Empire Crime, Rendition and Guantánamo Bay: The Case of David Hicks

Notes

1. An earlier version of this article was presented to the 41st Annual Conference of the European Group for the Study of Deviance and Social Control, University of Oslo, 31 August, 2013. I am most grateful for the improvements suggested by the anonymous reviewers of the present article.

2. If we must rely on Hick's account of his mistreatment in this theatre, it is because (not to be facetious) there are no records from the Northern Alliance, and there is scant and contradictory documentation from the Central Intelligence Agency (CIA) and their Australian state interlocutors. Note that Hicks's (2010) account is meticulously footnoted with references to corroborating and expository documents, with the assistance of Aloysia Hicks (née Brooks). His story is also remarkably consistent with that of other contemporaneous victims of rendition and torture, whose accounts accord on many points of detail.

3. Amnesty International ( 2006: 2) explains that ““Rendition” usually involves multiple human rights violations, including abduction, arbitrary arrest and detention and unlawful transfer without due process of law”. All of these violations obtained in Hicks's case. It “also violates a number of other human rights safeguards: for example, victims of ‘rendition’ have no possibility of challenging their detention, or the arbitrary decision to transfer them to another country” ( Amnesty International 2006: 2). All of these conditions were experienced by David Hicks.

4. Note that the available medical records are sparse, and most – including Hicks's – have been withheld. Hicks's difficulty in documenting physiological evidence of his torture was compounded by his period of imprisonment in Australia, when he was denied access to his own doctors until eight months after his discharge from the Guantánamo Bay prison camp, by which time traces of forcibly administered drugs, for example, were no longer detectable ( Hicks, 2010 404– 405). See, however, O'Brien ( 2012) on witnesses to “chemical torture” as “pharmacological waterboarding”.

5. See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar 2006; Milewski 2012.

6. See Saul ( 2010) for a comprehensive listing of those in which the Australian government was implicated.

7. The International Covenant on Civil and Political Rights (ICCPR) defines detention as arbitrary if it is not in accordance with due process of law or is manifestly disproportional, unjust or unpredictable. It stipulates that detention should be consistent with the normal procedures used to prosecute individuals implicated in criminal offences, and terrorism cases are no exception. Detainees should be charged with recognized criminal offences and speedily brought to a fair trial. “Material support for terrorism” was not a recognized criminal offence until the Guantánamo tribunals. Five years' delay is not speedy. The British High Court and indeed the US President have recognized the military commissions at Guantánamo Bay as not constituting a fair trial. The ICCPR, moreover, accords the right to choose one's own legal counsel, in addition to the right to legal counsel provided for by the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. Both of these human rights under international law were denied to Hicks (see Dyhrberg 2002: 8).

8. I am grateful to David Whyte for suggesting this point.