Thursday, 14 April 2005
The following document is reportedly draft advice from the Australian Attorney-General to the office of the Prime Minister. Government officials have refused to confirm its authenticity.
Draft : Regarding the treatment of terrorist suspects, whether apprehended in Australia or Overseas, and whether Australian citizens or not.
The dividing line between military and civil jurisdiction is a question fraught with some difficulty, but the following appears to be the current (though not universally accepted) legal situation, and broadly consistent with accepted practice.
Should a person suspected of being an enemy Combatant conducting military operations (henceforth "prisoner") be apprehended by whatever means, they may be brought before either a Military Tribunal consituted within the guidelines of the Geneva Convention, or a civilian court of sufficient standing, whereupon the question of jurisdiction shall be decided.
Should a prisoner be deemed to be an enemy Combatant, then the military shall have jurisdiction, otherwise the civilian authorities. Should the prisoner claim to be an enemy Combatant, then that claim (absent any evidence to the contrary, such as the results of a psychiatric examination) shall be honoured. This will provide adequate protection for Bona Fide enemy Combatants conducting legitimate military operations, and therefore entitled to the protection of the Geneva Conventions. Should the prisoner claim not to be an enemy Combatant, if a prima face case for this claim exists, the question should be decided by a civilian court, otherwise dealt with summarily.
Under battlefield conditions, an ad-hoc tribunal may consist of any representative of the Australian Defence Force making an expedient determination, subject to later formal review of the prisoner's status. In most cases in conventional warfare, an enemy soldier under arms, whether in uniform or not, would be recognisable as such. The temporary treatment of protected persons such as Chaplains, Medical Personnel, or Civilians in Uniform assisting the enemy as ordinary Prisoners of war pending formal judgement of their status is permissible under the Geneva Convention.
Should a civil court decide that the prisoner is an enemy Combatant, they must decline jurisdiction, and surrender the prisoner to military authorities. This process must not by unduly delayed. Similarly, should a duly constituted military tribunal decide that the prisoner is not an enemy Combatant (legal or otherwise), then they must surrender that person on demand to civil authorities (usually by writ of Habeas Corpus) for prosecution in the normal way, with the normal rules of evidence.
This report deals henceforth purely with Enemy Combatants.
Parenthetically, a superficially similar situation to that outlined below exists for Friendly Combatants guilty of War Crimes. However, members of the Australian Defence Force found guilty of all but the most grave offences committed in the execution of their duties remain within the jurisdiction of military law, rather than becoming Illegal Combatants. This privilege should be extended to all other parties, signatories to the Geneva Conventions or not, who generally abide by the articles therein.
Enemy Combatants will then face a second examination by military tribunal, which will determine if there is a prima face case that they may not be an illegal Combatant, guilty of enormity or gross violation of the laws of war. If such a prima face case exists, then they are entitled to Protected Status as Prisoners of War, pending trial by a War Crimes Tribunal. If feasible, this should be an International Tribunal, with foreign representatives, and be conducted after hostilities have ceased, again in accordance with the Geneva Convention. In most cases of enemy Combatants captured on the battlefield, such a trial will not be neccessary as there will be no prima face case of them having committed war crimes.
Where a prima face case of the contrapositive exists - that is, there is a case that the enemy Combatant may have (but not certainly has) committed enormities - then the normal rights of a Prisoner of War may not be fully accorded pending trial, due to operational security concerns. It is recommended that the International Red Cross as reviewing agency be informed of any such restrictions, and the reasons for them.
For minor crimes committed before or after capture, the enemy Combatant may instead be granted an expedient Court Martial by the recognised military organisation of which they are a member. Typically, such a Court Martial is used when an Enemy Prisoner of War commits a crime such as theft while in a Prisoner of War camp and does not contest the charge. Alternatively an administrative trial and concomitant punishment set by the detaining power may be inflicted, again within the limits prescribed by the Geneva Conventions. Typically such punishments involve short periods of solitary confinement, stoppage of pay and loss of privileges.
For enemy Combatants whose guilt of enormities is obvious and incontravertible, as soon as they are lawfully determined to be such they are not just outside the jurisdiction of civilian law (as are all Combatants while conducting military operations), but neither are they entitled to any protection under military law. They are in the same situation as an enemy combatant under arms who has intransigently refused to surrender.
Put simply, Illegal Combatants are Outlaws, and have no rights whatsoever. They are Enemies of Humanity, hostes humani generis. The law is silent on them, though considerations of Public health regarding infectious diseases, disposal of corpses and similar concerns should still apply. This may require minor amendments to existing legislation.
The legal bounds on how Illegal Combatants may be treated are set purely by the legal bounds of behaviour by their captors. Illegal Combatants may be treated in any manner whatsover consistent with military expediency, and within the bounds of ordinary human decency and ethics.
The Military Tribunal that makes the determination of Illegal Combatant status may (but is not required to, except for members of her Majesty's Armed Forces) make a recommendation as to treatment of the Illegal Combatant in accordance with military custom and common usage which will purge the Illegal Combatant's outlaw status. By convention, spies merely guilty of espionage have been given indefinite prison sentences, or have faced a firing squad in time of War, but the bodies were then buried with appropriate military honours. Those guilty of more dishonourable conduct have been hanged, and given pauper's graves.
It is important to make the distinction between this treatment and a lawful execution : such a killing cannot be unlawful, even if Capital Punishment has been removed from the civil statute books. It is not possible to punish an Outlaw. It is an interesting legal point as to whether a prisoner, after undergoing such treatment as a prison sentence or having been killed, is no longer an Outlaw, and legislation should be put in place to clarify this matter. In any case, in order to ameliorate mistakes of Identity, there should be some recognised process for restoring an Outlaw's recognition as a human being within the law. (Note : The previous draft of this document had "In-Law" here).
A reasonable set of tests for any treatment would be:
1. Is any treatment reasonably likely to cause psychological damage to the captors?
2. Would the treatment be reasonable and lawful to inflict upon an intransigent enemy on the battlefield, if there was no other expedient military alternative?
A third test, although irrelevant to considerations of legality, is required due to practical considerations:
3. Is any such treatment likely to cause damage to the Nations's reputation?
I remain your Obedient Servant, etc etc