119. In the case of Elmi v Australia, the Committee had to decide whether the forced return of a Somali national belonging to the Shikal clan to Somalia, where he was at a substantial risk of being subjected to torture by the ruling Hawiye clan, constituted a violation of the prohibition of refoulement pursuant to article 3. The Committee found a violation of article 3 and explicitly rejected the argument of the Australian Government that the acts of torture the applicant feared he would be subjected to in Somalia would not fall within the definition of torture set out in article 1: …” (original emphasis, footnotes omitted) Article 7(2)(i), ICC Statute, to which Nowak and McArthur refer, provides: “‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts so those persons, with the intention of removing them from the protection of the law for a prolonged period of time.” 32. On its face, this passage from Nowak and McArthur strongly supports the prosecution’s submission. Mr Powles, however, criticises Nowak and McArthur’s statement that the term “other person acting in an official capacity” was inserted in order to meet the concerns of the Federal Republic of Germany that certain nonState actors whose authority is comparable to governmental authority should also be held accountable. He points to the sequence in which comments were submitted, which seems to show that the Austrian amendment was proposed before the German observation was made. On the information presently available to us, it can nevertheless be said that the German observation was under consideration by the Working Group before the amendment proposed by Austria was agreed and the sequence does not necessarily mean that the amendment does not reflect Germany’s concern. (In this regard, Mr Perry, on behalf of the prosecution, also draws our attention to the fact that section 312a of the Austrian Criminal Code provides that “public officials within the meaning of this provision shall also be those who, in the event of the absence or default of the public authorities, are effectively acting as officials”. The significance of this as an aid to interpreting article 1, UNCAT is, however, much reduced by the fact that article 1(2) provides that article 1 is without prejudice to any national legislation which does or may contain provisions of wider application. In other words, UNCAT does not prohibit gold plating by contracting States. Furthermore, although Austria ratified UNCAT in 1987 this amendment to the Austrian Criminal Code was not introduced until 2013.) In the result, therefore, the commentary by Nowak and McArthur and the legislative history to which they Page 16