tag:theconversation.com,2011:/id/topics/david-hicks-4106/articlesDavid Hicks – The Conversation2016-02-21T22:45:52Ztag:theconversation.com,2011:article/551202016-02-21T22:45:52Z2016-02-21T22:45:52ZAustralia found to have breached the human rights of David Hicks<figure><img src="https://images.theconversation.com/files/112256/original/image-20160221-25871-1mzn6wl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">AAP/Nikki Short</span></span></figcaption></figure><p>The UN Human Rights Committee (UNHRC) released its reasons in <em><a href="http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/115/D/2005/2010&Lang=en">Hicks v Australia</a></em> on February 16, 2016, in which it found that Australia had breached David Hicks’ right to be free from arbitrary detention. While the decision represents a measure of vindication for Hicks in the face of ongoing hostile disdain from the Australian government, it was perhaps disappointing in its narrowness.</p>
<p>The UNHRC supervises and monitors implementation of the International Covenant on Civil and Political Rights (“<a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">ICCPR</a>”), a global treaty that binds three-quarters of the world’s countries. </p>
<p>David Hicks’ complaint was submitted on September 10, 2010. The five-plus-year gap between submission and decision is unfortunate, but reflects the complexity of the case, as evinced by the original <a href="http://thejusticecampaign.org/wordpress/wp-content/uploads/2011/06/UN-Communication.pdf">100+ page submission</a> from Hicks’ counsel. </p>
<p>However, the UNHRC did not address these complexities appropriately. While Hicks was successful in one of his claims regarding arbitrary detention, prohibited under Article 9(1) of the ICCPR, his many other claims deserved more thorough consideration than they received.</p>
<h2>The basic facts</h2>
<p>Hicks’ story is recounted briefly here. He was apprehended in Afghanistan in November 2001, very soon after the invasion of that country by the US in the wake of the September 11 terrorist attacks, and was suspected of fighting on behalf of al-Qaeda, the Taliban, or both.</p>
<p>He was detained at the facility in Guantanamo Bay from January 2002 until March 2007. He was held under US presidential order, and was not charged with any crime until June 10, 2004. His trial was however delayed as US arrangements for military justice at Guantanamo Bay were repeatedly found to be unconstitutional by US courts. </p>
<p>During that time, Hicks claims that he was subjected to torture and ill treatment. Hicks was charged for a final time in February 2007. In March, he pleaded guilty to the crime of “providing material support for terrorism”, and was sentenced to seven years imprisonment by a US Military Commission. </p>
<p>Taking into account time served, he had nine more months of his sentence to serve. In May 2007, he was transferred from Guantanamo Bay to Australia, where he served out the final seven months of his sentence in Adelaide pursuant to a Prisoner Transfer Agreement. He was released on December 29, 2007, and was then subjected to a <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP0708/08rp28#_Toc197240508">control order</a> imposed by the Federal Magistrates Court, which expired in December 2008. That control order imposed various restrictions on his movements, those he could associate with, and his freedom of speech.</p>
<p>The violation of Article 9(1) arose with regard to the period of Hicks’ sentence served in Australia between May and December 2007. He had submitted that other violations had taken place, in respect of Australia’s complicity in his entire period of detention in Guantanamo Bay, and his treatment while there. Those claims failed. He also claimed breaches of the ICCPR in respect of the control order, which also failed.</p>
<h2>The role of the United States</h2>
<p>Throughout most of his period of incarceration, Hicks was detained by the US rather than Australia. Furthermore, it is clear that the US breached Hicks’s human rights in a variety of ways. The US itself has since <a href="http://www.smh.com.au/national/david-hicks-terrorism-charges-us-admits-he-is-innocent-20150122-12vzke.html">voided his conviction</a> on the grounds that it was based on retrospective law, a clear breach of Article 15 of the ICCPR. </p>
<p>As a prisoner seized during an international armed conflict, he was not afforded any of the protections that he was entitled to under the international law of armed conflict. For example, his potential status as a prisoner of war, or not, was never determined by a competent tribunal as required by the <a href="https://www.icrc.org/ihl/WebART/375-590008?OpenDocument">Geneva Conventions</a>. His substantive and procedural rights to a fair trial, as well as freedom from arbitrary detention, were breached, and there is strong evidence that he was subjected to torture or at least cruel inhuman and degrading treatment.</p>
<p>The US is a party to the ICCPR. However, it is not a party to the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCCPR1.aspx">Optional Protocol to the ICCPR</a>, which enables individual complaints against states. Hence, it is not possible for Hicks to submit a complaint to the UNHRC about his treatment by the US.</p>
<h2>Aiding and assisting</h2>
<p>Counsel for Hicks claimed that Australia effectively aided and assisted the US in its mistreatment of Hicks in a moral, political and material sense. Certainly, the Howard government <a href="http://www.smh.com.au/news/opinion/no-justice-as-hicks-thrown-to-the-wolves/2005/08/04/1123125851922.html">publicly supported the propriety of the Guantanamo Bay project</a>, despite its obvious departure from international law. It was also a <a href="http://www.theage.com.au/news/opinion/why-he-cant-return/2007/01/06/1167777323596.html">critic of Hicks</a> throughout (and since) his incarceration, and made it clear it did not want him to come home as there was no crime Australia could charge him with under Australian law. </p>
<p>The UNHRC dealt with the aiding and assisting argument poorly. It conflated the issue with a completely different argument about jurisdiction. Under long-standing ICCPR case law, it is possible for one country (Country X) to be held to breach the ICCPR even though a person is in another country (Country Y). This can occur if the person can somehow be deemed to be under the “power or effective control” of Country X. </p>
<p>The US’ responsibility for the treatment of detainees at Guantanamo Bay is a good example, given that the camp is located in Cuba. In focusing on jurisdiction, the UNHRC found that Hicks was not in Australia’s “power or effective control”, despite conceding that Australia “had some influence over the way” the US treated Hicks.</p>
<p>However, the “aiding and assisting” argument is different. Counsel was effectively arguing that Australia made an important contribution to the breaches by the US, such that it should be held jointly responsible for Hicks’ treatment at Guantanamo Bay. </p>
<p>Such an argument has not, to my knowledge, been addressed by the UNHRC before. Unfortunately, it was not actually addressed here. It may be that Australia’s conduct did not amount to “aiding and assisting”, or that “aiding and assisting” does not actually attract sanction under the ICCPR if a person is nevertheless outside a state’s effective control. However, the UNHRC seemed to simply ignore the argument, and focused on an alternative argument that had not in fact been made. </p>
<h2>No duty to rescue</h2>
<p>Interestingly, on the point of jurisdiction, the UNHRC found that Australia “was in a position to take positive measures to ensure that [Hicks] was treated in a manner consonant with the” ICCPR. </p>
<p>That is, it <a href="http://www.theguardian.com/uk-news/2015/oct/30/before-shaker-aamer-others-who-made-it-back-to-britain-from-guantanamo-bay">found that</a> Australia could have made diplomatic overtures to the US to secure the “early” return home of David Hicks, just as <a href="http://www.theguardian.com/uk-news/2015/oct/30/before-shaker-aamer-others-who-made-it-back-to-britain-from-guantanamo-bay">the UK had managed to do</a> with many of its nationals in Guantanamo Bay, possibly averting any trial, and curtailing instances of ill treatment and arbitrary detention.</p>
<p>Sir Nigel Rodley, in a separate opinion, also noted that Hicks was “ill-protected by [the Australian] government”.</p>
<p>Nevertheless, Australia’s failure to assist Hicks in this way did not bring him within its “jurisdiction” for the purposes of the ICCPR, so no violation arose from this conduct. This ruling effectively means that there is no duty upon states to take positive measures to stop human rights abuses of their own nationals by another state on that state’s territory. </p>
<p>Australia was and is apparently free under the ICCPR to neglect the rights of its own citizens if their rights are being violated abroad.</p>
<h2>No duty to investigate torture abroad</h2>
<p>Counsel had argued that Hicks’ allegations of ill treatment by the US had never been properly investigated, so it was incumbent upon Australia to do so. The UNHRC did not accept this argument, and no such violation was found.</p>
<p>A state’s duties regarding the prohibition on torture and ill treatment are quite strict. It is required to properly investigate credible allegations of such treatment. </p>
<p>However, the Hicks decision indicates that states are not required to investigate such allegations when the alleged incidents take place in another state at the hand of that other state’s agents. Again, such a duty was said to extend outside a state’s jurisdiction. There are certainly logistical limitations to a state’s ability to investigate torture allegations in such circumstances.</p>
<h2>The control orders</h2>
<p>The complaints regarding the control orders were deemed to be inadmissible. Counsel for Hicks had claimed that the imposition of the control order had breached Hicks’ freedom of movement, his freedom of expression, his freedom of association, and his right to privacy. </p>
<p>The UNHRC found that the complaints effectively related to the evaluation of facts and evidence by the magistrate who granted the control orders – the UNHRC rarely “overrules” such decisions unless there is clear “arbitrariness or denial of justice”.</p>
<p>The UNHRC focused narrowly on the actual control order proceedings. It did not zoom out and focus on the ICCPR compatibility of the broader control order regime, despite extensive arguments in this respect from Hicks’ counsel. </p>
<p>Control orders are, after all, restrictions on freedom that are imposed on people on the basis of no conviction and on a civil rather than criminal standard of proof. There are arguments that such a regime might be totally incompatible with human rights. Alternatively, perhaps Australia’s control order regime is perfectly compliant with the ICCPR. </p>
<p>The fact is that the UNHRC did not consider the issue, as instead it focused narrowly on the conduct of the control order proceedings rather than their substance. Hence, we are no wiser about the compatibility of the Australian regime, though the case certainly indicates that control order regimes are not per se violative of the ICCPR.</p>
<h2>The violation: detention in Australia</h2>
<p>Hicks served seven months of his sentence in Adelaide pursuant to a Prisoner Transfer Agreement between Australia and the US. A violation of Article 9(1) was found by the UNHRC majority by Australia in respect of that period of detention.</p>
<p>The UNHRC majority found that “there was abundant information in the public domain” which cast extreme doubt on the fairness of the relevant US trial proceedings. Furthermore, Australian authorities, due to numerous visits with Hicks, “was in a good position to know the conditions of [Hicks’] trial”. </p>
<p>Therefore, it should have been clear to Australia that the sentence arose from “a flagrant denial of justice”, and should therefore not be enforced. </p>
<p>In particular, the UNHRC majority noted that Australia had made no attempt to negotiate a transfer deal which was compatible with the ICCPR, even though it “exercised a significant degree of influence over the formulation of the plea agreement, upon which [Hicks’] immediate return to Australia was contingent”. </p>
<p>Australia had failed to do all it could to negotiate a transfer deal which complied with the ICCPR. Therefore, it found that Hicks’ seven months of detention in Australia was “arbitrary” in breach of Article 9(1).</p>
<p>Hence, states are required to take all reasonable positive measures to protect rights when the person is being returned to their territory. However, as noted above, that duty does not extend to the situation where the person remains outside the territory.</p>
<p>Two UNHRC members, Sir Nigel Rodley and Dheerujlall Seetulsingh, dissented on this point. They noted that Prisoner Transfer Agreements are concluded for humanitarian purposes, so that prisoners can serve their sentences closer to their homes and families. Such a purpose is undermined if states fail to carry them out, as sending States will be reluctant to enter such agreements. Ultimately, that would be detrimental to future Australian prisoners abroad.</p>
<p>It is notable that the dissenters were more sceptical than the majority regarding the possibility that Australia could have exercised influence to help negotiate better terms for Hicks’ plea deal.</p>
<p>In response to the dissenters, it must be noted that <a href="http://www.bailii.org/ew/cases/EWHC/Admin/2010/58.html">the UK courts</a>, as well as <a href="http://www.worldlii.org/eu/cases/ECHR/1992/52.html">the European Court of Human Rights</a>, have endorsed the notion that sentences of Prisoner Transfer Agreements should not be enforced if the sentence is the result of a “flagrant denial of justice”. </p>
<p>Despite the humanitarian purpose of prisoner transfers, a state cannot be permitted to cooperate in the enforcement of a blatantly unjust sentence.</p>
<h2>The remedy</h2>
<p>In outlining an appropriate remedy for Hicks, the UNHRC majority clearly paid some attention to the reasoning of the minority (as well as arguments from the Australian government) in regard to prisoner transfer agreements. </p>
<p>Even though it found a violation, it found that the finding itself constituted “appropriate reparation” without, for example, a further recommendation for the payment of compensation. This was because the serving of the seven months in Australia “did, in fact, mitigate the harm he would have suffered had he continued to be kept in custody” in Guantanamo Bay. </p>
<p>Nevertheless, Australia is obliged “to take steps to prevent similar violations in the future”. This reasoning is confusing, a simultaneous pat on the back and slap on the wrist to Australia.</p>
<h2>Conclusion</h2>
<p>Hicks has been treated abominably by both the US and Australia. The UNHRC decision is a measure of vindication for him, though a weaker decision than he might have expected. </p>
<p>The UNHRC ultimately focused on the lowest-hanging fruit of a violation of article 9(1) entailed in the seven months of the sentence served locally, rather than embarking upon a more detailed examination of Australia’s co-operation with the US in the disgraceful enterprise of Guantanamo Bay.</p>
<hr>
<p><em>I am grateful to Professor Ben Saul, counsel for David Hicks, for clarifying some of the arguments made in this case to the UN Human Rights Committee.</em></p><img src="https://counter.theconversation.com/content/55120/count.gif" alt="The Conversation" width="1" height="1" />
The UN Human Rights Committee (UNHRC) released its reasons in Hicks v Australia on February 16, 2016, in which it found that Australia had breached David Hicks’ right to be free from arbitrary detention…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/378032015-02-20T00:33:57Z2015-02-20T00:33:57ZHicks conviction overturned – is he owed an apology or assistance?<figure><img src="https://images.theconversation.com/files/72553/original/image-20150219-28201-18wv5k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australian David Hicks has had his conviction for providing material support to terrorist organisations overturned in the US.</span> <span class="attribution"><span class="source">AAP/Nikki Short</span></span></figcaption></figure><p>A United States Military Court’s decision to <a href="http://www.abc.net.au/news/2015-02-19/david-hicks-wins-appeal-against-terrorism-conviction/6144340">overturn</a> David Hicks’ conviction for the crime of “material support for terrorism” represents a welcome return to the international rule of law – at least in the US.</p>
<p>I have <a href="http://theconversation.com/was-david-hicks-convicted-of-a-non-crime-10204">written previously</a> that material support for terrorism was effectively a “non-crime” at the time of Hicks’ relevant actions. This was not just according to international lawyers, but also according to the <a href="http://www.lawfareblog.com/wp-content/uploads/2012/10/Hamdan-D.C.-Circuit.pdf">DC Circuit Court of Appeals</a>, the <a href="http://www.nytimes.com/2012/10/17/us/politics/dispute-over-clothing-dominates-guantanamo-hearing.html">Obama administration</a> and even the <a href="http://www.propublica.org/documents/item/1510599-david-hicks-v-united-states-brief.html">military prosecutors</a>. </p>
<p>As a result, it was simply not tenable for the Military Court to maintain Hicks’ conviction. It had already recently <a href="http://www.smh.com.au/national/david-hicks-terrorism-charges-us-admits-he-is-innocent-20150122-12vzke.html">overturned a similar conviction</a> in the case of Sudanese detainee Noor Muhammed.</p>
<h2>Background</h2>
<p>Hicks was captured in 2001 and alleged to have aided the Taliban in Afghanistan against US interests. Several charges were laid, but after a <a href="http://www.news.com.au/national/timeline-of-events-in-the-david-hicks-saga/story-fndo4eg9-1226497632340">series of legal challenges</a> in and <a href="http://www.law.unimelb.edu.au/files/dmfile/download3d421.pdf">to the Military Commissions</a>, all but the charge for “material support for terrorism” were dropped. </p>
<p>To gain his freedom – he had, by this time, been detained and allegedly mistreated for several years – Hicks eventually entered what is known as an <a href="http://www.law.cornell.edu/wex/alford_plea">“Alford plea”</a>, a curious 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.</p>
<p>In 2012, the DC Appeals Court held – in a separate but related case – the charge to be ill-founded. Although part of Hicks’ <a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/03/31/AR2007033100976.html">plea agreement</a> was that he would not challenge his conviction, Hicks has maintained he only signed the agreement <a href="http://www.cdpp.gov.au/news/statement-in-the-matter-of-david-hicks/">under duress</a>, calling its validity into question.</p>
<p>As such, it was appropriate for Hicks’ legal representatives to lodge an appeal – which they <a href="http://thejusticecampaign.org/?p=1639">did in mid-2013</a>. It turns out the agreement was invalid on a <a href="http://www.wsj.com/articles/military-appeals-court-tosses-first-ever-guantanamo-bay-conviction-1424292684">more prosaic basis</a> anyway.</p>
<h2>Consequences for the Australian government</h2>
<p>In 2012, Hicks had plans to <a href="http://www.theage.com.au/federal-politics/political-news/hicks-to-appeal-then-sue-over-conviction-20121016-27q00.html">sue the Australian government</a>. As recently as January 2015, an apology call was <a href="http://indaily.com.au/news/2015/01/23/us-admits-hicks-innocent-lawyer/">on the cards</a>. </p>
<p>However, it now seems that Hicks will not be seeking an official apology. He is merely <a href="http://www.abc.net.au/news/2015-02-19/david-hicks-wins-appeal-against-terrorism-conviction/6144340">expressing</a> the hope that he will receive assistance in what he says is:</p>
<blockquote>
<p>… becoming an expensive exercise to fix myself from torture. </p>
</blockquote>
<p>In explaining why it will not <a href="http://www.smh.com.au/national/david-hicks-terrorism-charges-us-admits-he-is-innocent-20150122-12vzke.html">make either concession</a>, the Australian government has <a href="http://www.news.com.au/world/david-hicks-wins-challenge-to-terrorism-conviction/story-fndir2ev-1227224859455">consistently argued</a> that Hicks “revelled in jihad” and was “up to no good” in Afghanistan. Attorney-General George Brandis <a href="http://www.news.com.au/world/david-hicks-wins-challenge-to-terrorism-conviction/story-fndir2ev-1227224859455">recently added</a> that Hicks’ activities “might now be illegal under Australian law”.</p>
<p>While all of this may be relevant to the question of an apology – a political remedy – it is irrelevant to the question of legal remedies, including compensation.</p>
<p>Under articles 2 and 9 of the <a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">International Covenant on Civil and Political Rights</a> (ICCPR), those who are detained arbitrarily or illegally are owed an “effective remedy” – there is no exception for the “undeserving”.</p>
<p>Hicks’ is not an isolated case. The Australian government recently <a href="http://www.theaustralian.com.au/national-affairs/immigration/tony-abbott-blasts-gillian-triggs-over-wife-killer-john-basikbasik/story-fn9hm1gu-1227178353906">vehemently dismissed</a> a recommendation from the <a href="https://www.humanrights.gov.au/sites/default/files/document/publication/Basikbasik%20v%20Commonwealth%202014%20AusHRC%2077_WEB.pdf">Human Rights Commission</a>, based on article 9, to compensate a man who was wrongfully detained beyond the length of his prison sentence. Former immigration minister Scott Morrison’s comment that the commission “seems to be always arguing for a fair go for those who have forfeited that right [to personal liberty] by their own behaviour” reveals an attitude fundamentally antithetical to the rule of law.</p>
<p>Under international law, everyone has rights simply by virtue of being human. These rights may be limited – or even suspended in case of grave emergency – according to law, but not otherwise. To argue that “bad people” have no rights is not only legally incorrect; it sets a dangerous precedent for arbitrary rule.</p>
<p>In Hicks’ case, we are talking about possible compensation for years of <a href="http://www.smh.com.au/articles/2004/08/26/1093518009766.html?from=storylhs">physical and psychological abuse</a>. The <a href="http://www.news.com.au/world/north-america/diary-of-guantanamo-bay-inmate-mohamedou-ould-slahi-details-forced-sex-smothering/story-fnh81jut-1227192099681">mistreatment of detainees</a> at Guantanamo Bay is hardly in dispute any longer. Even the prosecutor who laid the charges against Hicks has openly <a href="https://www.change.org/p/president-obama-close-detention-facility-at-guantanamo-bay-3">petitioned</a> for the whole operation to be closed down based on his knowledge of how the detainees are treated.</p>
<p>That Hicks was detained on bogus charges alone entitles him to a remedy. But his mistreatment, which potentially constitutes a breach of both the ICCPR and the UN <a href="http://www.hrweb.org/legal/cat.html">Convention Against Torture</a>, and its consequences – the need for ongoing medical care – mean that adequate (that is, substantial) compensation is required if the remedy is to be “effective” as defined in international jurisprudence. </p>
<p>If the matter came before an international tribunal, there would likely also be <a href="http://hrlc.org.au/files/5TU30AJRX0/Remedies%20for%20Violations%20of%20Rights%20of%20Persons%20in%20Detention.DOC">recommendations</a> to “make official inquiries into the circumstances giving rise to the breach”, and to “take measures to prevent similar violations in the future”.</p>
<p>Based on the Abbott government’s stance to date, there seems little chance of an effective remedy being provided – at least not voluntarily. 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. </p>
<p>There is some <a href="http://indaily.com.au/news/2015/01/23/us-admits-hicks-innocent-lawyer/">evidence</a> that an ALP government might <a href="http://www.smh.com.au/national/tony-abbott-dismisses-call-for-apology-to-david-hicks-20150219-13izm8.html">respond differently</a>. But given the record of both sides of politics in responding to <a href="http://remedy.org.au/cases/">remedial recommendations</a> from the UN Human Rights Committee, it is hard not to be sceptical.</p><img src="https://counter.theconversation.com/content/37803/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Fletcher indirectly receives research funding from the Australian Government (an Australian Postgraduate Award).</span></em></p>Based on the Abbott government’s stance to date, there seems little chance of David Hicks receiving an effective remedy – at least not voluntarilyAdam Fletcher, PhD Candidate and Tutor, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/182832013-09-23T20:45:42Z2013-09-23T20:45:42ZIs it a problem that Australia sends the most foreign fighters to Syria?<figure><img src="https://images.theconversation.com/files/31684/original/33gg23zh-1379637498.jpg?ixlib=rb-1.1.0&rect=1%2C17%2C794%2C588&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia sends more foreign fighters to Syria than any other western nation - including suspected suicide bomber 'Abu Asma al-Australi'. What problems does this pose?</span> <span class="attribution"><span class="source">Twitter/@AbuSiqr</span></span></figcaption></figure><p>A married Queenslander using the nom de guerre “Abu Asma al-Australi” <a href="http://www.smh.com.au/national/australian-man-in-syria-abu-asma-alaustrali-suspected-to-be-suicide-bomber-20130914-2trfh.html">featured as a suicide bomber</a> in a promotional video released by the Syrian al-Qaeda affiliate Jahbat al-Nusra earlier this month. </p>
<p>He was hardly the first “al-Australi” involved in the Syrian civil war. A 30-year old married Melbourne bricklayer who operated under the alias <a href="http://www.news.com.au/breaking-news/syrian-rebels-eulogise-aussie-martyr/story-e6frfkp9-1226546365359">“Abu al-Walid al-Australi”</a> has also been celebrated as a martyr in al-Nusra propaganda videos since he was killed late last year. ASIO believes that there are <a href="http://www.news.com.au/breaking-news/australians-answer-the-syria-jihad-call/story-e6frfkp9-1226619543856">at least 200 Australians</a> who have gone to fight in Syria, more than double the number believed from any other Western country.</p>
<p>But why has Australia’s contribution to the Syrian War been so large both in absolute numbers and relative to its population size? </p>
<p>Australians have fought abroad as insurgents in a number of other civil wars, although never as the largest group among foreign fighters. However, we can examine these historical cases for data about why foreign fighters sign up, what their recruiters tell them they are fighting for, and the impact that these individuals have on their wars and their societies at home.</p>
<p>In my new book <a href="http://www.oup.com/us/catalog/general/subject/Politics/InternationalStudies/?view=usa&ci=9780199939459">Foreign Fighters</a>, I examined transnational recruitment by insurgent groups worldwide over the past 200 years. Approximately one in five rebel groups have augmented their forces by persuading people outside their country to join the fight.</p>
<p>In different cases, local insurgents share common ties of religion, ethnicity or ideology with their foreign target audiences, but they employ the same recruitment strategy. In every case, recruiters claim - sometimes accurately - that the entire identity group faces a threat to its existence and the recruit must fight in the name of both duty and self-interest.</p>
<p>They typically reach potential recruits through institutions or representatives of the community, whether houses of worship, union meetings or summer camps. The most receptive in the audience already strongly identify with the group, but tend to be marginalised in the broader society, often because they are members of a minority group. </p>
<p>Other motives, such as adventure-seeking, profit, or ego-gratification might prompt individuals to sign up, but they are consistently told that the situation is dire. And it is the foreign fighters who engage in most of the highly aggressive combat and suicide operations, in part because they believe that the conflict must be won at all costs for their people.</p>
<p>These descriptions reflect the Australian recruits on <a href="http://www.diggerhistory.info/pages-conflicts-periods/other/spanish-civil-war.htm">both sides of the Spanish Civil War</a> in the 1930s. There were leftists and unionists who believed that fascism had to be halted and so fought with the Communists, and Catholics who were told that Communism was set to obliterate the Catholic Church and joined the fascists in response.</p>
<p>They are also true of the Jewish Australian volunteers in the 1948 Israeli War of Independence who were told that their help was needed to establish a homeland or else the Holocaust would inevitably resume. Successor organisations continue to recruit diaspora Jews worldwide using a defensive frame even though they are no longer insurgents. Quite possibly, <a href="https://theconversation.com/ben-zygier-the-silence-surrounding-prisoner-x-12371">Ben Zygier</a> (Prisoner X) signed up for the same reason.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/31681/original/mjfs4zn5-1379636898.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/31681/original/mjfs4zn5-1379636898.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=348&fit=crop&dpr=1 600w, https://images.theconversation.com/files/31681/original/mjfs4zn5-1379636898.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=348&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/31681/original/mjfs4zn5-1379636898.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=348&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/31681/original/mjfs4zn5-1379636898.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=437&fit=crop&dpr=1 754w, https://images.theconversation.com/files/31681/original/mjfs4zn5-1379636898.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=437&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/31681/original/mjfs4zn5-1379636898.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=437&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ben Zygier - or ‘Prisoner X’ - was an Australian citizen recruited to work for Israeli intelligence agency Mossad.</span>
<span class="attribution"><span class="source">ABC</span></span>
</figcaption>
</figure>
<p>The portrayal of a global Muslim community under threat has also been applied by jihadis to every civil war since Afghanistan in the 1980s. It brought recruits to Bosnia, including <a href="http://www.adelaidenow.com.au/news/the-extraordinary-life-of-david-hicks/story-e6freo8c-1111115206302">David Hicks</a>. There were, however, foreign fighters on all sides of the Yugoslavian wars of the 1990s, and Organisation for Security and Co-operation in Europe (OSCE) staff in Croatia in the 1990s were acquainted with the local expression “kangaroo villages” to describe towns that had been repopulated after ethnic cleansing by transplants from Australia.</p>
<p>But it is the narrative of a single global war against Muslims - being fought on every battlefield from Kosovo to the Philippines - that has made it easy for al-Qaeda branches and like-minded groups to recruit for jihad. It has been effective in Somalia, where Somali-Australian and Lebanese-Australian volunteers learned the skills that they hoped to employ in the thwarted 2009 plot to <a href="http://www.theage.com.au/victoria/barracks-terror-three-should-have-got-life-20130617-2odqf.html">blow up the Holsworthy Army Barracks</a>.</p>
<p>The confrontation in Syria, and to an extent in Iraq before it, requires a slightly different frame: that of Sunni Muslims being destroyed by Shia governments. That said, there are also Australian Shiite volunteers among the ranks of Hezbollah militants fighting for the Assad regime. Most likely, the particular ties of the Australian Lebanese community with its connections in the region facilitate easy access into Syria and give Australia its disproportionate presence in this conflict.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/31680/original/m7t6xj2j-1379636537.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/31680/original/m7t6xj2j-1379636537.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=891&fit=crop&dpr=1 600w, https://images.theconversation.com/files/31680/original/m7t6xj2j-1379636537.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=891&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/31680/original/m7t6xj2j-1379636537.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=891&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/31680/original/m7t6xj2j-1379636537.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1120&fit=crop&dpr=1 754w, https://images.theconversation.com/files/31680/original/m7t6xj2j-1379636537.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1120&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/31680/original/m7t6xj2j-1379636537.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1120&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Convicted terrorist David Hicks trained with the Kosovo Liberation Army during the Kosovo War.</span>
<span class="attribution"><span class="source">AAP</span></span>
</figcaption>
</figure>
<p>But this coincidence can have consequences. A <a href="http://hegghammer.com/_files/Hegghammer_-_Should_I_stay_or_should_I_go.pdf">study</a> published earlier this year found that most jihadis prefer to go and fight on foreign battlefields, away from the constraints of their home societies. But among those who survive and return home with combat experience, about 10% become involved in militant activity in their countries of origin.</p>
<p>As the numbers of Australians fighting in Syria and elsewhere continues to mount, the odds that some will return home to continue the fight grow as well. Indeed, the Holsworthy plot was the attempted first case of blowback against a western country by foreign fighters in Somalia. The same transnational networks that permit recruitment and mobilisation make geographic distance irrelevant.</p>
<p>Stopping the outflow of foreign fighters is difficult, and intercepting them requires active surveillance and inevitable profiling. The best alternative in the long run is to try to build inclusive national and civic identities - if not Australian patriotism - so that alternate transnational identities do not matter enough to go to a distant war zone to kill and die for. This might be effected through national service, either military or in local community building programs like <a href="http://www.nationalservice.gov/programs/americorps">AmeriCorps</a> in the United States.</p>
<p>But it is late in the day to do any such thing for Syria. The best option at this point is vigilance as the latest “al-Australis” return home, in some cases to become recruiters themselves.</p><img src="https://counter.theconversation.com/content/18283/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Malet previously received funding from the Foreign Policy Research Institute related to foreign fighter research.</span></em></p>A married Queenslander using the nom de guerre “Abu Asma al-Australi” featured as a suicide bomber in a promotional video released by the Syrian al-Qaeda affiliate Jahbat al-Nusra earlier this month. He…David Malet, Associate Director and Fellow of the Melbourne School of Government and Senior Lecturer in International Relations, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/102042012-10-21T21:26:00Z2012-10-21T21:26:00ZWas David Hicks convicted of a ‘non-crime’?<figure><img src="https://images.theconversation.com/files/16679/original/n4vyw5sd-1350533978.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">David Hicks could have his criminal charges overturned.</span> <span class="attribution"><span class="source">AAP/Tracey Nearmy</span></span></figcaption></figure><p>On Monday the US Court of Appeals for the District of Columbia handed down a <a href="http://www.lawfareblog.com/wp-content/uploads/2012/10/Hamdan-D.C.-Circuit.pdf">decision</a> which invalidated one of the charges against Salim Hamdan – Osama bin Laden’s driver. Hamdan was convicted of the crime of “material support for terrorism” – just like David Hicks and numerous other Guantanamo detainees who <a href="http://www.nytimes.com/2012/10/17/us/politics/dispute-over-clothing-dominates-guantanamo-hearing.html">may now never be tried</a>.</p>
<p>Although “material support for terrorism” was criminalised by the <a href="http://ccrjustice.org/files/report_MCA.pdf">2006 Military Commissions Act</a>, the court held that it was not a crime between 1996 and 2001, which was when Hamdan was working for Al Qaeda, and therefore could not form the basis of a valid conviction. The same principle presumably applies to Hicks, given he was <a href="http://www.news.com.au/national/timeline-of-events-in-the-david-hicks-saga/story-fndo4eg9-1226497632340">captured</a> in Afghanistan in 2001.</p>
<p>It has already <a href="http://www.lawfareblog.com/2012/10/three-observations-on-judge-kavanaughs-analysis-in-hamdan/">been noted in the US</a> that this is a remarkable decision from a “very conservative panel of a court that has not exactly been sympathetic to claims by Guantanamo detainees”.</p>
<h2>Retroactive criminal punishment</h2>
<p>There is a long-standing legal principle known as <a href="http://www.law.cornell.edu/wex/nullum_crimen_sine_lege"><em>nullum crimen, nulla poena sine lege</em></a> (“no crime or punishment without law”) which holds that a deed must be prohibited by law at the time it was done, or the State has no right to punish anyone for it.</p>
<p>This principle (also known in international law as the <a href="http://www.uni-koeln.de/jur-fak/kress/NullumCrimen24082010.pdf">principle of legality</a>) was famously tested at Nuremberg and Tokyo after World War II. Some of the crimes of the Axis powers were deemed too heinous to go unpunished, yet arguably were not specifically prohibited in international law at the time they were committed. Out of this debate <a href="http://www.icrc.org/ihl.nsf/WebART/585-07?OpenDocument">crimes against humanity</a> arose in their modern form.</p>
<p>Interestingly, the US Congress stated in passing the Military Commissions Act that it merely codified existing crimes, rather than creating new ones (the same arguments used after World War II, and in an <a href="http://www.lawfareblog.com/wp-content/uploads/2011/06/hamdan.pdf">earlier review</a> of Hamdan’s conviction). However, the Court of Appeals unanimously rejected this view, holding that “the statute does codify some new war crimes, including material support for terrorism”.</p>
<p>The judgement also noted that the US Constitution bars “ex post facto” laws that “retroactively punish conduct that was not previously prohibited, or that retroactively increase punishment for already prohibited conduct”.</p>
<p>The prohibition on retroactive punishment goes to the very heart of the rule of law – without it, what is to stop those in power from inventing laws to punish their opponents, or indeed anyone at all? With this in mind, it is hardly surprising that it is enshrined in so many high-level legal instruments.</p>
<h2>What now for Hicks?</h2>
<p>Australian commentators have <a href="http://www.abc.net.au/news/2012-10-17/hicks-charge-could-be-overturned-after-us-court-decision/4317534">already noted</a> that the Court of Appeals decision appears to be manna from heaven for David Hicks, but there are a couple of problems he faces if he wants to have his own conviction quashed.</p>
<p>First, Hicks <a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/03/31/AR2007033100976.html">struck a “plea bargain”</a> in 2007 with the Pentagon official in charge of his military commission, which included a commitment not to challenge his conviction. </p>
<p>US experts, including the Guantanamo prosecutor in charge of Hicks’ case <a href="http://www.abc.net.au/news/2012-10-17/hicks-charge-could-be-overturned-after-us-court-decision/4317534">Morris Davis</a>, have said this makes it unlikely a US court will give him any further hearing, but his lawyers are determined to proceed anyway.</p>
<p>Incidentally, Hicks <a href="http://harpers.org/archive/2007/04/horton-plea-bargain-hicks">also promised</a> not to describe his experience in Guantanamo Bay for at least one year after his transfer to Australia. When this ban expired, he did eventually write all about it in his book Guantanamo: My Journey.</p>
<p>Although safe under the plea deal, he was investigated by the Australian Federal Police under the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/poca2002160/">Proceeds of Crime Act 2002</a>. The Commonwealth Director of Public Prosecutions decided in July this year to drop the case, and in a <a href="http://www.cdpp.gov.au/Media/Releases/20120724-David-Hicks.aspx">statement to the media</a> explained that the plea deal (and associated evidence) could not form the basis for further prosecution. At least <a href="http://www.crikey.com.au/2012/07/24/commonwealth-drops-hicks-action-damns-plea-deal-that-freed-him/">one commentator observed</a> that this statement cast doubt on the Government’s claims that Hicks’ deal was not made under duress, or under some kind of <a href="http://www.abc.net.au/news/2007-10-23/rudd-wants-pms-statement-on-hicks-plea-bargain/707242">shady pact with Dick Cheney</a>.</p>
<p>Hicks’ plea was unusual. The <a href="http://www.cdpp.gov.au/Media/Releases/20120724-David-Hicks.aspx">CDPP explained</a> that it was what is known as an ‘<a href="http://www.law.cornell.edu/wex/alford_plea">Alford plea</a>’ in the US. It involves admitting that the evidence could prove the prosecution’s case beyond reasonable doubt, and accepting the punishment, but not admitting to the actual commission of the acts in question. Such a plea cannot form the basis for a conviction in Australia.</p>
<p>It must now be asked whether a plea to a non‑existent crime is invalid from the beginning, which would mean Hicks’ certificate of conviction (<a href="http://www.cdpp.gov.au/Media/Releases/20120724-David-Hicks.aspx">as supplied to the Australian authorities</a>) is automatically void. This would certainly simplify things, but it would be awkward for those who have consistently defended the process, including <a href="http://www.theage.com.au/opinion/political-news/hicks-to-appeal-then-sue-over-conviction-20121017-27q00.html">former Prime Minister Howard and former Foreign Minister Downer</a>.</p>
<p>As Hicks’ former military lawyer <a href="http://www.abc.net.au/news/2012-10-17/hicks-charge-could-be-overturned-after-us-court-decision/4317534">Dan Mori observes</a>, the Howard Government should be embarrassed that it <a href="http://www.theage.com.au/news/editorial/a-travesty-of-justice/2007/03/27/1174761465495.html?page=fullpage#contentSwap1">failed to object</a> to one of its citizens being convicted of what has proven to be an archetypal ‘trumped‑up charge.’ Hicks now <a href="http://www.theage.com.au/opinion/political-news/hicks-to-appeal-then-sue-over-conviction-20121017-27q00.html">plans to sue</a> the Government the Government for damages, which could dredge up further damaging details about what was known and decided at the time.</p>
<p>Second, there is the chance that the US Justice Department may now appeal the decision. If such an appeal is allowed and the US Government prevails, Hicks (and Hamdan) could be back to square one.</p>
<p>The Obama administration has <a href="http://www.nytimes.com/2012/10/17/us/politics/dispute-over-clothing-dominates-guantanamo-hearing.html">previously expressed reservations</a> about the crime of material support for terrorism, and is against the Guantanamo military commissions (even if it <a href="http://www.washingtonpost.com/world/guantanamo-bay-how-the-white-house-lost-the-fight-to-close-it/2011/04/14/AFtxR5XE_story.html">lost the fight to close them down</a>), so there may not be any such appeal. In that case, only the dubious plea bargain would stand in the way of Hicks’ criminal record being rewritten.</p>
<h2>The Bigger Picture</h2>
<p>This latest legal development only serves to underline the flawed legal basis of everything that goes on at Guantanamo Bay, which is often aptly described as a “<a href="http://www.amnesty.org.au/hrs/comments/24286/">legal black hole</a>”.</p>
<p>Thanks to Wikileaks, we also know that it is <a href="http://www.dailymail.co.uk/news/article-1380629/Among-inmates-Guantanamo-Bay-A-senile-man-89-14-year-old-boy-kidnapped-Taliban.html">far from being exclusively a secure place to detain the worst of the worst,</a> which is how it is <a href="http://edition.cnn.com/2012/01/11/world/analysis-gitmo-ten-years/index.html">portrayed</a>. </p>
<p>The <a href="http://www.state.gov/j/drl/hr/index.htm">US</a> and <a href="http://www.attorneygeneral.gov.au/Speeches/Pages/2012/Third%20Quarter/14August2012-SpeechtotheAustralianGovernmentNGOForumonHumanRights.aspx">Australian</a> governments pride themselves on their human rights records, but Guantanamo Bay casts a long shadow over their credibility in this regard.</p><img src="https://counter.theconversation.com/content/10204/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Fletcher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>On Monday the US Court of Appeals for the District of Columbia handed down a decision which invalidated one of the charges against Salim Hamdan – Osama bin Laden’s driver. Hamdan was convicted of the crime…Adam Fletcher, PhD Candidate, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.