EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 39

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2009 (No. 6).

 

 

Section 5 of the Criminal Code Act 1995 (the Act) provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. The Schedule to the Act sets out the Criminal Code (the Code).

 

Division 102 of the Code sets out the offences in relation to terrorist organisations, which are: directing the activities of a terrorist organisation; being a member of a terrorist organisation; recruiting persons to a terrorist organisation; receiving training from or providing training to a terrorist organisation; being an associate of and receiving funds from or making available funds, support or resources to a terrorist organisation.

 

Section 102.9 of the Code provides that section 15.4 (extended geographical jurisdiction - category D) applies to an offence against Division 102 of the Code. The effect of applying section 15.4 is that offences in Division 102 of the Code apply to conduct (or the results of such conduct) constituting the alleged offence whether or not the conduct (or the result) occurs in Australia.

 

Paragraphs (a) and (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code define a ‘terrorist organisation’ as:

·        an organisation directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs) (paragraph (a)); or

·        an organisation specified in the regulations (paragraph (b)).

 

The purpose of the Regulations is to amend the Criminal Code Regulations 2002 to specify Islamic Movement of Uzbekistan and its aliases IMU, Islamic Party of Turkestan and Islamic Movement of Turkestan, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

The Regulations enable all offence provisions in Division 102 of the Code to apply to persons with links to Islamic Movement of Uzbekistan. Details of the Regulations are set out in Attachment A.

 

Subsection 102.1(2) of the Code provides that before the Governor-General makes regulations specifying an organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code, the Minister must be satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur) or advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

 

In determining whether he is satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, the Minister takes into consideration unclassified Statements of Reasons prepared by the Australian Security Intelligence Organisation (ASIO) in consultation with the Department of Foreign Affairs and Trade and the Australian Government Solicitor. The Statement of Reasons in respect of Islamic Movement of Uzbekistan is at Attachment B.

 

Subsection 102.1(2A) of the Code provides that before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code, the Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.

 

Prior to the making of the Regulations, consultations were held with the Department of Foreign Affairs and Trade, ASIO and the Australian Government Solicitor. In addition, the Prime Minister wrote to the Premiers and Chief Ministers of the States and Territories and an offer for a briefing was extended to the Federal Leader of the Opposition.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments. Subsection 102.1(3) of the Code provides when the regulations will sunset.

 

 

 

 

 

 

 

Attachment A

 

Details of the Criminal Code Amendment Regulations 2009 (No. 6)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2009 (No. 6).

 

Regulation 2 – Commencement

 

This regulation provides that the Regulations commence on the day after they are registered.

 

Regulation 3 – Amendment of Criminal Code Regulations 2002

 

This regulation notes that Schedule 1 amends the Criminal Code Regulations 2002.

 

Schedule 1 – Amendments

 

Item [1] –Regulation 4J

 

This item substitutes the existing regulation with a new regulation 4J to provide that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code Act 1995 (the Code), the organisation known as Islamic Movement of Uzbekistan is specified.

 

Subregulation 4J(1) provides that Islamic Movement of Uzbekistan is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4J(2) provides that for the purposes of subregulation (1), Islamic Movement of Uzbekistan is also known by the following names:

 

(a)    IMU;

(b)   Islamic Movement of Turkestan;

(c)    Islamic Party of Turkestan.

 

Attachment B

 

Islamic Movement of Uzbekistan

(Also known as: IMU, Islamic party of Turkestan, Islamic Movement of Turkestan)

 

The following background information is based on publicly available details about the Islamic Movement of Uzbekistan (IMU). The IMU has been listed in the United Nations 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of the UK, US, and Canada.

 

Current Status of the IMU

 

The origins of the IMU date from the early 1990s, when Juma Namamgani, a former Soviet soldier who fought in Afghanistan, and Tahir Yuldosh (variant of name, spelled Yuldashev in most reporting), an unofficial mullah and head of the Adolat (Justice) Party, joined forces to implement sharia law in the city of Namangan in Uzbekistan’s part of the Ferghana Valley. Alarmed by Adolat’s demands to transform Uzbekistan into an Islamic state, the government banned Adolat in March 1992. A period of repression followed, forcing many Islamic militants to flee the Ferghana Valley.

 

Namangani fled to Tajikistan, where he participated in the Tajik Civil War and established a base for his fighters in that country. Yuldashev escaped to Afghanistan, Pakistan, and Saudi Arabia, where he established links to other Islamic militants. He also made clandestine trips to Uzbekistan, maintaining contact with his supporters and setting up underground cells. By the late 1990s, the IMU was officially formed. Its stated goal, as posted on the internet in August 1999, was the “establishment of an Islamic state with the application of the Shariah” in Uzbekistan.

 

The IMU’s reach into Central Asia peaked from 1999 to 2001, when it conducted a series of attacks in Uzbekistan and Tajikistan and made incursions into Kyrgyzstan and Uzbekistan, from bases in Tajikistan and Kyrgyzstan.

 

The IMU’s goal of an Islamic state was expanded in 2001 to encompass an area stretching from the Caucasus to China’s western province of Xinjiang, under the new banners of the Islamic Party of Turkestan in April 2001 and the Islamic Movement of Turkestan in May 2001. However, the group has always been and continues to be known as the IMU, and that is the name under which it is listed by the US Office of the Coordinator for Counterterrorism as a foreign terrorist organisation.

 

By the end of the 1990s, the IMU had relocated to Afghanistan, due to the lack of support for the movement in Uzbekistan and the measures taken against it by the government. The IMU suffered heavy losses in the fighting that followed the US invasion of Afghanistan in October 2001, including the death of Namangani.

The remnants of the IMU fled to the tribal areas of neighbouring Pakistan, where their behaviour in some areas brought them into conflict with the local tribesmen and the Pakistani military. However, many IMU fighters have successfully integrated into the local community, where they have enjoyed the hospitality and sanctuary provided by the tribes.

 

The IMU continues to recruit fighters, and IMU members fight alongside the Taliban and al-Qa’ida against coalition and Pakistani forces in Afghanistan and Pakistan. The Ferghana Valley, where the Uzbek, Kyrgyz, and Tajik borders converge, is a fertile recruiting ground for the IMU, which has successfully exploited the widespread poverty in the region in its recruitment strategy.

 

IMU members have received training in camps in Afghanistan, some controlled by al-Qa’ida or the Taliban. The IMU also trains in camps in Pakistan and maintains bases there. Typical IMU tactics have included hostage-taking, raids on government security force outposts, and bombings.

 

The IMU has close ties with al-Qa'ida and the Taliban. Senior IMU leaders have held positions in the al-Qa’ida hierarchy. Sources of funding for the IMU have included criminal activities such as drug trafficking, as well as donations from sympathisers and al-Qa’ida.

 

On 11 September 2006, the IMU leadership renewed its commitment to attack the governments of Central Asia and issued personal threats against the Uzbek, Kyrgyz, and Tajik Presidents. This statement reinforced the IMU leadership’s commitment to al-Qa’ida’s ideology of global jihad and continued anti-Western and anti-Israeli rhetoric.

 

The IMU’s losses in Afghanistan and Pakistan, as well as the defection of fighters to a splinter group, the Islamic Jihad Union, have not diminished the group’s capability and intent to conduct terrorist attacks.

 

Objectives

 

The IMU’s initial objective was to overthrow the Uzbek regime and replace it with an Islamic state. Uzbekistan is part of what its Russian conquerors called Turkestan, a collective name for the old Central Asian feudal states. The IMU’s stated goal now is to establish an Islamic caliphate in Turkestan, stretching from the Caspian Sea to China’s Xinjiang Province and encompassing the current Central Asian nations.

 

Leadership and membership

 

Tahir Yuldashev is the leader of the IMU. His co-founder, Juma Namamgani, was killed in Afghanistan following the US invasion.

 

The IMU has attracted support from a variety of ethnic backgrounds, principally Uzbeks, Kyrgyz, Tajiks, Chechens, and Uighurs from western China. The strength of the IMU is approximately 500, with members located in South Asia, Central Asia, and Iran. Among the IMU’s supporters in the Middle East, Central Asia, and South Asia are a large Uzbek diaspora and several Islamic extremist groups.

 

 

 

Terrorist activities

Terrorist attacks and activities inside Central Asia for which the IMU has claimed responsibility or for which responsibility has been reliably attributed include:

·        16 February 1999: five car bombings in Tashkent, Uzbekistan, that killed at least 16 people and wounded over 130, in an apparent attempt to assassinate President Karimov;

·        21 August 1999: taking hostage four Japanese geologists, their interpreter, and the head of the Kyrgyz Ministry of Interior troops;

·        12 August 2000: taking hostage four US mountain climbers;

·        27 December 2002: a bombing in a market in Bishkek, Kyrgyzstan, that killed six people and wounded 40;

·        8 May 2003: a bombing in a currency exchange office in Osh, Kyrgyzstan, that killed one person;

·        31 January and 13 June 2005: bombings outside the Ministry of Emergency Situations in Dushanbe, Tajikistan, that killed one person and wounded at least 12;

·        25 January 2006: an armed attack on a pre-trial detention centre in Kairakum, Tajikistan, that killed the centre’s chief;

·        12 May 2006: armed attacks on border and customs posts in Kyrgyzstan and Tajikistan.

The IMU is now fighting in support of the Taliban and other Islamic groups against the Afghan government and international military forces in Afghanistan.

·        In mid-2007, seven heavily armed militants connected to the IMU were arrested while planting a mine on a road used by International Security Assistance Forces (ISAF) patrols in northern Afghanistan. The group admitted to carrying out rocket attacks, suicide missions and recruitment activities.

·        In May 2008, two IMU members in possession of explosives and hand grenades were arrested in Afghanistan. The two admitted to planting mines on a road and providing a base for militant activities.

IMU leader Tahir Yuldashev has also stated his support for the Pakistani Taliban in its conflict with the Pakistani security forces, and Pakistan claims to have killed at least 150 Uzbek militants in 2007.