Presentation of Dr. Bibi van Ginkel (ICCT)
Thank you Mr Chair,
Your Excellencies, distinguished Ladies and Gentlemen,
It is a great honour and privilege for me to contribute to the commemoration event of
the 10th anniversary of Security Council Resolution 1624.
At the International Centre for Counter-Terrorism (ICCT) in The Hague, we have been
privileged to have worked with CTED on the implementation of Resolution
1624 over the last years in various regional and national workshops in Africa, which was
made possible with the generous support of the Dutch MFA.
When we are talking about dealing with incitement to terrorism, the question is whether
that is a matter of prevention or repression? In that respect it is important to
understand the process of radicalisation in a particular context. Clearly there are
different stages that a person goes through in his or her process of radicalisation. This
process is moreover unique in the way a person is under the influence of a cocktail of
pull and push factors. Nevertheless when assessing the various levels of radicalisation,
one can picture a pyramid, with a wide base and small top. At the bottom you will find a
large number of people who show indifference to the actions of violent extremists or at
least use rather neutral expressions (phase 1); a lesser amount of people and thus one
level higher in the pyramid show understanding and possibly sympathy for underlying
grievances referred to by the violent extremist as legitimisation of their actions (phase
2); in the next stage even a less bigger group could reflects signs of justification or
glorification of the violent extremist actions, and might even show forms of activism
(phase 3); and finally at the top of the pyramid and hence forth among a small group
one will find people who have a conviction that violent action is needed or feel a moral
obligation to take violent action themselves (phase 4). This action can take multiple
forms by means of logistical or financial support, by recruitment, by spreading
propaganda, or through actually planning and executing violent actions.
To connect the various stages of radicalisation to the narratives that go with that phase,
I would like to illustrate this by not using a narrative of jihadist extremism, which is
something that we are dealing with a lot, but rather one that is more related to right
wing extremism, in order to better illustrate the difficulty of drawing the line between
what is still allowed under free speech and what speech should be considered to cross
the line of a criminal offence as incitement to terrorism. Especially since a right wing
extremist narrative comes much closer to what is becoming mainstream in politics, we
need to sharpen our understanding of the criteria that dictate where to draw the line
between communication that are allowed, and the ones that are not.
The narrative in the different stages might look like this:
1. The uncontrolled flot of immigrants and refugees to Europe is jeopardising Western
societies
2. Those immigrants and refugees are profiteers and/or are Islamising our society. They
are all terrorists. The nationalists are putting a stop to this in order to protect our
western society
3. The actions (such as brutal beatings at the border to prevent them from crossing,
attacks at monks or refugee camps) taken are proportionate, and legitimate as counter
actions. I will 'like’ the FB page and spread the images around.
4. I and others have an obligation to our country to do everything in our power to stop
this.
Some of this might be communicated on the Internet, but it is important to note that no
direct causal link has so far been proven to state that the extremist content on the
Internet in itself will set of a process of radicalisation. It is believed however to work as
a potential catalyst.
So in short, looking at the different phases, there are the neutrals, the sympathisers,
justifiers, the ones with personal obligation.
Resolution 1624 is all about intervention in this process. But there are various ways to
do so: One is repression through legislation, and the other prevention, for instance
through prevention programs that focus on building resilience in communities,
empowering various groups like women, et cetera.
But if one is using its repressive tools by legislating incitement to terrorism as a criminal
offence, it is important to know what one is precisely talking about. This concerns the
definition of incitement. This is very important since it touches upon the freedom of
expression.
From earlier research and the previous Global survey on the implementation of 1624, it
became clear that one can categorize the way in which countries are dealing with the
legislation challenge. One category in particular raises concerns, as this includes states
that are using very vague terms while criminalising the act.
In any case, criminalising incitement will limit the freedom of speech, which is not the
same as saying it is violating it. Human rights frameworks do allow for an infringement
on the right as long as it is proportionate and necessary in a democratic society for a
legitimate purpose.
Yet there is a need to respect freedom of speech as much as possible as it is considered
to be a fundamental element of free societies. So, the principle of legality and certainty is
very important, meaning that when criminalising the act, the language needs to be clear
and foreseeable. General categories to legitimise the limit of freedom of speech, that are
too broad, such as state security or political stability will not do. To quote a 2006 UNODC
report:" Every legal system must ensure that even the most inflammatory agitator is
protected by the principles of legality and certainty and the guarantees of the ICCPR.
Arriving at a determination that a communication causes a future danger that a violent
terrorist offence will be committed involves a speculative evaluation of the
understanding, maturity and receptiveness of the audience, the persuasiveness of the
speaker, and the influence of external variables. However, an anti - incitement law need
not involve the uncertainty of predicting the future violent consequences."
If one is criminalising the act of incitement then what speech is one actually
criminalising? Would that include:
9/11 was a success, Osama was a great man, America had it coming, beheadings are a
proper punishment for infidels, Breivik is a hero for stopping the support of the social
democrats do the multi cultural agenda, a ‘ like’ on FaceBook of beheading videos, a call
to join IS or commit attacks in other countries? Which one of these remarks would pass
the threshold and why?
I would suggest that 5 elements are taking into account when one is legislating
incitement to terrorism:
1. Target conduct: It concerns inciting terrorism, so a definition in criminal law is needed
to define the scope of that conduct (terrorism). Calling of a demonstration to oppose the
politics of a country does not qualify a s such.
2. Content of speech: Should that concern incitement or also apologie? Should direct or
indirect provocation also fall under the scope? What about glorification or denigration of
victims? One can assume that it includes a direct call to engage in a terrorist act, but
does it also include other forms of speech that vocalise a more indirect support for
terrorism? For instance in the sowing and nurturing in their audience the ideological
foundation from which the willingness to act then emerges. In this category, one finds an
element of accumulation until a certain threshold is passed. This is for instance now an
issue for legal debate in a Dutch case that is now in trial.
3. Public versus non-public speech? And how public? Are statements in a madrassa
public? In a living room where a meeting of like minded people take place? One could
use as an indicator that the speech needs to be directed at a non-specific audience rather
than a private communication to an individual or a specifically defined group, but than
anything on a special blog or closed forum would fall outside the scope. For this, it is
important to take the totality of the circumstances into account.
4. Double intent (mens rea): There needs to be an intent to commit the criminal act of
incitement and the specific intent of terrorism to be committed as a result of it. One
would therefore require to have knowledge of the impact of the speech.
5. Causal link: this is again a question of threshold. I would suggest that one needs to
proof imminence and likelihood, and direct and immediate connection between the
speech and the likelihood or occurance of such violence. These criteria have been set in
various judicial cases as requirements that will prevent premature restriction of the
freedom of speech. Yet the terrorist attack itself does not need to have taken place. In
considering the significance and the credible nature of the danger, the author and the
address of the message, as well as the context in which the offence is committed, should
be taken into account.
Having said all this, key in all of this remains prevention. After all legal response can
only be the ultimate remedium. But if we do use them, then it should be in respect of the
rule of law and communicating the core values of the UN that should serve all people.
Thank you.