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Incitement to Terrorism: a Matter of Prevention Or Repression?

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Incitement to Terrorism: a Matter of Prevention Or Repression? Incitement to Terrorism: A Matter of Prevention or Repression? Dr. Bibi van Ginkel LL.M. ICCT Research Paper August 2011 Abstract Dr. Bibi van Ginkel analyses the relevant research and policy question related to the criminalisation of incitement to terrorism. Several international legal documents have been adopted that deal with the criminalisation of incitement to terrorism. Yet, the exact scope of the term ‘incitement’ is not clear. Does it only include ‘public provocation’, or do the ‘justification’ or ‘glorification’ of terrorist acts also fall within the scope of the term? The criminalisation of ‘incitement to terrorism’ results in a limitation of the freedom of expression. The question is whether this limitation is within the limits of the human rights regimes. The principle of legality and legal certainty are pivotal in answering this query. However, the present uncertainty in the exact meaning of the term ‘incitement’ creates a problem in this respect. But equally important is identifying what problem exactly needs to be addressed when criminalising ‘incitement’. Where to draw the line? Which opinions are still allowed to be voiced in the public debate on the grievances within society? Which opinions are out of line to the extent that they can be considered a severe danger to society deserving prosecution? Hence, before going into the details of criminalisation of incitement and the limits posed by human rights regimes, this paper will first concentrate on the scope of the act of incitement, by analysing the process of radicalisation and the narratives used by terrorists. It also analyses the particular role played by the Internet in this process. About the Author Dr. Bibi van Ginkel LL.M. is a Research Fellow at the International Centre for Counter‐Terrorism – The Hague, and a Senior Research Fellow at the Clingendael Security and Conflict Programme (CSCP) of the Netherlands Institute of International Relations ‘Clingendael’. She studied International and European Law (Netherlands). In June 2010, she defended her PhD thesis The Practice of the United Nations in Combating Terrorism from 1946‐2008; Questions of Legality and Legitimacy. Before working at the Clingedael Institute, she taught International and European Law at Utrecht University. She coordinated the research project ‘Ethical Justness of European Counter‐Terrorism Measures’, which was part of the Sixth Framework Programme of the European Commission. She is a member of the Peace and Security Committee of the Dutch Advisory Council on International Affairs. Additionally, she is General Secretary of the Daily Board of the Netherlands Helsinki Committee and a member of the editorial staff of the monthly Militair Rechtelijk Tijdschrift. Her areas of interest include the security related aspects of law, such as terrorism, piracy and the employment of Private Security Companies. About ICCT - The Hague The International Centre for Counter‐Terrorism (ICCT) – The Hague is an independent knowledge centre that focuses on information creation, collation and dissemination pertaining to the preventative and international legal aspects of counter‐terrorism. The core of ICCT’s work centres on such themes as de‐ and counter‐radicalisation, human rights, impunity, the rule of law and communication in relation to counter‐terrorism. Functioning as a nucleus within the international counter‐terrorism network, ICCT – The Hague endeavours to connect academics, policymakers and practitioners by providing a platform for productive collaboration, practical research, exchange of expertise and analysis of relevant scholarly findings. By connecting the knowledge of experts to the issues that policymakers are confronted with, ICCT – The Hague contributes to the strengthening of both research and policy. Consequently, avenues to new and innovative solutions are identified, which will reinforce both human rights and security. Contact ICCT – The Hague Koningin Julianaplein 10 P.O. Box 13228 2501 EE, The Hague The Netherlands T +31 (0)70 800 9531 E [email protected] All papers can be downloaded free of charge at www.icct.nl Stay up to date with ICCT, follow us online on Facebook, Twitter and LinkedIn © ICCT – The Hague 2011 1 ICCT – The Hague Research Paper Dr. Bibi van Ginkel 1. Introduction In May 2005, the Council of Europe adopted the Convention on the Prevention of Terrorism, which requires state parties to criminalise ‘public provocation to commit a terrorist offence’.1 In September 2005, catalysed by the London bombings of July 2005, the United Nations (UN) Security Council (SC) adopted Resolution 1624,2 calling on states to prohibit by law incitement to commit a terrorist act or acts. It also calls on states to prevent incitement and deny safe haven or entry to inciters. In the resolution’s preamble, reference is also made to repudiate attempts at the justification or glorification (‘apologie’) of terrorist acts that may incite further violent action. Meanwhile, the Counter‐Terrorism Committee of the UN SC, through the adoption of SC Resolution 1963 (2010),3 has now also been commissioned to monitor the implementation of legislation on criminalising incitement to terrorism, as called for in SC Resolution 1624 (2005). Both the Council of Europe Convention and the SC Resolution inspired the European Union (EU) to amend a Framework Decision on Combating Terrorism to include an order to criminalise public provocation.4 These international initiatives spurred from the belief that public provocation to commit a terrorist act creates the danger that such an offence may be committed. Furthermore, it was believed that the public expression of praise, support or justification for terrorism might create ‘an environment and psychological climate conducive to criminal activity’.5 Although, the threat of Islamic violent extremism has dominated the debate in the last decade, the focus on incitement to terrorism concerns all forms of violent extremism, whether for separatist motives, extreme left or right wing motives, anti‐abortion motives, or any other motives. The perceived seriousness of such a crime and its expected destabilising effect on society contribute to the rationale behind the definition of a separate crime, instead of using the more generic criminal offence of incitement to violence. These reasons are similar to the rationale behind the definition of a separate criminal offence for terrorist acts. Clearly connected to this is the prohibition of recruitment for terrorist purposes, as laid down in article 6 of the Council of Europe Convention on the Prevention of Terrorism.6 Recruitment is also seen as a gateway to the actual committing of terrorist acts, and in that respect it falls in the category of preparatory acts. Incitement to terrorism and recruitment are, however, separate criminal offences. The focus in this paper is only on incitement to terrorism, although some references to recruitment are made, especially in the paragraph that deals with the role of Internet. Unrestricted and cheap technology and the word‐wide reach of the Internet after all, are seen to provide the vehicle to spread inflammatory and provocative rhetoric and videos with a particular violent message, that are sometimes used for recruitment purposes, and can also, as such, qualify as incitement to terrorism. The international initiatives to deal with incitement to terrorism correspond with the recent emphasis on preventing terrorism, instead of only concentrating on responding to terrorist acts. Within legislation, the trend thus shifts to addressing preparatory phases of the commission of political violence. However, the question that can be raised in this respect is whether dealing with incitement, as a problem that precedes the actual committing of terrorism, should have a repressive character by criminalising the act, or whether other methods of dealing with this problem can be more effective. Clearly, criminalising incitement to terrorism implies a limitation on the freedom of expression. This policy choice therefore runs the risk of limiting the democratic participation of different groups, which can be a fore post of excluding these groups, and thus can become a risk factor for radicalisation. With regard to the question of effectiveness, it is hence forth important to prevent the measure 1 Council of Europe Convention on the Prevention of Terrorism, adopted on 16 May 2005, ETS No. 196, art. 5 (2), entered into force on 1 June 2007. 2 United Nations Security Council Resolution 1624, S/RES/1624 (2005), adopted on 14 September 2005. 3 UN Security Council Resolution 1963, S/RES/1963 (2010), adopted on 20 December 2010. 4 EU Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating Terrorism, Official Journal of the European Union, L 330/21. 5 Mordechai Kremnitzer and Khalid Ghanayim, ‘Incitement, Not Sedition’, in: David Kretzmer and Francine Hazan (eds), Freedom of Speech and Incitement against Democracy, 2000, pp. 147 and 197. 6 Ibid. Incitement to Terrorism: A Matter of Prevention or Repression? 2 from becoming self‐defeating. On the other hand, it is also essential to set clear limits to certain behaviour and speech when it demonstrably creates an imminent and likely risk that a terrorist act might be committed. The question of whether the problem should be dealt with in a repressive manner is even more relevant since the legality of the prohibition of incitement to terrorism can be questioned. A lack of legal certainty on the exact meaning and scope of the crime, as well as the way in which such a prohibition might infringe on the freedom of expression have imposed serious doubts. This legal uncertainty relates to inter alia the lack of an internationally accepted definition of terrorism, which is –if one wants to criminalise incitement to terrorism– an essential element to delimitate the scope of the crime. The international instruments themselves are equivocal in the way that they delimit the scope of the measures, and thus define incitement to terrorism. There are even differences in the terms used. Some refer to apologie; others use the term direct or indirect provocation.
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