Three of the four “ISIS brides” have been arrested and charged with crimes against humanity upon their return to Australia.

The cohort of four women and nine children linked to ISIS members have landed back in Australia after almost seven years in a Syrian detention camp.

There has been much debate among politicians and the media about whether the women and children have a right to return.

UWA law school Associate Professor Murray Wesson says while the women and children can be temporarily excluded from entering Australia, in the long run these women have legal rights to enter the country.

“I suspect that there’d be an implied protection for people who hold Australian citizenship, meaning they can’t be indefinitely excluded from Australia. If they hold citizenship, they probably would be entitled constitutionally to come back at some point,” he says.

Dr Wesson says the federal government does have the ability to exclude citizens on a temporary basis, as seen during the COVID pandemic.

He says while the children should not be associated with what their fathers have done, the government wants to weigh the political costs of allowing the cohort into Australia.

Dr Wesson says there is a human right for citizens to return to their country of citizenship, that’s not reflected in our Constitution, which doesn’t contain a Bill of Rights.

“There are very few rights protections in our Constitution. There is an implied freedom of political communication so there’s implied constitutional protection for our ability to engage in political communication, but it doesn’t even expressly mention citizenship,” he says.

To become an Australian citizen, people have to meet the set criteria outlined by the Citizenship Act.

Curtin University International Relations and Human Rights Dr Azim Zahir says the incident would send a negative signal to people who might seek citizenship.

 “This would create disincentives for people who actually, under international law, can legitimately seek citizenship or refugee status in a country,” he says.

Dr Zahir says the arrest of these women is a threat to fundamental human rights and their right to nationality. 

He says the holocaust was initiated by millions of people losing their right to nationality.

“They became stateless and that led to all sorts of atrocities committed against them.”

Dr Zahir says the right of nationality is for everyone, irrespective of their other status or irrespective of what they might have done in terms of offences, criminal activities.

“The question then is, if we remove their citizenship, what would happen to them? If these countries where they might have citizenship don’t accept what would happen to them, they become stateless.”

He also believes the children cannot be held accountable for crimes their parents might have committed in Syria, and the women should not be considered guilty just because their husbands are.

“Under international human rights and also domestic laws, people have to be seen as innocent until they are proven guilty.”

He says various security analyst and terrorism experts believe it’s better to bring these women, men and children back to Australia to address the issues that might have led them to joining ISIS in the first place.

“Since 2018 international human rights organisation have been calling to bring these people back to their countries because the main concern is the places these people are held up in, every second they spend there, their human rights are being violated.

“Leaving them in Syria is not a solution,” says Dr Zahir.

“We haven’t seen any serious terrorism attack committed by people who have been repatriated by governments and who have received necessary intervention, psychological, psychosocial support for them.”

Dr Zahir says tying these women and children to their male family members is fundamentally a human rights problem and could resort to further violations on their freedoms

“If you have the pretext that these people are going to create a major security threat to the population of Australia, then it’s very easy to resort to violating their freedoms.”

Dr Zahir says with the current world order in flux, highlighted by important institutions such as the International Criminal Court being undermined, Australia should ultimately prioritise human rights and children should be protected.

“Under international human rights, children should be treated as children. They should be taken, first of all, as victims of these atrocities rather than as perpetrators of atrocities.”