GENEVA (17 February 2016) – Australia violated the rights of former Guantanamo inmate David Hicks by keeping him in jail for several months under a transfer deal agreed with the US authorities, despite the fact that the sentence imposed on the Australian national was the result of a “flagrant denial of justice”,  UN human rights experts have said.

“Transfer agreements are important, because they allow prisoners convicted abroad to serve their sentences in their own country. But States should not carry out a sentence if there is ample evidence that the trial clearly violated the defendant’s rights, as was the case with Mr. Hicks,” said Fabian Salvioli, Chair of the UN Human Rights Committee.

The findings by the Committee, which is composed of 18 independent experts, came after considering a complaint brought by Mr. Hicks specifically regarding his treatment by Australia. The decision to continue to jail Mr. Hicks as a result of the transfer deal, the Committee found, “constituted a disproportionate restriction of the right to liberty” in violation of the International Covenant on Civil and Political Rights (ICCPR).

David Hicks was arrested in Afghanistan in 2001 and sent to the US Naval Base at Guantanamo Bay in Cuba in January 2002. In March 2007, after pleading guilty under a Plea Agreement, he was convicted under the US Military Commission Act 2006 with “providing material support for terrorism” and given a seven-year sentence, most of it suspended*. Acceptance of the Plea Agreement was a condition for his return. He was transferred in May 2007 to Australia where he served the remaining seven months of his sentence in prison.

“By the time Mr. Hicks was transferred, there was a lot of information available that raised serious concerns about the fairness of the procedures by the US Military Commission. That should have been enough to cast doubt among the Australian authorities as to the legality and legitimacy of the sentence imposed on him,” said Mr. Salvioli. “Australian officials had also visited Mr. Hicks at Guantanamo and were therefore in a good position to understand the conditions under which he was held and tried.”

In its findings, the Human Rights Committee wrote that in order to escape the violations to which he was subjected in Guantanamo, Mr. Hicks “had no other choice than to accept the terms of the Plea Agreement that was put to him. It was therefore incumbent on (Australia) to show that it did everything possible to ensure that the terms of the transfer arrangement that had been negotiated with the United States did not cause it to violate the Covenant.”

However, Australia did not do so and by accepting to imprison Mr. Hicks for the remainder of the sentence, Australia violated his rights under Article 9 (1)** of the Covenant, the Committee found.

As a party to the ICCPR, Australia is obliged to make full reparations to individuals whose rights have been violated. In Mr. Hicks’ case, Australia’s actions regarding the transfer arrangement were intended to help him and did in fact mitigate the harm he would have suffered had he remained in US custody, and so the finding of a violation was sufficient reparation, the Committee noted. 

The Human Rights Committee considered this case under the First Optional Protocol to the Covenant which gives the Committee competence to examine individual complaints.

ENDS

For more information and media requests, please contact Liz Throssell (+41 (0) 22 917 9466/ +41 79 752 0488 ethrossell@ohchr.org(interviewee available from 14:00 CET on 18 February onwards – from 24:00 Canberra)
The Committee adopted its findings, known as views, on 5 November 2015 and published them on 16 February here: CCPR/C/115/D/2005/2010
**Article 9 (1): “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

The Human Rights Committee is one of 10 committees, known as Treaty Bodies, that monitor implementation by States of the core international human rights treaties, in this case the International Civil and Political Rights (ICCPR): http://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

The Treaty Bodies are entirely separate from the UN Special Rapporteurs and UN Working Groups that form the Special Procedures of the Human Rights Council. However, like them, Treaty Body experts are not UN staff and do not receive a salary for their work. They are independent from any government or organization

Human Rights Committee visit: http://www.ohchr.org/en/treaty-bodies/ccpr

Human Rights Committee individual complaints procedure:
http://www.ohchr.org/en/treaty-bodies/complaints-about-human-rights-violations

*In February 2015, a US military appeals court vacated Mr.Hicks’ conviction.

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