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Opinion Articles on Listing of the PKK
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Civil Rights Network
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May 02, 2006 19:18 PDT
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AUSTRALIAN OPINION ONLINE:
http://www.apo.org.au/webboard/results.chtml?filename_num=76266
Why the Kurdistan Workers Party should not be banned
Banning the PKK is unjust and unproductive, argues Joo-Cheong Tham
AS THIS YEAR’s Anzac Day recedes into memory and the crowds depart from
Gallipoli, we might do well to note a conflict that continues to rage in
Turkey. Since at least the end of the first world war, Kurdish groups
have fought against Turkish rule. At times, the claim was for a separate
Kurdish state; more recently the emphasis has been on increased Kurdish
autonomy. In this conflict, violence has been used by both sides, not
uncommonly against civilians. Human Rights Watch, for instance, has
documented how the Turkish government has engaged in the forcible
evacuation of up to half a million Turkish Kurds.
Another weapon the Turkish government has in its arsenal is the
labelling of Kurdish groups as ‘terrorist’. Following this lead,
countries like the United Kingdom, United States and Canada have listed
the Kurdistan Workers’ Party, or PKK, as a ‘terrorist’ group. On 15
December 2006, the Australian government also banned the PKK as a
‘terrorist organisation’ under the criminal code. In a report released
last Wednesday, a majority of the Parliamentary Joint Committee on
Intelligence and Security endorsed the ban, while a robust dissent by a
former Labor justice minister, Duncan Kerr, and the former Labor leader
in the Senate, John Faulkner, urged the government to reconsider the
proscription.
The Kerr-Faulkner minority position stands on much firmer ground than
the majority report. Foremost, the PJIS unanimously found no evidence
that the PKK posed a specific threat to the security of Australian
citizens. This is unsurprising given that the objective of the PKK is,
according to the federal government, the promotion of the rights of
Kurds.
Before the parliamentary committee, ASIO defended the banning of PKK on
the basis of a general threat to Australian tourists visiting Turkey.
Even if this weak rationale is accepted, why then is the Turkish
government not being banned as a ‘terrorist organisation’? Being a
protagonist to the conflict, it has clearly contributed to the threat;
it definitely falls within the criminal code’s definition of a
‘terrorist organisation’ by virtue of its political violence against
Turkish Kurds.
Such selectivity points to the role of foreign policy considerations.
The banning of the PKK was announced on 15 December 2005, a week after
the visit to Australia by Recep Erdoğan, prime minister of Turkey.
This at least raises the suspicion that the banning of the PKK was at
the instigation of the Turkish government.
The majority of the parliamentary committee found no evidence that the
Turkish PM’s visit had influenced the timing of the proscription. What
it did not reject, however, was the possibility that the banning was
influenced by the Turkish government. In fact, DFAT admitted that it
received a request from the Turkish government to ban the PKK, which it
claimed was forwarded to ASIO and the Attorney-General’s Department
seven months before the banning – a claim denied by ASIO.
The suspicion remains that the proscription power, instead of being used
to prevent political violence, has been put to the aid of foreign policy
goals. No comfort is drawn from ASIO’s latest annual report, which
states that its ‘terrorism investigations are aimed at identifying
activity that is prejudicial to the security of Australia or to the
security of other countries’ (emphasis added).
Worse, the banning of the PKK, as the dissenting report states, will
inflict ‘potentially catastrophic community impact’ on thousands of
Australian Kurds. It imposes criminal liability upon persons who engage
in certain forms of association with the PKK. In other words, it imposes
guilt by association and breaches the principle that criminal liability
should be based on an individual’s actions in causing harm. An
Australian Kurd voicing support for the PKK’s peaceful activities would
likely be caught by these offences.
These repressive consequences are exacerbated by several matters. As the
dissenting report pointed out, many Australian Kurds view the PKK as a
‘legitimate national liberation movement’ and would support its aims
even if they did not agree with some of its tactics. The banning of the
PKK then potentially criminalises an entire community. This is
compounded by the fact that the PKK has military and political wings,
yet the banning draws no such distinction. Australians financing the
PKK’s political wing to assist its negotiations with the Turkish
government, for instance, would be committing a crime punishable by a
maximum of 25 years’ imprisonment. Also, some Australian Kurds have been
accepted as refugees on grounds of political persecution based on their
PKK sympathies. Banning the PKK potentially criminalises these refugees
for the very reasons they were granted asylum. This borders on inhumane.
In sum, the banning of the PKK illustrates the arbitrary and repressive
character of the government’s power to ban ‘terrorist’ organisations.
Far from making Australians more secure, it is likely to criminalise an
entire community. In many ways, it highlights the danger of the ‘war on
terror’ becoming a ‘war of terror’ with laws used as instruments of
state terror.
Joo-Cheong Tham is a law lecturer at Melbourne University. He is also a
committee member of Liberty Victoria and co-wrote Liberty Victoria’s
submission opposing the banning of the PKK.
____________________________________________________________________________________
THE AGE: http://www.theage.com.au
A net to catch the innocent
By Duncan Kerr
May 1, 2006
In this age of terrorism it is easy to miss the small events that
perhaps represent greater threats to our security and civil liberties.
Last week Federal Parliament's Joint Committee on Intelligence and
Security (formerly known as the Joint Committee on ASIO, ASIS and
Defence Signals Directorate) tabled a report that has far-reaching
implications for the civil rights of, potentially, thousands of
Australians. The report was a review of the Howard Government's December
2005 decision to list the Kurdistan Workers Party (PKK) as a terrorist
organisation. The Criminal Code Act 1995 makes membership of or support
for any organisation listed a criminal offence and imposes severe
penalties.
The majority of the committee members supported the listing of the PKK
as a "proscribed organisation" under the code - though it also
recommended that the Government keep the matter under review. The
committee asked the Government to consider the number of Australians who
support the PKK's broad aims without endorsing terrorist activity and
whether it might be sufficient to ban only the PKK's military wing, the
Kurdistan Freedom Brigade. It also asked the Government to take into
account the fluid moves towards ceasefires between the PKK and the
Government of Turkey.
There are about 5000 Australians of Kurdish origin. Notwithstanding the
committee's careful qualifications, the ban on the PKK potentially
exposes thousands of Australians of Kurdish background to imprisonment,
because belonging to the PKK now carries a 10-year jail term. Just
associating with the PKK carries a three-year term. Many of those
affected could be people who have lived perfectly ordinary lives in
Australia and who have had nothing to do with terrorism, but who
identify the PKK as "their party" in the sense that they support it as a
legitimate national liberation movement fighting for the freedom of the
Kurdish people.
The joint committee does not normally divide on partisan lines. In the
past, the committee has reached unanimous conclusions but in this case
it was not possible. As a result, I joined in a minority report with
Senator John Faulkner, which recommends that the Government reassess its
listing of the PKK.
Australia lists 19 organisations under the Criminal Code, including the
PKK. But in no other case has there been reason to believe that the
banning of an organisation could catch large numbers of Australians or
impinge on their civil rights. The organisations that have been banned
have been terrorist groups pure and simple or the military (terrorist)
wings of larger organisations such as Hamas or Hezbollah.
In evidence, the Attorney-General's Department said that it is relevant
for the committee to consider the practical impact of imposing severe
criminal penalties on large numbers of Australian residents who support
what they see as a national liberation struggle. But no Government
agency could give the committee any information about the number of
people who might be caught in this net.
The committee received no evidence that a ban on the PKK would directly
benefit Australia's national security. There was no evidence of any
terrorist activity by the PKK or members of the Kurdish community in
Australia. This country already has strong laws criminalising conduct
involving terrorism - sending money out of Australia to aid the PKK is
already prohibited, just as it is already an offence for an Australian
to serve an organisation seeking to overthrow a foreign government by
force. Nor have Australians overseas been directly targeted.
That is not to suggest that Australians visiting Turkey could not become
victims of the conflict. But that risk is similar to that which faces
tourists in many other troubled regions of the world where governments
face armed opposition groups.
The joint committee had previously adopted criteria, submitted by ASIO,
to guide its decisions regarding proposed listings of terrorist
organisations. The criteria were designed to justify discrimination
between organisations that have resorted to the use of political
violence that should be listed as terrorist organisations and those (the
larger majority) that should not. The Australian Parliament relies on
the joint committee to ensure that the quite extraordinary legal step of
making it a crime to support or belong to an organisation is not taken
inappropriately. The joint committee has published those criteria in its
reports. There has been no rationale put forward in this case to justify
a departure from the policy ASIO itself identified in earlier hearings.
The listing of the PKK does not meet these criteria.
Our minority report asks the Government to reassess the listing. It asks
why any ban could not be limited to the PKK's military arm. This has
been the approach taken on other groups such as Hamas, which have both
political and armed aspects. The Government's own statement of reasons
for listing the PKK referred to the PKK's military wing - so such a
distinction would have been possible. A limited ban would allow
Australians to exercise their democratic rights to express their support
for the PKK and its campaign for a Kurdish homeland while at the same
time treat membership or support for their military or terrorist wings
as an offence.
The impact on Australia's Kurdish community of the enforcement of these
laws could be far-reaching and disastrous, not just for those peaceable
individuals who could unwittingly be caught up in terrorism trials, but
more broadly for the relations between civic groups and the Government.
Notwithstanding the usually legitimate reasons we share in responding
strongly to terrorism, there is suspicion among some communities in
Australia about the Government's rhetoric of equality and respect when
it comes to people of different faiths. The precedent of this listing
could well serve to entrench and broaden such views. If it does
Australia will be a weaker nation, not safer, as a result.
Duncan Kerr is the Labor MHR for Denison and a former justice minister.
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