Protocol. Those communications included and Garcia v Ecuador, EMEH v France Wilfred v Canada. The author relevantly claimed in his communication that his imprisonment in Australia was based on the United imposition of a retroactive offence upon him and States’s flowed directly from his alleged unfair and unlawful trial before a US military commission. It was thus not possible for the Committee to determine the lawfulness under article 9(1) of the Covenant of detention of the author without first reaching the view that Australia’s the United States breached the Covenant; the former depended on the latter. Australia considers that it is this inherent necessity of examining and reaching a view about the United conduct—not the fact that the author also complained about States’s Australia’s conduct—that the Committee should have concluded was the crucial factor in determining whether the claims in question the United States for the ‘concerned’ purposes of article 1 of the First Optional Protocol. Australia notes that, notwithstanding that the views do not cite specific Committee’s articles that it considers that the United States breached, the Committee patently did reach the view that the United States breached the Covenant. For example, the views describe the United States Military Commission proceedings as in which ‘proceedings the were and the sentence that the Commission defendant’s rights clearly violated’ imposed as from a flagrant denial of The Committee describes the ‘resulting justice’. measures Australia allegedly could have taken in respect of the United treatment States’s of the author (discussed above) as to remedy violations of including ‘measures intended the also state that February of the author’s rights’. They ‘the ruling dated 18 2015’ United States Court of Military Commission Review, setting aside the sentence, author’s as to the unfairness of the proceedings followed against [the author] and ‘leaves no doubt that the offence that had given rise to his conviction was retrospective’. Australia remains strongly of the view that the Committee should not have found the claims under article 9 of the Covenant to be admissible. author’s In addition—and without commenting on the correctness of the views Committee’s adverse to the United States (noting the United States was not accorded procedural fairness in relation to the Committee reaching adverse views regarding its conduct)—it appears to Australia that the Committee may have taken into account the
Protocol. Those communications included Garcia v Ecuador, EMEH v France and Wilfred v Canada. The author relevantly claimed in his communication that his imprisonment in Australia was based on the United States’s imposition of a retroactive offence upon him and flowed directly from his alleged unfair and unlawful trial before a US military commission. It was thus not possible for the Committee to determine the lawfulness under article 9(1) of the Covenant of Australia’s detention of the author without first reaching the view that the United States breached the Covenant; the former depended on the latter. Australia considers that it is this inherent necessity of examining and reaching a view about the United States’s conduct—not the fact that the author also complained about Australia’s conduct—that the Committee should have concluded was the crucial factor in determining whether the claims in question ‘concerned’ the United States for the purposes of article 1 of the First Optional Protocol. Australia notes that, notwithstanding that the Committee’s views do not cite specific articles that it considers that the United States breached, the Committee patently did reach the view that the United States breached the Covenant. For example, the views describe the United States Military Commission proceedings as ‘proceedings in which the defendant’s rights were clearly violated’ and the sentence that the Commission imposed as ‘resulting from a flagrant denial of justice’. The Committee describes the measures Australia allegedly could have taken in respect of the United States’s treatment of the author (discussed above) as including ‘measures intended to remedy violations of the author’s rights’. They also state that ‘the ruling dated 18 February 2015’ of the United States Court of Military Commission Review, setting aside the author’s sentence, ‘leaves no doubt as to the unfairness of the proceedings followed against [the author] and that the offence that had given rise to his conviction was retrospective’. Australia remains strongly of the view that the Committee should not have found the author’s claims under article 9 of the Covenant to be admissible. In addition—and without commenting on the correctness of the Committee’s views adverse to the United States (noting the United States was not accorded procedural fairness in relation to the Committee reaching adverse views regarding its conduct)—it appears to Australia that the Committee may have taken into account the
Hicks-v-Australia-Australian-Government-response.docx