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Prisoner of conscience

Feature Articles

Cite as: (2002) 76(10) LIJ, p.56

An unusual case arising from the rights of a World War II prisoner of war has relevance to those captured during the current "war against terrorism".

By Dr Philip Opas

This article is inspired by the screaming headlines in a daily newspaper, “Hicks has no rights – Judge”.[1] It refers to the case of David Hicks, an Australian captured by American forces in Afghanistan during the “war against terrorism” and taken to Cuba where he is being held prisoner in a camp at Guantanamo Bay. He has never been charged with any offence.

According to the newspaper account, US District Court Judge Colleen Kollar-Kotelly ruled that the US legal system has no jurisdiction over detainees including Hicks and two British citizens being held at the US military base. She rejected the submission that the base where the prisoners were being detained was equivalent to being a land border or port of entry to US territory.

I am prompted to write because of an experience I had in a bizarre case arising from the rights of a prisoner of war. All the principal actors in that drama are now dead but some of them will be well known to older members of the Victorian legal profession.

In my opinion, the status of Hicks is clearly that of a prisoner of war, and as such he does have some, although restricted, rights. He is not left without any protection and should not be denied access to an appropriate court to prevent inhuman treatment.

He was captured during a war. It was not a war declared against any specific nation, but has always been described as a war against “terrorism”. His capture took place after armed forces invaded the sovereign state of Afghanistan. The action was undoubtedly an act of war under international law. The war took place between forces under the aegis of the United Nations against forces under the command of the Taliban regime. There is no point in trying to define the exact status of the Taliban. Whether it was the de jure or the de facto government of Afghanistan, it was the only effective ruler of that country.

I postpone consideration of the result of becoming such a prisoner to deal with the unusual circumstances of the case in which I was personally involved. It concerned an action brought in the County Court of Melbourne in 1950 by one former Australian officer against another, arising out of a transaction when they were both prisoners of war in a German stalag. I will not name them for obvious reasons.

Whatever the treatment meted out to its own and other non-Aryan citizens whom it deemed unworthy of life, Germany did, generally speaking, abide by the terms of the International Convention Relating to the Treatment of Prisoners of War signed at Geneva on 27 July 1929 and ratified by Germany on 21 February 1934. Significantly, the ratification took place after Hitler became Chancellor in the preceding year.

Article 45 of the Convention stated: “Prisoners of war shall be subject to the laws, regulations and orders in force in the Armed Forces of the detaining Power”.

Article 17 provided: “Belligerents shall encourage as much as possible the organisation of intellectual and sporting pursuits by the Prisoners of War”.

In the camp in which the parties to the litigation were detained, gambling of all sorts was rife. There was little else to do and betting took place on sporting events within the camp and, of course, card games. The prisoners had little or no money in their possession and usually kept score of what debts had been incurred and sometimes satisfied them by drafts on their bank accounts or the transfer of internal “lagermark” credits.

In the case referred to, Officer A through gambling had incurred heavy losses to an English officer. He sought to satisfy the debt by endorsing a strip of toilet paper in the form of a cheque drawn on his account at Barclay’s Bank, London. With the cooperation of the German camp commandant, this “cheque” was passed by the German censor and duly stamped. It was remitted to the Red Cross in Geneva for transfer to the bank. Stamped by the Red Cross it made its way to England where it was stamped by the censor and passed to the bank. There it was endorsed “No account. Return to sender.”

The rejected “cheque” then wended its tortuous course back to the stalag, being stamped by each appropriate official on the way. Once it arrived at the stalag, the drawer of the cheque faced the embarrassment of not only defaulting on a debt of honour, but more importantly, on a debt to an English officer. As a result the honour of Australia was at stake.

To save face, Officer B, a fellow Australian, honoured the “cheque” and paid the English officer. Officer A as consideration for the rescue promised to repay Officer B the full amount of the debt from deferred pay and other entitlements when they were liberated at the end of the war and handed over the “cheque” to him as confirmation.

When the war ended, Officer A refused to pay what he owed. A writ was issued in the County Court a few days before the expiration of the six-year period under the Statute of Limitations.

When I was briefed, there were two hurdles to overcome:

  • assuming the relevant law to apply was German, was the debt recoverable under such law?; and
  • in any event, the Police Offences Act (Vic) s96 provided that all contracts or agreements by way of gaming shall be null and void, and the Instruments Act (Vic) s14 prevented suit being brought on cheques, the consideration for which was gaming.

This case naturally excited much interest among former prisoners of the stalag and these included three witnesses well-known and respected in the legal profession who were prepared to give evidence as to the origin of the debt and the practice within the camp of encouraging gambling as a form of recreation. These witnesses were prominent member of the Bar RL (Bob) Gilbert, the son of Judge Macindoe of the County Court and a partner in a long-established solicitor’s practice, SCG (Jock) Macindoe, and County Court bailiff Donald Quartermain.

Fortunately, Professor W Friedmann, a former German judge, was at the time Dean of the Faculty of Law at Melbourne University. He was the obvious choice as an expert witness on applicable German law. He pointed out that under Article 762 of the German Civil Code, “No obligation is incurred by gambling or betting”. The Code did not deal with a transaction incurred between the loser and a third party in order to enable the loser to pay a gambling debt.

Professor Friedmann considered decisions of the German courts and views of commentators and opined that loans given to facilitate gambling are generally recoverable, although in special circumstances a court might apply a general provision of Article 138 of the Code which declares immoral contracts void.

Special circumstances included loans to a minor to enable betting, but no such “special circumstances” would apply in Germany regarding the transaction between the former prisoners. To quote the opinion, “I am therefore of the definite opinion, (a) that German law applies to the transaction in question; and (b) that the loan is recoverable under German law”.

I felt confident that the Court would not regard the Police Offences Act or the Instruments Act as a problem. Every gentlemen’s club worthy of the name had gaming rooms for members where card games were played. Playing cards or gambling on snooker games was not illegal, although winnings might not be recoverable in courts. In the instant case, action was not being brought on a contract by way of gaming, or on a cheque the consideration for which was gaming.

The case was just about to start when the defendant caved in. He paid the full amount of the claim and costs. I would have been happy to have accepted the “cheque” in lieu of my fee, but it was a condition of settlement that it be promptly destroyed.

Against this background, where does Hicks stand?

The Convention quoted does not leave Hicks without rights with the detaining power free to deny him any access to legal redress.

Under Article 43 of the Convention, prisoners of war are authorised to appoint representatives to represent them before military authorities and protecting powers. The senior officer is recognised as an intermediary and prisoners may organise a system of mutual aid.

The Geneva Convention of 1949 in reference to prisoners of war has not altered the situation of basic principles since 1889 when a section on prisoners was included in the first Hague Convention respecting the customs of war on land.

I start with the premise that Hicks is undoubtedly a prisoner of war. The US could not establish a military camp in Cuba without violating the sovereignty of the host nation unless it was with the consent of the Cuban government. The terms of that consent almost certainly would include that within that camp American law would apply. I do not have access to the agreement or treaty under which the camp was set up but I make that reasonable assumption.

I draw the parallel with the situation which existed in Vietnam when I was Judge Advocate General of the Royal Australian Air Force. I had to satisfy myself that our troops enjoyed immunity from prosecution by Vietnamese agencies before I could advise the Air Board that it was safe to send our troops to serve there. I visited Vietnam in 1964 to confer with Cabinet ministers and senior Vietnamese Army officers and it was established that Vietnamese police arresting any of our troops had to hand them over to the RAAF to deal with, and that the RAAF was authorised to conduct courts martial and other trials in accordance with Australian law. During the Vietnamese war there was no problem concerning the application of Australian law to our troops in a foreign country. Those sentenced to imprisonment by our trial systems served in prisons under our control and subject to our law.

Although the persons seeking asylum in Australia and being detained in mandatory detention cannot be deemed prisoners of war, many of them are being held in captivity outside Australia, for example in Nauru and New Guinea. Such persons are being processed there under agreements made between Australia and the host nation, and while being detained they are subject to the protection and application of Australian law. This includes access to our courts.

I do not pretend to be an expert on American law, but I believe I am capable of interpreting a statute written in English. The American Constitution Article I s9(2) reads: “The privilege of the writ of habeas corpus shall not be suspended, unless when in the cases of rebellion or invasion the public safety may require it.” It seems to be stretching language to say that public safety requires that Hicks be hidden away in Cuba when no offence is alleged.

Article III s2(1) states: “The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made . . . to controversies to which the United States shall be a party . . . ” [emphasis added]

Article III s3 reads, “The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any state the trial shall be at such place or places as the Congress may by law have directed.” [emphasis added]

The words emphasised show that jurisdiction is conferred when crimes may be committed beyond the boundaries of the US. The applicable law remains American.

The Fifth Amendment should ensure that no person (not necessarily a citizen of the US) is deprived of life or liberty without due process of law.

It follows, in my view, that Hicks is a prisoner of war. He is being held under the applicable laws of the US. He is entitled to access to the courts of that nation to seek a writ of habeas corpus. The detaining power is bound to release him and repatriate him to his country of nationality once the war in which he was captured is over.

Surely it is open to him to maintain that he was captured in the uniform of the Taliban. That war has ended and he should be immediately repatriated to Australia. It cannot be maintained that he is entitled to be incarcerated until the war against “terrorism” is over. That could possibly involve a long drawn-out war against, let us say, Iraq. The US cannot justifiably hold prisoners from the war in Afghanistan indefinitely because it embarked on other wars in which the prisoners were not involved.

I note from media reports that the decision of Judge Kollar-Kotelly is to be the subject of appeal. The outcome will be awaited with interest. However, one must bear in mind that Hamlet was contemplating with equanimity the quietus that a bare bodkin might make for a number of reasons, including the law’s delays. Delays in the American system seem to go far beyond those contemplated by Shakespeare, leaving Hicks and others incarcerated indefinitely and subject to the oppressors’ wrongs.

To test the validity of my contention, assume that the Taliban had taken American soldiers as prisoners. Surely it would be claimed on their behalf that they were prisoners of war and were entitled to be repatriated immediately the war in which they were captured ended. Hicks was captured in the same war.

In answer to the claim that the Taliban and Hicks wore no military uniform, does a detective cease to be a policeman in plain clothes?


DR PHILIP OPAS, now retired, is a QC (Victoria, New South Wales, Tasmania, Northern Territory and Papua New Guinea). He is a former chief chairman of the Planning Appeals Board and deputy president of the Administrative Appeals Tribunal of Victoria.

[1] Herald Sun (Melbourne), 2 August 2002, p26.


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