Is the Trial of David Hicks a War Crime?

In Justice at Guantanamo? The Paradox of David Hicks, Prof. Devika Hovell of the University of New South Wales, Sydney, Australia, provides a very measured introduction to the legal quagmire which is the ongoing trial of “Australian Taliban” David Hicks.

Article 5 of the Third Geneva Convention, which requires all persons falling into enemy hands to be presumed to be a prisoner of war until determined otherwise by a competent tribunal. Rather than hold a hearing to determine Hicks’s status, the US has instead presumed he is an ‘enemy combatant’ (a category not recognized by the Geneva Conventions, which divides people into soldier-POW or citizen-criminal). Irregulars, such as the Taliban in Afghanistan, likely fall within the “[m]embers of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces” who all are entitled to POW status. (Whether Hicks falls into this group may well be debatable, but it has yet to be debated.)

Unlike the new rules invented by the Pentagon, a mere “enemy combatant” gets a very very second class kind of trial, far below what the Geneva Convention would require for a POW. Aside from their fundamental injustice (see Condemned By the Company We Keep), Prof. Hovell reminds us that there’s another problem too: ” Failure to provide a prisoner of war with a fair trial constitutes a war crime.”

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4 Responses to Is the Trial of David Hicks a War Crime?

  1. Of course it’s a war crime. See: Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 Mich. J. Int’l L. 1 (2001); Paust, Antiterrorism MCs: The Ad Hoc DOD Rules of Procedure, 23 Mich. J. Int’l L. 677 (2002); Evan J. Wallach, Afghanistan, Quirin, and Uchiyama, Army Law., November 2003, at 18 (2002-3), all of which are available *HERE*

    See also some recent research by Judge Wallach concerning The Doolittle Raiders Case.

    As for Sen. Graham’s amendment, 18 USC § 2441(c)(2) states:

    “(c) Definition.– As used in this section the term “war crime” means any conduct– * * *

    “(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907[.]”

    Geneva is also included in the statute by (c)(1) & (c)(3), but Hague Annex Article 23(h) makes this all crystal clear:

    “In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”

    The U.S. Senate has no authority to violate that law: Senator Graham is aiding and abetting WAR CRIMES.

  2. seekXL says:

    “The U.S. Senate has no authority to violate that law: Senator Graham is aiding and abetting WAR CRIMES.”

    this is true and i hope it give other solutions.

    greetings from germany, berlin


  3. The irony here is astounding – it was the US who prosecuted the Japanese in the “courts-martial” cases, where we alleged and proved that the Japanese courts-martial of US troops was a sham, and thus a war crime; it was also the US who took the lead in Nuremberg, in the “Justice Case” which prosecuted NAZI judicial officials for war crimes committed in the name of the law. But while it generally pains me to cite a self-rightous prosecutor, now and then, there’s an apt quote. On the topic here, consider, “It has long been a principle of international law that pacta servanda sunt (pacts must be carried out), regardless of the subject matter covered by the treaty.” This from the Chief Prosecutor at the Tokyo War Crimes trials (where we prosecuted the Japanese leadership for violating valid international treaties), Keenan & Brown, “Crimes Against International Law,” at 85 (Wash, DC: Public Affairs Press, 1950). This book has one other relevant tidbit – a defense for most of the GTMO POWs – “Common soldiers are entitled to presume the justice of their nation’s war because they are almost always not in possession of sufficient facts to make a proper judgment.” Id., at 135, citing [my favorite case other than Marbury], Little v. Barreme, 2 Cranch 170 (1804)[although the case actually held that Navy Captain Little, could not rely upon an illegal order given by, who else, the President of the US, in defending an admiralty case].

    But, with all of the litigation over the MilComs in federal court, “ignorance” for those in the DoD “Office of Military Commissions” is no longer an option.

  4. domain says:


    The U.S. Senate has no authority to violate …….

    can you justify that for me?

    best Regards

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