Overview
2.1
This chapter will review the merits of relisting the three above organisations as terrorist organisations under the Criminal Code.
2.2
As mentioned in chapter one, there are two factors that the Minister for Home Affairs may take into account when determining whether an organisation should be listed as a terrorist organisation under the Criminal Code. In brief they are:
1
Legislative criteria as per section 102.1(2) of the Criminal Code (that the organisation in question is directly or indirectly engaged in terrorist acts or advocates the doing of the same); and
2
A variety of non-legislative criteria.
2.3
For all three listings, the Statement of Reasons prepared by the Minister for Home Affairs for each organisation addresses both the legislative criteria and non-legislative factors taken into account when making the decision to relist the organisations.
2.4
The Committee has used the Minister’s explanatory statement and the Statement of Reasons for each organisation as well as other information in order to complete this review. As all of these organisations are relistings, the Committee has focused on their activities since the last relisting in 2018.
Al-Shabaab
2.5
A Somalia based religiously motivated extremist organisation and an officially recognised affiliate of al-Qa’ida, al-Shabaab currently controls territory in southern Somalia with an ultimate goal of establishing an Islamist State in the Horn of Africa based on Sharia law.
2.6
Founded in 2006, al-Shabaab emerged as a prominent militia group within the Council of Islamic Courts, an organisation in Somalia set up as a rival government and eventual insurgency to the Somali Transitional Federal Government. Between 2009 and 2011, al-Shabaab controlled most of Somalia until it was ousted from Mogadishu by combined Ethiopian and Kenyan military forces in 2011.
2.7
The current leader of al-Shabaab is Sheikh Ahmed Umar who took over the organisation in 2014 after the death of its long-time previous emir, Ahmad Abdi Aw Muhammad Godane. Its membership is estimated to be between 5,000 and 14,000 people who it recruits primarily within Somalia through its domestic radio operations. Internationally, it recruits largely from within the diaspora Somali population through increasingly sophisticated video propaganda.
2.8
Al-Shabaab is currently financed through a combination of taxes levied on people living within its territory, demanding protection money from Somali business owners, private fundraising done overseas, and its own business operations.
Legislative criteria
2.9
The Statement of Reasons states that al-Shabaab has been responsible for conducting 1,630 terrorist attacks within the last twelve months and for at least 3,630 attacks within the last three years. These attacks are primarily aimed at both Ethiopian, Kenyan and Somali interests as well as Western and Jewish interests.
2.10
The Statement of Reasons provides a list of 17 significant attacks carried out by al-Shabaab since the last relisting of this organisation in 2018. The most deadly of these listed attacks occurred on 28 December 2019 when al-Shabaab attacked a Turkish vehicle convoy, killing 87 people. The most recent of these attacks occurred on 10 April 2021 when a suicide bomber killed three people outside a hotel in Baidoa, Somalia.
2.11
Aside from actively performing terrorist attacks, al-Shabaab also advocates the doing of terrorist attacks against Western interests. The Statement of Reasons provides the following examples:
In January 2020, al-Shabaab advocated attacks against US interests and tourists in Kenya, saying Kenya ‘should never be safe again;’
On 28 January 2020, it released a video celebrating the five year anniversary of a terrorist attack against a joint US-Kenya airbase and reminded its members of their duty to attack US interests in Africa; and
On 30 March 2021, in a video released online, al-Shabaab’s leader called for attacks on US and French interests in Djibouti and reiterated the duty of al-Shabaab members to attack foreigners in Djibouti and Somalia.
Non-legislative factors
2.12
As mentioned above, Al-Shabaab is an officially recognised affiliate of al-Qa’ida, another terrorist organisation listed under the Criminal Code. In 2012, an officially released video by the leader of al-Shabaab pledged the organisation’s allegiance to al-Qa’ida and its leader Ayman al-Zawahiri. This was reiterated in another official video released in 2014. Although the leadership of al-Shabaab is independent from al-Qa’ida, the senior leadership of al-Qa’ida has previously supported some of al-Shabaab’s activities.
2.13
Although al-Shabaab has not made any specific threats against Australia or Australian interests, it has called for and performed attacks against Western interests and targeted areas known to be frequented by Westerners overseas, such as cafes and shopping malls.
2.14
The Statement of Reasons provides examples of al-Shabaab’s connections to Australia:
An Australian-British duel national was killed in Nairobi, Kenya by an al-Shabaab attack on a shopping centre in 2013.
Some of those convicted of terrorist offenders in Australia have had connections to al-Shabaab, such as Yacqub Khayre who was responsible for the murder and hostage situation that occurred on 5 June 2017 at the Buckingham International Serviced Apartments in Brighton, Victoria.
In late 2011, three Australian citizens with links to al-Shabaab were convicted of conspiring to do acts in preparation of a terrorist act in the Victorian Supreme Court.
2.15
Al-Shabaab is listed as a terrorist organisation by other Five Eyes nations, New Zealand, Canada, the UK and the US. It is also listed as a terrorist organisation by the UN. It is not known to have engaged in any peace or mediation processes despite appeals to do so from the Federal Government of Somalia.
Lashkar-e-Tayyiba
2.16
Lashkar-e-Tayyiba (LeT) is a Sunni Islamist extremist organisation operating out of Pakistan with a stated goal of uniting Indian administered Kashmir with Pakistan under Islamic law. Its broader goals are the creation of an Islamic Caliphate across the whole Indian subcontinent.
2.17
Listed by the Global Terrorism Index as one of the most active terrorist organisations in the Jammu and Kashmir regions, LeT is operational in Pakistan, Afghanistan, Jammu and Kashmir. Recent arrests of senior members of LeT and action by the Pakistani Government to combat financial assistance for terrorism have increased pressure on the organisation however.
2.18
Originally founded in 1989 in order to wage violent jihad against the Soviet Union for its occupation of Afghanistan, LeT shifted its focus to Indian administered Kashmir in the 1990s after the Soviet withdrawal from the region. LeT also operates under the name Jamaat ud-Dawa, a charitable front organisation founded in 2002 by the leader of LeT immediately prior to the Pakistani Government banning LeT.
2.19
The founder and emir of LeT, Hafiz Muhammad Saeed was arrested in 2019 for terrorism financing charges and is currently serving a five and a half year sentence. Despite this, he continues to provide leadership to LeT.
2.20
As of the time of writing, three other senior members of LeT are currently either sentenced for or awaiting trial on terrorism financing charges: Zaki ur Rehman Lakhvi (the LeT chief of operations who was arrested for his role in the 2008 Mumbai terrorist attacks), Yahya Mujahid, and Zafar Iqbal.
2.21
The UN estimates that there are roughly 1,000 members of LeT active in Afghanistan, though an estimate of the total membership of LeT is difficult to ascertain. Media reports have claimed that LeT runs 16 training camps in Pakistan-claimed Kashmir as well as within Pakistan proper.
2.22
Despite attempts by the Pakistani Government to halt financing for LeT, this organisation still receives funding through charitable donations from sympathisers in Saudi Arabia, Pakistan, South Asia, various Gulf States and from within Europe. LeT also runs numerous mosques, schools and colleges within Pakistan which not only provide income but also give them access to the Pakistani population for recruitment purposes.
Legislative criteria
2.23
LeT has undertaken and planned for terrorist attacks against both Indian and Afghan security forces, Indian infrastructure and against civilians.
2.24
The Statement of Reasons prepared by the Department lists seven recent attacks which can be attributed to LeT. The most recent of these occurred on 14 May 2020 when LeT, in collaboration with another terrorist organisation, used a truck borne improvised explosive device to attack Gardez in Paktia Province, Afghanistan, killing five people and injuring 19.
Non-legislative factors
2.25
LeT maintains connections with numerous other terrorist organisations and violent extremist groups. These include the Afghan Taliban, Harkat ul Jihad al Islami, al-Qa’ida and Jaish-e-Mohammad. It also maintains connections with domestic extremist groups within India and Kashmir and is known to have previously collaborated with the Haqqani Network. LeT members have also been known to have been involved in other conflicts involving Muslims around the world, such as those in Kosovo, Bosnia and Chechnya.
2.26
Similarly to al-Shabaab, LeT has made no specific threats to Australia or Australian interests though Australians could be harmed by LeT attacks against targets such as tourist sites, hotels and transport infrastructure. Two Australians were killed in the 2008 Mumbai attacks committed by LeT. The LeT affiliated Australian Faheem Khalid Lodhi was convicted in 2006 for planning terrorist acts.
2.27
LeT is proscribed as a terrorist organisation by the UK, the US and Canada and is listed by the UN’s Security Council on its consolidated list. It has not engaged in any peace or mediation processes with the Indian or Pakistani Governments.
Palestinian Islamic Jihad
2.28
Palestinian Islamic Jihad (PIJ) was founded in Gaza in 1981 as an offshoot of the Muslim Brotherhood to be a radical militant alternative to this organisation with a focus on the liberation of Palestine. It is a religiously and ideologically motivated extremist organisation, blending radical Sunni Islamism and Palestinian nationalism with a goal of establishing an Islamic State within the historic borders of Palestine. It rejects the two state solution and advocates for the complete destruction of Israel.
2.29
PIJ primarily operates in Gaza but has offices in other parts of the Middle East such as Syria and Lebanon. Its focus as an organisation is almost entirely on its militant activities and as such there is little distinction between PIJ as a whole and its military wing, the al-Quds Brigades.
2.30
The founders of PIJ were Dr Fathi abd al-Aziz Shaqiqi and Shayk Abd al-Aziz Awda, both originally members of the Muslim Brotherhood. The current leader of PIJ is Ziyad al-Nakhaleh who took over after the previous leader was hospitalised in 2018.
2.31
Due to PIJ’s secretive nature, estimates of its membership are difficult to ascertain and range from less than one thousand members to over 8,000. Its recruitment techniques are similarly opaque, though it is known to have used women as suicide bombers and targeted children in order to continue the Palestinian resistance into the next generation. Funding for the PIJ comes primarily from Iran, despite the PIJ being a Sunni organisation.
Legislative criteria
2.32
PIJ has engaged in and continues to plan for terrorist attacks against Israel. The Statement of Reasons provided by the Department lists the following examples of attacks which can be reasonably assessed as being the work of PIJ:
In the period of 3-5 May 2019 PIJ and Hamas’ Brigades fired over 700 rockets into Israel, killing four civilians and injuring many others in response to the deaths of several Palestinian protestors at the Israel-Gaza perimeter fence;
In February 2020 after tensions escalated between Israel and PIJ over the death of one of its members, PIJ fired 80 rockets into Israel;
On 24 August 2020 four members of PIJ were killed while working on a bomb intended to be fired into Israel;
In March 2021 PIJ released a video showing its members preparing to fire a rocket which coincided with a rocket launch towards Be’er Sheva, Israel around the time the Israeli Prime Minister was due to visit this area;
During the period of 10-21 Mary 2021, Palestinian militants including members of PIJ launched over 4,000 rockets into Israel. PIJ has taken responsibility for the firing of rockets, mortar shells and rocket-propelled grenades at Israel during this period.
2.33
As well as performing terrorist acts, PIJ also encourages the doing of terrorist acts against Israel through its Arabic language website which promotes anti-Israeli propaganda, memorialises martyrs and celebrates Jihadist attacks. The leaders of PIJ have also made direct calls for attacks against Israel.
Non-legislative factors
2.34
PIJ maintains strong relationships with Hizballah. Hizaballah’s External Security Organisation (ESO) is listed as a terrorist organisation under the Criminal Code. PIJ has also engaged in operations with the Hamas Brigades (this organisation is discussed further in chapter three) including the shared use of tunnel networks.
2.35
There are no known links between Australia and PIJ though like with the other organisations mentioned in this chapter, PIJ’s attacks could result in injury to Australians or Australian interests incidentally.
2.36
PIJ is listed as a terrorist organisation by Australia’s Five Eyes partner nations: the US, the UK, Canada and New Zealand.
2.37
PIJ is currently part of a ceasefire agreement brokered following the escalation of tensions between Israel and Palestine in May 2021. PIJ has also previously been part of ceasefire agreements in 2014, 2019 and 2020 though these have sometimes been breached by PIJ and other parties to the agreements.
Comments from submitters
2.38
In its submission to this review, the Australia/Israel & Jewish Affairs Council (AIJAC) was supportive of the relisting of PIJ as a terrorist organisation.
2.39
AIJAC reinforced several of the facts listed by the Statement of Reasons, including PIJ’s participation in the May 2021 conflict between Israel and Palestine and PIJ’s recruitment of children to its cause.
2.40
The Executive Council of Australian Jewry (ECAJ) was also supportive of the relisting of PIJ in its submission to this review.
Committee comment
2.41
The Committee finds that the three organisations discussed in this chapter, al-Shabaab, Lashkar-e-Tayyiba and Palestinian Islamic Jihad, meet the requirements for listing as terrorist organisations under the Criminal Code, namely that they:
Are directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
Advocate the doing of a terrorist act.
2.42
As such, the Committee supports the relisting of these organisations as terrorist organisations under the Criminal Code and finds no reason to disallow these instruments.