Australia’s Draconian Response to the Security Council’s Resolution on Foreign Terrorist Fighters

On September 24, the UN Security Council passed a resolution that, among other things, ordered member States to curb the flow of foreign nationals who travel to the Middle East to fight for terrorist groups like ISIS. While governments are naturally concerned about the impact of such fighters on the intensity of conflicts, the resolution is deeply problematic in several respects. Martin Scheinin, the former UN Special Rapporteur on counterterrorism and human rights, warned on Just Security that Resolution 2178 paves the way for States to enact laws that cripple political activism and free expression in the name of restricting the movements of terrorist suspects.

His fears are not misplaced. On the eve of the Council meeting on the Resolution, the Australian government introduced a Foreign Fighters bill that would, among other things, create the offense of “intentionally entering, or remaining in” a foreign country or an area of a country that the government declares to be “areas of terrorist activity.” In a startling reversal of the presumption of innocence, the bill places the burden on Australian citizens and residents who travel to these locations to prove that their travel is “solely” for a “legitimate purpose.” Government-approved purposes include, among others, official government duties, the provision of humanitarian aid, and journalism. Travelers who fail to meet this high bar face up to ten years in jail.

This troubling addition to the ever-expanding universe of terrorism-related offenses undermines the fundamental right of Australians to move freely across borders. It is uncontroversial that States may prohibit and deter individuals from joining terrorist groups and committing acts of violence and other crimes. But a law that compels citizens to justify their travel itineraries under threat of criminal sanction goes too far.

Many travelers to places designated as areas of terrorist activity will face an uphill climb to prove that their travel is “legitimate.” Human rights work, academic research, filmmaking, and business are conspicuously absent from the list of “legitimate purposes.” And while “making a genuine visit to a family member” is a permissible reason to travel, visiting close friends, colleagues or business associates is not. Travelers visiting friends and lovers in conflict zones and the odd, daredevil backpacker are among the scores of innocent Australians who may fall afoul of the new offense.

In a bid to pre-empt these scenarios, the government cites its authority to prescribe additional “legitimate purpose[s]” as an “important safeguard” against unfairly blocking travel. But such an open-ended power is prone to discriminatory application, since it effectively allows the government to pick and choose which activity, project or cause provides a “legitimate” reason for travel, or whom in the designated areas one might “legitimately” visit.

The bill is likely to chill even those activities that qualify as a “legitimate purpose.” Take, for example, the exception for journalists. Only those who are “making a news report of events in the area” and “working in a professional capacity as a journalist” (or assisting the “professional” journalist) will be guaranteed passage free of criminal penalty. This begs the question of what it means to be a “professional” journalist. Must a person be formally employed by an established news agency? Do freelance journalists and reporters working for “new media” count? What about citizen journalists, or documentary filmmakers? Many journalists may abandon work in the designated areas rather than stake their freedom on correctly guessing how the Australian government will answer these questions now or in the future.

One also wonders how the Australian government will monitor compliance with the new travel prohibition. The Foreign Fighters bill comes on the heels of another anti-terror law that dramatically expands the Australian government’s surveillance powers. Privacy and civil liberties groups have complained that the new surveillance law allows Australian spy agencies to collect communications and other personal and sensitive data from a potentially limitless number of computers, and perhaps even the entire Internet, with a single “computer access warrant.” Such warrants are drafted, vetted and approved exclusively by the executive branch. If the Foreign Fighters bill passes, will the Australian government monitor the communications of its citizens to identify those who are planning to travel to conflict areas? Will it demand that airlines and travel companies send passenger lists for certain destinations?

In an interconnected world, the freedom to travel is not simply a right unto itself; it is also essential to the realization of other human rights. Australia’s draconian attempt to limit the “acceptable” reasons for travel to certain countries impairs the ability of Australians to express themselves freely across borders and associate with others around the world. In particular, the travel prohibition will unduly complicate the already difficult work of Australian human rights workers and activists who seek to bring to light the abuses and injustices that occur daily in conflict areas.

Unfortunately, Australia’s Foreign Fighters bill may well become the blueprint for domestic restrictions on travel in the wake of Resolution 2178. The Resolution provides governments around the world with broad cover for restricting the movements of terrorist suspects, but imposes none of the concrete human rights safeguards that might restrict the potential for abuse. While the Council is rightly concerned about the threat that foreign fighters pose to international security, it is also well aware that member States must respect human rights in combating the threat. The Council should work with States to develop a realistic scheme that accomplishes both objectives. 

About the Author(s)

Amos Toh

Katz Fellow at the Brennan Center for Justice’s Liberty and National Security Program