Incitement to terrorism is a category in some national legal systems which may criminalize direct encouragement of acts of violence or praise for proscribed

terrorist organizations A number of national governments and two international organizations have created lists of organizations that they designate as terrorist. The following list of designated terrorist groups lists groups designated as terrorist by current and fo ...

. It was also prohibited by United Nations Security Council Resolution 1624 in 2005.

Overview

Legal scholars

Daphne Barak-Erez Daphne Barak-Erez (; born 2 January 1965) is an Israeli law professor. Since May 2012, she serves as a judge in the Supreme Court of Israel. Personal life Daphne Barak-Erez was born in the United States to Israeli parents, and became a citizen b ...

and David Scharia have identified a difference in approach between European and United States laws criminalizing incitement to terrorism; the former tend to focus on the content of the speech and whether it supports terrorist violence, while the latter focuses on whether the speaker is linked to proscribed organizations. The European approach involves explicit limits on freedom of speech, while the United States approach is more indirect. Incitement is an

inchoate offense An inchoate offense, preliminary crime, inchoate crime or incomplete crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as the fol ...

and is punishable even if no causal connection with a terror attack is proven. Merely establishing terrorism as a potential result of the speech is sufficient. One major motivation for criminalizing incitement to terrorism is its potential usefulness as an upstream prevention for deadly terror attacks. Some experts even argue that incitement is a ''

sine qua non ''Sine qua non'' (, ) or ''condicio sine qua non'' (plural: ''condiciones sine quibus non'') is an indispensable and essential action, condition, or ingredient. It was originally a Latin legal term for " conditionwithout which it could not be" ...

'' for terrorist attacks.

International law

United Nations Security Council Resolution 1624, unanimously adopted in 2005, is the first international legal instrument which deals with incitement to terrorism. It was prompted by the

2005 London bombings The 7 July 2005 London bombings, often referred to as 7/7, were a series of four coordinated suicide attacks carried out by Islamic terrorism, Islamic terrorists in London that targeted commuters travelling on Transport in London, the city's ...

. United Nations Security Council Resolution 1963 authorizes the Counter-Terrorism Committee of the Security Council to monitor the passage of laws criminalizing incitement to terrorism in member states.

European law

The Council of Europe adopted the Convention on the Prevention of Terrorism, also in 2005, which requires member countries to pass legislation to criminalize the "public provocation to commit a terrorist offence". This does not cover apologia for terrorism. Although the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...

protects freedom of expression, incitement is not protected. In '' Zana v. Turkey'', the

European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...

ruled that

Mehdi Zana Mehdi Zana (born 20 December 1940 in Silvan) is an author and former Kurdish politician from Turkey. At: "KORT BIOGRAFI ÖVER FÖRFATTAREN OCH POLITIKERN MEHDI ZANA" He is prominent Kurdish political activist a former Mayor of Diyarbakır. Followi ...

's free speech rights were not violated when he was punished by Turkey for calling

PKK The Kurdistan Workers' Party or PKK is a Kurdish militant political organization and armed guerrilla movement, which historically operated throughout Kurdistan, but is now primarily based in the mountainous Kurdish-majority regions of sout ...

, a proscribed terrorist organization, a "national liberation movement". In '' Leroy v. France'', cartoonist Denis Leroy's conviction and fine for glorifying the

September 11 attacks The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commer ...

under French law was upheld by the ECHR.

By country

France

Article 24 of the Press Law of 1881 criminalizes the incitement and advocacy of terrorism, as well as apologia for terrorism. , the penalty was up to five years imprisonment and/or a fine up to 45,000 euros.

Israel

Barak-Erez and Scharia identify Israel as belonging to the European tradition, in part because of its legal system's origins in

British law The United Kingdom has four legal systems, each of which derives from a particular geographical area for a variety of historical reasons: English and Welsh law, Scots law, Northern Ireland law, and, since 2007, purely Welsh law (as a result of ...

. The Prevention of Terrorism Ordinance, enacted in 1948, remains in force, and was for many years the primary provision criminalizing incitement to terrorism. This ordinance empowers the government to designate terrorist organizations and criminalizes being a member of or supporting such a group. Section 4 of the ordinance states that: In '' Jabareen v. State of Israel'', the Supreme Court of Israel found that the Prevention of Terrorism Ordinance applied only to designated terrorist organizations rather than the promotion of acts of violence more generally. Following this case, the

Knesset The Knesset ( he, הַכְּנֶסֶת ; "gathering" or "assembly") is the unicameral legislature of Israel. As the supreme state body, the Knesset is sovereign and thus has complete control of the entirety of the Israeli government (with ...

replaced Section 4 with a new section, 144D2, which extends the prohibition to incitement of terrorist actions not connected to terrorist organizations.

Spain

Article 18.1 of the

Spanish Penal Code The Criminal Code is a law that codifies most criminal offences in Spain. The Code is established by an organic law, the Organic Law 10/1995, of 23 November, of the Criminal Code (''Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal' ...

criminalizes provocation to commit any criminal offense and by extension apologia for criminal offenses. Organic Law No. 7/2000 explicitly prohibits, with a penalty of one to two years' imprisonment:

United Kingdom

The

Terrorism Act 2006 The Terrorism Act 2006 is an Act of the Parliament of the United Kingdom that received royal assent on 30 March 2006, after being introduced on 12 October 2005. The Act creates new offences related to terrorism, and amends existing ones. Th ...

created the offence of encouragement to terrorism, which prohibits "a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences." Indirect encouragement statements include "every statement which glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences".Terrorism Act 2006
/ref> However, they are only criminalized if the speaker intends to cause others to commit terrorist offences.

United States

Because of the

First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...

, incitement to terrorism or other forms of crime and unlawful violence is constitutionally protected

free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...

, unless it can be proven that the speech is "directed to inciting or producing imminent lawless action" and "is likely to incite or produce such action". However, in 2010 ''

Holder v. Humanitarian Law Project ''Holder v. Humanitarian Law Project'', 561 U.S. 1 (2010), was a case decided in June 2010 by the Supreme Court of the United States regarding the Patriot Act's prohibition on providing material support to foreign terrorist organizations (18 U.S. ...

'', the Supreme Court ruled that "a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible". This is because such statements constitute material support for terrorism. Some defendants, including Javed Iqbal, who helped the Hezbollah TV station

Al-Manar Al-Manar ( ar, المنار, ''al-Manār'', lit='' The Lighthouse'') is a Lebanese satellite television station owned and operated by the political party Hezbollah,

to broadcast, have been convicted of providing material support for terrorism under United States law.

Conflict with free speech

Incitement to terrorism offenses are considered by some to be an unjustified infringement of free speech rights, and it is argued that general encouragement of terrorism may be a political statement rather than literal encouragement to commit terrorist offenses. However, some advocates of criminalization, such as Yaël Ronen, believe that it is possible and desirable to criminalize a definition of incitement to terrorism which does not excessively infringe freedom of speech.

Notes

References

Sources

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