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Head, Michael --- "Retrospective criminal laws and Guantanamo Bay: Digging a deeper 'legal black hole'" [2004] AltLawJl 72; (2004) 29(5) Alternative Law Journal 244

Digging a deeper 'legal black hole'


The continuing illegal detention of two Australians, David Hicks and Mamdouh Habib, together with more than 600 others in a United States military prison on Guantanamo Bay, Cuba raises crucial questions involving essential legal and democratic rights. The Australian Government has permitted the Bush administration to hold the pair as alleged 'enemy combatants' for three years without charge or trial. This is in violation of international law, including the Geneva Conventions on prisoners of war. The refusal of both the Howard Government and the Labor Opposition to challenge the US Government's actions has demonstrated their disdain for fundamental legal principles. This was highlighted early in 2004 when the Australian Labor Party (ALP) leader Mark Latham proposed the enactment of retrospective anti-terrorism laws to permit Hicks and Habib to be repatriated for trial in Australia.

Arbitrary and indefinite detention at Guantanamo

International law provides that no one may be arbitrarily deprived of their liberty, even in time of war or national emergency. Under art 9(1) of the International Covenant on Civil and Political Rights (ICCPR), to which both the United States and Australia are parties, 'Everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention.' Article 9(4) further states: 'Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of the detention and order his release if the detention is unlawful'.

Many of the Guantanamo detainees were seized by Northern Alliance or US-led coalition forces during the invasion of Afghanistan in late 2001. Article 4 of the Third Geneva Convention on prisoners of war specifies that captured members of the armed forces of a party to an international armed conflict, as well as members of militias or volunteer corps supporting such armed forces, must be granted prisoner of war status. Any dispute about the status of such prisoners must be determined on a case-by-case basis by a 'competent tribunal', operating through due process. They cannot be interrogated or charged with crimes unless they are afforded the full rights of a criminal suspect under international law, including the right to counsel re.:C>gnised in art 14(3)(b) and (d) of the ICCPR.

Despite representations by Amnesty International[1] and other human rights groups, the US Government has refused to grant these elementary rights to its detainees. The military 'commissions that were given retrospective jurisdiction over the detainees under a Military Order signed by President Bush in November 2001 do not meet international standards for a fair trial. They are not independent and impartial courts; they allow lower standards of evidence than civilian courts; there is no appeal to a civilian court; and the President retains the right to detain the accused regardless of the outcome of their hearing. Regardless of these flaws, the commissions have the power to impose death sentences.[2]

The Bush Administration claimed the right to hold the detainees indefinitely, an assertion that a United States Court of Appeals justice termed 'a position so extreme that it raises the gravest concerns under both American and international law'.[3] In effect, the detainees were cast into what the English Court of Appeal described as a 'legal black hole'.[4] Remarkably, a number of US federal courts declared Guantanamo Bay, a US naval base at one end of Cuba, to be beyond their jurisdiction.[5] These rulings were only reversed by the US Supreme Court, by a 6 to 3 majority, in June 2004, after the two Australian detainees and 12 Kuwaitis, joined by a long list of amicus curiae organisations and individuals, sought writs of habeas corpus.[6] The majority judgment, delivered by Stevens J, suggested that at stake were democratic conceptions dating back nearly 800 years to the Magna Carta of 1215:

Executive imprisonment has been considered oppressive and lawless since john, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from execut1ve restraint

Nevertheless, despite these sentiments, the court did not order the release of any detainees, who are required to return to a US District Court to argue their habeas corpus cases. In the meantime, Hicks and some others are being brought before unacceptable military commissions, while others face even less independent military review panels. , A report on the military commission process by Lex Lasry QC, an independent legal observer for the Law Council of Australia, released in September 2004, found that 'as a matter of fundamental principle of criminal justice, these proceedings are (and will continue to be) flawed and that a fair trial of David Hicks in the military commission is virtually impossible'. The report questioned the independence and impartiality of the commission, on the basis of the close control exercised by the executive of the US government It also pointed out that five of the six members of the commission are not legally qualified, let alone expert in the complex matters of international law and criminal procedure they will be caiiE1d upon to resolve. Expressing the Law Council's full agreement with the report, Law Council President Bob Gotterson QC correctly stated: 'If there is insufficient evidence to place before a court martial or the US criminal justice system in relation to Mr Hicks, he should be leased.'[7]

The Australian Government's complicity in this situation is highlighted by the fact that as a signatory to the Geneva Conventions, Australia has incorporated their requirements in the Criminal Code Act 1995 (Cth). Under the Code, it is illegal to deny anyone a 'fair and regular trial' under the precise terms set out in the Third and Fourth Geneva Conventions. It is an offence 'if the perpetrator knows of, or is reckless' with regard to these violations. These offences are defined in the Code as 'war crim s,' punishable by prison terms of 10 to 17 years.[8]

Proposed retrospective legislation

Following an agreement in late February 2004 between Washington and the Blair Government for the return of five British detainees, Latham suggested the adoption of retrospective laws to enable Hicks and Habib to be prosecuted in Australia.[9] After weighing up the proposal for two days, the Howard Government rejected the idea; declaring that the two men would never be brought back to Australia unless a US military tribunal acquitted them.

Prime Minister Howard reiterated his previous declarations that the two men would not be repatriated because they had committed no crime under Australian law. 'We are not going to bring them back', he declared. 'They cannot be prosecuted under any existing offence here.'[10] The Government insisted that the men be kept locked up indefinitely, deprived of fundamental legal rights, with their fate to be determined by the Pentagon and the White House. To try to justify this position, the Prime Minister and other Cabinet ministers have asserted that Hicks and Habib have committed serious but unspecified offences against the US. These statements, issued without producing any evidence, are highly prejudicial to the outcome of any trial, military or otherwise.

In effect, Latham proposed to go one step further. By definition, his proposed retroactive legislation would create new offences designed specifically to fit whatever conduct has been alleged against the pair. Its only purpose, therefore, would be to ensure that Hicks and Habib were convicted of serious terrorist crimes-carrying possible life imprisonment such as under the Howard Government's sweeping 2002 anti-terror laws[11] -for activities that were legal at the time.

Hicks allegedly fought with the former Taliban Government of Afghanistan against the US-backed Northern Alliance warlords. Even if this proves to be true (and no independent evidence exists), his conduct would not have been a crime under domestic or international law, because the regime was the de facto administration of the country. Hicks was reportedly captured by Northern Alliance forces in December 2001 and handed over to American authorities. Habib's case is even more problematic for the Government Local police in Pakistan originally detained him before' the US-led invasion of Afghanistan, in October 2001. The accusations against him are vague and equally unverified. He was later transported to Egypt. Where he was held incommunicado and interrogated for five months, before being shifted to a US military prison in Afghanistan in April 2002 and then relocated to Guantanamo Bay in early May 2002.

Back-dating laws against Hicks and Habib would establish a dangerous precedent Latham's suggestion flouted the centuries-old principle against retrospective criminal laws, designed to protect citizens against despotic rule. In English law, the rejection of such laws as 'cruel and unjust' arose out of bitter struggles against the absolutist monarchy, beginning with the Magna Carta and culminating in the civil war and the parliamentary revolution led by Cromwell in the 1640s. Hobbes emphasised the importance of barring the use of retroactive penal laws in order to avoid further political upheaval. In his 1651 Leviathan, he wrote: 'No law, made after a fact done, can make it a crime ... For before the law, there is no transgression of the law.'[12] Hobbes' concern was to rule out the legitimacy of civil rebellion, by confining the powers of the sovereign to those known and agreed to in advance by his subjects.[13]

Historical rejection of retrospectivity

Blackstone's Commentaries, an eighteenth century summation of English common law, explained the objection by referring first to Roman Emperor Caligula's method of prescribing laws by writing them in very small character} and hanging them up on high pillars in order to ensnare the people.

There is still a more unreasonable method than this, which is called making of laws ex post facto: when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.[14]

The principle was reinforced by the American Revolution of1776 and the French Revolution of1789. The United States Constitution explicitly prohibits ex post facto criminal laws, as did the French Declaration of the Rights of Man of 1789, which reappeared in the French Constitution of 1791 and remains in the French Code Penal. Feuerbach formulated the Latin maxim nullum crimen sine lege, nulla poena sine lege, which became part of the Bavarian Code in 1813. The same rule headed the German Penal Code of 1871 and was guaranteed by the pre-Nazi Weimar Constitution.[15]

The principle is also enshrined in those post-World War II international conventions concerned with civil and political rights, including the Universal Declaration of Human Rights and the ICCPR, both ratified by Australia. Article 15 of the ICCPR States: 'No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed'. The only exception allowed by the ICCPR and similar conventions is for actions that were already criminal by the standards of international law. Article 15(2) provides: 'Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations'.

One of the reasons for adopting the rule internationally after World War II was the experience of fascism and other forms of totalitarianism in the first half of the 20th century. Among those who articulated this response was the American legal philosopher Lon Fuller. His conception of minimal procedural requirements for a legal system included a prohibition on improper use of retroactive lawmaking. Fuller cited Hitler's Roehm purge of 1934 as a salutary warning. Considering Roehm's faction of the SA to have become a threat to his position, Hitler ordered the summary shooting of hundreds of its members. Subsequently, a retroactive decree was enacted converting the murders into lawful executions.[16] Hitler's cabinet accepted the Law for the Emergency Defence of the State, which stated: 'The measures taken on 30 June and 1 and 2 July for the suppression of high treasonable and state treasonable attacks are, as emergency defence of the state, legal'. Justice Minister Franz Gurtner declared that the decree did not create new law, but simply confirmed existing law.[17]

The Australian Constitution', adopted in 1901, contains no specific protection against retrospectivity. The Australian High Court has several times upheld the validity of backdated criminal laws, starting with the World War I case of R v Kidman. [18] The accused were indicted for conspiracy under s 2 of the Crimes Act 1915 (Cth), which added conspiracies to defraud the Commonwealth to the list of indictable conspiracies. Section 3 of the Act provided that it was deemed to have been in force from 1914. The High Court justices unanimously upheld the validity of the sections.

More recently, a 5 to 2 majority (Dean and Toohey JJ dissenting on this issue) effectively confirmed this aspect of Kidman's case in the 1991 war crimes case of Polyukhovich v The Commonwealth.[19] The plaintiff challenged charges of war crimes laid against him under the War Crimes Amendment Act 1988 (Cth). The crimes were alleged to have occurred between 1942 and 1943 in the Ukraine, then under German occupation. At the time of the alleged offences, no Australian legislation made his alleged conduct a criminal offence. The court rejected Polyukhovich's application for a declaration that the retrospective legislation was invalid. The only legal objection raised by members of the High Court in Polyukhovich was to retroactive criminal laws that nominate or are designed to apply to particular individuals, rather than to the population as a whole. Such laws, several members of the court warned, could infringe on the separation of powers between the government and the judiciary.[20]

Liberties trampled in the rush to imprison

It was this potential problem, not any qualms about trampling over civil liberties, that led the Howard Government to pull back from trying to make its sweeping counter-terrorism legislation of 2002 retrospective. Responding to Latham's 2004 proposal, Attorney-General Philip Ruddock confirmed that the Government had considered, but ultimately rejected, retrospectivity in 2002. After two days of discussion, Ruddock and Howard criticised Latham's proposal as 'impractical' on the grounds that it could be unconstitutional. It was also unlikely to lead to successful prosecutions, Howard observed, as criminal intent is difficult to prove if the actions in question were perfectly legal at the time.

Lawyers for Hicks and Habib condemned both Latham and :the Government Stephen Hopper, who represents Habib, said:

The retrospective application of laws is an abhorrent concept and something that the Western legal system has resisted in the last few hundred years, and the reason being is hat someone should know that they're committing a crime or go1ng to commit a crime, because the laws are publicly stated ... I think it's a step backwards and a step towards totalitarianism.

Hicks' lawyer, Stephen Kenny, was equally critical of the proposal to make laws retrospective.

I don’t think anyone would accept that as a proposition simply because the Australian Government knows that these people have not-that's Mamdouh Habib and David Hicks -have not done anything wrong according to Australian law. Consequently, you shouldn't suddenly change the law to say 'oh no, now we've decided we really don't l1ke you arid we are therefore go1ng to prosecute you for something we're going to make up now.’[21]

Confronted by public opposition, Latham denied that he had proposed specific retrospective laws.

Nevertheless, he pledged total support to any proposals by the Government to place Hicks and Habib on trial. Shadow Attorney-General Nicola Roxon suggested a modified version of Latham's proposal, using charges under international law.[22] Without being specific, she referred to the possibility of passing legislation to apply international law to the detainees, while denying that this would involve retroactive law. 'To apply international laws we may need other enabling legislation in Australia which wouldn't necessarily involve retrospectivity', she stated.[23]

It is difficult to see how such enabling laws would not mean law-making ex post facto.

Labor was not alone in being prepared to backdate criminal laws to keep Hicks and Habib behind bars. Australian Democrats Senator Brian Greig said this was a rare case when retroactive laws could be appropriate.[24] Australian Law Council Secretary-General (and former Attorney-General) Michael Lavarch agreed.

'It's not something which that the Law Council would warmly embrace, but it's something that maybe should be on the table and debated', he said.[25]

In a newspaper article, one scholar has argued that David Hicks can and should be tried by an Australian court, without the need to resort to the legally questionable route of enacting retrospective legislation to enable domestic prosecution. Without citing specific offences with which Hicks could be prosecuted under Australian law, she noted that the Australian legal system had incorporated the 'laws of war' under which the US authorities have purportedly charged Hicks. It was contended that this incorporation had occurred under the Geneva Conventions Act 1957 (Cth), the relevant part of which had been replaced by the International Criminal Court Act 2002 (Cth), which expanded the offences recognised by the Australian legal system beyond those recognised by the Geneva Conventions Act.[26] Whatever the legal substance of this contention, to now charge Hicks, and presumably Habib, on this vague and tenuous basis, three years after their incarceration, would be unsatisfactory. I suggest that the continued detention of Hicks and Habib is an affront to the basic democratic right of freedom from arbitrary imprisonment Moreover, the willingness of the Australian Government, aided by Labor, to leave them in open-ended detention, by one means or another, is a warning that even the most fundamental legal rights are no longer safe from violation. The adoption of retroactive penal provisions, directly or indirectly via international law, would compound the injustice and establish a precedent for the revival of methods of rule once regarded as tyrannical.



DR MICHAEL HEAD teaches law at the University of Western Sydney.

© 2004 Michael Head email:

[1] Beyond the Law Update to Amnesty International’s April Memorandum to the US Government on the Rights of Detainees Held in US Custody in Guantanamo Bay and Other Locations, Amnesty International, 13 December 2002 <http://we

b amnesty,org/library/print/ENGAMR511842002> at 3 October 2004.

[2] Ibid. See also N Chang Silencing Political Dissent How Post-September 11 Anti- Terrorism Measures Threaten our Civil Liberties (2002), and Lawyers Committee for Human Rights, 'Imbalances of Power How Changes to US Law and Policy Since 9/11 Erode Human Rights and Civil Liberties' <http.// www ichr org/us_law/loss/imbalance/powers. pdf> at 3 October 2004

[3] Reinhardt J in Ghereb1 v Bush, (9th Cir, 2003)

[4] Lord Phillips MR in Abbasi v Secretary of State for Foreign and Commonwealth Affairs & Secretary of State for the Home Department [2002] EWCA Civ 1598 at para 22

[5] Al Odah v United States (4"' Or, 2003) but jurisdiction was granted in Gherebi v Bush (9th Cir, 2003)

[6] Rasul v Bush, Al Odah v United States 542 US (2004) (Cases no 03-343, 03-334)

[7] Law Council of Australia, 'Fair Trial for Hicks Impossible -Law Council Releases Report', 15 September 2004 <http://www.lawcouncil> at 11 October 2004.

[8] Criminal Code Act 1995 (Cth) 268.31 (denying a fair trial). 268.32 (unlawful deportation or transfer), 268.33 (unlawful confinement). See also 268.99 (unjustifiable delay in repatriation of prisoners of war or civilians)

[9] Australian Broadcasting Corporation radio, AM, 20 February 2004.

[10] Sunday Mail (Brisbane), 22 February 2004.

[11] M Head, 'Counter-terrorism laws: a threat to political freedom, civil liberties and constitutional rights' [2002] MelbULawRw 34; (2002) 26 Melbourne University Law Review, 666

[12] Hobbes, Leviathan, chs 27-28, quoted in G Williams, Criminal Law, The General Part (2nd ed, 1951) 576

[13] M Freeman, Lloyd’s Introduction to Jurisprudence, (6th ed, 1994) 102

[14] Blackstone, Commentaries, (17th ed, 1830) vol 1, 45-46.

[15] Williams, above n 11, 575-581; Hall, 'Nulla Poena S1ne Lege' (1937) 47 The Yale Law Journal, 165, J Popple, 'The right to protection from retroactive criminal law’ (1989) 13 Criminal Law Journal, 251

[16] L Fuller, The Morality of Law (1969) 54-55

[17] I Kershaw, Hitler, 1889-1936 Hubris (1998) 518

[18] (1915) 20 CLR425

[19] (1991) 172 CLR501.

[20] The judges offered various opinions about whether the charges could have been sustained under international law.

[21] Australian Broadcasting Corporation radio, 'Hicks, Habib lawyers angered by Latham's retrospective law proposal', PM, 20 February 2004 < net au/pm/content/2004/s1 050001.htm> at 3 October 2004

[22] Special Broadcasting Serv1ce, 'Hicks and Habib should be tried in Australia under international law: Labor', World News, 23 February 2004, <http.// au/theworldnews/region php?id=79428&reglon=7> at 3 October 2004.

[23] Australian Labor Party, News Statement, 23 February 2004 <http.// php> at 3 October 2004

[24] Australian Democrats, 'Precedent set for Hicks' and Habib's return' (Press Release, 20 February 2004) <http//> at 3 October 2004

[25] Australian Broadcasting Corporation News Online, 'Government pushed on terror laws', 21 February 2004, <http:// www> at 3 October 2004

[26] D Hovell, 'Hicks Can, and Should, Be Tried Here', The Age (Melbourne) 27 September 2004 <http // 37097868. html#> at 11 October 2004

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