CCPR/C/115/D/2005/2010 Author’s comments 111. The author disagrees with the State party’s legal characterization of its conduct. He had no objection to, for instance, consular visits for the purpose of his welfare. However, Australia took advantage of the basis and conditions of his confinement to pursue its own law enforcement ends, in the process legitimizing the unlawful acts committed by the United States. Such assistance was thus “significant”. Interviewing the author in such circumstances cannot be described as for “appropriate” law enforcement and intelligence purposes. (e) Claims under article 14 regarding unfair trial State party’s observations 112. Australia refers to the author’s reliance on article 16 of the draft articles on State responsibility of the International Law Commission in claiming that it unlawfully aided and assisted his alleged unfair trial. In advancing that claim, the author states that senior Australian government officials repeatedly expressed the approval of Australia of the military commission system to which he was subjected. However, the author fails to demonstrate how the alleged condoning and encouraging of the trial system by Australia rose to the level of aiding or assisting the United States, as required in article 16. In its commentary on the draft articles, the International Law Commission states that “the incitement of wrongful conduct is generally not regarded as sufficient to give rise to responsibility on the part of the inciting State, if it is not accompanied by concrete support or does not involve direction and control on the part of the inciting State”. Author’s comments 113. The author rejects the arguments of Australia and its interpretation of the commentary of the International Law Commission. There is no reason why incitement could not rise to the level of aid or assistance in an appropriate case. In its commentary, the International Law Commission suggests only that “generally” incitement is not regarded as attracting responsibility. There is no absolute exclusionary rule. Australian officials repeatedly expressed approval of the military commission system and condoned and encouraged it. As a result, Australia provided vital legal and diplomatic support to the United States in defending that system from international criticism. 114. Australia did in fact provide “concrete support” alongside its incitement. Law enforcement officers searched premises and seized evidence from the author’s family home in Adelaide, interrogated the author at Guantanamo Bay and cooperated with United States officials in the sharing of law enforcement and intelligence information. Such concrete support was given in the context of Australia publicly endorsing the author’s military commission trial. The endorsement of Australia of the military commissions may be seen as rendering aid or assistance in the context of breaching article 41 of the draft articles on State responsibility of the International Law Commission.11 In its commentary thereon, the International Law Commission mentions the prohibition of torture in that context. In that regard, the statements by Australia supporting the author’s unfair trial, which arguably amounts to a war crime, may violate the prohibition on recognizing as lawful a violation of a peremptory norm. 11 “No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40 [obligations arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation”. 35