The law and Australian anti-Daesh fighter Ashley Dyball
In May this year, Ashley Dyball posted to the Facebook page he maintains under the name Mitchell Scott photos of his travels. There’s a photo of Dyball drinking with a mate in a Netherlands pub, a photo of an obscenely large McDonald’s combo meal at Jordan’s Queen Alia International Airport, and a series of images of the 23-year-old former powerlifting champion posing stiffly in front of the Eiffel Tower. The next photo Dyball posts, less than three weeks later, is a shot of himself dressed in full military garb, smoking a cigarette with one hand and cradling a gun with the other. The caption reads: “No news is good news. Miss everyone from home hope your all well #YPG #FUCKTHEISLAMICSTATE.”
Dyball’s friends and family in Queensland respond immediately, in varying tones of disbelief and dismay. “What in earth is this??” “Broooo” “Whaaat?” “Whaaaat the fuck” In the space of two hours, the tone of the lengthy Facebook thread turns from incredulity to delight. “Fuck yeah, legend.” “Haha the Man.. Let us know how many of them cunts you put down.”
Then a friend links to a statement from Attorney-General George Brandis, warning that any Australian fighting with the Kurdish YPG militia would face prosecution and a possible jail sentence of up to 20 years: “Ash you realise you can never return to Australia if this is all legit. What are you thinking.” Dyball’s brother posts minutes later. “Dearest little brother. What are you doing”.
Dyball is said to have joined the YPG, or the People’s Protection Units, to fight against Daesh in northern Syria. Dyball’s Australian solicitor, Jessie Smith, of Melbourne firm Stary Norton Halphen criminal lawyers, has been instructed that Dyball’s role in the YPG’s sabotage unit was to remove improvised explosive devices, more commonly known as landmines, laid by Daesh in civilian areas.
Dyball was detained in Germany where he was understood to be taking a break from the battlefield, and was deported to Australia last Sunday night, where he was questioned by Australian Federal Police for several hours in Melbourne. He was released without charge and returned home to a hero’s welcome in Brisbane on Monday.
It is a crime under Australian law to fight with a foreign militia, but there is an exception if the group constitutes a state or government, defined as an “authority exercising effective governmental control”. According to Smith, “This is a live debate in Ashley’s case.”
The Crimes (Foreign Incursions and Recruitment) Act, also known as the Foreign Fighters Act, was introduced in 1978 amid a fractured debate in parliament about whether Australians should be banned completely from participating in foreign conflict, or whether the law should preserve foreign service, reflecting Australia’s multicultural make-up. “There are Jewish, Turkish and Greek Australians who are often and routinely called to national service,” Smith says, “and we didn’t want to make it an offence, for example, for an Australian to serve in the Israel Defence Forces if they were called to do so.”
The legislation protects as well as prosecutes, and safeguards the interests of dual citizens who are closely engaged with the military affairs of their country of birth. “The most significant question is what constitutes a foreign government. Back in the ’70s it was defined as a sovereign state recognised by Australia, which includes Israel, France, Germany, all those pretty uncontroversial states,” Smith says. “In 1987, the definition of government changed from ‘sovereign state’ to ‘authority with effective control over territory or parts of territory’. And that’s where the YPG stake their claim.” The question for any prosecution under the foreign fighter legislation is whether an accused was serving with a rebel group, or within the armed forces of government.
Is YPG a legitimate army?
The YPG was formed by the Democratic Union Party, and last year declared three Kurdish cantons in northern Syria to be a de facto autonomous region named Rojava, or Western Kurdistan. Election processes have started in each of the three cantons – Jazira, Kobani and Afrin – and, according to a report issued by the Middle East Institute in August this year, locals have resumed responsibility for the administration of education, security, justice and health, as well as trade and business organisations.
Smith also represents Jamie Williams, a 28-year-old Melbourne man who was charged by the Melbourne Joint Counter Terrorism Team in July this year for the “preparatory offences” of attempting to travel to northern Iraq and preparing to stage a foreign incursion. In advance of Williams’ next court appearance, on December 17, Stary Norton Halphen is preparing what is being dubbed a “landmark defence” that will argue the Syrian territory controlled by the YPG should be recognised as an autonomous state. From discussions in court, it appears that Dyball’s and Williams’ cases are anchored in the same argument. The concern with both accused is not terrorism charges, but whether the YPG could be regarded as the army of a foreign government.
Smith makes it clear that the YPG is likely to be the only organisation that can claim the defence of being a government army, because no other groups have effective control or have set up the institutions of government. “And if they do, they’re terrorists. The legislation excludes terrorist governments such as the Islamic State [Daesh].”
A distinction must also be made that by recognising the YPG as a foreign government, Australia is not as a matter of foreign policy declaring statehood. “According to the definition of government within our criminal code, the YPG may have established democracy and autonomy to the requisite degree,” Smith says. “Their democratic rule in northern Syria amounts to effective control. As such, the YPG are a ‘government army’ for the purpose of the code. Because of the wide drafting of ‘government’, we say that the YPG falls under the exact same classification as Italy or France.”
As Dyball has not yet been charged under the Foreign Fighters Act, this has further muddied the national debate about the Syrian conflict. Echoing Tony Abbott’s 2013 characterisation of the Syrian civil war as being “not goodies versus baddies – it’s baddies versus baddies”, Smith says public perception around her client’s case has been overly simplified. “A lot of people have said that Ashley hasn’t been charged because he’s a ‘goodie’ not a ‘baddie’, but this simply isn’t about that. I think the conversation around the foreign incursion regime needs to be elevated because people just don’t understand why the YPG is unique, and why this isn’t a copout politically just because he’s fighting ISIS and the government will turn a blind eye.
“The foreign incursion regime is actually well suited to deal with Syrian conflict, but its subtleties are not well articulated. The government stance that you can’t fight for either side is not entirely accurate. It appears you can perform military service in Syria, it just needs to be with a government.”
Dyball’s case and, if Smith is successful in her defence, Williams’ too, could potentially lead to more Australian citizens joining the YPG. “It may be a concern for Canberra that a resolution favourable to the YPG leads to greater participation of Australian citizens with the Kurds,” Smith says. “I think you have to separate public policy decisions and political decisions from the application of the criminal law. The first step is to consider closely the Kurdish autonomy struggle in Syria since 2012.”
One only has to flick through Dyball’s Facebook page to see why the Australian government might be concerned about more young men travelling to fight in the region. In July this year, Dyball posted a photo from the Syrian territory of Kobani, which was recaptured by Kurdish forces the month before. The picture shows more than a dozen dead bodies lying in a row. Dyball’s caption read, “Personally I find this lineup better than stereosonic and the best part was only one guy had his shirt off ! #deadisisisthebestisis” Another photo posted in August this year shows Dyball squatting in the shelter of a building in a group. “Reminiscing the good times when we were sipping chai and were rudely interrupted by an Isil mortar,” the caption reads, “then we relaxed listening to the red hot chilli peppers!”
While Dyball is not the first young man to fight on foreign soil, he is of the first generation to post photos of the dead with hashtags. This is an era where young people are raised on a diet of explicit media and instant reportage of atrocities from across the world.
If Dyball is eventually charged, it is likely to be construed as a punishment for all foreign fighters, undermining the careful distinctions that were built into the Foreign Fighters Act. If Dyball is not charged, the government risks providing tacit approval to other young men like him who may dream of vanishing into the wild to fight against Daesh, an organisation that most of the world, and the Australian government, condemns loudly and often. If Dyball is, as he believes, fighting the good fight, should the Australian government fight him?
This article was first published in the print edition of The Saturday Paper on Dec 12, 2015 as "Fight for freedom". Subscribe here.