Impossible to tell if it’s political calculation or genuine frustration, but John Howard is taking an increasingly strong line on delays in the David Hicks case, saying this morning that he was “very unhappy that it’s taken so long” and he “would be pressing the Americans almost on a daily basis.”

And it may be having some effect – or maybe the Americans have political pressures of their own – because they were unusually forthcoming to ABC reporter Michael Rowland, whose interview with the commander at Guantanamo Bay was broadcast yesterday on PM.

Rear admiral Harry Harris was unrepentant about his mission: “I personally believe that we have the right people here at the right place for the right reason, and that we are detaining them in the right way.”

But his outlook was a strictly military one:

Well, it’s not a question of guilt or innocence. … we are detaining enemy combatants here in Guantanamo.

Now, that’s the right of any nation at war to do that, and it’s an internationally recognised right. There’s no expectation that they be tried or charged with exception to those that are alleged to have committed war crimes – now, they would be charged and then tried in a legal process.

But the other detainees are enemy combatants, and we’re keeping them off the battlefield.

According to the rules of war, he’s quite correct. If – and it’s a very big “if” – the US is at war, it’s entitled to intern enemy combatants for the duration.

That doesn’t mean it’s obliged to; it may still be politically more sensible to parole some of them – that is, release them under some safeguard that they will not return to the battlefield. And if it does hold them, it must do so subject to the Geneva conventions, which regulate the treatment of prisoners of war.

But as Harris pointed out, putting someone like Hicks on trial is a different question entirely: “we don’t have an obligation to try them – with the exception of those that we think have committed a war crime.”

From what we’ve seen so far, the charges against Hicks just amount to “supporting the wrong side”. But just fighting in a war, albeit on the wrong side, can’t be a war crime. It could be an ordinary civilian crime, but only if (as most sane opinion believes) this isn’t a real war – in which case, on America’s own admission, the whole legal basis for Guantanamo collapses.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey