Overview
4.1
This chapter examines the grounds for relisting the Kurdistan Workers’ Party (the PKK) both through the legislative criteria for relisting and non-legislative factors included in the Statement of Reasons prepared by the Department.
4.2
The Committee received submissions from interested stakeholder groups to this review arguing for and against the de-listing of the PKK and the impact this listing has on the diaspora Kurdish community in Australia.
4.3
These submissions, as well as the Committee’s previous reports and recommendations on the continued listing of the PKK are discussed in this chapter.
Background
4.4
Founded in 1978, the PKK is an ideologically motivated violent extremist organisation founded on a combination of Kurdish nationalism and Marxist-Leninist ideals. From the Statement of Reasons:
…the Kurdistan Workers’ Party’s nationalist ideology encompasses the rights of Kurds to maintain their Kurdish ethnic identity. Further to its nationalist objectives, the Kurdistan Workers’ Party aims to monopolise Kurdish political power, including by attacking the interests of rival political parties. However, the Kurdistan Workers’ Party primarily conducts attacks against the Turkish government and security forces.
4.5
The leader of the PKK is Abdullah Ocalan, who is currently serving a life sentence in Turkey. Beneath Ocalan, the PKK is led by a three member executive council made up of Murat Karaliyan, Cemil Bayik and Fehman Huseyin. Much of the day to day running of the PKK is done by Murat Karaliyan.
4.6
The number of members of the PKK is hard to ascertain though it is thought that the majority of its militant members are based in northern Iraq. Members are recruited primarily from the Kurdish population in south-west Turkey though recruitment also occurs from diaspora Kurdish populations in Syria, Iraq, Iran and Europe.
4.7
Funding for the PKK occurs through fundraising from Kurdish populations in Turkey and Europe though additional income may come from criminal activity such as extortion and the smuggling of narcotics.
Legislative criteria for listing
4.8
The PKK’s targets are primarily Turkish authorities and infrastructure in south-east Turkey and it has claimed responsibility for a number of attacks in this area.
4.9
The Department’s Statement of Reasons provides the following examples of terrorist activities which the PKK can be reasonably assessed as being responsible for:
On 12 September 2019 a roadside improvised explosive device killed seven civilians and injured 10 in the Diyarbakir province in south-east Turkey. The PKK took responsibility for this attack claiming it was ‘targeting spies’;
On 31 March 2020 the PKK took responsibility for the suicide bombing of a gas pipeline in Agri Province, Turkey, claiming it had killed 30 Turkish soldiers during the attack; and
On 28 October 2020 the PKK took responsibility for the bombing which destroyed the Botas oil pipeline in Mardin province, Turkey. No injuries or deaths resulted from this bombing.
4.10
The Statement of Reasons states that the PKK is ‘responsible for directly or indirectly engaging in, preparing, planning, assisting in or fostering the doing of terrorist acts.’
Non-legislative factors
4.11
The PKK is not known to have any links with any other listed terrorist organisations though it is thought to maintain relationships with other ideologically aligned Kurdish extremist groups in Turkey, Iraq, Iran and Syria. It is hard to determine the degree of connection between the PKK and the Kurdish People’s Protection Units (YPG) based in Syria, though the Turkish Government makes no distinction between these two groups.
4.12
The PKK does not currently pose a threat to Australia or Australian interests though Australians travelling or working in Turkey, Iraq or Syria could be harmed by PKK attacks.
4.13
One Australian has been charged with being a member of the PKK. In 2019, Renas Lelikan plead guilty to being a member of the PKK and was sentenced to a three year Community Corrections Order by the NSW Supreme Court.
4.14
Australia’s Five Eyes partner nations, the US, the UK, Canada and New Zealand all proscribe the PKK as a terrorist organisation under their own proscription regimes.
4.15
At various stages throughout its history, the PKK has engaged in peace talks and ceasefires with the Turkish Government. The most recent ceasefire period from 2012 to 2015 saw a significant decrease in attacks from the PKK, though after the breakdown in peace talks in June 2015 this increased back to pre-ceasefire levels. In recent times the amount of attacks has dropped significantly.
Previous reviews
4.16
The PKK was first listed as a terrorist organisation on 17 December 2005 and has been relisted in 2007, 2009, 2012 and 2015. It was most recently relisted on 4 August 2018. The Committee has continued to support the relisting of the PKK as a terrorist organisation.
4.17
In its 2018 review of the relisting of the PKK, the Committee received several submissions from academics and community groups opposed to the listing of the PKK. They provided a number of arguments for their opposition for the listing which were:
The impact of the listing and its continued relisting on the Kurdish community in Australia, including the infringement of the implied constitutional right to freedom of political communication;
That the Minister for Home Affairs had failed to consider the political context for the PKK’s activities;
The basis of the relisting was unreliable intelligence; and
The relisting was inconsistent with a ‘proper assessment of non-legislative factors.’
4.18
In its report on the review of the relisting, the Committee supported the relisting. However, it was sympathetic to the concerns of the Kurdish community and said:
…the Committee has some sympathy with the expert evidence provided by stakeholders that the Kurdish communities’ conception of the PKK is intertwined with complex notions of Kurdish identity, culture and political aspirations. The Committee appreciates that this broader conception of the PKK has given rise to some concerns that community to be concerned that engaging in general discourse in support of Kurdish autonomy and cultural rights could fall within the ambit of criminal offences. Whilst this is an understandable concern, the Committee notes that the Government’s stated objective of the listing regime is to provide clarity to the public.
4.19
The Committee made three recommendations:
Recommendation one: That the Australian Government agencies engage further with Kurdish communities and provide specific advice on the conduct that would fall within the ambit of criminal conduct under the Criminal Code. The advice should also detail the types of communications that, in accordance with the implied right of political communication, would not engage provisions of the Criminal Code;
Recommendation two: That the Australian Government give consideration to the application of international humanitarian law in the case of armed conflicts when developing any future listings or re-listings of terrorist organisations under the Criminal Code and provide written advice of this to the Committee; and
Recommendation three: That the Committee receive a regional briefing from ASIO, either written or orally, regarding the activities subject to the 2018 relisting within 18 months of the tabling of that report.
4.20
The Australian Government accepted recommendations one and three and noted recommendation two.
4.21
As part of this 2021 review, the Committee requested that the Department provide a supplementary submission detailing its actions in giving effect to recommendation one. It provided a list of its interactions with various Kurdish community groups since the 2018 review, reproduced in Table 4.1 below:
Table 4.1: Department of Home Affairs consultation with Kurdish community organisations
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10 October 2019
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United Kurdish of New South Wales
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Sydney
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8 November 2019
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Kurdish Democratic Community Centre of Victoria
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Melbourne
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16 April 2020
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Federation of Democratic Kurdish Society - Australia
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Sydney
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6 August 2020
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United Kurdish of New South Wales
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Sydney
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7 September 2020
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Kurdish Lobby Australia
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Sydney
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23 September 2020
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Kurdish Democratic Centre of Victoria
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Melbourne
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6 October 2020
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Federation of Democratic Kurdish Society – Australia; Kurdish Democratic Centre of Victoria
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Sydney, Melbourne
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9 November 2020
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Kurdish Democratic Centre of Victoria
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Melbourne
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25 May 2021
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Federation of Democratic Kurdish Society - Australia
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Sydney
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Source: DHA, Submission 1: 1, pp, 3-4
4.22
The Department stated that its discussions with the Kurdish community have covered the continued listing of the PKK, but also other topics of concern to this community, such as the impacts of the COVID-19 pandemic. It stated further:
The Department noted Kurdish community views when considering re-listing of the PKK. With regards to the Kurdish community’s view that PKK’s activities should be governed by international humanitarian law, the Department notes the Australian Government’s longstanding view that international humanitarian law does not prevent, and is not relevant to, the application of Australia’s domestic counter-terrorism legislation to acts of terrorism that occur within an armed conflict.
4.23
The Department has also published a fact sheet about terrorist organisation listings for the purpose of engaging with communities which is available on the National Security website. This fact sheet is reproduced as Attachment A to the Department’s supplementary submission.
4.24
The Committee received information from the Kurdish community about its interactions with the Department after the 2018 report.
4.25
In its supplementary submission to the review, the Federation of Democratic Kurdish Society – Australia (the FDKSA) stated:
Following the publication of the PJCIS 2018 report, containing Recommendation 1, we expected to be approached formally by the Department of Home Affairs with specific written advice on conduct that would fall within the ambit of criminal conduct under the Criminal code. Such advice would have removed uncertainties, e. g. respect to fundraising, particularly for Kurdish communities subjected to attacks by the Turkish regime in Turkey, Iraqi Kurdistan and North and East Syria. But no such advice has been forthcoming.
4.26
The FDKSA provided a list of its interactions with various Government agencies from March 2019 to July 2021. These agencies included the Australian Federal Police (AFP), ASIO and the Victoria Police.
4.27
The FKDSA stated in it supplementary submission that it has not been ‘approached officially’ by the Department of Home Affairs in relation to recommendation one of the 2018 report.
4.28
The FKDSA stated it had been in contact with a ‘Community Liaising Officer’ from the ‘Social Cohesion Division Victoria: Department of Home Affairs’ but none of its contacts with this person have involved discussing the listing of the PKK, but instead have focused on the COVID-19 pandemic and ‘ongoing policies with her department.’
4.29
The Kurdish Lobby Australia (KLA) (a Kurdish organisation that represents several other Kurdish community groups) provided the following information about its interactions with the Department since 2018:
Of all the Australian Kurdish organisations that are signatories to this letter, PUK [Patriotic Union of Kurdistan] Australia was contacted by ‘Community Engagement’, and the Federation of Democratic Kurdish Society – Australia holds regular meetings with the Federal Police and has twice met with ASIO after Turkey invaded north-east Syria in October 2019, but no Australian Kurdish organisation was been contacted by the Ministry of Home Affairs or any other Australian Government department regarding Recommendation 1, from the review in 2018.
Stakeholder concerns
4.30
During the course of this review, the Committee received submissions from Kurdish community organisations about the impacts of the relisting on their community. The Australian Turkish Advocacy Alliance also made a submission to this review.
4.31
Both of the Kurdish community organisations urged the Committee to recommend against relisting the PKK as a terrorist organisation for a number of reasons, including:
That the PKK does not meet the legislative threshold for listing as a terrorist organisation and its ideology is opposed to terrorism ;
That the Turkish Government is guilty of various acts of aggression and human rights abuses against the Kurdish people and the PKK’s actions should be viewed in the light of this ongoing oppression;
That the delisting of the PKK has the potential contribute to peace and stability in the region; and
That the continued listing of the PKK is traumatic for the Kurdish diaspora in Australia and leads to discrimination.
4.32
The Australian Turkish Advocacy Alliance (ATAA) did not hold the same view. Its submission was strongly supportive of the continued listing of the PKK as a terrorist organisation and urged the Committee to not disallow the listing.
4.33
All of these arguments are dealt with in more detail below.
The PKK does not meet the legislative threshold for listing
4.34
Both Kurdish community organisations provided evidence that the PKK does not meet the legislative threshold for listing as a terrorist organisation.
4.35
The FDKSA submission provided responses to the three terrorist activities listed in the Minister’s Statement of Reasons.
4.36
In relation to the 28 October 2020 attack by the PKK against the Botas oil pipeline, the FDKSA stated that no context or background is provided for that attack, and noted no deaths or injuries occurred as a result of this attack. The FDKSA claimed that this attack was a response to attacks by the Turkish Government on Kurdish villages in Turkey and Iraqi Kurdistan and provided a list of examples of these attacks.
4.37
Regarding the 31 March 2020 suicide bombing which resulted in the deaths of over 30 Turkish soldiers the FDKSA stated ‘while all loss of life is regrettable, in this attack those who lost their lives were Turkish soldiers, not civilians.’
4.38
In relation to the 12 September 2019 attack listed in the Statement of Reasons which resulted in the death of seven civilians, the FDKSA states that the PKK has not claimed responsibility for this attack though the Turkish Government has stated that the improvised explosive device used in the attack was placed by the PKK. It also states that in the months leading up to this attack the Turkish Government increased pressure on Kurdish politicians and pro-Kurdish groups as part of a crackdown on opposition groups within Turkey.
4.39
Regarding the non-legislative factors which the Minister may give regard to in deciding whether to list an organisation as a terrorist organisation (for the full list of these factors see 1.14 above), the FDKSA and the KLA listed the following points:
The PKK has been listed as a terrorist organisation by the other Five Eyes countries and many European nations. However, a 2020 court case from the Court Cassation, Belgium’s highest court found that the PKK was not a terrorist organisation but is a non-state party to a civil war;
In regards to the case of Renas Lelikan, both Kurdish submissions pointed to the judgement of Justice McCallum in the case of R v Lelikan (No. 5) and the Justice’s comments on the lack of threat posed by the PKK to Australia;
The PKK has taken part in numerous unilateral ceasefires since the 1990s and was party to the 2013-2015 bilateral ceasefire with the Turkish Government. After the end of this ceasefire in 2015, the PKK has claimed it is willing to enter into an internationally monitored and mediated peace process; and
The PKK does not coordinate with other terrorist organisations and has acted in opposition to them many times in the past.
4.40
Both Kurdish stakeholder group submissions also provided evidence that the ideology of the PKK is incompatible with terrorism. The FDKSA stated in its submission:
The philosophy and ideology informing the PKK is democratic confederalism, originally conceptualised by the US political philosopher Murray Bookchin and later adapted to the Kurdish culture and political experience by Mr Abdullah Ocalan. In summary, this is a system of democratic self-organisation with the features of a confederation based on the principles of autonomy, direct democracy, environmentalism, feminism, multiculturalism, self-defence, self-governance and elements of a sharing and solidarity economy.
4.41
The ATAA disagreed with all of these points. It stated in its submission:
The PKK is a particularly violent terrorist organisation which since its foundation in 1984, [has] been responsible for the deaths of more than 40,000 people, mainly of Kurdish background. The PKK does not represent the Kurdish people or their rights. Most of its founders, some of whom survived brutal infighting over four decades, are Turkish leftists who cannot even speak the Kurdish language.
4.42
The ATAA also noted that the PKK has used and continues to use children as combatants, is in continued violent conflict with other Kurdish political parties in the region, and is funded by its illicit drug and people trafficking operations.
4.43
The ATAA also provided quotes from members of its community who have been affected by the actions of the PKK. These included stories of family members who had been killed in military service during conflicts with the PKK as well as civilians who had been killed by terrorist acts:
My uncle…was killed in a bomb attack on the bus he was taking back home from work in February 2015. The death left my aunty a widow, needing to care for two children as a single mother and left two children…without a father. It was a massive blow for my mother and father living in Australia – to lose such a close relative and have a family torn apart was very saddening. It was especially hard for my father who is still impacted by it. The impact of that attack continues to reverberate through the lives of the victims it has left behind.
Actions of the Turkish Government against the Kurdish minority and the PKK
4.44
Both Kurdish community organisations submissions provided examples of alleged marginalisation of the Kurdish people in Turkey and the region as well as alleged attacks by the Turkish Government against the Kurdish people. The FDKSA states that these examples provide context for the actions of the PKK in the region.
4.45
The FDKSA stated in its submission:
The persecution of Kurds in Turkey by the Turkish government takes several forms, including terrorist acts, destruction of cultural and natural heritage, prohibition against cultural expressions such as speaking and teaching Kurdish language and political persecution.
4.46
The KLA made similar comments, connecting the PKK’s violence to the treatment of the Kurds:
[The] PKK’s armed struggle was born out of the Turkish state’s massacre, torture, incarceration, displacement, oppression and discrimination of Kurds…These crimes are on-going in Turkey, Syria and Iraq. Hence, Kurds in Turkey are not allowed to freely express their culture, be educated in their mother tongue, or even advocate for peace and basic human rights. For a period between 2009 and 2015 Kurds had the freedom to identify as Kurdish, speak Kurdish, publish and perform in Kurdish, and attend private Kurdish language classes. Since 2015, Kurds have been physically attacked in the street for identifying as Kurdish and/or speaking Kurdish, and have been imprisoned for performing or publishing in Kurdish. State authorities have closed down many Kurdish publishing houses, cultural organisations, charities and other non-government organisations.
4.47
In its submission the FDKSA provided examples of discriminatory attacks against Kurdish people in Turkey, political persecution against political parties sympathetic to the Kurds and other religious and ethnic minorities in Turkey, and military actions by the Turkish Government against Kurdish populations in Iraqi Kurdistan and North and East Syria.
4.48
The ATAA did not directly dispute these arguments but stated that it was important to remember that the PKK is not representative of the Kurdish people and ‘the majority of the PKK’s victims have been the Kurdish people of Southeast Turkey…the best example of this is the current sit-in protests carried out by Kurdish mothers whose children had been abducted by the PKK as recruits in [the] mainly Kurdish town of Diyarbakir.’
The PKK and peace and stability in the region
4.49
In its submission to this review, the KLA stated that delisting the PKK as a terrorist organisation would have a positive effect on peace and stability in the region. The PKK as a secular organisation has played a role in the fight against ISIL in Syria and Iraq in the past. The KLA stated:
Only by Turkey negotiating with Kurds and their political, civil, tribal and religious representatives, and their women and youth, will there be potential for mutually advantageous peace, stability and prosperity. Levers need to be applied to convince Turkey to change its 97-year trajectory. One unilateral lever is that governments can delist PKK as a terrorist organization, and support a peace process.
4.50
The FDKSA made similar comments:
…negotiations with the Turkish government are essential to end its conflict with the Kurds, and de-listing of PKK would facilitate such negotiations. Australia could be in the vanguard for this process and play an important role in achieving peace, freedom and democracy for all in that region.
Trauma and the Kurdish-Australian Diaspora
4.51
The FDKSA stated that the continued listing of the PKK as a terrorist organisation by the Australian Government is traumatic for the Kurdish community in Australia. In their submission they wrote:
The listing of PKK is traumatic for the Kurdish community and the most important issue affecting Kurds in Australia and [is] a human rights violation of Kurds as it leads to discrimination. To be listed among Islamist Jihadist groups is offensive, as PKK’s values are compatible with Australian values. The other listed groups tried to annihilate Kurds and Christians across the Middle East and violate the rights of women. That PKK, as a democratic and secular organisation promoting the rights of women (as PKK’s leader Abdullah Ocalan said: ‘A society can never be free without women’s liberation’) peace among all ethnic groups and religions is listed as a terrorist organisation pains us.
4.52
The FDKSA noted further that the continued listing of the PKK prevents Australian Kurds from expressing solidarity with ‘their freedom movement’ and also contributes to discrimination against Kurdish people in Australia.
Committee Comment
4.53
The Committee finds that the PKK meets the requirements for listing as a terrorist organisation under the Criminal Code, namely that this organisation:
Is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; and
Advocates the doing of a terrorist act.
4.54
As such the Committee supports the relisting of the PKK as a terrorist organisation and finds no reason to disallow the legislative instrument.
4.55
The Committee is strongly committed to the safety of all Australians, including those overseas, and the lack of a direct threat to Australians within Australia is not sufficient to prevent a listing of an organisation as a terrorist organisation. It is also important to remember that one purpose of terrorist organisation listings is to have a deterrent effect on people joining these kinds of organisations as well as having a symbolic value.
4.56
The Committee is thankful to the stakeholders and community groups who made submissions to this review both in support of and in opposition to the relisting and found the evidence they provided compelling. This relisting is a contentious matter with strongly felt opinions on both sides of the debate and the Committee appreciates the efforts of stakeholders to have the voices of their communities heard.
4.57
The Committee was concerned however that despite recommendation one of the Committee’s 2018 report into this relisting, and evidence provided by the Department of Home Affairs of its engagement with the Kurdish community in regards to this issue, there seems to be some misunderstanding from the Kurdish community about the purpose of the engagement and which area of the Department had provided the consultation.
4.58
The Committee is therefore of the view that the Department should continue to engage with the Kurdish community on the relisting of the PKK with a particular focus on providing advice on what conduct and communications would constitute criminal conduct under the Criminal Code.
4.59
The Committee recommends that Australian Government agencies continue to engage with the Kurdish community in relation to the listing of the Kurdistan Workers’ Party and provide advice on the conduct and communications which would fall under the ambit of criminal conduct of the Criminal Code.
4.60
The Committee would like to be kept advised of the Australian Government’s continuing engagement in this area and seeks a briefing on the relevant Department’s engagement with the Kurdish community within 18 months of tabling this report.
4.61
The Committee recommends that, within 18 months of tabling this report, the Parliamentary Joint Committee on Intelligence and Security receive a briefing, either orally or in writing, from the Department of Home Affairs on its continuing engagement with the Kurdish Community on the listing of the Kurdistan Workers’ Party.
Senator James Paterson
Chair
12 October 2021