This blog has maintained for quite some time that the denial of habeas corpus to Hicks would ultimately be the subject of court action. I have always thought that the whole area of 'rendition', 'coercion' and 'incarceration' without due process would come back to haunt key perpetrators through legal actions.
In the case of Hicks he has also been denied protection by the Howard Government from an illegal US military commission process.
The Age reports "Former Family Court chief justice Alastair Nicholson says the prime minister, foreign minister and attorney-general could be charged with war crimes for insisting David Hicks face trial before a US military commission.
Mr Nicholson said the commission was not a properly constituted court and it could not deliver a fair trial to the terrorist suspect.
He said war crimes legislation clearly made that an offence on the basis that kangaroo courts should not be established to try a regime's enemies.
"We are saying it is strongly arguable that they have broken the law because to counsel or procure a person who is entitled to protection of the Geneva convention as Hicks is, a trial of such a person before an illegal tribunal is clearly an offence against the international criminal court statute," he told ABC radio.
"It is also an offence in Australian law."
Mr Nicholson said that constituted a war crime.
"It is so defined under the relevant legislation," he said.
Adelaide-born Hicks, 31, has been detained by the US at Guantanamo Bay in Cuba for five years, after he was picked up in Afghanistan in December 2001.
The US is currently considering the charges he would face at trial.
Mr Nicholson and five other top lawyers co-signed a legal opinion sent to Mr Ruddock last year, arguing that government ministers could face charges under war crimes legislation.
That view was repeated in a letter from senior lawyer Robert Richter QC sent to The Age newspaper earlier this month.
Mr Nicholson acknowledged it was unlikely Mr Ruddock would be charged with war crimes by this government, although it would be potentially open to a future Labor government.
"It is always possible. But my experience is that one government doesn't usually try and single out the misdeeds of another," he said.
"If this government at this stage was to indicate that it thought the trial process was unsatisfactory and Hicks should be repatriated, I have no doubt that he would be."
I think it would be appropriate to have the Ministers mainly responsible for this episode charged with war crimes.
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