When a civilian is being tried by a military tribunal, how are they expected to address the officers of the tribunal?
It's an extremely minor detail for a story I'm working on (destined for SOL), but I'd like it to be plausible even if not guaranteed to be correct.
Thanks,
AJ
My experience with the military is that you never go wrong by using the rank and the last name. For example: General Ajax, Colonel Smith, Captain Jones.
Thanks.
I know I'm being picky here but what if there are five brasshats of mixed rank - how might they be addressed en masse?
AJ
I know I'm being picky here but what if there are five brasshats of mixed rank - how might they be addressed en masse?
I'd hazard a guess that you address either the senior-most officer involved, or the person who asked. Based on boards I've been on the receiving end of before.
But this specific territory is ground I have no experience with, so I'll defer to others.
I'm writing in English English but we don't try civilians with military courts - instead we hand them over to the Americans or they 'commit suicide' or they have an 'accident'. :)
I'm sort of modelling the situation on the US military tribunals used to try suspected terrorists - if readers assume the setting is the USA, that's fine with me.
AJ
As a group reference I would go with Gentlemen. The US military uses the term as a generic reference for both sexes.
For individuals, Sir, Ma'am, or rank would be appropriate.
Edit to add: DS suggestion of Judge and Rank + last name would also be correct. A civilian might get away with an inappropriate term where a member of the military would not.
Edit to add: DS suggestion of Judge and Rank + last name would also be correct. A civilian might get away with an inappropriate term where a member of the military would not.
It would be likely the JAG acting as his defense lawyer would brief on protocol all the same. ;)
My my sanity, I won't come back to this thread again.
I do not want to be reminded of the most barbaric 'War Crimes' committed by the American AND Australian Governments against an Australian citizen, David Hicks, guilty of nothing more than stupidity and idealism AT THE TIME of capture and illegal detention.
When a civilian is being tried by a military tribunal, how are they expected to address the officers of the tribunal?
It might depend on whose military and why they are trying a civilian.
It might depend on whose military and why they are trying a civilian.
This. Although you also typically can't go wrong with "Sir" or "Ma'am" respectively. I'd expect that form of address to be used more than their rank, in all truthfulness.
Trying not to give a plot twist away, but basically wrong place wrong time (and not "bird watching" in Northern Afghanistan). The civilian knows his explanation is totally unbelievable so is trying to be respectful.
AJ
The rules and etiquette of the court will vary with:
1. The country concerned,
2. The military service concerned,
3. The type of tribunal involved,
4. The circumstances and reasons for them being before a military tribunal,
5. The charges they face.
It does vary from country to country, and also has been different in past eras. In general, civilians are not tried by a military tribunal unless the area is under Martial Law or they're caught on a highly restricted military base. Of course, that all changes with a military junta as the government.
The most common terms used are The Court when referring to the panel of judges as a whole, and President for the president of the court (usually sits in the middle). When addressing individuals their rank and surname is usually used. For example
The court of General Fault, Colonel Panic, and Major Disaster, would be referred to as The Court but when speaking direct to Colonel Panic you would address him by rank and name, and when putting a special request to General Fault for a decision on a technical subject you'd address him as Mister President as he's acting as the president of the court.
Edit to add: The whole game changes when they're in a combat zone and are carrying weapons. usually, unarmed civilians caught in a combat zone are either released or handed over to the local civil authorities. that's covered under the UN conventions.
The most common terms used are The Court when referring to the panel of judges as a whole, and President for the president of the court (usually sits in the middle). When addressing individuals their rank and surname is usually used. For example
If the tribunal is US military and isn't being done in the field, the tribunal members will be members of the Judge Advocate General Corps. Address individual members as either Judge or Rank + last name.
No experience of military courts martial but in civilian courts I go with Ernest Bywater's reply. It is the COURT (whether it be judge and jury or a panel of judges) which makes the decisions and the judge is normally / frequently the senior or controlling member. I used "the court" and the third person singular (similar to the use of 'usted' in Spanish) in the UK and in South America and was never admonished.
One of the reasons my posts are so frequently repeated are
* I am working with an internet connection of unknown speed
* every 15 minutes it drops out and forces me to reconnect
* I can ONLY access SoL in Indonesia by using proxies which must slow things down
The main reason, which you probably would not notice if you have a good internet connection, is SoL is VERY SLOW, especially when posts are made. And I do mean slow compared to other sites. I can probably get half a dozen responses from asstr.org (via proxies) in the typical time it takes to get the "Refresh" message after making a post on a forum. An irritation for me is after a making a post there is nothing to show it is being processed.
So, I know why it happens, and I correct almost all of them quickly.
So, I know why it happens, and I correct almost all of them quickly.
Good to know, I just wasn't sure if you did. Thanks for the update on that.
That's okay. I do my best.
I would like to have a polite informed discussion about David Hicks. I am drafting something now.
I don't know anything about the Hicks case in particular, but under the Geneva convention non-uniformed combatants in a war zone have zero protection and can even be subject to summary execution on the battlefield.
This rule protects civilian populations by discouraging nations from hiding soldiers among civilians.
Not sure of details myself, I was traveling at the time and not getting a lot of news.
That's what I'll be asking EB to fill in.
My understanding is the COMPLETE MORON left Afghanistan, but went back in to collect clothes and belongings. And at the time he was captured was unarmed and nowhere near any combat.
My understanding is the COMPLETE MORON left Afghanistan, but went back in to collect clothes and belongings. And at the time he was captured was unarmed and nowhere near any combat
It is not a question of what he was doing at the time of his arrest but what he had been doing at some previous time.
As a parallel, people are arrested for crimes a long time - even decades - after the crime was committed, sometimes in different countries, and charged with that crime. It simply needs compelling evidence produced in court for them to be found guilty.
I CERTAINLY would not debate the legality of his arrest in Afghanistan, removal to another country, and detention for some period to investigate whether he had committed any offenses, and in his going even further to investigate he may be a threat to society of released.
It is what was done to him AFTER that I consider War Crimes, with the most guilty parties being the Australian Government of the day (and the usually sane electorate who voted the criminals back in at the next election).
Mary Gauldron, a retired Justice of the High Court of Australia, was asked what she thought about the Tribunal that "convicted" Hicks. Her answer was it was legal (POTUS had the authority to establish the Tribunal) but, quoting, "That is what dictatorships do"! Her view was, and I agree, no process can be considered "Justice" if it is entirely under the control of the Executive Branch.
I may change my opinions after reading the Wiki article EB mentioned.
If there was never a time when he could, in theory, have appealed to the Supreme Court (because if the fiction Guantanomo Bay was not American "territory") his detention and conviction was a War Crime, without even considering the systematic torture he was subjected to!!!
Her answer was it was legal (POTUS had the authority to establish the Tribunal) but, quoting, "That is what dictatorships do"!
Dictatorships do lots of things, many of them overlap with things normal civilized governments would do. Due to the little matter of there being several things inherent in governing. So as far as condemnations go, that one is pretty weak on its face.
Even the challenge of the Military tribunal on the basis of the tribunal being accountable to the Executive branch of the U.S. Government rather than the Judicial branch fails, because it includes an appeals process that ends at the SCotUS. (And does not preclude their ability to obtain a fair trial. Unless someone has found proof the U.S. has actually been setting up kangaroo courts.)
It also ignores that military service members in the U.S. cycle through that same "executive accountable" judiciary process all the time, and nobody seems to be upset on their behalf(including them). So what's the problem?
Also, the reason "dictatorships do" some of the things they do is to mock or otherwise mimic accepted practices commonly practiced elsewhere. So again, it goes back to it's a valid process for normal governments to use as well. Just Dictatorships use them far more often, and are far less concerned about justice actually being served in favor of serving the interest of the dictator.
It simply needs compelling evidence produced in court for them to be found guilty.
There is question as to if he should have been tried under US law, but there is no question he carried arms and fought in Afghanistan in civilian clothing in violation of Australian Law and International law. He has admitted that in the past, and his diaries and letters home say so.
There's question's about his treatment while held by the US military, but the funny thing is: if the US military hadn't been prepared to pay the Afghani locals for people like Hicks he'd have not ended up in GB, he'd have just been shot by the local Afghani authorities. So, in a way, whatever treatment he got from the US was better than he would have got from the Afghani authorities.
In my mind, where the US military went wrong was trying to deal with him under US law. As soon as they had him and identified him as an Australian he should have been handed over to the Australian authorities to be tried under International law or Australian law - either way he'd have spent 10 years in prison for his actions. Which is just about what he got, in the end.
As soon as they had him and identified him as an Australian he should have been handed over to the Australian authorities to be tried under International law or Australian law - either way he'd have spent 10 years in prison for his actions. Which is just about what he got, in the end.
EXACTLY, and if had was not tortured during his imprisonment Justice would have both been served, and seen to have been served.
EXACTLY, and if had was not tortured during his imprisonment Justice would have both been served, and seen to have been served.
The normal routines of prisons often result in sleep deprivation, but there is no creditable evidence he was tortured, just his claims at a time it looked like it would likely help to get him released.
I don't know anything about the Hicks case in particular, but under the Geneva convention non-uniformed combatants in a war zone have zero protection and can even be subject to summary execution on the battlefield.
An exception to that, civilians who defend themselves during wartime are exempted from prosecution (by those agreeing to the Geneva conventions), so civilians are protected, while foreign, non-uniformed combatants are not. In short, during war time, independent contractors aren't appreciated (except in America, under the Bush administration, where companies like Blackwater became our primary military strategy, with horrendous (from a PR perspective) results.
I would like to have a polite informed discussion about David Hicks.
The wikipedia article on him has a fairly good account.
https://en.wikipedia.org/wiki/David_Hicks
I would like to have a polite informed discussion about David Hicks
There is no doubt at all that he broke the Australian law on being a mercenary, there's evidence in his own diaries and photos to show that. There's no doubt he was dressed as a local civilian and bore arms in a combat zone in Afghanistan, he admited that. That puts him in the wrong under Australian and International Law.
The problems come from the fact he was captured by Afghanistan locals and sold to the US, and then was being dealt with by the US military at a time when what to be done was prisoners was being decided on political grounds and not facts alone.
He should have been either dealt with by the local Afghanistan authorities or immediately passed along to the Australian authorities for handling. In the first case he would likely have been shot, in the second he would have been given time in prison.
Where the case against him ran into legal problems is the people who actually arrested him were not identified and not able to be called for questioning.
In short he was guilty, but wasn't convicted due to a technicality. The political decision was to release him. However, it's likely if he'd been brought to trial under the Australian Laws on being a mercenary he would have been put in prison for about the time he was in US custody, so many viewed it as him served a suitable sentence.
I would question only two points in your post.
1. I have a clear (but not necessarily reliable) of the Australian Attorney-General stating the Government would not insist our citizen be returned to Australia (which I'm sure is routine practice among Western allies if offenses are military, not civilian) BECAUSE there was no Law he could be prosecuted under.
2. If there was no torture, I agree the length of sentence (and subsequent restrictions) would be suitable, but the torture made it a War Crime.
Whether he could have been convicted in Australia or not (as your argument is very convincing), the Australian Government should have insisted he be returned to Australia. Even if it WAS impossible/impractical to convict him if he was returned, the only legal (and moral) option was STILL to insist he be returned and to release him. The 'Bottom of the Harbour' bastards could not be jailed because their "crimes" were retrospective, Hicks has only been convicted of things that became "crimes" retrospectively.
At the very least, the Australian Government should have insisted he had access to the American judicial system. That makes hem guilty of War Crime in my opinion.
Australian Attorney-General stating the Government would not insist our citizen be returned to Australia
It has never been the policy of any Australian government or political party to insist people arrested overseas be returned to Australia for trial under Australian law instead of the law of the country they were arrested in. So there never was a real question on the Australian government seeking to take over control. Where a foreign government makes an arrest and then chooses to hand them over to the Australian government (as what eventually happened here) is a different situation.
As to be tried here, there was a huge kerfuffle about mercenaries in Africa in the 1970s and the Commonwealth government passed a law against Australian Citizens fighting overseas as mercenaries or in over countries forces, with some exceptions for those with dual nationality in the regular military of their other nationality - Foreign Incursions Act.
As to actions being retrospective as regards to law, that's a case where the actions took place prior to the law being enacted and made active. A basic is you can only make laws applicable to people who break them after they're enacted - which is part of my current issue with the NSW Gestapo in Albury.
edit to add: I forgot to mention the lack of creditable evidence he was tortured. He makes many claims, yet the proven cases of torture at GB revolve around waterboarding and he makes no claims of having been dealt with like that. Personally, if Hicks told me it was daylight I'd look at the sky to check. The timing and types of his claims are just too pat for being used to help get him to be released.
One core aspect of the whole thing with Hicks many people ignore or gloss over is: He chose to go overseas to train with terrorists and learn many ways of how to kill people the terrorists want him to kill with a total disregard of the laws of all the countries involved. Then he went and participated as an armed terrorist dressed as a local civilian so he could perform his terrorist role better. He's admitted all this, and their are documents he created to prove it - diaries, letter, photos. In short, he chose to be a terrorist as is damn lucky the Afghani who captured him didn't just shoot him on the spot.
2. If there was no torture, I agree the length of sentence (and subsequent restrictions) would be suitable, but the torture made it a War Crime.
No it wouldn't.
General treaties prohibiting torture are not part of the rules of war and violations of them are not war crimes.
The rules of war come from the Geneva Convention, which has rules prohibiting torturing prisoners of war or trying them as criminals.
However, an illegal combatant (non-uniformed) does not qualify as a prisoner of war.
In fact, the use of non-uniformed combatants is itself prohibited by the Geneva convention, so Hicks himself is a war criminal.
It has never been the policy of any Australian government or political party to insist people arrested overseas be returned to Australia for trial under Australian law instead of the law of the country they were arrested in.
My assumption has been that was always the policy - BUT for military offenses, on the field of battle, for citizens of allies fighting in the same war ... but a passing thought ... that was not so for Breaker Morant?
* * *
To EB: You see no evidence of torture. The possibility he might not have been has never occurred to me, and still hasn't.
So, we can agree to disagree, and drop that one now?
To DS: I have no doubts your descriptions of the laws are correct. I would reword previous statements to include "... whatever International Laws prohibit torture of prisoners captured on a battle field ..."
* * *
I thank you both for this civilised exchange. I am basically in agreement with you about the facts, and not very great differences in my opinions about the morality of actions. I do agree that nothing he says can be relied upon, but consider that because every statement he has made publicly was "under duress".
* * *
I have one last legal question. Although there have been many 'dark pages' in my fair land's history, this is the one that truly stands out and makes me feel ashamed to be an Australian ...
My understanding is that after Hicks was taken from Asia to North America, there was not one moment when an appeal could have been lodged on his behalf with the Supreme Court of America. I do not believe any Australian government or political party has ever considered acceptable for an Australian citizen to be held prisoner, indefinitely, with no access to the civilian judicial system of that country.
I agree with the opinion of Mary Gaudron, a retired Justice of the High Court of Australia, as stated in link to SMH article.
http://www.smh.com.au/news/world/hicks-trial-an-abuse-of-law/2005/08/04/1122748728658.html
* * *
With respect to you both, I trust the legal opinion of a former Justice of the High Court of Australia that either of yours, and I am sure she would have known ALL relevant facts before making a public statement like that!
My understanding is that after Hicks was taken from Asia to North America, there was not one moment when an appeal could have been lodged on his behalf with the Supreme Court of America.
This is incorrect.
SCOTUS (Supreme Court Of The United States) heard a number of appeals by/on behalf of Guantanamo Bay prisoners. The court rejected the the argument that they lacked jurisdiction.
https://en.wikipedia.org/wiki/Habeas_corpus_petitions_of_Guantanamo_Bay_detainees
I agree with the opinion of Mary Gaudron, a retired Justice of the High Court of Australia, as stated in link to SMH article.
And she would be right if Hicks had in fact been tried under the military commission established unilaterally by Bush.
However, her comments were made in 2005 and Hicks wasn't actually tried until 2006.
Before Hicks was tried, the original commission created by Bush was ruled unconstitutional by a US Federal Court (not the Hicks case). A second military commission was created by an act of Congress in 2006 and it was under that commission that Hicks was ultimately tried.
Hicks was the first prisoner tried under the 2006 act.
His original conviction by the commission was overturned in 2015.
that was not so for Breaker Morant?
Actually, he was a member of the military under military command and had transferred to a non Australian Unit. He was tried by a military tribunal for war crimes.
Thanks. 'Non-Australian Unit' makes a difference. I thought higher up British commanders executed him for actions while leading an Australian Unit.
To DS: I have no doubts your descriptions of the laws are correct. I would reword previous statements to include "... whatever International Laws prohibit torture of prisoners captured on a battle field ..."
The only laws I'm aware of there are the Geneva Conventions. They're also rather explicit about only protecting uniformed troops that readily identifies that nation/force they are in service to.
Anyone else (not in uniform) who takes up arms is a (potential) war criminal, and the "rules of war" do not address how to handle them.
And yes, this means the "Hollywood Black Op" scenario where they remove all national identifications from their uniform, and so forth. Then go into enemy territory to "perform an operation" in such a manner. If caught, they have basically nothing protecting them in terms of the Geneva Convention itself. The only thing that might save them at that point is how willing the opposing force is to "play ball" with the U.S. (And that our government will own up to it in some form to get them out)
Anyone else (not in uniform) who takes up arms is a (potential) war criminal, and the "rules of war" do not address how to handle them.
Back when, such a person was labeled a spy. It was generally accepted that anyone capturing a spy could do almost anything to them including executing them.
And yes, this means the "Hollywood Black Op" scenario where they remove all national identifications from their uniform, and so forth.
Great for movies, but extremely unlikely in real life. The only reason it would be done would be to provide the government with the grounds of reasonable deniability and such an operation is really a suicide mission if caught. Which is why it's unlikely to happen in real life.
My last post on this subject ...
Quote from Wiki
"In October 2012 the United States Court of Appeals ruled that the charge under which Hicks had been convicted was invalid because the law did not exist at the time of the alleged offence, and it could not be applied retroactively."
Do you really think they would have tried to get him with a retrospective law if he could have been convicted under an existing law?
If the society objects to the actions of an individual, it may pass laws making any future similar actions criminal offenses, but you have to let the first one go if there is any respect for "Rule of Law".
The fact that morally he did deserve to spend a long time in prison is irrelevant. It's insane to destroy your society so one evil person can be punished!
The fact that morally he did deserve to spend a long time in prison is irrelevant. It's insane to destroy your society so one evil person can be punished!
I don't disagree, what was done to Hicks was unjust, but there is no basis to call it a "war crime".
Do you really think they would have tried to get him with a retrospective law if he could have been convicted under an existing law?
That is under U.S. law. Hicks was an Aussie, and if he had been tried under their laws and convicted, he likely would have served 10 years. Which is about how long the Americans held him.
if he had been tried under their laws and convicted, he likely would have served 10 years.
How can you possibly believe that?
EB mentioned a preexisting Mercenaries Law, but it COULD NOT be applied to him - probably because he was never a mercenary.
D'ya think the Australian Government would have wanted anything more than bringing him back to Australia and convicting him under Australian Law?
EB mentioned a preexisting Mercenaries Law, but it COULD NOT be applied to him - probably because he was never a mercenary.
The Crimes Foreign Incursions and Recruitment Act of 1978
6 Incursions into foreign States with intention of engaging in hostile activities
(1) A person shall not:
(a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or
(b) engage in a hostile activity in a foreign State.
Penalty: Imprisonment for 20 years.
There's also some nice wording about terrorist organisations too.
..........
NB: repealed in 2014 and replaced with:
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
D'ya think the Australian Government would have wanted anything more than bringing him back to Australia and convicting him under Australian Law?
Only if they could do so legally, and not have too big a political backlash about it.
The only reason I can imagine why the politicians didn't do it was their lawyers told them it wouldn't work.
I thank you for all of the information, but I cannot see any possibility of us agreeing on this one.
Can we drop it now, please?
Can we drop it now, please?
Just a last comment on the political aspects of asking other governments to hand over people they've arrested. If they do it in one case, then they open the floodgates to be pressured to do it in all cases where Australians are arrested overseas, and then you have a huge political issue at home and abroad every single time an Australian is arrested for anything. That's why both major parties have always had a hands off policy on the subject of people arrested overseas. It's different when the foreign government offer to send them back, as has happened a few times, and did eventually happen with Hicks.
I have always assumed one ally in a war would hand over prisoners who are citizens of another ally when there is no reason not to, to avoid opening up any floodgates. He was held for military offenses, not civilian, not captured in the US, or by the US; no specific offenses against the US. What was their claim to keep him? We bought him?
I have always assumed one ally in a war would hand over prisoners who are citizens of another ally when there is no reason not to, to avoid opening up any floodgates.
Hand over rarely happens, because it leads to precedents and confusion about who is in charge. Take Breaker Morant, the South African forces were allies of Australia and the British when Morant transferred to the Bush Veldt Volunteers, he became part of their military structure and dealt with by the British commanders put in charge of the force.
With regards to Hicks he was voluntarily passed over to the US by the Afghani forces, that's the legal aspect of them getting paid for him. That made him a US prisoner because the US were in charge of that area and the force Hicks was handed to. Thus they took responsibility for him.
The only time allies consider handing over people they arrested is when it's a member of the military in the uniform of an ally, then they pass them over to their home unit for punishment. Thus US MPs arresting drunk Aussie troops hand them to the nearest Aussie commander, and the same in reverse. That's all covered under the Military laws. In this example if the Aussie was on detached duty with the Brits, then they get handed to the Brit commander, because they go to their current commander.
Edit to add: The US claim to keep him was he was captured in the area under their control.
personally, I think they should have let the Afghanis deal with him, and everyone else they captured. Would have saved everyone a lot of trouble.
David Hicks, guilty of nothing more than stupidity and idealism
Actually, Hicks, by his own admissions violated Australian law and International law. The law against Australians taking up arms as mercenaries was put in place before he was born. Under International law it's unlawful for a civilian to take up arms and use arms except in defence of their own country. Note: If in the distinctive uniform of a recognised military force they aren't seen as a civilian. Hicks was in local civilian clothes and not part of any recognised military force.
BTW: Please check why you double post almost every message.
BTW: Please check why you double post almost every message.
That typically happens to me whenever my system freezes, a fairly rare occurrence after I've run too many memory intensive program (like Photoshop, Illustrator and/or Dreamweaver, none of which clean up after themselves by releasing resources starving other programs of what they need to run).
Chances are, he's got an older machine and is asking it to do too much. He either needs to shut down certain programs or reboot to clear out the resources.
