David Hicks, an Australian then 26 years old, was captured in Afghanistan by the Northern Alliance (an armed, non-state group backed by the United States) in November 2001. On 15 December, he was transferred into the custody of the US. He was detained by the US at its naval base in Guantánamo Bay, Cuba, from January 2002 to March 2007.

The US is a party to the ICCPR, but not its 1st Optional Protocol (ICCPR-OP1), and thus the US does not permit individuals to complain to the UN Human Rights Committee (HRC) alleging breaches of the ICCPR. Mr Hicks’ communication to the HRC cannot, therefore, deal with his treatment by the US, but only Australia’s role in the affair, since Australia is party to the ICCPR-OP1. “It is undisputed,” writes the UN Human Rights Committee, “that most of the violations claimed by [Mr Hicks] are attributed to the United States. However, [Mr Hicks’] claims before the Committee focus on the part of responsibility borne by Australia” (para. 2.3).

On 31 March 2007, Mr Hicks was convicted of providing material support for terrorism and sentenced to 7 years’ jail by a US Military Commission. Under a bilateral prisoner transfer agreement, Hicks was moved to Australia on 20 May 2007, where he served 7 months of his sentence in an Adelaide prison (the remainder of the sentence being suspended). He was released on 29 December 2007, under the constraints of a 12-month control order* imposed by an Australian court. In all, he was imprisoned just over 6 years, not including the control order.

Mr Hicks claims his military trial was unfair. Among the reasons he cites are that:

• he was denied legal representation for 2 years and held without charge for two-and-a-half years, without justification given for the delay


• he was tried as an ‘unlawful enemy combatant’, but not accorded the protections owed to prisoners of war under the 3rd Geneva Convention


• he was charged with an offence that did not exist in US law at the time it was alleged to have occurred


• he did not enjoy the presumption of innocence


• senior Australian and US officials made repeated and public assertions of his guilt before the trial, prejudicing the outcome


• he was compelled, by coercive interrogation,** to testify against himself; and


• evidence from witnesses was ‘highly likely’ to have been tainted by coercive interrogation.

As a consequence of the charges and trial being unfair, Mr Hicks maintains that his imprisonment in and by Australia was arbitrary and unlawful. Indeed, the Human Rights Committee observed that, by the time Mr Hicks was transferred into Australian custody, “there was abundant information in the public domain that raised serious concerns about the fairness” of the US Military Commission procedures (para. 4.8).

He further alleges that he was discriminated against on the basis of national origin, because the US only tried foreign nationals under its Military Commission system, with US nationals afforded a ‘higher standard of justice’ (para. 29).

In February 2015, a review by the US Military Commission found his conviction was unlawfully retrospective and set aside his guilty verdict and sentence (para. 63).

In November 2015, the UN Human Rights Committee found that Australia imprisoning Mr Hicks for 7 months following his return to Australia amounted to arbitrary detention (ICCPR art 9(1)).

The HRC held that ‘giving effect, under a [prisoner] transfer agreement, to sentences resulting from a flagrant denial of justice constitutes a disproportionate restriction of the right to liberty’. The denial of justice resulted from unfair US proceedings and a retrospective conviction.

The HRC found that Mr Hicks’ purported consent to his sentence, through a guilty plea, was not decisive because ‘the detention conditions and ill-treatment to which he was subjected [at Guantanamo Bay] left him little choice’.

Given its ‘significant influence’ with the US, Australia did not do ‘everything possible’ to ensure the transfer did not violate the ICCPR.

The HRC accepted that the transfer to an Australian prison had a humanitarian purpose, such that its finding of a violation was sufficient form of satisfaction. The Committee therefore concluded that no individual substantive remedy was owed to Mr Hicks by Australia:

“[Australia] is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. In the particular circumstances of the present case, in which the State party’s actions were intended to benefit the author and did, in fact, mitigate the harm he would have suffered had he continued to be kept in the custody of the United States, the Committee considers that the finding of a violation constitutes appropriate reparation in the form of satisfaction.” (para. 6)

However, the obligation to guarantee non-repetition is undiminished: Australia “is under an obligation to take steps to prevent similar violations in the future.”

Mr Hicks’ other claims were unsuccessful, concerning the duty to investigate torture, the lawfulness of his ‘control order’, and Australia’s aiding and abetting of ICCPR violations by the US.

Australia responded to the HRC's final views in January 2017 (see below), rejecting the Committee's adverse finding that it violated article 9(1).

Mr Hicks responded in February 2017 (see below), condemning Australia's refusal to accept the Final Views of the UN Human Rights Committee and citing the Committee's General Comment No. 33 which requires Australia "to respect the Committee’s Views as authoritative, quasi-judicial determinations of its treaty obligations, which Australia is further bound to implement in good faith."

He reminds Australia that,

"By becoming a party to the Optional Protocol, the State party has recognised the competence of the Committee to determine whether there has been a violation of the Covenant or not and ... undertaken ... to provide an effective and enforceable remedy in case a violation has been established.”

Footnotes:

* The control order, imposed by the Federal Magistrates Court of Australia, required Mr Hicks to remain at a given address at specified times; report regularly to the police; and seek permission if he wanted to leave Australia. Among other restrictions, he was prohibited from using the internet or e-mail (Annex II, para. 4).

** Mr Hicks claims to have suffered various forms of ill-treatment while in the custody of the United States, including: “beatings, punching and kicking; sexual abuse and humiliation; repeated threats by weapons; being forced into painful stress positions; prolonged hooding and blindfolding; frequent tight handcuffing and shackling; enforced taking of medication or drugs; sleep deprivation; prolonged exposure to bright lighting and excessive continual noise; deprivation of the ordinary necessities of living, including adequate food, exercise and hygiene basics; threats of rendition to torture in Egypt; prolonged solitary confinement; witnessing abuse to other detainees; etc.” He was held in complete solitary confinement for a number of lengthy periods, the longest continuous period being 16 months, during which time he was also denied sunlight for 8 months. He reported his abuse “to the International Committee of the Red Cross, family members and Australian officials who interviewed him in May 2002, including Australian Federal Police, Australian Security Intelligence Organisation and consular officials. Former detainees at Guantanamo Bay substantiated the author’s claims.”