Slow repatriation of women and children, including more than 30 Australians, from Syrian refugee camps is an impediment to fully defeating Islamic State, a court has been told.
Save the Children is fighting in the Federal Court for the Australian government to repatriate 11 women and 20 children, who are among 34 Australians in detention camps in northern Syria.
They're being held by the Autonomous Administration of North East Syria (AANES) and its defence arm, the Syrian Democratic Forces.
Save the Children is arguing the Commonwealth has sufficient power and control to have the women released from detention and is seeking a writ of habeas corpus, to have them returned to Australia.
Their starting point is earlier repatriations - by the Morrison government in 2019, and of four women and 13 children by the Albanese government in October 2022.
Peter Morrissey SC, for Save the Children, said a coalition of nations including Australia had been established for military and other purposes, and was pushing for repatriation.
"The interests of the AANES and coalition align strongly around a desire for countries to move quickly to repatriate their citizens," he said.
Mr Morrissey said US leaders have declared slow repatriation in camps as one of the biggest impediments to defeating ISIS, prompting constant calls from the US government for it to occur.
"Repatriation is the only durable solution to this urgent humanitarian and security situation," he read from a US State Department press release welcoming repatriation efforts by Kyrgyzstan in February this year.
AANES representatives have repeatedly stated for years that they want and need to repatriate foreign citizens, and are ready and willing to facilitate that.
Mr Morrissey suggested Australia would not consider the AANES an equal partner who might refuse an approach to repatriate a particular cohort of women.
He said there was evidence of an overarching plan to repatriate further women and children, and the Commonwealth had failed to produce any evidence that the plan had been recanted, that the AANES had altered its position or that the plan had changed in any way since last October.
Mr Morrissey said the AANES had been left with little choice but to detain ISIS fighters and accommodate their wives and children in the detention camps.
They are surrounded by towers, armed guards and barbed wire, and despite being accessible to aid workers and journalists the women are detained involuntarily, he said.
He described appalling sanitary conditions, not enough running water, limited medical care and temperatures above 40C through summer.
Chris Lenehan SC, for the Commonwealth, argues the Commonwealth does not have control over the women.
He said it wasn't the case that on request from Australia the women and children would simply be let out of detention, but rather any release is subject to conditions - including repatriation by foreign governments.
"They would prefer it if these people were no longer in their territory and they want someone to come and remove them," he said.
"And not just anyone - primarily nation states."
Mr Lenehan suggested that looked a lot like control - not on behalf of the Commonwealth, but by the AANES.
He also rejected claims by Save the Children that there was evidence of a plan to repatriate further groups of women and children, including references to a plan in emails.
It was an invitation to treat, rather than a present arrangement, he said.
"The AANES might be highly motivated to enter this sort of agreement, but that doesn't convert it into an arrangement and it doesn't convert it into what we have to have - control," he said.
Justice Mark Moshinsky has reserved his decision.
