David Hicks' rights under natural law


David HicksAnyone who argues that an individual enters into society with certain basic rights adopts a natural law perspective. Natural law exists independently of positive law, or human-made law, and asserts that all people have certain rights that no government can deny. The natural law is therefore ‘unwritten’. It is not a codified system of rights or regulations imposed by a legislator, such as a Bill of Rights. Practical reason is viewed as a means of inquiry to guide human affairs and the basic standard by which human beings discern moral obligation and legal authority.

The relationship between law and morality remains a complex and thorny topic. Today, natural law is implicated in increasingly controversial issues such as nuclear deterrence, the legitimacy of customary international law and the treatment of prisoners. Many commentators also continue to talk about September 11 as the day the world changed. A rehabilitation of natural law theory can contribute to debate on managing this new age of asymmetrical war and associated contemporary moral and political problems. Natural Law theory can also help renew judgements about the foundations of a just, equitable world order. It may be argued that the rehabilitation of natural law is not only a genuine option but also an urgent requirement in these times of widespread conflict, fear and anxiety. Respect for long-held values of human dignity, democratic standards and the rule of law are central to the pursuit of security.

September 11In the wake of the atrocities of September 11, a number of individuals suspected of involvement with terrorist organisations or associated activities were apprehended. After he was captured by Northern Alliance forces in Afghanistan in December 2001, terror suspect David Hicks was handed over to the US military and transferred to a prison camp in Guantanamo Bay, Cuba. Hicks has been charged with various offences, including conspiracy to commit war crimes and aiding the enemy. For much of his detention, Hicks has been held in a concrete solitary confinement cell waiting for trial by a military commission. The Bush administration decreed that al-Qaeda and Taliban members would not be accorded prisoner-of-war status. Indeed, none of the usual protections of the rules of evidence would apply, nor would suspects have the right to examine the evidence against them. Australian Prime Minster John Howard has steadfastly defended the US position by claiming that the Australian Government intends to ‘do whatever is necessary’ to ensure justice.

Yet Guantanamo Bay has become associated with the abuse of executive power. It is a symbol of an utter disrespect for basic human values. The Australian Government has lost perspective by agreeing to conduct which violates fundamental human rights principles and breaches international legal standards. Chris Johnston - Natural LawThe United Nations Committee on Torture has called for the closure of the facility. Hicks’ legal representatives have argued that their client has been treated in a manner that will diminish Australia’s moral authority as nation, and allege that Hicks has been tortured. British Attorney General, Lord Goldsmith, has called for the closure of the US detention camp at Guantanamo while stating that the military tribunal process is neither fair nor independent. Despite international condemnation, Howard dismissed Lord Goldsmith's criticisms, declaring that Australia would make up its ‘own mind about these things’ and maintained that the US had a ‘right’ to put Hicks before a military commission.

Howard’s legal positivist stance limits individual rights to the confines of a particular legal system. In the ‘war against terrorism’, it leaves no safeguard against executive excesses or the seizure by the state of absolute power, and no basis to defend the dignity of human persons. Legal positivism is built on the understanding that the only binding law is a rule of law backed up by the means of enforcement and imposed by the state. Advocates of legal positivism assume that the defining feature of law, and notions of right and wrong, are not in their conformity to higher moral principles, but in the fact that laws are established and enforced by the people with the power to rule. This notion that morality and ethics would always be relative to the prerogatives and opinions of those who are dominant and powerful remains a highly resilient feature of international politics.

St Thomas AquinasAlternately, natural law is a rejection of legal positivism. Natural law insists that some laws are intrinsic and fundamental to human nature. Law is, and should be, rooted in a moral system. Theologians, such as St. Thomas Aquinas, asserted that some values exceed any single state and that natural law was common to all people–Christian and non-Christian alike. Later thinkers such as Jacques Maritain have seen natural law as providing a rational underpinning for universal human rights ideas. Natural law theory was viewed as granting an essential intellectual resistance to the barbarity of warfare. Suggestions that there is a higher law than human law are worth considering; natural law can act as a critical guide to the proper context for positive law, and the adoption of ideas of freedom and justice in a culturally and religiously diverse world.

In June 2006, America's Supreme Court ruled that the controversial military tribunal system established to try accused terrorist suspects was illegal. The majority of the court concluded that the military tribunals that had been set up after September 11 breached both US military law and the Geneva conventions. The decision raises both important legal issues and profound moral questions. At the very least, it is widely recognised that justice delayed is justice denied.

The White House has reacted by refusing to discard the military tribunals, though it his indicated its intention to redesign a formula that would continue to offer detainees less than standard court-martial or civilian court proceedings. Problematically, the decision will also not affect Bush’s sweeping authority to keep inmates indefinitely at Guantanamo prison. The Australian Government mirrored the Bush administration’s unswerving conviction by claiming that it does not want Hicks to return to Australia. Howard’s policy reinforced the message that Canberra has no sympathy for the prisoner, or apparently, any qualms about the legal abyss that David Hicks has been dropped into.

Supreme Court of the United StatesWhilst not a panacea for providing detailed solutions and prescriptive actions to the numerous challenges of international life, including the search for balance between core human rights and national security, the recognition of natural law is a legitimate enterprise that can contribute to fostering the dialogue between rationality and faith, legality and morality. Despite its limitations, natural law can offer a powerful bridge between universalistic principles and legal realties. Natural Law would have it the shared humanity of all peoples is pre-eminent, and that this grounds moral obligations. The individual should treat other human beings as ends worthy in themselves. Each person’s dignity is protected by absolute moral requirements, and it is never right to treat anyone, including detainees such as David Hicks, as a mere means.



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Existing comments

That John Howard condemns a man like David Hicks without trial and allows a gross miscarriage of justice to occur under his jurisdiction cements my cynicism about the values of 'honest' John and his cabinet.

Ray Lamerand | 11 July 2006  

Yes, it will also be interesting to see what happens in this case if the schism between Mr Howard and Mr Costello develops further.

James Massola | 11 July 2006  

I have felt for a long time, That David should be in Australia. He seems innocent of the 2001 event, and has the right on his side.

Theo Dopheide | 12 July 2006  

We, the people of Australia,should be letting our voices be heard.David Hicks deserves to be brought home.

Denise Egan | 12 July 2006  

David Hicks

Now that the Geneva Convention is in place (we hope)

Can we now send care parcels to David Hicks? (ie vegimite, Tim-tams,
Papers,etc ) Would anyone know the proper way of going about this?

Do we send it C/O Guantanamo Bay (what is proper address?)or do we
need to go though US Red Cross?

Your advice would be appreciated.

How many tim-tams does it take to fill a small cell?


Michael bailes | 23 July 2006  

I take it Daniel supports David's freedom. Well Daniel spell it out in your article mate! your arguments are good as far as they go but David needs more than academic postulation. Call for his immediate release, shout it to the roof-tops, unceasingly don't let it drop. We need a mass movement here, churches, trade unions, professional associations, student unions, mass rallies and demo's, but most of all someone in your position should be challenging Howard Ruddock et al to "stop pandering to America and let David go". David hicks is guilty of nothing other than joining the side that he thought deserved support, he broke no laws but stood up for what he beleived in at the time. Democracy really has taken a backward step.

Phil Hoeberigs | 08 August 2006  

Your thorough treatment of this subject is most appreciated, but how, when polls show that there is strong disagreement with the Australian Government Policy can the opinion of the Australian people force the Government to adopt an intelligent and humane attitude?

Alison Herman | 17 August 2006  

On the advice of information provided to me by Major Mori, I believe that the treatment that David Hicks is receiving is fair and reasonable. He is receiving natural justice. If innocent, then so to will he not be held accountable for the muderous actions of cowardly terrorists. If he is guilty, then no harm has been done.

Brian Rogers | 21 August 2006  

David Hicks is collaterally damaged, and when he dies in Guantanamo Bay, as Mr Howard hopes and possibly intends, his life wil have been lost to John Howard's need to be a political winner. That his continued incarceration is a gross injustice is patently obvious, even to the neo-conmen who demand that he remain there.
This, however, is completely irrelevant to the pure political animal that dwells in the Lodge, or Kirribilli House (we are not permitted to know where It sleeps, on National Security grounds).
One wonders what is happening to those mere humans that are the Animal's Cabinet, particularly that proud wearer of the Amnesty badge, Mr Ruddock; perhaps, like Dorian Gray, the memory of him will again be beautiful after his death or perhaps, like Faust, he will be merely gone.

David Arthur | 07 October 2006  

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