David Hicks: prisoner of war or prisoner of the war on terrorism?

• Author: Nichols, Lionel

Abstract

Despite being incarcerated at Guantanamo Bay for over five years, David Hicks never had his true legal status determined by a competent tribunal. This paper seeks to determine the true status of David Hicks under international law. It argues that attempts by the United States to classify Hicks as an 'unlawful combatant' are contrary to the Geneva Conventions. When captured, Hicks was either a member of the Taliban or a member of al-Qaeda. If Hicks was a member of the Taliban his true status was that of a prisoner of war. If Hicks was a member of al-Qaeda, he was a civilian who was no longer taking an active part in hostilities. Given the uncertainty over his membership and the fact that Hicks claimed to be a prisoner of war Hicks was entitled to presumptive prisoner of war status. During his detention at Guantanamo Bay and in the course of his trial before the Military Commission Hicks was not afforded many of the fundamental guarantees he was entitled to, thereby placing the United States in breach of the Geneva Conventions and international human rights law.

Introduction

Despite being incarcerated at Guantanamo Bay for over five years until his release in May 2007, David Hicks never had his true legal status determined by a competent tribunal. This article seeks to determine the true status of David Hicks under international law. In the process it will consider a number of questions at the forefront of international humanitarian law. First, does international humanitarian law apply to the 'war on terrorism'? Second, is the category of 'unlawful combatant' recognised by international humanitarian law and, if so, what protections are such persons entitled to? Third, can international humanitarian law apply to a conflict involving a non-State actor? Fourth, what is meant by the terms 'international armed conflict' and 'non-international armed conflict' as they apply in the context of the 'war on terrorism'? Finally, how should a detainee be treated should any doubt arise as to his or her status? This article argues that when Hicks was captured he was either a member of the Taliban or a member of al-Qaeda. If Hicks was a member of the Taliban, his true status was that of a prisoner of war. If Hicks was a member of al-Qaeda he was a civilian who was not taking an active part in hostilities and so was entitled to the fundamental protections provided in Common Article 3 of the Geneva Conventions. Given the uncertainty over his membership and the fact that Hicks claimed to be a prisoner of war, Hicks was entitled to presumptive prisoner of war status and the protections of the Third Geneva Convention until his true legal status was determined by a competent tribunal.

The argument is presented in four parts. Following this introduction, Part 1 attempts to explain the circumstances that led an Australian citizen to convert to Islam, join the Taliban and train with al-Qaeda. Relying upon both official sources and leaked documents, Part 1 seeks to summarise the capture, detention and trial of David Hicks.

Part 2 considers Hicks' status as a member of the Taliban. It argues that Hicks was captured during the course of an international armed conflict between the Coalition States and the de facto government of Afghanistan, the Taliban. As a member of the armed forces of a party to the conflict, Hicks' true status was that of a prisoner of war and his failure to wear a uniform did not deprive him of that status. As a prisoner of war, Hicks was entitled to fundamental protections contained in the Third Geneva Convention, including the right not to be subjected to any physical or mental torture and the right to be released at the end of hostilities.

Part 3 considers Hicks' status as a member of al-Qaeda. It considers the attempts by the United States to classify the conflict in Afghanistan as two separate armed conflicts. It demonstrates that even if Hicks was captured during the course of a non-international conflict between the Coalition States and al-Qaeda, as the detaining power, the United States was obliged to treat Hicks in a manner consistent with Common Article 3.

Part 4 argues that even if it cannot be concluded with certainty that Hicks was a member of the Taliban, there was at the very least doubt as to his status and hence he was entitled to presumptive prisoner of war status until his true status was determined by a competent tribunal. It concludes that as the Presidential Order, the Combatant Status Review Tribunal and the Administrative Review Board were not competent tribunals, Hicks' entitlement to presumptive prisoner of war status remained throughout his period of detention.

1. The Capture, Detention and Trial of David Hicks

In 1999 David Hicks was an Australian father of two working in Japan. Three years later he was captured fighting in Afghanistan, transported to a United States naval base in Cuba and charged with aiding the world's most infamous terrorist organisation. Prior to any discussion on the applicability of international law to Hicks' situation, it is necessary to explain and summarise the events leading up to his capture, how his case was brought to trial and his conditions of detention at Guantanamo Bay. Given the secrecy which surrounds Hicks' case, obtaining accurate and reliable sources is extremely difficult. As part of his plea bargain to secure his release from Guantanamo Bay, Hicks agreed not to speak to the media for one year. (1) Hence, what follows is not intended to be an historical account of Hicks' movements and experiences. Rather, it is a plausible explanation of Hicks' capture and subsequent detention so that discussion of his status may proceed.

1. Conversion to Islam and Membership of the Taliban

   In 1997 Hicks left behind his failed marriage and travelled to Japan to train recehorses. (2) Whilst watching television in Japan, Hicks became interested in the conflict between Serbia and Albania in Kosovo. (3) Hicks travelled to Albania and trained with the Kosovo Liberation Army (KLA), a paramilitary organisation fighting on behalf of the Albanian Muslims. (4) In an interview with the Australian Federal Police (AFP), Hicks stated that he joined the KLA to help the Albanian people. (5) By the time that Hicks arrived in Albania, however, the conflict was almost over. The United States Department of Defence alleges that whilst in Albania, Hicks engaged in 'hostile action', but this is disputed by his father, Terry Hicks, and his military lawyer, Major Michael Mori. (6)

   Soon after the cessation of hostilities, Hicks returned to Australia. He became further interested in Islam and so attended an Islamic college in Adelaide to learn more about the faith. By November 1999, Hicks had converted to Islam and travelled to a Pakistani madrassa to learn Arabic and study the Koran. (7) It appears that Hicks became one of the thousands of people to receive education from such institutions before being recruited by the Taliban, a Sunni fundamentalist movement that at the time was also the de facto government of Afghanistan. (8) At around the same time, Hicks joined Laskkar e Tayyiba (LET), an anti-Western missionary organisation fighting on behalf of Pakistan in Kashmir. Following the September 11 attacks, the United States declared LET to be a terrorist organisation, thereby allowing it to take action against the organisation under its Immigration and Nationality Act. (9) Hicks spent at least two months training with LET before travelling to the Kashmir border to fight for Pakistan. Hicks told his family that he fired 'hundreds of rounds' during his two weeks on the front line before returning to Pakistan to continue his studies. (10)

2. Training with al-Qaeda and the September II Attacks

   Whilst studying in Pakistan, Hicks became aware of the war in Afghanistan between the Taliban and the Northern Alliance. In August 2000 Hicks wrote to his family to say that it was his intention to fight for the Taliban for a short period of time but that he wanted to return to Pakistan by January 2001 to 'fulfil his other obligations as a Muslim' including hajj and marriage. (11) However, for reasons that are not entirely clear, Hicks became one of the 20,000 men who attended training camps run by al-Qaeda. It is alleged that for eight months, beginning in January 2001, Hicks undertook a number of training courses including basic training, guerrilla warfare, intelligence gathering and urban warfare. (12) In his interview with the AFP, Hicks admitted to having undergone this training and also to having met Osama bin Laden. (13) According to United States and Australian authorities, Hicks joined and trained with al-Qaeda with the intention of assisting the organisation to engage in terrorist activities. However, according to his former lawyer, Stephen Kenny, Hicks had no intention of engaging in terrorist activity on behalf of al-Qaeda. Rather, he was a member of the Taliban being trained by al-Qaeda in order to fight for the Taliban in its war against the Northern Alliance. (14) In early September 2001, Hicks returned to Pakistan where he remained until the terrorist attacks on the United States.

   President Bush attributed responsibility for the terrorist attacks to al-Qaeda. (15) The United Nations General Assembly and Security Council condemned the attacks and the Security Council passed a unanimous resolution affirming the United States' right to self-defence. (16) The United States declared a 'global war on terrorism' and demanded that the Taliban regime close all al-Qaeda training camps in Afghanistan and surrender all al-Qaeda members. The Taliban defied this demand and in October 2001 the United States led a coalition of States and the Northern Alliance in Operation Enduring Freedom, attacking the armed forces of both the Taliban and al-Qaeda.

3. The Capture and Detention of David Hicks

   The accounts of David Hicks' movements and motivations following the September 11 attacks...