Comment: Was David Hicks convicted of a ‘non-crime’?

By Adam Fletcher, Monash University

On Monday the US Court of Appeals for the District of Columbia handed down a decision which invalidated one of the charges against Salim Hamdan – Osama bin Laden’s driver.


Hamdan was convicted of the crime of “material support for terrorism” – just like David Hicks and numerous other Guantanamo detainees who may now never be tried.

Although “material support for terrorism” was criminalised by the 2006 Military Commissions Act, the court held that it was not a crime between 1996 and 2001, which was when Hamdan was working for Al Qaeda, and therefore could not form the basis of a valid conviction. The same principle presumably applies to Hicks, given he was captured in Afghanistan in 2001.

It has already been noted in the US that this is a remarkable decision from a “very conservative panel of a court that has not exactly been sympathetic to claims by Guantanamo detainees”.

Retroactive criminal punishment

There is a long-standing legal principle known as nullum crimen, nulla poena sine lege (“no crime or punishment without law”) which holds that a deed must be prohibited by law at the time it was done, or the State has no right to punish anyone for it.

This principle (also known in international law as the principle of legality) was famously tested at Nuremberg and Tokyo after World War II. Some of the crimes of the Axis powers were deemed too heinous to go unpunished, yet arguably were not specifically prohibited in international law at the time they were committed. Out of this debate crimes against humanity arose in their modern form.

Interestingly, the US Congress stated in passing the Military Commissions Act that it merely codified existing crimes, rather than creating new ones (the same arguments used after World War II, and in an earlier review of Hamdan’s conviction). However, the Court of Appeals unanimously rejected this view, holding that “the statute does codify some new war crimes, including material support for terrorism”.

The judgement also noted that the US Constitution bars “ex post facto” laws that “retroactively punish conduct that was not previously prohibited, or that retroactively increase punishment for already prohibited conduct”.

The prohibition on retroactive punishment goes to the very heart of the rule of law – without it, what is to stop those in power from inventing laws to punish their opponents, or indeed anyone at all? With this in mind, it is hardly surprising that it is enshrined in so many high-level legal instruments.

What now for Hicks?

Australian commentators have already noted that the Court of Appeals decision appears to be manna from heaven for David Hicks, but there are a couple of problems he faces if he wants to have his own conviction quashed.

First, Hicks struck a “plea bargain” in 2007 with the Pentagon official in charge of his military commission, which included a commitment not to challenge his conviction.

US experts, including the Guantanamo prosecutor in charge of Hicks’ case Morris Davis, have said this makes it unlikely a US court will give him any further hearing, but his lawyers are determined to proceed anyway.

Incidentally, Hicks also promised not to describe his experience in Guantanamo Bay for at least one year after his transfer to Australia. When this ban expired, he did eventually write all about it in his book Guantanamo: My Journey.

Although safe under the plea deal, he was investigated by the Australian Federal Police under the Proceeds of Crime Act 2002. The Commonwealth Director of Public Prosecutions decided in July this year to drop the case, and in a statement to the media explained that the plea deal (and associated evidence) could not form the basis for further prosecution. At least one commentator observed that this statement cast doubt on the Government’s claims that Hicks’ deal was not made under duress, or under some kind of shady pact with Dick Cheney.

Hicks’ plea was unusual. The CDPP explained that it was what is known as an ‘Alford plea’ in the US. It involves admitting that the evidence could prove the prosecution’s case beyond reasonable doubt, and accepting the punishment, but not admitting to the actual commission of the acts in question. Such a plea cannot form the basis for a conviction in Australia.

It must now be asked whether a plea to a non”‘existent crime is invalid from the beginning, which would mean Hicks’ certificate of conviction (as supplied to the Australian authorities) is automatically void. This would certainly simplify things, but it would be awkward for those who have consistently defended the process, including former Prime Minister Howard and former Foreign Minister Downer.

As Hicks’ former military lawyer Dan Mori observes, the Howard Government should be embarrassed that it failed to object to one of its citizens being convicted of what has proven to be an archetypal ‘trumped”‘up charge.’ Hicks now plans to sue the Government the Government for damages, which could dredge up further damaging details about what was known and decided at the time.

Second, there is the chance that the US Justice Department may now appeal the decision. If such an appeal is allowed and the US Government prevails, Hicks (and Hamdan) could be back to square one.

The Obama administration has previously expressed reservations about the crime of material support for terrorism, and is against the Guantanamo military commissions (even if it lost the fight to close them down), dp there may not be any such appeal. In that case, only the dubious plea bargain would stand in the way of Hicks’ criminal record being rewritten.

The Bigger Picture

This latest legal development only serves to underline the flawed legal basis of everything that goes on at Guantanamo Bay, which is often aptly described as a “legal black hole”.

Thanks to Wikileaks, we also know that it is far from being exclusively a secure place to detain the worst of the worst, which is how it is portrayed.

The US and Australian governments pride themselves on their human rights records, but Guantanamo Bay casts a long shadow over their credibility in this regard.

Adam Fletcher does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

Comment: Neighbourhood watch

With China and the US playing great power politics in the South Pacific, Australia needs to keep its eyes firmly on the region.


From the late 1990s and especially in the aftermath of the September 2001 terrorist attacks, the South Pacific was characterised as an ‘arc of instability’, at risk of penetration by terrorists and transnational criminals.

Today, the waters aren’t so choppy. In 2012 the stabilisation mission in Timor-Leste withdrew. In 2013 the small military component of RAMSI will return home, although an Australian policing and governance presence will remain in the medium-term.

In 2012 Papua New Guinea and Timor-Leste held relatively peaceful elections, and both have formed fairly stable governments. The performance of the Solomon Islands and Vanuatu governments has improved. In 2012 the military regime in Fiji confirmed that elections will be held in 2014, and created a commission to draft a new constitution.

With the level of threat and instability in the South Pacific decreasing, it would be tempting for the upcoming Defence white paper to consider shifting Australia’s focus from the region. This would be a mistake. Regardless of recent improvements, the region remains vulnerable.

In particular, there are two key risks which Australia must focus on: strategic competition between China and the US, and the more pressing risk that increasing Chinese activities in the region may intensify existing state weaknesses.

Presently, the South Pacific is marginal to China’s strategic calculations, but China may develop an interest in the South Pacific as part of its ‘island chain’ strategy. China has also sought access to ports and to undertake signals intelligence monitoring, most obviously via the satellite tracking station it built in Kiribati in 1997. US diplomats are reported to think that China wants ‘to demonstrate big-power status in the region’.

The South Pacific’s rich natural resources are also attractive to China, as is the region’s role in competition for diplomatic recognition with Taiwan. In 2009 China pledged aid of US$26.67 million, plus loans of US$183.15 million to the region. In 2010 China encouraged investment and trade to the South Pacific worth US$3.66 billion (a 50 per cent increase from 2009).

At the same time, the US is currently undertaking a pivot, or re-orientation, to the South Pacific in efforts to catch-up with Chinese influence.

The US has a long association with the Micronesian sub-region, which is regarded as the US’ security border, the defence of which is considered vital to maintaining sea lines of communication. Lately however, the US has resumed a more active diplomatic role in the South Pacific. In 2011 it opened the USAID Pacific Island Regional office in Papua New Guinea and increased its aid to an estimated US$300 million. The US also has growing interests in the region’s natural resources.

The unfolding situation has clear strategic implications for Australia.

The possibility that China and the US will compete through the build-up of military forces is low. However, if they did, this could see Australia faced with a difficult and potentially alienating choice very close to home.

The more serious implication arises if China’s aid and other interests (which may increase if it competes with the US), exacerbate the weakness of South Pacific states. Given that Australia is the largest aid donor and has undertaken a number of costly missions to ensure the South Pacific’s stability, it is in Australia’s strategic interest to ensure that the region does not again emerge as an ‘arc of instability’.

The Defence white paper should recognise that the South Pacific may constitute an ‘arc of opportunity’ where Australia can encourage cooperation with China, and between China and the US, to promote stability.

Cooperation could occur first via relatively uncontroversial aid projects and military exercises, build to joint humanitarian and disaster relief operations, and perhaps later to joint military operations.

The South Pacific offers the opportunity to develop these proposals on a relatively small and low-risk scale, so that the lessons learnt and the confidence gained may benefit broader Asia Pacific stability and security.

Dr Joanne Wallis researches and teaches on the South Pacific at the Australian National University’s College of Asia and the Pacific.

This article is edited from a paper in the “Centre of Gravity” series published by the ANU Strategic and Defence Studies Centre.

On assignment in Tanzania

SBS reporter Karen Ashford brings you the latest from Tanzania, from refugees to poaching, and tourism.


IN PICTURES: Stories from Tanzania

BLOG: Roving Reporter


As tens of thousands of children get ready for the new school year, some sparing a thought for those who have little to learn with. An Adelaide school is forging links with a rural school in remote southern Tanzania, with a special focus on helping girls study science. Karen Ashford reports.


Extended feature: View more from Tanzania and the Adelaide school forging links with science school students in the country.

LISTEN: Old science kits offer new opportunities in Africa. Karen Ashford reports for SBS Radio.


In Tanzania the tourism industry is booming, but managing the boom is a particular challenge for African nations, where poor infrastructure can mean the natural attractions that tourists want to see are at risk of being too popular. One Australian idea could provide the solution, Karen Ashford reports.


Tanzania’s Tourism Minister Khamis Kagasheki speaks to SBS’s Karen Ashford about the country’s tourism industry.


For 40 years Tanzania has been a safe haven for Africans fleeing strife in neighbouring countries. Now, the East African nation is closing its refugee camps, claiming a new era of peace. One policeman from Western Australia made the reverse journey to understand the needs of Africans living in Perth, Karen Ashford reports.


Tanzania is one country in Africa stepping up the fight against poaching of endangered animals. As Karen Ashford reports, it has many challenges to overcome in protecting its diverse species.


Tanzania’s President Jakaya Kikwete speaks exclusively to SBS’s Karen Ashford about efforts to tackle wildlife poaching across his country.

Karadzic opens Srebrenica defence

Bosnian Serb wartime leader Radovan Karadzic opens his defence before the United Nations’ Yugoslav war crimes court on Tuesday, hoping to convince judges of his innocence in a conflict that claimed 100,000 lives.


Brought to court after his arrest on a Belgrade bus in 2008, Karadzic, 67, is charged with masterminding the murder of nearly 8,000 Muslim men and boys by forces loyal to him in the eastern Bosnian enclave of Srebrenica in July 1995.

The massacre, when Bosnian Serb troops under the command of wartime general Ratko Mladic overran Dutch UN peacekeepers, was the worst atrocity committed on European soil since World War II.

Over the space of a few days, thousands were systematically executed and dumped into mass graves in the area.

Karadzic’s legal adviser Peter Robinson said his client would argue that “no policy was being implemented (at Srebrenica)”, asserting that the former Bosnian Serb leader “did not know prisoners would be executed”.

He added that Karadzic, who risks life imprisonment if convicted, would tell the judges that while he did not deny that people were killed in Srebrenica, he “challenges the scale of the massacre”.

Prosecutors say Karadzic, former Yugoslav president Slobodan Milosevic and Mladic acted together to “cleanse” Bosnian Muslims and Croats from Bosnia’s Serb-claimed territories after the collapse of Yugoslavia in 1991.

Milosevic died midway through his own trial for genocide and war crimes in March 2006.

Karadzic, a poet and trained psychiatrist, is also charged for his alleged role in the siege of the Bosnian capital Sarajevo between May 1992 and November 1995 in which 10,000 people died under terrifying sniper and artillery fire.

Like Mladic, he has also been charged for his alleged role in taking hostage UN observers and peacekeepers to use them as human shields during a NATO bombing campaign against Bosnian Serb targets in May and June 1995.

Indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1995, Karadzic spent 13 years on the run before being arrested in 2008 in Belgrade where he practised as a doctor of alternative medicine. His trial began in October 2009 and prosecutors put their case against him between April 2010 and May this year.

Judges dropped one genocide count in June, saying there was not enough evidence to substantiate the charge for killings by Bosnian Serb forces in Bosnian towns from March to December 1992.

Genocide, the gravest crime in international humanitarian law, is the hardest to prove.

Karadzic plans a four-hour statement to open his defence, followed by the testimony of Russian colonel Andrei Demurenko, the UN chief of staff in Sarajevo from January to December 1995.

Wives and relatives of victims of the massacre will look on from the public gallery.

Karadzic, who has been allotted 300 hours for his defence, has said he will call 300 witnesses to testify on his behalf.

UN raises new concerns about Libya arms

The UN Security Council has raised new concerns about arms flowing from Libya into neighboring countries and about thousands of detainees held in secret by militias.


A resolution, which eased a UN arms embargo to allow non-lethal equipment into Libya, highlighted “the illicit proliferation of all arms and related material of all types” since the fall of Libya’s longtime dictator Moamer Kadhafi.

The 15-nation body said heavy and small weapons and surface-to-air missiles were involved and stressed the “negative impact on regional and international peace and security.”

“There are suggestions that weapons are going out through the southern borders of Libya to countries in the region,” Britain’s UN ambassador Mark Lyall Grant said.

“We know that in the immediate aftermath of the overthrow of Kadhafi, quite a number of weapons flowed into Mali and Niger,” the envoy told reporters.

UN experts who monitor sanctions against Libya have “found that the proliferation of weapons from Libya had continued at a worrying scale and spread into new territory,” said Rwanda’s UN ambassador Eugene Richard Gasana, chairman of the Libya sanctions committee.

Kadhafi was deposed and killed in October, 2011 and many foreign fighters who had been part of his forces fled — taking arms with them.

Western intelligence reports have indicated some of the arms are reaching Al-Qaeda linked groups operating in Sahel countries.

The UN envoy to Libya, Tarek Mitri, told the Council that “the country remains awash with unsecured weapons and munitions that continue to pose a regional security risk, given Libya’s porous borders.”

The council eased an arms embargo so that Libya can now buy non-lethal equipment such as armored cars and body armor without UN permission.

Prime Minister Ali Zeidan said last month he wanted the UN to lift the weapons embargo imposed in 2011. But he made no official request, and diplomats said Zeidan had not raised the matter in talks in New York.

Zeidan told the council his government was speeding up the training of police and judiciary officials and seeking to end the plight of thousands of people, many from other African countries, held secretly by militias since the fall of Kadhafi.

The council resolution expressed “grave concern” over reports of “mistreatment, torture and extrajudicial executions” in detention centers.

It called for the “immediate release of all foreign nationals illegally detained in Libya.”

Mitri said his mission “continues to highlight the plight of detainees, particularly those held in secret detention facilities, including farms and private homes” across Libya.

“We are equally concerned by allegations of a number of deaths in custody,” he said, while praising Zeidan’s efforts “to build a modern, democratic, and accountable state.”

The resolution, which extended the UN mission in Libya for a year, authorized a sanctions monitoring committee to lift an asset freeze against the Libyan Investment Authority and the Libyan Africa Investment Portfolio “as soon as practical” and ensure the assets are used to help Libya’s people.