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 (the Committee) 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 re-listing Islamic Movement of Uzbekistan (IMU), Jaish-e-Mohammad (JeM) and Lashkar-e Jhangvi (LeJ) as terrorist organisations were made by the Federal Executive Council on 2 March 2018. The regulations came into effect on 3 March 2018 and were presented in the Senate on 19 March 2018 and in the House of Representatives on 26 March 2018.
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.
1.5
The re-listing of IMU, JeM and LeJ is the first Criminal Code listing since machinery of government changes transferred responsibilities under Part 5.3 of the Criminal Code from the Attorney-General to the Minister for Home Affairs. The provision in the legislation to formally transfer these responsibilities commenced on 11 May 2018. However, on 20 December 2017, the Attorney-General signed an authorisation that transferred those same responsibilities to the Minister for Home Affairs until such time that the legislation formally passed through the Parliament. The Department of Home Affairs explained the need for the temporary authorisation in a 31 May 2018 submission to the Committee on the Criminal Code listing of Hizballah’s External Security Organisation:
The Attorney-General’s authorisation reflected that the Attorney continued (and continues) to administer the Criminal Code under the Administrative Arrangements Order … but that with the transfer of responsibility for national security and law enforcement policy and operations, the Minister for Home Affairs would exercise relevant powers and functions, including in relation to counter-terrorism.
The powers that the Minister for Home Affairs exercised pursuant to the authorisation have now been made clear by amendments to Part 5.3 of the Criminal Code made by the Home Affairs and Integrity Agencies Legislation Amendment Act 2018.
The Committee’s Review
1.6
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. The Committee has followed this practice for all subsequent reviews and again adopted this approach for the purposes of this report.
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
The Minister for Home Affairs wrote to the Chair of the Committee on 21 February 2018 advising that he was satisfied that UIM, JeM and LeJ were directly or indirectly preparing, planning, assisting in or fostering the doing of a terrorist act, or advocating the doing of a terrorist act. The Minister for Home Affairs’ letter was accepted as a submission to the review and can be found on the Committee’s website. This letter included the Statements of Reasons prepared by the Australian Security and Intelligence Organisation (ASIO) on each terrorist organisation, and the process for re-listings undertaken by the Department of Home Affairs.
1.9
In his letter, the Minister noted that Ansar al-Islam—first listed as a terrorist organisation in April 2003 and re-listed in 2005, 2007, 2009 and 2012—was not being re-listed due to insufficient contemporaneous information to demonstrate that it continued to meet the legislative criteria under the Criminal Code.
1.10
Notice of the review was placed on the Committee’s website. No additional submissions were received by the Committee.
1.11
The remainder of this chapter will examine the Government’s procedures for the re-listing of each group as a terrorist organisation and examine the merits of the re-listings based on evidence provided to the Committee.
The Government’s procedures
1.12
An attachment to the Minister for Home Affairs’ letter outlined the procedures followed by the Department of Home Affairs, with input from other agencies, for the re-listing of each organisation. This document is available on the Committee’s website as an attachment to Submission 1.
1.13
The re-listing of IMU, JeM and LeJ came into effect on 3 March 2018, the date on which the previous regulations were due to expire. In his letter, the Minister for Home Affairs stated:
To ensure there is no gap in coverage of the offences in relation to these organisations, these regulations will commence immediately and will not be delayed until after the disallowance period.
1.14
The Committee reviewed the process of listing and considered the procedures undertaken by the Government to be appropriate.
The criteria for listing an organisation
1.15
For an organisation to be listed as a terrorist organisation under section 102.1(2) 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, or
advocates the doing of a terrorist act.
1.16
In addition to these legislative criteria, when preparing the Statement of Reasons, ASIO may have regard to non-legislative factors, including:
ideology and links to other terrorist groups or networks,
threats to Australian interests,
proscription by the United Nations Security Council or like-minded countries, and
engagement in peace/mediation processes.
1.17
For each listing, both the legislative and non-legislative factors are addressed in the Statement of Reasons provided to the Minister of Home Affairs by ASIO.
1.18
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.
Merits of the re-listings
1.19
In reviewing the merits of each re-listing, the Committee has taken into account the Minister for Home Affairs’ explanatory statement, ASIO’s Statements of Reasons, and other publicly available information. As these are re-listings, the Committee’s reviews of IMU, JeM and LeJ have focussed on each organisation’s activities since the last re-listings in 2015.
Islamic Movement of Uzbekistan
1.20
IMU’s stated goal is to create an Islamic state in Uzbekistan under Sharia law. Since it was last listed in 2015, IMU has advanced its cause through attacks against Afghan security forces and the execution of a soldier. It is currently fighting alongside proscribed terrorist group Islamic State Khorasan Province (IS-KP) against coalition and Afghan government forces in Afghanistan, and Pakistani forces in Pakistan. IMU was first proscribed as a terrorist organisation under the Criminal Code on 11 April 2003 and was subsequently re-listed in 2005, 2007, 2009, 2012, and 2015.
1.21
IMU’s close historical ties with al-Qa’ida and the Taliban ceased after it pledged allegiance to Islamic State in August 2015. Following this pledge, the Taliban conducted retaliatory attacks on IMU members in Zabul Province in southern Afghanistan, killing approximately 90 percent of IMU fighters in the region. Despite these losses, IMU is estimated to have between 200 to 300 fighters in the northern provinces of Afghanistan fighting alongside IS-KP. IMU’s members include foreign fighters from Africa, Pakistan, the Philippines, Bangladesh, China, Uzbekistan and Tajikistan.
1.22
IMU’s ability to draw recruits has increased following its allegiance with Islamic State. The Ferghana Valley, where the Uzbek, Tajik and Kyrgyz borders converge, has been a fertile recruiting ground for the IMU, which successfully exploited the widespread poverty in the region in its recruitment strategy. IMU also undertakes recruitment in Sar-e-Pul Province, northern Afghanistan and maintains training bases both there and in Samangan Province.
Engaging in terrorism
1.23
The IMU is directly engaged in the doing of terrorist acts. The Statement of Reasons identifies two instances of attacks for which responsibility has been claimed by, or attributed to IMU since the group was last re-listed in March 2015:
throughout 2016, IMU fighters conducted attacks against Afghan security forces in Kunduz Province, Afghanistan, and
on 30 March 2015, IMU released a video showing two of its fighters executing an Afghan soldier, who was one of 30 people IMU took hostage in February 2015.
Advocating terrorism
1.24
IMU has indirectly fostered terrorist acts by releasing propaganda material of its militant activities through its media wing Jundallah Studio, which has produced and released propaganda video and audio statements. The Statement of Reasons includes one instance of IMU advocating terrorism since it was last proscribed in March 2015:
on 30 March 2015, IMU released a video of two of its soldiers executing an Afghan soldier and demanding the release of their comrades from jail.
Non-legislative factors
1.25
IMU pledged allegiance to Islamic State in 2015, and currently fights alongside IS-KP. IMU previously had links with al-Qaida, the Taliban and other militant groups in the Afghanistan/Pakistan theatre and conducted operations with these groups against coalition forces between 2001 and 2015.
1.26
There are no known direct links between IMU and Australia and IMU has not made statements specifically threatening Australia or Australian interests. However, given its anti-Western ideology and alignment with Islamic State, IMU would consider Westerners—including Australians—to be legitimate targets for attack. Further, given the sometimes indiscriminate nature of IMU attacks and its disregard for loss of life, Australians could be caught up in IMU attacks directed at others in Afghanistan and Pakistan.
1.27
IMU is listed as a proscribed terrorist organisation in Canada, the United Kingdom and the United States. It is also listed in the United Nations Security Council 1267 Committee’s consolidated list.
1.28
IMU is not engaged in any peace or mediation process.
Jaish-e-Mohammad
1.29
JeM is a Pakistan-based fundamentalist Sunni Islamist organisation which uses violence in pursuit of its objective to force the withdrawal of Indian security forces from Indian Administered Kashmir. JeM aims to unite Indian Administered Kashmir with Pakistan under a radical interpretation of Islamic law. It was first proscribed in Australia as a terrorist organisation on 11 April 2003, and was subsequently re-listed in 2005, 2007, 2009, 2012 and 2015.
1.30
JeM was founded in 2000 by Maulana Masood Azhar, reportedly with the support of Pakistan’s Inter-Services Intelligence, the Afghan Taliban, Osama bin Laden, and several Sunni extremist groups in Pakistan. Azhar established JeM following his release from an Indian jail in exchange for 155 hostages hijacked on an Indian Airlines aircraft on 31 December 1999. Azhar remains the leader of JeM.
1.31
Current membership numbers for JeM are unknown. In 2014, JeM was estimated to have several thousand supporters, with 300 to 400 of these being active fighters. According to media reporting from August 2017, nearly two dozen cadres of JeM fighters were present in Jammu Kashmir—no further details on the size of a cadre were given.
Engaging in terrorism
1.32
According to the Statement of Reasons, JeM is directly engaged in preparing, planning and undertaking terrorist acts. Since it was last re-listed in 2015, JeM has been regarded as having a more aggressive strategy than other terrorist groups in the region. It has undertaken an increasing number of terrorist attacks including:
on 26 August 2017, JeM militants were suspected of conducting a terrorist attack on Indian police in Pulwama, Jammu Kashmir. The attack left eight Indian security force members dead,
on 29 November 2016, three members of the JeM sub-cell Afzal Guru Squad attacked and killed seven Indian army soldiers in Nagrota, Jammu Kashmir, and
on 2 January 2016, JeM conducted an attack on an Indian air force base in Pathankot, located in the Indian state of Punjab. The attack left seven Indian security force members dead. The attack was planned by Azhar’s brother, senior JeM figure Rauf Asghar. JeM’s involvement in the attack was identified through forensic examination of the site, including DNA testing of the assailants. Online chat information indicates a JeM handler was in contact with the assailants during their attack on the airbase.
Advocating terrorism
1.33
According to the Statement of Reasons, since it was last re-listed in 2015, JeM has publicly advocated terrorism, including:
in early 2017, JeM held numerous rallies encouraging youths to conduct terrorist attacks against India, and
JeM publishes the online journal, al Qalam Weekly, which contains extremist material and advocates terrorist attacks against India.
Non-legislative factors
1.34
JeM has extensive links to other terrorist groups including al-Qa’ida, Lashkar-e-Tayibba and the Afghan Taliban.
1.35
There are no known direct links between JeM and Australia, and JeM has not made statements specifically threatening Australians or Australian interests. However, according to the Statement of Reasons, JeM would consider Westerners—including Australians—to be legitimate targets for attack. Further, JeM has conducted attacks indiscriminately to achieve its objectives, including targeting foreigners.
1.36
JeM is listed as a proscribed terrorist organisation in the United Nations 1267 Committee’s consolidated list and by the governments of Canada, the United Kingdom and the United States.
1.37
JeM is not engaged in any peace or mediation process.
Lashkar-e Jhangvi
1.38
LeJ was formed in 1996. Its objectives are to establish an Islamist Sunni state in Pakistan based on Sharia law, by violent means if necessary; to have all Shias declared non-believers; and to kill Shia, Jews, Christians and other minorities.
1.39
LeJ was first proscribed as a terrorist organisation under the Criminal Code on 11 April 2003. It was re-listed in 2005, 2007, 2009, 2012 and 2015.
1.40
LeJ’s membership is estimated to be in the low hundreds and members typically operate in small cells of around five to eight individuals. LeJ activities have come under increased scrutiny by Pakistani authorities resulting in the arrest of key leaders and hundreds of activists. However, the group is resilient and remains a significant threat to Shia and other minorities in Pakistan.
Engaging in terrorism
1.41
LeJ directly engages in terrorist attacks in Pakistan, including assassinations, attacks using remote detonated improvised explosive devices (IEDs) and suicide IED attacks. Attacks claimed by or reasonably attributed to LeJ since it was last re-listed in 2015 include:
on 23 June 2017, at least 67 people were killed and more than 200 people wounded in an attack against a bazaar in Parachinar city. LeJ were reported to have claimed responsibility for the attack,
on 21 January 2017, at least 22 people were killed and 90 injured in an attack against a vegetable market in Parachinar city. An LeJ spokesman confirmed LeJ conducted the attack,
on 13 November 2016, 52 people were killed and over 100 injured in an attack against a Sufi shrine in Baluchistan Province; LeJ were reported to have claimed joint responsibility for the attack with Islamic State,
on 24 October 2016, at least 62 Pakistani security force personnel were killed and 164 injured in an attack against a police training college near Quetta. A LeJ spokesperson confirmed it conducted the attack in concert with Islamic State militants, and
on 9 August 2016, 70 people were killed at a demonstration in Quetta; LeJ were reported to have claimed joint responsibility with Islamic State for the attack.
Non-legislative factors
1.42
LeJ has links to other terrorist groups and networks. LeJ militants are alleged to be involved in operations conducted by Tehrik-e-Taliban Pakistan and Islamic State. LeJ’s alliance with Islamic State is informal—it has not pledged allegiance to Islamic State. LeJ has a long-standing relationship with the Afghan Taliban, and is known for its close ties to al-Qa’ida. LeJ extremists often belong to multiple networks within Pakistan and as such there is probably an overlap in personnel between LeJ and other extremist networks in Pakistan.
1.43
LeJ has no known direct links with Australia and no Australian citizens have been killed or injured in LeJ attacks. However, LeJ’s ideology is anti-Western and it would consider Westerners—including Australians—to be legitimate targets for attack.
1.44
LeJ is listed as a proscribed terrorist organisation in the United Nations 1267 Committee’s consolidated list and by the governments of Canada, the United Kingdom and the United States.
1.45
LeJ is not engaged in any peace or mediation process.
Committee comment
1.46
The Committee considered the publicly available material to support the re-listing of these organisations.
1.47
The Committee is satisfied that appropriate processes have been followed and concludes that Islamic Movement of Uzbekistan, Jaish-e-Mohammad and Lashkar-e Jhangvi continue to 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.
1.48
The Committee therefore supports the re-listing of Islamic Movement of Uzbekistan, Jaish-e-Mohammad and Lashkar-e Jhangvi as terrorist organisations under the Criminal Code and finds no reason to disallow the legislative instruments.
Mr Andrew Hastie MP
Chair
June 2018