BY ALISON DELLIT
A young Australian is forcibly captured by a foreign power. He is tortured, denied legal representation and detained indefinitely without trial — despite not being accused of any crime. Far from protesting, the Australian government declines to even request his return to Australia. Unbelievable? Not, if the foreign power is the United States of America.
David Hicks is one of 158 prisoners being held at Camp X-Ray, a temporary prison in the US military base at Guantanamo Bay, Cuba. In the first photographs released of the prisoners, they wore blacked-out goggles so they couldn't see anything, earmuffs so they couldn't hear anything, surgical masks so they couldn't smell properly and heavy gloves, restricting even the sensation of touch.
"Sensory deprivation can have the effect of breaking people down because you are actually attacking someone's identity and challenging the notion of who they are", Helen Bamber, director of the Medical Foundation for the Care of Victims of Torture, told the London Mirror on January 19. "They will probably have panic attacks, mood changes and terrible nightmares".
One-third of the prisoners are suffering gun-shot wounds.
Since the pictures were released to worldwide condemnation, the prisoners have had the sensory deprivation aids removed. However, they are housed in open-air cells with "walls" made of chain-wire and corrugated iron roofs. In the 35oC heat, they open to the elements and the mosquitoes. They have no privacy. At night, floodlights illuminate the whole compound.
The captives' hands are shackled at all times while they are not in their cells. Their heads and beards have been shaved. They have been interrogated, without access to legal counsel. The camp is being expanded to house 2000 prisoners.
None of the prisoners have been charged with a crime. Nor is there any indication that this is imminent. The US government is denying the captured men prisoner-of-war status, ignoring demands to this end by not only Amnesty International and United Nations High Commissioner for Human Rights Mary Robinson, but also the International Committee for the Red Cross (ICRC), which is mandated to monitor compliance with international humanitarian law.
The US claims the captured Taliban and al Qaeda members are not POWs because they were not "regular soldiers", principally because they did not wear uniforms. Under the Article 5 of the Third Geneva Convention, prisoners captured in a military conflict are entitled to, at least, a hearing in a "competent tribunal" to determine their status. The US is acting in direct contravention of international law.
But the US government will not give in. Under the Geneva Convention, POWs cannot be interrogated for information beyond their name, rank, date of birth and serial number. They cannot be tortured or treated in a cruel or degrading manner. They must be repatriated once the conflict is over, unless they are suspected of war crimes, in which case they must be given a fair trial. The convention states: "In no circumstances whatever shall a POW be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognised".
Kangaroo court
A fair trial is the last thing on the US rulers' mind.
The prisoners are being kept at Guantanamo Bay because, being an US occupied part Cuban territory, it is not on US soil. This ensures that the prisoners cannot claim rights guaranteed in the US constitution, such as legal counsel or the right to be charged or released.
The non-US prisoners who are charged are likely to be tried by a military court, after an October executive order from US President George Bush. Here the normal rules of evidence do not apply, there is no presumption of innocence, the prisoners can be convicted without proof beyond reasonable doubt, the judges are military personnel appointed by the US Department of Defense, and they can hand down penalties of death by firing squad. There is no right to appeal.
One reason for the US government's desire to run a kangaroo court is that it is still unclear what crimes these men have committed. The only US citizen captured, John Walker Lindh, was charged on January 24 in a US court with "conspiring to kill Americans outside the United States" and support for terrorist organisations.
On the first charge, Lindh is expected to argue that he did not participated in combat against US troops. The second charge applies only after October, when legislation outlawing such support was introduced. These charges will be even more spurious when applied to non-US nationals, under attack from the US.
On January 20, lawyers including former US attorney general Ramsey Clark and headed by Stephen Yagman filed a petition on behalf of the Camp X-ray detainees in a US federal court. The petition calls for the prisoners to be brought before a US court and have any charges against them clarified. It names George Bush, Rumsfeld and "1000 unknown US military personnel" as defendants.
The defendants have until January 31 to reply to the petition, and Yagman will have until February 7 to counter-reply. However, on January 22, presiding judge Howard Matz told the court that he had "grave doubts" that he had jurisdiction over the prisoners, because they did not reside in California. David Hicks' lawyer has indicated that he is interested in supporting the legal case.
David Hicks
Hicks' status is unclear. Despite widespread Australian news reports that he was caught fighting with al Qaeda, not the Taliban, this has not been confirmed. Yet even if he was a member of al Qaeda, not even the US government has accused him of knowing in advance about the attacks on the World Trade Center and the Pentagon, never mind planning it.
In fact, as the January 17 Australian editorial ruefully concluded, we have been presented with no information which indicates that Hicks has committed a crime against Australian law. Even the archaic treason laws, which remain on the Australian law books, can only be invoked if Australia has formally declared itself at war with a foreign power — which it never did for either the Taliban or al Qaeda.
This has not stopped the Australian government, media and federal Labor opposition presuming Hicks guilty of a heinous crime. In a press conference on January 17, Attorney-General Daryl Williams told a reporter that Hicks could not be extradited because there was "no sound legal basis" for charging him at this stage. Yet, Williams has said that if Hicks has not broken an Australian law, he should be tried under US law.
Labor's Daryl Melham told ABC radio on January 17 that if Hicks' had not broken Australian law, then "we should be looking at the next best alternative [to punish him]. If that requires him being tried under American laws, then so be it". Melham added: "Every effort should be made to extradite him to Australia to serve his prison term here."
Quizzed about Amnesty's fears that the prisoners were being tortured by sensory deprivation, Williams replied, "The question for Australia in relation to Hicks is whether the conditions under which he's being held are appropriately humane ... and we believe that they are."
Williams has even refused to guarantee that the Australian government would provide any assistance to Hicks if he were to be tried in a military court.
From Â鶹´«Ã½ Weekly, January 30, 2002.
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