Last week, Director-General of the Australian Security Intelligence Organisation (ASIO) Duncan Lewis predicted that more Australian jihadist fighters would return from Syria and Iraq and that managing them would prove a “polarising and dividing” issue:
Beyond the spectrum of public opinion, we can anticipate the effective and appropriate management of returning foreign fighters to be a polarising and a dividing issue in Australia… We have plans in place – they are currently being executed – to accept the return of foreign fighters, but it will be a polarising matter.
There has long been discussion of the potential terrorist threat posed by Australian jihadists returning from Syria and Iraq. So far, this has not been a major element of Australia’s terrorist threat. As I discussed in a recent CTC Sentinel article, the various attacks and plots Australia has experienced since September 2014 involved Islamic State (IS) supporters who had not left Australia. And the roughly 40 Australians who have returned from the region mainly did so before IS declared a “Caliphate” or targeted the West. These early returnees are not alleged to have been involved in terror plots.
However, the number returning is expected to increase in the near future. In February, Foreign Minister Julie Bishop spoke with US Vice-President Mike Pence about this, stating afterwards that such an increase is…
likely to be the consequence of military success in Iraq, for the example the retaking of Mosul…. That will mean that a number of foreign terrorist fighters will seek to flee from Iraq and the expectation is a number will seek to return home. We need to be prepared for that.
Bishop also discussed this with Indonesian President Joko Widodo during his recent visit to Australia.
In this post I outline some of the dilemmas involved in dealing with returnees, to help explain why it may indeed be the divisive issue that Duncan Lewis predicts. It covers why there is concern over returnees, what can be done, and makes some suggestions as to what should be done.
Why is there concern over returnees?
The concern is based on the well-founded idea that some Australians involved with jihadist groups in Syria and Iraq will be a serious terror threat on return. In past cases (such as the mobilisation to Afghanistan from the 1980s onwards) most returned foreign fighters did not end up becoming terror plotters, but a small proportion of them did, and were involved in deadly attacks such as the 2005 London bombings.
This has repeatedly been the case with jihadist returnees from Syria and Iraq. The November 2015 terror attack in Paris, which killed over one hundred, involved up to eight returnees. The March 2016 bombing in Brussels similarly involved returnees. Other attacks have also been perpetrated by returnees, as have many foiled plots.
However, it’s also important not to overstate the threat.
Australia is in a far safer position than Europe. Plots like those in Paris and Brussels were feasible because Islamic State had established a sophisticated underground infrastructure in Europe, enabled by various factors: Europe produced many more foreign fighters, has more porous borders, is geographically closer, and has greater strategic importance.
Australia has a much smaller number of potential returnees to worry about. Of those, some more might be killed or captured, while some others may choose to stay in the region or move elsewhere (such as Europe, the Caucasus or Southeast Asia) rather than try to return to Australia. Duncan Lewis noted that the number of returnees will likely be fewer than ASIO initially expected. Australia also has the advantage of having prepared for this for a few years, and being an island with few entry-points, making it hard for people to slip in unnoticed.
Nonetheless, if we do experience a surge in returnees, it will be a problem. Some could pose a direct terror threat and some could pose a security concern in other ways (such as forming new recruitment networks or inciting others). Most will have likely broken the law, but it may not be clear who poses the greatest threat and resources may be limited. This will create difficulty for those tasked with dealing with them, though they will have several tools available.
What can be done with returnees?
The Australian government will have the following options for dealing with them
- Strip their citizenship. Khaled Sharrouf, a prominent IS fighter who bragged about war crimes, has had his Australian citizenship revoked. I disagree with this power for multiple reasons, but the law has passed (with bipartisan support and popular approval) so the Australian government now has this option, and will likely use it several more times.
- Frustrate their return. In most cases, the Australian government will have cancelled their passports. To return to Australia, the suspect will need to gain a one-way travel document from an Australian consulate (presumably in Turkey). This is not likely to be a simple process, and authorities can use this to induce cooperation. It’s also possible that they will have broken the laws of other countries, and Australia may pass intelligence on to these countries to prevent the suspects returning.
- Prosecute upon return. Prosecution will be a preferred option, but it will often be difficult to prove their involvement beyond reasonable doubt, which is why an estimated 40 Australians managed to return without being prosecuted. However, some of these suspected fighters (Mehmet Biber and Muhammad Abdul-Karim Musleh) have now been charged, as authorities have had more time to gather evidence.
- Monitor and restrict. Authorities can closely monitor suspected returnees and take action if they engage in new criminal activity, terrorism-related or otherwise. They can also subject the returnees to special powers such as coercive questioning by the ASIO or the Australian Criminal Intelligence Commission, and Control Orders which place restrictions on a suspect’s liberty for up to a year.
- Countering Violent Extremism (CVE). Some returnees might be suitable for CVE efforts, which refers to non-coercive efforts to prevent (or undo) involvement in violent movements. This could be conducted by the Diversion Team within the Australian Federal Police’s National Disruption Group. Most returnees would not be suitable, as the Diversion team does not deal with those “too far along the path of radicalisation for early intervention to be effective or presents an unacceptable risk to the safety of service providers”, but some of the children might be.
CVE approaches take many different forms, and have been used widely in European countries, sometimes for dealing with returnees. However, as I’ve mentioned in this Lowy paper, some of their approaches would not be possible in Australia (at least without adjustments) as they would be seen as too soft.
This raises another question, the “polarising and divisive” issue ASIO chief Duncan Lewis referred to, which is what should be done.
What should be done with returnees?
So the government will have a lot of tools for dealing with returnees, but how should they be used? Should all returnees be prosecuted, to the full extent of the law, where possible?
For the most part, yes, particularly as this would be consistent with United Nations Security Council Resolution 2178, because the national security risk is real, and because the Islamic State has rightly earned the world’s hatred.
However, there is also debate (mainly in Europe, given the scale of the problem) over whether returnees should be shown some leniency to make the problem more manageable (see here and here). There is no simple answer, but my view is that some leniency should be shown in individual cases, depending on:
- Which group they joined. Was it a proscribed terrorist organisation like Islamic State or Jabhat al-Nusra (now Jabhat Fateh al-Sham, which leads the Hay’at Tahrir al-Sham umbrella group)? Those who joined groups that came under the Free Syrian Army banner or Kurdish anti-IS groups may still have broken the law, but should not be treated as severely as those who joined IS or al-Nusra.
- Whether they joined the group willingly. There may be cases where someone enters Syria with a vague idea of helping out in a humanitarian capacity but ends up being conscripted into an armed group. However, there could easily be cases where jihadists falsely claim to have been forced to join groups, so such claims should not be uncritically accepted. The “didn’t realise what I was getting into” argument is more plausible for those who travelled over during the conflict’s early years (2011-2013).
- Whether they were children or adults. The younger they are (and some are extremely young), the less responsible they are for their actions. Child soldiers have often been rehabilitated and gone on to be outstanding citizens, including in Australia.
- What role they played in the group. Was it a combat or non-combat role? Was it a major or minor role? Did they call for attacks outside the conflict zone? Did they engage in atrocities? Many Islamic State fighters have raped, tortured, murdered and mutilated people in Syria and Iraq. There should be no leniency at all for war criminals.
- Whether they willingly cooperate with authorities. This is the most important factor. Those who do not cooperate (such as by providing intelligence or helping stop others from becoming involved) cannot expect to escape the full extent of the law. However, those willing and able to help should be given some leniency, particularly if there is a strong chance that it will saves lives.
So the potential surge of Australians returning after being involved with jihadist groups in Syria and Iraq will be a difficult problem, and has no single solution.
Generally, those who can be proven to have broken the law should be prosecuted. In most cases, any leniency should only come into play after they have been prosecuted (by taking it into account when sentencing). In a few cases, leniency should be an alternative to prosecution (such as for some of the children or those who become informants). And unfortunately in many cases prosecution will not be possible, leaving authorities with a range of imperfect options.
Intelligence services, police, prosecutors and judges will have to make these difficult judgements. Political leaders should make sure they have the flexibility to do so, by avoiding the temptation to announce some sort of blanket policy, no matter how “polarising and dividing” the issue becomes.