This morning, Ashley Dyball, an Australian foreign fighter assigned to rear echelon duties with the YPG, touched down in Melbourne airport to cheers from ecstatic friends and family and ululating from the Australian Kurdish community.
For some months, it seems, Mr Dyball has been party to the conflict in the Northeast Syria, having taken up arms with the Kurdish YPG in their battle against ISIS for a free Kurdistan. He went with no military training and no prior knowledge of the region and returned with a suitcase full of keffiyeh and an iPhone-full of #warselfies. Lawrence of Australia has returned from Rojava.
Elsewhere and under the eyes of the law, it seems that Mr Dyball’s overseas adventure saw him in contravention of the recently-passed Foreign Fighters bill which has it down as an offence to partake in hostilities in a “declared area”. Inevitably, there will be calls for amnesty – given who he was fighting with (the Kurds) and who he was fighting against (ISIS). But though the laws of the land should reflect what is morally right, there will remain, as ever, a distinction between “what is good” and “what is lawful”.
If someone breaks into my house and kills my entire family, for example, it might be understandable for me to seek vengeance by killing that person right back. The law however must see things differently. Leniency might be granted during my sentencing (given the circumstances) but I should still go to jail for murder. Why? Because our society has moved beyond “an eye for an eye” as a cornerstone in our justice system.
Equally, even though Ashley Dyball was engaged in a war effort against a very tangible evil (ISIS), the recently-passed Foreign Fighters bill has made possible “the prosecution of people who intentionally enter an area in a foreign State where they know, or should know, that the Australian Government has determined that terrorist organisations are engaging in hostile activities and the person is not able to demonstrate a sole legitimate reason for entering, or remaining in, the foreign State”.***
The so-called Lions of Rojava might not be a proscribed organisation, but the PKK, alongside whom they fight, are. The Kurds might be one of the few reasonably-palatable allies we have in “Syraq” but they still commit atrocities – they still employ suicide bombers and post gruesome images to social media. One of these slaughters, during the Tel Hamis offensive, was committed in my dead friend’s name. There is every indication that the YPG and the rest of the Kurdish militias are the lesser of all the evils in the Middle East but regardless, these are still violent non-state actors with serious shortcomings in the domain of human rights. Taking up arms alongside any party in the Syrian conflict should be and is an offence unless that person is in an Australian Army uniform with an Australian Army-issued rifle doing what the Australian government told them to do.
Mr Dyball’s parents have indicated that the laws were unclear when Ashley Dyball pranced off to Syria. Regardless of the actual date these laws were passed it is ridiculous to argue that he was unaware of his actions being in a legally-grey area. Did he even bother to check what international law already said about “mercenaries” for example? I for one, know that Ash Johnston, while in Syria, was very concerned about the consequences he might face should he return home – and this even in the natal stages of the Foreign Fighter bill debate.
Finally, there is the issue of setting a legal precedent. If the Australian legal system lets this one slide what does that say about our tolerance for people who would travel overseas to become foreign fighters? Draw the line now and anyone crossing it will be punished. Deterrence. Punitive redress. This is how the issue will be resolved.
It will, quite rightly, be argued that I am just another keyboard warrior, pontificating about a Syrian reality in which I have not taken part. Mr Dyball, unlike me, was witness to the atrocities of ISIS. Mr Dyball saw, firsthand, the suffering of the Kurdish people and, unlike me, decided to do something about it. Mr Dyball, unlike me, was there. But this is exactly the point. Regardless of whether Mr Dyball was fighting on the side of good or of evil (if we are to incorporate this Manichean dichotomy into our worldview), Mr Dyball was there when he should not have been. According to law.
Mr Dyball, to borrow a phrase from an abusive Army corporal I once had yell at me, “signed his name on that dotted line”. No one forced him to go to Syria. Choices and consequences. Now it’s time for Mr Dyball to face the consequences. In the meantime, at least he’s gotten rid of that terrible Nike bumbag.
*** Correction: a colleague informed me that Mr Dyball is unlikely to be charged under the above-mentioned clause since the Foreign Minister Julie Bishop only announced declared areas in Raqqa and Mosul (presumably to specifically target foreign fighters with ISIS). If we take the Jamie Williams case as a model for future legal proceedings it seems more likely that Mr Dyball would be charged for “preparing for incursions into foreign countries for the purpose of engaging in hostile activities” or a similar, more general, offence under anti-terror legislation. But I’ll leave the ins-and-outs to the DPP. Thanks for the correction mate.
I suppose the question is, how severe will the consequences be? It seems that he is being treated fairly leniently so far. The argument that the law was not clear enough so he wouldn’t have known the consequences is extremely weak. But surely it does depend to some extent on the definition of ‘terrorist organisation’ as to whether he ‘should not have been’ there – I haven’t read the 2014 act so not sure of the specifics. Spirit of the law, letter of the law…
Take your point about the PKK.
My initial assumption re: that legislation is that it was defined so broadly in order to capture all the possible permutations of ‘terrorist’ activity abroad and associated sticky problems. Not to stop foreign fighters per se, but to prevent foreign fighters from fighting for a terrorist org, then claiming to have fought with the ‘freedom fighters’ upon return. Or from fighting for an organisation which later switches sides (or when we change our minds as to which side it represents).
I’m not a lawyer so I ultimately shouldn’t really comment on the ins-and-outs of legislation but I think more than anything these laws were passed, plain-and-simply, to act as a deterrent to Australians taking up arms as foreign fighters for anyone anywhere – the legislative response of a nation-state attempting to navigate the moors of a “globalised world” and control the errant behaviour of its increasingly mobile (and perhaps impulsive) globe-trotting citizens.
Taking note of my above correction (and mention of the Jamie Williams case) it also seems possible that Mr Dyball can be charged with other offences which are not solely hinged on legal proscriptions of who and who is not a “terrorist group” but also for more generally entering a foreign country with the intention of committing violence.
The more general point of this post however, is to compound the fact that if these laws fail to secure a prosecution in the Dyball case (or even if amnesty is granted by whichever applicable govt body) than the ability of these laws to deter foreign fighters is significantly reduced.
If the laws were created to deter or punish ALL foreign fighters and provided they have the power to do so then you’d expect Dyball to be prosecuted. If the laws were created to punish SOME foreign fighters then you’d still expect him to be prosecuted so long as he’s broken the law but he might be treated leniently and this would likely slacken deterrence effect. How he’s treated may help us to determine the intention of the law.
I agree that he should be prosecuted whether a hero or not if the law applies.