Analysis of David Hicks Case: Human Rights vs. Anti-Terrorism Laws

This case study examines the human rights issues surrounding the David Hicks case, focusing on his detention and trial on terrorism-related charges. It highlights potential violations of international and Australian law, including the right to legal representation, freedom from torture, and the right to a fair trial. The analysis delves into the retrospective application of laws, arbitrary detention, and the obligations of the Australian government to protect its citizens' rights, even in the context of national security concerns. The study concludes that safeguarding human rights is crucial, even when dealing with matters of terrorism, to uphold the principles of justice and fairness.

Human Rights

Introduction
Safeguarding of human rights is considered as one of the main and important factors which helps
the citizens of the country to get their rights safeguarded. This is done through the process of
various governmental regulations which are passed by the parliamentary system. Hence as a part
of the human rights, the person who is accused has the right to the get protection under
international law and under the Australian law (Ayoub, 2015). This is seen that the rights of the
person who is accused under any provisions should not be defamed from him. Hence in this
study, the famous case of David Hicks would be considered to determine the human rights issues
and the charges of terrorism that are set out him. In this report, the purpose of safeguarding
human rights would be considered. While it would also contain the importance of considering
human rights while dealing with matters that involve terrorism.

Human right issue in regards to David Hicks
Human rights are considered as the dignity and value that every person holds while living in the
country. These are the set of principles which are concerned with the equality and fairness that
has to be considered by a system of justice while taking any decision or taking any person under
prosecution. Citizens of the country have a right to live free from fear and harassment or
discrimination. Hence the human rights can be defined as the number of basic rights that people
from all around the world has towards the right to life, right to free trial freedom from torture and
the cruel treatment, freedom of speech, freedom of religion, rights to health, education and
adequate standard of living (Cole, 2017). These human rights are considered as same for all the
people everywhere whether they are men or women, young or old, rich or poor. The human
rights cover the city and the political rights which they refer to the individual’s rights to take part
in the civil as well as political life.
These are the fundamental rights which protect mankind where all the humans are entitled to
function as per the rights that are provided by the constitution. However, this is seen that when
the person is acquiesced and is in prison then only the right to liberty of that person is taken from
him. The other rights would not be derived from him. As this is seen that as a basic human rights
principle all the person who is deprived of their liberty are not deprived of treating them with
humanity and respect (Degener, 2016). Hence this is important to consider the fact that human
rights matter for the entire person whether they are free-living in the country or are in deprived
by the government of the country. As the rights such as the rights to free trial, the right not to be
subjected to torture and the right to life are the main objective of the legal standards that
formulated the bedrock of the dignity and the democracy of the society. While this is seen that
the universal declaration of human rights states that the recognition of the inherent dignity is of
equal and the unalienable rights which is considered as the foundation of the freedom, peace and
the justice. This has been seen that in Australia earlier human rights were not as relevant to life.
But some of the major changes that are done ratified its international human rights standards.
The case of David Hicks is a well-known case where the human rights of the person are violated
by the government of the country themselves (Donnelly and Whelan, 2017). The case became a
reasonable standard where this has been seen that the rights of the people of the country are
hampered. So the highlights of the case are given below:
Case

David hicks is an Australian, then aged about the 26 years was captured in Afghanistan by the
Alliance of the United States in the year 2001 where he was transferred into the custody of US.
While he was detained by the US military at their naval base which was created at Guantanamo
Bay, Cuba from the year 2002 to 2007 (Eaton, 2018). As the United States is the party to the
International Covenant on the civil and the political rights but is not the 1st optional protocol. So
there is no right to the person who is detained to complain to UN Human rights committee for
the breaches of Human rights and international covenant on the civil and the political rights.
Hence it is not possible for Mr Hicks to communicate the trial to HRC as this would not be
entertained, while the Australian government could process the plea in the ICCPR as they are the
member of the option one in ICCPR. Here this was seen that Mr Hick was convicted for
providing materials for the support for terrorism (Harris, 2015). Mr Hicks was not charged with
any crime until June 2004. During these years the trial was being delayed and the human rights
of liberty were forfeited without any charge. These were delayed due to the arrangements that
were made by the US military in Guantanamo Bay were repeatedly found to be unconstitutional
by the courts of the US. While during this time Mr Hicks was being tortured and was ill-treated.
While the proceedings that were taken against him were stayed pending till the year 2006. While
after the United States Congress reconstituted the commission in the year 2006 Mr Hicks was
charged to the act solely for providing material support for terrorism. While he was given the
sentence to imprisonment where he was supposed to be in prison for seven years and suspended
the six years and three months suspended. While after the year 2007 he was sent to Australia
where he had to serve seven months in the Yatala Labour prison which is situated in Adelaide
(Heifer, 2017). While at the time of his release the interim control order was released by the
magistrate court of Australia where certain restriction was imposed on him. The restriction
specified that he had to remain at specified premises at the specified time, he had to report
regularly at certain intervals to the police, while he had to give the fingerprint to the police. Also,
he was prohibited to leave Australia except with the prior permission of Australian police. He
was also prohibited from using the telephones and the internet and the e-mails. While after the
year it was not renewed.
The controversy that arises in this case
As this is seen that Mr Hicks was convicted for "Providing material support for terrorism" which
is an offence under the Military commission act, 2006 and the rule came in the year 2006 before

which Mr Hicks was convicted and was kept in prison due to which the human rights of Mr
Hicks were hampered (Pearson and Fernandez, 2018). While the violation of article 9(1) also
arse due to the period of imprisonment that was served by him in Australia. while Hicks made
various claims where he specified that he was denied to legal representation for 2 years and was
held in prison without charge for two and half years and was also not given any justification for
the delay. Hence this is the shatter of human rights which occurred due to the lack of knowledge
of the Australian government. This was seen that the Australian government was under the
obligation to protect the rights of the person who is accused while on the other hand, the
Australian government took no interest.
This is the widely recognised fact that any person cannot be liable for the retrospective
punishment, hence the imprisonment that happened to him was not correct (Shor and et. al.,
2016). While this was also seen that the article 15(1) of the covenant act was also breached
accordingly where he was made guilty for the retrospective offence. Also, the detention that was
made at Guantanamo was arbitrary unlawful under international law. While the status of hicks
was not properly determined and was not charged with the valid criminal offence (Sikkink and
Lutz, 2017).
While this was seen that human rights were not considered by the people who were prosecuting
Hicks as, while the human rights of David hicks were breached by the country itself and the US
military. Some of the rights that were hampered were
 As in this case, it was seen that Mr Hicks was not given the option to legal representation
for 2 years and was held without the charge for two and a half year.
 He was also tried as an "Unlawful enemy combatant" and was not provided with the
protection which should be provided to the prisoners under war while under the
agreement of 3rd Geneva Convention.
 Also, he was charged under the offence which did not exist at that time due to which the
article 15(1) of the act is violated.
 Also, he was not given the presumption of innocence for the guilt that he did.
 While the right to not to detain the personal reputation was repeatedly and the public
assertions of his guilt prior to the trial. Due to which the outcomes were prejudiced.
 Also, he was compelled and was coercively interrogated.

While this was also taken into consideration that he was discriminated against on the basis of
national origin which is considered as unethical as per international human rights (Ssenyonjo,
2016).
Also, the right of the person under article 14 (3) (c) regarding the right of the person to be tried
without undue delay was hampered in this case
While on the main side of the whole case under the article 7, 9 and 10 regarding the participation
of Australia in the detention, interrogation and the treatment of the person was breached and no
step was taken by the Australian government so as to safeguard the rights of the person (Stein,
2017).
The right of the person while being in the custody of the United States as per article 7 was also
breached leading the person to be in the attempt torture (Von Stein, 2016).
As the US Supreme Court in its recent interrogation held that the military commissioners
established by the president were not of the type which they used to set up.
Hence this has been concluded from the case that while the person is under prosecution it is
important to protect human rights so that their human rights are not detained. This is also
important that the country to which the person belongs must protect the human rights of the
person.
Conclusion
From the above study, this has been seen that human rights law is the body which is determined
by international law. This helps to promote the human rights on the social, domestic and the
regional level. While on the other hand, the case of Mr David Hicks is one of the controversial
cases where the human rights of the person are hampered very cruelly. Here he was detained in
prison for the act that is not defined in the law and was not given to use the rights which are
defined under the constitution. Also the Australian government was found guilty for the act that
was done by them as they did not take any step to find the offence that was done by him while on
the other hand, they checked it only on the arguments that were given by American court and
held him liable for imprisonment which is direct violation of the person human rights that are
given by the legislation.

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