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.
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.
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.
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.
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.
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.
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.
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.
Aged 29, the convicted mass murderer and terrorist is still relatively young, meaning he could well spend several decades in custody.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
“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.
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.
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.
This is part of a new series looking at the national security challenges facing Australia, how our leaders are responding to them through legislation and how these measures are impacting society. Read the rest of the series here.
Until the terror attack in Christchurch in March, the threat of far-right terrorism in Australia was one we knew was coming, but believed was well over the horizon.
The sordid story of the Christchurch attacker – “ordinary Australian” turned hateful bigot turned mass-murdering terrorist – contains some uncomfortable truths for our country, not least of which is the fact that the threat of far-right extremism has arrived in the here and now.
Just as troubling, yet even more challenging because it is so insidious, are the clear links between the Christchurch shooter’s motivations and our mainstream political discourse. Facing up to this threat requires us changing our approach both to hateful extremism and toxic political discourse.
Police and counter-terrorism officials have long been warning us of the rising threat of far-right violent extremism. Over the past decade, this has emerged as the number one terrorist threat in America and a persistent and growing threat in Europe.
It’s tempting to say that had more resources been committed to tracking and monitoring far-right groups and individuals in Australia, the Christchurch terrorist perhaps could have been stopped.
But even in hindsight, things are not so clear. The Christchurch gunman was a lone actor with no previous history of significant violence, although his involvement in hateful extremism was well-known to family and friends.
This is the particular threat that keeps counter-terrorism experts awake at night, when so-called “cleanskins” (people with ostensibly spotless records) turn into lone-actor terrorists.
We are flying blind on far-right extremism
One clear lesson from Christchurch is that we need to pay more attention to hate speech and hate crimes.
It is true that “shit-posting” is a common occurrence on social media, and among all those people spouting off, it is extremely difficult to see who might become a violent extremist.
But clearly, we don’t understand the world of far-right extremism nearly as well as we should. We need a better way of monitoring and tracking far-right forums, social networks and the links between far-right individuals through their histories of travel and extremist communications.
We also have no centralised, national database of hate incidents. Hate crimes remain under-reported, poorly documented and de-prioritised to low levels of state policing.
The result is that we are flying blind. We don’t get to see the patterns between far-right groups and internet “shit-posters” because we are not collecting the data.
If we made it a priority at the state and federal level to document hate incidents, whether crimes or not, we would at least have a sense of when and where the problem is growing and who is most significantly involved.
This wouldn’t eliminate the threat of far-right extremism, but it might help stop the next massacre and it would certainly contribute to making Australian society more healthy, welcoming and just.
A disproportionate focus on Islamist terror threats
The September 11 attacks in America, and subsequent attacks by al-Qaeda in Bali, Madrid, London and elsewhere, triggered an enormous investment in counter-terrorism efforts in Australia.
This had barely begun to abate when the formation of the Islamic State (IS) caliphate in mid-2014 alerted us to the high rates of terror recruitment in Australia and prompted the raising of the national terrorism alert to the penultimate level in September 2014.
An intercepted phone call then triggered Australia’s largest-ever counter-terrorism operation. Shortly afterward, the Islamic State issued a call for random lone-actor attacks around the world and, within days, an 18-year-old launched a knife attack against two police officers in Melbourne.
These circumstances have led to 82 counter-terrorism laws being enacted in Australia since 2001, and 16 counter-terrorism operations since 2014, almost all of which have been responding to the threat posed by violent Islamist groups like al-Qaeda and IS.
This perception of the increased threat posed by these groups has resulted in a disproportionate investment in counter-terrorism compared with the response to the much greater threat posed by domestic violence.
At the same time, however, very little has been invested in preventative counter-terrorism measures, including countering far-right extremism.
A national discourse bound up in fear
We pride ourselves on being the world’s most successful multicultural society, yet we consistently turn a deaf ear to those who come up against hatred.
Just last month, for example, a new national survey found that 82% of Asian Australians, 81% of Australians of Middle Eastern background and 71% of Indigenous Australians had experienced some form of discrimination.
One reason why we are not yet ready to face up to this problem is that our national political discourse has for decades become bound up with the politics of fear, “othering”, and scapegoating minority communities.
When we demonise “illegal arrivals” and give license to the toxic rhetoric that we are being “swamped by Asians”, as Pauline Hanson put it in the late 1990s, or more recently “flooded by Muslims”, then we are buying into the core element of the narrative of terrorists like the Christchurch gunman.
In his manifesto, the gunman referenced the far-right extremist trope of “the great replacement” –
the fear that white Christian society is being overrun by brown-skinned, non-Christian people who are changing its culture and society irrevocably.
He picked up this idea from parts of Europe where there is strong antagonism to migrants and Muslims. But he referenced it directly from the writings of the Norwegian far-right terrorist who shot dead 69 people and blew up another eight in July 2011.
This same argument featured in the manifesto of the El Paso gunman who murdered 22 people at a Walmart store in Texas last month. In it, he praised the Christchurch shooter and warned of a “Hispanic invasion” of Texas.
These alt-right terrorists are driven in part by a fantasy of going from “zero to hero” in the alt-right internet world and becoming renowned as “warrior defenders”.
Prioritising far-right extremism
Prior to Christchurch, kicking the can down the road and prioritising other threats to our national security seemed an understandable, if not ideal response.
We now need to face the reality that of 50 terrorism-related deaths in the US last year, almost all involved far-right extremism. (Only one was linked to jihadi terrorism.) This is a pattern that’s been established for decades now. In fact, nearly three-quarters of all terrorist deaths in the US over the past decade have been linked to far-right extremism.
And while there is reason to hope the problem will never become quite so serious in Australia (despite the fact an Australian far-right extremist has murdered 51 people in another country), we need to do what we can now to counter the rise of hate speech and hate crimes – not later.
There are no quick fixes or guaranteed solutions, but these steps will make society better in ways that go far beyond the immediate threat of another terrorist attack.
This is part of a new series looking at the national security challenges facing Australia, how our leaders are responding to them through legislation and how this is impacting society. Read other stories in the series here.
In late September, Home Affairs Minister Peter Dutton introduced a new bill that would give him stronger powers to strip the Australian citizenship of dual nationals convicted of terror-related offences or who in engage in related activities.
In response to the prospect of foreign fighters returning from conflicts overseas, the bill proposes extending the current citizenship revocation law to any dual national who is convicted of a terrorism offence carrying at least three years imprisonment (compared to the current six).
It would also be back-dated to account for any terrorism convictions or conduct from May 2003 onwards (compared to the current cut-off date of December 2015).
To protect the rights of dual nationals, the bill proposes changing the process for revoking citizenship. Instead of it automatically ceasing when people engage in terror-related conduct, the minister would have the sole power to decide if they should be stripped of their citizenship.
This procedural change is unusual because moves to repeal or wind back
anti-terrorism laws have been few and far between.
Unfortunately, however, in all other respects, the new citizenship bill fits squarely within the pattern of overzealous Australian anti-terror law-making over the past 18 years.
A new law every 6.7 weeks
Since the September 11, 2001, terrorist attacks in the United States, the Australian parliament has responded to the threat of terrorism here and overseas by enacting dozens of new laws or amending existing laws.
In 2011, University of Toronto Professor Kent Roach famously described this response in Australia as one of “hyper-legislation”.
Another expert, UNSW Professor George Williams calculated that between the September 11 terrorist attacks and the defeat of the Howard government in November 2007, a new anti-terror law was enacted on average every 6.7 weeks.
The declaration of a caliphate by the Islamic State in mid-2014 led to another flurry of legislative activity in parliament.
This started with the National Security Legislation Amendment Act (No 1) 2014 (Cth), which controversially exempted undercover ASIO officers from criminal prosecution, expanded that organisation’s access to computer networks, and restricted the leaking of sensitive information.
In the five years since then, 19 more anti-terrorism laws have been passed. That brings the total number of substantive anti-terrorism laws enacted by parliament to 82 since the Sept. 11 attacks, with a further six bills either currently before parliament or about to be introduced.
This is a staggering number of laws, and far exceeds the volume in the United Kingdom, Canada and even the United States in response to Sept 11.
Draconian and unworkable laws
It is not only the sheer number of laws, but also their scope, which makes Australia stand out among Western democracies.
At the core of Australia’s anti-terrorism regime is a carefully considered and, in the eyes of most commentators, balanced definition of terrorism.
However, as the years have gone by, increasingly draconian, and often unworkable, legislation has spiralled out beyond this definition. For instance, the mere act of travel to certain areas, such as Mosul in Iraq, has been criminalised, as well as advocating terrorism.
Instead of working with companies like Facebook and Twitter in the aftermath of the Christchurch terrorist attacks, the government imposed impractical obligations on them to scrutinise the online activities of their customers (with further laws threatened in the event of non-compliance).
In addition to the stripping of the citizenship of dual nationals, another bill would prevent anyone from returning home from overseas conflicts for a considerable period of time under a Temporary Exclusion Order, even Australians who don’t hold another passport.
Another bill before parliament would require people who have previously been charged with a terrorism offence (regardless of whether they were ultimately acquitted) to prove extraordinary circumstances before being granted bail for a subsequent offence.
This demonstrates just how far lawmakers have strayed from the fundamental human rights and principles of criminal justice.
What anti-terror laws are intended to do
In the immediate aftermath of the September 11 attacks, Australian lawmakers might have been excused any overreaction on the grounds the country didn’t have much historical experience with terrorism or in legislating in response to this threat.
At the time, there were no specific anti-terrorism laws at the federal level in Australia. This was undoubtedly a significant oversight which needed to be remedied.
Even today, more than 18 years on and with over 80 laws in place, it’s somewhat understandable lawmakers react to terrorist attacks by seeking to take swift action.
One of the (few) downsides of a democratic political system is that parliamentarians are hit with the full force of public hysteria about actual and perceived terrorist threats. The most obvious way for the parliament to address these fears is through the enactment of laws.
As Roger Wilkins, a former secretary of the Attorney-General’s department, said in support of proposals to strengthen the control orders laws in the aftermath of the November 2015 Paris terrorist attacks:
In a modern, liberal democracy, that’s about the only thing you can do.
Despite frequent claims to the contrary, this is not just a case of political opportunism on the part of the governing party. The steps taken by lawmakers are crucial in re-establishing the community’s sense of security.
We need to acknowledge, above all, that the buck stops with our elected representatives to protect the lives of the Australian people. They bear both the personal and professional responsibility if a terrorist act occurs which could have been prevented.
It is this, as much as anything else, that explains the rapid and bipartisan passage of so many laws through the parliament.
Terrorism can’t be defeated through laws alone
Having said all this, it’s unfortunate successive Australian governments on both sides seem to have learned little over the course of the last 18 years.
Statements made in the aftermath of every terrorist attack, and, most recently in responding to concerns about foreign terrorist fighters, have identified the ultimate goal as being to “defy” and “defeat” terrorism.
While statements such as this are clearly rhetorical, what underpins them is a failure to recognise the permanence of terrorism.
Terrorism in one form or another has always existed, and will always continue to exist. Neither legislation nor anything else will be able to eliminate this threat.
The idea of managing the threat of terrorism, in the sense that some degree of terrorism is acceptable or at least to be expected, might seem politically unpalatable. However, open acceptance of the permanence of terrorism means lawmakers will no longer be chasing – and the public no longer demanding – the achievement of an impossible goal.
It will also, in turn, facilitate a more proportionate response to the challenges posed by the foreign fighters phenomenon and the threat of terrorism more generally.
A better way forward
In a quest to eliminate terrorism, laws have been enacted that make ever-increasing intrusions into people’s lives and curtail human rights for diminishing returns in terms of security.
Some have even suggested these laws make us less safe. In its submission to the Parliamentary Joint Committee on Intelligence and Security’s inquiry into the citizenship stripping laws, ASIO said these measures could:
have unintended or unforeseen adverse security outcomes – potentially including reducing one manifestation of the terrorist threat while exacerbating another.
It will never be appropriate or desirable for governments to sit back and take no action in response to the threat of terrorism. But what we need is a sharp change in approach.
Countering violent extremism programs have been used in Australia and other countries as another tool for responding to terrorism threats. Instead of treating such programs as a “backup” option, as they currently are in Australia, these should be brought to the fore.
The critical lesson of the past 18 years is that we must think creatively about how to combat the threat of terrorism, rather than continually reworking existing – and often demonstrably unsuccessful – strategies.