FRESH AIR

Labor intervenes to protect the IRGC from terror listing

Feb 3, 2023 | Oved Lobel

On February 1, hours before the Senate’s Foreign Affairs, Defence and Trade References Committee released its report on its inquiry into human rights implications of recent violence in Iran, the Australian Government announced it was applying Magnitsky sanctions to 16 Iranian individuals and one entity for human rights abuses as well as joining allied sanctions against four Iranians and four entities involved in the production and supply of drones to Russia for its war against Ukraine.

On the face of it, this was a very welcome step. AIJAC has long drawn attention to the fact that Australia is significantly slower and does much less than its allies when it comes to sanctioning Iran, and is sometimes entirely out of step with those allies, such as continuing to support the JCPOA nuclear deal negotiations. The committee’s report noted that the Government was unwilling or unable to explain this disconnect regarding the timing and amount of sanctions, and also called into question Australia’s continued support for the JCPOA negotiations, since the regime “cannot be trusted to negotiate or act in good faith, or deliver on any promises it makes.”

However, the sanctions announcement seems to have been part of a coordinated campaign by Labor between Jan. 31 and Feb. 1 to pre-empt and undermine the report’s recommendation that the Government list the Islamic Revolutionary Guard Corps (IRGC) as a terrorist organisation under Australia’s Criminal Code. It’s hard to see any other credible explanation for the timing or manner of what transpired.

Right before the Government’s sanctions announcement and the report’s release, the Federal Attorney-General’s department suddenly made a one-page submission to the inquiry, over a month after submissions had closed, asserting that “as an organ of a nation state, the [IRGC] is not the kind of entity that is covered by the terrorist organisation provisions of the Criminal Code.” Labor senators then used this last-minute intervention to publish their dissent to the Committee’s report, rejecting its recommendation that the Government move to list the IRGC.

While the Attorney-General’s department’s letter made no attempt to justify its claims, an earlier submission in November by Professor Ben Saul, the Challis Chair of International Law at the University of Sydney, cited the legal basis for the claim, asserting that “The Australian courts have interpreted bodies corporate and unincorporated bodies as excluding governments, which thus cannot be listed as terrorist organisations. The IRGC is clearly an Iranian state entity.”

The case in question is that of Zainab Abdirahman-Khalif, convicted for terrorism as a member of Islamic State. The assertion put forward by Professor Saul and the Attorney-General’s department is based on a single section in the Supreme Court of South Australia’s judgement: “A nation or its government is not a body corporate… Nor is a nation, or its population, treated as an unincorporated association under Australian statutes or the common law.”

I am not a lawyer, but this is at best a very tenuous legal objection. The IRGC is neither a nation nor a government, and the Court had nothing to say about “state entities”. The submission of the Zionist Federation of Australia (ZFA) to the inquiry rightly questioned Professor Saul’s assertion, stating:

Notwithstanding the definitive tone of Prof Saul’s submission, the court decision upon which he relies is ambiguous on the matter. It states that a nation (by which it means state) or its government is not a body corporate, and that a nation or its population is not an unincorporated association. While it is thus clear that a state or a state government cannot be considered a terrorist organisation according to this ruling, it is not clear whether an organisation (which is not a government) controlled by a state should be immune from proscription by Australia.

Of course, if the Government genuinely believes that the current regulatory environment precludes it from listing the IRGC, then the ZFA and many others recommended that the legislation should be amended, something AIJAC has also argued:

Australia’s current statutes are not gospel: if the law truly prevents Australia from designating the IRGC under the Criminal Code, then the legislation is not fulfilling its intended purposes and clearly requires amendment, and the Parliament should urgently make the required changes.

The Committee report adopted this recommendation, stating:

Presuming the Australian Government agrees with and accepts [the argument of the Attorney-General’s department and Professor Saul], the obligation is on the government to bring forward legislative amendments to ensure that the IRGC—clearly a facilitator and promoter of terrorism—does not escape listing as a terrorist organisation based on a technicality.

The Labor members of the Committee, as previously stated, rejected this recommendation in its entirety.

The reluctance over – and indeed, seemingly coordinated campaign to avoid – listing the IRGC is puzzling. The IRGC is one of the oldest and most dangerous transnational terrorist organisations in the world, fulfilling all legislative and non-legislative criteria for listing under Australia’s Criminal Code. Furthermore, there is no slippery slope in listing the IRGC, regardless of whether one believes it to be a state entity, because the Islamic Republic of Iran is sui generis: no other state self-identifies as a transnational revolutionary jihadist movement. The only difference between the Islamic State and the Islamic Republic of Iran is that Australia has recognised the latter as a legal territorial entity.

Finally, knowledge of both the evolution and contemporary nature of the IRGC – as I described them previously, “a multinational Islamic clerical network playing a shell game, operating under various aliases” – makes it very difficult to argue that it should not be listed. Hezbollah, which is listed under Australia’s Criminal Code, is merely one of many aliases of the IRGC depending on its location, rather than a separate organisation per se. To list Hezbollah but not the IRGC betrays a fundamental misunderstanding of the IRGC and, more broadly, the Iranian regime’s relationship to the territory of Iran. This needs to be rectified.

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