What Should Australia Do With Jihadists Who Want to Return Home?

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Newspaper headlines in late 2014 mocked jihadis who indicated a desire to return to Australia after realising that the lifestyle was a lot harder than expected.

After their iPods broke, the weather got colder and the living conditions got harsher, many wanted to leave the war zone and return to their comfortable homes in countries like England and Australia.

Deserters from IS face beatings and even execution, but those who stay also risk death in combat, or the death penalty if handed over to the Iraqi authorities.

And returning home exposes them to criminal sanctions, including lengthy prison sentences in Australia, England, Germany and France.

But while they may regret their decisions, very few back home have any sympathy at all.

The prospect of returning to a lengthy prison sentence doesn’t seem to have deterred many from leaving the war zone: with about 100 already having returned to England, 76 of them being arrested.

An estimated 3,000 Western fighters are currently in the Middle East, including many Australians, and now that many have declared the desire to return home, the community expects that they will be arrested on return and dealt with harshly.

How many Australians are fighting abroad for terrorist organisations?

The Australian government estimates at least 90 Australian citizens are fighting overseas with terrorist groups, although ASIO says that 20 of them are already dead.

Australia is the sixth biggest supplier of foreign fighters in Syria.

What is the law in Australia on foreign-fighters?

Australian law currently says that those with Australian passports must be allowed to return home.

Attorney General George Brandis says that while Australians who want to return should contact their families or the Australian government, they can expect to face the full weight of Australian law.

In Australia, returning fighters are looking at lengthy prison sentences.

The Controversial Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 is now effective after being passed by both Houses of Parliament on 3 November 2014.

Under section 119.2, it is an offence to enter or remain in ‘declared areas’. Doing so carries a maximum penalty of 10 years imprisonment.

The law does make exceptions – such as visits for humanitarian purposes, visiting family members and working as journalists.

In addition, several parts of section 268 of the Criminal Code Act 1995 deal with various war crimes, which can attract a maximum penalty of life imprisonment.

But despite these laws, it has been reported that less than half of the 20 returning foreign fighters have been charged with criminal offences to date.

Other approaches

Some have argued in favour of rehabilitation instead of punishment – saying that offenders should be put through mandatory de-radicalising programs, and reintegrated into the Australian community.

One proponent of that controversial idea is English Professor Peter Neuman who argues that reformed foreign fighters would be a powerful tool for deterring others who might be thinking about becoming jihadis themselves. That approach has already been adopted in Denmark which has one of the highest rates of jihadi fighters in Europe. In that country, returning fighters are even assisted with employment and housing where necessary.

And, according to newspaper reports, one Australian man who claims to be in contact with Australian-born jihadis agrees. He similarly argues that returning fighters should be put through de-radicalisation programs rather than sent to prison.

But allowing IS fighters back into mainstream obviously poses risks – what if they are not really reformed at all?

Why should we help those who have shown such a degree of hatred that they are prepared to engage in heinous acts? What sort of message would that send?

How could we do anything but impose harsh penalties that would punish such conduct and deter others?

And who wants to be responsible for bringing back a foreign fighter who then goes on to commit terrorist acts here?

Those in favour of de-radicalisation argue that, in the long term, punishing and further alienating those who voluntarily return to Australia is worse – pointing-out that terrorist groups like al-Qaeda were bolstered by foreign fighters who were not allowed to return to their home countries after fighting in Afghanistan.

However, proponents of de-radicalisation are distinctly in the minority, and any suggestion of such leniency outrages the majority.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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