So in the words of our Prime Minister, “a crime is a crime is a crime” and should foreign fighters return home, they will be “arrested, prosecuted and jailed”, given the risk of them conducting terrorist attacks here in Australia.
I can only hope that despite Tony Abbott’s bluster, discussions around the possible return of three suspected Australian foreign fighters will continue. While the threat they pose must and will be assessed by the AFP and intelligence agencies, their return presents two significant opportunities.
Firstly – as highlighted by the lawyer for one of the fighters – the personal testimony of these individuals could play a key role in programs that attempt to counter extremism and de-radicalise.
The Australian Government has repeatedly demanded that the Muslim community condemn ISIS and Islamist extremism more generally. But who is most likely to dissuade an individual from pursuing jihad in the Middle East? A community or religious leader, often from an older generation, who is critical of ISIS aims and ideology? Or, a contemporary who has been there and got the t shirt (well, the flag), but has experienced the disconnect between ISIS propaganda and the reality of life in the Caliphate?
- Intelligence gathering
Secondly and just as significantly, they might (depending on the access of the individuals involved) represent a significant intelligence gathering opportunity.
Intelligence agencies here in Australia and elsewhere are undoubtedly seeking access to individuals or communications that can provide intelligence on both ISIS and Jabhat al-Nusra, ranging from recruitment methodology and facilitation routes, to command and control structures and external attack planning. Indeed just last week, the Australian Government announced additional funding of $450million to combat and deter terrorism.
What if these individuals can help answer some of these intelligence questions and ‘deter terrorism’, essentially for free? Clearly, there will be question marks over their motivation, and whether they pose an immediate or ongoing threat but that’s where a comprehensive risk assessment and appropriate security measures come in.
Criminal justice issues?
The rationale behind Abbott’s statement is clear. Australia does not want to appear a soft touch on terror. However, I’m not convinced that tough sentences are anything other than a punishment; they’re certainly unlikely to act as a deterrent. Is the threat of a prison sentence going to stop Australians from joining ISIS, given that anyone doing so is anticipating death on a foreign battlefield?
And in this specific case, it doesn’t have to be an either/or proposition. The criminal justice system has always been flexible enough to offer more lenient sentencing in exchange for cooperation, particularly against a complex, ongoing threat such as an organised criminal gang or in this case, ISIS.
It’s possible that an underlying concern here is that few of the new terrorist offences introduced over the past two years have been tested in a court of law. Even if it was possible to strike a deal for cooperation and information in exchange for lesser sentencing, would the AFP have enough admissible evidence (i.e. not from classified intelligence) to secure a conviction?
On balance, I very much doubt that we’ll see foreign fighters being allowed to return to Australia any time soon. In hindsight, that might prove to be a missed opportunity.
David Wells worked for UK and Australian intelligence agencies between 2005 and 2014, specialising in counter-terrorism.