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Debate: "No exceptions. If Australian jihadi fighters come home, they should go straight to jail.”

by Rodger Shanahan & Michele Grossman
28 May 2015

“A crime is a crime is a crime,” said Prime Minister Tony Abbott. For Australian jihadists fighting overseas in the name of ISIS, “if you seek to come back you will be arrested, you will be prosecuted and you will be jailed”. We’ve called on two authorities to debate the motion: 

“No exceptions. If Australian jihadi fighters come home, they should go straight to jail.”

For the motion

Associate Professor Rodger Shanahan
Research Fellow at the Lowy Institute for International Policy


Before we debate what we should do about jihadi fighters who return from Syria and Iraq, we should first understand the nature of the groups they were aiding and abetting. 
Whatever shade of Islamist group they formally or informally joined, they became part of an organisation that is antithetical to the values held by all secular liberal democracies like Australia. They are violently intolerant, believe that God finds pleasure in killing people and seek to impose their will through force. They considered God – not the state – sanctioned their use of violence.
Having rejected Australia’s core beliefs and traveled a long way to willingly join and aid some of the most violent groups seen in recent times, it is only proper that Australia the state reassert its primacy and punish those who wish to come home. 
People will undoubtedly point to the fact that many of these people were naïve, or ‘brainwashed’ or vulnerable or all three.  And that is undoubtedly true.  But we are not talking about society’s vulnerable fringe dwellers who got talked into smuggling drugs from Asia, or an Australian tax evader returning because they were homesick.  This is an entirely different beast.  We are talking about people who made a conscious decision to support the violent creation of an intolerant religious entity.  They must accept individual responsibility for their actions and be punished for their roles.

I am not arguing that all returning Australians necessarily be sentenced to life behind bars. But if they choose to come back to this country, their first home should be a jail cell. 

I am not arguing that all returning Australians necessarily be sentenced to life behind bars. But if they choose to come back to this country, their first home should be a jail cell. Individuals’ roles in the violent Islamic dystopia they have helped to create or maintain will vary, and it will be up to the courts to determine each person’s culpability and to issue an appropriate sentence.  Some of them will also be able to play a role in countering violent extremism by attempting to dissuade potentially vulnerable youth from following the path they took.  This will be even more effective if the target audience sees the person giving them the preventative speech is behind bars or has served their time behind bars.
Some commentators have argued that returning jihadi fighters should bypass jail in order to provide intelligence to counter terrorism operations. These commentators have gone on to say that returning fighters are powerful storytellers – and their stories could dissuade would-be fighters. For the life of me I can’t understand why we must sacrifice one for the other.  There will always be a question mark over a returned fighter who denounces their love of jihad in exchange for avoiding jail.  Someone who submits to jail time then cooperates with counter-terrorism efforts has much more credibility with authorities and a much more compelling story than the jail-avoiding jihadi.
While there are obvious intelligence gaps with respect to the jihadist groups in Syria and Iraq, the kind of intelligence that returned jihadis have to offer is likely to be of marginal practical benefit.  More senior fighters with valuable information that could be turned into actionable intelligence are hardly likely to return to Australia. Those who do want to come home will likely only provide at best low-level tactical intelligence that is likely to be out-of-date by the time they reveal it.  They may be able to provide evidence of other Australians who have returned, were killed or are still fighting abroad, but this should only earn them a sentence reduction rather than a free pass.   
The public should be skeptical about claims that returning jihadis were somehow disillusioned humanitarian workers who either went with the purest of intentions or were somehow brainwashed into leaving these shores.  If they wanted to help the Syrian people then they could have volunteered their services to help the millions of displaced Syrians in Lebanon or Jordan. If they went to southern Turkey for humanitarian work then they should be able to show some evidence that they made contact with aid groups prior to leaving and that their services were agreed to.  In the absence of this, going to southern Turkey signals a clear intent to enter Syria through jihadist-controlled areas to join or support the jihadist fight.
These people may have been young and/or naïve but they were the architects of their own destinies, and they should be made to face the consequences.  It should be up to the courts to sentence them in accordance with their motivation for joining, and roles in these groups.  Prosecuting them doesn’t preclude the state from rehabilitating them, accessing any actionable intelligence they may have, utilising their evidence in future legal proceedings or using them as part of a counter-radicalisation program. 
The last thing society should accept is that claiming to be brainwashed, naïve, disillusioned or wanting to help is enough to avoid punishment for aiding and assisting those with whom Australia is at war. These are people who think killing in the name of God is not just permissible but commendable, people who rejected the core beliefs of the secular liberal society they came from and now want to return to.       

Against the motion

Professor Michele Grossman
Director and Research Program Leader,

Centre for Cultural Diversity and Wellbeing at Victoria University


All cats are grey in the dark.
This 500-year-old proverb remains apt today when faced with the prospect of Australian jihadi fighters wanting to return home. 
But when we shine a light into the dark corners of violent extremism, we see that not all those who have travelled to Syria, Iraq and other conflict zones to wage violent jihad or support various violent extremist Islamist groups appear the same.
Some violent Islamist extremists undoubtedly pose risks and threats to the safety and security of the Australian community. Penalties should be applied to those who knowingly break Australian law, especially when their actions risk the lives of others. But before any enlightened justice system decrees who should go straight to jail, they need to shine a light into the dark.
In his opening argument, Rodger Shanahan refers time and again to how jihadi fighters undermine the values of a secular liberal democracy like Australia. I agree. But sending all jihadi fighters to jail without regard to individual context, circumstances, history, degree or intent is at best ironic disregard for those very principles and values we profess to cherish and protect, at worst a reckless abuse of justice more totalitarian than democratic.

Shanahan argues that being naïve, brainwashed or vulnerable should not constitute a get out of jail free card for foreign fighters. History is littered with psychological and sociological analyses that disprove the ‘rational actor’ model that Shanahan relies on. People are not always able to make full and free choices about their actions. Their capacity to make reasoned and informed judgments is affected by factors like age, mental illness, family and peer pressure. We must not forget, many of these jihadi fighters are boys, not men.
Shanahan advocates holding violent extremists to a higher standard – legally and morally – than those who commit other kinds of criminal acts, like drug smuggling or tax evasion. Yet for other heinous crimes that cause great human suffering like child abuse, murder or human trafficking, we regularly see judgements handed down that factor in a range of individual motives and circumstances in conviction and sentencing. 
Jihadi fighters who travel overseas to participate in foreign conflict are getting younger and younger. We’re seeing teens take up arms. The younger a person is, the stronger their prospects of rehabilitation are. If we are serious about corrective or restorative justice, and not merely retributive justice, this should be a key element in our thinking. Creating violent jihadi-inspired anti-heroes through a no-exceptions jail policy – particularly when prisons do not offer robust de-radicalisation programs – risks fuelling rather than deterring future potential actors.
The most powerful counter-terrorism narratives may come straight from the mouth of fighters who want to come home after rejecting violent extremism. We know there are foreign fighters who have or wish to return, who are genuinely disenchanted with their experiences of foreign conflict, who reject their previous beliefs and who experience remorse for their actions. We need to seize this opportunity. Being stuck in jail makes it much harder for these willing counter-terrorists to engage with would-be young radicals in the community.
Jailing returnees will only harden their sense that the society to which they have returned is not interested in their change of heart. How many returnees willing to right a wrong will stay positive and be cooperative when retribution rather than rehabilitation is their only hope? We know that prison can further radicalise young offenders. So how does sending the young and vulnerable to ‘crime university’ make any sense?

We know that prison can further radicalise young offenders. So how does sending the young and vulnerable to ‘crime university’ make any sense?

A no-exceptions jail policy will cut short prospects for meaningful intelligence gathering. Shanahan’s misguided argument that only low-level intelligence of “marginal practical benefit” is provided by returned fighters misses the point. The intelligence worth having is not about what’s happening on the ground; there are plenty of other ways to obtain that. It’s about what’s happening in the heads of foreign fighters, and specifically about the social influences and networks through which they become emboldened to cross the dark and dangerous line into full-scale violence.
The state routinely lowers or pardons jail terms for informants and others willing to assist authorities – that is the essence of the ‘plea bargain’. Why doesn’t this hold for returning jihadi fighters?
By all means, let jail sentences be imposed and let us require violent offenders of all kinds to face the consequences of their actions. But do so on a case-by-case basis that considers each instance on the evidence and its merits.
After all, not all cats are grey.