The Detention of David Hicks & Mamdouh Habib by US Armed Forcesan
extract from John Richardson
David Hicks:
David Hicks is an Australian citizen from Adelaide.
Hicks travelled from Australia to Pakistan & then to Afghanistan prior
to September 11, 2001.
Hicks was travelling with Taliban government forces in December, 2001
when he was captured by rebel forces of the Northern Alliance.
Following the US invasion of Afghanistan, Hicks was handed-over to US
military forces & flown ‘extra-judiciously’ to Camp X-Ray, a US military
base located in Guantanamo Bay, Cuba.
Hicks was in the hands of his Afghan captors prior to US armed forces
invading Afghanistan.
Hicks was not & has not been charged with any offence under Afghan,
Australian, US or International Law.
News reports from the US this week [ W/C 08.12 ] have indicated that the
US has assigned a legal defence team to Hicks, lead by US Marine Corps
lawyer, Major Michael Mori, & that the US has agreed that Hicks
Australian lawyer, Stephen Kenny, would be permitted to join that team
as a ‘consultant’.
The same reports have indicated that Hicks may have reached a
plea-bargain agreement with US authorities, agreeing to plead guilty to
a ‘lesser charge’ in turn for not having to face trial before the
Military Commission, although this remains to be confirmed.
It has also been reported that Hicks has been moved from Guantanamo Bay
to another location in Cuba & is being held in isolation in a steel
cage, located inside a hut.
Hicks’ Australian lawyer has warned that any deal between Hicks & US
authorities, struck whilst he was under duress, would have no legal
standing.
Mamdouh Habib
Mamdouh Habib is an Australian citizen from Sydney
Habib travelled to Pakistan in September, 2001, reportedly to arrange
schooling for his children.
Habib was detained by Pakistani Intelligence operatives on October 5,
2001, 2 days prior to the US commencement of its aerial bombardment of
Afghanistan, which preceded the US invasion.
Contrary to Pakistani law, Habib was not brought before a court within
24 hours of his detention.
Habib was not & has not been charged with any offence against Pakistani
law.
Habib was taken ‘extra-judiciously’ from Pakistan to Egypt in late
October, 2001 & handed-over to Egyptian Intelligence authorities.
In April, 2002, the Australian government informed the Habib family in
Australia that Habib had been handed-over by Egyptian authorities to US
military forces in Egypt & taken ‘extra-judiciously’ to Afghanistan·
Contrary to Egyptian law, Habib was not brought before an Egyptian court
within 24 hours of his having been handed-over to them by Pakistani
authorities.
Habib was not & has not been charged with any offence under Egyptian or
Afghani law.
On May 6, 2002, Australian authorities advised the Habib family in
Australia that Habib had been flown by US military forces
‘extra-judiciously’ to Camp X-Ray, located in Guantanamo Bay, Cuba.
Habib was being held by Pakistani authorities prior to the commencement
of US hostilities against Afghanistan. He has been held in the custody
of Egyptian & US authorities ever since
The only time Habib entered Afghanistan was when he was taken there as a
prisoner of the US military, prior to being flown to Guantanamo Bay in Cuba.
Habib has not been charged with any offence against Australian, US or
International Law.
The Issues
The issues arising from the detention of David Hicks & Mamdouh Habib are
many & complex but can be broadly canvassed in the context of their
historical & current circumstances & treatment & their prospective
treatment as ‘detainees’ held by US armed forces in Guantanamo Bay, Cuba.
In particular, the US government:
has determined that the ‘detainees’ at Guantanamo Bay, Cuba, including
David Hicks & Mamdouh Habib, are ‘enemy combatants’ & that they are
being held by US military forces under the auspices of the Presidential
Order of November 13, 2001 [ see notes above ].
contends that, as enemy combatants, the ‘detainees’ are not subject to
the protections of the Geneva Convention.
has argued in the US district court that the ‘detainees’ are beyond the
jurisdiction of US courts as, even though they are under the control of
the US military, they are not being held on US sovereign territory.
has announced that David Hicks is eligible for trial by the US Military
Commission, to face charges that did not exist in law until some 18
months after any offences could have been committed.
has not made a determination in respect of Mamdouh Habib - at this point
therefore, Habib has effectively been condemned to perpetual incarceration.
has not made specific allegations or charges against either Hicks or Habib.
Whilst the British government has taken steps to negotiate the
repatriation of British ‘detainees’, the Australian government has
indicated that it has no such intention in respect of David Hicks &
Mamdouh Habib & is satisfied with the basis of their treatment by the
US, although the Australian government claims to have secured from the
US government a commitment that the death penalty will not be applied
against either man, if found guilty of a charge by the Military
Commission & that any penal sentence imposed by the Military Commission
on either man may be served in an appropriate Australian penal institution.
A number of international institutions & eminent jurists believe that
the detention of David Hicks & Mamdouh Habib [ in fact, all the
‘detainees’ at Guantanamo Bay ] is illegal & that their rights under
international law have been & continue to be denied, including their
rights under the Geneva Convention, the Universal Declaration of Human
Rights & the Torture Convention.
Join our Vigil:
Sydney: Season's Greetings for David & Mamdouh, Friday 19 December 5-7pm
at Sydney Town Hall
Adelaide: Friday 19 December 5-7pm outside State Parliament
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