Chapter 2 The Listings

The Criteria for listing

2.1                   To be specified as a terrorist organisation for the purpose of paragraph (b) of the definition of terrorist organisation in section 102.1 of the Criminal Code, the Minister:

. . . must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur).

2.2                   At the hearing on 1 February 2005 for the Review of the listing of six terrorist organisations, the Director-General of ASIO advised the Committee of ASIO's evaluation process in selecting entities for proscription under the Criminal Code.  Some of the factors included:

• engagement in terrorism;
  
  
• ideology and links to other terrorist groups or networks;
  
  
• links to Australia;
  
  
• threat to Australian interests;
  
  
• proscription by the UN or like-minded countries; and
  
  
• engagement in peace/mediation processes.

2.3                   The Committee continues to use these criteria as the basis of its reviews of all listings.

Overview

2.4                   This report is a consideration of the re-listing of Al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Kurdistan Workers Party, Lashkar-e-Tayyiba and Palestinian Islamic Jihad under the Criminal Code.

2.5                   In past reviews of re-listings the Committee has stated its preference to see information which relates to the activities of the organisation since the last re-listing. Receiving information on activities since the last re-listing, whilst not in itself conclusive, is an appropriate consideration in the process of re-listing. Whilst historical background is important to consider, and will be noted, evidence for a re-listing should focus on what has changed since the last review. The issue of currency of evidence was raised in the Committee's report, Review of the re-listing of Al-Qa'ida and Jemaah Islamiyah (October 2006):

The re-listing of an organisation is a fresh exercise of executive discretion and the Committee believes that there must, therefore, be a sufficient degree of currency in the evidence to warrant the use of the power.[1]

Al-Shabaab

2.6                   The Attorney-General’s Statement of Reasons for re-listing Al-Shabaab is at Appendix C.

2.7                   This organisation was initially listed on 21 August 2009.

2.8                   Al-Shabaab, or ‘the youth’, is the name generally applied to the Somali militant group which was formerly the most prominent of the militia groups comprising the militant wing of the Council of Islamic Courts (CIC).  The Somali Transitional Federal Government (TFG) and Ethiopian forces ousted the CIC in December 2006.

2.9                   Al-Shabaab’s objective is the establishment of an Islamic state in Somalia, based on Islamic law and the elimination of foreign ‘infidel’ influence. In pursuance of this objective, Al-Shabaab has conducted a violent insurgency against the TFG, and foreign forces supporting the TFG.

2.10               Al-Shabaab encompasses a number of elements, ranging from those focused solely on the domestic insurgency in Somalia to elements that support al-Qa’ida’s global jihadist ideology.  Estimates of Al-Shabaab fighters vary from 3 000 to as high as 7 000, with most members being ethnic Somalis. Al-Shabaab has long recruited members from Kenya. However, a small number of Al-Shabaab fighters are from other countries including the US and Canada.

Engagement in Terrorism

2.11               The statement of reasons lists numerous attacks which are attributed to Al-Shabaab, or for which Al-Shabaab claims responsibility.  Attacks which have occurred since the initial listing of the organisation include:

• 29 October 2011:  at least three African Union (AU) mission in Somalia (AMISOM) peacekeepers were killed and an unknown number of others wounded when two Al-Shabaab suicide bombers, including a United States (US) national, detonated explosives at an AMISOM base in the Warshadaha Road area of Mogadishu.
  
  
• 4 October 2011:  more than 100 civilians were killed and dozens wounded when an Al-Shabaab militant detonated a suicide vehicle-borne improvised explosive devices (VBIED) targeting a building housing several government ministries in the K4 area of Mogadishu. Al Shabaab spokesman Ali Muhammad Rage subsequently claimed responsibility for the attack and stated: “We are promising that attacks against the enemy will be routine, more in number, and will increase day by day”.
  
  
• 1 October 2011:  French national Marie Dedieu, was kidnapped by suspected Al-Shabaab militants from the island of Manda in Kenya's Lamu Archipelago, near the Somalia border was then taken to Somalia. In mid-October, French intelligence and Ministry of Foreign Affairs officials announced she had died in captivity in Somalia, likely due to illness.
  
  
• 10 June 2011:  TFG Minister of the Interior, Abdishakur Sheikh Hassan, was killed in Mogadishu when a female Al-Shabaab suicide bomber detonated her explosive vest inside his residence.
  
  
• 9 September 2010:  at least 14 people-including at least five militants-were killed during a sophisticated multi-mode attack on Mogadishu airport utilising VBIEDs, suicide vests and small arms. Among the victims were four Somali police officers, two Ugandan peacekeepers, and three civilians. An Al-Shabaab statement the following day claimed the attack had targeted a high-level meeting of UN, AU and Somali representatives.

2.12               Further examples are provided within the statement of reasons and confirmed in the research documents consulted by the Committee.

2.13               The Committee is satisfied Al-Shabaab continues to be engaged in terrorist activity.

Ideology and links to other terrorist groups/networks

Ideology

2.14               Al-Shabaab’s primary objective remains the creation of an Islamic state in Somalia, administered according to its own radical interpretation of sharia (Islamic law).  In pursuit of this objective, it is committed to expelling all foreign forces, overthrowing President Sheikh Sharif Sheikh Ahmed’s Transitional Federal Government (TFG), and purging the country if any practices it considers un-Islamic.[2]

2.15               Although primarily focused on Somalia, Al-Shabaab is increasingly presenting its Somalia campaign as a front in the global jihad.  In October 2009, Al-Shabaab’s spokesman Sheikh Ali Muhammad Rage stated:

Geographical boundaries between peoples are just artificial fabrications.  Our ultimate goal is to have the land of Allah ruled by means of strict Islamic laws.

Links to other terrorist groups/networks

2.16               Al-Shabaab remains linked with al-Qa’ida through leadership and training.  The Committee notes the advice from the statement of reasons that:

On 9 February 2012 a public statement by Al-Shabaab leader Mukhtar Abu al-Zubair included a pledge of allegiance to al-Qa’ida and in a reciprocal message al-Qa’ida leader Ayman al‑Zawahiri announced that Al-Shabaab had joined al-Qa’ida.

Links to Australia

2.17               Since the initial listing of Al-Shabaab, three Australian citizens affiliated with Al-Shabaab have been charged and convicted with terrorist related activities.  The statement of reasons note:

In late 2011 Al-Shabaab-linked Australian citizens Saney Edow Aweys and Nayef El Sayed were convicted of conspiring to plan a terrorist attack in Australia. Aweys was also convicted of aiding and abetting another person to engage in hostile activities in Somalia under s6 of the Commonwealth Crimes (Foreign Incursions and Recruitment) Act 1978 in December 2010. Australian citizen Hussein Hashi Farah was also implicated in terrorist activity associated with Al-Shabaab.

Threat to Australian interests

2.18               The statement of reasons does not specifically address this matter, but does note the following statement which includes reference to Australia as a possible country for Al-Shabaab activities:

Abdisalam Ali—an Al-Shabaab suicide bomber—published a martyrdom video prior to killing himself on 29 October 2011 in Mogadishu stating "my brothers and sisters, do Jihad in America, do Jihad in Canada, do Jihad in England [and] anywhere in Europe, in Asia, in Africa, in China, in Australia — anywhere you find kuffar [infidels]. Fight them and be firm against them.

Proscription by the UN or like-minded countries

2.19               The statement of reasons advises that since the initial listing Al-Shabaab has been listed in New Zealand in February 2010, Canada in March 2010, the United Kingdom in May 2010, and by the European Union in April 2010.  As noted in the Committee’s consideration of the initial listing, the group was listed as a proscribed terrorist organisation by the United States in March 2008.

Engagement in Peace and Mediation processes

2.20               The statement of reasons notes Al-Shabaab does not participate in the Somali political system, despite AMISOM appeals to the group to lay down their arms and join the Somali peace process.

Conclusion

2.21               The Committee found that Al-Shabaab engages in activities that satisfy section 102.1 of the Criminal Code. The Committee does not recommend disallowance of the regulation.

Recommendation 1
	The Committee recommends that the regulation, made under the Criminal Code section 102.1, to list Al-Shabaab as a terrorist organisation not be disallowed.

Hamas' Izz al-Din al-Qassam Brigades

2.22               The Attorney-General’s Statement of Reasons for re-listing Hamas' Izz al-Din al-Qassam Brigades is at Appendix D.

2.23               This organisation was initially listed on 9 November 2003, re-listed 5 June 2005, 7 October 2005, 10 September 2007 and 8 September 2009.

Engagement in Terrorism

2.24               While the Brigades are reported to have killed more than 500 people in more than 350 separate terrorist attacks since 1993, the statement of reasons notes that since 2005:

the majority of the terrorist activity conducted by the Brigades has consisted of small-arms fire and rocket and mortar fire directed at Israeli military assets and communities in the vicinity of Gaza.

2.25               Recent attacks attributed to the Brigades include:

• 7 April 2011:  an anti-tank missile struck a school bus near the Gaza strip, destroying the bus and resulting in the death of an Israeli teenager. The Brigades took responsibility for the attack, although they claimed they had not intended to target Israeli schoolchildren, and had mistaken the bus for one carrying Israeli military personnel.
  
  
• 1 September 2010:  a group of Brigades members wounded two Israeli settlers near Ramallah. A subsequent statement by the Brigades threatened a wave of attacks against Israelis.
  
  
• 31 August 2010: four Israeli settlers were shot dead by the same members of the Brigades near the West Bank city of Hebron.

2.26               The statement of reasons further advises the Brigades control supply lines to Iran, where it sends fighters for military training.  These same supply lines are used by Palestinian Islamic Jihad for procurement and training. With this arrangement the Brigades are indirectly assisting Palestinian Islamic Jihad in committing terrorist acts.

2.27               The Committee is satisfied the Brigades continues to be engaged in terrorist activity.

Ideology and links to other terrorist groups/networks

Ideology

2.28               While much of the Hamas movements popular mandate stems from its widespread political and social activities, its armed wing – the Brigades – is arguably the most organised and effective militia in the Palestinian Territories.

2.29               Politically, Hamas aims to apply the rule of Islam throughout Palestine, from the Jordan River to the Mediterranean. Its charter, published in August 1988, defined this land as an eternal Islamic endowment that could not be compromised under any circumstances. The Brigades engage in military activity in support of these political objectives.

2.30               The statement of reasons notes of the Brigades:

Their essential aim is the unification of Israel and the Palestinian Territories under Islamic rule – a goal which entails the destruction of Israel as a political entity. Due to the disparity between Israel and Hamas’ respective military resources, the Brigades have adopted terrorist tactics in their bid to defeat Israel. Most famously, they adopted the use of suicide bombings, describing them as the “F-16” of the Palestinian people

Links to other terrorist groups/networks

2.31               The statement of reasons does not address this matter.  As Jane’s notes:

In principle, Hamas has always favoured co-operation with other Palestinian and Islamic factions, based on the common goal of jihad for the liberation of Palestine. However in reality, relations with other Palestinian factions have been determined by a number of calculations, primarily the struggle for power within Palestinian society.[3]

Links to Australia

2.32               The statement of reasons notes there are no known links to Australia.  The Committee has no information to indicate this organisation has any links to Australia.

Threat to Australian interests

2.33               The modus operandi of the Brigades’ attacks shows disregard for the potential harm to civilians of any nationality.  The Brigades therefore pose a potential threat to Australian interests and Australians present in the vicinity of the Brigades’ field of operations.

Proscription by the UN or like-minded countries

2.34               The Brigades are proscribed as a terrorist organisation by the governments of the United Kingdom and New Zealand.  Hamas (including the Brigades) has been proscribed as a terrorist organisation by the governments of the United States and Canada.  Hamas is also listed by the European Union for the purposes of its anti-terrorism financing measures.

Engagement in Peace and Mediation processes

2.35               The statement of reasons advises there are no current peace negotiations being conducted including the Brigades.

Conclusion

2.36               The Committee found that Hamas’ Izz al-Din al-Qassam Brigades engages in activities that satisfy section 102.1 of the Criminal Code. The Committee does not recommend disallowance of the regulation.

Recommendation 2
	The Committee recommends that the regulation, made under the Criminal Code section 102.1, to list Hamas’ Izz al-Din al-Qassam Brigades as a terrorist organisation not be disallowed.

Kurdistan Workers Party

2.37               The Attorney-General’s Statement of Reasons for re-listing the Kurdistan Workers Party is at Appendix E.

2.38               The PKK, also known as Kongra Gel, was initially listed on 17 December 2005, and re-listed 27 September 2007 and 8 September 2009.

Engagement in Terrorism

2.39               The statement of reasons notes that the PKK has continued to have extensive, direct involvement in most terrorist acts occurring in Turkey since the group was last listed in 2009.

The group has been particularly active since February 2011 when it ended a unilateral ceasefire in place since April 2009. Most attacks appear to be very specifically targeted, for example, armed assaults against Turkish military forces using small-arms fire. However, there also have been several indiscriminate, mass-casualty attacks employing both suicide bombings and vehicle-borne improvised explosive devices (IED). While most attacks have targeted Turkish security forces in the southeast, a number have targeted places frequented by civilians or tourists, including a shopping area in Ankara and a major shopping, tourist and leisure district in Istanbul. The PKK also was responsible for a ferry hijacking in the Marmara Sea, near Istanbul.

2.40               The statement of reasons provides an extensive list of significant recent attacks for which responsibility has been claimed by or reliably attributed to the PKK.  Such incidents include:

• 1 March 2012: Fifteen police officers and a civilian were wounded in a remotely controlled IED attack by suspected PKK militants targeting a police bus in the Imrahor Street area of Istanbul. The explosion reportedly occurred as the bus passed the headquarters of the ruling Justice and Development Party.
  
  
• 24 November 2011: Three Turkish employees of a Canada-based energy company were killed by PKK militants in an attack targeting the Selmo oil field at Kozluk, Batman province.
  
  
• 11 November 2011: A PKK militant carrying a suspected explosive device hijacked a passenger ferry and took hostage 18 passengers and six crew members in the Marmara Sea, near Istanbul.
  
  
• 29 October 2011: At least two people were killed and as many as 20 others wounded when a suspected PKK suicide bomber detonated her explosives outside a teahouse near the office of the Justice and Development Party in the town of Bingol in Bingol province.
  
  
• 27 September 2011: PKK militants kidnapped a total of eight teachers and a village guard in five armed attacks in the Pulumur district of Tunceli province; in the village of Gundogdu in Elazig province; and in the villages of Ciftlibahce, Dolunay and Cavundur in Diyarbakir province.

2.41               The Committee is satisfied the PKK continues to be engaged in terrorist activity.

Ideology and links to other terrorist groups/networks

Ideology

2.42               The Committee notes that in February 2005, the organisation redefined its theoretical objectives and announced that it was fighting to establish a Kurdish Democratic Federation.  In practice, however, Jane’s notes:

 . . . the PKK’s immediate objectives are greater cultural and political rights for Turkey’s Kurdish minority, including the amendment of the Turkish constitution to include an explicit recognition of a Kurdish identity, a comprehensive amnesty for PKK militants, including allowing the organisation's leadership to participate in political activities in Turkey, and an easing of the conditions of imprisoned PKK leader Abdullah Ocalan leading eventually to his release.[4]

Links to other terrorist groups/networks

2.43               The statement of reasons notes:

The PKK maintains close links with its Iranian affiliate, the Kurdistan Free Life Party (PJAK). Like the PKK, PJAK has training camps in northern Iraq. Iran has designated the PKK as a terrorist organisation and both Iran and Turkey are reported to have conducted probable coordinated military operations against both groups in their shared border areas.

Links to Australia

2.44               The statement of reasons records no known PKK links to Australia, but notes it is likely that elements of Australia’s Kurdish community remain sympathetic to the Kurdish nationalist cause.

Threat to Australian interests

2.45               The statement of reasons advises there are no known direct threats from the PKK to Australian interests.  The Committee notes, however, that the indiscriminate targeting of tourist locations is a threat to civilians of any nationality.

Proscription by the UN or like-minded countries

2.46               The Committee notes the PKK is listed as a proscribed terrorist organisation by many governments, including the United Kingdom, Canada and New Zealand, and is proscribed by the United States government under the name of Kongra Gel.  The PKK is listed by the European Union for the purposes of its anti-terrorism measures.

Engagement in Peace and Mediation processes

2.47               The statement of reasons advises the PKK is not known to be engaged in any peace or mediation processes.

Conclusion

2.48               The Committee found that the Kurdistan Workers Party engages in activities that satisfy section 102.1 of the Criminal Code. The Committee does not recommend disallowance of the regulation.

Recommendation 3
	The Committee recommends that the regulation, made under the Criminal Code section 102.1, to list the Kurdistan Workers Party as a terrorist organisation not be disallowed.

Lashkar-e-Tayyiba

2.49               The Attorney-General’s Statement of Reasons for re-listing Lashkar-e-Tayyiba is at Appendix F.

2.50               This organisation was initially listed on 9 November 2003, re-listed 5 June 2005, 7 October 2005, 10 September 2007, and 8 August 2009.

2.51               Lashkar-e-Tayyiba (LeT) is a Pakistani militant Islamist group based in Pakistan and operating in India, and is one of the most capable and high-profile militant groups currently active in South Asia. It was formed in 1990 with the specific objective of waging irregular warfare in the disputed territory of India-administered Kashmir (IAK).[5]

Engagement in Terrorism

2.52               The statement of reasons notes the LeT is one of the most active of the Pakistan-based Kashmir-focused militant groups, directly engaging in, preparing and planning numerous terrorist attacks, including bombings, assassinations and kidnappings against Indian security forces (military and police), government assets, transport and civilians in the disputed territory as well as in India.

2.53               Recent activities attributed to or claimed by the LeT include:

• October 2011: An LeT militant killed a policeman in Srinagar. Police arrested the gunman, who claimed during his interrogation that LeT had revived plans to assassinate police officers;
  
  
• January 2011: Suspected LeT militants kidnapped two girls from their home and then killed them in Sopore, IAK; and
  
  
• August 2010: An Indian soldier and three suspected LeT militants were killed in a two-day gun battle in IAK.

2.54               The Committee is satisfied the LeT continues to be engaged in terrorist activity.

Ideology and links to other terrorist groups/networks

Ideology

2.55               The statement of reasons advises that the LeT’s stated objective is to:

[unite] Indian administered Kashmir (IAK) with Pakistan under a radical interpretation of Islamic law. LeT’s broader objectives include to establish an Islamic Caliphate across the Indian subcontinent, and to reclaim all ‘occupied Muslim lands’ in southern Spain and the Balkans. To this end, LeT intends to pursue the ‘liberation’, not only of Muslim-majority Kashmir, but of all India’s Muslim population, even in areas where they do not form a majority. LeT has declared that democracy is antithetical to Islamic law and that LeT’s jihad requires it to work toward turning Pakistan itself into a purely Islamic state.

Links to other terrorist groups/networks

2.56               The statement of reasons notes:

LeT maintains links to the Afghan Taliban and several Pakistani Islamist extremist groups, including the Kashmir-focused terrorist group Jaish-e-Mohammed and the Sunni sectarian group Lashkar-e-Jhangvi. LeT is reported to have been involved with militant Islamists in other places where conflict involving Muslims have arisen, including Bosnia, Chechnya, Kosovo and Afghanistan.

Links to Australia

2.57               The Committee notes the statement of reasons advice that:

Several individuals with links to LeT have been arrested in Australia, the US, and Canada since 2003 for allegedly planning terrorist activities. In March 2007, a French court convicted a French national, Willie Brigitte, for planning terrorist attacks in Australia in 2003 in conjunction with suspected LeT chief for external operations, Sajid Mir. Brigitte’s Australian associate, Faheem Khalid Lodhi, was also convicted of planning acts of terrorism by a New South Wales Supreme Court jury in June 2006; in June 2008, Lodhi lost an appeal to the High Court of Australia to have his case overturned.

Threat to Australian interests

2.58               LeT’s attacks show a reckless disregard for civilians of any nationality as evidenced by the November 2008 attack on the Indian financial hub, Mumbai, in which LeT members killed more than 170 people (including two Australians).  

2.59               The Committee concludes the LeT therefore pose a threat to Australian interests and Australians who may be unwittingly caught in a LeT attack.

Proscription by the UN or like-minded countries

2.60               The statement of reasons notes the LeT is listed in the UN 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of Canada, the United Kingdom, the United States, Pakistan and India.

Engagement in Peace and Mediation processes

2.61               The statement of reasons advises the LeT is not engaged in any peace or mediation process.

Conclusion

2.62               The Committee found that Lashkar-e-Tayyiba engages in activities that satisfy section 102.1 of the Criminal Code.  The Committee does not recommend disallowance of the regulation.

Recommendation 4
	The Committee recommends that the regulation, made under the Criminal Code section 102.1, to list the organisation Lashkar-e-Tayyiba as a terrorist organisation not be disallowed.

Palestinian Islamic Jihad

2.63               The Attorney-General’s Statement of Reasons for re-listing Palestinian Islamic Jihad is at Appendix G.

2.64               This organisation was initially listed on 3 May 2004, re-listed 5 June 2005, 7 October 2005, 10 September 2007 and 8 August 2009.

2.65               PIJ is a Sunni Islamist Palestinian militant organisation committed to the destruction of the state of Israel.

Engagement in Terrorism

2.66               The statement of reasons notes PIJ claimed responsibility for more than 30 suicide bombings between 1987 and 2006 but since that time the majority of its attacks have consisted of indiscriminate rocket and mortar fire into southern Israel from Gaza.

Its attacks are generally indiscriminate in nature, seeking to maximize casualties.  Some recent examples include:

• 29 October 2011: PIJ launched a number of rockets into several areas of Israel’s Southern District, killing one Israeli civilian and wounding two.
  
  
• 20 August 2011: PIJ militants launched a series of rockets into Israel’s southern district, killing one Israeli civilian and injuring seven.
  
  
• 8 January 2011: suspected PIJ militants fired two mortar rounds into an area of Israel’s Southern District, wounding two Thai nationals.

2.67               Jane’s further notes that:

On 2 March, the Al-Quds Brigades, the armed wing of Palestinian Islamic Jihad (PIJ), issued a statement in which it claimed that the group’s militants had fired at least 41 Grad missiles, 20 home-made projectiles, six mortar rounds, and three 107 mm rockets towards Israeli targets so far in 2012.[6]

2.68               The Committee is satisfied the PIJ continues to be engaged in terrorist activity.

Ideology and links to other terrorist groups/networks

Ideology

2.69               The statement of reasons notes PIJ’s goal is the establishment of a sovereign Islamic state within the geographic borders of the pre-1948 British mandated Palestine.  PIJ promotes the military destruction of Israel as the only viable means to attain this goal. Accordingly, PIJ refuses to participate in the political process and rejects the possibility of a negotiated settlement to the Israel/Palestine problem.

Links to other terrorist groups/networks

2.70               The statement of reasons notes PIJ was inspired by and remains ideologically supportive of Iran’s Islamic Revolution and maintains close ties with the Iranian Revolutionary Guards Corps and Hizballah.

2.71               This is corroborated by Jane’s analysis that “the PIJ's most stable alliances are with Hizballah and Iran, with whom it shares an ideological and in the former case organisational affinity as well.”[7]

Links to Australia

2.72               The statement of reasons notes there are no known links between PIJ and Australia.  The Committee is unaware of any such links.

Threat to Australian interests

2.73               While the statement of reasons advises PIJ has confined its attacks to the Levant and has not deliberately targeted Western interests, the Committee notes the potential threat to Australians which arises from the indiscriminate nature of the rocket attacks undertaken by the PIJ.

Proscription by the UN or like-minded countries

2.74               The statement of reasons advises the PIJ is proscribed as a terrorist organisation by the governments of Canada, New Zealand, the United Kingdom and the United States.  PIJ is also listed by the European Union for the purposes of its anti-terrorism financing measures.

Engagement in Peace and Mediation processes

2.75               As noted above, PIJ promotes the military destruction of Israel as the only viable means to attain this goal and accordingly rejects the possibility of a negotiated settlement to the Israel/Palestine problem.

Conclusion

2.76               The Committee found that Palestinian Islamic Jihad engages in activities that satisfy section 102.1 of the Criminal Code.  The Committee does not recommend disallowance of the regulation.

Recommendation 5
	The Committee recommends that the regulation, made under the Criminal Code section 102.1, to list the organisation Palestinian Islamic Jihad as a terrorist organisation not be disallowed.

 

The Hon Anthony Byrne MP

Chairman