One of the stranger stories to come out of Syria lately was the case of Northern Territory Labor Party president Matthew Gardiner's disappearance to Syria to fight against ISIS. Mr Gardiner upped and left his wife and family to join the ranks of the Kurdish YPG. Only two weeks later, another Australian, Ashley Johnston, became the first foreigner reportedly killed fighting ISIS, also with YPG.

The Syria conflict has made for some awkward alliances and strange bedfellows. But these two cases present a particularly complicated legal predicament in the realm of Australian counter-terror law.


Peshmerga forces in action against ISIS. (Flickr/Times Asi.)

YPG is considered the military arm of the Democratic Union Party (YPD), the Syrian branch of the Kurdistan Worker's Party (PKK), a Kurdish socialist guerrilla army behind an insurgency against Turkey, a conflict that has killed over 40,000 in the last three decades. The PKK is listed as a terrorist organisation by the EU, US, and Australia. It is the only non-Islamic organisation on the terror list in Australia.

Kurdish factionalism is a complex beast. There is little love lost between the outlawed PKK, based in the Qandil Mountain area of northern Kurdish Iraq and the Eastern Turkish border, and the Peshmerga, the legitimate armed forces of the Kurdish Regional Government which governs semi-autonomous Kurdish Iraq. However, the emergence of ISIS has seen interests converge. Kurdish factions, rivalrous Shiite factions, the Iraqi army and even some Sunni tribes have united in the battle against the militants.

With coalition air cover to help them, the battle-hardened YPG has emerged as the key partner for the US-led coalition fighting ISIS in the Syrian city of Kobani, on the central northern border with Turkey. PKK, YPG and Peshmerga forces battled ISIS for months to win back the city in early February.

Australia is of course a partner in the US-led alliance against ISIS. The coalition is arming and training the Iraqi Army, and providing air cover to local partners in Iraq and Syria. The Royal Australian Air Force joined the US-led coalition against ISIS in Iraq in October, and in March the Government announced an additional 300 troops will join the nearly 200 already assisting Iraqi security forces and the 400 Air Force personnel conducting air strikes against ISIS in northern Iraq.

But just as the US-led alliance is providing arms and training to the Iraqi armed forces, so the Iraqi Army is partnering with the Peshmerga. And in turn, the Peshmerga is teaming up with the YPG. This reporter has witnessed YPG-Peshmerga cooperation in northern Syria, and it is safe to say that arms directed to the Iraqi Army will end up in YPG hands. They may even end up in the hands of Matthew Gardiner as he battles ISIS.

Yet under Australian law it is a criminal offence to fight with any side in a foreign conflict. It is also an offence to be a member of any terrorist organisation. A new foreign fighters bill passed in October last year makes it an offence to travel to certain conflict zones other than for legitimate purposes.

The Australian Federal Police is reportedly investigating Mr Gardiner and he could face prosecution on return to Australia. Attorney General George Brandis says that 'participation by Australians in the Syrian civil war is against Australian law, irrespective of which side they are fighting on...Those who contemplate travelling are putting themselves in mortal danger. Those who are already there should leave the conflict zone immediately...there are safer, legal ways of helping the people affected by these conflicts than travelling overseas to fight'.

So far, there have not been any prosecutions of Australians involved in fighting with the PKK, the YPG or the Kurdish Peshmerga. Nor have there been any prosecutions of Australians for terrorism offences relating to the PKK.

One way to get around this awkward contradiction would be to de-list the PKK as a terrorist organisation. The PKK was first listed under a Criminal Code regulation in 2005 and was last re‑listed on 18 August 2012. The 2012 listing expires on 18 August and will be reviewed again before that date.

There several good arguments for removing the PKK from the list. One is that could pave the way for direct cooperation between the YPD and the US against ISIS. It could also give the peace process between the Kurds and Turkey extra steam. The leader of the PKK, Abdullah Ocalan, agreed from his prison cell in May 2013 to a pact ending hostilities and withdrawing fighters from Turkish soil, paving the way for a full settlement. The PKK was originally listed by the US as a terrorist organisation in 1997 at Turkey’s urging and at the peak of hostilities. But now, as he approaches a general election in June, a final settlement of the Kurdish question will also prove critical for Turkish President Recep Tayyip Erdogan. 

But that doesn't solve the problem of what do about Australians providing support to the PKK or traveling to Turkey, Iraq and Syria to fight on 'our side', and afterwards potentially coming home. It appears the only solution to that quandary is to ignore it, at least selectively, and hope no other high profile Australians fighting against ISIS make the press.