June 11, 2004
► Australian citizen charged and subject to trial before US Military
► Military Commission process contravenes international fair trial standards
► Allegations of cruel, inhuman and degrading treatment of detainees in Guantanamo Bay
The United States Government announced that David Hicks will be tried before a military commission on charges of conspiracy, attempted murder by an ‘unprivileged belligerent’ and aiding the enemy. This is a result of the Military Order signed by President Bush on 13 November 2001 and the subsequent Military Commission Instructions and Orders.
David Hicks, 28, of Adelaide and Mamdouh Habib, 48, of Sydney, have been detained without charge in the US military camp at Guantanamo Bay, Cuba, for more than two years. Mamdouh Habib remains in detention indefinitely without charge or trial which contravenes international law standards.
Amnesty International believes that the Military Order should be revoked, and that any trial before the commissions would contravene international fair trial standards. Despite the concessions negotiated between the United States and the Australian Government on behalf of the Australian detainees, the proposed commission framework remains inherently flawed and falls far short of international standards for a fair and impartial trial.
On 21 January 2004 the military lawyer assigned to David Hicks said, “The military commission will not provide a full and fair trial. The commission process has been created and controlled by those with a vested interest only in convictions”.
Amnesty International Australia remains gravely concerned over allegations that David Hicks and Mamdouh Habib have been beaten and abused whilst in US custody. Amnesty International Australia welcomes Prime Minister John Howard’s stated commitment to pressing the US Government into investigating allegations of torture and ill-treatment of detainees, including David Hicks and Mamdouh Habib. The organisation also welcomes US President George W. Bush’s promise that these investigations will be carried out. These investigations must be comprehensive, impartial and transparent and conducted independently of both the military and executive arms of the US Administration.
Amnesty International Australia is particularly concerned over the possibility that statements extracted under torture could be admissible in the impending trial of David Hicks.
Military Commission Order No.1, which governs the procedures for trials by the military commissions, does
not provide a safeguard against the inclusion of involuntary statements obtained from detainees under torture.
Amnesty International Australia urges the Australian Government to use its influence with the United States
Government to ensure that while allegations of his torture are being investigated, any ‘evidence’ acquired
under interrogation since his arrest and whilst he has been in Guantanamo Bay be declared not able to be
presented before a court of law.
Amnesty International has a number of other concerns relating to the military commissions including:
• The Military Order is discriminatory. United States citizens are not subject to the Military Order and will not be tried by military commissions, even if accused of the same offence as someone from another country. Under international law all people are entitled to equality before the law and discrimination on the basis of nationality is prohibited.
• The Military Commissions will lack independence from the executive arm of the US
Administration. The Executive has the power to name who will be tried by the commissions, to appoint or to remove commission members, to pick the panel that will review convictions, and to make the final decision in any case. This contravenes basic principles of separating the bodies who make laws (the executive) and those who enforce them (the judiciary).
• The right to a lawyer of choice so that they may have effective legal representation is restricted.
• The presumption of innocence has been undermined. While according to the rules of the
Commissions the defendants are presumed innocent, President Bush and other members of the Bush Administration have referred to the uncharged, untried and unrepresented detainees as “terrorists”, “vicious killers” and “very dangerous people”. This pattern of public commentary by the very officials that control the commissions has undermined the presumption of innocence.
• There is no right of appeal to an impartial and independent court established by law. Instead, there will be a review by a three-member panel appointed by the executive of the US Administration. The Review Panel does not have to consider any applications for actions made by either the defence or prosecution. The Review Panel’s recommendations are not binding on the Secretary of Defence and President - who can make the final decision.
Amnesty International also remains concerned that the current commission rules will not provide for fair, open and transparent proceeding. The Pentagon has refused to allow three leading human rights groups, including Amnesty International, to attend and observe the military commission trials. This refusal is the opposite to the Bush Administration’s promise that the commissions would be open to the public.
Amnesty International Australia maintains that in totality, these actions by the Government of the United States are a direct threat not only to international principles of human rights but also to the rule of law.
Launching the Amnesty International Report 2004, Irene Khan, Secretary General of Amnesty International said, “By failing to protect the rights of those who may be guilty, governments endanger the rights of those who are innocent, and put us all at risk”.
Please send your appeal to the Prime Minister. Send copies of your appeal to the Attorney General and to the US Ambassador. In your appeal to the Prime Minister, please include the following:
• Call on the Australian Government to withdraw its support for the Military Commission due to the fundamental flaws and unacceptable derogations of human rights in its procedures.
• Request the Prime Minister to use his influence with President Bush to revoke the Military Order and ensure that no person is tried before the Military Commission.
• Call for assurances that any investigation into allegations of cruel, inhuman and degrading treatment of detainees in Guantanamo Bay and US-controlled facilities in Iraq and Afghanistan will be comprehensive, impartial and transparent investigations; and that no trial takes places unless and until investigations are completed.
• Call for assurances that any statements found to be obtained under conditions of torture or ill-treatment be expressly considered inadmissible as evidence.
• Allow Amnesty International access to any trial of those charged in order to ensure the public is provided with independent and informed analysis of its proceedings.
• Pursue with the US Government to authorise Major Michael Mori, the US military lawyer representing David Hicks, to provide information to the Australian Government on the interrogation practices used by the US Military.
ADDRESS AND SEND YOUR APPEALS TO:
SEND YOUR APPEALS IMMEDIATELY.
US Ambassador to Australia