Exchanging killers for peace in Afghanistan is wrong — and could have lasting consequences



Taliban prisoners preparing to leave a government prison in Kabul last month.
AFGHANISTAN NATIONAL SECURITY COUNCIL HANDOUT/EPA

Ben Saul, University of Sydney

An Afghan soldier convicted of murdering three Australian soldiers is among six high-value prisoners who have been flown to Qatar ahead of peace talks between the Taliban and Afghan government this weekend.

Hekmatullah has spent seven years in jail after killing the three soldiers he worked with in 2012 — Lance Corporal Stjepan Milosevic, Sapper James Martin and Private Robert Poate. He is one of the last remaining Taliban prisoners.

Both the Taliban and the United States have pressured the Afghan government to release all 5,000 Taliban prisoners it holds as part of their peace deal. In return, the Taliban pledged to release 1,000 members of the Afghan security forces.

Hekmatullah has been flown to Qatar ahead of the peace talks.
Twitter/AAP

The Afghan government was excluded from the original peace deal struck between the US and Taliban in February where the prisoner release was negotiated, but has since agreed to release the prisoners.

For a long time, the Afghan government vowed not to free 600 prisoners it considered too dangerous, including murderers and foreign fighters. Afghan President Ashraf Ghani called them a “danger” to the world.

But last month, an assembly of Afghan elders, community leaders and politicians called a “loya jirga” approved the release of the last 400 Taliban captives and hundreds have been set free.

Delegates at the loya jirga in Kabul last month.
Rahmat Gul/AP

Foreign governments’ objections to prisoner release

The release of prisoners who killed Westerners has been among the most contentious parts of the deal.

The Australian government, and the families of the three murdered Australian soldiers, have strenuously objected to the release of Hekmatullah.

Prime Minister Scott Morrison has raised the issue with US President Donald Trump in recent weeks, and Foreign Minister Marise Payne and Defence Minister Linda Reynolds reiterated this position in a statement today:

The Australian government’s long-standing position is that Hekmatullah should serve a full custodial sentence for the crimes for which he was convicted by an Afghan court, and that he should not be released as part of a prisoner amnesty.

France has similarly objected to the release of those prisoners who murdered its aid workers and soldiers.

The US has not publicly objected to the release of three prisoners who murdered Americans in so-called insider attacks, although it is reportedly exploring the possibility of release under house arrest.

US envoy Zalmay Khalilzad, left, and Mullah Abdul Ghani Baradar, the Taliban’s top political leader, signing the peace deal in February.
Hussein Sayed/AP

The importance of the rules of war

So far, the issue of freeing prisoners in Afghanistan has been largely treated as a political and security issue. There has been less attention given to the equally important question of law, justice and human rights.

It follows a regrettably common view that peace is necessary at any price, even if it means letting suspected or convicted war criminals go free, denying justice to their victims and violating international law by enabling killing with impunity.

It is no surprise that such a deal has been spruiked by Trump, who has pardoned US soldiers accused or convicted of war crimes, despite protests by US military commanders. Trump also this week imposed sanctions on senior officials of the International Criminal Court for investigating alleged US war crimes in Afghanistan.




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The rules of war, or international humanitarian law (as it is otherwise known), take a much more balanced and reasonable approach. These rules are also binding on Afghanistan, the US and Taliban alike.

Hekmatullah’s killing of three Australian soldiers was not a fair fight in the heat of combat between opposing forces under the law of war. It was treacherous and illegal because Hekmatullah was wearing an Afghan army uniform when he killed the Australian soldiers while they were resting at a patrol base in August 2012.

The families of the slain Australian soldiers firmly oppose Hekmatullah’s release.
DAVE HUNT/AAP

Hekmatullah says he was inspired to kill the soldiers after watching a Taliban video purporting to show US soldiers burning a Quran. He was later aided by the Taliban in his escape.

Through these actions, Hekmatullah violated the basic rules set forth by the Statute of the International Criminal Court, specifically

making improper use … of the military insignia and uniform of the enemy … resulting in death or serious personal injury

The law of war also acknowledges the granting of amnesty to ordinary fighters is an appropriate means to promote peace and reconciliation to end a civil war. But it does not permit amnesty for those who violate its basic rules, including those suspected or convicted of war crimes.

All countries have a legal duty to “respect and ensure respect” for international humanitarian law. Releasing prisoners, thus, is not purely a political question for the Afghan government to decide. It is also bound by international law and must respect it.

Australia has a right to “ensure respect” for the law by both Afghanistan and the US. Releasing Hekmatullah would arguably be a violation of international law by Afghanistan, aided by the US.




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Afghanistan’s peace process is stalled. Can the Taliban be trusted to hold up their end of the deal?


Peace without justice can cause long-term problems

The US, Taliban and Afghan government all know this, but are choosing to sacrifice justice for the dream of peace. All sides are exhausted by the two-decade military stalemate and are understandably desperate for a way out.

But numerous conflicts in recent decades — from Latin American to Africa to the Balkans — show that peace without justice is almost always a delusion.

Any immediate gains are usually undermined by the mid- to long-term insecurity that results from giving impunity to killers. It contaminates the integrity and stability of political systems. It undermines the legal system and subordinates the rule of law and human rights to raw politics.




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It also allows victims’ grievances to fester, which is especially dangerous in places like Afghanistan where “blood feuds” stoke the desire for vengeance.

In the case of Afghanistan, most seasoned observers also know that peace with the Taliban may well be a naïve fantasy. Violence has increased, not decreased, since the peace deal.

While it has made some tactical concessions for peace, the Taliban’s ideological commitment to extreme religious rule, and its disdain for democracy and human rights, is unswerving.

The Taliban has played the Americans brilliantly, knowing the US no longer has the appetite for war. Releasing murderers could be all for nothing.The Conversation

Ben Saul, Professor of International Law, Sydney Centre for International Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

No rehab and little chance of appeal for the Christchurch terrorist jailed for life without parole


Kris Gledhill, Auckland University of Technology

There was public celebration of the sentence of life without parole for the Christchurch terrorist Brenton Tarrant who admitted murdering 51 people and attempting to murder 40 others.

Aged 29, the convicted mass murderer and terrorist is still relatively young, meaning he could well spend several decades in custody.




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A life sentence, as with a preventive detention sentence, normally has two elements. The first is the period that must be served for punishment purposes before an application can be made for parole. The second is based on risk and is assessed by the Parole Board: only if a life-sentence prisoner is an acceptably low risk will they be released during this second period.

In short, life can always mean life. But usually, because risk is reduced, an indeterminate sentence is the period set for punishment plus any extra period when the risk remains too high. A whole life sentence means the second stage is never reached.

Is this problematic from the perspective of human rights? This was an argument addressed to the judge.

Are human rights an issue?

The guiding principle behind how we deal with prisoners is the need to attempt rehabilitation.

But if there is no incentive to rehabilitate from the prisoner’s perspective, they are effectively warehoused for the rest of their life. This means, some might argue, the detention risks becoming arbitrary. In addition, it could be said to be inhuman and degrading not to allow some hope for the inmate.

Some nations, such as Norway, do not permit life imprisonment precisely because it is seen to breach those standards.

The world’s busiest human rights court, the European Court of Human Rights, has added its support to the view that prisoners must be left with some mechanism to ensure hope is not extinguished.

But the cases before the European Court have not involved an atrocity of this nature. It may be that the judges of that court would reach a different conclusion based on the extreme facts of the Christchurch mosque attacks.

There is a powerful argument that the importance of protecting the human rights of victims and potential future victims requires denunciation through the most severe sentence available in the hope that others will not follow in the defendant’s perverted footsteps.

Why an appeal is unlikely

In the event of an appeal, our Court of Appeal could consider whether there must be some prospect of release to encourage rehabilitation.

There is also another significant point of law it could consider.

It is normal that guilty pleas can receive credit. The sentencing hearing necessarily brought back the horrors of the events in Christchurch last March. But how much worse would it have been if there had been a trial and the victims and the wider community had had to relive every shot in detail?

Saving that trauma can be reflected in a reduced sentence. The only reduction from a whole life sentence is to allow an application for parole, even at some far-distant time.

But in his sentencing remarks at the High Court in Christchurch, Justice Cameron Mander said the relatively late plea of guilty, in March this year, did not displace the need for a whole life sentence. He added:

There is little to indicate that your pleas denote any deeply held sense of remorse for your victims or that you are particularly distressed at having caused such terrible grief.

He attached much more weight to another principle of sentencing, which is that the maximum sentence should be used for the worst possible example of offending.

The depravity of this atrocity qualified for designation as the worst possible example of offending. A terrorist mass murder is clearly the sort of offending that should lead to life without parole, the most severe sentence in our justice system.

Notably, the lawyer for the defendant accepted life without parole was appropriate. The defendant represented himself during the hearing but made no interventions.




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The judge had sensibly appointed a lawyer to be available should the defendant change his mind and wish representation. He did so, but only to have this stand-by counsel accept that the maximum available sentence was proper.

Lawyers are bound by the instructions of their clients, so the defence lawyer was unable to put any counter arguments before the judge. Those instructions are significant in that an appeal will occur only if the defendant wishes to appeal. The defendant’s surprising acceptance of the sentence suggests he will not appeal.

So who made the counter arguments? The judge ensured fairness in the process by having another lawyer, Kerry Cook, make counter submissions on the law. This lawyer did not represent the defendant but appeared as an amicus curiae, Latin for “friend of the court”.

Given all of this, the only mechanism to avoid death in prison for New Zealand’s only convicted terrorist is release on compassionate grounds. The Parole Act 2002 allows this only if someone is seriously ill and unlikely to recover. Even then, it is for the Parole Board’s discretion.

As it stands, life in this case does mean life.The Conversation

Kris Gledhill, Professor of Law, Auckland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

In COVID’s shadow, global terrorism goes quiet. But we have seen this before, and should be wary



Alaa Al-Marjani/AAP

Greg Barton, Deakin University

Have we flattened the curve of global terrorism? In our COVID-19-obsessed news cycle stories about terrorism and terrorist attacks have largely disappeared. We now, though, understand a little more about how pandemics work.

And ironically, long before the current pandemic, the language of epidemiology proved helpful in understanding by analogy the way in which terrorism works as a phenomenon that depends on social contact and exchange, and expands rapidly in an opportunistic fashion when defences are lowered.

Terrorism goes quiet – but we’ve seen this before

In this pandemic year, it appears one piece of good news is that the curve of international terrorist attacks has indeed been flattened. Having lost its physical caliphate, Islamic State also appears to have lost its capacity, if not its willingness, to launch attacks around the world well beyond conflict zones.

We have seen this happen before. The September 11 attacks in 2001 were followed by a wave of attacks around the world. Bali in October 2002, Riyadh, Casablanca, Jakarta and Istanbul in 2003, Madrid in March 2004, followed by Khobar in May, then London in July 2005 and Bali in October, not to mention numerous other attacks in the Middle East and West Asia.

Since 2005, with the exception of the Charlie Hebdo shootings in Paris in January 2015, al-Qaeda has been prevented from launching any major attacks in western capitals.

Candelit vigil for victims of the Charlie Hebdo attack, spelling 'Je suis Charlie'.
The 2015 attack on the Charlie Hebdo office in Paris left 12 people dead.
Ian Langsdon/AAP

The September 11 attacks precipitated enormous investment in police counterterrorism capacity around the world, particularly in intelligence. The result has been that al-Qaeda has struggled to put together large-scale coordinated attacks in Western capitals without being detected and stopped.

Then in 2013, Islamic State emerged. This brought a new wave of attacks from 2014 in cities around the world, outside of conflict zones in Syria, Iraq, Afghanistan, Somalia and Nigeria.

This wave of IS international terror attacks now appears to have reached an end. The hopeful rhetoric of the collapse of the IS caliphate leading to an end of the global campaign of terror attacks appears to have been borne out. Although, as the sophisticated and coordinated suicide bombings in Colombo in Easter 2019 reminded us, further attacks by previously unknown cells cannot ever be ruled out.

While it’s tempting to conclude that the ending of the current wave of international terrorist attacks by IS is due largely to the ending of the physical caliphate in Syria and Iraq, and a concomitant collapse of capacity, the reality is more complex. Just as the wave of al-Qaeda attacks in the first half of the 2000s was curtailed primarily by massive investments in counterterrorism, so too it appears to be the case with IS international terror plots in the second half of this decade.




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The 2019 attacks in Sri Lanka illustrate dramatically what happens when there is a failure of intelligence, whether due to capacity or, as appears to be the case in Sri Lanka, a lack of political will. The rise of IS in 2013-14 should not have caught us by surprise, but it did, and in 2014 and 2015 we were scrambling to get up to speed with the intelligence challenge.

Epidemiology of terror

The parallels with the epidemiology of viruses are striking. Reasoning by analogy is imperfect, but it can be a powerful way of prompting reflection. The importance of this cannot be underestimated as intelligence failures in counterterrorism, like poor political responses to pandemics, are in large part failures of imagination.

We don’t see what we don’t want to see, and we set ourselves up to become victims of our own wishful thinking. So, with two waves of international terrorist attacks over the past two decades largely brought under control, what can we say about the underlying threat of global terrorism?

Taliban prisoners looking through a small window.
When it comes to terrorism, we don’t see what we don’t want to see.
Rahmat Gul/AAP

There are four key lessons we need to learn.

First, we are ultimately seeking to counter the viral spread of ideas and narratives embodied in social networks and spread person-to-person through relationships, whether in person or online. Effective policing and intelligence built on strong community relations can dramatically limit the likelihood of terrorist networks successfully executing large-scale attacks. Effective intelligence can also go a long way to diminishing the frequency and intensity of lone-actor attacks. But this sort of intelligence is even more dependent on strong community relations, built on trust that emboldens people to speak out.

Second, terrorist movements, being opportunistic and parasitic, achieve potency in inverse relation to the level of good governance. In other words, as good governance breaks down, terrorist movements find opportunity to embed themselves. In failing states, the capacity of the state to protect its citizens, and the trust between citizen and authorities, provides ample opportunities for terrorist groups to exploit grievances and needs. This is the reason around 75% of all deaths due to terrorist activity in recent years have occurred in just five nations: Syria, Iran, Afghanistan, Pakistan, and Nigeria (followed by Somalia, Libya, and Yemen).

The third lesson is directly linked to state failure, and is that military methods dramatically overpromise and under-deliver when it comes to countering terrorism. In fact, more than that, the use of military force tends to generate more problems than it solves. Nothing illustrates this more clearly than what has been so wrongly framed as the Global War on Terror.

Afghan security officials standing guard on a road.
Military methods under-deliver when it comes to tackling terrorism.
Watan Yar/AAP

Beginning in October 2001 in the immediate wake of the September 11 attacks, the war on terror began with a barrage of attacks on al-Qaeda positions in Afghanistan. It was spurred by understandable anger, but it led to two decades of tremendously expensive military campaigns they have completely failed to deliver the hoped-for end in terrorism to justify the massive toll of violence and loss of life.

The military campaign in Afghanistan began, and has continued for almost 19 years, without any strategic endpoints being defined and indeed with no real strategy vision at all. After almost two decades of continuous conflict, any American administration would understandably want to end the military campaign and withdraw.

Obama talked of doing this but was unable to do so. Trump campaigned on it as one of the few consistent features of his foreign policy thinking. Hence the current negotiations to dramatically reduce American troop numbers, and in the process trigger a reduction in allied coalition troops while releasing thousands of detained militants in response to poorly defined and completely un-guaranteed promises of a reduction in violence by the Taliban.

This is America’s way of ending decades of stalemate in which it is has proven impossible to defeat the Taliban, which even now controls almost one half of Afghanistan. But even as the peace negotiations have been going on the violence has continued unabated. The only reason for withdrawing and allowing the Taliban to formally take a part in governing Afghanistan is fatigue.

Not just Afghanistan

If the Taliban and al-Qaeda in Afghanistan were the main story, the situation would already be far more dire then we would care to accept. But the problem is not limited to Afghanistan and West Asia. The invasion of Iraq in 2003 by the “coalition of the willing” was justified largely on the grounds it was necessary to stop al-Qaeda from establishing a presence in Iraq. It achieved, of course, the exact opposite.

Al-Qaeda had little, if any, presence in Iraq prior to the invasion. But the ensuring collapse of not just the regime of Saddam Hussein but the dismantling of the Baath party and the Iraqi military, led largely by a Sunni minority in a Shia majority country, created perfect storm conditions for multiple Sunni insurgencies.

These in turn came to be dominated by the group that styled itself first as Al Qaeda in Iraq, then as the Islamic State in Iraq, and then as the Islamic state in Iraq and Syria. This powerful insurgency was almost completely destroyed in the late 2000s when Sunni tribes were paid and equipped to fight the al-Qaeda insurgency.

Staute of Saddam Hussein being toppled in 2003.
The 2003 invasion of Iraq was supposed to stop al-Qaeda.
Jerome Delay/AAP

The toxic sectarian politics of Iraq, followed by the withdrawal of US troops at the end of 2011, coinciding with the outbreak of civil war in Syria, saw the almost extinguished insurgency quickly rebuild. We only really began to pay attention when IS led a blitzkrieg across northern Iraq, seized Mosul, and declared a caliphate in June 2014.

Defeating this quasi-state took years of extraordinarily costly military engagement. But even as IS was deprived of the last of its safe havens on the ground, analysts were warning it continued to have tens of thousands of insurgent militants in Syria and northern Iraq and was successfully returning to its earlier mode of insurgency.




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As the Iraqi security forces have been forced to pull back in the face of a steadily building COVID-19 pandemic, there are signs the IS insurgent forces have continued to seize the spaces left open to them. Even without the pandemic, the insurgency was always going to steadily build strength, but the events of 2020 have provided it with fresh opportunities.

The fourth and final lesson we need to come to terms with is that we are dealing with a viral movement of ideas embodied in social networks. We are not dealing with a singular unchanging enemy but rather an amorphous, agile, threat able to constantly evolve and adapt itself to circumstances.

Al-Qaeda and IS share a common set of ideas built around Salafi-jihadi violent extremism. But this is not the only violent extremism we have to worry about.

In America today, as has been the case for more than a decade, the prime terrorist threat comes from far-right violent extremism rather than from Salafi-jihadi extremism. The same is not true in Australia, although ASIO and our police forces have been warning us far-right extremism represents an emerging secondary threat.

But the potent violence of an Australian far-right terrorist in the attack in Christchurch in March 2019 serves to remind us this form of violent extremism, feeding on toxic identity politics and hate, represents a growing threat in our southern hemisphere.




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Fighting the terrorist pandemic

In this year in which we have been, understandably, so preoccupied with the coronavirus pandemic, another pandemic has been continuing unabated. It is true we have successfully dealt with two waves of global terrorist attacks over the past two decades, but we have not dealt successfully the underlying source of infections.

In fact, we have contributed, through military campaigns, to weakening the body politic of host countries in which groups like al-Qaeda, IS and other violent extremist groups have a parasitic presence.

We now need to face the inconvenient truth that toxic identity politics and the tribal dynamics of hate have infected western democracies. Limiting the scope for terrorist attacks is difficult. Eliminating the viral spread of hateful extremism is much harder, but ultimately even more important.The Conversation

Greg Barton, Chair in Global Islamic Politics, Alfred Deakin Institute for Citizenship and Globalisation, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australia doesn’t need more anti-terror laws that aren’t necessary – or even used



Mick Tsikas/AAP

Keiran Hardy, Griffith University

Home Affairs Minister Peter Dutton has introduced a new bill that will amend the controversial questioning and detention powers held by the Australian Security Intelligence Organisation (ASIO).

While some changes are welcome, others are a cause for concern. One major change is that the legislation will allow ASIO officers to coercively question children as young as 14.

For this bill to be passed, Home Affairs must offer a stronger justification as to why the expanded powers are needed in the current security climate.




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Calls for new counter-terrorism powers have become commonplace in Australia, to the point where we now have more than 80 laws directed at the threat of terrorism.

Any call for additional powers should be met with careful scrutiny, particularly when the rights of children are at stake.

Repealing controversial detention powers

One of the biggest changes in the bill is that it would repeal ASIO’s power to detain people for questioning. Currently, ASIO has the power to seek a questioning and detention warrant (QDW) that allows people to be detained for up to one week. Detention can be approved if a person is likely to fail to appear for questioning, alert someone involved in terrorism, or tamper with evidence.

During that period, a person can be questioned in eight-hour blocks up to a maximum of 24 hours. This is purely an intelligence-gathering exercise, and is not related to any investigation for a criminal offence. The questioning can be approved if it would

substantially assist the collection of intelligence that is important in relation to a terrorism offence

The questioning is coercive, in that a person faces five years in prison for failing to answer any of ASIO’s questions. The powers are also highly secretive: it’s five years in prison for anyone who reveals anything about a warrant.

These powers are some of Australia’s most controversial anti-terror laws, as no democratic country has granted its domestic intelligence agency the same power to detain people for questioning.

Reviews by the Independent National Security Legislation Monitor, the Parliamentary Joint Committee on Intelligence and Security and the COAG review of counter-terrorism legislation have all recommended this power be repealed. Such a move would be welcome.

Expanded powers to question minors

At the same time, the bill will expand ASIO’s power to seek questioning warrants (QWs). These trigger all the same questioning processes and criminal offences as QDWs, they just don’t allow ASIO to detain the person outside the questioning period.

If the bill passes, QWs will be split into “adult questioning warrants” and “minor questioning warrants”. Minor questioning warrants will be available for children as young as 14 who are “likely to engage in” politically motivated violence.

This significantly widens the current thresholds. QWs are currently available for 16-year-olds only when the attorney-general is satisfied the person “will commit, is committing or has committed a terrorism offence”.

Some additional safeguards will protect minors under the new measures. Before issuing a questioning warrant, for instance, the attorney-general will need to consider the “best interests” of the child.

This is consistent with international law requirements and Australia’s expanded control order regime, which can include electronic tagging and curfews.




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Under the proposed laws, a young person can only be questioned in blocks of two hours or less, and a lawyer must be present during all questioning.

However, restrictions currently placed on lawyers will be retained. Lawyers, whether acting for young people or adults, are not allowed to intervene in questioning, except to clarify an ambiguous question. They can even be kicked out of the room, and a new lawyer appointed, if they “unduly” disrupt the questioning.

These restrictions will significantly undermine the ability of lawyers to protect children from any forceful or inappropriate questioning by ASIO officers.

Are the changes even needed?

Dutton has justified the proposed changes by claiming Australia faces a significant threat of terrorism from young people. While we cannot know the intelligence on which this assessment is based, the urgent need for these changes is doubtful.

The statistics show that questioning warrants are used very rarely. The last QW was issued in 2010, and the last one before that in 2006.

Only 16 QWs have ever been issued since their introduction in 2003, and none since the threat from Islamic State emerged.




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Given this record, it is difficult to see how QWs for 14-year-olds are suddenly needed to prevent acts of terrorism.

Indeed, in a recent PJCIS inquiry, ASIO explained their lack of use by saying the powers were difficult to approve on a short timeframe. This made them not very useful for the kinds of low-tech attacks seen in recent years, such as stabbings and shootings, which require little advance planning.

If the new powers are passed in the bill, they should at least be sunsetted to expire after three years, rather than the proposed ten. Without this amendment, more extraordinary counter-terrorism powers will be on Australia’s statute books for the foreseeable future.The Conversation

Keiran Hardy, Postdoctoral Research Fellow, Griffith Criminology Institute, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australia recognises the threat posted by far-right groups. So, why aren’t they listed on the terror register?



Shutterstock

Jessie Smith, University of Cambridge

This week, Kristina Keneally announced plans by Labor to review the nation’s register of terrorist organisations.

ASIO sounded an alarm last month that far-right groups pose an elevated threat to Australian national security. Cells have met to salute the Nazi flag and train in combat. ASIO is now investigating twice as many far-right leads as last year.

However, to date, no far-right group has been banned in Australia. This sits in contrast to the UK, where National Action and other far-right groups are outlawed and members have been convicted of terror-related and other crimes.

Keneally asks whether our laws are fit for purpose. One year after the Christchurch massacre, it’s time to investigate whether enough is being done to address the far-right threat in this country.

How groups are listed on the terror register

The definition of terrorism underpins the way terror organisations are registered in both the UK and Australia. Australia designed its laws from a British template, so the definitions are very similar.

At its core, a “terrorist act” is defined as conduct with special characteristics – namely, the advancement of a “political, religious or ideological cause” and the coercion of government or the intimidation of the public.

There are two ways to counter far-right groups in Australia.

The first is through the proscription process, or the creation of a “list” or register of banned groups.

To list a group on the national register, Home Affairs reviews intelligence from ASIO and must be satisfied the group is directly or indirectly engaged in, preparing, planning, assisting, fostering or advocating terrorism. There is huge symbolism in proscription. It is the highest level of disendorsement, as it can allow the government to label a political movement as criminal.




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There is good reason for the government to be selective – many hundreds of groups can meet the broad definition of terrorism. For instance, any rebel group in a war zone fits the bill, including allies we arm, train and partner with, such as certain groups in Syria.

Home Affairs Minister Peter Dutton is therefore guided by discretionary factors, such as a group’s ties to Australia and its threat profile and nature of its ideology. Most groups on the terror list are large, well-resourced Islamist outfits such as Boko Haram and al-Qaeda.

The second way to affix a terrorist label to a group is by satisfying a jury, at trial, that it meets the legal criteria of “terrorist organisation”. This process does not involve Home Affairs; the decision rests with the jury.

Smaller, home-grown cells have been tried in this way, such as the conviction of the Benbrika group (the “MCG plotters”) in 2006. The jury found they were members of a terrorist organisation despite their absence from the national terror register. As such, leaving a group off the list does not create a meaningful gap in the law.

This two-tiered approach allows flexibility. At times, a group might not have a name, or it might not be organised or have a public profile.

There might also be operational reasons for ministerial restraint for not listing a group, such as fear that public declarations could disrupt covert police investigations into its activities.

Why have far-right groups been banned in the UK?

So, what explains the difference between the UK and Australia when it comes to dealing with far-right groups?

Despite Keneally’s concern, there is no meaningful difference between proscription criteria in the two countries. The UK includes violence committed on racial grounds, but this is matched by our reference to ideological motive. The UK looks to those who “glorify” terrorism, but we include groups that “advocate” or “praise” similar conduct.




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However, one way the two countries diverge may be in the scale of the threat.

National Action, a neo-Nazi group whose members have called for a “race war”, has a large following in the UK. Members cheered the murder of MP Jo Cox and have been jailed for plotting to kill other left-wing politicians.

The far-right in Australia may not yet have gained the same momentum.

Greater parliamentary powers over Home Affairs

Keneally is trying to figure out whether the failure to list far-right groups in Australia is due to the law, the lack of sufficient threat or the lack of political will.

But the law is fit for purpose, and ASIO has issued a serious public warning. What’s left hanging is politics.

Rather than review the criteria for proscription, Keneally should press for an enhanced role for parliament’s intelligence and security committee over Home Affairs.




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Parliament’s intelligence and security committee can currently review (and veto) a decision by Dutton to add a group to the register of terror organisations. But the committee cannot intervene in cases Home Affairs deliberately rejects.

Perhaps an expanded parliamentary review function over the minister’s decision-making and the department’s method of prioritisation would give Keneally the answers she seeks.

In response to ASIO’s warning on far-right groups, Dutton was quick to label Islamists as “left-wing” extremists.

Despite Labor’s objections to this characterisation, Islamic extremist and “far-right” groups have much in common – all are driven by elements of hate, misogyny, supremacy, destruction and brands of extreme social conservatism. All deserve sober consideration, whatever the label, and without political distraction.The Conversation

Jessie Smith, PhD in Law, University of Cambridge

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Lessons on terrorism and rehabilitation from the London Bridge attack


In a deeply tragic irony, the two victims who lost their lives to a man who made a mockery of their idealism were assisted by two others who appear to have genuinely benefited from prison rehabilitation programs.
AAP/EPA/Facundo Arrizabalaga

Greg Barton, Deakin University

Can prison rehabilitation programs work, and is it sensible to try and rehabilitate seriously radicalised individuals convicted on terrorism charges?

These are questions not just for the UK, in the wake of the second London Bridge attack over the weekend, but for the entire world.

There are no easy answers and no simple options. As the numbers of people detained and eventually released on terrorism charges mount up around the world, so too does the question of what to do with them. Politicians find it easy to speak in terms of “lock them up and throw away the key”. But our legal systems don’t allow this and the results, even if allowed, would almost certainly be worse.




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Australia isn’t taking the national security threat from far-right extremism seriously enough


Some answers, and some difficult questions, can be found in the lives of four participants in the events in London: Jack Merritt, Saskia Jones, Marc Conway and James Ford.

All four were participating in an event organised to reflect on the first five years of the University of Cambridge’s Learning Together program. Merritt was a young graduate who was helping coordinate the program. Jones was a volunteer in the program. Tragically, their idealism and desire to give back to society saw them lose their lives to a man whom they thought they had been able to help.

Merritt’s father told the media:

Jack lived his principles; he believed in redemption and rehabilitation, not revenge, and he always took the side of the underdog.

In her tribute to her murdered daughter, Jones’s mother said:

Saskia had a great passion for providing invaluable support to victims of criminal injustice, which led her to the point of recently applying for the police graduate recruitment programme, wishing to specialise in victim support.

Jones, 23, and Merritt, 25, were both University of Cambridge graduates working at the Learning Together program. They lost their lives to a knife-wielding murderer who does not deserve to have his name remembered. Their 28-year-old assailant had been released from prison 12 months earlier, having served but eight years of a 16 year sentence.

In a catastrophic system-failure, his automatic release was processed without his case ever being reviewed by a parole board, despite the sentencing judge identifying him as a serious risk who should only ever be released after careful review. He had gamed the system, presenting himself as repentant and reformed.

In fact, he had never undergone a rehabilitation program in prison and only had cursory processing on his release. Systemic mistakes and the lack of resources to fund sufficient and appropriate rehabilitation programs meant he was one of many whose risk was never adequately assessed.

Conway had formerly served time at a London prison and is now working as a policy officer at the Prison Reform Trust. He witnessed the fatal attack and rushed directly towards the attacker, joining others who sought to pin him down.

Another man participating in the offender rehabilitation event was James Ford. He too saw the attack unfolding and immediately confronted the assailant.

In a deeply tragic irony, the two victims who lost their lives to a man who made a mockery of their idealism were assisted by two others who appear to have genuinely benefited from prison rehabilitation programs. But even here, the complexities and ambiguities of this sort of difficult endeavour were played out as clearly as any playwright could ever conceive of scripting.

Ford was a convicted murderer attending the Learning Together conference on day-release. He had brutally killed 21-year-old Amanda Campion, a young women who was particularly vulnerable because of her intellectual disability. In the eyes of Campion’s family, Ford is no hero.

However, Professor of Criminology at Birmingham City University David Wilson, who chairs the Friends of Grendon Prison program, says that Ford underwent extensive rehabilitation initiatives, including an intensive period of psychotherapy.

On this occasion, the convicted murderer did the right thing. Even though this doesn’t make him a hero, it does give some reason for hope. For Wilson, the murderous terrorist and the convicted murderer who rushed to contain him represent a tale of two prisoners:

I know through my work that people do change and they change as a consequence of innovative but challenging regimes such as the one at HMP Grendon.

In the wake of the attack, UK Prime Minister Boris Johnson said the cases of 74 people released early after being jailed for terror offences will be reviewed. This is certainly sensible and necessary, but much more is required. Indefinite detention is not an option in the majority of cases, and the UK is dealing with hundreds of people convicted of terrorism offences either currently in prison or recently released.

The numbers in Australia are only a fraction of this but still run into the high dozens and are growing every year. For Australia’s near neighbours, Indonesia, Malaysia and the Philippines, the numbers, including projected returnees from the Middle East, run into the thousands.




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Professor Ian Acheson, who has advised the government on how to handle extremist prisoners, told the BBC it was not “a question of an arms race on sentencing toughness”, but about what is done when offenders are in custody.

Acheson said his panel’s recommendations had been agreed to but not implemented due to “the merry-go-round of political replacements of secretaries of state”, and the “fairly recalcitrant and unwilling bureaucracy”. He also cited “crazy failed and ideological austerity cuts” to the police, prison and probation services.

Jack Merritt and Saskia Jones were not naïve idealists. They had studied the problem closely and believed rehabilitation programs could make a difference. Their tragic deaths speak to the challenges involved. To give up and do nothing is not merely cynical, but self-defeating. Without adequate resourcing and reforms the problem everywhere will only become much worse.The Conversation

Greg Barton, Chair in Global Islamic Politics, Alfred Deakin Institute for Citizenship and Globalisation, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Why Australia can no longer avoid responsibility for its citizens held in Syria



Detention camps in Syria hold about 100,000 Syrian and foreign family members of IS suspects.
Murtaja Lateef/EPA

Anthony Billingsley, UNSW

The small number of Australians being held in prison camps in northern Syria has been an ongoing, albeit low-level, challenge for the Australian government. There are believed to be eight Australian fighters for the Islamic State in captivity, along with around 60 Australian women and children.

Despite its reluctance, the Australian government may eventually feel obliged to bring many or all these people home.

So far, the Australian public seems to have accepted the government’s line that it’s too dangerous to extract them from Syria. As Prime Minister Scott Morrison succinctly put it:

I’m not going to put any Australians in harm’s way.

An increasingly untenable position

The government believes there are valid security concerns in bringing these people back to Australia. Home Affairs Minister Peter Dutton has claimed some of the women are “hardcore” and “have the potential and capacity to come back here and cause a mass casualty event”.

Identifying these people, gathering evidence about their crimes and managing domestic fears would be a big challenge.

However, the government’s position on extracting them from Syria has become less tenable after the Turkish invasion of northern Syria in October. This followed US President Donald Trump’s announced withdrawal of the American military buffer in the region.

The invasion added uncertainty to an already fraught situation. The Kurdish-dominated Syrian Democratic Forces, who were central to the defeat of the Islamic State, were compelled to reinforce their forces on the border with Turkey.




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Western states must repatriate IS fighters and their families before more break free from Syrian camps


Many of their forces have been engaged in controlling prison camps in northern Syria, where about 12,000 men and boys suspected of Islamic State ties, including 2,000 to 4,000 foreigners from almost 50 countries, are held. Some camps also hold about 100,000 Syrian and foreign family members of IS suspects.

The invasion focused attention on the state of the camps, which are overcrowded, unsanitary and experiencing considerable unrest. There have been some escapes from the camps, and many fear they are close to collapse.

The situation increases the possibility that young people in the camps will be radicalised.

Last week, the US government, which has repatriated some of its nationals, offered to help allies, including Australia, rescue their citizens from northern Syria. On the same day, Turkey called on Australia to repatriate its IS fighters and their families in Turkish custody.

Groups like Save the Children and Human Rights Watch have also called for the repatriation of women and children in the prison camps.

In Canberra, shadow home affairs minister Kristina Keneally has also argued Australia has a moral obligation to repatriate the women and children who were taken to Syria against their will.

Al-Hawl camp in northern Syria where eight Australian IS fighters and some 60 women and children are believed to be held.
Tessa Fox/AAP

Barriers to bringing detainees back

While Australia has not joined the Dutch in outright rejecting the US offer, the Morrison government has shown no enthusiasm for the idea.

Its position has been further undermined by the actions of other nations with citizens in the camps. Kosovo, Uzbekistan, Tajikistan and Kazakhstan, for example, have already repatriated hundreds of prisoners.

And Britain is considering options for repatriating its citizens. A government document reported on last month said,

While difficult, the practical challenges in arranging and implementing an extraction (of IS suspects) are likely to have solutions.

Australia, by contrast, has continued to focus on the difficulties of extracting its citizens from the area, rather than tackling the legal challenges associated with bringing them home. Our legislative framework is still not sufficiently robust to deal with returnees.

The government has had many years to figure this out. In 2014, the UN passed a resolution obliging all countries to adopt measures to deal with the issue of foreign fighters.




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There are ways to try those suspected of crimes committed in another country. The principle of universal jurisdiction, for example, would allow Australia to interrogate and prosecute those currently held in Syria.

Lower-level suspects who are desperate to escape from Syria could also be required to accept certain conditions, such as restrictions on movement and contacts and participation in re-education programmes. The Australian women in the camp have already indicated they are open to this.

But instead of looking at these options, Australia has endeavoured to keep out returning fighters and their families. Laws have been passed to strip some of their citizenship, running counter to several international conventions, including the Universal Declaration of Human Rights.

And the temporary exclusion orders bill passed in July gives Dutton the power to bar Australian citizens from returning home for up to two years if they are suspected of supporting a terror organisation.

There are few other options

Some governments have suggested that IS captives in Syria should be transferred to Iraq, where trials of suspected IS members have already been held. The problem with this idea is that Iraq’s justice system is deeply flawed and has imposed the death penalty after some highly dubious trials.

For example, France sent some suspects there only for them to be summarily sentenced to be hanged.




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Preventing foreign fighters from returning home could be dangerous to national security


Equally unacceptable would be to allow the Australian prisoners to fall into the hands of the Syrian regime.

In coming months, as conditions in the camps deteriorate and Syrian government forces expand their control of the area, we can expect mounting pressure on governments like Australia’s to repatriate their citizens.

In the long run, these are Australian citizens who should be entitled to the benefits that come from that, including due process of law. It is hard to see how the government can continue to deny their rights.The Conversation

Anthony Billingsley, Senior Lecturer, School of Social Sciences, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Baghdadi’s death is a huge blow to Islamic State, but history suggests it won’t guarantee a safer world



Abu Bakr al-Baghdadi may not be irreplaceable, but in many respects he was uniquely suited to the times in which he led.
AAP/EPA/ al Furqan ISIS media wing handout

Greg Barton, Deakin University

“A very bad man” has been killed and “the world is now a much safer place”. The sentiment behind US President Donald Trump’s announcement of the death of Islamic State (IS) leader Abu Bakr al-Baghdadi is difficult to argue with. Baghdadi was certainly a very bad man. And under his decade-long leadership of the Islamic State (IS) movement, many thousands of people in the Middle East and around the world suffered terrible brutality or death.

Common sense would suggest the world is indeed now a much safer place with Baghdadi’s passing. Unfortunately, however, there is no guarantee this will prove to be true in practice.

The 18 year-long so-called Global War on Terror in the wake of the September 11 attacks – the international military campaign to fight al-Qaeda, and then IS – has been almost entirely reactive and tactical.

It has lacked any consistent strategic purpose, whether in Afghanistan, Iraq, Syria, Somalia, the Philippines or anywhere else.

The strongest military coalitions the world has ever seen have fought the largest and most powerful terror networks that have ever existed. And this has led, directly and indirectly, to hundreds of thousands of lives lost, trillions of dollars spent and remarkably little progress overall.




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The special forces raids targeting Baghdadi, in Idlib, and his deputy, IS spokesperson Abul-Hasan al-Muhajir, in Aleppo, were undoubtedly significant achievements representing tactical victories of great consequence.

IS has been dealt an enormous blow. But just how long its impact will last is not clear. The lessons of the past two decades make it clear this will certainly not have been a fatal blow.

The IS insurgency, both on the ground in Iraq and Syria, and around the world, was rebuilding strength before these strikes and will not be stopped in its tracks by losing its two most senior public leaders.

Baghdadi as IS leader

Baghdadi may not be irreplaceable but in many respects he was uniquely suited to the times in which he led. He oversaw the rebuilding of IS from its previous low point a decade ago. He played a key role in expanding into Syria, replenishing the leadership ranks, leading a blitzkrieg across northern Iraq, conquering Mosul and declaring a caliphate. In the eyes of his support base, his credibility as an Islamic scholar and religious leader will not easily be matched.

He was not a particularly charismatic leader and was certainly, as a brutal, fundamentalist loner, not truly inspirational. But he played his role effectively, backed up by the largely unseen ranks of former Iraqi intelligence officers and military commanders who form the core of the IS leadership.

He was, in his time, the caliph the caliphate needed. In that sense, we will not see his like again.

Incredibly, 15 years after Abu Musab al-Zarqawi established al-Qaeda in Iraq, and almost ten years after Baghdadi took charge of the Islamic State in Iraq, there is so much about the leadership of IS we don’t understand.

What is clear is the insurgent movement benefited enormously from so-called “de-Baathification” – the ridding of Arab nationalist ideology – in the wake of the 2003 invasion of Iraq and toppling of the authoritarian regime of Saddam Hussein. The sacking of thousands of mostly Sunni senior military leaders and technocrats proved to be a windfall for the emerging insurgency.

IS has always been a hybrid movement. Publicly, it presents as a fundamentalist religious movement driven by religious conviction. Behind the scenes, however, experienced Baathist intelligence officers manipulated religious imagery to construct a police state, using religious terror to inspire, intimidate and control.

This is not to say Zarqawi and Baghdadi were unimportant as leaders. On the contrary, they were effective in mobilising religious sentiment first in the Middle East and then across the world. In the process, more than 40,000 people travelled to join the ranks of IS, inspired by the utopian ideal of religious revolution. Baghdadi was especially effective in playing his role as religious leader and caliph.

An optimistic take on Baghdadi’s denouement is that IS will be set back for many months, and perhaps even years. It will struggle to regain the momentum it had under his leadership.

Realistically, the extent to which this opportunity can be capitalised upon turns very much upon the extent to which the emerging leaders within the movement can be tracked down and dealt with before they have a chance to establish themselves.

What might happen now?

It would appear IS had identified the uncontested spaces of north-western Syria in Idlib and Aleppo, outside of the control of the Assad regime in Damascus, of the Syrian Democratic Forces (SDF) in Northeast Syria, and beyond the reach of the Iraqi government in Baghdad, as territory in which its leadership could relocate and rebuild.

Continuing the optimistic take, there is the slim hope that the success of Sunday’s raids in which the partnership between US special forces and the SDF was so critical will lead to Trump being persuaded to reverse his decision to part ways with the SDF and pull out their special forces partners on the ground, together with accompanying air support.




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The fact Baghdadi and Muhajir were both found within five kilometres of the Turkish border suggests Turkish control of northern Syria is, to say the least, wholly unequal to the task of dealing with emerging IS leaders.

A reset to the pattern of partnership established over the past five years with the largely Kurdish SDF forces in north-eastern Syria could prove critically important in cutting down new IS leaders as they emerge. It’s believed the locations in northern Syria of the handful of leaders most likely to step into the void left by Baghdadi’s passing are well-known.

But even in the best-case scenario, all that can be realistically hoped for is slowing the rebuilding of the IS insurgency, buying time to rebuild political and social stability in northern Syria and northern Iraq.The Conversation

Greg Barton, Chair in Global Islamic Politics, Alfred Deakin Institute for Citizenship and Globalisation, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.