The rules of engagement for Australian forces fighting Islamic State (IS) will be widened, with a proposed change in the law giving them legal power to target all parts of the armed organisation.
Prime Minister Malcolm Turnbull in a national security statement to parliament has announced that an anomaly would be removed between Australian and international law.
“Under international law, all members of an organised armed group such as Daesh [another name for IS] can be targeted with lethal force, subject of course to the ordinary rules of international humanitarian law,” Turnbull said.
But “there is a legal argument that Australia’s domestic law is more restrictive than international law”. This meant the targeting by the Australian Defence Force (ADF) in Iraq and Syria was limited, and Australian forces could not operate as freely as their coalition partners.
The wider rules of engagement come after reported frustration that Australians flying missions against IS have a lesser strike rate than desired because the targets have not met the tight requirements under the rules.
Turnbull said the anomaly had been raised with him in January by ADF chief Mark Binskin. The relevant Australian provision is in the Criminal Code. It reads:
War crime – murder
1) A person (the perpetrator ) commits an offence if:
a) the perpetrator causes the death of one or more persons; and
b) the person or persons are not taking an active part in the hostilities; and
c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
a) a person or persons who are hors de combat; or
b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
Sources said that although there had been no prosecutions under Australian law, the risk was something that would play on the minds of members of the ADF. The rules of engagement would remain quite specific about not targeting civilians, they stressed.
The government had reviewed its policy on targeting enemy combatants and earlier this year decided to make sure Australian forces were empowered to act “to the maximum extent allowed by international law”, Turnbull said in his statement, which focused on counter-terrorism.
The change would mean “ADF personnel will be supported by our domestic laws. They will be able to target Daesh at its core – joining with our coalition partners to target and kill a broader range of Daesh combatants – which is consistent with international law.”
Opposition Leader Bill Shorten, who was briefed early on Thursday by Binskin, gave support in-principle to the change, subject to examining the legislation.
“The safety of Australians, but also support for our ADF and the security of our nation is bigger and more important question than any of the other political differences that we perhaps spend more of our time on,” Shorten told parliament.
“That is why, as I’ve always said, when it comes to fighting terrorism we’re all in this together, Labor and Liberal,” he said.
Turnbull painted a grim picture about the dangers of terrorism, even as military successes against IS occurred.
In observations redolent of those of former prime minister Tony Abbott – albeit less colourfully put – Turnbull said: “Daesh is presently the most immediate security challenge that directly affects us all: our military and police, our communities, our youth.
“We cannot pretend Daesh-related terrorism is merely a distant problem – a scourge that threatens people in places less fortunate than our own.”
It was “the most pressing national security threat that our citizens face today. We cannot be bystanders. We are all affected,” he said.
“In the short term, unfortunately, the risk of terrorist attacks is rising as our battlefield success against Daesh grows,” he said. “As Daesh loses ground, it will try to find new ways to incite fear and division and propagate the illusion of momentum.”
As it suffered military defeats it was expanding its networks into Europe and our region.
“It is quite possible that the next mass casualty attack on Australian victims will be somewhere in southeast Asia, where Daesh propaganda has galvanised existing networks of extremists and attracted new recruits.”
Turnbull said that about 200 people in Australia were being investigated for providing support to individuals and groups in the Syria-Iraq conflict.
“We must not only attack the disease at its source in the Middle East but redouble our efforts at home.”
Stressing the importance of community trust, Turnbull said “we should not be so delicate as to say Daesh and Islamist terrorism have got ‘nothing to do with Islam’”.
“We won’t hesitate to label Islamist extremism when we see it” but “we must not link all Muslims with the crimes of a terrorist minority”. He reiterated he was committed to working with Australia’s Muslim communities and said agency heads reported that considerable headway was being made.
“But there is work to be done. Other established terrorist groups with longstanding grievances against the West have not disappeared. And there has also been a resurgence in far right extremism directed against Muslims.
“In fact, the most recent terrorist attack disrupted in Australia involved a plan by such an extremist,” he said.
Turnbull said success against the threat we faced “requires strong laws, modern powers and, importantly, it requires social unity.
“I believe security and freedom are not mutually exclusive; they are mutually reinforcing.
“We cannot be effective if we are creating division; whether by fomenting distrust within the Muslim community or inciting fear of Muslims in broader society. Division begets division. It makes violence more likely, not less.
“The aim of extremists, including those committing violence through a warped and nihilistic interpretation of religion, is to divide us and to turn our citizens against each other – but we will not let them win.
“We are stronger when we stand together. We will defeat division and weakness with unity and strength.”
Authors: Michelle Grattan, Professorial Fellow, University of Canberra