CCPR/C/115/D/2005/2010
State party’s further submission
115. Australia reiterates that incitement is not sufficient to give rise to State responsibility
if it is not accompanied by concrete support or does not involve direction and control, and
rejects the claim that statements by Australian officials amount to aid or assistance. Even if
it were the case, the author has not demonstrated how any of the actions that he refers to
constitute “concrete support”. The actions described by the author, such as gathering
evidence, conducting interviews and cooperating with foreign officials, are preliminary to a
trial and have no bearing on the way in which a trial is conducted in a foreign State. The
author alleged that his trial did not meet the minimum guarantees of a fair trial as a result of
a range of procedural and institutional defects. However, Australia had no control over
those.
(f)
Claims under articles 2 and 7 regarding torture and ill-treatment
State party’s observations
116. Regarding the author’s claim that Australia failed to investigate his allegations of
torture while in the custody of the United States, Australia refers to its arguments regarding
inadmissibility and adds that the claim does not concern an obligation set forth in the
Covenant. It recalls the 21 visits that Australian officials paid to the author during the time
he spent at Guantanamo Bay and on board the USS Peleliu.
117. Australian officials did not at any stage witness or participate in any mistreatment of
the author, who made no allegation of mistreatment during interviews conducted by
Australian officials. From December 2001 to May 2003, Australian officials visited the
author on five occasions, but it was not until the fifth visit in May 2003 that he alleged
having been mistreated. In particular, he said that he had been beaten while in custody in
Afghanistan, but did not provide details. On 20 May 2004, in response to media reports
about his mistreatment, Australia formally requested the United States Department of
Defense to conduct an investigation into the treatment of the author, including during the
period prior to his detention at Guantanamo Bay. The investigation revealed no information
that substantiated the author’s allegations of mistreatment.
118. The author was not mentioned in the reports of the International Committee of the
Red Cross on Guantanamo Bay, as the Australian Senate was informed on 3 June 2004. In
July 2005, a second investigation of the author’s complaints of mistreatment was carried
out by the United States Naval Criminal Investigative Service, which found them
unsubstantiated.
119. Complaints made by the author during visits of Australian officials regarding food, a
lack of exercise, medical conditions and other matters, such as access to reading material,
were raised with the camp authorities at Guantanamo Bay or, where appropriate, with the
United States Department of Defense.
Author’s comments
120. The author disagrees with the interpretation given by Australia of articles 2 and 7 of
the Covenant and reiterates his initial claims. He says, inter alia, that he was never provided
with a copy of either of the reports on the two United States investigations. As a result, it is
impossible for him or the Committee to be satisfied that those investigations were
comprehensive, impartial and credible.
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