CCPR/C/115/D/2005/2010
inference that the author tries to draw, his transfer to Australia did not arise as an issue for
the first time when the agreement was concluded. The question of the transfer had been a
matter in the public domain well before the agreement was concluded.
Author’s comments
106. The author reiterates his claims and indicates that any “aid or assistance” attracts
responsibility. If the aid or assistance is of only minor significance, then the State’s
relatively low level of contribution to the wrong will be proportionately reflected in the
remedial consequences. Thus, reparations will be adjusted accordingly: the quantum of
compensation will be small or other measures of satisfaction may suffice.
107. Australia has not provided any evidence of the precise content of its discussions with
the United States authorities in connection with the agreement, such as a transcript or
meeting records. Since the plea agreement did ultimately include provisions for the author’s
cooperation with Australian law enforcement officials, the influence of Australia must have
been decisive. Furthermore, it is possible for one State to aid or assist another in
formulating the content of a plea agreement even though the first State is not a party to the
negotiation. In fact, Australia conceded that it was involved in such negotiations behind the
scenes.
108. Moreover, the offer of immediate return to Australia after the author had been
detained for almost six years at Guantanamo Bay plainly operated as an improper
inducement to the author to plead guilty, so as to escape his illegal detention for the “lesser
evil”. The aid or assistance of Australia in the formulation of the agreement was therefore
significant or, at the very least, unlawful.
State party’s further submission
109. Australia rejects the author’s argument that any aid or assistance to another State
attracts State responsibility, as it has no basis in legal authority and is incompatible with the
commentary of the International Law Commission on the draft articles on State
responsibility. Australia also rejects the author’s comment that the offer of immediate
return to Australia operated as improper inducement to the author to plead guilty. The fact
that the author entered into a plea agreement because he perceived prison conditions in
Australia to be more favourable cannot be held to be the fault of the Government of
Australia, let alone an improper inducement to the author to plead guilty.
(d)
Claims under articles 7, 9 and 10 regarding the participation of Australia in the detention,
interrogation and treatment of the author at Guantanamo Bay
State party’s observations
110. Australia rejects the author’s claim that, by interviewing him while he was detained
by the United States, Australia “aided or assisted” the treatment by the United States. The
term “aid or assist” in article 16 must comprehend conduct of a State that makes a
significant contribution to the performance of an internationally wrongful act by another
State. The author has failed to demonstrate that such conduct took place and Australia does
not accept that the interviewing of the author by Australian authorities encouraged and
supported his alleged unlawful treatment. The interviews were conducted for appropriate
Australian law enforcement and intelligence purposes, and the author made no allegation of
mistreatment during those interviews. Even if the Committee were to take the view that the
interviews encouraged and supported the alleged unlawful treatment of the author by the
United States, such purported encouragement and support would not rise to the level of
aiding or assisting, as required in article 16.
34
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