“Try this for size” Caged father urges Howard” Rebecca Di girolamo Sydney Morning Herald June 22 2003 The article raises the controversial issue regarding the indefinite imprisonment of an Australian, David Hicks, at an American military base in Guantanamo Bay Cuba… The article discusses Mr Hicks’ capture whilst fighting alongside the Taliban in Afghanistan in 2000, in the war proclaimed by America as a war on terror principally aimed at decapitating the Al -Qaeda network, led by Osama Bin laden. Bin Laden is the all edged mastermind of the September 11 bombings on the World Trade Centre. The article depicts Terry Hick’s adamant protest against the unlawful and illegal detention of his son. In an attempt to attract attention and seek broad support he staged a replica of the cage that is imprisoning his son in Cuba outside the Liberal Party’s recent national convention. Legally this issue is concerned with international law, namely treaties which govern human rights globally.
The United Nations Commission on Human Rights (UNCH R) is the world’s largest and most influential forum for the discussion, protection, and promotion of human rights and is significant in that in surrounding the controversial debate as to the legality of the United States’ actions in holding the captured prisoners from the War on Terror but not providing them with the rights of POWs outlined in the Geneva Convention. The United States has symbolically by- passed this convention by refusing to define these captives as POWs, thus avoiding its obligation to this internationally recognised convention. According to the Geneva Conventions, a POW is defined as any “soldier”, member of a party to an international conflict, or member of a militia or volunteer corps combatants captured on the battlefields of official wars.” The basic privileges of the aforementioned captives are protected. The United States has repeatedly stated that these captives do not meet the criteria for a POW outlined in the Geneva conventions essentially on the basis that they are not soldiers but terrorists. The Geneva Convention’s regulations pertain to the captors and the captured.
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For instance, in Article 3, section 1 of the Third Geneva Convention, employment of torture, degradation, hostage-taking, or summary executions to control prisoners is strictly prohibited. Another example can be found in Article 17, which states that the only information that a POW must share with the capturing party is name, rank, date of birth, and serial number. Any further information can be given at the discretion of the soldier and the captors may not use force to discover it. America’s refusal to grant these captives the status of a POW and thus provide them with their rights as stated under the convention raises the question of, to which law are these captives answerable, protected or governed. American domestic law states that it is illegal to detain a person without laying charges, and upholds the notion that ever individual has a right to legal representation in its Bill of Rights. Another legal issue that arises is the fact that according to Australian law Mr Hicks has not committed any offences and therefore if he were returned to Australia he would be entitled to freedom.
Assuming this is the only factor bearing on Australia’s unwillingness to demand the return of Mr Hicks there is an alternative to letting him go free. Under Article 12 of the Geneva conventions, Australia could request the transfer of Hicks on the basis that it detain him as a prisoner of war in Australia. It appears evident that the Australian Governments’ response in going so far as to support America in its actions has resulted in the denial of the fundamental human rights of an Australian citizen. The Federal Governments’ unwillingness to lobby the American Government for Hicks’ immediate release reflects a stark contrast to the numerous conventions and treaties which Australia has signed and enacted in its domestic legislation. These include the Universal Declaration of Human rights 1948 and the International Covenant on Civil and Political Rights (in force as of 1976).
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Under Article 14 (3) this Covenant states that an accused has the right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.
Also in the same section the Covenant states that the accused shall have the right to legal assistance, and if he does not have legal assistance it shall be assigned to him. Australian domestic law has integrated the core of these conventions and prohibits the incarceration of an individual without charges being laid against them or without legal representation. Australian police are not permitted to detain a person on a holding charge and every individual reprimanded must have access to legal representation and if they cannot afford it a lawyer will be typically be provided by the state. An element of hypocrisy appears evident in the American and Australian governments’ action on this issue.
It may also be noted that at the time David Hicks joined the Taliban, it was an organisation that had the support of the United States. The actions of the United States in ignoring the rules of the Geneva Convention by simply interpreting the wording selectively sets a very dangerous precedent and highlights the ineffectiveness of international law. international law in this case appears to have had no impact on the actions of America and thus brings into focus the fact that international law is not enforceable upon powerful countries such as the United States. The Geneva Conventions established a foundation upon which the human rights of POW’s are protected.
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In ignoring this universally recognised convention it undermines fundamental principles which it would no doubt expect other countries to observe. This is exemplified by recent controversy surrounding the Iraqi State media’s conduct in broadcasting images of ally soldiers during the recent Iraqi occupation. This followed similar images of Iraqi detainees and surrendered troops provided by allied officials.