Captured Australian Islamic State members: whose problem?

ANDREW ZAMMIT • May 8, 2019

In 2014 and 2015, Australian members of Islamic State gained media attention for appearing in recruitment videos, making violent threats, instigating attacks, and proudly boasting of war crimes. Today, these Australians, at least those who remain alive, gain media attention for quite different reasons.  

Captured over the past year by the Syrian Democratic Forces (SDF), many of the remaining Australians are being held in prison cells and crowded refugee camps in north-east Syria and have been publicly pleading for help.

The Morrison government has reportedly rebuffed SDF requests to take responsibility for these Australians, stating that their preference is to "deal with these people as far from our shores as possible". Public sympathy for these individuals is understandably limited, but that does not mean that this is the right policy approach.

This post explains how this situation came about, and discusses some practical and moral problems with the government's current approach. I argue that more efforts should be made to repatriate these individuals, to help protect the children and where possible prosecute the adults. However, the post also points out some risks posed by my own preferred approach, as this is an inherently difficult situation.

THE SITUATION

According to ASIO estimates, over 200 Australians are believed to have joined Islamic State and other jihadist groups in Syria and Iraq since 2012. Nearly a hundred have been killed and around 40 have returned  to Australia, while 90 are believed to still be somewhere in the region. Many joined the conflict when the Islamic State was at the peak of its strength, but it has since lost nearly all of its territory at the hands of Syrian and Iraqi forces backed by the US-led Global Coalition against Daesh.

In north-eastern Syria, the Coalition's main partner has been an umbrella organisation called the Syrian Democratic Forces (SDF). The SDF is dominated by a Kurdish militia, the People's Protection Units (YPG), and an array of other armed factions. The SDF took thousands of prisoners as they recaptured territory from Islamic State, including hundreds of foreigners and dozens of Australians.

The precise number of Australians captured is unclear, and quickly changes. In early March it was reported that the SDF captured at least nine Australians. Then in early April, after the SDF captured the last remaining Islamic State stronghold in Baghouz, it was reported that the SDF now holds 43 Australians.

Most of them are women and children, including well-known figures such as Zehra Duman and her two children along with Khaled Sharrouf's three remaining children (one of whom is pregnant) and two grandchildren. However, it also includes many Australians who received little to no publicity beforehand, such as Sydney woman Janai Safar and her son, Melbourne woman Kirsty Rosse-Emile and her daughter, and NSW Central Coast woman Shayma Assaad and her three sons. There are reportedly at least three men among these captives: Melbourne man Mahir Absar Alam, Sydney man Mohammed Noor Masri, and possibly Kirsty Rosse-Emile's husband Nabil Kadmiry.

The SDF has sought to hand these prisoners over to their home countries for prosecution, but many of these countries proved reluctant, including Australia.

THE CURRENT APPROACH AND ITS DANGERS

The intentions underlying the government's approach towards these captured Australians are not altogether clear. One the one hand, they have said that they will deal with these individuals on a "case-by-case basis", prioritising the care of children. Scott Morrison stated that while he “is not going to put one Australian life at risk to try and extract people from these dangerous situations”, his government will work with aid agencies "[w]here there are children… I'd say exclusively that's where our focus is."

On the other hand, the government has repeatedly communicated a clear preference to avoid repatriation as much as possible, declaring that they are "determined to deal with these people as far from our shores as possible". The government's actions, namely revoking citizenship from twelve suspected Islamic State members and seeking to make it easier to revoke citizenship from even more suspects, introducing Temporary Exclusion Orders, and reportedly rejecting both US and SDF calls for repatriation, are all consistent with this.

This approach amounts to treating the situation as someone else's problem, and it involves serious risks.

One key problem is that SDF have limited capacity for dealing with these captives. They have developed an ad-hoc judicial system for prosecuting Islamic State members, and have formally abolished the death penalty to make it easier for European countries to cooperate with them, but their resources are stretched. They focus on prosecuting Syrians rather than foreign nationals and have warned that they cannot hold their captives indefinitely.

Another problem is that the SDF are not a recognised sovereign government. The Assad regime has made clear that they want to reclaim “every inch” of Syrian territory, and Turkey also poses a military threat to the SDF. They will not necessarily be able to hold on to their current territory permanently, let alone their captives.

Leaving these Islamic State members in SDF hands means Australia will not be able to control what happens to them. They might be released to Islamic State or another jihadist group in a prisoner swap, or they could disappear (which has already happened with one British suspect).

The current approach not only poses under-acknowledged risks, but carries heavy moral costs. These are, after all, Australians (or in some cases they were until their citizenship was recently revoked) whom we have a responsibility to bring to justice. It is understandable that the SDF asked for Australia to deal with the Australians. And many of them are children, left in an extremely vulnerable situation by virtue of being held in highly unsafe and unhealthy refugee camps.

Though the government has stated that it will try to protect the children, and might be making efforts to do so behind the scenes, the unwillingness to repatriate the parents unavoidably means that the children will be left at risk for a longer time. This was shown by the death of the child of Shamima Begum, a UK jihadist who was refused repatriation. Therefore the current approach, regardless of the government’s intentions, increases the risk of these children being left to die for the crimes of their parents.

It is possible that the SDF will hand some of their Australian captives over to Iraqi authorities, as they have already done with many Iraqi nationals, as well as some male European citizens. However, Human Rights Watch and other organisations have accused the Iraqi government of unfair trial processes and widespread torture. Iraqi courts have sentenced hundreds of suspected Islamic State supporters to death after questionable trials that can last less than ten minutes. So while handing the problem over to Iraq might seem like a simple solution, it is also morally flawed.

THE ALTERNATIVE

The alternative is for the Australian government to make more efforts to repatriate these individuals, both to prosecute and hold to account those who can be prosecuted, and to help protect and reintegrate children who lacked any choice in travelling to (or indeed being born in) Islamic State territory.

The main argument raised against this is that such prosecutions will prove difficult, as it is extremely hard to prove what someone was up to in a distant conflict zone, and that it is therefore safer to keep these people outside of Australia.

We certainly should not underestimate the difficulties of prosecuting them in Australia. This could mean that people who have participated in atrocities, or might pose a terrorist threat to Australia, do not end up being punished.

However, a range of new laws have been passed since 2014 precisely to make such prosecutions easier. Even under the old law, the Crimes (Foreign Incursions and Recruitment) Act 1978, Australia has successfully prosecuted multiple people for travelling to Syria to join jihadist groups (Mehmet Biber and Muhammed Abdul-Karim Musleh), attempting to travel (Amin Mohamed and Fatima Elomar), or assisting others to travel (Omar Succarieh, Amin Elmir, EB and Hamdi Alqudsi). Counter-terrorism authorities also have several other tools for dealing with returnees, including restrictions they can place on their movements and activities.

This is not a problem Australia is facing alone. The United Nations Security Council Counter-Terrorism Executive Directorate has been working on guidelines to help countries gather admissible evidence from the battlefield. It’s also worth remembering that we are talking about relatively small numbers of around 40 Australians, most of whom appear to be children. In contrast, France is planning to take back around 130 of its citizens.

Repatriation is far from a perfect solution. It could risk some people escaping justice and posing dangers inside Australia, adding to the already large number of people the police and intelligence services have to monitor and manage.

However, the current approach involves little justice at all. It risks exposing people to unjust judicial approaches involving torture and abuse, regardless of what they are alleged to have done. It washes Australia’s hands of the problems created by its own nationals, leaving groups with little capacity like the SDF to deal with Australia’s counter-terrorism problems. It risks even letting children, who have not chosen their own path, die for the crimes of their parents. It also leaves these people in a situation where Australia will have little control over what happens to them, and involves greater practical as well as moral risks than the rhetoric from our political leaders suggests.

There are no easy options, but the Australian government can and should make more efforts to prosecute these Islamic State members at home, and to take care of their children who have been drawn into a complicated and dangerous situation outside of their own control.