirms, George Brandis stressed "that yesterday 19 February's ruling by the US Court of Military Commission does not mean Mr Hicks is innocent."
Where to From Here?
For Hicks, while he said he was not going to seek an official apology or compensation, he said "someone" should be responsible for his medical expenses, including dental work and back, knee and elbow operations.
And under international law, specifically articles 2 and 9 of the International Covenant on Civil and Political Rights(ICCPR), those who are detained arbitrarily or illegally are owed an “effective remedy” – there is no exception for the “undeserving”.
A spokesman for former prime minister John Howard said the US decision was a technicality and Mr Hicks was not owed an apology or any other form of compensation:
"The US verdict is about the legal process in that country...Nothing alters the fact that by his own admission, Hicks trained with Al Qaeda, met Osama bin Laden on several occasions — describing him as a brother. He revelled in jihad."
But Opposition Leader Bill Shorten said Mr Hicks suffered an injustice and the Government needed to respond:
"There is no doubt on one hand David Hicks was probably foolish to get caught up in that Afghanistan conflict, but clearly there has been an injustice done to him...The American courts have finally established that. I think there is an issue here for the Australian Government. We can't control what American military courts do, but I do think that the Australian Government needs to examine did they really do all they could to ensure injustice didn't occur?"
It seems that the confirmation of false charges means Hicks is entitled to some sort of remedy, however his mistreatment, which potentially constitutes a breach of both the ICCPR and the UN Convention Against Torture, and its consequences – and the need for ongoing medical care – mean that adequate, and potentially substantial, compensation is required if the remedy is to be “effective” as defined in international jurisprudence.
If the matter came before an international tribunal, as stated in the Castan Centre for Human Rights Law Article, there would likely also be recommendations to “make official inquiries into the circumstances giving rise to the breach”, and to “take measures to prevent similar violations in the future”.
Based on the Government’s stance to date, there seems little chance of a remedy being provided. A suit based on domestic law might be Hicks’ only recourse, but he would face substantial jurisdictional hurdles given that most of the potential claims relate to his treatment in another country.
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