Australia violated rights of David Hicks by jailing him after transfer from Guantanamo – UN experts

17 February 2016

Australia violated the rights of David Hicks by keeping him in jail, as evidence shows that he was forced to accept a plea bargain with United States authorities as a condition for his return, United Nations human rights experts have said.

Mr. Hicks, an Australian national, was convicted in March 2007 under the US Military Commission Act 2006 on charges of “providing material support for terrorism” and given a seven-year sentence. A few months later, he was transferred from the US Naval Base at Guantánamo Bay in Cuba to Australia where he served the remaining seven months of his sentence in prison.

Although transfer agreements are important, because they allow prisoners convicted abroad to serve their sentences in their own country, “States should not carry out a sentence if there is ample evidence that the trial clearly violated the defendant’s rights, as was the case with Mr. Hicks,” Fabian Salvioli, Chair of the UN Human Rights Committee, said in a press release.

The findings by the Commitee, which is composed of 18 independent experts who monitor compliance with the International Covenant on Civil and Political Rights (ICCPR), came after considering a complaint brought by Mr. Hicks specifically regarding his treatment by Australia.

The Committee found that the decision to continue to jail Mr. Hicks as a result of the transfer deal “constituted a disproportionate restriction of the right to liberty” in violation of the Covenant, said Mr. Savioli.

By the time Mr. Hicks was transferred, there was a lot of information available that raised serious concerns about the fairness of the procedures by the US Military Commission, he said.

“That should have been enough to cast doubt among the Australian authorities as to the legality and legitimacy of the sentence imposed on him,” said Mr. Salvioli. “Australian officials had also visited Mr. Hicks at Guantánamo and were therefore in a good position to understand the conditions under which he was held and tried.”

In its findings, the Human Rights Committee wrote that, Mr. Hicks, in order to escape the violations to which he was subjected in Guantanamo, “had no other choice than to accept the terms of the Plea Agreement that was put to him. It was therefore incumbent on (Australia) to show that it did everything possible to ensure that the terms of the transfer arrangement that had been negotiated with the United States did not cause it to violate the Covenant.”

As a party to the ICCPR, Australia is obliged to make full reparations to individuals whose rights have been violated. In Mr. Hicks’ case, Australia’s actions regarding the transfer arrangement were intended to help him and did in fact mitigate the harm he would have suffered had he remained in US custody, and so the finding of a violation was sufficient reparation, the Committee noted.


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