Legislative Responses to ISIS Returnees Take a New Twist in Australia

This week, the Australian Parliament is considering new laws that ban “extremists” from returning home, apparently aimed at preventing Australians, including women and children, affiliated with ISIS from return. The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, imposes a two-year ban (Temporary Exclusion Order) on dual citizens returning to Australia. The bill is likely to face constitutional challenge in the Australian courts if passed. It is estimated that there may be at least 50 Australian women and children in camps seeking to return home.

Notably, this is the same week that a Human Rights Watch Report detailed the inhumane and life-threatening conditions being faced by foreign-held women and children in al-Hol camp in the Kurdish-led Autonomous Administration for northeast Syria. Human Rights Watch found:

… overflowing latrines, sewage trickling into tattered tents, and residents drinking wash water from tanks containing worms. Young children with skin rashes, emaciated limbs, and swollen bellies sifted through mounds of stinking garbage under a scorching sun or lay limp on tent floors, their bodies dusted with dirt and flies. Children are dying from acute diarrhea and flu-like infections, aid groups and camp managers said.

Other international humanitarian entities, have affirmed that the camp population is made up of thousands of children, many orphaned, and the risks to their health, safety and development is acute.

The Australian legislation appears to be moving swiftly having cleared the Australian House of Representatives and was debated in the Senate mid-week. The government argues that a moratorium on return will keep Australia safe and ensure that the return process is manageable.

While recognizing the right of States to address safety and security concerns involving returnees, the law goes substantially beyond the measures required by existing United Nations Security Council resolutions on foreign fighters. If the legislation remains as proposed it constitutes a blanket measure that does not distinguish between individuals who may pose security threats and those who do not. The legislation creates a terrible precedent globally given the acknowledged inability of Syrian Democratic Forces to manage the thousands of individuals under their control in the camps.

Moreover, the proposed legislation pulls against the Guidance found in the Madrid Guiding Principles developed by U.N. Security Council Counter-Terrorism Committee Executive Directorate to implement U.N. Security Council Resolution 2178 (2014). These Principles endorsed by the Security Council affirm the obligations of solidarity between States, the obligations to prosecute, as well as the need to address the challenges of women and children accompanying foreign fighters consistent with State obligations under international human rights law, international refugee law and international humanitarian law. Moreover, as it will likely be litigated in the Australian courts, as has been the case in Germany and Belgium, there are independent human rights obligations due to citizens being detained extra-territorially that remain part and parcel of the legal obligations of States.

The challenge of this Australian legislative response is not only the lack of consideration to broader international law obligations, but the unwillingness it signals to take responsibility for one’s own citizens, including the most vulnerable and marginalized, in a context where they have no effective legal or political recourse.

A girl stands barefoot at al-Hol camp for displaced people in al-Hasakeh governorate in northeastern Syria on July 22, 2019. Photo by Delil souleiman/AFP/Getty Images.

 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland. Member of the editorial board of Just Security. You can follow her on Twitter (@NiAolainF).