1. Introduction
International co-operation in the battle against terrorism has taken on different shapes since its inception in the 1960s. It began with a wave of international treaties which criminalized certain acts associated with terrorism and provided for co-operation in their regard, but made no mention of either the term ‘terrorism’ or its characteristic manifestations.Footnote 1 Next came a bolder set of treaties, which specifically mentioned ‘terrorism’ and its characteristic motive, namely to compel a state to act or abstain from an act.Footnote 2 The late 1990s saw international co-operation expand from criminalization of specific conduct to pre-emptive measures against financial support for terrorist acts.Footnote 3 These efforts led in the wake of the 2001 attacks on the World Trade Center in New York to a frenzy of intergovernmental activity.Footnote 4 Now, in what appears to be the next stage in the battle, international attention is gradually turning to the background and motives of terrorism and to the social processes leading to it.
In September 2005 the UN Security Council adopted, by consensus, Resolution 1624(2005), dedicated to countering incitement to terrorist acts motivated by extremism and intolerance. This is the first universal instrument which squarely addresses the issue of incitement to terrorism.Footnote 5
The resort to counterterrorism measures has generated heated domestic and international debates on the tension between such measures and the human rights obligations of states. To date, most of the debate has focused on matters related to criminal procedure, such as detention, right to counsel, and fair trial. International measures against the financing of terrorism have put freedom of movement and the right to property under strain.Footnote 6 International initiatives to prevent incitement to terrorism are likely to add a new set of conflicts, primarily between terrorism prevention and freedom of expression, freedom of association, and freedom of religion.Footnote 7
This article considers the potential role of Resolution 1624 (2005) in countering incitement to terrorist acts, in the light of criminal and international human rights law. Section 2 describes Resolution 1624 (2005) and the substantive and institutional background to its adoption. Section 3 considers existing international norms related to incitement, concluding that they do not cover the phenomenon of incitement to terrorist acts. In the light of this finding, section 4 considers whether incitement to terrorist acts should be criminalized, and whether this should be done on the international level. This analysis takes account of the specific type of terrorism with which Resolution 1624 (2005) is concerned. In turn, it informs the discussion in section 5 of the current interpretation and critique of Resolution 1624 (2005). I argue that the rationales for a prohibition on incitement to terrorist acts call for a relatively wide definition of potentially prohibited speech. This can be achieved without excessively infringing freedom of expression. However, the currently proposed interpretation of the prohibition is so restrictive that the prohibition may fail to counter the phenomenon with which it grapples. Finally, section 6 considers whether incitement to terrorist acts can be regarded as an international crime under existing international law. It concludes that in some instances there may be an overlap between incitement to terrorist acts and certain international crimes. However, a specific prohibition on incitement to terrorist acts as an international crime would fragment the treatment of terrorism, contrary to current trends.
2. Resolution 1624 (2005)
Resolution 1624 (2005) was adopted on 14 September 2005, two months after four suicide bombings took place in London, on the underground and on a bus, killing 52 commuters, injuring 700, and causing huge disruption of the city's transport system and the country's mobile telecommunications infrastructure. The attacks of 7 July 2005 signalled a watershed in UK policy with respect to counterterrorism. For a long time previously, UK law enforcement agencies had been aware that the United Kingdom was being used as a base by individuals involved in promoting international terrorism. However, these individuals had not been viewed as a threat to national security, and were left to continue their activities with relative impunity, while attention continued to focus on domestic terrorism in Northern Ireland.Footnote 8 Following the July 2005 attacks, the United Kingdom adopted a series of counterterrorism measures, including the deportation of foreign extremist Muslim clerics, the closure of mosques, the proscription of extremist Muslim groups, and the extension of control orders to British residents advocating terrorism. In this context the United Kingdom sponsored Resolution 1624 (2005), singling out speech associated with terrorism.Footnote 9
The preamble of Resolution 1624 (2005) condemns incitement to terrorist acts and the glorification of terrorist acts, and reaffirms that incitement to terrorist acts is contrary to the purposes and principles of the UN.Footnote 10 In the operative part of the resolution, the Security Council
1. Calls upon all States to adopt such measures as may be necessary and appropriate and in accordance with their obligations under international law to:
(a) Prohibit by law incitement to commit a terrorist act or acts;
(b) Prevent such conduct;
(c) Deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct;
. . .
The resolution also calls on states to co-operate with one another in order to prevent persons guilty of incitement from entering their territory; to continue efforts to enhance dialogue and understanding among civilizations; and to report to the Counter-Terrorism CommitteeFootnote 11 (CTC) on the steps they have taken to implement the resolution.Footnote 12
Resolution 1624(2005) does not expressly require states to adopt a criminal prohibition on incitement (as opposed to administrative measures, for example). Nonetheless, the intention to include a criminal prohibition is implied by the context in which it was adopted. The resolution calls on states to act ‘by all means’ and to take ‘measures as may be necessary and appropriate’.Footnote 13 It also builds on Resolution 1373 (2001), which expressly demands criminal measures.Footnote 14 States' reports to the CTC also reflect the understanding that criminal measures are called for.Footnote 15
The resolution also addresses the human rights aspects of prohibiting incitement to terrorist acts. It recalls the right to freedom of expression as reflected in the Universal Declaration of Human rightsFootnote 16 and in the International Covenant on Civil and Political Rights (ICCPR),Footnote 17 and stresses that states must ensure that any measures taken to implement the obligation to criminalize incitement comply with all their obligations under international law, in particular international human rights law.Footnote 18
Resolution 1624 (2005) is directly linked to the emergence of a particular type of terrorism, sometimes referred to as ‘modern’ (or even ‘postmodern’Footnote 19). In 2004 the Report of the Secretary-General's High Level Panel noted two new dynamics that gave the threat of terrorism greater urgency. One is the appearance, in the form of al Qaeda, of armed non-state networks with global reach and sophisticated capacity, which pose a universal threat to the membership of the United Nations.Footnote 20 This terrorism is not limited in time or place.Footnote 21 Its membership, if it can be called that, is extensive but not necessarily continuous. Its organizational structure is horizontal and decentralized rather than hierarchical. Unlike traditional terrorism, which strives to achieve specific political or social goals such as gaining independence or establishing a new social order, modern terrorism is employed in the pursuit of extremist ideologies, often but not exclusively religious or quasi-religious.Footnote 22 Terrorist organizations motivated by such ideologies characteristically aim not at a clearly defined political demand, but often at the entire state-based structure of human society.
This leads to the other dynamic identified by the High-Level Panel's Report, namely that the goal of terrorists to cause mass casualties creates unprecedented dangers.Footnote 23 Conventional wisdom holds that for traditional terrorists killing is not a goal but a means to mobilize public opinion in order to attain tangible political aims or concessions. Traditional terrorism is ‘propaganda by deed’. In contrast, the large-scale violence of modern terrorists is not merely a tool of propaganda, but an aim in itself.Footnote 24 This type of terrorism is sometimes linked with the pursuit of weapons of mass destruction.Footnote 25 The lack of a publicly identifiable command authority may furthermore remove inhibitions on the terrorists' desire to inflict widespread, indiscriminate casualties.Footnote 26 Modern terrorism is therefore associated with the potential for (and in some cases actual) large-scale damage.
Needless to say, the distinction between ‘traditional’ and ‘modern’ terrorism is rudimentary. First, there is an entire range of manifestations of the phenomenon. Second, while modern terrorism may be more visible than traditional terrorism, particularly in the West, it has not entirely replaced it. Most terrorists are political, conservative in their use of weapons, and low-casualty perpetrators.Footnote 27 However, Resolution 1624 (2005) clearly conceives terrorism as that of the modern type. Although it expresses a commitment to combat terrorism ‘in all its forms and manifestations’Footnote 28 and condemns ‘all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed’,Footnote 29 the resolution repeatedly refers to incitement to terrorist acts that is ‘motivated by extremism and intolerance’; which ‘threatens the social and economic development of all States’; and which ‘undermines global stability and prosperity’.Footnote 30 The resolution recalls Security Council Resolution 1566 (2004) which describes terrorism as the ‘indiscriminate targeting of different religions and cultures’.Footnote 31 It also perceives terrorism as an element in a conflict of civilizations, suggesting that terrorism is a single, globally spread phenomenon.Footnote 32 It expresses concern for the ‘increasing number of victims’,Footnote 33 and links terrorism to weapons of mass destruction.Footnote 34
The resolution was not adopted under Chapter VII, nor is its language (‘calls upon’) mandatory. However, the request that states report their implementing measures to the CTC, and the instruction to the CTC to maintain a dialogue with member states on these measures,Footnote 35 may blur the line between mandatory and non-mandatory measures. If the call on states to criminalize incitement acquires a binding connotation, the ambiguity of the prohibitions with respect to fairly indeterminate conduct becomes more troubling.Footnote 36
Moreover, if the resolution indirectly creates a binding obligation, the CTC should have a role in monitoring abuse of the resolution by states wishing to encroach on protected human rights. Yet it is not clear that the CTC is equipped for the task. It was originally established to monitor the implementation of Security Council Resolution 1373 (2001), which demands that states take a variety of measures to counter terrorism, including the criminalization of the financing of terrorism and of assistance to terrorism, freezing of funds related to persons involved in acts of terrorism, denial of all forms of financial support for terrorist groups, and international co-operation in law enforcement. The CTC endorsed the view that its task was to assist states in strengthening their legal and executive infrastructure for implementing mandatory counterterrorism measures. The CTC considered that states might be intimidated by the imposing requirements of Resolution 1373 (2001). In order to defuse any sense of threat, the CTC decided to engage in dialogue with states. Accordingly it adopted a reporting mechanism, and focused on technical assistance for capacity building.Footnote 37 However, Resolution 1624 (2005) presents a different challenge to states and to the CTC, as states are often only too eager to place restrictions on dissenting views. To counter this, the CTC ought to undertake a restraining role. Nonetheless, the CTC's first two reports on implementation of Resolution 1624 (2005)Footnote 38 contain no assessment of states' practice in the light of international human rights standards. Furthermore, these reports do not relate any engagement by the CTC with the various states to promote best practices, as required by Resolution 1624 (2005).Footnote 39 This raises the questions whether the resolution's formula, which envisages the CTC as a monitoring mechanism, is credible, or whether the CTC, in this instance, operates as a tool only for strengthening counterterrorism measures.Footnote 40
3. Incitement to terrorist acts and existing international prohibitions on ‘incitement’
Before analysing the proposal to prohibit incitement of terrorist acts in the light of international legal standards, it is useful to explore the extent to which such incitement is already regulated under international law. The difficulty of locating incitement to terrorist acts among existing international prohibitions is best understood in the light of the more general difficulty of positioning terrorism – both normatively and positively – between armed conflict and crime.
International law has long provided substantive principles and rules which forbid war propaganda by states, perceiving it as the ideological dimension of international conflict.Footnote 41 This prohibition can be traced to the illegality of the threat of use of force,Footnote 42 and has been included in various international instruments.Footnote 43 International law also indirectly prohibits state propaganda promoting subversion or internal armed conflict, through the prohibition on intervention in the domestic affairs of other states.Footnote 44 ICCPR Article 20(1) (‘Any propaganda for war shall be prohibited by law’) extends the prohibition to non-state actors by requiring states to prohibit war propaganda by individuals. At the other end of the continuum, incitement to domestic crimes of violence is not generally regulated by international law. However, ICCPR Article 20(2) requires states to prohibit advocacy of national, racial, or religious hatred which constitutes incitement to violence,Footnote 45 while the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Article 4(a) requires them to criminalize incitement to racial violence.Footnote 46
The modern manifestation of incitement to terrorist acts falls in the seam of these provisions. ICCPR Article 20(1) only concerns ‘war’ propaganda, and does not cover incitement to conflict involving a non-state actor, with which terrorism is mostly associated. Furthermore, the illegality of war and subversion propaganda has traditionally been limited to conduct by states, private action not having formed a serious part of the total problem.Footnote 47 Yet at the turn of the twenty-first century, private action has taken the forefront. Although both ICCPR and ICERD concern the responsibility of states to regulate individual conduct, they are of limited use with respect to incitement to terrorist acts. First, ICCPR Article 20 does not require the attachment of the criminal responsibility to the prohibition. Second, both ICCPR Article 20(2) and ICERD Article 4(a) are concerned only with a very specific type of violence, one that is spurred by national, racial, or religious hatred. Modern terrorism may fall within these categories, but reliance on these treaty provisions for only some manifestations of terrorism would fragment the legal treatment of the phenomenon, contrary to the current grain of treating terrorism comprehensively. Most important, however, is the fact that neither ICCPR Article 20(2) nor ICERD Article 4 is the appropriate vehicle for criminalizing incitement to terrorist acts. ICCPR Article 20 is an elaboration of permissible (and obligatory) restrictions on expression, which is generally regulated by ICCPR Article 19. Article 20 is an exception to an international bill of rights, not a criminal code. ICERD, too, although it requires a criminal prohibition on incitement, is not a criminal law instrument. In fact, the conduct that is the target of incitement (the ‘target conduct’) under ICERD – racial discrimination and violence – is not itself an offence under international law,Footnote 48 nor are states clearly obligated to criminalize it under their domestic law.Footnote 49
By far the best-established (and utilized) international measure related to criminalizing incitement is the international crime of incitement to genocide, formulated under the Genocide ConventionFootnote 50 and reproduced in identical terms in the Statutes of the ad hoc Criminal Tribunals for the former Yugoslavia and for RwandaFootnote 51 and in similar terms in the Statute of the International Criminal Court (ICC).Footnote 52 The Genocide Convention also requires states to criminalize incitement to genocide under their domestic law. Genocide is a particular form of violence, because of the special intent which accompanies it, ‘to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. Modern terrorism may be carried out with this intent, but this intent is not characteristic of terrorism, and therefore the two phenomena cannot be merged.
In conclusion, it appears that incitement to terrorist acts is not currently covered directly and specifically, and certainly not comprehensively, by international instruments. Given the rarity of international regulation of incitement,Footnote 53 particularly as a criminal conduct, the question arises whether such regulation is necessary with respect to terrorism. This is the concern of the following section.
4. The criminalization under international law of incitement to terrorist acts
Like many other anti-terrorist measures, Resolution 1624 (2005) was a spontaneous reaction rather than the product of profound deliberation. It is telling that in the debate surrounding the adoption of Resolution 1624 (2005), which was attended by ten presidents, four prime ministers and one foreign minister, only six speakers in any way mentioned incitement, despite it being the core of the resolution; only two of those mentioned freedom of expression.Footnote 54 Despite the pathos expressed in the interventions, it is not clear that the international and domestic legal offensive against speech as a catalyst for terrorism relied on any empirical information as to the role of incitement in bringing about terrorism and as to whether prohibiting incitement is a rational and effective response to terrorism.
From the singling out of incitement it is evident that at issue is a free-standing offence, rather than a derivative of its target conduct, the terrorist act. In other words, incitement under the resolution is an inchoate offence, punishable regardless of whether it actually resulted in the commission of a terrorist act. This raises the question whether there is reason to single out advocacy of terrorism as a criminal offence, given that it is an early and therefore remote stage in the development of criminal conduct, and prohibiting it is an encroachment on freedom of expression. Another question is whether intervention is appropriate in this regard at an international level.
4.1. The need to criminalize incitement to terrorist acts
4.1.1. Severity of the crime – early intervention
Criminalization of incitement is an early-prevention measure against the materialization of the target conduct, justified when the target conduct is particularly harmful (or, put differently, when the social interest protected by the offence is particularly valuable).Footnote 55
The severity of terrorism is manifold. First, as noted by the High-Level Panel, modern terrorism aims to produce mass casualties. Its capacity to do so, even without resort to weapons of mass destruction, is epitomized by the 11 September 2001 attack, when in the World Trade Center within 15 minutes more than 2,100 persons died and 6,200 were injured.Footnote 56 In March 2004 an al Qaeda-inspired group carried out a terrorist attack in Madrid, which resulted in 191 dead and over 1,800 wounded. The London bombing, much smaller in scale, still caused an exceptionally large number of casualties. Traditional terrorism is much less lethal: during the entire twentieth century, only fourteen terrorist acts each resulted in the death of more than 100 people.Footnote 57 In addition to the physical harm that terrorism – of any type – generates, terrorism is harmful because it causes widespread fear. A person cannot evade a terrorist attack by taking ordinary precautions. This sense of an all-pervasive danger and the fact that anyone is a potential victim at all times distinguishes terrorism from ordinary crime.
Finally, the severity of terrorism lies in the fact that it is not merely a criminal conduct, but also a political tactic; in fact, terrorism is characterized by its political goal. Any terrorist act is an attempt to undermine the operation of acceptable mechanisms of governance, by using violence and intimidation to influence government action.Footnote 58 It has been argued that modern terrorism goes further, in that it attempts to replace altogether the existing structures of governance, namely the secular, Westphalian state system.Footnote 59 In short, the severity of modern terrorism is twofold, as it exacts both a high human cost and a high societal cost.
4.1.2. Incitement as a sine qua non for the realization of terrorist acts
Another reason for criminalizing incitement to terrorist acts may be that it has a particular qualitative contribution to the materialization of the terrorist act. An argument of this type, namely that incitement is a sine qua non for the materialization of the target conduct, has been put forward with respect to genocide.Footnote 60 It has been argued that, as a matter of fact, the destruction in whole or in part of a group cannot materialize unless a large group of people is involved in bringing it about.Footnote 61 That is why Nazi Germany had a well-oiled propaganda machine; in Rwanda, radio and newspaper were instrumental in bringing about the genocide.Footnote 62 The same is true for modern terrorism. Its success depends on a plurality of actors, in order to pursue a plurality of victims in a variety of locations. This is in contrast to traditional terrorism which is limited in geographic and contextual scope, with a strictly defined scope of potential targets. Modern terrorism might not exist as we know it if it were not for the technological means available for disseminating its messages. Prevention of incitement is therefore argued to be an increasingly crucial element in terrorism prevention.Footnote 63
The significance of incitement in precipitating genocide or terrorism goes beyond acquiring a plurality of actors; it lies in the creation of an environment that regards murder and other crimes as permissible, even desirable.Footnote 64 The UN Secretary-General noted the commonality between genocide and terrorism, in that both depend on incitement as a tool of mobilizing the actual perpetrators:
Terrorism depends on the denial of the humanity of its victims. Extremist and exclusionary ideologies that dismiss the worth and dignity of others, and portray them as subhuman and worthy of extinction, are essential tools of mobilization and recruitment . . .
The United Nations has well understood the danger of those who spread extremist world views. Those who commit genocide and atrocities are also those who deny the humanity of others.Footnote 65
Indeed, the two categories may even overlap.Footnote 66 But this is not to say that the modus operandi of terrorism and genocide are identical. Genocide materializes because a dominant group casts a net of murder on the victim group, which is vulnerable and usually a minority,Footnote 67 leaving it no escape route. Terrorism does not encompass an entire society. It is the weapon of a politically weak group attempting to tear the existing social fabric. The terrorists remain dispersed within society.Footnote 68 Nonetheless, although terrorism, unlike genocide, is not practised by large segments of a population, its success depends on an ideology or belief system that is widely spread in the population, which frames discontent into legitimate grievances. This ideology legitimizes violence, and gives it justification and acceptance in the population that gives cover to the terrorists.Footnote 69
It is often noted that the outstanding common characteristic of terrorists is their normality.Footnote 70 Yet every terrorist campaign requires the acceptance of a worldview that allows the powerful social barriers that stop most people from committing acts of violence to be overcome.Footnote 71 Traditional terrorism is local, carried out by closely knit groups, in which this acceptance builds on the individual authority exerted within the group, a sense of membership and belonging.Footnote 72 Mutual reassurance, solidarity, and comradeship develop, in which group members reinforce each other's image of a hostile world and sense of mission. This is not the case with modern terrorism, which is characterized by an absence of clear hierarchical structure and on a distance between masterminds and potential perpetrators. As a result, command and control no longer constitute an impetus for action by the potential perpetrators. Instead, the conditioning of the audience is much more significant because it leads individuals to take the initiative to act, even without the hands-on involvement of the leaders. In other words, the success of decentralized, anonymous terrorism depends on a strategy of a persistent and invasive indoctrination – ideological, religious, or intellectual.Footnote 73 Consequently, with respect to modern terrorism, incitement is an especially important element in bringing about the transformation of worldview.
Moreover, incitement is crucial to modern terrorism because of the indeterminacy of the objective of the terrorist campaign, which affects the manner in which people can be co-opted into it. In many cases ideological radicalization is rooted in real socio-economic deprivation.Footnote 74 However, it is mobilized not necessarily against any real cruelty, coercion, or subjugation felt immediately by the potential perpetrators, but often to advance an abstract ideal. The vaguer the cause, the more effort has to be invested in engaging people to serve it. In contrast to terrorism aimed at national, social, or economic liberation, where the wrong against which a group acts is palpable and visible,Footnote 75 modern terrorism does not in all cases have a palpable objective. Al Qaeda and its associates are dedicated to the establishment of Muslim governance throughout the Muslim world.Footnote 76 Some argue that the goals of modern terrorism should be examined at an even higher level of abstraction, citing anti-Americanism as a proxy for anti-globalization.Footnote 77 Since people do not act on their own initiative against abstract wrongs or in furtherance of abstract goals, of which they may not even be aware, they need to be instilled with a sense of rage and hatred to an extent that they would be willing to take violent action that puts themselves at risk. This is what incitement provides. This is also why prevention of incitement may be an effective tool to prevent the terrorist acts themselves.
4.2. Criminalization of incitement to terrorist acts as interference with freedom of expression
Resolution 1624 (2005) specifically stresses that any measures taken to implement the obligation to criminalize incitement must comply with international human rights law.Footnote 78 This requires an examination of a criminal prohibition against freedom of expression.Footnote 79
A number of different rationales have been put forward for the prominence of freedom of expression among human rights. Some concern collective interests, such as the pursuit of truth,Footnote 80 the significance of free expression for democracy,Footnote 81 and social stability.Footnote 82 Other rationales concern individualistic interests, such as self-fulfilmentFootnote 83 and autonomy.Footnote 84 While these rationales have not gone unchallenged,Footnote 85 the present analysis does not seek to dispute them. It does propose that the implications of these rationales, particularly those related to collective interests, may differ when applied to international rather than domestic society. This may affect the breadth of protection which a specific type of expression merits.
John Stuart Mill's often quoted argument is that freedom of expression is a necessary tool in human society's quest for the truth, a process which requires a free market of ideas.Footnote 86 This argument does not permit a distinction among expressions according to their veracity, and therefore does not restrict any expression on the basis of its content alone. According to Mill, since no person is infallible, there is never any guarantee that a certain opinion is a priori false (or true).Footnote 87 Yet this fundamental premise, correct as a matter of theory, is debatable as a matter of positive international law. To give an example, one may put forward racial discrimination as a doctrine that has been definitively rejected by the international community as absolutely false, irrespective of place and time, and therefore its expression does not deserve special protection.Footnote 88 The same cannot be said for terrorism, as violent acts in pursuit of a loose category of goals. While extremist religious belief which fuels modern terrorism often goes hand in hand with racial discrimination, the two are not identical. Traditional terrorism in furtherance of political and economic goals is even further removed from racial discrimination. Thus, assuming the validity in principle of the argument from truth, it may be applicable also in the context of incitement to terrorism.
Interestingly, human rights monitoring bodies seem to consider freedom of expression to serve goals different from the unbiased pursuit of truth; indeed, they appear to assume a specific truth worthy of protection, namely democracy. Both the European Court of Human Rights (ECtHR) and the Human Rights Committee monitoring the ICCPRFootnote 89 have endorsed the view that freedom of expression constitutes one of the essential foundations of a democratic society. This follows from a fundamental assumption that democracy is the preferred form of government. This does not mean that only an expression that positively promotes democracy deserves protection. It does, however, raise the question whether a democratic regime must also permit the expression of anti-democratic ideas which could be fatal to it, or, put differently, whether persons advocating the abolition of democratic governance can legitimately invoke democracy to avoid restrictions on their expression. With respect to the ICCPR, Nowak suggests that the answer is at least a qualified negative, since ordre public, which under ICCPR Article 19(3) is a ground for restricting expression, encompasses all ‘universally accepted fundamental principles, consistent with respect for human rights, on which a democratic society is based’.Footnote 90 If ordre public is identified with a democratic society, its maintenance may justify restrictions on non-democratic expression (subject to other requirements, discussed below). Incitement to terrorism, which by definition undermines the rule of law and thus negates democracy, therefore merits relatively little protection.
Be that as it may, neither the universal ICCPR nor the European Convention on Human Rights (ECHR) categorically exclude any types of expression (except under ICCPR Article 20(1)). They permit the restriction of expression by reference to its detrimental effect on an exhaustive list of interests. These include ordre public, which in the ICCPR should be interpreted as including, but not restricted to, the ECHR's ground of prevention of disorder and crime.Footnote 91 Incitement to terrorist acts clearly falls within enumerated and undisputed interests, namely the prevention of crime and maintenance of ordre public. Thus even proponents of a strong version of this freedom, who regard it as a preferred interest which deserves greater protection than other liberties, concede that prevention of violence justifies legal restriction of it.
The permissibility in principle of restriction on expression to prevent violence does not provide an answer as to how far the restriction may go, namely how close the incitement must be in time and causal link to the violence before it is prohibited. This question is addressed in section 5.
4.3. The international dimension of criminalizing incitement to terrorist acts
A separate question arises, whether efforts to criminalize incitement to terrorist acts should be carried out at the international level. A state's mandate is to protect principally the peace and security of its own population. Accordingly, domestic incitement offences ordinarily do not apply when the victims of incitement are persons outside the state.Footnote 92 Modern terrorism, however, is often transnational, directed at victims across borders. Moreover, modern technology easily permits incitement to emanate in one state and reach an audience in another. While actual perpetration of transnational terrorist acts is already covered by international instruments, incitement to transnational terrorism is not. An internationally initiated offence conveys a message to legislators around the world on the extent of protection which a state ought to provide. The call from the Security Council indicates that the concern of states must encompass the transnational consequences of incitement to terrorist acts, so as to protect potential victims of terrorism even when they are outside their own boundaries. At the same time, unlike the international treaties, which are concerned exclusively with transnational terrorism,Footnote 93 the prohibition for which Resolution 1624 (2005) calls is not limited to transnational incitement.
An international initiative to criminalize incitement to terrorist acts may also advance international institutional co-operation. Such co-operation requires, at the first stage, common substantive ground, which is facilitated by standardization of the criminal offence.Footnote 94
In conclusion, incitement to terrorist acts may make a qualitative contribution to bringing about terrorism. A criminal prohibition on incitement may therefore assist in curbing terrorism, if it is formulated in a manner which reflects the idiosyncrasies of the incitement at which it is aimed. The following section considers the implications of these idiosyncrasies.
5. Elements of the offence of incitement to terrorist acts
Resolution 1624(2005) is silent on the content of the offence of incitement to terrorist acts. This is not surprising, given that the resolution was adopted by a political rather than a legal body. However, since the resolution aims to prompt legal measures, its open-ended formulation ought to be elaborated further. The prohibited conduct and the circumstances in which it may be prohibited must be clearly delineated, in a manner which advances the goals enunciated in the resolution, while respecting the right to freedom of expression. The following is an attempt to provide elements of such delineation.
The present analysis draws in particular on three sources. The first is the UN Secretary-General's 2008 report on the protection of human rights and fundamental freedoms while countering terrorism, which offers non-binding guidelines for implementing Resolution 1624 (2005) in the light of existing international human rights standards.Footnote 95 The second is the Council of Europe's Convention on the Prevention of Terrorism (2005 Convention),Footnote 96 which was adopted shortly before Resolution 1624 (2005), with similar objectives,Footnote 97 and which influenced the drafting of Resolution 1624 (2005). This is the only one of all the major internationalFootnote 98 and regionalFootnote 99 treaties on terrorism and related offences which expressly criminalizes conduct related to incitement. Naturally, analysis of Resolution 1624 (2005) against the backdrop of the 2005 Convention cannot ignore the different political fora in which they were adopted and the different legal forms which they take. In 2008 the 2005 Convention was incorporated into EU law through an amended Framework Decision on Combating Terrorism (Framework Decision),Footnote 100 setting 2010 as the deadline for criminalizing ‘public provocation to commit a terrorist offence’ under the domestic laws of member states.Footnote 101 The third source is the international crime of incitement to genocide under the Genocide Convention,Footnote 102 which has received extensive judicial and scholarly attention and may serve as a comparative source.
5.1. The target conduct: terrorist acts
Resolution 1624 (2005) calls on states to prohibit by law incitement to commit ‘a terrorist act or acts’, without defining what those are. In the past, various specific acts associated with terrorism have been declared offences under international treaties (hereafter ‘treaty offences’).Footnote 103 ‘Incitement to commit a terrorist act’ can be interpreted by reference to these treaty offences. The 2005 Convention, which requires the criminalization of provocation to commit a ‘terrorist offence’, expressly defines those by reference to the Convention's appendix, which lists the major international conventions concerning terrorism-related offences. Those contain specific, well-defined conducts that constitute offences.Footnote 104
In contrast, Resolution 1624 (2005) refers to ‘terrorist acts’ rather than to ‘terrorist offences’, suggesting a broader category. At the same time, the resolution also recalls Security Council Resolution 1566 (2004), where the Security Council
Recalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature . . .Footnote 105
Resolution 1566 (2004) also does not formally define ‘terrorist acts’, but links them to treaty offences. The reference in Resolution 1624 (2005) to Resolution 1566 (2004) may therefore narrow the scope of ‘terrorist acts’ by linking them to treaty offences. In contrast, the working definition proposed by the UN Secretary-General for ‘terrorism’ suggests that terrorism is
any action in addition to actions already specified by the existing conventions on aspects of terrorism, . . . that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.Footnote 106
The EU Framework Decision also requires criminalization of a provocation to commit a ‘terrorist offence’, but the term has a broader meaning than in the 2005 Convention. The Framework Decision does not refer to the international treaties, but instead enumerates various acts which constitute terrorist offences. Those range from attacks on life and physical integrity to extensive destruction of infrastructures, where such acts, given their nature or context, may seriously damage a country or an international organization where committed with the aim of seriously intimidating a population, unduly compelling a government or international organization to perform or abstain from performing any act, or seriously destabilizing or destroying the fundamental structures of a country or an international organization.Footnote 107 While many of the acts listed in the Framework Decision correspond to specific international treaty offences, they are defined in the Framework Decision more generally; in particular, the treaty offences are characterized by a transnational component, which does not exist in the Framework Decision.
5.2. The content of speech
Resolution 1624(2005) does not define ‘incitement’, despite the variety of shades of conduct which the term may encompass.Footnote 108 No doubt ‘incitement’ includes a direct call to engage in a terrorist act. But should it include other speech, such as praise for an act already committed, support for terrorism as a vehicle of change, denigration of victims, or hate-mongering?
The determination of the scope of speech that may be prohibited should take account of the type of target conduct that is at issue, and the type of advocacy that can lead to it. Resolution 1624 (2005) is informed by the threat of modern terrorism, which, as noted above, is dependent on winning hearts and minds. The weight exerted by the inciters on the incitees lies not in the issuance of direct orders, but in sowing and nurturing in their audience the ideological foundation from which the willingness to act then emerges. This is done by persistent, pervasive vilification and disparagement of the target, not by direct calls for action, at least not at the early stages. In order effectively to prevent this process, the prohibition must encompass more than direct calls. Indeed, in ‘re-emphasizing’ the contribution of efforts to enhance dialogue and broaden understanding among civilizations, ‘in an effort to prevent the indiscriminate targeting of different religions and cultures’,Footnote 109 Resolution 1624 (2005) highlights the tortuous path which incitement to terrorist acts takes through religious and cultural sensitivities before it emerges as an instruction for concrete action.
In view of the need to define prohibited speech widely, Resolution 1624 (2005) and its interpretation by the Secretary-General are disappointing. The resolution calls on states to ‘prohibit . . . incitement’, but only ‘repudiates attempts at the justification or glorification (apologie) of terrorist acts that may incite further terrorist acts’.Footnote 110 By implication, the prohibition called for does not extend to cover justification or apologie. Although the resolution itself does not expressly forbid states from criminalizing indirect advocacy of terrorism, the Secretary-General's guidelines do. They provide that incitement can be understood as ‘a direct call to engage in terrorism’ and that ‘for States to comply with international protections of freedom of expression, laws should only allow for the criminal prosecution of direct incitement to terrorist acts, that is, speech that directly encourages the commission of a crime’. The guidelines expressly reject the prohibition – criminally or otherwiseFootnote 111 – of apologie, because the latter ‘may not go so far as to incite or promote the commission of terrorist acts’. This categorical exclusion by the Secretary-General of anything but a direct call means that even when in specific circumstances the apologie does promote the commission of terrorist acts, it still may not be prohibited, because it is not ‘direct’.
The 2005 Convention and the EU Framework Decision require states parties to establish under their domestic criminal law an offence of ‘public provocation to commit a terrorist offence’. Provocation means the ‘making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed’.Footnote 112 These instruments allow a prohibition across a much wider range of speech, placing no a priori limitations on the content of potentially proscribed speech. Any message to the public may constitute provocation, provided that certain other conditions are fulfilled (discussed below). Thus the European instruments require or at least permit the prohibition of messages praising the perpetrator of an attack, the denigration of victims, calls for funding for terrorist organizations, or other similar behaviour and presenting a terrorist offence as necessary and justified.Footnote 113 In the context of the Framework Decision, this wide array of prohibitions has been criticized as overly restrictive of speech,Footnote 114 and liable to result in criminalization of provocation of relatively low-level acts.Footnote 115 However, proposals to offer more robust protection to freedom of speech by criminalizing only the conveying of a message ‘clearly and intentionally advocating’ the commission of a terrorist offenceFootnote 116 were rejected.
The European instruments reflect an internal European consensus on human-rights-bound restrictions within the European community. There is no reason to expect such a consensus at the universal level, among speech-protective stances such as that of the United States and other positions, possibly much less favourable to freedom of expression than the European one. Yet it is not the laconic wording of Resolution 1624 (2005) which prohibits states from extending the potential prohibition to a wider scope of speech, but the Secretary-General's guidelines that place significant limitations on such measures. In view of other requirements for limiting speech, considered in the sections below, these limitations are unnecessary; more importantly, they may result in ineffectiveness of the measure. In other words, the offence – as delineated by the Secretary-General's guidelines – is so narrowly defined that it may fail to address the phenomenon for which it was tailored. On balance, the need to prevent an environment conducive to terrorism should outweigh the freedom of speech interest and allow the criminalization of indirect advocacy of terrorism. Interpreting Resolution 1624 (2005) as permitting or even requiring such criminalization would not mean opening the floodgates to abuse of powers and violation of human rights. The other elements of the offence, in particular the probability of harm test and the mens rea, can serve as safeguards against such abuse, without rendering the entire project ineffectual.
In the light of the above, it is striking that incitement to genocide is punishable as an inchoate offence only if it is ‘direct’ (and public) – that is, if it calls for the commission of acts of genocide, not merely if it may result in such commission.Footnote 117 This may appear difficult to reconcile with the proposition offered above, that the potentially prohibited expression should be defined widely, since manipulating an entire society into legitimizing genocide (or terrorism) depends on ever-increasing but often subtle indoctrination, which only at a final stage reaches direct calls. Indeed, even if a Genocide-Convention-type prohibition had been available in the early 1930s, it might not have been capable of putting an early stop to the Nazi propaganda machine,Footnote 118 because it would not have permitted intervention until a relatively late stage, when the stage for genocide was already set. The narrow definition in the Genocide Convention constituted a compromise between states which upheld freedom of speech (and in fact objected to the criminalization of incitement altogether) and those which called for greater restrictions on speech. A logical compromise would have been to demand a causal link between the speech – of any kind – and genocide. Nonetheless, the drafters of the Genocide Convention opted for clear-cut categories, trading off the causal-link requirement for a narrow definition of the speech. Yet while a direct call can be presumed to create a causal link to the target conduct (genocide or terrorism), it is not a sine qua non for guaranteeing such a link. With respect to terrorism, where the requirement of a causal link has not been abandoned, there is no justification for such a narrow scope of prohibited speech.
If only direct advocacy of terrorism is criminalized, another question is whether the call for action has to be explicit. This question arose with respect to the crime of incitement to genocide. Relying on the travaux préparatoires of the Genocide Convention, the International Criminal Tribunal for Rwanda (ICTR) has ruled that incitement to genocide need not be explicit to be punishable.Footnote 119 Incitement may be regarded as direct even when it is couched in euphemistic terms or ones that have a specific, context-based connotation.Footnote 120 The directness of the speech has to be considered on a case-by-case basis and in the light of the local culture and the specific circumstances of the instant case.Footnote 121 This seems also valid for incitement to terrorist acts. Indeed, if an international tribunal can undertake to evaluate speech in its context,Footnote 122 there is no reason why a domestic court, where offences of incitement to terrorist acts are to be prosecuted, should not do so.
5.3. Public and private speech
Incitement is defined as speech that is directed at a non-specific audience, rather than a private communication to an individual or a specifically defined group.Footnote 123 The interpretation of ‘incitement’ in Resolution 1624 (2005) as an act directed at a general public is in line with previous and subsequent use of the term ‘incitement’ by the Security Council, which in all cases referred to speech in the mass media.Footnote 124 It is also in line with the European instruments, which proscribe provocation to commit a terrorist act only if it is public. Similarly, incitement to genocide is punishable as an inchoate offence only if it is public, with the justification that private advocacy was ‘not serious enough to be included in the convention’,Footnote 125 since it could have no influence on the perpetration of the crime.Footnote 126 Private communication which leads to the commission of an offence may constitute instigation, which is punishable only if the target conduct occurs.Footnote 127 The International Law Commission (ILC) considered that the ‘public appeal for criminal action increases the likelihood that at least one individual will respond to the appeal and, moreover, encourages the kind of “mob violence” in which a number of individuals engage in criminal conduct’.Footnote 128 Unlike genocide, terrorism does not rely on ‘mob violence’, although it does, in its modern form, rely on a plurality of potential perpetrators. More importantly, a reading of ‘incitement’ as speech directed at a general public is also supported by human rights considerations: imposition of criminal restrictions on private speech would result in intolerable invasions of privacyFootnote 129 and censorship of speech.Footnote 130
The determination whether a specific speech was ‘public’ or ‘private’ should take into account the totality of circumstances, such as the number of members of the public involved, and the openness and accessibility of the place or speech.Footnote 131 With respect to incitement to genocide, the ICTR adopted the approach that public incitement is characterized by a call to members of the public at large or to a number of individuals in a public place.Footnote 132 However, it is submitted that a communication to a specified and limited audience should be protected as private even if it takes place in a public place.
5.4. The probability of harm
Incitement is an inchoate offence – the act advocated need not take place for the speech to be punishable. Clearly, however, some risk of resulting harm must be identified, as without potential harm there is no justification for a criminal prohibition. The threshold probability of harm should be informed by two parameters: one is the type of speech that may be prohibited; the other is the gravity of the offence (or, in other words, the importance of social interest which it protects). The combined operation of these parameters is apparent with respect to the prohibition on incitement to genocide: incitement to genocide is narrowly defined, and the harm in genocide is perceived as so great that however small its probability, the risk must not be taken.Footnote 133 Accordingly, the prohibition on incitement to genocide does not depend on proof of the probability of the genocide occurring.Footnote 134
With respect to terrorism, a potential causal link should be required as an element in the offence. If, as posited earlier, there should not be an a priori limitation on the type of expression that may be prohibited, the causal link is necessary to avoid an excessive restriction on expression.Footnote 135 Resolution 1624 (2005) is silent with respect to the level of risk that justifies the prohibition. The Secretary-General's guidelines propose that the expression may be restricted if it is ‘directly causally responsible for increasing the actual likelihood of a terrorist act occurring’, or, for a criminal prohibition, that it is ‘likely to result in criminal action’.Footnote 136 Given the insidious nature of incitement, it is questionable whether the first of these standards is appropriate; it ignores the role of incitement in creating the environment which nurtures particular acts of terrorism rather than in promoting specific acts.
The European threshold is that the provocation ‘causes a danger that’ a terrorist offence may be committed.Footnote 137 This open-ended standard is borrowed from the jurisprudence of the ECtHR, which does not set a rigid probability threshold, but requires that in considering the significance and the credible nature of the danger, the author and the addressee of the message, as well as the context in which the offence is committed, should be taken into account.Footnote 138 The adoption of this standard in a criminal prohibition on incitement has been criticized as excessively restrictive of speech, particularly with respect to the Framework Decision, which defines the target conduct (and consequently the content of potentially prohibited speech) very widely.Footnote 139 It was suggested that speech should only be criminalized if it ‘manifestly causes a danger’ that a terrorist offence may be committedFootnote 140 or if there is ‘imminent risk’ that a terrorist offence be committed.Footnote 141 As argued above, a requirement of such a close causal link between the speech and the target conduct is incompatible with the purpose of the criminalization of incitement to terrorist acts.
This does not mean that the flexible standard of the ECtHR is appropriate for any domestic legislation based on Resolution 1624(2005). The legislation of most states is not subject to rigorous judicial review in the light of international human rights standards such as that which the ECtHR performs. There is therefore much greater scope for states outside the ECHR framework to abuse their power. For this reason the ‘likely to result in criminal action’ standard in the Secretary-General's guidelines may be generally appropriate.
5.5. Mens rea
Both the Secretary-General's guidelines and the European instruments require intent to bring about the commission of a terrorist act or offence as a condition for prohibiting the speech.Footnote 142 In interpreting the content of ‘intent’ one has to consider that a ‘terrorist act’ may itself be defined as an act carried out with a specific intent. Some treaty offences,Footnote 143 as well as Resolution 1566 (2004) and the crystallizing definition of terrorism, require the special intent of the perpetrator to intimidate the population or compel a government to act or refrain from acting. Thus a requirement of intent on the part of the inciter to bring about the commission of a terrorist act may mean that the inciter must have a double intent, both that the incitee carry out the actus reus of the terrorist act and that the act intimidate the population or compel a government. Here an analogy from the Genocide Convention might be appropriate, since the crime of genocide also requires special intent, and the crime of incitement to genocide has been interpreted as requiring a double intent, both to bring about the actus reus of genocide and to bring abut the destruction of a group or part of it.Footnote 144
The more remote the speech is from the terrorist act, the greater the role of the mens rea requirement in preventing abuse of the prohibition. Given the narrow scope of proscribed speech according to the Secretary-General's guidelines, the necessity of the requirement of intent to promote terrorism – let alone double intent – is far from obvious. The requirement of intent may not constitute a significant obstacle to prosecution, since it may often be inferred from the content and context of a direct call to terrorism.Footnote 145 However, a direct call to engage in terrorism is of itself sufficiently grievous and lacking any redeeming social value that there seems to be little justification for an additional requirement of specific intent, which could inadvertently confer legitimacy on such expressions.Footnote 146 If a speech constitutes a direct call to engage in a terrorist act, the speaker's awareness of the situation should suffice to attribute criminal responsibility. A requirement of intent is only appropriate if, as argued in this article, the prohibition is interpreted more widely so as to include indirect advocacy.Footnote 147
5.6. Conclusion
The Secretary-General's interpretation of ‘incitement to a terrorist act’ under Resolution 1624 (2005) is a narrow one: only a direct call to commit a terrorist act that is at least likely to result in criminal action may be prohibited, if it is accompanied by double (and special) intent.
While the offence of provocation under the European instruments seems to be more conducive to its goal, a comparison of the two standards must take into consideration the fact that the implementing legislation of the European instruments will be adopted by democratic states governed by the rule of law subject to judicial review of the ECtHR. No international mechanism exists to monitor human rights violations through abuse of Resolution 1624 (2005). Since a new measure under the umbrella of ‘the war on terrorism’ may prove useful in the hands of governments to silence troublesome dissent, the narrow confines of the Secretary-General's guidelines may have some merit. They may swing the pendulum away from speech-restrictive measures, so that states cannot stray too far in their zealousness to implement the resolution. Yet it should be borne in mind that the high threshold in the guidelines, which links the offence directly to the commission of specific terrorist acts, may undermine the utility of the offence and frustrate the goal of Resolution 1624 (2005).
6. Incitement to terrorist acts as an international crime of persecution
Discussion of international measures to criminalize incitement to terrorist acts would not be complete without an examination of how incitement to terrorist acts sits with established international crimes, with which terrorism itself is increasingly regarded as overlapping. In Galić the International Criminal Tribunal for the former Yugoslavia (ICTY) found by majority that international law imposed individual criminal liability for the crime of terror against the civilian population under Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II to the Conventions,Footnote 148 although the meaning of ‘terrorism’ in the Additional Protocols differs from its present use.Footnote 149 Scholars opine that outside armed conflict, terrorism may constitute a crime against humanity.Footnote 150 Once the crime of aggression is defined for the purposes of the ICC Statute, it may also cover acts that are loosely referred to as terrorist acts (at least if perpetrated by statesFootnote 151).
Even if terrorism can be classified as a war crime or a crime against humanity, it should be recalled that neither the international tribunal statutes nor customary international law consider incitement to war crimes or incitement to crimes against humanity independent international crimes.Footnote 152 The exclusivity of incitement to genocide as a free-standing crime is not a matter of chance. During the drafting of the ICC Statute, delegations refused to extend criminal responsibility to inchoate incitement of other crimes within the jurisdiction of the Court, on the ground that such extension would violate the sanctity of freedom of speech.Footnote 153
However, incitement to terrorist acts may itself constitute an international crime, namely persecution as a crime against humanity, notwithstanding the elusiveness of this category.Footnote 154 The link between incitement to genocide as a crime against humanity and persecution has been acknowledged at a relatively early stage. In 1946, the International Military Tribunal at Nuremberg convicted Julius Streicher of ‘persecution on political and racial grounds’Footnote 155 as a crime against humanity, for his incitement to the murder and extermination of the Jews.Footnote 156 The Streicher case is often regarded as the precursor of the crime of ‘incitement to genocide’,Footnote 157 at a time when ‘genocide’ was not yet recognized under international law. However, an act of persecution differs from incitement to genocide, even if specific conduct may fall within the scope of both. Persecution is not an inchoate offence.Footnote 158 Under the jurisprudence of the ad hoc tribunals, persecution is a specific form of violation of the right to equality.Footnote 159 It consists of ‘the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited [as crimes against humanity]’,Footnote 160 when it is carried out as part of a widespread or systematic attack on a civilian population.
The Streicher case is no longer unique in linking incitement and persecution. In 2000 the ICTR convicted the defendant in Ruggiu for his radio broadcasts of both incitement to genocide and persecution as a crime against humanity.Footnote 161 The ICTR pointed out that the radio broadcasts all aimed at singling out and attacking the Tutsis and Belgians ‘on discriminatory grounds, by depriving them of the fundamental rights to life, liberty and basic humanity’, with the aim of removing them from the society in which they lived alongside the perpetrators, or eventually even from humanity itself.Footnote 162 This finding followed the traditional analysis, in that it considered the harm in the broadcasts as that of precipitating genocide.Footnote 163 At the same time, the reference to the discriminatory deprivation of the victims’ fundamental right to ‘basic humanity’ paved the way for considering the harmful consequences of incitement associated with the singling out of a group as an act of persecution, even if such singling out does not amount to genocide.
In 2001 the ICTY in Kordić and Čerkez ruled that ‘encouraging and promoting hatred on political etc. grounds’ cannot constitute an underlying act of persecution because it does not rise to the same level of gravity as the other acts enumerated as crimes against humanity and, furthermore, it is not a crime under customary international law.Footnote 164 However, a different approach was adopted by the ICTR. In 2007 Nahimana was convicted, inter alia, of persecution for his responsibility for broadcasts calling for the extermination of Tutsis.Footnote 165 The ICTR Appeals Chamber ruled that hate speech which incites violence against the members of a group violates the rights to respect for human dignity and to security, and can and may be regarded as a crime against humanity.Footnote 166 In 2008 in Bikindi the ICTR Trial Chamber took this further and opinedFootnote 167 that even hate speech that does not directly call for violence may constitute persecution if it calls for hate and discrimination, as this violates the right to respect for the dignity of the members of the targeted group as human beings. This legal construct may apply in some circumstances to modern incitement to terrorist acts. When such incitement ‘dismiss[es] the worth and dignity of others, and portray[s] them as subhuman and worthy of extinction’Footnote 168 on the basis of religious, national, or racial ideologies, it is also discriminatory and may well fall within the scope of the persecution as a crime against humanity. As for the ‘widespread or systematic’ element of crimes against humanity, Resolution 1624 (2005) appears to address at least widespread advocacy, but, as noted above, incitement to terrorist acts is not inherently widespread or systematic.
The limits of constructing incitement to terrorist acts as a crime of persecution must be noted. First, the traditional objections against extending crimes against humanity to non-state activities would also apply to terrorism. Although the notion of state terrorism is gradually gaining acceptance, it is only part of the phenomenon, and clearly not the one which is the centre of present attention and the focus of Resolution 1624 (2005). Second, as noted with respect to other elements of incitement to terrorist acts, the linkage between terrorism and discrimination reflects a specific perception of terrorism as fundamentalist religious, national, or racial violence such as that of al Qaeda; incitement to terrorist acts as a crime against humanity might not cover incitement to terrorist acts in pursuit of political or economic goals;Footnote 169 addressing some manifestations of the phenomenon but not others again raises problems of fragmentation. More generally, persecution is usually the tool of the strong majority to denigrate and dehumanize a minority. Terrorism is precisely the opposite, it is the tool of a minority against the majority. Finally, the case law does not provide a clear answer whether the underlying acts of persecution must be international crimes themselves. It is therefore arguable that incitement to an act other than genocide should not be regarded as an underlying act of persecution.Footnote 170 Otherwise, incitement to crimes against humanity, to terrorist acts, and possibly to lesser crimes, becomes an independent crime (of persecution) through the back door. The exclusion of this possibility by the present provisions of the ICC Statute may be undesirable, being the result of historical development and political pulls rather than of a coherent legal theory. However, it is a clear reflection of the intention of the ICC Statute's drafters, who positively resisted a crime of ‘incitement to crimes against humanity’.
7. Conclusion
This article has examined the elements of an offence of incitement to terrorist acts called for by the Security Council under Resolution 1624 (2005). While this offence may be relegated to domestic law, its content cannot be divorced from international legal standards. The examination of its elements highlights the remarkable gap between the declared goal of the resolution, on the one hand, and the tools with which the resolution equips states, at least according to the Secretary-General's guidelines, on the other.
An offence of incitement to terrorist acts may be a necessary tool for early domestic and international intervention against terrorism that is motivated by extremist ideologies. The purpose of Resolution 1624 (2005) is to counter incitement as a vehicle for the creation of an underlying social environment that breeds terrorism. If modern terrorism thrives on the spread of extremist and intolerant ideology, as put forward in Resolution 1624 (2005), states must be equipped with means of preventing that spread before a concrete risk arises of specific terrorist acts being committed. This dictates that the offence not be so tightly linked to specific terrorist acts as to prohibit early intervention. The narrow confines of the Secretary-General's interpretation cast doubt on the effectiveness of Resolution 1624 (2005).
Whether or not fundamentalist religious terrorism is the prevalent form of terrorism at this time,Footnote 171 the focus on a specific manifestation of terrorism illustrates that incitement might be fragmented, with the phenomenon being classified under discrete categories, each of which can be addressed independently and in accordance with its particular characteristics. Such an approach is reminiscent of the strategy adopted previously towards terrorism, where discrete categories of acts have been treated separately. However, the various international instruments on terrorism are not substantively distinct from each other; indeed, they often duplicate one other. The piecemeal treatment of the matter was the consequence of the political inability to agree on a comprehensive definition of terrorism. In contrast, a fragmented treatment of incitement may have substantive consequences. It goes against the grain of developing a comprehensive convention against terrorism, including a definition of the term, which presumably would inform related offences.
