On Tuesday 28 July, Jamie Williams appeared in the Melbourne Magistrates Court charged with a single count of engaging in conduct to prepare to enter a foreign country with the intention of engaging in hostile activity. He was identified as a potential foreign fighter when he attempted to board a flight to Qatar in December last year. He had allegedly stated that he intended to travel to Northern Iraq to join the fight with Kurdish forces against ISIS. This sparked a counter-terrorism investigation by the Victorian and Australian Federal Police which resulted in his arrest on Monday evening.

What crime might have been committed?

As pointed out by the Attorney-General George Brandis, it has been a crime since the late 1970’s to fight in a foreign civil war. The Crimes (Foreign Incursions and Recruitment) Act 1978, now superseded, made it a crime to not only fight overseas, but also to prepare for incursions into foreign states for the purpose of engaging in hostile activities. The penalty for this crime was 10 years imprisonment. However, a person could still join the armed forces of the Government of a foreign state. (Unless that foreign state is at war with Australia - since 1949 there have been provisions for the automatic loss of citizenship when a dual citizen serves in the armed forces of a country at war with Australia).

In 2014, this 18 page Act was repealed and replaced by the 169 page Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014. The foreign incursion and recruitment part of this new act is similarly written to the 1978 Act, whereby a person commits an offense if they prepare to enter a foreign country with the intention of engaging in hostile activities and is an Australian citizen, resident, visa holder or under the protection of Australia. The penalty has now been increased to life imprisonment and there is still the exception that the person does not commit a crime if they are planning to serve for the armed forces of the Government of a foreign country.

So the questions are – Does buying a ticket to Qatar and carrying military style equipment and clothing in your luggage provide enough evidence that a crime has been committed. What does the alleged statement of Mr Williams describing his intentions mean? Will the prosecution demonstrate that the Kurdish forces that Mr Williams was allegedly intending to join are a paramilitary force not recognised as a legitimate armed force of a foreign Government?

Let’s have a closer look.

Iraqi Kurdistan

With the help of the International community, the Kurdish region elected a parliament and formed a government independent of Baghdad in 1992. This autonomous region of Iraq is governed by the Kurdistan Regional Government and the current President is Masoud Barzani. The relationship between Iraq and Kurdistan is set out in Article 117 of the 2005 Iraqi Constitution:

This Constitution, upon coming into force, shall recognize the region of Kurdistan, along with its existing authorities, as a federal region.

The Kurdish Parliament passed a Constitution of their own in 2009, but without stability in the region the Government has been prevented from holding a referendum to ratify it. However Kurdish laws are protected by Article 141 of the Iraqi Constitution.

Legislation enacted in the region of Kurdistan since 1992 shall remain in force, and decisions issued by the government of the region of Kurdistan, including court decisions and contracts, shall be considered valid unless they are amended or annulled pursuant to the laws of the region of Kurdistan by the competent entity in the region, provided that they do not contradict with the Constitution.

So, the Kurds have their own Government and laws that are protected by the Iraqi Constitution. What about Government armed forces?

Several Kurdish armed forces

There have been conflicts between the ethnic groups in Iraq for many decades and as such the Kurds have strong military forces. Since 1943 the armed force for the Iraqi Kurdistan Government has been the Peshmerga who are a highly trained paramilitary force with up to 190,000 fighters. The Kurdistan Regional Government has a Minister of Peshmerga Affairs, however, the Peshmerga are a loosely defined group unlike the military you would expect in a country like Australia.

The Peshmerga have assisted the U.S. Armed forces in Iraq in the past, including the in the 2003 Fall of Baghdad. More recently the US Government has been in talks with Kurdish President Barzani, rather than the Iraqi President, to discuss working together to repel the ISIS advance. And last year the Australian government delivered weapons to the Peshmerga to help with the rescue of the Yazidis by the Kurdish forces.

More recently some Kurdish political parties have had military forces spring up within them. The two Australians that have died fighting against ISIS had joined one of these militaries called the People’s Protection Units (YPG) that was created in 2011. The YPG and other Kurdish forces have been aligned with the Peshmerga since the rise of ISIS in the region. It has not been reported which specific group of fighters Mr Williams was intending to join.

With the Iraqi army running away from ISIS at the beginning of the war, who is responsible for security of the Kurdish region in Northern Iraq? Is it the armed forces of the Kurdish Government or the Iraqi Government?

Article 9 of the Iraqi Constitution does not very clearly outline the Iraqi armed forces:

The Iraqi armed forces and security services will be composed of the components of the Iraqi people with due consideration given to their balance and representation without discrimination or exclusion. They shall be subject to the control of the civilian authority, shall defend Iraq, shall not be used as an instrument to oppress the Iraqi people, shall not interfere in the political affairs, and shall have no role in the transfer of authority.

Later Article 9 of the Iraqi Constitution states:

The formation of military militias outside the framework of the armed forces is prohibited.

Are the Peshmerga outside the framework of the armed forces in the Iraqi Constitution? The Iraqi Government is responsible for international affairs while Kurdish Government are responsible for the domestic affairs in their region. Is ISIS entering Kurdish territory an international affair or a domestic Kurdish affair?

It will be up to the Melbourne Magistrates Court to make to decide whether a crime has been committed under the Australian Law based on the evidence provided by the Australian Federal Police (AFP), the Victorian Police and the legal team of Mr Williams. With a conviction carrying a sentence of life imprisonment there will be many people watching the outcome.  CEFA will follow this trial through regular Constitutional Forum updates as yet another example of the Rule of Law in action daily under the Australian Constitution.

Photo attributed to Boris Niehaus

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