Thirty-one Australian women and children forcibly held for four years in a Syrian detention camp have told the federal government to prove it cannot bring them home, or “bring their bodies to the court” in Australia.
In filings before the federal court, Save the Children Australia – representing 11 Australian women and their 20 children – has argued the Australians are being unlawfully detained and their government has the power, and an obligation, to remove them and repatriate them to Australia.
The Australians are the wives, widows and children of slain or jailed Islamic State fighters: most have been held in the squalid Roj detention camp in north-east Syria for four years. None have been charged with a crime or currently faces a warrant for arrest. Several of the children were born in the camp and know no life outside it. Conditions are “dire”, the Red Cross says, illness and malnutrition is rife and the security situation “extremely volatile”.
The Australians are physically held by the Autonomous Administration of North and East Syria (AANES) and its military wing, the Syrian Democratic Forces.
But court submissions from Save the Children state that Australia is a member of the coalition that “specifically supports the AANES to maintain the detention of persons including the women and children”.
The submissions argue AANES has expressly asked coalition countries, including Australia, to repatriate their citizens, and that if Australia was to request that repatriation it would be permitted.
There is no safety issue in travelling to the camps: journalists, family members and NGO workers have travelled in and out frequently.
The habeas corpus writ submitted by Save the Children argues Australia has effective control of the Australians’ detention and must prove either that the women and children are lawfully detained or that Australia cannot repatriate them, “or bring their bodies to the court”.
In an affidavit before the court, Vanderbilt University law school professor Michael Newton, an expert on the law of armed conflict and transnational justice, has argued Australia “enjoys the practical ability, by virtue of exercising de facto authority, to make arrangements for ending the extended detention of Australian women and children in north-eastern Syria”.
“As a logical corollary, Australian officials have the means, in my expert opinion, of securing the release and subsequent return of the Australian women and children in north-eastern Syria.”
The Australian government has argued, in its filings to court, that it “does not have control of the remaining Australian women and children” and cannot be compelled to repatriate them.
It says it was not responsible for the Australians going to Syria or becoming detained, and that the camp detention is under the “absolute discretion” of the AANES, over which the Australian government has no authority.
Even if repatriation was agreed by Syrian forces, “the commonwealth would need to arrange for their safe repatriation, having regard to the security and geopolitical situation that exists at the relevant time”.
Ahead of the court hearing on Tuesday morning, the chief executive of Save the Children Australia, Mat Tinkler, said the legal challenge was only necessary because “these innocent Australian children … have been abandoned by their own government”.
“Despite countless opportunities to repatriate these families, the Australian government has ultimately failed in its duty to bring all of its citizens home to safety,” he said.
Tinkler said that while advocacy efforts had been “exhaustive and relentless”, government inaction had forced the matter to court.
“Legal action was never the preferred approach for anyone, however the families have been left with no other recourse,” Tinkler said.
“We desperately hope these children and their mothers will be imminently repatriated home to safety.”
Australia has undertaken two repatriation missions from the camps in north-east Syria. In 2019, eight orphaned children, including a pregnant teenager, were returned to New South Wales from the camps.
And last October, four women and 13 children were brought back, also to NSW. The government has said it is committed to repatriating all of the Australians it can safely evacuate, but has not given any indication when another operation might be launched.
• This article was amended on 26 September 2023. The number of Australian women and children involved in the legal action in the federal court was 31 not 33. The original figure was reported from court documents that have now been corrected.
