Background
2.1
Hizballah’s ESO is a part of Hizballah, a multi-faceted Lebanese organisation with military, political and social components.
2.2
Founded in 1982, Hizballah represents the Lebanese Shia community, the largest religious group in Lebanon. It maintains a social welfare network, including education and health services, and entered the Lebanese Parliament in 1992, entering the government in 1995.
2.3
Hizballah is governed by the Majlis al-Shura (the Consultative Council), which directs the activities of five subordinate councils: the Political, Parliamentary, Executive, Judicial and Jihad Councils.
2.4
Dr Matthew Levitt, a recognised authority on Hizballah and its activities, explained the organisation of the Hizballah in his submission to the review:
The Executive Council manages the organization’s daily operations and oversees all cultural, educational, social and political affairs. The Political Council administers Hezbollah’s external relations, oversees the group’s relations with the other political forces in Lebanon and organizes public information and propaganda efforts…The Jihad Council…comprises those in charge of resistance activity, be that in terms of oversight, recruitment, training, equipment, security, or any other resistance related endeavors.
2.5
The Jihad Council directs Hizballah’s Military Wing, and as such is responsible for both Hizballah’s formal military activities as well as its covert activities within Lebanon and abroad. Dr Levitt stated it enjoys a degree of ‘strategic ambiguity’ that the other Councils do not have, though decisions about its activities are directed by Hizballah’s senior leadership.
2.6
Within Hizballah’s organisational structure, the ESO sits under the Military Wing. According to the Statement of Reasons:
The Military Wing comprises all elements of Hizballah’s military and military-relevant functions, including the ESO which is a discrete entity. As such, the ESO’s activities are distinct from Hizballah’s formal military actions in the Middle East.
2.7
The ESO is responsible for various activities, including intelligence, counter-intelligence, procurement, and the planning, coordination and execution of terrorist attacks against Hizballah’s enemies. “The ESO’s operations are generally characterised by their clandestine activities targeting Israeli and US interests outside the Middle East.”
2.8
Due to its secretive nature, little is known about the membership and funding of the ESO.
2.9
The leader of the ESO is Talal Hamiyah, who was implicated in terrorist attacks in Argentina in 1992 and 1994. The US State Department currently offers a reward for information leading to the location, arrest or conviction of Hamiyah.
Legislative criteria
2.10
As mentioned in chapter one, for an organisation to be listed as a terrorist organisation the Minister for Home Affairs must be satisfied that the organisation in question has met either of the following legislative criteria:
It is directly or indirectly engaging in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
It advocates the doing of a terrorist act.
2.11
The Statement of Reasons sets out that the ESO has met the legislative criteria for re-listing as a terrorist organisation through its directly or indirectly engaging in terrorist acts.
2.12
As this is a re-listing, the Committee’s review of the ESO will focus on the organisation’s activities since its last re-listing in May 2018.
2.13
The Minister for Home Affairs submission states that Hizballah does not generally acknowledge any of the ESO’s activities or claim responsibility for terrorist attacks. This, plus the clandestine nature of the ESO’s activities, presents a challenge for agencies attempting to gather information on them.
2.14
The submission goes on to say that there is little indication that the ESO’s role in the coordination and execution of terrorist attacks against Hizballah’s enemies outside of Lebanon has changed since its last re-listing.
2.15
The ESO’s terrorist activities since the last re-listing in 2018, as provided by the Statement of Reasons, are listed in Table 2.1 below:
Table 2.1: The ESO's terrorist activities since June 2018
|
|
|
|
May 2019
|
An individual was convicted in the US for undertaking terrorist activities on behalf of the ESO, including gathering intelligence about potential targets and procuring weapons. The offender’s potential targets included JFK Airport and 26 Federal Plaza, Manhattan.
|
|
July 2019
|
The US Department of the Treasury’s Office of Foreign Assets Control (OFAC) designated Salman Raouf Salman, a senior member of the ESO, for attacking for and on the behalf of Hizballah. Mr Salman’s activities included coordinating a July 1994 attack in Argentina and being the handler of Mohammad Hamdar, a man arrested in 2014 in Peru for planning a terrorist operation.
|
|
September 2019
|
A naturalised US citizen was charged with providing material support for, and receiving training from, Hizballah between 1996 and 2019. His activities included surveillance of potential targets for terrorist attacks, including the United Nations headquarters, Times Square, the Statue of Liberty and several other significant pieces of infrastructure in New York.
|
|
September 2020
|
The US Coordinator for Counterterrorism Nathan Sales stated in a speech that Hizballah has caches of ammonium nitrate throughout Europe, transported through cold packs in first aid kits. This activity has been ongoing since 2012 and is consistent with the ESO’s operational methods as Hizballah’s terrorist wing.
|
|
March 2021
|
The Director of the US’s Federal Bureau of Investigations (FBI), Christopher Wray, advised the Senate Judiciary Committee ‘Lebanese Hizballah has sent operatives to build terrorist organisations worldwide.’ He confirmed that the ESO has interest in long term contingency plans for its activities in the US.
|
Source: Minister for Home Affairs, Submission 1, pp. 23-24.
2.16
The ESO’s terrorist activities prior to 2018 are also listed within the Statement of Reasons.
Non-legislative factors
2.17
As mentioned in chapter one, other non-legislative factors can be taken into account in order to ‘guide and prioritise’ the listing, re-listing or de-listing of organisations.
2.18
For a full list of the non-legislative factors which can be taken into account see paragraph 1.14 above.
2.19
The ESO has made no specific threats to Australia or Australian interests, however future attacks of the ESO could target Australians or Australian interests.
2.20
Little is known about the ESO’s links to other terrorist organisations. However, the Hizballah Military Wing has provided training and operational support to several organisations proscribed as terrorist organisations in Australia, such as the Palestinian Islamic Jihad and Hamas’s Izz al’Din al Qassam Brigades.
2.21
Hizaballah as a whole (not just the ESO) is listed as a terrorist organisation by the US, Canada and the UK. The European Union and New Zealand list Hizballah’s Military Wing as a terrorist organisation.
2.22
The UK had previously only listed Hizballah’s ESO as a terrorist organisation. In 2008 this listing was expanded to Hizballah’s Military Wing and this was further expanded in 2019 to the whole organisation of Hizballah.
2.23
The Statement of Reasons states that as Hizballah is a political party forming part of the Lebanese Government, it engages with various other governments and international organisations. It is not known if the ESO has engaged in any peace or mediation processes.
Previous reviews
2.24
As mentioned in chapter one, the ESO was first listed as a terrorist organisation in 2005 and has been re-listed in 2007, 2009, 2012, 2015 and 2018.
2.25
The Committee has reviewed the re-listing every time it has been referred and has always supported the relisting of the ESO.
2.26
In 2012 the Committee, while supportive of the re-listing, came to the conclusion that:
It is clear that many research organisations…that the Committee refer to in reviewing a re-listing such as this no longer make a distinction between Hizballah and Hizballah’s ESO. On this basis, and with the benefit of having examined this organisation on numerous occasions, the Committee was able to conclude that certain activities attributed to Hizballah could equally be attributed to Hizballah’s ESO.
2.27
In 2015, as part of its review into the re-listing of the ESO, the Committee sought information on the continued listing of the ESO rather than expanding the listing to the whole of Hizballah. The Committee accepted the Government’s then approach to proscription, noting in its Committee Comment that this ‘provides flexibility by allowing competing interests to be considered and unintended consequences that may hinder counter terrorism to be avoided.’
2.28
In 2018 the Committee recommended ‘that the Government give further consideration to extending the listing to include the military wing of Hizballah.’
2.29
In making this recommendation the Committee noted:
…the Committee considers that more detail should have been provided in the public statement of reasons, and that departments and agencies must be better prepared in providing advice to the Committee. In particular, in this instance the Committee does not consider that adequate evidence was provided regarding the decision to not include the military wing of Hizballah in the listing. The Committee also notes that proscription of the ESO is now somewhat inconsistent with the approach taken by some of Australia’s closest partners: Canada, New Zealand, the United Kingdom and the United States.
2.30
The Australian Government response to the Committee’s 2018 recommendation was provided in April 2019. The Government accepted the recommendation in principle. It stated:
The Government will keep the matter of listing Hizballah’s military wing under review and notes that Australian security agencies actively monitor developments to ensure that terrorist organisation listings remain appropriate. Australian security agencies will provide advice to the Minister for Home Affairs in 12 months’ time on any change in circumstances which could warrant consideration of broadening the listing of Hizballah’s ESO to the Military Wing.
2.31
Mr Richard Feakes, Acting Deputy Secretary, Social Cohesion and Citizenship of the Department of Home Affairs stated that:
…the statement of reasons for the ESO listing doesn't make reference to that recommendation or our response that we, in principle, agree. Since this committee reviewed the ESO in the middle of 2018, as I referred to in my opening remarks, we have kept the appropriateness of that listing under very close review.
2.32
When questioned further by the Committee on the continued listing of Hisballah’s ESO rather than expanding the listing, Mr Feakes said:
In a public hearing, I can't go into any details on what the government might be doing as far as an extended listing goes. I can tell you that we keep these listings under review. There are a number of government structures which are designed for that purpose. But I can't tell you in a public hearing that we're giving thought to extending the listing or indeed giving thought to listing any other organisation.
Expanding the listing
2.33
The Committee received several submissions from interested community groups and individuals who expressed a strong preference for the re-listing of Hizballah to be expanded from the ESO to the whole organisation.
2.34
All non-government submitters to the review recommended that the re-listing of the ESO not be disallowed but also that the listing be expanded to the whole organisation of Hizballah.
Hizballah as a compartmentalised organisation
2.35
At the public hearing the Department maintained that the ESO is a separate and discrete organisation within Hizballah which allows for it to be listed as a terrorist organisation rather than the whole organisation of Hizballah.
2.36
Many of the submissions noted that Hizballlah itself does not make a distinction between the ESO and its broader organisation.
2.37
The UK Home Secretary, Savid Javid, specifically made this point in the House of Commons on 26 February 2019:
There have long been calls to ban the whole group, with the distinction between the two factions derided as smoke and mirrors. Hezbollah itself has laughed off the suggestion that there is a difference. I have carefully considered the evidence and I am satisfied that they are one and the same, with the entire organisation being linked to terrorism…
This Government have continued to call on Hezbollah to end its armed status; it has not listened. Indeed, its behaviour has escalated; the distinction between its political and military wings is now untenable. It is right that we act now to proscribe this entire organisation.
2.38
Dr Matthew Levitt, an expert on Hizballah and author of the book Hezbollah: the Global Footprint of Lebanon’s Party of God, quoted the Deputy Secretary-General of Hizballah’s Consultative Council (named below as the Shura Council) Naim Qassem as saying:
Hezbollah has one single leadership, and its name is the decision-making Shura Council. It manages the political activity the Jihad activity, the cultural and social activities…Hezbollah secretary general is the head of the Shura Council and also the head of the Jihad Council, and this means that we have one leadership, with one administration.
2.39
The head of Hizballah’s parliamentary delegation Mohammad Raad has said:
The Hizballah military wing is a lie invested by the Europeans because they feel a need to communicate with us and they want to make a delusional separation between the so called military and political wings.
2.40
Mr Emanuele Ottolenghi, a senior fellow of the Foundation for the Defense of Democracies, acknowledged in his submission that there is compartmentalisation within the organisation of Hizballah but stated:
Compartmentalization is thus functional to the overarching mission of the movement, but it does not translate into impenetrable walls erected to insulate decisions or allow different parts of the party to operate independently.
Hizballah’s activities in Australia
2.41
In its submission and at the public hearing, AIJAC gave evidence that listing the whole of Hizballah as a terrorist organisation would allow for better monitoring of its activities in Australia and would assist law enforcement to link Hizballah’s terrorist activities with its criminal fundraising efforts.
2.42
The following was provided to the Committee as evidence of Hizballah’s activities in Australia:
In September 2020 a Bulgarian court sentenced Meliad Farah (in absentia), a duel Australian-Lebanese citizen to life in prison for his role in the 2012 bombing of a bus carrying Israeli tourists in Bulgaria.
In September 2019 the charity status of Al-Mabarrat Benevolent Society was revoked by the Australian Charities and Not-for-profit Commission (ACNC) for undisclosed reasons. Previously the media had reported that this organisation had ties to Hizballah.
In July 2019, the US Department of Homeland Security produced a factsheet outlining Hizballah’s recruitment methods. This factsheet noted that Hizballah targets people with familial ties to Lebanon including duel Australian-Lebanese citizens.
In April 2019, the US Department of the Treasury designated the Chams Money Laundering Organisation as a ‘Specially Designated Narcotics Traffickers’, noting this organisation was an affiliate of Hizballah. This organisation has moved money through Australia and several other countries.
2.43
Mr Mike Burgess, Director-General of Security of ASIO stated that expanding the current listing of Hizballah to either the Military Wing or the whole organisation of Hizballah would have no impact on ASIO’s current operations.
2.44
In response to questions taken on notice during the public hearing ASIO stated:
ASIO assesses there would be no significant harm to our operational capacity, were the listing to be broadened. Any impacts could be managed within ASIO’s existing legislative framework.
This position reflects the nature of the current security environment, and the legal authorities and capabilities that ASIO has available to address consequential impacts.
2.45
At the public hearing, the Committee discussed the case of Ali Haidar with witnesses. The New South Wales Government attempted to have Mr Haidar listed as a high-risk terrorist offender due to his history of violent criminal offences and his support for Hizballah. The prosecution in this case was unsuccessful in part because it could only prove Mr Haidar’s support of Hizballah, not that he was a supporter of Hizballah’s ESO, and as such could not prove his support of a terrorist organisation.
2.46
When discussing the above case, Mr Ian McCartney, Deputy Commissioner Investigations of the Australian Federal Police (AFP) gave evidence that the limited Criminal Code listing of the ESO could sometimes make prosecutions of terrorist offences more difficult. With the current listing, the prosecution is required to prove that the individual supports Hizballah’s ESO specifically, rather than proving they are a supporter of Hizballah as a whole. He said:
…I would say in general that obviously there are a number of offences under division 102 that require the existence of the organisation being designated as a terrorist organisation. It doesn't prevent us investigating and prosecuting. It does make it more difficult. Obviously, in the absence of listing a regime, we are required to prove beyond reasonable doubt that an organisation is a terrorist organisation. I think—and I may be corrected by my colleague—the only time that we've done that, going back a number of years, is in relation to Operation Pandanus and the Benbrika group. We proved beyond reasonable doubt that they, in terms of their operation, were designated as a terrorist organisation.
2.47
Mr McCartney agreed that the task of Federal and State police is easier if an entity has been listed as a terrorist organisation as the level of proof required in a prosecution is lower.
Australia’s relationship with Lebanon
2.48
Mr Roger Noble, Ambassador for Counterterrorism from the Department of Foreign Affairs and Trade stated that Australia has a positive relationship with the State of Lebanon and “…a functional and prosperous Lebanon is in the Australian national interest and that is basically what we pursue.”
2.49
AIJAC stated in its submission that Australia listing the entirety of Hizballah would not impact its diplomatic or aid relationship with Lebanon. AIJAC provided evidence from the UK’s former British Home Secretary Sajid Javid (as mentioned above, the UK listed Hizballah in its entirety as a terrorist organisation in 2019) who said:
The relationship with Lebanon is as strong as ever. The international development program we have, we had to recalibrate some of them, stop one or two of them and invest in others, that work continues.
2.50
Ms Naomi Levin, Senior Policy Analyst from AIJAC referred to Germany’s recent shift to listing the entirety of Hizballah as a terrorist organisation. In response to questioning about whether the listing of Hizballah had led to an increase in sympathy and membership for this group in diaspora Lebanese populations within Germany, Mr Levin stated there was some evidence to suggest there had been a small increase in Hizballah membership within Germany after the listing but this increase was so small as to be negligible.
2.51
Dr Matthew Levitt stated that providing outreach to the diaspora Lebanese community in Australia would be an important tool the Australian Government could use to help this community understand the impact of any change in the listing of Hizballah:
I do not know of any country that has done anything in advance, and I think that that would be really useful. I do know that in the United States we tend to do things a little bit reactively, especially once the National Counterterrorism Centre was created. NCTC has gone around the country and held town meetings on a whole variety of things. More of them are related to people going to Daesh, or ISIS, and what all that meant, but some of them have included both Shia extremism and, of course, right-wing extremism, and I imagine, given what's going on now, it will be even more so. Doing this in advance, even if it's not actually really done in advance, would mean having a plan in advance for what those meetings would look like and who would host those meetings, to be able to explain specifically why we are doing this and how it is that this is not against all Lebanon or all Lebanese or, very importantly, all Shia.
2.52
The Department of Home Affairs, in answer to questions taken on notice about its engagement with the Lebanese community on this matter, stated:
The Department of Home Affairs regularly engages with all communities in Australia, including members of Australian-Lebanese communities. These engagements have not included a discussion of the implications for Australian-Lebanese communities of the listing of Hizballah’s ESO as a terrorist organisation under the Criminal Code, or any potential expansion of that listing.
International listing status
2.53
ECAJ provided the following table showing the listing status of Hizballah in other countries and regional organisations:
Table 2.2: Listing status of Hizballah by country/regional organisation
|
Hizballah in its entirety is listed as a terrorist organisation:
|
Arab League, Argentina, Austria, Bahrain, Canada, Colombia, Czech Republic, Estonia, Germany, Guatemala, Gulf Cooperation Council, Honduras, Israel, Japan, Lithuania, Netherlands, Paraguay, Serbia, Slovenia, Switzerland, United Arab Emirates, United Kingdom, United States, Venezuela
|
|
Only Hizballah’s Military Wing is listed as a terrorist organisation:
|
European Union, France, New Zealand
|
|
Only Hizballah’s ESO is listed as a terrorist organisation:
|
Australia
|
Source: ECAJ, Submission 4, p. 5
2.54
The ZFA noted the Committee’s recommendation to the Australian Government in 2018 to list the Military Wing of Hizballah and stated this would not be sufficient as it would be inconsistent with the practice of three of the Five Eyes nations which list the entire organisation of Hizballah.
2.55
European law enforcement (Europol) has faced difficulties in prosecuting Hizballah for drug and diamond trafficking and money laundering due to the listing of only the Military Wing of Hizballah as a terrorist organisation:
The Lebanon-based Shi’i extremist organisation Hezbollah (Hizb Allah, ‘Party of God’) – whose military wing is listed a terrorist organisation by the EU – is suspected of trafficking diamonds and drugs and of money laundering via the trade in second-hand cars. Capital is sent to Lebanon through the banking system but also through physical transport of cash via commercial aviation. Investigations face the difficulty of demonstrating that the funds collected are channelled to the military wing of the organisation
2.56
Mr Noble of DFAT stated that Hizballah as a whole has been listed under Part 4 of the Charter of the United Nations Act 1945 (Cth) since 2001 in regards to financial transactions.
Process and protocol for re-listing
2.57
In listing a terrorist organisation under the criminal code, the Department of Home Affairs has a set protocol (the Protocol) which it follows. An overview of this protocol was provided in chapter one of this report.
2.58
Using the Protocol as a guide, the Department then follows a ‘process for listing’ (the Process) which is provided to the Committee as part of the Minister for Home Affairs’ submission to the inquiry.
2.59
From January 2021 there has been a change in the Protocol which has moved the responsibility for preparing the Statement of Reasons from ASIO to the Department of Home Affairs.
2.60
Mr Mike Burgess, Director-General of Security for ASIO stated that:
…I was part of the drive for the change. I may not have been the full reason. It was simply, from my point of view, as Director-General of Security, that ASIO's role should be limited to doing security assessments relating to threats to security, not do other things where we would consider other factors when we're forming our security views—so, simply to give ASIO the role of giving a security assessment. What is done with that assessment in regard to listing and what other factors are taken into account was clearly, in my view, not a matter for ASIO in itself but to be left to others to consider.
2.61
Mr Feakes of the Department of Home Affairs stated:
It's quite a complex area of government engagement. It involves a number of departments, as you heard this morning from the director-general, spanning intelligence, policy and of course the Australian Government Solicitor. It's not purely a binary question of whether to list or not to list based on whether an organisation meets the thresholds or otherwise. There are also, as you know, Chair, public interest criteria that come into agency considerations of a listing under division 102 of the Criminal Code. You know that we've recently updated the protocol. I think we set that out in our submission to the committee. That's been an important body of work. It's taken some time. We started in the middle of last year. It was important to get it right. I think now it gives much better effect to the actual roles of agencies in consideration of prescription, particularly Home Affairs and ASIO, as you heard from the director-general this morning.
Committee comment
2.62
The Committee finds that Hizballah’s ESO 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; or
Advocates the doing of a terrorist act.
2.63
As such the Committee supports the re-listing of the ESO as a terrorist organisation under the Criminal Code and finds no reason to disallow the legislative instrument.
2.64
The Committee is thankful to the members of the community who made submissions to the review and found their testimony about expanding the listing to the whole organisation of Hizballah compelling.
2.65
As well as this, the Committee was concerned that, despite the Australian Government response to its 2018 report where the recommendation to consider listing Hizballah’s Military Wing was agreed to in principle, the Minister for Home Affairs has decided to only seek a re-listing of the ESO.
2.66
The Committee notes the evidence provided by Dr Matthew Levitt with regards to the importance of outreach and engagement to diaspora Lebanese communities in Australia in advance of any decision taken on the listing of Hizballah in its entirety. The Committee notes that the Department of Home Affairs gave evidence that it has not consulted with the diaspora Lebanese community on the listing of Hizballah’s ESO or any potential expansion of the listing, consistent with its standard approach in these matters.
2.67
The Committee acknowledges that proactive outreach and engagement with diaspora communities in Australia is an important activity to be undertaken by the Department and urges it to give due consideration to how it can engage with members of diaspora communities.
2.68
As it stated in its Comment in the 2018 review, the Committee notes once again that the Australian Government’s position is out of step with its closest allies, with Australia now being the only Five Eyes nation that lists only the ESO as a terrorist organisation.
2.69
The Committee recommends that the Australian Government give consideration to extending the listing of Hizballah’s ESO as a terrorist organisation to the entirety of Hizballah, noting the positions of the United States, the United Kingdom, Canada, the Arab League, the Gulf Cooperation Council and the United Arab Emirates.
2.70
Should the Australian Government accept the above recommendation, the Committee acknowledges that there will be some practical challenges for intelligence, security and law enforcement agencies in implementing this decision. The Committee anticipates that if the Australian Government gives consideration to extending the listing as recommended, it should examine how these challenges can be mitigated.
2.71
The Committee was also concerned that the Minister for Home Affairs’ submission to the inquiry made no mention of the Committee’s previous recommendation from the 2018 report and did not provide adequate evidence as to why only the ESO should continue to be listed.
2.72
The Committee would also have liked to receive a confidential or classified submission from the Department regarding this re-listing and the Committee’s previous recommendation to the Government at the start of this current review.
2.73
As such, the Committee does not want the whole listing period to elapse before further investigating this matter with the Department and makes the following recommendation:
2.74
The Committee recommends that the Department of Home Affairs and any other relevant agencies provide the Committee with a classified briefing on its response to Recommendation 1 within three months of tabling of this report.
Senator James Paterson
Chair
June 2021