• Joo-Cheong Tham

01 May 2006Banning the PKK is unjust and unproductive, argues Joo-Cheong Tham




AS THIS YEAR’s Anzac Day recedes into memory and the crowds depart from Gallipoli, we might do well to note a conflict that continues to rage in Turkey. Since at least the end of the first world war, Kurdish groups have fought against Turkish rule. At times, the claim was for a separate Kurdish state; more recently the emphasis has been on increased Kurdish autonomy. In this conflict, violence has been used by both sides, not uncommonly against civilians. Human Rights Watch, for instance, has documented how the Turkish government has engaged in the forcible evacuation of up to half a million Turkish Kurds.



Another weapon the Turkish government has in its arsenal is the labelling of Kurdish groups as ‘terrorist’. Following this lead, countries like the United Kingdom, United States and Canada have listed the Kurdistan Workers’ Party, or PKK, as a ‘terrorist’ group. On 15 December 2006, the Australian government also banned the PKK as a ‘terrorist organisation’ under the criminal code. In a report released last Wednesday, a majority of the Parliamentary Joint Committee on Intelligence and Security endorsed the ban, while a robust dissent by a former Labor justice minister, Duncan Kerr, and the former Labor leader in the Senate, John Faulkner, urged the government to reconsider the proscription.



The Kerr-Faulkner minority position stands on much firmer ground than the majority report. Foremost, the PJIS unanimously found no evidence that the PKK posed a specific threat to the security of Australian citizens. This is unsurprising given that the objective of the PKK is, according to the federal government, the promotion of the rights of Kurds.



Before the parliamentary committee, ASIO defended the banning of PKK on the basis of a general threat to Australian tourists visiting Turkey. Even if this weak rationale is accepted, why then is the Turkish government not being banned as a ‘terrorist organisation’? Being a protagonist to the conflict, it has clearly contributed to the threat; it definitely falls within the criminal code’s definition of a ‘terrorist organisation’ by virtue of its political violence against Turkish Kurds.



Such selectivity points to the role of foreign policy considerations. The banning of the PKK was announced on 15 December 2005, a week after the visit to Australia by Recep Erdoğan, prime minister of Turkey. This at least raises the suspicion that the banning of the PKK was at the instigation of the Turkish government.



The majority of the parliamentary committee found no evidence that the Turkish PM’s visit had influenced the timing of the proscription. What it did not reject, however, was the possibility that the banning was influenced by the Turkish government. In fact, DFAT admitted that it received a request from the Turkish government to ban the PKK, which it claimed was forwarded to ASIO and the Attorney-General’s Department seven months before the banning - a claim denied by ASIO.



The suspicion remains that the proscription power, instead of being used to prevent political violence, has been put to the aid of foreign policy goals. No comfort is drawn from ASIO’s latest annual report, which states that its ‘terrorism investigations are aimed at identifying activity that is prejudicial to the security of Australia or to the security of other countries’ (emphasis added).



Worse, the banning of the PKK, as the dissenting report states, will inflict ‘potentially catastrophic community impact’ on thousands of Australian Kurds. It imposes criminal liability upon persons who engage in certain forms of association with the PKK. In other words, it imposes guilt by association and breaches the principle that criminal liability should be based on an individual’s actions in causing harm. An Australian Kurd voicing support for the PKK’s peaceful activities would likely be caught by these offences.



These repressive consequences are exacerbated by several matters. As the dissenting report pointed out, many Australian Kurds view the PKK as a ‘legitimate national liberation movement’ and would support its aims even if they did not agree with some of its tactics. The banning of the PKK then potentially criminalises an entire community. This is compounded by the fact that the PKK has military and political wings, yet the banning draws no such distinction. Australians financing the PKK’s political wing to assist its negotiations with the Turkish government, for instance, would be committing a crime punishable by a maximum of 25 years’ imprisonment. Also, some Australian Kurds have been accepted as refugees on grounds of political persecution based on their PKK sympathies. Banning the PKK potentially criminalises these refugees for the very reasons they were granted asylum. This borders on inhumane.



In sum, the banning of the PKK illustrates the arbitrary and repressive character of the government’s power to ban ‘terrorist’ organisations. Far from making Australians more secure, it is likely to criminalise an entire community. In many ways, it highlights the danger of the ‘war on terror’ becoming a ‘war of terror’ with laws used as instruments of state terror. •



Joo-Cheong Tham is a law lecturer at Melbourne University. He is also a committee member of Liberty Victoria and co-wrote Liberty Victoria’s submission opposing the banning of the PKK.



Photo: Mike Bentley/ iStockphoto.com