It was surprising, therefore, that the Government took a different approach to the Rome Statute, the treaty which set up the International Criminal Court. Australia ratified the Statute and incorporated it into Australian law by making amendments to the Australian Criminal Code. The Statute came into force in Australia in 2002 and applies equally to all persons in Australia including the Head of State, Ministers and government officials. For once, the Australian position differed from that of the United States, which has refused to ratify the Rome Statute or participate in the International Criminal Court.

Late in 2006 a group of lawyers that included myself wrote an opinion concerning the continued detention and proposed trial of David Hicks.

The opinion referred to Division 268 of the Criminal Code which creates an offence to deny a fair trial to a person who is protected by the Geneva Conventions. It expressed the view that Hicks is a person protected by the Conventions, as either a prisoner of war or, consistently with the findings of the United States Supreme Court in Hamdan v Rumsfeld an otherwise protected person under Common Article 3. Even the United States has now made this concession for persons detained at Guantanamo Bay.

The opinion examined the proposal to try Hicks before a Second Military Commission set up by Congress after the First Commission was struck down by the United States Supreme Court, and considered whether it could be regarded as providing a fair trial.

For Australian purposes the definition of war crimes committed by conducting unfair and irregular trials have been expanded in the Criminal Code beyond those contained in the Rome Statute. This has resulted in the standards for a fair and regular trial being relatively well defined:

• The trial must be conducted by a “regularly constituted court”;
• It must offer the essential guarantees of independence and impartiality;
• Its procedures must provide for a fair hearing, which necessarily includes procedures such as the exclusion of hearsay evidence and the right to have evidence obtained by the use of coercion excluded;
• A detained person must be promptly charged and brought to trial as rapidly as possible.

The Australian Criminal Code makes breach of the requirement to provide a fair trial punishable by imprisonment for up to ten years. The Code has extraterritorial effect so that it could apply to the conduct of a trial of David Hicks before a Military Commission held in Guantanamo Bay, Cuba.

The opinion considered that, like the First Military Commission, the Second Military Commission is flawed and cannot provide a fair trial.

This is because the Commission is not structured like a regularly constituted court, and because its rules contain provisions that are antithetical to a fair trial. These include provisions for the admissibility of evidence received in secret and not disclosed to the accused, and evidence obtained by coercion falling short of torture if the Military Judge considers that it may have probative value. The delay in bringing charges against Hicks itself also operates to prevent a fair trial.

The Australian Government
is determined to evade its
responsibilities to David Hicks.

If the opinion is correct about these matters, then it follows that the trial of Hicks before the Second Military Commission constitutes a war crime not only under the Geneva Conventions but also under Australian law. The difficulty for the Australian Government is that, under the Australian Criminal Code, to “counsel” or “urge” another party to conduct a trial that does not meet the mandated standards can constitute a war crime.

The position of Australian Government Ministers has been to press the United States Government to proceed with the trial. There is a real danger that by adopting this course the Ministers are guilty of a crime against Australian law.

The opinion was sent to the Attorney-General in December 2006. The relevant part of his response read:

This is a curious and unsatisfactory response. It misses the main thrust of the opinion - the effect of Australian law on persons counselling or urging a trial that doesn’t meet the mandated standards for a fair trial. It asserts that these are matters for the United States Government and for the courts, whereas the opinion holds that these are for the Australian Government. The response seems to rely on the principle that obligations under international treaties are not justiciable under Australian law.

On 18 January 2007 the United States released rules for trials conducted by the Second Military Commission.These rules confirm the criticisms of the Military Commissions Act made in the opinion. The foreword by the Secretary of Defense says it all.

“The M.M.C [the new Rules] applies the principles of law and rules of evidence in trial by general courts martial so far as I have considered practicable or consistent with military or intelligence activities,” (emphasis added).

Further, in a press statement later in January, the President of the Law Council of Australia pointed out that the rules provide that not only could Hicks be convicted on hearsay evidence but that the rules allow hearsay within hearsay.

Many other criticisms could be made but it is clear that a fair trial cannot be held before the Second Military Commission. It also appears that the Australian Government is determined to evade its responsibilities to Hicks to the point of breaching its own laws.

This is a shameful chapter in Australian history.