The practice of listing only part of an organisation under the Criminal Code

For the terrorist organisation offences under the Criminal Code to be effective, no distinction can meaningfully be made between so-called “military wings” of terrorist organisations and their other political and social wings. The INSLM notes that under Part 4 of the UN Charter Act, in order to carry out Australia’s international counter-terrorism obligations under 1373, the whole of Hamas and Hizballah are proscribed terrorist entities (and see Chapter III and Appendix H). However, under the Criminal Code only the “military wings” of these organisations (variously named) are proscribed.

What may fairly be called the listings of these parts of Hizballah and Hamas as terrorist organisations under the Criminal Code were achieved by the Criminal Code Amendment

Regulation 2012 (No. 6) (Cth) (“the ESO listing”) and the Criminal Code Amendment Regulation 2012 (No. 7) (Cth) (“the Brigades listing”). The reasons based on publicly

available materials disclosed with each of the ESO and Brigades listings raise serious doubts about the efficacy of their purported implementation of Australia’s terrorist organisation listing system. They are also accordingly of doubtful validity as a matter of law.

Critiques of the reasons disclosed for the ESO and Brigades listings are contained in Appendix H. As explained in Appendix H, these reasons strongly indicate that the ESO and the Brigades are but part, respectively, of Hizballah and Hamas; that accordingly it is Hizballah and Hamas that the Attorney-General should have been satisfied were terrorist organisations; that an unjustified resort to an unarticulated notion of sub-organisations has been had; and that the purpose of criminalizing and thus deterring financial assistance to terrorist organisations has been mis-served by these part listings.

As noted in Chapter III and above, the terrorism financing offences created by the UN Charter Act may be committed in relation to Hizballah and Hamas because they are listed entities under that statutory scheme. One presumes and hopes that the body of classified and unclassified information that produced the listing of Hizballah and Hamas, being the whole of each of them, for the purposes of those terrorism financing offences was substantially the same as the information used for the listing of parts of them under the Criminal Code.

Could it be that the UN Charter Act’s use of the expression “entity” distinguishes listings under it from listings under the Criminal Code with its use of the word “organisation”? Surely not. Or, if so, there is no substantive justification for a distinction, given the international obligations of Australia to counter terrorism by legislating effectively including criminally against its financing. In the opinion of the INSLM, there is no reason why part of an entity could or should be listed under the UN Charter Act and there is equally no reason why part of an organisation could or should be listed under the Criminal Code. In both cases, the critical terrorist character needs to be attributed to what the facts support as the group of people or social assemblage that answers the description of “entity” or “organisation” as the case may be. As explained in Chapter V, the beneficial purpose of countering terrorism by depriving the entities or organisations which are terrorist of their access to funds and other wherewithal, is not effectively served by permitting people to give or supply them money and resources for their supposedly non-terrorist activities. A consistent application of that policy should preclude the device of listing only the bad or terrorist part of an entity or organisation. The success and influence of Hizballah’s political party is closely related to the development of its military apparatus and its entrenched investment in providing social services to the community is aimed at creating a strong resistance community that supports the organisation’s military aims. Hence, the social and political aspects of the organisation are inseparable from its military functions. The same can be said of Hamas which has long maintained simultaneous activities with respect to the provision of education, welfare and other services to Palestinians at the same time as it has maintained activities that some may call military

and Australian law regards as terrorist. There is a unity of purpose between the organisation’s militant and non-militant activities and no distinction can properly be made between them.224

Support to the non-military wing as a matter of course provides support to the military wing, be it in the form of charitable donations being used to fund the military wing or through political legitimacy or community support for the terrorist aims and activities of the organisation.225 _{The statutory power to list pertains to the listing of an organisation, and not}

to parts or some only of its aspects. In the view of the INSLM, the Australian legislation is in this regard sensible and appropriate – it attributes a terrorist character to an organisation because of its connexion with terrorist acts, an attribution which cannot logically be removed or attenuated by its connexion with other kinds of acts as well. In other words, Australia’s counter-terrorism laws do not permit the blunder of permitting the listing of organisations only if they are exclusively or purely dedicated to terrorism and nothing else.

224 _{Senior leaders of both Hamas and Hizballah have publicly refuted claims that the political and military “wings”}

of their organisation are ideologically autonomous or operate independently from each other, stating that the facets within their respective organisation form part of a singular organisation with shared ideological objectives and a unified leadership. Hizballah has stated that a unity of purpose among the group’s diverse activities is essential to its success and no distinction can be made between its political and terrorist wings. Hamas has stated that the political apparatus is sovereign over the military apparatus, with no wings that are separate from the “one body” of Hamas. See Matthew Levitt, “On a Military Wing and a Prayer” (February 12, 2013) Foreign Policy, Jim Zanotti, Hamas:

Background and Issues for Congress, Congressional Research Service Report for Congress (2010), Tavishi Bhasin

& Maia Carter Hallward “Hamas as a Political Party: Democratization in the Palestinian Territories” (2013) 25 1

Terrorism and Political Violence 75–93, Senior Hizbullah Officials and Associates: There Is No Distinction between Hizbullah’s Political and Military Arms, The Middle East Research Institute (July 24, 2013), Matthew Levitt, “Hamas

from Cradle to Grave” (Winter 2004) Middle East Quarterly 3-15, Matthew Levitt and Jonathan Prohov, “There Is No Distinct Hezbollah ‘Military Wing,’ So Why Ban It?” (July 25, 2013) The Washington Institute for Near East Policy, Netherlands General Intelligence and Security Service (AIVD), General Intelligence and Security Service Annual Report

2004, United States Office of the Coordinator for Counter-Terrorism, Country Reports on Terrorism 2012, James B.

Love, “Hezbollah: Social Services as a Source of Power” (2010) 10 Joint Special Operations University Report 1-50, Benedetta Berti, “Armed Groups as Political Parties and Their Role in Electoral Politics: The Case of Hizballah” (2011) 39 Studies in Conflict & Terrorism 942-962.

225 _{See eg Matthew Levitt, Hamas: Politics, Charity, and Terrorism in the Service of Jihad (2006), Benedetta Berti,}

“Armed Groups as Political Parties and Their Role in Electoral Politics: The Case of Hizballah” (2011) 39 Studies in

Conflict & Terrorism 942-962, Anat Kurz et al, “The Institutional Transformations of Hamas and Hizbollah” (2012)

15 Strategic Assessment 87-98, James B. Love, “Hezbollah: Social Services as a Source of Power” (2010) 10 Joint

Special Operations University Report 1-50, Jonathan Masters, Hamas, Council on Foreign Relations (2012), “Lebanese Hezbollah: A Profile” Library of Congress (April 2012), Casey L. Addis & Christopher M. Blanchard, Hezbollah: Background and Issues for Congress, Congressional Research Service Report for Congress (January 3, 2011), Matthew

Levitt, “On a Military Wing and a Prayer” (February 12, 2013) Foreign Policy, Jim Zanotti, Hamas: Background

and Issues for Congress, Congressional Research Service Report for Congress (2010), Tavishi Bhasin & Maia Carter

Hallward “Hamas as a Political Party: Democratization in the Palestinian Territories” (2013) 25 1 Terrorism and

Political Violence 75–93, Matthew Levitt, “Hamas from Cradle to Grave” (Winter 2004) Middle East Quarterly 3-15,

Matthew Levitt and Jonathan Prohov, “There Is No Distinct Hezbollah ‘Military Wing,’ So Why Ban It?” (July 25, 2013) The Washington Institute for Near East Policy.

It follows from this reading and justification of Australia’s terrorist listing legislation that the practice of purporting to list so-called parts or wings of an organisation as terrorist should never have occurred, should be reversed, and should not be repeated.226

In assessing the effectiveness of the Criminal Code proscription régime and terrorist

organisation offences, the INSLM has reached the view that the distinction between artificially separated wings of an organisation allows the organisation to receive support which is of some benefit to its terrorist activities. Proscription of only part of an organisation limits the counter-terrorism effectiveness of the proscription régime and terrorist organisation offences under the Criminal Code.

Recommendation IV/2: When proscribing an eligible organisation under the Criminal Code as a “terrorist organisation”, the entire organisation should be proscribed and not just its “military wing”. It follows that the ESO and Brigades listings should be revoked and replaced, if the facts continue to support the current reasons for them, by listings of Hizballah and Hamas.227