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Discussion

Discuss about the Australian Security Intelligence Organization.

Terror defies the fundamental concepts of human rights. There is of course more than a measure of truth to the notion that intrudes on the sanctity of life and has been a threat to global peace for the last two decades. No one can cast aspersions on the fact the Australian government and other globe leaders has revealed a rigorous and sustained commitment to fight terror. David Hicks has been a ‘guest of the state’ numerous times in charges related to terror. Growing up, he has been to been described as person who enjoyed creating havoc from his childhood days (Penelope, 2003). During his teen age he said to have been involved in several criminal activities including the theft of cars although there has been no evidence to substantiate these claims (BBC News, 2007). He has engaged in several military activities including fighting for Kosovo Liberation Army, He attempted to join the Australian Army but his efforts were thwarted because of his poor academic qualification. Accordingly this brief will discharge three objectives; analyzing the relation of David Hicks with terrorism, the crimes that he is alleged to have committed and the impact of his case on the security of the nation. 

David Hicks was captured in December 2001 in Afghanistan and handed over to the US Special Forces (Callinan, 2007). He was first charged by the Guantanamo military commission on the count of Terrorism. There was overwhelming evidence that was gathered by the commission that evinced that he aided in several terror activities that were conducted by the al-Qaida terror group. The commission trying him them was then alleged that he had been receiving military training from the al-Qaida terror group. Although the supreme court of the United States in Hamdan v. Rumsfeld (2006) abolished the commission the formed by the US government to try the persons who has been detained in Guantanamo bay on the basis that they were illegal, Hick’s troubles terror allegations did end there. Even though the commission was disbanded, Hick still remained detained in Guantanamo bay and his health condition was rapidly deteriorating. Hicks explained in an affidavit that he had been physically and sexually abused, inhumanely tortured during the detention period (The David Hicks affidavit, 2004).

The US government and the Australian government found themselves between the devil and the blue sea on whether they should set him or not.  There was a feeling then that if Hick was released he was going to be threat to the national peace and security in Australia. The US army chaplain insisted that Hick was not a threat to the national security of Australia (ABC, 2007). In 2007, not long after his releases the US military commenced a new case that was predicated on new and different charges. The charges brought against him included attempted murder and abetting terrorism (Alexander and Philip, 2007). The charge sheet stated that he had while in Afghanistan he was in possession of An AK-47 rifle with 300 rounds of ammunition which was issued to him by the al-Qaida terror group. It also claimed that he surveyed several American and British embassies. During the trial David Hick pleaded guilty to the charges.

The Impact on National Security

It is intriguing that despite his plea of guilty and the ocean of allegations and evidence, there are commentators who argue that David Hick was a martyr who was being used to hide the inhumane that was happening at Guantanamo on the guise of fighting terrorism. There were also demonstrations and requests made through the press to release him from detention in Guantanamo Bay and take him back home, Australia (Munro and Penny, 2006).  The appeals court in 2014 ruled that providing materials for terrorism was not a war crime and therefore such a claim was unfounded (The Guardian, 2015). His conviction was quashed and he was declared innocent of all the terrorism related charges (The Guardian, 2015).

David Hick Case on terrors has manifested the passion that the states in the globe have to fight terror and protect national security. The case has also shown that most of the states resorted to denying the terror suspects their human rights as a form of curbing terrorism. However, since the detention of David Hick there have been calls from different human rights organizations asserting that governments should neither apply excessive force nor torture the suspects. This form of treatment of the suspects does not deter the participation of people in terrors activities but rather it increase the enmity between the states and terror group. The torture and denial of their human right fuels the criminal activities they perpetrate.

Since the inception of the Hick’s case nearly a decade ago numerous legislative measures have been taken to protect the Australian government from foreign terrorist fighters and rogue Australian Citizens that have been participated in terror activities in foreign countries. Ryan (2014) argues that the anti-terror laws that have emerged have restricted the application of fundamental freedoms and rights. The David Hicks case and the growth of the al-Qaida terror group led to the enactment of the Resolution 1373 by the UN Security Council which enjoins member states to take preventive measures against terrorism activities (United Nations Security Council, Resolution 1373, 2001). This law has been criticized that it does not provide any definition of terrorism and the acts that amount to terrorism (Philipp, 2016).  This lacuna is likely to cause ambiguity in the future determination of cases and the discretion is left on judges and the anti terror forces to define the acts of terrorism.


Terrorism is a criminal offence under international law and the domestic laws in Australia. It is a general rule in criminal law that an accused person presumed to be innocent until he is proven guilty. This law should not apply to the exclusion of terror suspects. They should be accorded there full rights protection while in detention awaiting the determination of their trial. The powers that have been donated to the Australian Security Intelligence Organization (ASIO) through The Australian Security Intelligence Organization Legislation Amendment (Terrorism) Bill 2002 should be limited because they encourage arbitrary detention. It is not in doubt that David Hicks was imprisoned in the Australian prisons for a fictitious crime which he admitted but it neither exists in international law or the Australian law. He was not accorded a fair trial and his imprisonment further contravenes the rules of natural justice. In essence, the criminal laws should apply equally to suspects of terror like they apply to other criminal offenders. The rule of law should also be a guiding factor when they are arrested and tried in court.

Limitations on ASIO Powers

The case of David Hick has shown that the war on terror is far from achieving its main objective. The handling of Hick was contrary to international human rights law practices. While he was in detention he was entitled to enjoy the rights entrenched in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights but all of the rights under this conventions were flagrantly violated and transgressed. It is said that he admitted to the charges of providing materials for terrorisms act but the admission was obtained after he was subjected to torture, inhumane and cruel treatment. The Rules of evidence did not see the light of day in the hearing of his case at the US military commission. Hearsay evidence was admitted without following the laws for its admissions.


Hicks was not accorded a fair trial at the Us military commission which was a contravention of Article 14 of the ICCPR which provides that any accused person must be subjected to fair public hearing by an impartial and an independent tribunal. The fact that hicks case was being heard by a military judge showed that the court was not impartial and further it was conducted its activities with prejudice and bias.  When David Hick was captured and charged, the crimes that he was being charged were not crimes recognized by law at the times. They only became crimes founded on law after the 911 terrorist attacks in the US. The principle that the law should not be applied retrospectively was not applied in this Hicks case.

The general position is that if David Hicks was caught fighting the US as a soldier in war then he ought to have been taken in custody as a prisoner of war. There are rules that are applied to prisoners of war which were not even applied to David Hicks. He was arbitrarily tortured and his human rights trampled upon. If in any case David Hicks had committed crimes against humanity then it would only be pragmatic if he was submitted to the jurisdiction of the international criminal court. Until today it is not clear how, why, and under what circumstances by applying the law was he captured.  The purported war on terror by the Australian and the US government appeared to be a mere sham that was not out to get justice and combat terror by its horns but to torture innocent individuals and create a superficial appearance to the globe that they were fighting terror.

The War on Terror

Conclusion

While it is entirely true that some of the actions and activities that Hick undertook lacked a moral standing it is safe to conclude that the charges and allegations made against him lacked a legal basis. This was confirmed by the ruling of the court of appeal in February which held that David Hick was innocent and at time the charges labeled against him were framed by US military they did not exist in law as crimes.  There had been massive calls and protests from the human rights activist touting for there release of David Hick while in Guantanamo. They claimed that his detention was inhumane and unfounded and the torture that he was receiving while in detention was contrary to human rights law. The success of his final appeal was an indication that the rule of law must be applied in all cases without discrimination. David Hick had been basking in the rays of injustice fro a long time as the law was arbitrarily applied on him. He was subjected to the law of the jungle and that was utterly undesirable and outlandish.  The conviction that was upheld in 2007 by the US military court was a miscarriage of justice as he was barred from accessing his right of appeal. 

Now that he has been pronounced not guilty in the eyes of the law it seems that the only logical and coherent approach will be to sue the US and the Australian government for wrongful detention and arbitral torture. It is highly probable that the two governments will invoke domestic and international legislations on terrorism but there bid is likely to be thwarted by the obvious reasons of his innocence. The law on terrorism today is not properly defined both internationally and domestically and government agencies and the judges are left to exercise their discretion. This will not in any way end the global war on terror but it will increase the violation of human rights on individuals by the government agencies on the guise that they are fighting terror. David Hick is a striking example of the lack of genuineness by the government in the global war against terror. If the Australian government is to learn from the case of David Hick, they ought to incorporate human rights protection provisonsns in the anti –terror legislations that it has enacted.

References

BBC News (2007) David Hicks: 'Australian Taleban' Retrieved from https://news.bbc.co.uk/2/hi/asia-pacific/3044386.stm

Penelope, D. (2003). Hicks family enjoys phone chat as US prison lifts gag Retrieved from https://www.smh.com.au/articles/2003/12/16/1071336961108.html?from=storyrhs

Hamdan v. Rumsfeld (2006) 548 U.S. 557

Callinan, R. (2007). "David Hicks Under Fire", TIME Retrieved from https://content.time.com/time/magazine/article/0,9171,1592997,00.html

The David Hicks affidavit. (2004). Retrieved from https://www.smh.com.au/news/World/David-Hicks-affidavit/2004/12/10/1102625527396.html

ABC (2007).Hicks not a threat: chaplain Retrieved from https://www.abc.net.au/news/2007-12-31/hicks-not-a-threat-chaplain/999574

Alexander,  D., and Philip, R. (2007) David Hicks: charges outlined , Joint Media Release Retrieved from https://foreignminister.gov.au/releases/2007/joint_ruddock_hicks.html

Munro, I., and Penny, D. (2006) Bring Hicks home , The Age Retrieved fromhttps://www.theage.com.au/news/in-depth/bring-hicks home/2006/12/02/1164777845596.html?page=fullpage#contentSwap3

The Guardian (2015) David Hicks wins appeal against terrorism conviction Retrieved from https://www.theguardian.com/australia-news/2015/feb/19/david-hicks-wins-appeal-against-terrorism-conviction

United Nations Security Council, Resolution 1373 (2001) United Nations Security Council Retrieved From https://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf

Ryan, R. (2014). Foreign Fighters Bill: expanded counter-terrorism laws encroach on human rights’ Human Rights in Australia Right Now Retrieved from  <https://rightnow.org.au/writing-cat/article/foreign-fighters-billexpanded-counter-terrorism-laws-encroach-on-human-rights/>.

Philipp, S. (2016). Australia’s response to foreign fighters: Security without a bill of rights, Retrieved from scu.edu.au/law-justice/download.php?doc_id=17264&site_id=63&file.

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