Yesterday The Age published a strange article by Ben Saul, professor of international law at the University of Sydney. The article argued that, by trying to prevent Australians from fighting in the Syrian insurgency, the Australian government is complicit in the Bashar al-Assad regime’s brutality. This post discusses some problems with the article.
The article’s key argument was that: “…while our government opposes Assad’s terror, Australian law paradoxically criminalises anyone who fights for the rebels – yet allows Australians to fight for President Bashar al-Assad.”
It ended with: “… we should not actively assist Assad by criminalising those who legitimately try to get rid of him, and by giving a free pass to those who fight for him.”
However, this “free pass” claim is false. It is illegal for Australians to fight for either side in Syrian conflict. Australians who fight for Assad face prosecution just as those who fight against him do, though not necessarily under the same laws.
In normal circumstances Australians can legally serve in a foreign military, but in this case it’s illegal because we have sanctions on Syria. Both the Federal Police and the Attorney-General’s Department have released official statements declaring that it is illegal for Australians to fight for either side. So the article’s underlying premise is simply wrong.
Unfortunately, there were other incorrect statements in the article. It argued that “… our federal terrorism law criminalises anyone who uses political violence against any foreign government. This includes violence limited to military attacks on military targets in a civil war and which does not target innocent civilians, and which may precisely aim to stop government attacks on civilians.”
This is again false. It is next to impossible to convict an Australian under federal terrorism laws for supporting a foreign insurgent organisation unless that organisation is one of the (currently) 17 proscribed by the Attorney-General.
This was demonstrated from 2007-2009 when an attempt use terrorism laws to prosecute three Victorian Tamil Tiger supporters fell apart. After the terrorism charges failed, the three men were charged and convicted under older legislation, Section 21 of the Charter of the United Nations Act 1945. Similarly, late last year a Melbourne man accused of trying to join Papuan insurgents was charged under old legislation, the Crimes (Foreign Incursions and Recruitment) Act 1978. Our terrorism laws do not cover these situations.
Of these laws, the Crimes (Foreign Incursions and Recruitment) Act 1978 is the most relevant for Australians fighting against Assad, as it criminalises participation in foreign insurgencies.
Saul considers this law problematic, but it is a necessary law. Australia has an international obligation to prevent its territory being used as a base for violence against other countries, regardless of the nature of the regimes in those countries.
If a state allows its citizens to engage in private warfare against foreign countries, then that state itself is in effect engaging in warfare against that country. Whether Australia should be at war with another state is a decision for an elected government, not random citizens.
So preventing its citizens from engaging in hostile acts against other countries is a legitimate prerogative of the state. Australians don’t have a “right” to grab a gun and go shoot people overseas, and there are a hundred better ways to help people than joining a foreign insurgency.
This leads to the biggest problem with the article, the assumption that Australians joining the insurgency will help achieve democracy and human rights in Syria.
This is extremely doubtful. Let’s assume, dubiously, that a Free Syrian Army (FSA) victory will automatically produce a democratic regime that respects human rights. Even then, it’s unclear how a bunch of untrained foreigners turning up in their ranks will help.
The FSA itself is under no illusions that much good will come from overseas volunteers, particularly when the regime is trying to portray the rebellion as foreign-inspired. Just a fortnight ago the FSA’s political and media coordinator stated “we reject any presence of foreign fighters, regardless of where they are from. We have said that what we are missing in Syria is weapons, not men.” The Assad regime is more pleased about foreigners joining the insurgency than the insurgents are (though the extremist factions of the insurgency are very happy to receive foreign fighters).
Even if foreign fighters meaningfully contribute to an FSA military victory, we can’t assume that will achieve a humanitarian outcome. As Saul himself acknowledges, “even the mainstream rebel groups have the blood of innocents on their hands.” While the horrors of Assad’s regime are beyond doubt, the violence and chaos in Iraq after America deposed Saddam Hussein show that we shouldn’t make any assumptions about what will happen when Assad is gone.
Also, the article doesn’t address the national security based concerns about Australians fighting in Syria, which is surely relevant in a discussion of whether the government has right to prevent its citizens from taking part. Nor did it mention the government’s sanctions against Syria, which undermine the claim of complicity in the regime’s brutality. Admittedly an 800 word op-ed can’t address every angle, but those are big things to leave out.
However, on one point I partly agree with Saul. In a recent article I did implicitly suggest that it would not be wise or necessary for the government to prosecute all returning fighters and that they should take a highly discriminate approach, focusing specifically on threats to Australia. Most of the returned fighters will pose no domestic threat, and some might even prove willing and well-positioned informants.
But that’s entirely different to arguing that the government has no right to prosecute them, or that doing so makes us complicit in Assad’s brutality. That argument is as absurd as claiming that opposing Assad’s regime makes someone complicit in terrorism.
Update 1:
Ben Saul has provided a thoughtful response in the comments below, which is most welcome.
With regards to his second paragraph, I’m not convinced our federal terrorism law functions in the way he describes, but will look into it a bit more before responding.
Also, two major reviews of counter-terrorism legislation are being tabled in Parliament today. They will likely be very valuable reports that shed a lot of light on how our counter-terrorism laws function, but will probably be overshadowed by the Budget.
The Murphy Raid 
Thanks for your thoughtful response Andrew. You are right about the existence of sanctions, which I should have mentioned. Consistent with the thrust of my argument, however, I would say that sanctions are part of the problem. While sanctions in principle apply equally to both sides, in practice they asymetrically privilege Assad (who controls an existing national military) over the rebels (civilians who are trying to create an army from nothing). Sanctions thus privilege an incumbent government, just as sanctions in Bosnia disproportionately affected the capacity of besieged Muslims in Sarajevo to protect themselves from state-sponsored Serb ethnic cleansing.
On the application of terrorism laws, I disagree with your analysis. The federal terrorism laws still apply in the way I have described (including primary offences of committing or attempting to commit terrorist acts). The legal situation I describe is different from the Sri Lankan prosecutions you mention (which concerned terrorist organisation financing offences). I am talking about the application of the primary terrorism offences, not the terrorist organisation offences (the question of proscription, and the difficulties in the Sri Lankan cases, is thus irrelevant). They apply concurrently alongside the foreign recruitment offences; neither precludes the other.
Otherwise I think we simply disagree on the moral circumstances in which citizens of one country should be entitled to fight in defence of human rights in another; whether doing so would assist the rebellion; and whether the value of doing so is outweighed or not by the risks of terrorism (in Syria) or security (in Australia) that it brings. Thanks again for your considered response.
Sorry Andrew, but being a non academic I’m going to be a little less polite to Ben.
I’d call out the proposition to support Australians (presumably of dual Syrian Nationality) fighting against the Government of Syria as a thinly veiled justification to allow Australians on Aliyah to join the IDF or Mossad and fight wars that Australia is not involved in nor condones contrary to existing Australian Laws. The principle being, that if it’s OK for one lot to do it, then it’s OK for this lot that have been doing it also. (“So let’s get in the press and make a case for that lot to do it, which’ll then justify what my lot has been doing for years”).
I don’t think so.
And Ben Zygier has illuminated s lack of prosecution of Australian Laws for many years that we should not be tolerating.
Very much disagree there Peter.
I don’t see a hidden agenda in his article to defend Australians joining the IDF. With regards to “So let’s get in the press and make a case for that lot to do it, which’ll then justify what my lot has been doing for years”, I wouldn’t assume that he’s Jewish, and in any case it’s a bad idea to assume someone has particular motives because of their ethnicity.
Moreover, the articles Ben Saul has written on the Zygier affair show he’s definitely not a fan of Australians joining the IDF or Mossad: http://www.abc.net.au/unleashed/4518166.html
My own view is that the current approach – that it’s legal for Australians to serve in a foreign military provided we are not at war with that state, don’t have sanctions on that state, and the individual does not participate in war crimes – is adequate.
In regular circumstances, Australians shouldn’t be prosecuted for serving in the armed services of states that we don’t have hostile relations with. I don’t have a problem with Israeli-Australians being free to serve in the IDF, just Lebanese-Australians being free to serve in the Lebanese Armed Forces, Singaporean-Australians are free to serve in Singapore’s military etc. It’s a natural consequence of allowing dual-citizenship and only occasionally results in security troubles. We wouldn’t like it if other countries prosecuted their dual-citizens for serving in the Australian Defence Force.
Participation in a foreign insurgency is a different manner, for the reasons discussed above, and the Syrian conflict raises particular security concerns for Australia.
I think we’d have to agree to disagree.
I’m very much of the opinion that we are lacking control and accountability.
Our response to violations of Australian Laws in most cases that have occurred appears to have been inadequate, (or lackadaisical).
Prevention is better than having no rigorous infrastructure to investigate, arrest and prosecute offenses. We have more control over our own forces on deployments with overseas partners by our Military Police, than we have over these privateers doing god knows what with whom.
Are these guys going to be be subject of the investigations, reviews and reports that Stephen Smith presents to Parliament of our own Forces? Obviously not, yet there very nationality presents us with a vicarious liability even if only in the minds of whoever they are opposing.
We don’t need to be a target because a bunch of kids went to fight some war against some belligerent outside of our own theater of conflict.
Simply reverting to the old dual citizenship requirements prohibiting any joining of foreign military would simplify the matter. India does it.
And those that do want to go play war games can easily and simply renounce Australian citizenship, or do it thru secondment within the ranks of the ADF.
Of contrasting interest is how the US considers the issue of a “Foreign Preference”.
For example http://www.dhra.mil/perserec/adr/adjguidelines/adjguidframeset.htm#ForeignPreference
Particularly the express reference to serving in a foreign military service.