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The legal team of former Guantanamo Bay prisoner David Hicks submitted a to the United Nations Human Rights Committee on August 23.

It argues the Australian government treatment of Hicks has violated the International Covenant on Civil and Political Rights, to which Australia is a party.

It accuses the Australian government of “unlawful, arbitrary detention” and “retroactive punishment” of Hicks. The argument rests on the grounds that Hicks’ conviction by a US military commission at Guantanamo of “providing material support for terrorism” had no basis in international or US law at the time.

The communication said: “By entering into a Prisoner Transfer Arrangement … with the US, to enforce Mr Hicks’ sentence of imprisonment in an Australian prison, and by enacting related domestic legislation, Australia assumed direct responsibility for the unlawful, retrospective criminal punishment of Mr Hicks.

“Such conduct was not justifiable and reasonable alternatives to it were available in order to achieve the humanitarian purpose of securing Mr Hicks’ release from Guantanamo Bay.”

Hicks’ submission to the UN also says the duress surrounding his plea agreement, particularly the prospect of denial of a fair trial and his ill treatment in US custody, should render his conviction null and void under international law.

The communication says: “Mr Hicks’ conviction was based on an unlawful plea agreement with the US, since there can be no legal authority for a state to offer or rely upon a plea in relation to a retroactive offence.

“Duress of circumstances surrounding Mr Hicks’ plea, particularly the imminent prospect the manifest denial of a fair trial and his cumulative ill treatment in US custody, further rendered it null and void under international law.



“The Plea Agreement required Mr Hicks to surrender his right of appeal, freedom to speak freely for 12 months after conviction, and freedom from undue interference by law enforcement authorities.

“By adopting the Plea Agreement as its own, or otherwise by assisting in its adoption by the US, Australia is internationally responsible for violations of Mr Hicks’ rights stemming from the conditions of the unlawful Plea Agreement.”

A US diplomatic cable dated June 20, 2006, and released by WikiLeaks on August 29, showed that Australian officials disregarded claims that Hicks’ was mistreated in Guantanamo and took at face value all the reports from US officials regarding prisoner treatment.

The US embassy in Canberra said then prime minister “John Howard and his government have taken pains to defend our actions consistently, even if it costs them short term political points”.

Australian government prosecutors are trying to confiscate Hicks’ royalties and possible literary prizes for his book, Guantanamo: My Journey.