Chapter 2 The Listings
The criteria for listing an organisation
The legal criteria
2.1
To be specified as a terrorist organisation for the purposes of
paragraph (b) of the definition of terrorist organisation in section 102.1 of
the Criminal Code, the Minister:
Must be satisfied on reasonable grounds that the organisation
is directly or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act (whether or not the terrorist act has
occurred or will occur); or
Advocates the doing of a terrorist act (whether or not a
terrorist act has occurred or will occur). [1]
2.2
To provide further clarification of this definition, Section 102.1 (1A)
of the Criminal Code states that an organisation advocates the doing of a
terrorist act if:
The organisation directly or indirectly counsels or urges the
doing of a terrorist act; or
The organisation directly or indirectly provides instruction
on the doing of a terrorist act; or
The organisation directly praises the doing of a terrorist
act in circumstances where there is risk that such praise might have the effect
of leading a person (regardless of his or her age or mental impairment (within
the meaning of section 7.3) that the person might suffer) to engage in a
terrorist act.[2]
ASIO’s guidelines
2.3
At its hearing on 1 February 2005 for the Review of the listing of
six terrorist organisations, the Director-General of ASIO advised the
Committee of ASIO’s evaluation process in selecting entities for proscription
under the Criminal Code. Some of the factors included:
n Engagement in
terrorism;
n Ideology and links to
other terrorist groups or networks;
n Links to Australia;
n Threat to Australian
interests;
n Proscription by the
UN or like-minded countries; and
n Engagement in peace
and mediation processes.[3]
2.4
The Committee notes that these guidelines are indicators only and are
not formally set out in the Act however the Committee has found these to be a
useful tool in reviewing the listing of terrorist organisations.
2.5
The Committee has decided to continue to use these guidelines to assist
its review of Hizballah’s ESO. Submission 4 from the Federation of Community
Legal Centres (Vic) Inc places great emphasis on these guidelines – which they
refer to as the non-statutory criteria – however the Committee has previously
accepted, and reiterates that, the absence of information in relation to these guidelines
is not determinative of the listing of an organisation.
Overview
2.6
This report is a consideration of the re-listing of Hizballah’s ESO
under the Criminal Code. On past occasions of consideration of a re-listing,
the Committee has stated that it is preferable to see information which relates
to the activities of the organisation since the last re-listing. Receiving
information on activities since the last re-listing, whilst not in itself
conclusive, is an appropriate consideration in the process of re-listing. Whilst
historical background is important to consider, and will be noted, evidence for
a re-listing should focus on what has changed since the last review. The issue
of currency of evidence was brought forward in the Committee’s report, Review
of the re-listing of Al-Qa’ida and Jemaah Islamiyah (October 2006):
The re-listing of an organisation is a fresh exercise of
executive discretion and the Committee believes that there must, therefore, be
a sufficient degree of currency in the evidence to warrant the use of the
power.[4]
Hizballah’s External Security Organisation
2.7
This organisation was initially listed in 2003 under legislative
arrangements which required that organisations to be listed had to be on the
United Nations list of terrorist organisations. The ESO came up for review
under the current proscription regime in 2005 and again in 2007. This review is
of the third re-listing of ESO as a terrorist organisation.
2.8
The Committee would like to make it very clear that this is not a
listing of the entire Hizballah organisation.
2.9
The Attorney-General’s statement of reasons is as follows:
(Also known as: ESO, Islamic Jihad Organisation, Hizballah International
and Special Operations Branch)
The following information is based on publicly available
details about Hizballah’s External Security Organisation (ESO). These details
have been corroborated by classified material. ASIO assesses that the details
set out below are accurate and reliable.
The United Kingdom has listed Hizballah’s External Security
Organisation as a terrorist organisation under ‘Hizballah’s Military Wing’.
Hizballah (including ESO) has been listed as a terrorist organisation by the governments
of the United States, Canada and Israel.
Current status of Hizballah’s ESO
Formed in Lebanon in 1982 in the wake of the Israeli
occupation of southern Lebanon, Hizballah (‘Party of God’) emerged as a
splinter group of former Amal clerics inspired by the Iranian Revolution. By
the end of 1984, Hizballah had become an umbrella group covering several
smaller organisations including the Lebanese al-Dawa Party, Islamic Amal and
the Islamic Students Union. Hizballah evolved into a multi-faceted organisation
including political, social and military components supported by Iran and
Syria. Hizballah operates as a recognised political party and
sanctioned ’resistance group’ in Lebanon with representation in parliament and
the Lebanese Cabinet.
After senior member Imad Mughniyah fled to Iran after the
1983 attack on the US military in Beirut, the ‘international wing’ grew out of
the military wing to become a separate branch. This is thought to be the
genesis of Hizballah's 'international wing', or 'External Security Organisation
(ESO)’.
ESO constitutes a distinct terrorist wing within Hizballah’s
structure. Since entering the Lebanese Parliament in 1992 and the
Government in 1995, Hizballah has sought to strengthen its public image as a
respected resistance movement and lessen its reputation as a terrorist group.
This has encouraged the terrorist network to operate independently of the
parent organisation and become among the best organised terrorist networks in
the world. While
Mughniyah was considered one of the world’s most capable and dangerous
terrorists, his death in February 2008 is unlikely to reduce ESO’s
effectiveness in the long term. ESO’s current leader, Talal Hamiyah was a
long-time associate of Mughniyah and he will continue ESO’s activities with
minimal disruption.
Hizballah, including ESO, receives substantial support from
Iran, in the form of financial, training, weapons, political and military
assistance. Syria is also a significant supporter, particularly in the
provision of political and military assistance.
In the 2006 conflict with Israel, Hizballah utilised
Iranian-supplied military resources including Unmanned Aerial Vehicles (UAV)
and a wide variety of short to long range rockets. As part of
Hizballah, and given ESO’s direct contact with Iran, these or similar resources
would be available to ESO.
ESO is based in Lebanon. Hizballah has an international
infrastructure including cells; charitable organisations; and business
enterprises (both legal and illegal) in the Middle East, Asia, Africa, Europe
and North and South America, from which it derives significant financial
support. In the Tri-Border area of South America alone it is estimated
Hizballah has raised millions of dollars through activities such as drug and
arms smuggling and product piracy. ESO is likely to have access to this
funding.
Since the attack against US Marines in Beirut in 1983, and
two attacks against Israeli interests in Argentina in 1992 and 1994 (discussed
in more detail below) Hizballah has established an insurgent capability in Iraq
with support from Iran. ESO continues to operate on a global basis
gathering intelligence to be used in terrorist attack planning, collecting
money by both legal and illegal methods, recruiting and training terrorists and
acquiring weapons. There is reporting to indicate ESO is planning attacks
against Israeli or Jewish targets outside Israel to avenge the death of
Mughniyah.
Hizballah provides training, operational support and material
to Palestinian extremist groups, including the Palestinian Islamic Jihad,
Hamas’ Izz al-Din al-Qassam Brigades, both of which are currently proscribed
entities, and Shia militia elements in Iraq. Elements of ESO are likely
involved in these activities.
Objectives
Hizballah is committed to armed resistance to the state of
Israel and aims to ‘liberate’ all Palestinian territories and Jerusalem from
Israeli ‘occupation’. Hizballah actively promotes terrorist attacks in the Palestinian
arena to reduce the possibility of agreements or accords between Palestinians
and Israel. Ultimately, Hizballah aims to create a Shia Islamic state in
Lebanon and remove all Western and Israeli influences in the region. ESO has
undertaken terrorist acts against Israeli and other interests in support of these
objectives.
Leadership and membership
Little is known about ESO. It is a covert and highly
secretive organisation and it has been successful in restricting information
about its organisational structure and membership. Its leader is Talal
Hamiyah.
Hizballah ESO engagement in terrorist activities
The attack against the US Marine barracks in Beirut in
October 1983 which killed 241 US servicemen gave Hizballah world wide attention
for the first time. Further violent attacks in Lebanon and around the world in
the 1980’s demonstrated Hizballah’s capacity for violence. The 1992 bombing of
the Israeli Embassy and the 1994 bombing of a Jewish cultural centre in Buenos
Aires are the most well known of the attacks conducted outside of Lebanon.
These attacks are widely accepted as being planned and executed by Mughniyah
and ESO.
The Hizballah ESO had a record of regular terrorist attacks
against mainly Israeli and US targets up until the early 1990’s. As a result
of the Israeli withdrawal from southern Lebanon in 2000, Hizballah concentrated
on targets in Israel and the Palestinian Territories. Even after the 2006
military confrontation with Israel, Hizballah’s ability to launch terrorist
attacks was not completely destroyed. It has since built up a significant
rocket and anti-aircraft capability with the assistance of Iran. Its rockets
can now reach deep into Israel.
Hizballah has established an insurgent capability in Iraq,
engaging in assassinations, kidnappings and bombings. The Hizballah units have
been set up with the encouragement and resources of Iran’s Revolutionary Guards
al Qods Brigades. Hizballah has also established a special training cell known
as Unit 3800 (previously known as Unit 2800) specifically to train Shia
fighters prior to action in Iraq. . Available reporting does not specifically
identify these terrorist units as ESO entities. However, as ESO’s primary role
is international terrorism, it is likely to be heavily involved in the activities
of Unit 3800 and the attacks against the Iraqi Government and Coalition forces.
Given the clandestine nature of the group, ESO’s activities
do not have a high profile and it does not claim responsibility for terrorist
attacks. However, there is no indication the intent of ESO has changed or its
capability has diminished. ESO is active internationally and it is likely it
will continue to undertake attacks or contribute to attack planning if and when
the opportunity arises, in accordance with the strategic priorities of ESO’s
parent organisation, Hizballah, or its state sponsors. ESO’s close association
with Syria and Iran means it could draw on significant resources for future
activities.
At the funeral of former ESO head Imad Mughniyah, assassinated
in February 2008, Hizballah Secretary-General said he welcomed open war with
Israel as a means of avenging the death of Mughniyah.
Due to the secretive nature of ESO, it is difficult to gather
information on its role and activities. However, ESO still exists as a discrete
organisation under the umbrella of Hizballah but with a separate leadership and
direct links to Iran. ESO has a history of terrorist activity and as terrorism
is such a fundamental part of its raison d’être, there is nothing to suggest
its terrorist purposes have changed. Given its close links to Iran and Syria,
ESO has the capability to execute its terrorist objectives. Hizballah uses a
separate terrorist arm to conduct attacks and accordingly recent terrorist
activity generally attributed to Hizballah is likely to have been conducted by
ESO, either wholly or as a major contributor. On this basis and previous
evidence of terrorist activity, it is assessed ESO is still directly preparing,
planning, assisting in or fostering the doing of terrorist acts.
Conclusion
The Criminal Code provides that for an organisation to be
listed as a terrorist organisation, the Attorney-General must be satisfied
that:
(a) the organisation is
directly or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act (whether or not a terrorist act has
occurred or will occur); or
(b) the organisation
advocates the doing of a terrorist act (whether or not a terrorist act has
occurred or will occur).
On the basis of the above information, ASIO assesses that
Hizballah ESO is directly preparing, planning, assisting in or fostering the
doing of terrorist acts. It is submitted the acts attributable to Hizballah ESO
are terrorist acts as they:
(i)
are done with the intention of advancing a political cause, namely,
destruction of the state of Israel, establishment of a Shiite theocracy in
Lebanon and the elimination of Western influences from the region;
(ii)
are intended to coerce or influence by intimidation the governments of
foreign countries, namely the US, Israel and Lebanon and/or intimidate a
section of the US, Israeli or Lebanese public; and
(iii)
constitute acts which cause serious physical harm to persons, including
death, as well as serious damage to property.
This assessment is corroborated by information provided by
reliable and credible intelligence sources.
Hizballah, the ESO and the IR
2.10
In its July 2007 report Review of the Re-listing of Hizballah’s
External Security Organisation the Committee provided detailed information
on Hizballah and where the ESO fits within its overall structure.[5]
The current statement of reasons again confirms this, stating that the ‘ESO
still exists as a discrete organisation under the umbrella of Hizballah.’[6]
The ESO is a separate international arm within Hizballah, which is distinct
from its military wing, the Islamic Resistance (IR).
2.11
In its submission to the inquiry, the Australia/Israel and Jewish
Affairs Council contest this distinction stating that:
Hezbollah leaders have frequently stated explicitly that there
is no distinction between the military and political wings of the organisation.[7]
2.12
At its hearing, the Committee heard evidence which confirmed that
Hizballah is a legitimate political party within Lebanon and that Hizballah’s
ESO is a distinct wing which engages in terrorist activity:
Hizballah itself is a legitimate political entity in Lebanon.
We proscribe only the ESO part of it because that is the element which conducts
terrorist activity…it is ESO which is conducting most of the terrorist activity
which meets the criteria [for proscription].
2.13
Hizballah remains a key Shi’a political organisation in Lebanese
Parliament and Cabinet and continues to operate as a sanctioned ‘resistance
group’ which also provides for a number of social welfare institutions in
Lebanon.[8]
2.14
In its submission to the inquiry, the Australia/Israel and Jewish
Affairs Council is supportive of the listing of Hizballah’s ESO but requests
that the Committee recommend to the Attorney-General that:
...the entire Hezbollah organisation should be listed as a
terrorist organisation, rather than only its External Security Organisation.[9]
2.15
This issue has been considered by the Committee in the previous
parliament, in its Review of the re-listing of Hizballah’s ESO, July
2007. At that time the Committee stated that Hizballah has grown significantly
since it began and has developed into both a legitimate Lebanese political
party and an umbrella organisation for myriad of social welfare institutions.[10]
2.16
In regard to the relationship between the ESO and Hizballah, it was
stated in the 2007 report that Hizballah’s ESO constitutes a distinct terrorist
wing within Hizballah’s structure. Separate from the ESO, is Hizballah’s
guerrilla wing, the Islamic Resistance (IR). The IR is widely regarded as the
most capable non-state armed group in the Middle East. The ESO, according to
Jane’s is even more secretly run than the IR.
2.17
The Committee is not persuaded, at this time, to make the recommendation
proposed by the Australia/Israel and Jewish Affairs Council.
The Lebanese elections
2.18
Lebanese elections were held on 7 June 2009. Lebanon’s pro-Western
coalition led by Saad Hiriri, won power over the Hizballah-led opposition.[11]
Hizballah won 11 seats of the 128 member Lebanese Parliament.[12]
2.19
After Hizballah’s defeat at the polls the organisation’s deputy leader,
Sheik Naim Kassem, appeared on Hizballah’s Al-Manar television station
acknowledging the defeat and indicated Hizballah will meet with the new
Government to discuss its strategy. [13]
2.20
The outcome of these talks will be crucial in determining the stability
of Lebanon following the election. In Lebanese politics, power is divided among
the country’s fourteen religious groups which results in Lebanese Parliamentary
representation being divided equally between Muslims and Christians.[14]
The Lebanese cabinet consists of a government of national unity, where prior to
the elections, Hizballah held two seats and the right to veto cabinet
decisions.[15] Whether this veto power
will again be granted to Hizballah is still to be determined but Hizballah’s
deputy leader has warned that if it is not given then there will a ‘renewed
political crisis in Lebanon’.[16]
Engagement in Terrorism
2.21
The statement of reasons states that as Hizballah has sought to
strengthen its public image as a respected resistance movement and political
party within Lebanese politics, it has encouraged the terrorist network, the
ESO, to operate independently of its parent organisation.
2.22
The statement of reasons states that Hizballah’s ESO has a record of
regular terrorist attacks mainly against Israeli and US targets up until the
early 1990s.
2.23
The statement of reasons refers to two attacks in particular against “Israeli
interests” in Buenos Aires, Argentina in 1992 and 1994. While the 1992 attack
was against the Israeli Embassy, the 1994 attack was against a Jewish cultural
centre.
2.24
The Committee recognises that those carrying out a terrorist attack may
wish to view an attack of this kind as an attack against Israel. But this is a
false view. By way of example, an attack committed against a Jewish institution
in Australia would be an attack against Jewish and Australian interests. It would
be incorrect and inappropriate for it to be viewed as an attack against Israeli
interests.
2.25
Following the 2006 military confrontation with Israel, ESO terrorist
activity has reportedly been sustained, as it has since built up a significant
rocket and anti-aircraft capability with the assistance of Iran capable of
reaching deep into Israel.[17]
2.26
Both Jane’s and the statement of reasons report that in February 2008,
ESO’s leader, Imad Mughniyeh, was assassinated in a car bomb explosion in
Damascus, Syria. At his funeral two days later, Hizballah’s leader, Hassan
Nasrallah, declared “open war” against Israel.[18]
2.27
In its submission to the inquiry the Federation of Community Legal
Centres (Vic) Inc stated that it was unclear whether the statutory criteria had
been made out in respect of Hizballah’s ESO as ASIO had not identified any
terrorist activity additional to that provided in the statement of reasons for
the 2007 re-listing. The Federation suggested that:
In our view, it is…important that ASIO specifically identify
the ‘recent activity’ that it is referring to in order that the public can
properly assess the merits of the listing.[19]
2.28
As previously stated at 2.5, whilst it is preferable to see information
which relates to the activities of the organisation since the last re-listing,
this information it is not in itself conclusive in the consideration of a
re-listing.
2.29
At its hearing the Committee heard evidence that whilst Hizballah’s ESO
are planning and recruiting for terrorist activity, and have in the past fired
rockets into Israel, at the moment:
…ESO is quiet in a deliberate effort on their part to not
draw attention to Hizballah, which is doing quite well in the political process
within Lebanon itself.[20]
2.30
The statement of reasons and Jane’s also state that Hizballah has
established an insurgent capability in Iraq, engaging in assassinations,
kidnappings and bombings. Hizballah units have been set up with the
encouragement and resources of Iran’s Revolutionary Guards, the al Qods
Brigades. Hizballah has also established a training cell, known as Unit
3800, specifically to train Shia fighters prior to action in Iraq.
2.31
The statement of reasons, qualifies this by stating that available
reporting does not specifically identify these terrorist units in Iraq as ESO
entities but it can be inferred, that as ESO’s primary role is international
terrorism, it is likely to be heavily involved.
Ideology and links to other terrorist groups/networks
Ideology
2.32
Hizballah or ‘Party of God’ was formed in Lebanon in 1982, in the
aftermath of the Israeli occupation of southern Lebanon by a splinter group of
Amal[21] clerics inspired by the
Iranian Revolution.
2.33
Following this Hizballah evolved into a multi-faceted organisation
including political, social and military components supported by Iran and
Syria.
2.34
In 1983, after senior Hizballah member, Imad Mughniyah, fled to Iran
following the 1983 attack on the United States military in Beirut, ESO began to
take shape. The statement of reasons reports that from this incident the
‘international wing’, or ESO, grew out of Hizballah’s military wing to become a
separate branch.
2.35
The statement of reasons provides information relating to Hizballah’s
objectives and states that the ESO has undertaken terrorist attacks in support
of these objectives.
2.36
The statement of reasons reports that Hizballah is committed to armed
resistance against the state of Israel and aims to ‘liberate’ all Palestinian
territories and Jerusalem from Israeli ‘occupation’. To achieve this aim,
Hizballah actively promotes terrorist attacks in the Palestinian arena to
reduce the possibility of agreements or accords between Israel and the Palestinians.
2.37
Regarding Lebanon, the statement of reasons also notes the overall
Hizballah aim of creating a Shia Islamic state in Lebanon, with the removal of
all Western and Israeli influences from the region.
Links to other terrorist groups/networks
2.38
The statement of reasons states that the ESO is currently led by Talal
Hamiyah.
2.39
Both the statement of reasons and Jane’s report that the ESO is a highly
secretive and ‘mysterious’[22] entity which has been
successful in restricting information about its organisational structure and
membership.
2.40
However, the statement of reasons does provide evidence of support from
Iran in the form of finance, training, weapons, political and military
assistance. Syria is also a significant supporter. The statement of reasons
reports that given ESO’s direct links with Iran, these resources would also be
available to the ESO.
2.41
Janes’ states that some unofficial estimates put Iranian donations to
Hizballah at approximately USD 60 million annually.[23]
2.42
Although based in Lebanon, Hizballah has an international infrastructure
including cells, charitable organisations and business enterprises in the
Middle East, Asia, Africa, Europe and North and South America, from which it
derives significant financial support. The statement of reasons states that the
ESO is likely to have access to this funding.
2.43
Janes’ provides further detail on these connections stating that as a
result of an alliance with the Revolutionary Armed Forces of Colombia (FARC)
Hizballah may also receive narcotics funding.[24]
2.44
In 2009, Janes’ reports that Egyptian security forces uncovered a
Hizballah-organised arms smuggling network in the northern Sinai involving
Egyptian, Palestinian and Sudanese nationals. Hizballah’s leader Nasrallah
publicly admitted that this was an attempt to get weapons to militant groups
operating in the Gaza Strip.[25]
2.45
The statement of reasons also states that Hizballah provides training,
operational support and material to Palestinian extremist groups, including the
Palestinian Islamic Jihad, Hamas’ Izz al-Din al-Qassam Brigades, both of which
are currently listed as terrorist organisations in Australian law and also to
Shia militias in Iraq. Elements of ESO are likely to be involved in these
activities.
Links to Australia
2.46
There is no information in the statement of reasons on Hizballah’s ESO
having any direct funding or support links with Australia.
2.47
In his submission to the inquiry, Dr Patrick Emerton, highlighted the
difficulty involved in proscribing one part of a complex organisation:
…what is being proscribed is one wing of a multi-faceted
political, military and social organisation which continues to play a central
role in the life of Lebanese polity, a polity to which many Australians have
deep and ongoing connections.[26]
2.48
At its hearing the Committee heard evidence that whilst:
…there is support for Hizballah in Australia, particularly given
a quite significant Lebanese population of around 75,000. We do not expect the
relisting of the ESO to provoke a major reaction from the Lebanese community in
Australia, particularly as the proscription applies to the ESO specifically,
rather than to Hizballah in its entirety.[27]
Threat to Australian interests
2.49
Whilst the statement of reasons contains no information on this matter,
it can be inferred that, through ESO’s links with Shia elements involved in the
insurgency in Iraq, Australian citizens, including ADF personnel and Australian
interests may be threatened.
Proscription by the UN or like-minded countries
2.50
Hizballah’s ESO has been listed as a terrorist organisation in the
United Kingdom, under ‘Hizballah’s Military Wing’. Hizballah (including ESO)
has been listed as a terrorist organisation by the governments of the United
States, Canada and Israel.
Engagement in Peace and Mediation processes
2.51
No information on this matter was provided in the statement of reasons.
2.52
In the Committee’s last review of Hizballah’s ESO, the Committee of the
41st Parliament provided detail on Hizballah’s involvement in the
peace process following the 2006 conflict in Lebanon.
2.53
This included the acceptance of resolution 1701 of the United Nations
Security Council by Lebanon, Israel and Hizballah. This resolution called for a
‘full cessation of hostilities’[28] between Israel and
Hizballah and the implementation of a Lebanese led UN peacekeeping force in
southern Lebanon.
2.54
However, Janes’ states that tension continues in Lebanon with Hizballah
refusing to abide by UN Resolutions and disarm its military wing, arguing that
the force is needed to defend Lebanon against future Israeli attacks.[29]
Conclusion
2.55
The Committee found that the Hizballah ESO continues to engage in
activities that satisfy section 102.1 of the Criminal Code. The Committee does
not recommend disallowance of the regulation.
Recommendation 1 |
|
|
The Committee does not recommend the disallowance of the
regulations, made under the Criminal Code section 102.1, to list the organisation:
n Hizballah
External Security Organisation
as a terrorist organisation.
|
Hon Arch Bevis, MP
Chairman