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QLD Australian Law on Australians Joining a Foreign Army?

Discussion in 'Criminal Law Forum' started by Admor72, 18 September 2015.

  1. Admor72

    Admor72 Member

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    The Attorney General has repeatedly publicly stated that it is illegal for an Australian to fight on any side in the current wars in Syria and Iraq. However under the commonwealth criminal code in paragraph 4 under exceptions, it clearly states that it is not illegal for an Australian to join a foreign governments army, except under certain conditions such as when UN sanctions are applied against that government or when Australia or its allies are at war against the government. However these aside, therefore it would not be illegal for an Australian to join the Iraqi army, including the Peshmerga of Iraqi Kurdistan as they are under the Iraqi constitution part of the Iraqi army.

    This being the case, the Attorney Generals statements that it is illegal for an Australian to fight on either side is factually wrong under Australian law. Of course the question remains whether or not it is legal under Iraqi law to join the Iraqi army. however I do know that the Peshmerga accept western volunteers.

    However my point is that it is legal under Australian law for an Australian to join the Iraqi army.

    Can someone please provide a proper legal opinion on this, I am not a lawyer.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Admor72,

    It is not an offence to join the armed forces of a foreign country.
    However, part 5.5 of the Criminal Code, makes it an offence:
    • enter a foreign country with an intention to engage in a hostile activity, unless serving in or with the armed forces of the government of a foreign country
    • prepare to enter a foreign country with an intention to engage in a hostile activity
    • recruit persons to join an organisation engaged in hostile activities, or to serve in or with an armed force in a foreign country.
    The Attorney-General has to power to allow recruitment of a person to serve with a foreign armed force if it is in the interests of the defence of Australia.

    It is also an offence to intentionally enter, or remain in, an area declared to be an area in which a listed terrorist organisation is engaged in a hostile activity.

    Check this out: Australia's counter-terrorism laws | Attorney-General's Department
     
  3. Tim W

    Tim W Lawyer

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    I agree with his position.
    I am pretty comfortable that the Commonwealth Attorney-General is being well advised on this question.
    Bear in mind however that the precise legal language of the A-G's Department is, in the hands of the media,
    quite likely to be grossly-oversimplified, if not out-and-out wrongly reported.

    I have looked at the Iraqi Constitution, and I can see no reference in that document
    to The Peshmerga of Iraqi Kuwait being, as a matter of constitutional law, part of the Iraqi Army.
    Indeed, I only found the word "army" in the document once, and I did not find the word "Peshmerga" at all.

    That said, there might be other Iraqi national legislation to this effect, or for that matter, local law in Kurdistan to this effect.
    However, I have not been able to find it - I have been unable to access the Kurdistani statute books online, so far.
    There is also the possibility that whoever told you that, might be wrong.

    Nah. Not the way you mean.

    At risk of sounding glib, it's a matter of law in a foreign country who is allowed to join their army, or Army-like organisation.
    Some countries expressly provide for foreigners to join their forces - such as France (the Legion Étrangère) and the UK (which accepts applications from nationals of Commonwealth countries).
    Given how new the modern law in those places is, I am not assuming that this question is well addressed at law by either the Iraqi national, or the Kurdistani regional, legislation.

    I will conclude this post by suggesting that you pay particular attention to the disclaimer in my signature, and to suggest that, if you are actually thinking about it - don't go.
     
  4. Admor72

    Admor72 Member

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    Thanks Tim W

    It would be nice to think that I had the physicality I once had, but alas at my age and fitness levels joining any military is out of the question.

    In relation to the peshmerga I would point out that article 121 and 137 of the Iraqi constitution allows for regional governates, such as the Kurdistan regional goverante to raise their own forces which also form part of the Iraqi army (like a state based national guard). The peshmerga were raised into legal status by the kurdistan regional government in 1992. The Iraqi constitution of 2005 addresses the KRG making all laws passed by the KRG legal and recognised by the central Iraqi government backdated to all laws passed by the KRG from 1992. The peshnerga in terms of force disposition are responsible for the defence of Iraq's northern borders.

    I also recall a statement made by David Irvine (former director general of ASIO) last year. where he stated it was not illegal for an Australian to join the Iraqi army. At the time he was making the distinction between Australians not being able to join the Syrian army of Assad as that government is currently under UN sanctions.

    It seems to me abhorrent that we would be the only western country who actively seeks to prosecute those joining legitimate forces in the fight against the evil of ISIS. A philosophical statement I know, but still it says a lot. Indeed why not prosecute all these Australians serving in the British armed forces who are also deployed to that region.

    It has been said that the national interest test must apply, I fail to see how this is in the national interest.


     
  5. Admor72

    Admor72 Member

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    Thanks Sophea

    But as stated

    enter a foreign country with an intention to engage in a hostile activity, unless serving in or with the armed forces of the government of a foreign country

    Assuming that the peshmerga are legally part of the Iraqi Army, it would still not ne an offence?

     

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