The Law Council of Australia (LCA) has applauded the District Court of Columbia’s ruling that military commission tribunals, as presently constituted, are unlawful.
The LCA said last week that the Court’s decision raises further doubt over the fairness of using US military commissions for the trials of Guantanamo Bay detainees.
The US federal court found that Yemeni detainee Salim Ahmed Hamdan could not be tried by the military commission process. District Court Judge James Robertson ruled that the process currently allowed the detainee to be excluded from proceedings in contravention of the Uniform Code of Military Justice.
Justice Robertson also stated that the detainee had not been given the opportunity to have their potential status as a prisoner of war under the Geneva Conventions assessed by a competent tribunal.
As well, the detainee would not have appropriate access to all evidence, including classified evidence, to be led against him, Justice Robertson ruled.
He said “the rules of the military commission are fatally contrary to or inconsistent with the statutory requirements for courts-martial convened under the Uniform Code of Military Justice, and thus unlawful”.
LCA president Stephen Southwood QC said the court ruling supports the Council’s “long held concerns” about the fairness of the military commission process.
“While the matter is now subject to an appeal, it does raise the question as to whether the Australian Government can continue to ignore these concerns insofar as they impact on David Hicks and Mamdouh Habib,” Southwood said.
According to the LCA, “any process which allows a defendant to be excluded from criminal proceedings and imports lower standards for the receiving of evidence cannot be supported”.