By Sarah Joseph
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. 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.
The UNHRC supervises and monitors implementation of the International Covenant on Civil and Political Rights (“ICCPR”), a global treaty that binds three-quarters of the world’s countries.
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 100+ page submission from Hicks’ counsel.
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.
The basic facts
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.
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.
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.
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 control order 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.
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.
The role of the United States
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 voided his conviction on the grounds that it was based on retrospective law, a clear breach of Article 15 of the ICCPR.
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 Geneva Conventions. 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.
The US is a party to the ICCPR. However, it is not a party to the Optional Protocol to the ICCPR, 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.
Aiding and assisting
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 publicly supported the propriety of the Guantanamo Bay project, despite its obvious departure from international law. It was also a critic of Hicks 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.
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.
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.
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.
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.
No duty to rescue
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.
That is, it found that Australia could have made diplomatic overtures to the US to secure the “early” return home of David Hicks, just as the UK had managed to do with many of its nationals in Guantanamo Bay, possibly averting any trial, and curtailing instances of ill treatment and arbitrary detention.
Sir Nigel Rodley, in a separate opinion, also noted that Hicks was “ill-protected by [the Australian] government”.
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.
Australia was and is apparently free under the ICCPR to neglect the rights of its own citizens if their rights are being violated abroad.
No duty to investigate torture abroad
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.
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.
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.
The control orders
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.
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”.
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.
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.
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.
The violation: detention in Australia
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.
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”.
Therefore, it should have been clear to Australia that the sentence arose from “a flagrant denial of justice”, and should therefore not be enforced.
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”.
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).
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.
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.
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.
In response to the dissenters, it must be noted that the UK courts, as well as the European Court of Human Rights, 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”.
Despite the humanitarian purpose of prisoner transfers, a state cannot be permitted to cooperate in the enforcement of a blatantly unjust sentence.
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.
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.
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.
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.
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.
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.