Charles Richardson writes:

The US Defence Department seemingly bowed to the inevitable yesterday, promising to treat its detainees in accordance with the Geneva
Conventions. This follows the Supreme Court’s decision two weeks ago in Hamdan v Rumsfeld that the
proposed military commissions to try detainees were unlawful, in part
because they would violate the Conventions.

The announcement was accompanied by denials that it
represents a change in policy. According to The New York Times,
officials “told reporters that the memo represented an affirmation of a
duty that was already being met voluntarily”. But the Bush
administration had repeatedly argued that the Conventions did not apply
to the detainees, since they were “unlawful combatants”, not prisoners
of war.

The US government’s strategy has been to try to have things both
ways. It claims to be at war, which gives it the right to detain enemy
combatants for the duration, but at the same time denies that they are
entitled to the usual protection of prisoners of war. It maintains that
there is some third status, different from both prisoners of war and
common criminals, with the liabilities of both but the protections of

This, of course, is the limbo in which David Hicks
has been kept for the last four and a half years. But the Geneva
Conventions lend no support to the notion of such a limbo. If enemy
soldiers have fought unlawfully, they can be tried for war crimes, but
such trials have to meet basic standards of fairness. If they are
outside the laws of war altogether, then the only alternative is to
treat them as ordinary criminals.

Despite the insistence of the likes of Janet Albrechtsen, there is no reason to think that the laws of war are inadequate for
Hicks’s situation. If he was really in a war, he’s entitled to be
treated accordingly. If he’s just a member of some international
criminal conspiracy, then he belongs in the civilian courts. But don’t
expect either the US or Australian government to accept that logic
any time soon.

Peter Fray

Get your first 12 weeks of Crikey for $12.

Without subscribers, Crikey can’t do what it does. Fortunately, our support base is growing.

Every day, Crikey aims to bring new and challenging insights into politics, business, national affairs, media and society. We lift up the rocks that other news media largely ignore. Without your support, more of those rocks – and the secrets beneath them — will remain lodged in the dirt.

Join today and get your first 12 weeks of Crikey for just $12.


Peter Fray
Editor-in-chief of Crikey