Hicks – what is his legal status ?

Major Mori, legal activists and various journalists are suggesting David Hicks be charged as a common criminal when clearly he isn�t. He was fighting for the enemy and if he hadn�t been captured when he was, he could well have ended up being in a position to shoot at and kill Australians or allies.

In fact, according ccording to the Australia Defence Association,
Although too often ignored in popular clamour, the correct position in international law is that even if criminal charges against David Hicks were dropped tomorrow this would not necessarily mean his unconditional release from detention as a captured combatant under the Laws of Armed Conflict. The dropping of criminal charges would, however, probably assist the relevant tribunal in determining the likelihood of him resuming belligerent activities and therefore deciding whether his release on captured combatant parole, for example, could be justified under international humanitarian law.

To paraphrase the report, there are 5 key questions

1. Was there an international armed conflict war occurring in Afghanistan at the time David Hicks was captured ?
2. Was David Hicks a combatant or a non-combatant in the armed conflict in Afghanistan, if not the continuing wider international conflict with Islamist terrorism?
3. If David Hicks was a combatant is he now a Prisoner-of-War (POW) ? If he is not a POW, what is he then, and what protection might or does he have under the Laws of Armed Conflict chiefly the Geneva Conventions and their Additional Protocols?
4. Irrespective of his status under the Laws of Armed Conflict, should David Hicks be tried for any civil criminal offences or war crimes he may have committed ?
5. If there is a case against him (cuvil or military), then who should try David Hicks, how can or should he be tried, and what universal or specific safeguards apply to any trial come in to play?

These are all important questions that need to considered, rather than clamouring for Hick�s trial and/or release based on ideology and in the absence of any impartial knowledge of the laws that govern detention of armed combatants.