Revelations of prisoner abuse in Iraq, as well as allegations of the maltreatment of Guantanamo Bay detainees are beginning to define an important legal aspect of the US-led ‘war on terror’. In the last week, the public has recoiled in disgust at pictures of the humiliation of Iraqi prisoners. Meanwhile, experts in international law are likely giving detailed consideration to the implications of the alleged abuses, both for the conduct of the occupation and, more broadly, for the US approach to combating terrorism.

According to accounts given to Australian newspapers, alleged Australian Taliban fighter David Hicks was shackled, beaten extensively during interrogation by US military personnel, and denied sleep for long periods. Hicks’ lawyer, Stephen Kenny, has not given details of the abuse, alleged to have occurred soon after Hicks’ capture in Afghanistan in late 2001. He has, however, suggested that high level US authorities had approved such interrogation techniques and that the maltreatment was not merely a case of individual guards abusing their powers.

In addition, Stephen Hopper, lawyer for suspected Australian terrorist Mamdouh Habib, has alleged his client suffered torture and abuse following Habib’s late 2001 arrest in Pakistan and subsequent deportation to Egypt. Habib was later moved to Guantanamo Bay, Cuba, where he was beaten and humiliated by US troops, Hopper claims.

Hopper has called for a full enquiry into the alleged abuses and the Australian Government has promised to investigate any new claims regarding US military personnel. The Government has, however, previously accepted US assurances that Hicks and Habib have been treated in accordance with international law.

It would be difficult to argue the Howard Government has been forced onto the back foot following the new revelations, including Hopper’s statement that Australian officials were complicit in the torture of an Australian citizen. These recent events have, however, forced the question of on what legal basis are Hicks and Habib being detained to resurface. In a letter last week to Lawyers Weekly, Shadow Attorney-General Nicola Roxon suggested that to date, the Howard Government had been able more or less to brush the issue under the carpet: “Until now, the Government has been prepared to turn a blind eye to the legal no-man’s land of Guantanamo Bay, ignore the basic requirement that a person shouldn’t be detained at length without charge and show a disdain for ensuring that any trial should be fair,” Roxon wrote.

Of considerable legal significance, then, may be claims by the Pentagon that US defence secretary Donald Rumsfeld had personally approved “aggressive” interrogation techniques for a detainee suspected of having information about the September 11 attacks. According to a story published in the Los Angeles Times and reproduced in The Sydney Morning Herald, a US Army Major-General sought approval in late 2002 to use certain unconventional interrogation procedures on a Guantanamo Bay prisoner thought to have valuable information on future al Qaeda attacks. The move drove a wedge between interrogators and military lawyers with the Judge Advocate General’s (JAG) office who argued the proposed methods would be in breach of international law. The lawyers pressed for the removal of certain procedures from a list of requested techniques, according to the news report, and Rumsfeld subsequently trimmed the list back by about one-third, also requiring his personal approval for use of some of the methods.

According to a JAG official quoted in the article, the final report did not raise any legal objections. However, the clash between the interrogators and JAG lawyers may prove to be a precursor to a broader debate within US political and military circles, including the US Congress, which is already taking in the military’s interrogation techniques. With the world already focused on the abuse of prisoners in Iraq, it is not a debate that will remain confined within the US; on the contrary, it will engage human rights and legal minds worldwide. And as with Hicks and Habib, the question of legal status will be near the top of the agenda: specifically, as the detainees at Guantanamo Bay are considered suspected terrorists rather than prisoners of war, they are not covered by the Geneva conventions on the treatments of POWs. In light of the new allegations, this proposition will likely come under even more legal pressure than at present.

Prisoners held by US forces in Iraq — some of whom have appeared in recent photos allegedly being subjected to abuse — are regarded as POWs. According to last week’s news reports of congressional hearings, however, the top military commander in Iraq said he had not seen the rules of interrogation for use in the jail where the alleged abuse occurred. Not only that, but human rights lawyers are reported as claiming the rules violate the Geneva conventions anyway. The hearing was told, however, that responsibility for prisoner abuse was limited to personnel in Iraq and did not extend up to either the Secretary of Defense or the chairman of the Joint Chiefs of Staff.

The Prime Minister, John Howard, last week reaffirmed his commitment to an Australian presence in Iraq in support of US-led occupying forces. Opposition Leader Mark Latham, meanwhile, has called for UN leadership, with Australia playing a humanitarian rather than a long-term military role. Regardless of whether the troops are brought home by Christmas, however, the Howard Government’s support for US policy on Iraq will not be helped by the emergence of legal questions concerning US treatment of prisoners — both in Iraq and at Guantanamo Bay. The detention of Hicks and Habib and others, the Iraqi occupation and the military aspects of the so-called ‘war on terrorism’ may well now be at stake.