Hicks is fortunate to be facing US military justice in 2005, not 1945.
David Hicks has sown the jihadist wind, and he will now reap the whirlwind before a US military commission. Hicks aspired to be a professional Islamist holy warrior. In letters to his family, the former Aussie jackaroo boasted of fighting with Lashkar-e-Taiba, the al-Qaeda-affiliated organisation that has conducted a bloody terrorist campaign against India. And he wound up in Guantanamo after being captured as a rank-and-file Taliban fighter during combat operations in an active theatre of war.
And make no mistake about it: this is a war. The bellicose aims of the September 11 terrorists, combined with the scope of destruction they inflicted, made it morally appropriate for America to regard those attacks as full-fledged acts of armed hostilities.
Washington moved swiftly to invest that ethical determination with the legitimacy of law. By mid-September 2001, Congress had passed an "authorisation for the use of military force" against terrorist "nations, organisations or persons". And President George Bush soon followed suit, declaring that the attacks "created a state of armed conflict that requires the use of the United States armed forces".
Because this is a war, the normal rules of civilian courtroom procedure are irrelevant. By its very nature, armed conflict violates the most fundamental principles of civil society. And while there is a legal code that governs warfare, it is infinitely more permissive than the ordinances that are operational in civilian life. On the battlefield, homicide is not only permitted, it is rewarded. Soldiers receive medals for acts that would land them in prison if they were done in civilian life: killing people.
In combat, there is no legal requirement to read the enemy his rights before shooting him from ambush. Thus, it is folly to apply peacetime legal standards to a wartime environment where they are self-evidently alien.
Moreover, the text of the Geneva Convention itself denies the privileges of legal combatant-hood to Hicks and his fellow Guantanamo detainees. The laws of war provide that captured soldiers should be treated in a civilised manner. But this is entirely conditional. If a non-party to the Geneva Convention systematically violates the regulations of armed conflict, then all bets are off, and off come the gloves. The Marquess of Queensberry rules of war-making are no longer required.
Osama bin Laden never signed, much less ratified the Geneva Convention. And al-Qaeda is a movement that views the deliberate slaughter of innocent women and children as a legitimate tactic of war.
From flying hijacked airliners into office buildings to bombing commuter trains in Madrid and London, bin Laden's foot soldiers systematically spurn the most fundamental precepts of international law. Thus according to article 2, paragraph 3 of the Geneva Convention, the United States is under no legal obligation to apply the terms of that treaty to al-Qaeda.
And the same holds true of the Taliban. During the bitter civil war that raged in Afghanistan throughout the 1990s, the Taliban's claim to legitimate government status was never internationally recognised. Thus in 1999, a typical UN Security Council Resolution (1267) condemned "the Afghan faction known as the Taliban" for its war crimes and alliance with al-Qaeda.
As an irregular militia, the Taliban was not eligible for the automatic coverage that the Geneva Convention provides to armed forces of nation states. And on the grounds of its behaviour in the field, the Taliban failed the same tests of international law - as did its al-Qaeda partner.
During World War II, a group of Nazi saboteurs captured wearing civilian clothes challenged the lawfulness of the American military commission process in a case called "ex parte Quirin". In its Quirin decision, the US Supreme Court noted the essential difference between lawful and unlawful combatants. Illegitimate combatants, noted the court, "are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful".
Just last month, the US Court of Appeals reaffirmed the validity of the Quirin precedent in a case filed by Osama bin Laden's personal bodyguard. Like the Nazi spies 60 years before him, Salim Ahmed Hamdan tried and failed to challenge the lawfulness of the US military tribunal system.
By themselves violating every tenet of international law, al-Qaeda terrorists have forfeited any entitlement to protection under the Geneva Convention. US forces would be within their legal rights to treat captured terrorists as they dealt with Nazi saboteurs during World War II: with trial by military commission and execution.
David Hicks is indeed fortunate to be facing American military justice in 2005, rather than 1945.