David Hicks v. Australia

The author of the communication is David Hicks, an Australian citizen born on 7 August 1975. He claims to be a victim of discrimination by Australia under articles 2, 7, 9, 12, 14, 15, 17, 19, 22 and 26 of the Covenant. The Optional Protocol entered into force for the State party on 25 December 1991.

The author was apprehended in Afghanistan in November 2001. On around 15 December 2001, he was transferred into the custody of the United States of America, held at various facilities and later transferred to the United States Naval Base at Guantanamo Bay, Cuba, where he was detained from January 2002 to March 2007. On 31 March 2007, he was sentenced by the Military Commission to seven years of imprisonment. Following a bilateral prisoner transfer arrangement between the United States and Australia, the author was returned to Australia on 20 May 2007, where he served seven months of his sentence. He was released on 29 December 2007. Prior to his release, an interim control order was imposed upon him by the Federal Magistrates Court of Australia. The author claims, inter alia, that, by virtue of that arrangement, Australia participated directly in the retrospective punishment and imprisonment to which he was subjected while he was under the jurisdiction of the United States, thus breaching his rights under the Covenant.

A full account of the facts as presented by the author, his claims under the Covenant, the observations of the State party on admissibility and the merits and the author’s comments on the State party’s observations are contained in annex II to the present document.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether or not the case is admissible under the Optional Protocol.

The Committee notes, as required in article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under any other procedure of international investigation or settlement. The Committee further notes the author’s claim that he has exhausted domestic remedies by instituting several legal and non-contentious proceedings. In the absence of comments from the State party in that regard, the Committee considers that it is not precluded from examining the communication under article 5 (2) (b) of the Optional Protocol.

The author alleges that, from the time he was taken into United States custody in Afghanistan in December 2001 until his transfer to Australia on 20 May 2007, he was the victim of violations of his rights under the Covenant, most of which took place while he was detained at the United States Naval Base at Guantanamo Bay. In that respect, it is undisputed that, during all those years, the author was held under the jurisdiction of the United States and that his sentence was the result of a trial conducted by United States authorities. It is also undisputed that most of the violations claimed by the author are attributed to the United States. However, the author’s claims before the Committee focus on the part of responsibility borne by Australia in its dealings with the United States, which led to the author’s serving his sentence in Australia.

The author claims that Australia is responsible for the violation of his rights under the Covenant for the following reasons: (a) by virtue of the transfer arrangement, Australia participated directly in his retrospective punishment and imprisonment, thereby breaching article 15 (1) of the Covenant; (b) his imprisonment in Australia flowed directly from his unfair, unlawful and discriminatory trial in the United States, in violation of articles 2, 14 and 26 of the Covenant: the unfairness of his trial automatically renders his detention in Australia arbitrary and unlawful, as Australia assumed responsibility for carrying out the sentence and punishment; (c) the Government of Australia negotiated directly with the United States concerning the trial standards that would apply to the author; (d) public statements asserting his guilt were repeatedly made by senior United States and Australian officials, which severely prejudiced his ability to receive a fair trial; (e) Australia did not make strong protests or representations to the Government of the United States to object either to the retroactivity of the charge or to the unfairness of the procedure; (f) Australia did not investigate the author’s allegations of torture in the custody of the United States, in violation of articles 7 and 10 of the Covenant; (g) on numerous occasions, Australian officials interviewed the author while in the custody of the United States, in circumstances where those officials knew of or should reasonably have been aware of serious violations of his rights; (h) by interviewing the author in the custody of the United States to gather intelligence, Australia recognized the author’s unlawful treatment by the United States and thereby encouraged and supported it; subsequently, Australia made use of the intelligence gathered in those interviews in the control order proceedings against the author in the Australian courts; (i) the enforcement of the sentence of imprisonment constituted an acknowledgement and adoption of the plea agreement by Australia; (j) Australian authorities invoked the agreement in a threatening manner in their dealings with the author in Australia; (k) the control order imposed on the author upon release from Yatala Labour Prison was unfair and the limitations imposed unnecessary, in violation of articles 12, 14, 17, 19 and 22 of the Covenant.

As many of the claims submitted by the author against Australia relate to alleged violations of the author’s rights prior to his return to Australia, the Committee must determine whether Australia exercised any jurisdiction over the author while he was in the custody of the United States. The Committee recalls that, under article 2 of the Covenant, a State party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, and that article 1 of the Optional Protocol allows the Committee to receive and consider communications from individuals subject to its jurisdiction. In its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, the Committee set out that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if not situated within the territory of the State party (para. 10). The Committee notes that the author was in the custody of the United States from December 2001 to 20 May 2007 and that, during that time, he was subjected to criminal proceedings under United States law. However, the Committee also notes that, according to the State party, the author was visited on 21 occasions by Australian officials and police while in United States custody (see annex II below, para. 116). The author reported that Australia made a number of representations to the Government of the United States seeking to improve the procedures and protection available to him, a fact that is not contested by the State party. In those circumstances, the Committee considers that the issue of jurisdiction is closely linked to the merits of the case and should be reviewed at that stage.⁴

4. See communication No. 1539/2006, Munaf v. Romania, Views adopted on 30 July 2009, para. 7.5. ↩

The Committee notes that the State party is objecting to the review of the responsibility borne by Australia with regard to the author’s deprivation of liberty and judgement by the United States authority on the basis of the principle set out by the International Court of Justice in the Case of the monetary gold removed from Rome in 1943.⁵ The Committee notes that, in that case, the Court decided that it could not deal with the first claim by Italy, as the interests of Albania, which had not consented to the Court’s jurisdiction, would not only be affected by the decision the Court was to take but would be “the very subject-matter of the decision”.⁶ The Committee considers that, in the present case, it is clear that the author is complaining about the conduct of Australia and that the interest of the United States is not “the subject-matter” of the Views the Committee is called by the author to adopt.⁷ In that connection, the Committee notes the ruling dated 18 February 2015, by which the United States Court of Military Commission Review, in the case of David M. Hicks v. United States of America, set aside and dismissed the guilty verdict against the author and vacated his sentence, finding that the author’s conviction was unlawfully retrospective. In the Committee’s view, such a judgement casts doubts on whether the determination that the Committee would make with regard to the responsibility borne by Australia would even affect the interests of the United States. The Committee therefore considers that the fact that the United States has not ratified the Optional Protocol does not prevent it from examining the author’s complaints with regard to the responsibility borne by Australia in connection with the period when the author was under the custody of the United States.

5. Case of the monetary gold removed from Rome in 1943 (Preliminary Question) (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), Reports of Judgments, Advisory Opinions and Orders, judgment of 15 June 1954, I.C.J. Reports 1954, p. 19. ↩
6. Ibid., p. 32. ↩
7. See Case concerning certain phosphate lands in Nauru (Nauru v. Australia) (Preliminary Objections), Reports of Judgments, Advisory Opinions and Orders, judgment of 26 June 1992, I.C.J. Reports 1992, p. 240, para. 55; Case of armed activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda), judgment of 19 December 2005, I.C.J. Reports 2005, p. 168, paras. 203-204. ↩

In view of the foregoing, the Committee considers admissible the author’s claims under articles 9 (facts related to the unlawful and arbitrary detention while in United States custody), 7 and 10 (treatment while in United States custody), 14 (unfair trial under United States military commission rules), 15 (retrospective offence), and 2 and 26 (unlawful discrimination on the basis of national origin under the Military Commissions Act), inasmuch as they concern the responsibility of Australia in connection with the period when the author was under the custody of the United States.

The Committee recalls that, under article 2 (3), States parties have an obligation to ensure that any person whose rights and freedoms recognized in the Covenant are violated shall have an effective remedy. Accordingly, States parties have an obligation to investigate well-founded allegations of torture and other gross violations of human rights promptly and impartially and, if the investigations reveal a violation of article 7, to ensure that those responsible are brought to justice

The author claims that Australia has not taken steps to investigate his allegations of torture in the custody of the United States, in violation of articles 2 and 7 of the Covenant. The State party argues that this claim should be held inadmissible ratione materiae as there is no duty set forth in the Covenant to investigate allegations of torture relating to conduct outside the jurisdiction of a State party. However, the Committee takes note of the fact - which is not disputed by the State party - that Australian officials interviewed the author several times while he was in the custody of the United States. It also notes that, according to Australia, Australian agents took a certain number of measures to investigate allegations of torture or inhuman treatment against their nationals held in the custody of the United States, including the author. The Committee considers that the argument formulated by the State party raises issues that are closely linked to the merits of the case and should be reviewed at that stage. As no other issues regarding the admissibility of the present claim arise, the Committee considers it admissible.

The author claims to be a victim of violations by the State party of his rights under the Covenant in connection with his imprisonment in Australia, from 20 May to 29 December 2007, and the ensuing one-year control order imposed on him by the Federal Magistrates Court of Australia, which expired on 21 December 2008. His imprisonment in Australia was the result of a sentence to seven years’ imprisonment (with six years and three months thereof suspended) imposed by a United States Military Commission on 31 March 2007 and a bilateral prisoner transfer arrangement between the United States and Australia, by which the author was returned to Australia to serve the remainder of his sentence. The author states that his imprisonment constituted unlawful and arbitrary detention as it flowed directly from his unfair trial. As that transfer was the result of an agreement between Australia and the United States, the Committee considers that the claim raises issues under article 9 of the Covenant and that it has been sufficiently substantiated for purposes of admissibility. It therefore declares it admissible.

Regarding the imposition of a control order by the Federal Magistrates Court under article 104 of the Australian Criminal Code, the author claims that the procedure was unfair, in violation of article 14 of the Covenant. The Committee notes the author’s claim that he was not given a genuine opportunity to submit evidence, as doing so might have been viewed as violating the plea agreement. However, from the information contained in the file, the Committee notes, inter alia, that the Federal Magistrate invited the author to present evidence on his own behalf and gave him additional time to submit it, but the author declined to do so; that the Magistrate subjected the evidence of the Australian Federal Police to scrutiny, expressed some concerns, reduced the requirement to report to the authorities and then provided a reasoned explanation for his decision based on the evidence at his disposal; and that the author did not appeal the judgement confirming the control order.

The Committee takes the view that the author’s claims relate essentially to the evaluation of the facts and evidence carried out by the Australian courts. The Committee is not a final instance competent to re-evaluate findings of fact or the application of domestic legislation, unless it can be ascertained that the proceedings before the domestic courts were arbitrary or amounted to a denial of justice. In the present case, the Committee considers that the author has failed to substantiate, for purposes of admissibility, that the conduct of the domestic court amounted to arbitrariness or a denial of justice. Accordingly, those claims are inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claims under articles 12, 17, 19 and 22 to the effect that the control order imposed restrictions on the exercise of his freedoms. The Committee considers, however, that the author has failed to substantiate his claims sufficiently for purposes of admissibility. The claims are therefore inadmissible under article 2 of the Optional Protocol.

In the light of the foregoing, the Committee declares the communication admissible with respect to the claims mentioned in paragraphs 2.7, 2.9 and 2.10 above, and proceeds with its consideration of the merits.

The Human Rights Committee has considered the communication in the light of all the information made available to it by the parties, as provided for under article 5 (1) of the Optional Protocol. a. State party’s alleged responsibility in connection with the period when the author was in the custody of the United States

The Committee decided, at the admissibility stage, that the question of the State party’s jurisdiction was closely linked to the merits of the case and should be reviewed at that stage. The Committee is therefore to ascertain whether the State party, at any point, exercised power or effective control over the author and thus whether the author was under its jurisdiction.

The Committee notes the author’s allegations that: (a) the State party negotiated directly with the United States concerning the trial standard that would apply to the author (see annex II below, para. 15); (b) the State party made various representations to the Government of the United States seeking to improve the protection available to the author and secured the release of another Australian detained at Guantanamo Bay (see annex II below, para. 17); (c) the author received 21 visits from Australian officials and police officers (see annex II below, para. 116) while he was in the custody of the United States, where Australian agents interviewed him to gather intelligence that was later used against him in the control order proceedings before the Australian courts (see annex II below, para. 39); (d) Australia was aware of the conditions of the plea agreement struck with the prosecution, which required the author to cooperate with the Australian authorities and contained other clauses that favoured Australia; (e) the author brought the treatment he had suffered to the attention of the Australian authorities who interviewed him and Australia requested the United States authorities to conduct an investigation into the allegations (see annex II below, para. 177).

It appears from those facts, which have not been contested by the State party, that the State party had some influence over the way the United States treated the author and was in a position to take positive measures to ensure that the author was treated in a manner consonant with the Covenant, including to take measures intended to remedy violations of the author’s rights.

However, the influence held by the State party cannot be seen as amounting to the exercise of power or effective control over the author, who was detained in a territory controlled by the United States that was not under the sovereignty or jurisdiction of the State party.

The Committee therefore concludes that, for the duration of the time that he spent in the custody of the United States, the author could not be considered to be under the State party’s “jurisdiction” in the sense of article 1 of the Optional Protocol and article 2 (1) of the Covenant. As a result, the Committee is precluded ratione loci from pronouncing on the author’s claims under articles 2 and 7 of the Covenant, which pertain to his treatment while in the custody of the United States. b. Alleged responsibility of Australia in relation to the enforcement of the prison sentence under the transfer arrangement

The Committee notes that, as a result of the transfer arrangement, the author was transferred to Australia on 20 May 2007 to serve the remainder of the sentence imposed on him by the United States Military Commission on 31 March 2007. The question before the Committee is whether, by keeping the author in prison until 29 December 2007 as a result of that arrangement, the State party violated his rights under article 9 (1) of the Covenant.

The Committee observes that, by the time the transfer of the author took place, there was abundant information in the public domain that raised serious concerns about the fairness of the procedures before the United States Military Commission and that should have been enough to cast doubts among Australian authorities as to the legality and legitimacy of the author’s sentence. Many of those concerns had been expressed by the Committee in its concluding observations on the second and third periodic reports of the United States, adopted on 27 July 2006 (CCPR/C/USA/C/3/Rev.1), and by the Committee against Torture in its concluding observations on the second periodic report of the United States, adopted in May 2006 (CAT/C/USA/CO/2). Albeit subsequent to the facts alleged, the ruling dated 18 February 2015 of the United States Court of Military Commission Review in favour of the author leaves no doubt as to the unfairness of the proceedings followed against him and that the offence that had given rise to his conviction was retrospective. Furthermore, through the visits made to the author at Guantanamo Bay by Australian officials and law enforcement officers, the State party was in a good position to know the conditions of the author’s trial.

Transfer agreements play an important role for humanitarian and other legitimate purposes, allowing persons who have been convicted abroad and agree to the transfer to come back to their own country to serve their sentence and benefit from, for instance, closer contact with their family. Under the Covenant, however, States parties cannot be bound to execute a sentence when there is ample evidence that it was handed down following proceedings in which the defendant’s rights were clearly violated. In the Committee’s view, giving effect, under a transfer agreement, to sentences resulting from a flagrant denial of justice constitutes a disproportionate restriction of the right to liberty, in violation of article 9 (1) of the Covenant. The fact that, as a condition for his return, the individual in question accepted the conditions of the agreement is not decisive, given that it can be shown, in the present case, that the detention conditions and ill-treatment to which he was subjected left him little choice. In such circumstances, it was for the State party to ensure that the terms of the transfer arrangement did not cause it to violate the Covenant.

The Committee notes the author’s claim that the State party not only made no attempt to negotiate the terms of the transfer arrangement in a manner compatible with its obligations under the Covenant but also exercised a significant degree of influence over the formulation of the plea agreement, upon which the author’s immediate return to Australia was contingent (see annex II below, paras. 108 and 109). The Committee also notes the State party’s contention that the author agreed to plead guilty because he perceived prison conditions in Australia to be more favourable (see annex II below, para. 109). However, the Committee considers that, in order to escape the violations to which he was subjected, the author had no other choice than to accept the terms of the plea agreement that was put to him. It was therefore incumbent on the State party to show that it had done 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, particularly as the author was one of its nationals. In the absence of such a showing, the Committee considers that, by accepting to give effect to the remainder of the sentence imposed under the plea agreement and deprive the author of his liberty for seven months, the State party violated the author’s rights under article 9 (1) of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation of article 9 (1) of the Covenant.

In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. In the particular circumstances of the present case, in which the State party’s actions were intended to benefit the author and did, in fact, mitigate the harm he would have suffered had he continued to be kept in the custody of the United States, the Committee considers that the finding of a violation constitutes appropriate reparation in the form of satisfaction. The State party is under an obligation to take steps to prevent similar violations in the future.

The State party is requested to publish the present Views and disseminate them widely in the State party.

I regret having to record my dissent in this case, especially as I believe the author, an Australian citizen, has shown that he was for a substantial period during his (blatantly arbitrary) detention ill-protected by his Government. However, as the Committee implies by its finding that the author was for most of his period of detention outside the jurisdiction of the State party, the Covenant has not changed the law of diplomatic protection to render this traditionally discretionary recourse into a matter of international legal obligation.

Thus, the only issue for the Committee was its agreement to the transfer of the author and its compliance with that agreement. The Committee finds the State party wanting because it failed 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” (see para. 4.10 above). It so affirms without indicating what more the State party could have actually done to extricate its national from his plight. The Committee wisely avoids saying that it was not open to the State party to have negotiated an agreement on the terms concluded with a view to coming to the (belated) rescue of the author, nor does it say, that once negotiated, the agreement should not have been implemented by the State party. It does not even say that it could have secured a more human-rights-favourable agreement; it merely asserts as fact, without demonstrating it, that the State party could have sought to achieve a better agreement. It is for this failure of argument that I cannot follow the Committee in its conclusion.

The Committee, it seems to me, is also unduly dismissive of the author’s acquiescence in the transfer agreement. Had the author not acquiesced, the Committee would certainly have been in a position to use the lack of consent as a possible basis for claiming a violation by the State party. Yet, for the Committee, the author had “little choice” (see para. 4.9 above) but to accept the agreement. In this the Committee comes close to implying that the author was in his rights to accept the agreement in the expectation that the State party would then breach it by not carrying out its terms, once the author was returned to the State party. Such a perspective does little to enhance the institution of transfer-of-prisoner agreements: these depend on scrupulous compliance by the receiving State of the terms of the transfer if future prisoners are to benefit from the same option.

All the claims of the author have been rejected by the majority except for the alleged violation of article 9 (1) of the Covenant by the State party for detaining the author for some seven months in Australia under the prisoner transfer arrangement with the United States.

In my view, the State party has not committed any violation in that respect, as the author has not been subjected to arbitrary detention as understood under the Covenant. To find a violation is tantamount to requiring the State party to sit on appeal on legal proceedings that had taken place in the United States, outside the jurisdiction of the State party.

What we are concerned with here is very clearly explained in the reply of the State party to the author’s contention, as set out in paragraphs 84-89, 95-96 and 99 of annex II below. The issue of transfer of prisoners is governed by: (a) the Convention on the Transfer of Sentenced Persons, to which both Australia and the United States are party; (b) the arrangement between the two countries; and (c) the International Transfer of Prisoners Act of 1997 of Australia. Section 10 of the Act stipulates very clearly that Australia and the transfer country must agree to the transfer of the prisoner on the terms of the Act and that the prisoner must have consented in writing to the transfer on those terms. The author did consent to the transfer and cannot renege on the consent given to subsequently reproach the State party for having agreed to the transfer and for not having negotiated better terms. Had the State party questioned the circumstances surrounding the author’s detention in 2007 on the basis of certain events that occurred in 2006, mentioned in paragraph 4.8 of the majority’s Views, it is most likely that negotiations for the author’s transfer would have failed. Furthermore, any reference to the United States ruling of 2015 is irrelevant to the issue as it is ex post facto.

The conclusions of the majority are founded on a hypothetical situation in which the State party could allegedly have negotiated better terms without mentioning what those terms could have been. These conclusions may imply that the State party could have asked that the author be freed in the United States before being transferred to Australia, or that the author should have been transferred to Australia and then freed. It is hard to imagine this kind of arrangement or negotiation taking place. It is also difficult to infer that the State party should have agreed to the transfer and then not respected its terms, freeing the author as soon as he landed in Australia. Such a course of action would make a complete mockery of transfer agreements and would be in violation of all international legal obligations and diplomatic relations. That would not safeguard human rights and cannot be the purpose of our Covenant.

Paragraphs 86 and 87 of annex II below refer to the binding clauses of the arrangement between the two States: how the arrangement had be abided by, for example, as regards the legal nature and duration of the sentence; and the sole right of the United States to decide on any application for the review of the judgement or to pardon the offence.

Paragraphs 89 and 94 of annex II below point to the author’s contention seeking to undermine the whole purpose of schemes facilitating the international transfer of prisoners: If receiving States are to be regarded as assuming responsibility for the trial and conviction of their nationals in other States as part of the transfer process, a receiving State may well be reluctant to agree to the return of its nationals without a comprehensive review of the processes that led to their convictions, an outcome that would risk negating the humanitarian and rehabilitative objectives of prisoner transfer schemes. (Para. 89.) Australia adds that bilateral agreements on prisoner transfer with a foreign country are not to be regarded as a means of endorsing that country’s criminal justice system, or the trial process or sentence in a particular case. The transfer process does not involve an evaluation of the foreign conviction or sentence, but rather considers the prisoner’s long-term welfare and rehabilitation.Taking a position that Australia could progress an individual transfer application or effect the actual transfer of a person only where there exists full confidence in the relevant foreign country’s criminal justice system (or the trial process and conviction in a particular case) would be incompatible with the humanitarian, rehabilitative and social objects and purposes of international transfer schemes. The party that stands to lose the most from non-cooperation in prisoner transfers is the prisoner, not the sending State. International prisoner transfer is not about transnational criminal cooperation; rather, it is a humanitarian and rehabilitative mechanism. (Para. 94)

I fully endorse the well-formulated stand taken by the State party and find it to be wholly compatible with the purpose that the Covenant seeks to achieve.

International transfer of prisoners creates an opportunity for prisoners to be detained closer home, to receive visits from relatives, to be detained with fellow countrymen and to benefit from rehabilitation programmes that would permit their reinsertion in local society. They are in line with and implement the Standard Minimum Rules for the Treatment of Prisoners, now being revised by the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) before the General Assembly, more specifically rule 59 which stipulates that: Prisoners shall be allocated, to the extent possible to prisons close to their homes or their places if social rehabilitation.

The interpretation given by the majority is damaging to the concept of international prisoner transfer arrangements if transferee State parties are going to be accused of condoning human rights violations in transferor States when they enter into such agreements. It may ultimately also discourage States from adhering to the Optional Protocol, thereby denying individuals the opportunity to seek protection of their rights.