Ben Saul, professor of international law at the University of Sydney, highlights a feature of Australian federal law that makes it a criminal offence for an Australian national to take up arms on the side of the rebels in Syria. At the same time Australians may freely fight on the side of Assad’s regime. How so?
The problem is that Australian foreign policy [which opposes Assad] and Australian law are radically out of whack. Indeed, the law actively undermines our foreign policy objectives. First, our federal terrorism law criminalises anyone who uses political violence against any foreign government. This includes violence limited to military attacks on military targets in a civil war and which does not target innocent civilians, and which may precisely aim to stop government attacks on civilians. There is no exception for armed conflicts, unlike the law in Canada and as required by international law. War fighting is now altogether illegal.
Secondly, a federal law on “foreign recruitment” makes it a crime for an Australian to join any non-state military force overseas, yet allows Australians to fight in foreign government militaries. The Foreign Minister has a legal power to exempt a designated non-state force, and to ban fighting for a designated government, but has not exercised either power in relation to Syria.
Let’s be clear about what this means. It is a crime for Australians to rebel against Assad to stop his tyranny, human rights violations, and crimes against humanity. This is so even if the rebels fight fairly by attacking only military targets and sparing civilians, and even if they are fighting to save civilians from being butchered. But it is entirely lawful for Australians to fight for Assad and thus to help him repress the rebels, terrorise his people and stay in power.
It sounds to me like Australia’s federal terrorism law is misconceived, treating armed struggle against any foreign government, even if this is a tyrannical regime, as terrorism. Terrorism, in the strict sense, is the random murder of civilians for political purposes. Furthermore, no law can legitimately criminalize the right of rebellion against dictatorial power.