February 15, 2007

GIVEN OUR DRUTHERS:

Gitmo detainees are not ordinary felons: David Hicks should not be returned to Australia for trial before a regular criminal court (Jeremy Rabkin, February 16, 2007, The Australian)

Now that the Prime Minister has broken the ice, let me return the favour by voicing some exasperation at what some of your Opposition Labor politicians, such as shadow attorney-general Kelvin Thomson, and even federal Liberal backbenchers such as Michael Johnson and Don Randall, are saying about the case of David Hicks. [...]

Trials by military commissions were not invented from whole cloth by the Bush administration. They were used in the aftermath of World WarII to try war criminals such as General Tomoyuki Yamashita for Japanese atrocities in The Philippines. Military commissions were used in the American Civil War, among other things for the trial of Abraham Lincoln's (civilian) assassins. Even the Geneva Conventions, in provisions applicable to prisoners covered by all its protections, authorise trial of prisoners by military tribunals when they are accused of special offences. They do not impose many definite procedural requirements for such trials.

In its ruling last year in Hamdan v Rumsfeld, the US Supreme Court held that trials at Guantanamo should conform to the general provision in the Geneva Conventions applying to "armed conflict not of an international character": to conflicts where the rest of the conventions' protections do not apply.

That provision (in Article 3) prohibits "passing of sentences ... without ... affording all the judicial guarantees which are recognised as indispensable by civilised peoples". Quite a few aspects of ordinary criminal procedure might be judged as less than indispensable, as all the justices agreed.

The serious questions here are inevitably rather technical. [...]

Before critics get too worked up, they might recall that the problems here are not unique to US military trials. Compromises with normal procedure have characterised international war crimes trials, too, starting with the Nuremberg and Tokyo tribunals in 1946, where, among other things, defendants were made to answer for some crimes only defined as such in retrospect. The International Criminal Tribunal for the former Yugoslavia has, on several occasions, protected witnesses by shielding their identities from defendants.

Whatever happens to Hicks, we are not likely to see the end of the terror threat any time soon. If critics insist that justice and security point in entirely opposite directions, they shouldn't be confident that governments - and voters - will always give priority to their notions of perfect justice.


Or ever.

Posted by Orrin Judd at February 15, 2007 12:52 PM
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