1. Review of the listing and re-listing

Introduction

1.1
This review is conducted under section 102.1A of the Criminal Code.
1.2
Section 102.1A provides that the Parliamentary Joint Committee on Intelligence and Security may review a regulation specifying an organisation as a terrorist organisation for the purpose of paragraph (b) of the definition of a terrorist organisation in section 102.1 of the Criminal Code and report the Committee’s comments to each house of the Parliament before the end of the applicable disallowance period (15 sitting days).
1.3
Regulations listing Islamic State Khorasan Province and re-listing al-Murabitun as terrorist organisations were made by the Federal Executive Council on 2 November 2017. The regulations came into effect on 3 November 2017, and were presented in the Senate on 13 November 2017 and in the House of Representatives on 4 December 2017.
1.4
Regulations that specify an organisation as a terrorist organisation cease to have effect on the third anniversary of the day on which they take effect. Organisations can be re-listed, provided the Minister is satisfied on reasonable grounds that the organisation continues to directly or indirectly engage in terrorism or advocate the doing of a terrorist act.1

The Committee’s review

1.5
The Committee’s procedures for reviewing terrorist listings were established in its first report, Review of the listing of the Palestinian Islamic Jihad. The Committee determined that the validity of the listing of a terrorist organisation should be tested on both the procedures and the merits.2 The Committee has followed this practice for all subsequent reviews and again adopted this approach for the purposes of this report.
1.6
Where an organisation is listed for the first time, the Committee will assess the adequacy and appropriateness of the evidence presented in the explanatory statement as well as the procedures followed by the Government.
1.7
Where an organisation is re-listed, the Committee expects the evidence presented to demonstrate a continuation of the requisite activities to satisfy the relevant tests specified in the Criminal Code (and outlined below).

Conduct of the inquiry

1.8
A letter from the Attorney-General, including the statement of reasons and the process of listing undertaken by the Attorney-General’s Department, was accepted as a submission to the review and can be found on the Committee’s website.3
1.9
Notice of the review was placed on the Committee’s website and a media release was issued on 21 November 2017. No additional submissions were received by the Committee.
1.10
The remainder of this chapter will examine the Government’s procedures and the merits of the listing of Islamic State Khorasan Province and the re-listing of al-Murabitun as terrorist organisations based on the evidence provided to the Committee.

The Government’s procedures

1.11
An attachment to the Attorney-General’s letter outlined the procedures followed by the Attorney-General’s Department, with input from other agencies, for the listing or re-listing of each organisation. This document is available on the Committee’s website as an attachment to Submission 1.4
1.12
The Committee reviewed these procedures and noted that, since 2008, agreed practice has been that when an organisation is listed for the first time the regulations would enter into force after the 15 sitting day disallowance period has concluded. However, flexibility was maintained so that in circumstances where the Attorney-General considered a listing should commence immediately, this could occur.5
1.13
In his letter, the Attorney-General advised that the regulation listing Islamic State Khorasan Province as a terrorist organisation came into effect the day after registration.6 In his letter, the Attorney-General stated:
... given the heightened level of terrorist activity around the world, including the importance of sending a strong message that the activities of terrorist organisations are unacceptable, I have decided that the commencement of regulations listing Islamic State Khorasan Province should also not be delayed.7
1.14
The re-listing of al-Murabitun came into effect on 3 November 2017, the day on which the previous al-Murabitun regulation was due to expire.8 In his letter, the Attorney-General stated:
To ensure there is no gap in the coverage of the offences in relation to al-Murabitun, this regulation will commence immediately and will not be delayed until after the disallowance period.9
1.15
The Committee considered the procedures undertaken by the Government to be appropriate.

Merits of the listing and re-listing

The criteria for listing an organisation

1.16
For an organisation to be listed as a terrorist organisation under the Criminal Code, the Attorney-General 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; or
advocates the doing of a terrorist act.10
1.17
In addition to these legislative criteria, the Australian Security Intelligence Organisation (ASIO) may have regard to non-legislative factors, including:
engagement in terrorism;
ideology and links to other terrorist groups or networks;
links to Australia;
threats to Australian interests;
proscription by the United Nations Security Council or like-minded countries; and
engagement in peace/mediation processes.
1.18
For each listing, the legislative and non-legislative factors are addressed in the statement of reasons provided to the Attorney-General by ASIO.
1.19
The Committee was first advised of ASIO’s evaluation process, including its use of non-legislative factors, in 2005. As has been the approach in past reviews, the Committee has used these criteria to assess the appropriateness and adequacy of the evidence provided.
1.20
In reviewing the listing and re-listing, the Committee has taken into account the Attorney-General’s explanatory statement and other publicly available information.
1.21
As a re-listing, the Committee’s review of al-Murabitun has focussed upon the group’s activities since its last listing in November 2014.11

Islamic State Khorasan Province

1.22
Islamic State Khorasan Province (IS-KP) is a recognised affiliate of Islamic State that follows an extreme interpretation of Islam and adheres to Islamic State’s global jihadist ideology.12 The group’s primary objective is to establish the province of Khorasan (a historic name for the region encompassing Afghanistan, Pakistan and Central Asia) as part of the global caliphate of Islamic State.13
1.23
The group promotes sectarian violence and targets those who do not agree with its interpretations as infidels and apostates. It has used remote detonated improvised explosive devices (IEDs) and suicide IEDs to conduct attacks in Afghanistan and Pakistan.14
1.24
IS-KP has a central leadership structure which includes a Shura Council made up mostly of former Tehrik-e-Taliban Pakistan members. Following the death of IS-KP’s original leader in July 2016, Molve Abdul Haseeb was publicly reported as the new leader of IS-KP in November 2016.15
1.25
The group has an estimated membership of up to 11 000 members, which includes fighters and support elements, and is made up mostly of disaffected former Taliban members.16
1.26
This is the first time the Australian Government has listed IS-KP as a terrorist organisation.

Engaging in terrorism

1.27
According to the statement of reasons, the following attacks have been claimed by, or can be reasonably attributed to, IS-KP:
February 2017: IS-KP claimed responsibility for a suicide bomb attack against a Sufi shrine in Sehwan, Sindh, Pakistan, that killed at least 72 worshippers and injured more than 150;
February 2017: Pakistani authorities identified IS-KP as responsible for the shooting and killing of six local employees of the International Committee of the Red Cross in Qushtipa, Jowzjan, Pakistan;
February 2017: IS-KP claimed responsibility for a suicide bomb attack outside the Supreme Court of Afghanistan in Kabul that killed at least 21 people and wounded 40;
December 2016: IS-KP claimed responsibility for assassinating a Pakistani counter-terrorism officer and wounding his son in Peshawar, Pakistan;
November 2016: IS-KP claimed responsibility for a suicide bomb attack against a Shia mosque in Kabul, Afghanistan, that killed at least 30 worshippers and wounded over 80;
IS-KP claimed responsibility for a suicide attack against a Sufi shrine in Kuzdar, Balochistan, Pakistan, that killed 52 worshippers and injured more than 100;
June 2016: IS-KP claimed responsibility for a suicide bomb attack in Kabul, Afghanistan, against a convoy of Nepali security guards working for the Canadian Embassy that killed 14 guards. The Taliban issued a rival claim of responsibility for this attack;
IS-KP claimed responsibility for a three man suicide bomb attack against an ethnic Hazara protest gathering in Kabul, Afghanistan, that killed at least 80 people and injured over 230; and
April 2015: IS-KP claimed responsibility for a suicide bomb attack outside a bank in Jalalabaad, Nangarhar, Afghanistan, where Afghan government staff and military personnel were collecting their salaries. At least 33 people were killed and a further 100 injured in the attack.17

Advocating terrorism

1.28
According to the statement of reasons, IS-KP has publicly advocated the following terrorist attacks:
June 2016: IS-KP released a video statement praising perpetrator of the nightclub attack in Orlando, Florida, and urging Muslims loyal to Abu-Bakr al-Baghdadi to undertake lone actor attacks;
May 2015: IS-KP released a video statement declaring that the group’s ‘Caliphate’ is not limited to a particular country, but will expand across the world, and that it will raise the Islamic State flag above Jerusalem and the White House; and
March 2015: IS-KP released a video statement in which its then-leader, Hafiz Saeed Khan, eulogises his deputy killed in a US airstrike and vowed to ‘take revenge for his blood from those disbelievers. We will give them a lesson they will not forget’.18

Non-legislative factors

1.29
IS-KP is affiliated with Islamic State, receiving direct funding from the group and support and guidance from senior Islamic State leaders.19
1.30
There are no known direct links between IS-KP and Australia and no Australian citizens have been killed or injured in any IS-KP attacks. However, the group has called on attacks against Westerners and Western interests in Khorasan and Western countries. Furthermore, IS-KP is an officially-recognised affiliate of Islamic State which has directly called for attacks against Australians and Australian interests.20
1.31
In September 2015, the United States proscribed IS-KP as a terrorist organisation under the listing of Islamic State in Iraq and the Levant-Khorasan.21
1.32
IS-KP is not involved in any peace or mediation processes.

Al-Murabitun

1.33
Al-Murabitun is an al-Qa’ida aligned Sunni Islamic extremist group that was formed in 2013 through the merger of two splinter groups of al-Qa’ida in the Lands of the Islamic Maghreb (AQIM).22
1.34
The group is committed to implementing Shariah law in West Africa and uniting Muslims and Islamic movements across Africa against non-Muslim and secular influences. Its activities are funded through kidnapping for ransom, criminal activities, smuggling and connections with other terrorist organisations.23
1.35
According to the statement of reasons, current leadership of the group is uncertain following the reported death of leader Mokhtar Belmokhtar.24 Media reports suggest that Belmokhtar survived a drone strike in November 2016, but has since been sidelined from the group’s leadership and replaced by his deputy, Abderrahmane al-Sanhaji.25
1.36
While the current membership of al-Murabitun is uncertain, the group recruits members from northern and western Africa, and many members are former AQIM fighters.
1.37
Since the Australian Government first proscribed the organisation on 5 November 2014, the group has re-affirmed its allegiance to al-Qa’ida and continued to conduct attacks in West Africa with tactics including armed attacks, bombings, and kidnappings.26

Engaging in terrorism

1.38
Al-Murabitun continues to conduct attacks, primarily targeting facilities belonging to Malian, French, and United Nations Multidimensional Integrated Stabilisation Mission in Mali (MINUSMA) military forces, and public venues frequented by foreigners.27
1.39
The statement of reasons lists nine attacks that al-Murabitun is responsible for, or that can reliably be attributed to al-Murabitun, since the group was last proscribed in November 2014:28
January 2017: a suicide car bomb attack against a military base in Gao, Mali, killing 60 people and wounding 115;
November 2016: a car bomb attack targeting MINUSMA forces at Gao airport, Mali;
March 2016: a joint armed attack with al-Qa’ida in the Lands of the Islamic Maghreb (AQIM) at tourist hotels in Grand Bassam, Cote, d’Ivoire, killing 19 people and wounding 33;
January 2016: the kidnap of Australian nationals Kenneth and Jocelyn Elliot from their home in Djibo, Burkina Faso;
January 2016: a joint armed attack with AQIM at the Splendid Hotel in Ouagadougou, Burkina Faso, killing 29 people and wounding 56;
November 2015: a joint armed attack with AQIM at the Radisson Blu hotel – a hotel frequented by foreigners in Bamako, Mali, killing 19 people and wounding seven;
April 2015: a suicide car bomb attack against a MINUSMA camp in Ansongo, Mali, killing three people and wounding 16;
April 2015: the kidnap of Romanian national Iulian Ghergut from a mining facility in Tambao, Burkina Faso. Mr Ghergut has not yet been recovered; and
March 2015: an armed attack at a nightclub popular with expatriates in Bamako, Mali, killing five people and wounding nine.29

Advocating terrorism

1.40
Al-Murabitun has publically pledged to continue to resist secular and non-Muslim influences, and according to the statement of reasons, has made the following public statements:
a claim of responsibility for an attack in January 2017, vowing continued opposition against French and allied Malian counter-terrorism operations;
a declaration of unity with AQIM in December 2015 to oppose occupying Western forces; and
a call published in January 2014 for violent retaliation against France and its allies, including the complicit Malian Government for perceived misdeeds against Islam.30

Non-legislative factors

1.41
Al-Murabitun has links with several al-Qa’ida aligned groups based in North and West Africa. In May 2015, then al-Murabitun leader, Mokhtar Belmokhtar, reaffirmed the group’s allegiance to al-Qa’ida.31
1.42
In December 2015, al-Murabitun announced it had rejoined AQIM and has cooperated in attacks with AQIM and other regional AQIM aligned groups, namely Ansar al-Din, AQIM’s Sahara Branch, and the Macina Liberation Front. In March 2017, all four groups aligned under the name Jama’at Nusrat al-Islam Wal Muslimin, and al-Murabitun continues to conduct activities under this alliance.32
1.43
There are no known links between al-Murabitun and Australia, and al-Murabitun has not made statements specifically threatening Australians or Australian interests.33 However, since the group was first proscribed in November 2014, it has continued to issue statements threatening Westerners and Western interests. The group has also attacked locations known to be popular with Westerners, including Australian nationals, and areas with publicly listed Australian mining and business interests.34
1.44
Furthermore, in 2016, al-Murabitun kidnapped Australian citizens Kenneth and Jocelyn Elliott. The group claimed the primary motive for the kidnapping was to gain the release of their captives ‘who sit behind bars and suffer the pain of imprisonment, as well as being deprived of their basic rights’. Jocelyn Elliott was released but Kenneth Elliott has not yet been recovered.35
1.45
Al-Murabitun is listed as a proscribed terrorist organisation in Canada and the United Kingdom, and in New Zealand the group is designated as a terrorist entity. In the United States al-Murabitun is listed as an alias of al-Moulathamoune battalion. In 2014, the United Nations listed al-Murabitun under the United Nations Security Council 1267 (al-Qa’ida) Sanctions Committee’s consolidated list as an entity associated with al-Qa’ida.36
1.46
Al-Murabitun is not engaged in any peace or mediation processes.37

Committee comment

1.47
The Committee considered the publicly available material to support the listing and re-listing of these organisations.
1.48
The Committee is satisfied that appropriate processes have been followed and concludes that Islamic State Khorasan Province and al-Murabitun meet the definition of a terrorist organisation, namely that these organisations:
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.
1.49
The Committee therefore supports the listing of Islamic State Khorasan Province and the re-listing of al-Murabitun as terrorist organisations under the Criminal Code and finds no reason to disallow the legislative instruments.
Mr Andrew Hastie MP
Chair
January 2018

  • 1
    Criminal Code, Division 102.
  • 2
    Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of listing of the Palestinian Islamic Jihad (PIJ) as a Terrorist Organisation under the Criminal Code Amendment Act 2004, June 2004, p. 5.
  • 3
  • 4
    Process for the 2017 proscription of Islamic State Khorasan Province and al-Murabitun as ‘terrorist organisations’ under the Criminal Code.
  • 5
    See Parliamentary Joint Committee on Intelligence and Security, Inquiry into the proscription of ‘terrorist organisations’ under the Australian Criminal Code, September 2007, available at www.aph.gov.au/pjcis.
  • 6
    Attorney-General, Submission 1, p. 1.
  • 7
    Attorney-General, Submission 1, p. 1.
  • 8
    Criminal Code (Terrorist Organisation – al-Murabitun) Regulation 2014
  • 9
    Attorney-General, Submission 1, p. 1.
  • 10
    Subsection 102.1(2) Criminal Code. A full list of proscribed terrorist organisations is available on the Australian Government’s National Security website at: https://www.nationalsecurity.gov.au/Listedterroristorganisations/Pages/default.aspx.
  • 11
    For earlier information, see Parliamentary Joint Committee on Intelligence and Security, Review of the listing of Al-Murabitun, December 2014.
  • 12
    Islamic State Khorasan Province is also known as: Islamic State in the Khorasan Province; Islamic State Khorasan; Islamic State–Khorasan; IS-Khorasan; Islamic State of Iraq and the Levant–Khorasan; Islamic State of Iraq and Syria–Khorasan; Islamic State of Iraq and al-Sham–Khorasan; Wilayat Khorasan; Daesh Khorasan.
  • 13
    Explanatory Statement: Statement of Reasons for Islamic State Khorasan Province, Submission 1, p. 8.
  • 14
    Explanatory Statement: Statement of Reasons for Islamic State Khorasan Province, Submission 1, p. 8.
  • 15
    Explanatory Statement: Statement of Reasons for Islamic State Khorasan Province, Submission 1, p. 9.
  • 16
    Explanatory Statement: Statement of Reasons for Islamic State Khorasan Province, Submission 1, p. 10.
  • 17
    Explanatory Statement: Statement of Reasons of Islamic State Khorasan Province, Submission 1, pp. 8–9.
  • 18
    Explanatory Statement: Statement of Reasons for Islamic State Khorasan Province, Submission 1, p. 9.
  • 19
    Explanatory Statement: Statement of Reasons for Islamic State Khorasan Province, Submission 1, p. 10.
  • 20
    Explanatory Statement: Statement of Reasons for Islamic State Khorasan Province, Submission 1, p. 10.
  • 21
    Explanatory Statement: Statement of Reasons for Islamic State Khorasan Province, Submission 1, p. 10.
  • 22
    Explanatory Statement: Statement of Reasons for Al-Murabitun , Submission 1, p. 10.
  • 23
    Al-Murabitun is also known as: al-Moulathamoun; al-Mulathamun Battalion; al-Murabitoun; the Sentinels. Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, pp. 9–10.
  • 24
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, p. 10.
  • 25
    ‘Notorious leader of Saharan al-Qaeda group loses power’, Middle East Eye, 9 May 2017: http://www.middleeasteye.net/news/exclusive-belmokhtar-dismissed-leadership-al-mourabitoun-274790462 viewed 4  December 2017.
  • 26
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, p. 9.
  • 27
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, pp. 9–10.
  • 28
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, pp. 9–10.
  • 29
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, pp. 910.
  • 30
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, p. 10.
  • 31
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, pp. 10–11.
  • 32
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, p. 11.
  • 33
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, p. 11.
  • 34
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, p. 11.
  • 35
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, p. 11.
  • 36
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, p. 11.
  • 37
    Explanatory Statement: Statement of Reasons for Al-Murabitun, Submission 1, p. 11.

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