The Australian government violated the rights of former Guantanamo Bay inmate David Hicks by keeping him in jail for months under a transfer deal with the US, UN human rights experts say.
The jailing was despite the fact the sentence imposed on him as the result of a “flagrant denial of justice”, Fabian Salvioli, chair of the UN Human Rights Committee, said in a statement on Tuesday.
The findings by the committee, which is composed of 18 independent experts, came after considering a complaint brought by Hicks specifically regarding his treatment by Australia.
It found a violation had occurred but ruled that the Australia government was not obliged to make reparation payments to Hicks.
“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,” Salvioli said.
The decision to continue to jail Hicks as a result of the transfer deal “constituted a disproportionate restriction of the right to liberty” in violation of the International Covenant on Civil and Political Rights (ICCPR), the committee found.
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.
He was transferred in May 2007 to Australia where he served the remaining seven months of his sentence in prison.
Salvioli said that by the time 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,’ he said.
Australian officials had also visited Hicks at Guantanamo and were in a good position to understand the conditions under which he was held and tried.
The commission wrote that in order to escape the violations to which he was subjected in Guantanamo, 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.’
The committee said that as a party to the ICCPR, Australia was “obliged to make full reparations to individuals whose rights have been violated”.
But in Hicks’ case, Australia’s actions were intended to help him and did 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 ruled.