It’s nice to see the Govt. and others who don’t give a stuff about David Hicks now going to bat for Nguyen Tuong Van, however………,
……..one is a convicted drug trafficker, a crime in Australia the last time I checked, yet the other has committed no crime that we know of as far as Australian law (or any law save the manufactured edicts of a failed President) is concerned. Remember Hicks has not/never harmed a single person - even the charges attached to him agree with this. In fact, in Hick’s war, nary a single shot was fired by the so-called guilty party.
So we have a range of strange bedfellows, dog whistling the public into going to bat for a guilty man like Nguyen Tuong Van, yet someone that would find it impossible to be charged or convicted in any truly fair court of law, lies alone and forgotten in a cell of imperial convenience.
It’s also worth pointing out the blatant hypocrisy of our Govt. possibly resorting to international legal conventions in this case when similar conventions have always been available in the case of Hicks.
It appears that recently, the sentencing outcomes of Asian nations like Singapore has become a convenient political currency here in Australia, and is very useful for engaging in rank populism and distraction than taking on the bigger picture of the freeform quasi judicial stylings of our partners in war. A style that we have now seen creep into our own system ensuring that we become what we condemn.
Hmmm. Why is it I have this sneaking suspicion that Mr Nguyen would prefer to be in Hicks orange jumpsuit at present?
I reckon he would too Observa, and that is the point of opposing the death penalty in his case, yet, being incarcerated for a crime there is no name for, something you did not commit, and tortured for good measure still sucks big time, doesn’t it?
And if Hicks’ fate is so much better then why do we have persistent stories of detainees attempting to kill themselves, alleged death through torture, and hunger strikes, it don’t look like no tea party to me. It appears from many reports that may detainees would prefer death to their current circumstances.
Straying ever so slightly off topic there Observa. Maybe you could give us the benefit of your views regarding the hypocrisy of our government? After all, it was the topic of the post.
…incarcerated for a crime there is no name for…
Crimes plural, actually, and they do have names:
The case of Hicks - a militaristic neanderthal - should have been resolved by now, yes. Justice this delayed is justice at risk of being denied. But that rightful criticism of the government doesn’t need a gratuitous reference to Nguyen Tuong Van to sustain it.
Why not couple it with a critique of the AFP’s immoral (and perhaps even questionably legal) betrayal of the Bali Nine’s right to justice in a no capital punishment jurisdiction? Namely, Australia’s. How did the government and Mick Keelty get away with this and where is Labor on the question?
This is a peculiarly illiberal hit piece. The death penalty is a grave matter and both sides of politics officially and actually oppose it. As I said, I don’t see why this has to be dismissed as “dog whistling” (??) just to make a case for Hicks.
Sorry CL, crime..S, I didn’t know Time Blair posted under your alias. And thank you for bringing up the Bali 9 case. It adds to the piece.
I think they are hypocrites on the issue of justice as I mentioned. That is the substance of the post.
Now I’m orf to the pub.
C.L. - Phil likes to blog like an RWDB. Just explainin
I’m pretty sure that if Hicks was to be sentenced to death on December 2 there would be considerably more outcry and a more positive response from the Government. Nguyen Tuong Van’s plight is rather more desperate.
Unfortunately for Hicks he was caught in the wrong place at the wrong time, evidently (or not) with the intent on the wrong action (unless you’re a Taliban supporter). I agree that the case has gone on for far too long, and some kind of justice needs to be meted out, or he should be released, but the man was involved in a potentially deadly excursion.
It’s naive to put a case that he was innocent of planning or carrying out any act of aggression against allied troops, or even innocent bystanders, though, just because he was picked up, seemingly, before he could go through with it.
It’s interesting to consider Hicks’ case in the light of the defence being mounted by the lawyers of one terrorist suspect in Sydney - an international student. My understanding of the argument is that Australian law shouldn’t have an extra-territorial reach, and thus someone should not be indictable here for crimes committed in Pakistan. That seems to me to be a reasonable principle. The fact that there was no legal way for the US to apprehend Hicks as a prisoner of war, and thus he’s in a nowhere land as an “enemy combatant” outside the territorial USA and attempts are being made to remove Guantanamo Bay prisoners from the judicial review functions of the US courts should indicate the problems that such legislative states of exception can lead to for justice. The irony of course is that the US traduces and condemns the International Criminal Court.
Kim, Kim, Kim, secrets, lies and all that.
Thank you Mark, that is the nub of Hick’s situation, while Nguyen is convicvted of a real crime in a real court, Hicks is subject to some pretty strange concepts in legality, all of which we fully support at a Govt level.
“dog whistling the public into going to bat for a guilty man like Nguyen Tuong Van”
Why is that if ever somebody elicits the sympathy of the public it is dismissed as the result of rabble-rousing? Echoes of the Corby saga seem to colour this observation more than is warranted. Also, the death penalty and illegal detention are both serious issues and do not need to be unhelpfully and falsely contrasted.
Just whinin’
The whole point is the Gov’t reacts to whichever way the wind is blowing. They have no strong moral compass on such things other than apparently what was issued by the White House. The C. Corby and this guy in Singapore are issues stirred up by the public/media so they are reacting to show what a caring bunch they are. Absolutely correct the point above re: the ones topped off by the AFP now in Bali. Why is no-one chasing this? The issue of Hicks, the public do not give a toss because they’ve swallowed the “he must have been doing something bad otherwise he wouldn’t have been there” meme. Plus he’s weird, not sexy, nothing to see here.
Mark - Foreign incursions and recruitment act - designed to stop Australian citizens and permanent residents from travelling overseas and fighting against a recognised government. Doesn’t apply to Hicks because he was fighting for the recognised govt at the time.
Mark: “My understanding of the argument is that Australian law shouldn‚Äôt have an extra-territorial reach, and thus someone should not be indictable here for crimes committed in Pakistan. That seems to me to be a reasonable principle.”
Does this noble principle also apply to Australians charged in Australia with child sex crimes overseas? Or does your sense of limitation only apply to Islamic terrorists?
If Hicks was sentenced to death, the government wouldn’t lift a finger for him. He’s a murderous traitor.
Anti-hacking laws have quite explicit extra-territorial effect as well.
In general, as a principle, I don’t think extra-territoriality a good one.
With regard to the internet, there are interesting legal issues as people in effect are bound to the jurisdiction of the legal system pertaining to the territory in which the site originates or the effects are felt, but the law is still evolving on this.
The whole question of extraterritoriality and its intersection with international law is a complex question, but what is perfectly clear is that people should not be derived of rights and due process under the auspices of extraterritoriality. That’s not the case in regard to sex crimes or hacking.
Nor is it the case for Hicks.
He was an unlawful combatant fighting outside the rules of war. Under international law, he is entitled to a military tribunal, which is what he is getting.
Evil Pundit. You claim David Hicks is “a murderous traitor”. How do you know this? He has not been tried by any court of law. No-one is claiming he murdered anyone. What is your definition of traitor? Someone who was working for a foreign internationally recognised government?
The point is that he is a political pawn of the US and Australian governments. He might well be guilty of some crime and I would be amongst the first to condemn him if he were found guilty by a legitimate court of conspiracy to kill innocents. And don’t get me wrong, I am no fan of the Taliban. They deserved to be kicked out.
I say, bring him before a legitimate court now and let him have his day. If he is guilty, punish him, if he is innocent, let him go. We must not sink to the level of our enemies.
There’s also the consideration that the Government doesn’t want people of Hick’s ilk in Australia, particularly with the advancing strategy of ‘homegrown’ bombers, which brings added fear and suspicion into a community. Presumably, if Hicks was stupid enough to be persuaded to travel to a foreign combat zone to fight Australia’s allies, he may be foolish enough to be convinced to begin one on his own soil. The Government may be thinking it’s better to leave him where he’s out of the way.
You’re a joke, EP. Hicks is alleged to be an unlawful combatant. Article 5 of the Third Geneva Convention states that:
A kangaroo court in the legal black hole known as GTMO does not qualify as a “competent tribunal”, particularly after four years of illegal detention. The behaviour of the US and Australian governments in this sordid affair is absolutely disgraceful.
RULE OF LAW, people. It’s a good thing, FFS.
Mark, it is not uncommon for people for people to be charged here for offences committed overseas. Anyone interested in the arguments for and against extraterritorial criminality can read last week’s High Court transcript, where the issues were thrashed out in full: http://www.austlii.edu.au/au/other/HCATrans/2005/957.html
The accused’s appeal was dismissed.
What was the offence? I think I fell asleep when they were still trying to decide what external to Australia meant.
It was a child sex tourism offence, but a very wide gamut of offences was covered in argument, from piracy to war crimes. The history of the external affairs power can be pretty boring, but in scanning transcripts try scrolling like hell and then stopping when whatever you’re looking for catches your eye.
Roger and Fyodor, you can choose to believe whatever you want to believe.
The fact is that Hicks was captured while fighting with an enemy of Australia, against allies of Australia. That makes him a traitor.
He wants to kill for Islam. That makes him murderous.
He is held in lawful custody and will be tried by a lawful tribunal. That makes him lucky, because the only fate he deserved was to be shot on capture.
If you want to waste your sympathy on some bastard who would kill you if he could, that’s your problem.
It’s not about belief, Waldorf. It’s about facts and the law. You’ll swallow any agitprop garbage if it has the right ideological spin on it.
ALLEGEDLY, Kitten Little, ALLEGEDLY. “Innocence before proven guilty” and all that shit, you know?
And you’d kill for pilchards. I take it you’re a prosecution witness? No? Just a biased blowhard? Thought so.
Says who? The US government that holds him in an extra-judicial territory immune from the principle of habeas corpus. You got your LLB from the Universimaty of teh Interwebs, didn’t you?
You’re in favour of extra-judicial killing too? Super.
No, KL, sympathy is what I waste on cretins like yourself. The law is what I apply to alleged criminals.
PLUS!..Our Lexy Downer is upset about hanging (is it just hanging or Capital Punishment - not sure. Must be hanging because they kill people in Texas and that’s OK) by Singapore. He doesn’t give a rats arse about Hicks so I guess Torture a la Coalition on Hicks is OK because; (choose one)
a) He’s a suspected potential terrorist.
b) He became a Muslim
c) The US said he’s a bad man and deserves all he gets.
c) All of the above.
however much it sucks, and both men should be treated better, it is useful to identify where action will have the most effect. like fighting a guerilla war, you leverage scarce resources by fighting where the enemy is weakest.
hitting singapore over van is part of the same war in which hicks is another battleground. that is, putting anything (money, power, christianity) before the value of humanity.
yet hicks is a difficult case for a number of reasons. our government (and opposition) are so heavily intermeshed with the US, and the issue of terrorism so divisive to the general public. in contrast, singapore is a different case, in our backyard with more simple immediacy. it has a much greater chance of unifying the national sentiment and ‘waking people up’.
while its all the same war, the critical thing is choosing the battles that can be won. make no mistake, the war will be start being won when the australian public wake from their apathetic slumber.
a slumber brought on by an easy, consumerist existence allowed through abusing our position as part of the western elite. all this done in time to save the species from environmental catastrophe…
“The fact is that Hicks was captured while fighting with an enemy of Australia, against allies of Australia. That makes him a traitor.”
Er, no. He was captured trying to flee Afghanistan, having been turned in by a (formerly Taliban-aligned) local warlord whose allegiance had been recently bought by the US, for a bounty not unadjacent to $US1000. It is not even alleged he actually did any fighting. The only thing he is certainly guilty of is desertion from the army of, er, the Taliban.
“Presumably, if Hicks was stupid enough to be persuaded to travel to a foreign combat zone to fight Australia‚Äôs allies, he may be foolish enough to be convinced to begin one on his own soil.”
When Hicks enlisted in the Afghan civil war, Australia’s allies were nowhere to be seen. The man is guilty of being a dickhead, a not unfamiliar situation in this country but not yet a criminal offence. Doubtless when released he’ll be so constantly shadowed by some of the new army of spooks our security services are recruiting that every fart will be subjected to chemical analysis. He presents no threat to anyone.
His continuing incarceration, alleged torture and the plans for a star chamber trial, however, threaten everything we’re told our lads fought for in the terrible wars of the twentieth century. Why, if we clung so desperately to our precious freedoms when we were threatened by genuine monsters who really did want to invade and crush us and had the sophisticated military to back them up, do we so lightly jettison them when we’re up against a ragtag bunch of low-rent privateers?
The man is guilty of being a dickhead, a not unfamiliar situation in this country but not yet a criminal offence.
You hear that EP? You’re safe for the moment.
Isn’t there a typo in your comment, EP? Surely you meant to write “George W. Bush”?
‘He was an unlawful combatant fighting outside the rules of war.’
If you want to talk that way, Kim, you might add bin Laden, Saddam, and any number of dingbats, including the London bombers, Bali bombers, anyone who may have been planning attacks on Australia, but the fact is that very few people opposed Bush’s initiative against the Taliban, which was Hick’s bag. Why anyone would want to side with the Taliban is beyond me. Presumably Hicks supported the diminishing of women’s rights, education and protection.
No one’s supporting the Taliban here, FaceLift, least of all Kim. The point surely is that because Bush has effectively torn up the rule of international law (as did Saddam), the favoured distinctions between good and evil and lawful and illicit become much harder to draw.
Mark, ethics and law are not the same thing.
In fact, they are often at odds with each other.
With the UN and members of the Security Council both having received bribes from Saddam, the idea that the UN was an appropriate arbiter of international law with regard to Iraq is ludicrous.
I’m well aware that ethics and law are not the same thing.
But the UN Security Council and the UN bureaucracy are also not the same thing, EP.
Who would you suggest be the appropriate arbiter of international law, then? The US which refuses to join the International Criminal Court, has refused to accept the jurisdiction of the International Court of Justice, and constantly refuses to be bound by international treaties?
‘Who would you suggest be the appropriate arbiter of international law, then?’
There’s an immense question. Who gets to say what that law is? What if a nation, or ethnic group decides it won’t agree to the law? How many nations have to be in agreement before a law can be ratified? How does it enforce the law? What if a recognised group like the UN makes international law but fails to uphold it, allowing a tyranical dictatorship to dominate a region?
FaceLift, in fact it’s quite clear and most of your questions are easily answered. The UN does not “make international law”. Some of international law is embodied in the Charter of the UN which is a treaty between nation states - for instance, the principle of non-aggression, and the collective responsibility of the Security Council to authorise war to rectify a breach of this principle. Only states that are party to particular treaties are bound by them - think, for instance, of the treaty against land mines and the treaty establishing the International Court - neither of which the US is a party to.
There is no norm of international law which would prevent a tyrannical dictatorship from dominating a region.
There is an argument that there is emergent “customary” international law - a sort of common law without judges if you like - made principally in respect of the right of intervention for humanitarian reasons - the prime basis for this being the Kosovo war, which was clearly illegal according to the accepted norms of international law.
However, this is very controversial among jurists and scholars, for good reason. Who decides? And what exceptions can be made? And what exactly constitutes a customary international norm?
Does might make right?
‘Does might make right?’ Well it might, but then again…
It all depends on the structure and intentions of the ‘might’. For instance, if the ‘might’ was a group of nations defending itself against a clearly tyranical dominant force, it may receive international backing, which would, to an extent, give it rights of action, if not the ‘right’ to do what it pleases. On the other hand, a powerful nation, without the approval of others, has limited rights at best, but may feel that its security is threatened by taking no action.
The problem is putting together a case for non-action, sanctions, intervention, occupation, or an outright act of war. When these matters have to go through a legal system first, there is always going to be a massive delay, and political opponents in various nations will make it even harder to reach a resolution. A very difficult question.
The point being missed by a lot of people is if you cant incacerate a foreign national caught like hicks was what are the alternatives?
On the ground it would be much simpler to allow troops to “dissapear” them.
Given an apparent lack of other options acceptable to many people it may yet be an unintended consequence of denying any legitimacy to the whole GITMO shebang.
What are the alternatives?
If anyone wants to doubt the on the ground, day to day brutality of the Taliban ask a Hazara refugee.
Some of their storys were truely shocking. To see a mans back solid scar tissue from neck to waist from a flogging is quite eye opening.
It wouldnt have been possible for Hicks to have been in Afghanistan and not have seen the brutality of the reign there. It wasnt “accidental” or sparodic, it was sustained, brutal and all encompassing.
thefrollickingmole: The alternative (which should be the mainstream!) is to expediously repatriate the accused to his country of origin and try him under the laws of that country. If he has broken the law, then he is punished. If he has not broken the law, he is set free. If the laws have been found to be inadequate, they should be changed, but not retrospectively. This is what has happened to virtually every other foreign national held at Gitmo. Why not Hicks? Answer: Politics, not justice.
“It wouldn’t have been possible for Hicks to have been in Afghanistan and not have seen the brutality of the reign there.”
Right - but what was his crime, and why isn’t he being charged?
Yet another misinformed comment from EP: “[Hicks] wants to kill for Islam. That makes him murderous.”
In fact, no-one, not even his prosecutors, are claiming that Hicks is a Muslim. He isn’t. Even those recently released from Guantanamo Bay have remarked incredulously about this.
And not one shred of evidence has been offered about the murder charge. (Same story with Mamdouh Habib, who was, of course, released without charge after having his fingers broken in an Egyptian prison, and his toenails extracted.)