Overview
3.1
This chapter examines the grounds for relisting Hamas’s Izz al-Din al-Qassam Brigades (the Hamas Brigades), both through the legislative criteria for relisting and non-legislative factors included in the Statement of Reasons prepared by the Department of Home Affairs.
3.2
As part of this review the Committee received several submissions from interested individuals and groups arguing that the listing of the Hamas Brigades as a terrorist organisation should be expanded to the whole organisation of Hamas. These submissions and their arguments for expanding the listing are also discussed in this chapter.
Background
3.3
Founded during the first intifada in 1987, Hamas was originally a branch of the Muslim Brotherhood . A religiously and ideologically motivated extremist organisation and political party that fuses Palestinian nationalism with Sunni Islamist objectives, Hamas has been the governing body in Gaza since elections in 2006. It is responsible for the provision of government services and administration within Gaza.
3.4
More recently, Hamas has prioritised its nationalist objectives over its religious ones, probably due to political pragmatism. Its primary goal is the establishment of an independent Islamic Palestinian state comprising of Gaza, the West Bank and the territory of Israel, destroying Israel as a political entity in the process.
3.5
The Hamas Brigades were established in 1991 as the paramilitary wing of Hamas. As part of this work, they undertake military activity on behalf of Hamas and have adopted the tactics of terrorism in order to further this aim, such as suicide bombings, kidnappings of Israeli citizens and military personal and indiscriminate rocket attacks.
3.6
Although falling underneath the political leadership of Hamas within its internal structure, the Hamas Brigades are thought to operate largely independently from the political structure of the organisation. According to the Statement of Reasons it is unlikely it would ask for permission to take operational actions from the political leadership.
3.7
The Hamas Brigades had predominantly operated in Gaza with a limited presence in the West Bank. Its operations have been limited to the historical borders of Palestine and it has not demonstrated any intent to attack targets outside of Israel. Despite this, the leader of the Hamas Brigades has stated that the work of the Brigades is to ‘act against the Zionist enemy wherever it may be.’
3.8
The leader of the Hamas Brigades since 2002, Mohammad Deif has been described as Israel’s most wanted man. His deputy, Marwan Issa, represents the Hamas Brigades within Hamas’ political bureau. Membership of the Hamas Brigades is difficult to ascertain but is estimated as being between several thousand and 30,000 people. The proportion of Brigade members who work in legitimate security and military duties and those who take part in terrorist activities is also unknown.
3.9
Similarly, it is difficult to ascertain the amount of money Hamas allocates to the Hamas Brigades and the origins of those funds. The Statement of Reasons states that Iran is known to fund the Brigades. Hamas’ funding comes from a number of sources, both official and private, as well as from taxes collected within Gaza.
3.10
The Hamas Brigades have been known to organise and collaborate with other terrorist organisations. One of these is PIJ (see chapter two for more discussion of this organisation). The Brigades also maintain their own website to promote their message, commemorate events and praise anti-Israel protests.
Legislative criteria for relisting
3.11
The Statement of Reasons sets out that the Hamas Brigades have met the legislative criteria for relisting as a terrorist organisation through directly or indirectly engaging in terrorist acts.
3.12
Since 2005, the Hamas Brigades terrorist activities have consisted mostly of rocket, mortar and small arms fire at Israel and at communities near Gaza resulting in injuries and death to civilians and military personnel as well as property damage.
3.13
The Statement of Reasons provides a list of terrorist activities which can be attributed to the Hamas Brigades, reproduced below:
From 10-21 May 2021, Palestinian militants, including from the Brigades, launched over 4,000 rockets into Israel from Gaza. The Brigades’ official spokesperson claimed its responsibility for multiple strikes against Israel during this period.
On 29 December 2020, Palestinian militant groups, including the Brigades, launched rockets into the Mediterranean Sea off Gaza during joint military drills. According to an official Brigades statement, the exercises aimed to simulate expected threats posed by Israel and to develop the capability of Palestinian resistance fighters for conflict.
Throughout August 2020, Palestinian militants in Gaza launched hundreds of incendiary and explosive balloons and at least 16 rockets into Israel before a ceasefire between Israel and Hamas was reached on 31 August. The Brigades probably supported some of these attacks.
From 1-2 July 2020, the Brigades fired 24 rockets and 20 large-calibre mortars towards the sea from Gaza. An anonymous Hamas official told media that Hamas’ rocket tests aim to improve its military capabilities to counter any Israeli plan to attack the Palestinian people.
On 6 May 2019, the Brigades spokesperson posted on social media that the Brigades had ‘succeeded in overcoming the so-called Iron Dome by adopting the tactic of firing dozens of missiles in one single burst’ which caused ‘great losses and destruction to the enemy’. The Israel Defense Forces (IDF) confirmed Hamas and PIJ had repeatedly fired at a specific location, although few rockets had penetrated the system. At least 690 projectiles were fired in total.
On 30 May 2018, the Brigades and PIJ issued an official joint statement claiming their responsibility for ‘targeting occupation settlements and military sites near Gaza Strip with tens of projectiles and mortars’.
3.14
The rockets fired into Israel during the escalation of tensions between Gaza and Israel during April 2021 can also be attributed to both the Hamas Brigades and PIJ.
Non-legislative factors
3.15
The Hamas Brigades are known to have links to several other terrorist organisations including to PIJ, a listed terrorist organisations discussed in more detail in chapter two of this report.
3.16
As with the listing for PIJ, the Statement of Reasons sets out that the Hamas Brigades have made no specific threats to Australia or Australian interests though Australians could be harmed incidentally from attacks from this organisation.
3.17
Hamas and/or the Hamas Brigades are proscribed as terrorist organisations by several other nations. Both the UK and New Zealand proscribe the Hamas Brigades, whereas the US and Canada proscribe the whole organisation of Hamas, the Hamas Brigades falling within that listing. The European Union also lists Hamas as a terrorist organisation as part of its anti-terrorism financing measures.
3.18
The Department of Foreign Affairs and Trade (DFAT) includes Hamas in its Consolidated List which implements Australia’s anti-terrorism financing obligations under the Charter of the United Nations Act 1945 (Cth).
3.19
Mr Roger Noble AO DSC CSC, Ambassador for Counter-Terrorism at DFAT stated that the entirety of Hamas has been listed under this regime since 2001 and has been relisted in 2010, 2013, 2016 and 2019.
3.20
The Hamas Brigades agreed to a ceasefire with Israel after the May 2021 escalation in violence between Israel and Palestine. In 2017, Hamas also engaged in reconciliation processes with the Palestinian Authority (led by its rival Fatah), however these processes did not address the future of the Hamas Brigades and as of writing they have not disarmed. There are also ongoing reconciliation processes between Hamas and Fatah.
Previous reviews
3.21
As stated in chapter one, the Hamas Brigades were originally listed on 9 November 2003, and have been relisted in June and October 2005, 2007, 2009, 2012, 2015 and most recently on 4 August 2018.
3.22
In its August 2018 review of the listing of the Hamas Brigades, the Committee noted stakeholder support for the expansion of the listing to include the whole organisation of Hamas but made no recommendation in that regard.
Expanding the listing
3.23
The Committee received several submissions from interested parties to the review on the relisting of the Hamas Brigades. These submissions to the review were supportive of the continued listing of the Hamas Brigades but wanted to see the listing expanded to include the whole organisation of Hamas and advocated for the Committee to recommend this to the Australian Government.
3.24
On 1 October 2021 the Committee held a public hearing discussing these issues with the submitters to the review on this relisting.
Inconsistency in terrorist organisation listings
3.25
The Zionist Federation of Australia (ZFA) noted what it viewed as inconsistencies in the Government’s decision to list only the Hamas Brigades as a terrorist organisation and the Minister’s Statement of Reasons.
3.26
The ZFA stated that the Statement of Reasons lists Hamas’ goal of the destruction of the State of Israel as well as its strategy of armed resistance and use of the Hamas Brigades to achieve these ends. It argued these factors mean that Hamas as a whole organisation meets the criteria of a terrorist organisation and should be listed as such.
3.27
The ZFA drew a parallel between the listing of Islamic State and its militia and Hamas and the Hamas Brigades, noting that after the Islamic State in Iraq and the Levant (ISIL) took control of swathes of territory in Syria and Iraq in 2014, Australia did not recognise this organisation as a legitimate ruling body of the area and listed the whole organisation of Islamic State as a terrorist organisation in the same year. ZFA stated:
There are obvious parallels here to Hamas, which overran the rightful and recognised government in Gaza (i.e. the Palestinian Authority) in 2007, is not recognised by Australia as the legitimate ruler of Gaza, and operates both a government and a terrorist militia. (The recent overthrow of the Afghan government by the Taliban is another parallel situation.)
3.28
The ZFA also noted that the whole organisation of Hamas is listed as a terrorist organisation under DFAT’s Consolidated List for terrorism financing purposes (see paragraph 3.18 above) but not as part of the Criminal Code’s regime.
3.29
At the public hearing into this relisting, Mr Roger Noble of DFAT went into more detail about the process for DFAT’s anti-terrorism financing listing:
Essentially, the Minister must list an entity if satisfied on reasonable grounds that it is owned or controlled directly or indirectly by persons who commit terrorist acts or acts on behalf of or at the direction of such persons. For 20 years, starting in 2001, governments have decided that, under the financial sanctions code, that applied to Hamas in its entirety. Under the Criminal Code…the criteria for listing a terrorist organisation are that the organisation is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act. It's a much more prescriptive legal requirement…So they are different regimes with different purposes, and at their heart is a similar look at the organisation.
3.30
Mr Noble said further that DFAT and the Department of Home Affairs (DHA) brief each other on both regimes very regularly, saying ‘in a practical sense, we do that every two weeks.’ DFAT and DHA also have a forum where both agencies discuss new entities which may be considered for listing by either agency. This interagency team has a high level of awareness of both regimes with DFAT leading on financial sanction and DHA leading on Criminal Code listings.
Hamas as a unitary entity
3.31
Many of the submissions to this review noted that, despite what is written in the Statement of Reasons prepared by the Department, there is evidence that Hamas does not consider the Hamas Brigades a separate entity, and as such the whole organisation of Hamas should be listed as a terrorist organisation.
3.32
In its submission to the review, AIJAC stated that the leadership of Hamas do not consider there to be a distinction between the Hamas Brigades and Hamas itself. AIJAC noted the following quote from a Human Rights Watch analysis of Hamas from 2002:
In the case of Hamas, there is abundant evidence that the military wing is accountable to a political steering committee that includes Shaikh Ahmad Yassin, the group’s acknowledged “spiritual” leader, as well as spokespersons such as Ismail Abu Shanab, `Abd al-`Aziz al Rantisi, and Mahmud Zahar. Yassin himself, as well as Salah Shehadah, the late founder and commander of the `Izz al-Din alQassam Brigades, have confirmed in public remarks that the military wing implements policies that are set by the political wing.
Whilst some academic commentators have asserted that the al-Qassam Brigades operate with complete independence, senior Hamas leaders have themselves pointed out that a separation between the political and military wings does not exist.
3.34
ECAJ cited the work of Dr Matthew Levitt, an academic and former counterterrorism intelligence analysist for the US Federal Bureau of Investigation who has written extensively on terrorism in the Middle East. Dr Levitt pointed to the words of the founder of Hamas, Sheikh Ahmad Yassin, who was quoted as saying about the organisation of Hamas:
“We cannot separate the wing from the body. If we do so, the body will not be able to fly. Hamas is one body.”
3.35
The view was echoed by the Foundation for Defense of Democracies (FDD), a US based nonpartisan research institute ‘focusing on national security and foreign policy,’ in its submission to the review:
In truth, there are no “wings” of Hamas. This is a false distinction. A very large body of literature supports the fact that the organization operates cohesively. Indeed, the purported division between Hamas’ political and military wings is a narrative often wielded by governments that seek to maintain engagement with the group despite its terrorist activities. The political operatives within Hamas directly support the activities of its warfighters, and vice versa.
3.36
Dr Johnathan Schanzer, Senior Vice President for Research at the Foundation for Defense of Democracies (FDD), stated at the public hearing:
There is no separating the Qassam Brigades from the broader organisation. This is a fiction perpetuated by those who wish to engage with elements of the terrorist group. The fact remains that senior leaders like Yahya Sinwar, the leader of Hamas in Gaza; or Saleh al-Arouri, the deputy of the politburo, have served in both political and military roles, and they go back and forth with ease. The group receives funding from the likes of Iran, Qatar and perhaps even Turkey, and it makes no distinctions or earmarks for how that money is spent, so those funds are commingled. The political figures of the organisation advocate for the use of human shields by those carrying out terrorist acts. This practice is a war crime. So is the practice of holding the bodies of Israeli soldiers with the intent to use them as leverage in future negotiations, and this is done by the so-called political figures of Hamas in concert with those that have carried out attacks.
3.37
Dr Schanzer went on to say that although there are tensions and divisions within the organisation of Hamas (such as between members of the organisation in the West Bank and those in Gaza, as well as between members based in various other countries) and in general it is less disciplined as an organisation than other governments and military organisations, it is important to remember that the Hamas Brigades still operate within the jurisdiction of the political wing of Hamas. ‘If that political class does not want a war, there will not be one.’
3.38
Dr Schanzer of the FDD also gave evidence before the Committee that fundraising done by and for Hamas is often ‘comingled’ between the political wing of Hamas and the Brigades. Mr Schanzer described that during fundraising activities, funds are provided to a member of the Brigades who then gives them to a member of the political wing who is responsible for disbursing the funds.
3.39
Dr Schanzer provided an example of the unitary nature of Hamas from 2014. In the summer of 2014, during conflict between Hamas and Israel, several members of Hamas’ leadership were based in Turkey. Mr Salah al-Arouri, a political figure of Hamas based within Turkey who was also the leader of the Brigades in the West Bank took responsibility for one of the initial attacks during that conflict, showing that this person was ‘playing a political role inside Turkey while also preparing and dispatching terrorists to carry out attacks in the West Bank just months before.’
3.40
Dr Schanzer also stated that after the most recent conflict in between Israel and Hamas, Israel discovered a system of tunnels, some of them hundreds of kilometres long, built beneath Gaza for the purpose of military activities. This tunnel network could not have been made without close coordination with the political apparatus of the Gaza Strip, in particular the authorities which maintain the sewerage, water and electricity networks, showing a very high level of coordination between the military and political wings of Hamas.
3.41
AIJAC’s submission lists several senior members of Hamas who have been involved in terrorist activities of the Hamas Brigades, such as Yahya Sinwar, Fathi Hamad, Husam Badran and Saleh al-Arouri.
3.42
In evidence before the Committee, Ms Naomi Levin, Senior Policy Analyst for AIJAC, quoted the current leader of Hamas in Gaza, Yahya Sinwar who said on 26 May 2021: ‘We support the eradication of Israel through armed jihad and struggle. This is our doctrine.’
3.43
Ms Levin stated further:
This is not a man who is leading the Brigades; this is a man who is leading Hamas as a full entity and sits on the politburo in Gaza, their main territory. I think that goes to the heart of exactly your question. Sinwar has previously had a significant role in the brigades, but these days, to international observers, he is part of the political wing of Hamas
3.44
In 2019, the European Union’s General Court rejected a petition from Hamas to delist the organisation as a terrorist organisation. The Court stated that Hamas was unable to prove that the two organisations, Hamas and the Hamas Brigades, were separate organisations and as such it had no choice but to reject its petition.
3.45
The ZFA provided numerous examples of senior members of Hamas’ political leadership making statements that indicated that the Hamas Brigades were directed by the political wing of Hamas, as well as examples of Hamas’s political leadership advocating terrorist acts.
3.46
In his evidence before the Committee, Mr Mike Burgess, the Director-General of ASIO stated that he has no doubt that Hamas as a whole advocates violence or acts of violence, though it is the Brigades that carries these acts of violence out.
3.47
At the public hearing, AIJAC, the ZFA and ECAJ were in no doubt that Hamas as a whole met the requirements of being listed as a terrorist organisation under the Criminal Code.
Ideology and activities of Hamas
3.48
Several of the submissions also noted that the ideology of the whole organisation of Hamas as well as the violent actions of the organisation during the May 2021 conflict with Israel are further evidence of the need to expand the listing of the Hamas Brigades to the whole organisation of Hamas.
3.49
In its submission, AIJAC stated that the founding charter of Hamas cites the Protocols of the Elders of Zion, a notorious anti-Semitic forgery, and little has changed in Hamas’ ideology since then, with the ultimate goal of Hamas being the complete destruction of Israel. The FDD echoed this, stating:
The 1988 charter, which remains the overarching political document defining Hamas’ principles and methods, calls for the violent destruction of Israel. The charter’s preamble posits that “Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it.” The charter also includes vehemently antisemitic language, asserting that Jews “take control of the world media,” were behind “most of the revolutions” throughout modern history, and use “money to establish clandestine organizations which are spreading around the world, in order to destroy societies and carry out Zionist interests.”
3.50
Dr Schanzer of the FDD also discussed the original charter of Hamas, describing it as ‘dripping with violent sentiment’ and a document that encouraged murder and genocide and the destruction of the State of Israel. Subsequent documents released by Hamas since then, such as the 2017 ‘Document of General Principles and Policies’ (released by the Hamas leadership based in Qatar) did not supplant this charter.
3.51
In 2017, Hamas released A Document of General Principles and Policies as part of a larger campaign to soften its image with the international community. Despite some softening of language within this document, Hamas’ aim as an organisation continues to be the complete destruction of the State of Israel, stating ‘Hamas rejects any alternative to the full and complete liberation of Palestine, from the [Jordan] river to the [Mediterranean] sea.’
3.52
Mr Peter Wertheim, Co-Chief Executive Officer of ECAJ stated the following at the public hearing:
For most of its history Hamas as an organisation has made no attempt to hide or disguise the full enormity of what it stands for. It not only calls for the destruction of Israel as a state but its founding charter, the Hamas covenant, openly advocates in article 7 the killing of Jews and in article 13 the indiscriminate use of violence. Article 13 also repudiates negotiations and compromise of any kind. Article 28 declares that the Jews control 'the Freemasons, the Rotary and Lions clubs and other sabotage groups' and 'that Israel, Judaism and Jews challenge Islam and the Moslem people'. Much of this language would not be out of place in a Nazi manifesto. There is no attempt to hide behind weasel words about Zionism and Zionists. The hostility is openly directed at Jews and the Jewish people.
3.53
Dr Bren Carlill, Director of Public Affairs at the ZFA, also noted Hamas’ treatment of civilians within Gaza, pointing out that Hamas persecutes Christians and LGBTIQ+ people within its territories and imposes strong restrictions on freedom of speech and mobility. He stated this does not directly go towards whether Hamas as a whole should be listed as a terrorist organisation but speaks to the character of the organisation.
3.54
Dr Bren Carlill of the ZFA also made reference to the statements of Fathi Hammad, the head of Hamas’ television channel Al-Aqsa TV, in May 2021, who had called for the beheading of Jews and also said:
The Jews are a treacherous people. There can be no peace with the Jews. There can be no peace with the Zionists. The only thing we have for the Zionists is the sword. The only thing we have for the Zionists is the Ayyash 250 rocket.
3.55
In its submission, the FDD wrote that Hamas’ practice of withholding the remains of killed Israeli soldiers, a policy endorsed and put into practice by both the political and military wings of the organisation, is another example of the blurred line between Hamas as a paramilitary organisation and a political one. The withholding of remains may constitute a war crime under customary human rights law.
3.56
As well as this, the ZFA stated in its submission that Hamas is known to cultivate children through its ‘Pioneers of Liberation’ summer camps which include indoctrination and military training. Child attendees of these camps are ‘trained how to abduct Israelis, stab Israeli civilians and overrun IDF bases.’
3.57
Mr Richard Feakes, First Assistant Secretary and Deputy Counter-Terrorism Coordinator at DHA stated that the evidence presented by Mr Schanzer and all the stakeholder groups was ‘compelling’ but the Department would need to seek legal advice to ensure that the actions of Hamas met the legal benchmarks for listing under the Criminal Code.
Terrorism financing and Hamas
3.58
Another argument for expanding the listing of the Hamas Brigades to the whole organisation of Hamas is that Hamas uses its charitable endeavours as fronts for fundraising for its terrorist activities.
3.59
AIJAC referenced two instances of funding being diverted to Hamas from charitable organisations. In 2016, a former Director of the non-government organisation World Vision called Mohammed el-Halabi was charged by the Israeli Government with diverting funds from World Vision to Hamas. This led to Australia cutting funding to World Vision’s Gaza-based activities. In 2018, the charitable organisation Ansaar International was banned in Germany for its fundraising for a variety of terrorist groups, including Hamas. The German Interior Ministry provided the following statement:
Financial support, even for what at first glance appear to be charitable activities, secures the terrorist groups’ power and dominance in the respective region, facilitates the recruitment of activists, and saves the terrorist group money, which in turn can be used to carry out the crimes it plans.
3.60
Dr Colin Rubenstein, Executive Director of AIJAC stated that if the listing of Hamas was expanded to the whole organisation it was likely to assist law enforcement in Australia in preventing fundraising for that organisation, saying ‘the more jurisdictions cut off Hamas’ fundraising ability, the lower the chance Hamas can pursue its violent goals.’
3.61
Dr Rubenstain also said that legitimate fundraising for humanitarian purposes is often abused and ends up ‘subsidising the terrorist and militaristic activities of Hamas proper,’ saying:
Law enforcement in Australia have made it clear, certainly in reference to the Hizballah inquiries which you held, that this can be a problem. Stopping this improper use of genuine charitable fundraising given for correct purposes and prescribing the entire organisation would eliminate this option.
Effect of listing on Australia and its interests
3.62
The Committee heard evidence at the public hearing of the effects of listing the whole organisation of Hamas on Australia, its interests overseas, and on its diplomatic relationships with other countries.
Domestic considerations
3.63
Mr Mike Burgess, Director-General of Security of ASIO said he would be supportive of expanding the listing of Hamas to the whole organisation. He also said that listing of the whole organisation would be of no operational benefit to ASIO.
3.64
Mr Burgess also stated that expanding the listing to the whole organisation of Hamas would make it unlawful for Australians to support Hamas, as this would be supporting a terrorist organisation.
3.65
Mr David Chick, Assistant Secretary of the Counter-Terrorism Strategic Policy Branch at DHA stated that Australians participating in protests in support of Palestine or even Hamas would probably not meet the definition of support of a terrorist organisation under division 102 of the Criminal Code if the listing was expanded to the whole of Hamas. He said:
…under separate sections 100 and then 101, which creates the offence of terrorist acts, a terrorist act does not include advocacy, protest, dissent or industrial action where it is not intended to cause serious harm, cause a person's death, endanger the life of a person or create serious risk to the health or safety of the public or a section of the public. So there is that connection there between violence, threat and risk to the public or sections of the public. It would only be if advocacy or a demonstration moved across that spectrum into that more dangerous field that you would be at risk of committing a terrorist offence
International and diplomatic considerations
3.66
Mr Peter Wertheim of ECAJ stated that listing the whole organisation of Hamas would be beneficial to Australia’s interests. Some countries in the Middle East, particularly the Gulf States would welcome the expanded listing as it would be consistent with their own interests and would be beneficial to their own internal security.
3.67
Dr Colin Rubenstein of AIJAC also stated that listing the whole of Hamas would benefit Australia, in particular its security standing and standing with its allies such as the US, Canada and the EU.
3.68
Dr Schanzer of the FDD stated, noting Australia’s support for the Two State Solution to the Israel-Palestine conflict, listing the whole of Hamas would be beneficial to Australia as well as it would empower the ‘more pragmatic faction within the Palestinian political divide,’ also saying that ‘Hamas has no interest whatsoever in making peace.’
3.69
Mr Marc Innes-Brown PSM, First Assistant Secretary for the Middle East and Africa Division of DFAT gave evidence of effects on Australia’s international interests which would be need to be considered if the Government decided to expand the listing to the whole of Hamas:
DFAT has a small consular constituency of around ten people in Gaza that, while small, can have complex case needs. Although DFAT currently has no direct contact with Hamas, if the listing of Hamas was expanded to the whole organisation, DFAT would have to make changes in arrangements to who it deals with in Israel and Gaza in order to continue its work with its consular cases.
Australia has some aid activities in Gaza through the UN and other partners. If the listing of Hamas was expanded there may be implications for some of Australia’s smaller aid partners, in particular if Hamas chose to retaliate against Australian projects.
DFAT would have to look at the practical implications for the management of its own programs in Gaza.
DFAT would have to reassess the security of its diplomatic mission in Ramallah. While security in the West Bank is maintained by the Palestinian Authority’s security forces, this is still something that should be considered if any changes to the listing are made.
If Hamas decided to run candidates in future Palestinian elections in the West Bank and wins seats in the Palestinian Authority there could be implications for Australia’s activities in the West Bank.
There could be wider foreign policy impacts to Australian interests in the Middle East as there are a range of regional governments that are strong supporters of the Palestinian cause as well as of Hamas.
3.70
Mr Noble of DFAT stated that any decision in this area should be for the Government and the security of Australia’s mission in Ramallah and the other factors listed are considerations that may influence that decision. He clarified that concerns about the security of the Australian mission in Ramallah is not a driver for listing or not listing the whole organisation of Hamas.
3.71
Mr Richard Feakes of DHA echoed this statement, saying that there are factors which need consideration when managing a new or changed listing but do not preclude listing.
3.72
Mr Feakes of DHA stated that because an expanded listing has not been considered by the Australian Government at this time, the Department has not considered any implications of an expanded listing on Australian’s travelling to Gaza.
Listing status in other countries
3.73
The Committee also received evidence about the listing status of Hamas and the Hamas Brigades in other countries.
3.74
ECAJ provided a list of countries or State groupings which list Hamas in its entirety and countries that only listed the Hamas Brigades in its submission:
Countries that list Hamas: the US, the EU, Canada, Japan, Israel and the Organisation of American States;
Countries that list the Brigades: Australia, the UK, New Zealand and Paraguay.
3.75
Dr Schanzer of the FDD stated that he did not know why the UK did not list Hamas in its entirety as a terrorist organisation but the fact that it had not had been was a source of strain in the relationship between the US and UK Governments. He went on to say that the UK Government has been reticent to list certain charities operating within the UK that have connections to Hamas and that he believed the reason for this was political and ‘that it might have something to do with constituents inside the UK.’
3.76
In its response to a question on notice AIJAC stated that the UK has relied upon the EU’s listing of the whole organisation of Hamas as a de facto proscription on the group but ‘since the UK’s withdrawal from the European Union in 2020, this is no longer considered satisfactory to prevent Hamas activity on British soil.’
3.77
Dr Schanzer of the FDD gave evidence that a number of countries in the Middle East are becoming less friendly towards Hamas. These include Sudan, which is currently purging Hamas assets from its country, the United Arab Emirates, Bahrain and Morocco, which now have normalisation agreements with Israel, and Saudi Arabia which is increasingly distancing itself from Hamas. Although there are still many countries that embrace Hamas, such as Iran, Syria, Malaysia, Turkey and Qatar, ‘they will engage in international relations with Australia, whether you designated Hamas in its entirety or not.’
3.78
Mr Marc Innes-Brown of DFAT stated that he is not aware of any effects on the US, Canada and the EUs aid work in the region caused by the expanded listing of Hamas. He also said in response to questioning that he was not aware of any effects on these countries’ diplomatic relations in the region by the listing of the whole organisation of Hamas.
Process for relisting
3.79
The Committee also considered the decision making process of the Department and how it comes to decisions about whether to list, relist or delist an organisation.
3.80
In listing a terrorist organisation under the Criminal Code, the Department has a set protocol which it follows. An overview of this protocol is provided in chapter one of this report.
3.81
Mr Richard Feakes of the Department stated that he is not aware of any rationale as to why the whole organisation of Hamas is not listed as a terrorist organisation under the Criminal Code. He stated that multifaceted organisations like Hamas and Hizballah (which has previously been reviewed by the Committee) require careful consideration before listing the whole organisation due to potential implications, ‘particularly with regard to the association offense.’
3.82
Mr Feakes went on to say this is not a reason to preclude listing of a whole organisation, but that these organisations may require more careful consideration than less complex terrorist organisations.
3.83
Mr Feakes stated there was no consideration or engagement with other agencies about any expansion of the listing of Hamas prior to the relisting process which completed in August 2021. He also confirmed that the Department was not currently considering a wider listing of Hamas at the time of the public hearing. Mr Feakes also said there was not a conscious decision by the Department to not expand the listing and it open to the Department and the other agencies to pursue an expanded listing of Hamas in the future.
3.84
Mr Feakes said that in order to pursue a listing of the whole organisation of Hamas, one of the intelligence or policy agencies would have to make a nomination of that organisation which would then be forwarded to the Australian Government Solicitor for advice. As far as Mr Feakes was aware, the Department had not received a nomination to list Hamas from any of the agencies but this does not preclude any agency doing so in the future.
3.85
Mr Feakes of the Department said the process for listing an organisation is an open one. He made reference to the recent listing of Sonnenkrieg Division done in August 2021 as a response to the increasing caseload of ideologically motivated violent extremist organisations being handled by ASIO. In that situation the Department lead the nomination.
3.86
Mr Feakes of the Department confirmed that the Department is both able to nominate organisations and can also move those nominations forward towards listing. When asked why the Department did not consider expanding the listing of Hamas during this relisting process Mr Feakes said it was only considering the relisting at that time.
Committee Comment
3.87
The Committee finds that the Hamas Brigades meet the requirements for listing as a terrorist organisation under the Criminal Code, namely that this organisation:
Is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; and
Advocates the doing of a terrorist act.
3.88
As such the Committee supports the relisting of the Hamas Brigades as a terrorist organisation and finds no reason to disallow the legislative instrument.
3.89
The Committee is thankful to the stakeholders and community groups who made submissions to this review and found the evidence they provided supporting the expansion of the listing to the whole of Hamas very compelling.
3.90
In particular the Committee noted the violent rhetoric of the political leadership of Hamas, and how in many cases this goes beyond statements about armed struggle against the State of Israel to outright incitement of violence against Jewish people and very clearly meets the advocacy test set out in the Criminal Code.
3.91
The Committee is aware of the similarity between this relisting and the recently completed report on the relisting of Hizballah’s External Security Organisation where the Committee made a recommendation to the Australian Government to consider expanding the listing of Hizballah’s ESO to the whole organisation of Hizballah.
3.92
The Committee notes the concerns raised by the Department of Foreign Affairs and Trade about security and operational matters which may have to change if the listing is expanded, however these concerns cannot take precedence over national security and Australia’s continuing fight against terrorism.
3.93
The Committee was not satisfied with the Department of Home Affairs’ explanation as to why it did not further investigate an expanded listing of Hamas before the relisting of the Hamas Brigades was due to expire.
3.94
As such it makes the following recommendation:
3.95
The Committee recommends that the Australian Government give consideration to extending the listing of Hamas’ Izz al-Din al-Qassam Brigades as a terrorist organisation to the entirety of Hamas.
3.96
Should the Australian Government accept this recommendation, the Committee acknowledges there will be some practical challenges for various agencies in implementing and adjusting to this decision. The Committee anticipates that if the Australian Government accepts this recommendation, it should examine how these challenges can be mitigated.