Tag Archive for: citizenship

What the UK’s ‘Islamic State bride’ case means for Australia’s foreign fighters

Last week, veteran Times reporter Anthony Loyd travelled to a Syrian refugee camp to interview  Shamima Begum, a 19-year-old woman from Bethnal Green in London’s East End, who at the age of 15 left home to join Islamic State. Within 10 days of arriving in Raqqa in 2015, she had married Yago Riedijk, a Dutch convert to Islam.

Begum, who has just given birth to her third child (her two other children died in infancy), said she wants to return to the UK. After Begum spoke with Loyd, her predicament sparked a national debate as to whether she should be allowed to return home.

The UK home secretary, Sajid Javid, stated that he wouldn’t hesitate to prevent her return: ‘My message is clear: if you have supported terrorist organisations abroad I will not hesitate to prevent your return.’, He has now reportedly stripped Begum of her British citizenship, which her family said they will challenge in the courts.

Richard Barrett, the former director of global counterterrorism at MI6, took a different view, arguing that Begum should be allowed to return, and that despite the justifiable concern, ‘governments have a responsibility to address the problems created by their captured nationals and also to look more closely at why they made the choices they did’.

Barrett says leaving people like Begum to the mercy of Syrian or Iraqi authorities who engage in summary execution is an abrogation of moral responsibility. It would further alienate marginalised communities, and could even become a recruitment tool for Salafi-jihadi who claim that the West is hypocritical when it comes to human rights and upholding international norms. Richard Dannatt, a former head of the British army, also joined the debate, asserting that Britain should take back its foreign fighters because it is ‘our responsibility’.

There are three key questions to consider in the Begum case:

  • As a British national, is Begum entitled to return to her country of birth, even if her passport has been cancelled?
  • Did Begum commit any offence under UK law while she was living in Syria and Iraq?
  • Does Begum pose a genuine security risk if she does return home?

Begum remains a British citizen and therefore is entitled to receive consular support or get on a plane and return to the UK. Importantly, there’s nothing that prevents the authorities from detaining and prosecuting her if they have evidence that she had committed a crime beyond travelling to a ‘designated area’ (in Australia, it’s the ‘declared area’ offence). There’s no evidence to suggest that Begum was anything more than a wife and mother. Nor is there any evidence that she participated in fighting or engaged in propaganda activities. The fact that she left for Syria when she was 15 raises questions as to exactly how knowledgeable she was about the modus operandi of Islamic State.

The question of whether Begum poses a security risk is challenging. The security services would need to assess her continuing allegiance and commitment to the Salafi-jihadi cause. Recent events such as the Westminster Bridge and Bourke Street attacks—where the security services had investigated the assailants and then judged them to be of low risk—have raised questions about risk assessments and whether radicalised people should be taken off a watch list.

Alex Younger, the current head of MI6, claims that returning foreign fighters pose a real threat because ‘they are likely to have acquired the skills or connections that make them potentially very dangerous’. He points out that people in Begum’s situation would require a ‘very significant level of resource’ to ensure that they don’t pose a security threat. Assistant Commissioner Neil Basu, the head of counterterrorism policing at the Metropolitan Police, said that anyone returning from a conflict zone should expect a police investigation—something that Begum seems to understand would happen should she return.

The debate surrounding Begum is relevant to Australia, as it’s estimated that of the 200 Australians who travelled to Syria and Iraq to join Islamic State, around 100 currently remain in the region. ASIO estimates that only a few would seek to return, and the government has laid out a framework that demands whole-of-government coordination aimed at assessing each case on its merits.

The assessment, led by the AFP’s Returning Terrorist Suspects Team, involves first determining whether the person has committed an offence by travelling to a declared area. Further criminal charges may be laid if the person had fought in the conflict; funded, trained, recruited someone to fight in the conflict; or supplied or funded weapons to anyone fighting in the conflict.

The prevailing view in Australia is one of zero tolerance towards those who have left to join Islamic State. But the issue becomes trickier when we consider what to do with people who had no combat role—Islamic State supporters who were effectively misguided individuals (it’s well documented that Islamic State has an effective grooming strategy when it comes to vulnerable people). There’s also the question of what to do with minors or children who were taken to a declared area by their parents or born in a declared area.

It‘s important that we engage in a public discussion about what to do with these individuals. Do we share Dannatt’s view that we have a moral responsibility to take back those who wish to return home, or do we take a hardline approach, judging Islamic State fighters and supporters to be an unacceptable security risk?

The Allegiance to Australia Bill: not a fix-all

Two weeks ago, the Parliamentary Joint Committee of Intelligence and Security (PJCIS) delivered its much anticipated report on the controversial proposal to strip Australian citizenship from dual nationals involved in terrorism.

The PJCIS has done a good job in reviewing the problematic draft legislation and providing a workable solution to stripping citizenship where it’s in the national interest. The Committee affirmed the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 is both necessary and appropriate. But it recommends substantial changes to the original draft.

In its report, the Committee has achieved useful balance in examining a complex issue, methodically navigating its way through relevant administrative, criminal, constitutional and international law. It also considered more philosophical questions of citizenship, treason, allegiance, national identity and values.

The inquiry closely examined three issues of concern: the self-executing or automatic loss of citizenship, the lack of natural justice through access to appeal and review mechanisms, and the broad grounds for citizenship loss extending beyond criminal convictions for terrorism.

Sensibly, the Committee has taken on the first two concerns. It’s recommended amending the Bill to better align with existing Australian administrative and judicial arrangements, informed by similar mechanisms for terrorist-related loss of citizenship in comparable countries such as New Zealand, Canada and the United Kingdom.

Loss of citizenship should, it recommends, occur following an appropriate process of information collection and consideration by the Minister for Immigration and Border Protection of numerous issues affecting the Commonwealth’s responsibilities.

Those range from the terrorist threat level, whether the person is a child, whether they can access citizenship rights in the other country, and the relevant international security and humanitarian conventions—including if they’re optional.

The Committee chose to retain strong administrative processes in the use of intelligence: it rejected the proposal to exempt ASIO security assessment advice from citizenship loss. If intelligence advice is to be used to strip citizenship, it’s important this remains in the established legal form of a security assessment, which provides unambiguous advice on the specific question of citizenship and access to appeal.

On the grounds for citizenship loss, the Committee has reinforced the executive’s existing role in citizenship cancellation, recognizing that the challenges of countering terrorism don’t always fit neatly into domestic criminal process through the courts.

But the Committee recommends different approaches to dealing with individuals located in Australia by comparison to those overseas. For those in Australia, terrorism conviction would remain central to any consideration of citizenship loss, while the proposed terrorism conduct provisions are limited to individuals overseas either engaged in terrorism or fleeing terrorism charges in Australia.

While this makes administrative sense, for individuals in Australia the bottom line is: would the Committee’s proposed changes prevent another Lindt Café, an ANZAC Day plot or Holsworthy Barracks plot?

The uncomfortable answer is: not likely.

Ultimately, the only people to be affected by the new proposals are dual citizens, and only those who already have a terrorism conviction carrying 10 years imprisonment. Citizenship revocation wouldn’t, therefore, disrupt Man Haron Monis before the Lindt Café attack, nor the underage alleged ANZAC Day plotters. Two of the Holsworthy plotters—Aweys and El Sayed—however, are dual nationals serving 18 years sentences, so could have their Australian citizenship revoked. However, their ability to access citizenship rights in Somalia and Lebanon, respectively, would need examination, and they could face persecution in their ‘home’ countries. But the lead time that existed in 2011 to investigate and collect evidence to support their convictions is unheard of in the current environment, where plots may be discovered only days or hours ahead of planned execution. Stripping citizenship might provide a tool for punishment, but in its proposed form, it doesn’t directly support disruption.

The Committee’s recommendations on oversight and accountability measures are comprehensive. It proposes oversight by the Inspector General of Intelligence and Security (IGIS), review of the legislation by the Independent National Security Legislation Monitor (INSLM) by the end of 2018, advice to the Committee itself whenever the power is used, and six-monthly public reports on the operation of the power. As the IGIS and INSLM weren’t directly involved in the inquiry, their opinions on the recommendations remain to be seen.

Such a level of oversight is previously unheard of in the citizenship and migration space, and brings some assurance that loss of citizenship will be monitored and scrutinised. However it also highlights what now appears to be a common response of bringing all available oversight measures into every contentious issue, whether it’s in their existing remit and resourcing, or not.

The Committee appears to have provided an effective legislative review. But the need to substantially revise the proposed legislation highlights the limitations of the original policy proposal and draft bill. This activity demonstrates the importance of properly considered policy development, including stakeholder consultation and, in this case, not alienating the broader community—ranging from legal profession and human rights groups—who are central to an effective counterterrorism strategy.

And after this sensible and considered work, will the Committee’s proposed changes provide any real value in preventing and countering terrorism? Politically, this balanced approach should ensure the Bill is—eventually—passed. But future reviews will likely identify the inadequacies of a tool that has constrained itself to being most effective only after a terrorist attack.

Empowering government to remove citizenship from dual nationals who’ve engaged in terrorism is important to protect Australia from terrorist attack and fulfill Australia’s international obligations to limit terrorist freedom of action.

But governments—state and federal—and the broader community must put the same effort into bringing Australians together to prevent radicalisation and violent extremism, and to stop attacks occurring. In this context, the bill to strip citizenship should be understood as one small part of an overall strategy, not a fix-all.

Terrorism, treachery and Australian citizenship

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Public debate about reform of our citizenship laws continues to be hampered by a significant categorisation error.

Whether Australian citizenship should be held by traitors remains the heart of the matter. The core issue is how we deal with treachery rather than how we define citizenship.

The revocation of Australian citizenship due to treachery even if considered only as a matter of punishment—and not also as active deterrence—can surely only be discussed properly by addressing the nature, gravity and consequences of the crime involved.

However, because treason and treachery aren’t commonplace crimes, much of the current debate only discusses modes of determining punishment.

Discussion has been further confused by contextual misunderstandings, and by ignorance and misunderstanding of the relevant constitutional and legal history—especially during times when Australia was at war.

Protagonists on all sides of rule-of-law questions end up failing to acknowledge what are essentially wartime circumstances applying to treachery in the current case of Islamic State.

They overlook the relevant High Court rulings, from both World Wars and the Korean War, that firmly established the principle that the defence and security heads of power in the Constitution wax and wane according to the seriousness of the threat.

For example, in regulations under the National Security Act, 1939, ministers were lawfully authorised, subject to judicial appeal, to:

  • ban extremist political parties sympathetic to enemy countries and their allies;
  • intern enemy citizens, other foreign aliens and naturalised Australians with perceived enemy sympathies; and
  • intern Australian citizens by birth who were considered likely to pose a security threat.

That principle is also why, on the other hand, the High Court struck down the Act dissolving the Communist Party of Australia in 1951. Even though Australia was directly fighting communist aggression in the Korean War the High Court judged the nature of the overall threat to national security at that stage didn’t justify the ban.

While the dual international and domestic threats posed by Islamist terrorism aren’t existential in nature, they surely justify more than traditional ‘peacetime’ counter-treachery and counter-terrorism measures.

Moreover, such measures aren’t  ‘ultra vires’ or otherwise contrary to the rule-of-law as some would believe.

Public debate is largely ignoring the obvious relevance of finally closing the 1945–2001 Burchett loophole in our previous treason and treachery laws by the Security Legislation Amendment (Terrorism) Act, 2002.

After the David Hicks case, the 2002 reforms ended the archaic requirement—prohibited by the UN Charter half a century previously—that wars had to be ‘declared’ before alleged traitors could be prosecuted. Armed conflict (war) now exists as a material fact according to international law.

The reforms rightly made it a crime to serve with any armed group fighting against the Australian Defence Force, not just with an enemy nation-state.

While fighting for the Islamic State is therefore illegal, the continuing flaw in the Citizenship Act (Section 35), now recognised by the Abbott government, is that citizenship is only revoked automatically when the traitor is fighting for a nation-state and only if they are a dual citizen or dual national.

Section 35 has never been used nor have similar provisions in previous legislation (back to the first Citizenship Act in 1948) ever been used because of the Burchett loophole, not because automatic revocation somehow contradicted the rule-of-law.

We owe an obligation to our fellow Australians whom we deploy to war and peacekeeping on our behalf to prohibit all acts that intentionally or recklessly assist an enemy fighting them. In particular we must actively deter as well as punish treachery because it unequivocally embodies a rejection of the mutual responsibilities and shared values of Australian citizenship and Australia’s wider obligations as a responsible international citizen.

The current debate also reveals ethical contradictions and a certain loss of perspective.

Few Australians, for example, seem to bat an eyelid at the battlefield killing, by our defence force or our Coalition partners, of an Australian traitor who has chosen to side and fight with Islamic State. Yet there’s quibbling about whether such traitors should, or even can, have their Australian citizenship revoked for such treachery, even when the traitor renounces it.

Such confusion also causes significant moral and practical problems, particularly where it means Australian law enforcement agencies and our defence force are hindered in exchanging relevant intelligence with allied forces fighting in UN-endorsed coalition operations combating terrorism.

Our obligations under international law must be accorded due weight, not somehow be considered universally subordinate to any legal rights traitors might seek to retain in such grave circumstances.

Freely switching your allegiance to a terrorist group such as Islamic State and going to join it in the Middle East is not a normal crime. Australia has national and international responsibilities to deter and counter such serious crime globally, not just punish those traitors we’re eventually able to capture and put on trial in Australia.

Ideally every traitor would be punished by being convicted in an Australian court, but making this a universal precondition for revoking their Australian citizenship causes insuperable moral and practical difficulties. There are several considerations here.

First, you must be able to capture traitors and then bring them back to Australia for trial. If not, treachery remains undeterred. At trial the facts establishing their treachery must be admissible as evidence, despite the obvious difficulties in undertaking an Australia-standard investigation in war zones and countries where the rule of law has ceased to exist.

Second, requiring conviction by an Australian court in all circumstances is unfair, at best, to the men and women we lawfully deploy to confront such traitors on the battlefield, especially before any capture of the traitor for trial in Australia is even remotely, if at all, possible.

Third, the impractical precedent by the Victorian Court of Criminal Appeal in the Jack Thomas case must be overcome. This effectively excludes evidence gathered by the AFP in the relatively lawless countries where terrorists tend to get captured, even when our police advise suspects of their rights and they freely admit the facts.

We must be able to deter as well as punish treachery by revocation of citizenship so battlefield killing is not left as the only alternative where capture and trial is impractical or impossible.