Responsibility to prevent and respond to incitement to terrorismLimitation of Freedom of Expression

Legal Framework - limiting freedom of expression● ICCPR Art. 19 (3)b, Art. 20 (2)❖ UN Security Council Res. 1624 (2005) - states are to prohibit by law

incitement to terrorism● ECHR Art. 10 (2)

○ Council of Europe Convention for the Prevention of Terrorism (2005)

❖ EU Council Framework Decision 2008/919/JHA on combating terrorism● ACHR Art. 13 (2, 5)

○ INTER-AMERICAN CONVENTION AGAINST TERRORISM (2002)

ECHR art. 1. Obligation to respect Human Rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Cf. UN SC Resolution 1624“Deeply concerned that incitement of terrorist acts motivated by extremism and intolerance poses a serious and growing danger to the enjoyment of human rights [...]”

ECHR art. 17. Prohibition of abuse of rights

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Same as in ICCPR article 5.

Illustration: ECtHR, case of

Kasymakhunov and Saybatalov v. Russia103. The general purpose of Article 17 is to prevent individuals or groups with totalitarian aims from exploiting in their

own interests the principles enunciated by the Convention [...]. Although to achieve that purpose it is not necessary to take away every one of the rights and freedoms guaranteed from groups and persons engaged in activities contrary to the text and spirit of the Convention, the Court has found that the freedoms of religion, expression and association guaranteed by Articles 9, 10 and 11 of the Convention are covered by Article 17. [...]

104. Indeed, the possibility cannot be excluded that a political party or other association, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy. In view of the very clear link between the Convention and democracy, no one may be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society. [...]

Kasymakhunov and Saybatalov v. Russia105. The Court has accordingly defined as follows the limits within which political organisations can continue to enjoy the protection of the Convention while conducting their activities. It has found that a political organisation may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political organisation whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds.

Article 10 - Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information

and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing

of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or

rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the

judiciary.

Justification

1.Nature of States Enlightenment MovementEvery citizen concedes part of their freedom to form the states.

States have the justification to exert its power on citizens.

Sates have the obligation to protect and secure its citizens.

2. Balance to strike

This is not an argument about whether we respect civil liberties or not; but whose take priority. It is not about choosing hard line policies over an individual’s human rights. It’s about which human rights prevail. In making that decision, there is a balance to be struck. I am saying it is time to rebalance the decision in favour of the decent, law-abiding majority who play by the rules and think others should too.” (Tony Blair, 2006)

2. Balance to strike

Citizen-victim v. citizen-violator

Part of the rights v. Package of the rights

Human beings would have the faculty of knowing and would first think to preserve their life in the state of nature. (Montesquieu)

3. Sacrifice

Judiciary system Counter-terrorism system

How can we reduce it as much as possible?

How can we provide remedy?

Illustration of the proportionality assessment, ECtHR, case ofSürek v. TurkeyOwner of a Turkish paper received a fine for publishing letters where the Turkish government was strongly criticised for its part in the massacres in "Kurdistan" in the Southeastern Turkey.

Sürek v. Turkey

“The murder gang is countinuousing its murders”

“The Turkish Republic was heading for a massacre”

“Reactionary fascists”

“Bloodshed, tanks and shells”

...alongside references to "massacres", "brutalities" and "slaughter".

One of the letters identified a person’s name in the same context.

Sürek v. Turkey

The Court on proportionality:

“The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”.”

“In exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made.”

Political messages, especially expressions regarding the government, enjoy the largest margin of freedom of expression.

Where remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression.

Sürek v. Turkey“The Court will have particular regard to the words used in the letters and to the context in which they were

published. In this latter respect it takes into account the background to cases submitted to it, particularly the problems linked to the prevention of terrorism (see the Incal judgment cited above, pp. 1568-69, § 58).

It notes in the first place that there is a clear intention to stigmatise the other side to the conflict by the use of labels such as “the fascist Turkish army”, “the TC murder gang” and “the hired killers of imperialism” alongside references to “massacres”, “brutalities” and “slaughter”. In the view of the Court the impugned letters amount to an appeal to bloody revenge by stirring up base emotions and hardening already embedded prejudices which have manifested themselves in deadly violence. Furthermore, it is to be noted that the letters were published in the context of the security situation in south-east Turkey, where since approximately 1985 serious disturbances have raged between the security forces and the members of the PKK involving a very heavy loss of life and the imposition of emergency rule in much of the region (see the Zana judgment cited above, p. 2539, § 10). In such a context the content of the letters must be seen as capable of inciting to further violence in the region by instilling a deep-seated and irrational hatred against those depicted as responsible for the alleged atrocities. Indeed, the message which is communicated to the reader is that recourse to violence is a necessary and justified measure of self-defence in the face of the aggressor.”

Incitement to terrorism?‘The core of the problem is the fascist Islam, the sick ideology of Allah and Mohammed as posed in the Islamic Mein Kamph: the Koran’

‘I propose the withdrawal of all hate speech legislation in Europe’

‘I don’t believe all cultures are equal, ours is way better then retarded Islam culture’

‘All foreigners should be subject of search, without any given reason’

‘We have to stop the Islamic tsunami in The Netherlands’

‘I want less muslims in our Parliament’

´In 1945, Nazism was defeated in Europe

In 1989, communism was defeated in Europe

Now, the Islamic ideology has to be defeated´

On what grounds should we limit freedom of speech ?Case Dieudonné - France.

After the 7th attack at Charlie Hebdo and a Jewish supermarket, is apology of terrorism included in freedom of speech ?

A framework to estimate the dangerousness of speech in context - Susan Benesch

● a powerful speaker with a high degree of influence over the audience

● the audience has grievances and fear that the speaker can cultivate

● a speech act that is clearly understood as a call to violence

● a social or historical context that is propitious for violence, for any of a variety of reasons,including longstanding competition between groups for resources, lack of efforts to solve grievances, or

previous episodes of violence

● a means of dissemination that is influential in itself, for example because it is the sole or primary source of news for the relevant audience

Preventive measures Belgium – Background •Shooting in Liège, 13th December 2011

Belgium – Background

•Shooting in a Jewish Museum, Brussels, 24th May 2014

Belgium – Background

•Anti-terrorist mission - January 2015

² Many house searches

² Imminent terrorist attack foiled

Preventive measures

•These 3 events confirmed the need of preventive

measures

î = measures adopted by States in order to prevent a

terrorist act from occurring on their territory

= prediction + intervention

Preventive measuresExamples:

● Restriction of freedom of expression to prevent heinous propaganda + to

fight radicalism in prison

● Airlines’ rights and duties

○ Disclosure of information

○ Right to ask concrete reasons to enter the country

● Criminalization of new acts

○ Condoning of terrorist acts

● Wiretapping without need of strong evidence

● Arrest warrant

…

Preventive measures

•Steps are still discussed today

•Need to pass Human Rights test

>Reach a fair balance

Preventive measures•Restrictions are justified by the need of prevention

Legal basis : Art. 10 (2) ECHR

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may

be subject to such formalities, conditions, restrictions or penalties as are prescribed by

law and are necessary in a democratic society, in the interests of national security,

territorial integrity or public safety, for the prevention of disorder or crime, for the

protection of health or morals, for the protection of the reputation or rights of others, for

preventing the disclosure of information received in confidence, or for maintaining the

authority and impartiality of the judiciary.

•To keep in mind : it’s not the only freedom restricted !