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Incitement to Terrorist Acts and International Law

Published online by Cambridge University Press:  30 July 2010

YAËL RONEN
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Abstract

This article considers the initiative of UN Security Council Resolution 1624 (2005) in criminalizing incitement to terrorist acts, in the light of criminal and international human rights law. The analysis is informed by the specific type of terrorism with which Resolution 1624 (2005) is concerned, namely ‘modern’ terrorism. The article argues that the rationales for a prohibition on incitement to terrorist acts call for a relatively wide definition of potentially proscribed speech. This can be achieved without excessively infringing freedom of expression. However, the present interpretation of the proposed prohibition is so restrictive that the prohibition may fail to counter the phenomenon with which it grapples. The article also considers whether incitement to terrorist acts can be regarded as an international crime. It concludes that in some instances there may be an overlap between incitement to terrorist acts and certain international crimes, but classification of incitement to terrorist acts as an international crime requires a fragmented approach to terrorism, which is contrary to current trends.

Keywords

freedom of speechincitementSecurity Council Resolution 1624 (2005)terrorism
Type
CURRENT LEGAL DEVELOPMENTS
Information
Leiden Journal of International Law , Volume 23 , Issue 3 , September 2010 , pp. 645 - 674
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed in Tokyo on 14 September 1963, entered into force on 4 December 1969; Convention for the Suppression of Unlawful Seizure of Aircraft, 860 UNTS 105; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974 UNTS 177.

2 E.g. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1678 UNTS 221, Art. 6(2)(c); International Convention for the Suppression of Terrorist Bombings, UN Doc. A/52/49 (1998), Art. 5; International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the General Assembly of the United Nations on 13 April 2005; entered into force on 7 July 2007, Art. 7(1)(e)(i).

3 International Convention for the Suppression of the Financing of Terrorism, UN Doc A/54/49 (Vol. I) (1999), 39 ILM 270 (2000).

4 E.g. the Financial Action Task Force (FATF), available at www.fatf-gafi.org; the UN Secretary-General's Counter-Terrorism Implementation Task Force (CTITF) working group on tackling the financing of terrorism, available at www.un.org/terrorism/workgroup5.shtml. For activities of the European Commission see http://ec.europa.eu/justice_home/fsj/terrorism/prevention/fsj_terrorism_prevention_disrupt_en.htm; for activities of the ASEAN Regional Forum Statement on Measures against Terrorist Financing (30 July 2002) see www.aseansec.org/12658.htm; for activities of the Inter-American Committee against Terrorism (CICTE) of the Organization of American States (OAS) see www.cicte.oas.org/Rev/En/Programs/TerrorismFinancing.asp; for an assessment of the effectiveness of these efforts see Pieth, M., ‘Criminalizing the Financing of Terrorism’ (2006) 4 Journal of International Criminal Justice 1074CrossRefGoogle Scholar.

5 In Resolution 1373 (2001), operative para. 5, the Security Council declared that ‘knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations’ (emphasis added). In Resolution 51/210 the General Assembly declared that ‘knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations’ (operative para. 2, emphasis added), and reaffirmed ‘the importance of ensuring effective cooperation between member States so that those who have participated in terrorist acts, including their financing, planning or incitement, are brought to justice’ (operative para. 5, emphasis added).

6 E.g. European Court of Justice, Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, 3 September 2008.

7 For some preliminary questions on the implications of Resolution 1624 (2005) see Laborde, J. P. and DeFeo, M., ‘Problems and Prospects of Implementing UN Action against Terrorism’, (2006) 4 Journal of International Criminal Justice 1087CrossRefGoogle Scholar, at 1094–8.

8 F. Gregory and P. Wilkinson, ‘Riding Pillion for Tackling Terrorism Is a High-Risk Policy’, in Chatham House, ISP/NSC Briefing Paper 05/01, Security, Terrorism and the UK (July 2005), 2.

9 K. Roach, ‘Sources and Trends in Post-9/11 Anti-terrorism Laws’, in B. J. Goold and L. Lazarus (eds.). Security and Human Rights (2007), 227, at 245.

10 UN Doc. SC Res. 1624 (2005), preambular paras. 3, 8.

11 Established pursuant to SC Res. 1373 (2001).

12 SC Res. 1624(2005), operative paras. 2, 3, 5. By mid-July 2007 (the closing date of the most recent CTC report) 88 states had reported to the CTC. Just under half of those states have expressly criminalized incitement, although most address the problem through general criminal provisions. See UN Doc. S/2008/29 (second report of the CTC to the Security Council), para. 5; UN Doc. S/2006/737 (first report of the CTC to the Security Council), paras. 5–6. From the reports it is not clear whether the CTC takes ‘criminalizing incitement’ to mean ‘expressly criminalizing incitement to commit terrorist acts’ or also incitement as included in other categories of offences, although from the overall review the former appears to be the case.

13 SC Res. 1624 (2005), preambular para.2, operative para. 1.

14 Ibid., preambular para. 1; SC Res. 1373 (2001) operative para. 1(b).

15 UN Doc. S/2008/29, supra note 12, paras. 5–9.

16 Universal Declaration of Human Rights, GA Res. 217A(III) (10 December 1948).

17 International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature by General Assembly Resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.

18 SC Res. 1624 (2005), preambular para. 6, operative para. 4.

19 Laqueur, W., ‘Postmodern Terrorism: New Rules for an Old Game’, (1996) 75 (5)Foreign Affairs 24CrossRefGoogle Scholar.

20 ‘A More Secure World: Our Shared Responsibility’, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2 December 2004) (hereafter High Level Panel's Report), para. 146.

21 Cronin, supra note 20, at 44–5. Al Qaeda is a network that links individuals and groups in some 60 countries. Posen, B. R., ‘The Struggle against Terrorism: Grand Strategy, Strategy and Tactics’ (2001–2) 26 International Security 39CrossRefGoogle Scholar.

22 Research indicates that there is a clear rise in the share of religiously motivated organizations among terrorist organizations. In 1968, none of the identified international terrorist organizations were classified as ‘religious’. In 1980, two out of 64 were classified this way; in 1995, their number had expanded to 25 of 58. B. Hoffman, Inside Terrorism (2006), 90–1.

23 High Level Panel's Report, supra note 20, para. 146. Research indicates that the number of terrorist attacks has grown smaller from the 1980s to the 1990s, but the number of deaths and injuries per attack has grown considerably and overall. Cronin, A. K., ‘Behind the Curve: Globalization and International Terrorism’, (2002–3) 27 International Security 30CrossRefGoogle Scholar, at 43.

24 Gregory and Wilkinson, supra note 8, at 3.

25 Richard Posner defines ‘modern terrorism’ as the global threat emanating from weapons of mass destruction. Posner, R., Not a Suicide Pact: The Constitution in a Time of National Emergency (2006), 2, 8Google Scholar.

26 Hoffman, supra note 22.

27 Sprinzak, E., ‘The Lone Gunmen’, (2001) 127 Foreign Policy 72CrossRefGoogle Scholar, at 73. For data supporting this assertion see National Counterterrorism Center, 2008 Report on Terrorism (30 April 2009), at 29, available at http://wits.nctc.gov/ReportPDF.do?f=crt2008nctcannexfinal.pdf.

28 SC Res. 1624(2005), preambular para. 2.

29 Ibid., preambular para. 3. See also Declaration on Measures to Eliminate International Terrorism, General Assembly Resolution A/RES/49/60, para. 1 (‘The States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed, including those which jeopardize the friendly relations among States and peoples and threaten the territorial integrity and security of States’).

30 SC Res. 1624(2005), preambular paras. 4, 5, 9.

31 SC Res. 1566(2004) (8 October 2004), preambular para. 9.

32 SC Res. 1624(2005), preambular paras. 9, 12.

33 Ibid., preambular paras. 9.

34 Ibid., preambular para. 11. Preambular para. 1 refers to SC Res. 1540(2004) (28 April 2004), which in turn links weapons of mass destructions to terrorist activity, preambular paras. 8, 14, operative para. 2.

35 SC Res. 1624(2005), operative para. 6.

36 Bianchi, A., ‘Security Council's Anti-terror Resolutions and their Implementation by Member States: An Overview’, (2006) 4 Journal of International Criminal Justice 1044CrossRefGoogle Scholar, 1048.

37 S/PV.4618 (4 October 2002), E. Rosand, ‘SC Res. 1373, the Counter-Terrorism Committee, and the Fight against Terrorism’, (2003) 97 AJIL 333, 335–336.

38 S/2006/737 (7 September 2006), S/2008/29 (21 January 2008).

39 SC Res. 1624(2005), operative para. 4: ‘Directs the Counter-Terrorism Committee to: (a) Include in its dialogue with Member States their efforts to implement this resolution; (b) Work with Member States to help build capacity, including through spreading best legal practice and promoting exchange of information in this regard’.

40 Roach, supra note 9, 248.

41 Falk, R. A., ‘On Regulating International Propaganda: A Plea for Moderate Aims’, (1966) 31 Law and Contemporary Problems 622CrossRefGoogle Scholar, at 627.

42 Larson, A., ‘The Present Status of Propaganda in International Law’, (1966) 31 Law and Contemporary Problems 439CrossRefGoogle Scholar, at 442.

43 E.g. International Convention Concerning the Use of Broadcasting in the Cause of Peace, 186 LNTS 301, Art. 2. For a survey of law see J. B. Whitton and A. Larson, Propaganda: Towards Disarmament in the War of Words (1964); M. G. Kearney, The Prohibition of Propaganda for War in International Law (2007).

44 von Glahn, G., ‘The Case for Legal Control of “Liberation” Propaganda’, (1966) 31 Law and Contemporary Problems 553CrossRefGoogle Scholar.

45 ICCPR, Art. 20(2): ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’

46 ICERD, Art. 4(a): States ‘[s]hall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof’.

47 Larson, supra note 42, at 450. Art. 20(1) is also limited to incitement to international war rather than civilian strife. M. Nowak, UN Covenant on Civilian and Political Rights, CCPR Commentary (2005), 473 marginal 12.

48 Discriminatory acts and violence against a race or group of persons of another colour or ethnic origin may constitute in certain circumstances a crime of genocide or a crime against humanity. But neither discrimination or violence are international crimes per se.

49 ICERD, Art. 2 requires states to prohibit racial discrimination ‘by all appropriate means’. Arguably, if the Convention requires criminalization of incitement to a target conduct, it should be read as requiring criminalization of the target conduct itself.

50 Genocide Convention, 78 UNTS 277, Art. III(c). Genocide Convention Art. II defines genocide:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. (a)

    (a) Killing members of the group;

  2. (b)

    (b) Causing serious bodily or mental harm to members of the group;

  3. (c)

    (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

  4. (d)

    (d) Imposing measures intended to prevent births within the group;

  5. (e)

    (e) Forcibly transferring children of the group to another group.

51 Statute of the International Tribunal for the former Yugoslavia, adopted on 25 May 1993 by SC Res. 827(1993), Art. 3(3)(c); Statute of the International Criminal Tribunal for Rwanda (ICTR), adopted on 8 November 1994 by SC Res. 955 (1994), Art. 2(3)(c).

52 Statute of the International Criminal Court, A/CONF.183/9 adopted on 17 July 1998, entered into force 1 July 1992, Art. 25(3)(e).

53 A few other international instruments regulate individual responsibility for incitement. Two are of no relevance for present purposes, the 1988 Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 976 UNTS 105, Art. 3(1)(c)(iii), and the 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 396, Art. 101. For a third see infra note 153.

54 S/PV.5261: Russian Federation, at 4: ‘Any attempts to condone terrorism, to flirt with terrorists or to use them for different political purposes must be condemned unanimously. Those who advocate terrorism, propagate the ideologies of racism and ethnic or religious intolerance must be fought, using not only the power of the State but also engaging civil society, the mass media, cultural and humanitarian cooperation and interreligious dialogue’. Greece, at 5: ‘In this context, it should be stressed that actions to combat terrorism and the protection of human rights and fundamental freedoms are not mutually exclusive. We fully subscribe to the recent statement of the Secretary-General that “in the long term, we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism” (S/PV.4453, p. 3). Consequently, we welcome the adoption of a new SC Res. on the prohibition of the incitement to commit terrorist acts. We believe that this resolution should not affect established principles relating to freedom of expression and to non-refoulement.’ United States, at 6: ‘We have a solemn obligation to stop terrorism in its early stages.’ United Kingdom, at 9–10: ‘It will not be defeated until we unite not just in condemning the acts of terrorism, which we all do, but in fighting the poisonous propaganda that the root cause of this terrorism somehow lies with us around this table and not with them . . . The root cause, therefore, is not a decision on foreign policy, however contentious. It is a doctrine of fanaticism, and we must unite to uproot it by cooperating on security, as people have said; by taking action against those who incite, preach or teach this extremism, wherever they are in whichever country.’ France, at 14: ‘Today, in the spirit of the global strategy proposed by the Secretary-General, we must go further, with one principle – full respect for the rule of law – because the example set by democracies is our strongest asset in confronting terrorists.’ Denmark, at 15: ‘Freedom of speech and expression is the very foundation of any modern, democratic society, but that must never be an excuse for inciting terrorism and fostering hatred.’

55 See statement of the United States, supra note 54.

56 The National Commission on Terrorist Attacks upon the United States Report, 316 (22 July 2004), available at www.9–11commission.gov/report/911Report.pdf.

57 Hoffman, supra note 22, at 18–19.

58 SC Res. 1624(2005), preambular para. 3. Richard Posner distinguishes terrorism from ordinary crimes because it has the potential to create a national emergency. Posner, supra note 25, at 7.

59 Hoffman, supra note 22, at 96; Knight, C. and Murphy, M., ‘The Sources of Terrorism’, (2003) 28 International Security 192CrossRefGoogle Scholar, at 193.

60 Benesch, S., ‘Vile Crime or Inalienable Right: Defining Incitement to Genocide’, (2007–8) 48 Virginia Journal of International Law 485Google Scholar, at 498 and sources cited therein.

61 As one of the drafters of the Genocide Convention remarked, ‘[i]t was impossible that hundreds of thousands of people should commit so many crimes unless they had been incited to do so.’ A/C.6/SR.84 (20 Oct. 1948), cited in Benesch, supra note 60, at 499–500; Prosecutor v. Krstić, IT-98-33-T, Trial Judgement, 2 August 2001, para. 549.

62 E.g. the Streicher case, see text infra at note 155 seq. Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Appeal Judgement, 28 November 2007 (hereafter Nahimana), para. 978; Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgement, 2 September 1998, para. 551; M. Imbleau, ‘Radio-Télévision Libre de Milles Collines’, in D. Shelton (ed.) Encyclopedia of Genocide and Crimes against Humanity (2005); M. Imbleau, ‘Propaganda’, ibid. As Schabas put it, a potential ge'nocidaire should invest in radio transmitters and photocopying machines, rather than in machetes and poisonous gas. Schabas, W., ‘Hate Speech in Rwanda: the Road to Genocide’, (2000–1) 46 McGill Law Journal 141, 171Google Scholar; Laborde and DeFeo, supra note 7, at 1097.

63 Spataro, A., ‘Why Do People Become Terrorists? A Prosecutor's Experiences’, (2008) 6 Journal of International Criminal Justice 507CrossRefGoogle Scholar, at 509.

64 Gaudreault-DesBiens, J. F., ‘From Sisyphus's Dilemma to Sisyphus's Duty – A Meditation on the Regulation of Hate Propaganda in Relation to Hate Crimes and Genocide’, (2000–1) 46 McGill Law Journal 121Google Scholar, at 122.

65 ‘Uniting against Terrorism: Recommendations for a Global Counter-terrorism Strategy’ (hereafter uniting against Terrorism), UN Doc. A/60/825 (27 April 2006), paras. 22, 23.

66 E.g. the claims against Hamas that it is a terrorist organization which incites to genocide through its covenant and public statements. Prof. Irwin Cotler, quoted in H. Rettig Gur, ‘Law Professor: Hamas Is a War Crimes “Case Study”’, Jerusalem Post, 13 Jan 2009, available at www.jpost.com/servlet/Satellite?cid=1231866576202&pagename=JPArticle%2FShowFull.

67 Exceptions may nonetheless exist, such as the extermination of the population in Cambodia by the Khmer Rouge, if it is regarded as genocide.

68 Once a conflict can be identified between the ‘terrorist society’ and the rest of the citizenry, arguably the matter is no longer that of ‘terrorism’ but of a non-international armed conflict.

69 Oberschall, A., ‘Explaining Terrorism: The Contribution of Collective Action Theory’, (2004) 22 Sociological Theory 26CrossRefGoogle Scholar, at 28.

70 Crenshaw, M., ‘The Causes of Terrorism’, (1981) 13 Comparative Politics 379CrossRefGoogle Scholar, at 390. For an account of psychological aspects of terrorism see Victoroff, J., ‘The Mind of the Terrorist: A Review and Critique of Psychological Approaches’, (2005) 49 Journal of Conflict Resolution 3CrossRefGoogle Scholar.

71 S. Savage and J. Liht, ‘Radical Religious Speech: The Ingredients of a Binary World View’, in I. Hare and J. Weinstein (eds.), Extreme Speech and Democracy (2009), 488, 503–4; J. Burke, Al Qaeda – Casting a Shadow of Terror (2003), 247–8, quoted in Spataro, supra note 63, at 512.

72 Crenshaw, supra note 70, at 393.

73 Cf. Laborde and DeFeo, supra note 7, at 1097.

74 T. Choudhury, ‘The Terrorism Act 2006’, in I. Hare and J. Weinstein (eds.), Extreme Speech and Democracy (2009) 463, at 473–80.

75 Crenshaw, supra note 70, at 383.

76 supra note 59.

77 Cronin, supra note 20, at 52.

78 SC Res. 1624(2005), preambular para. 6, operative para. 4.

79 E.g. UDHR, Art. 19; ICCPR, Art. 19; European Convention on Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953, hereinafter ECHR), Art. 10.

80 J. S. Mill, On Liberty (1865).

81 For the classic presentation of the democracy argument in the American context see A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948).

82 T. Emerson, The System of Freedom of Expression (1970), 7.

83 Ibid., at 6.

84 T. M. Scanlon, ‘A Theory of Freedom of Expression’, in Scanlon, The Difficulty of Tolerance, Essays in Political Philosophy (2003), 15–21.

85 E.g. for an important critique of the Millian theory see F. Schauer, Free Speech: A Philosophical Enquiry (1982). See also W. Sadurski, Freedom of Speech and Its Limits (1999).

86 Mill, supra note 80, at 10.

87 Ibid., at 11.

88 Kretzmer, D., ‘Freedom of Speech and Racism’, (1986–7) 8 Cardozo Law Review 445Google Scholar, at 493.

89 E.g. Handyside v. UK, Series A no. 24 [1976], para. 49, communications Nos. 422–424/1990, Aduayom et al., UN Doc. CCPR/C/57/D/424/1990 (19 August 1996), para. 7.4.

90 Nowak, supra note 47, at 464–5 marginal 55, citing the definition of ordre public in the Strasbourg Declaration on the Right to Leave and Return, 26 November 1986, Art. 4(e).

91 Nowak, supra note 47, at 465 marginal 55.

92 M. Kremnitzer and K. Ghanayim, ‘Incitement, Not Sedition’, in D. Kretzmer and F. K. Hazan (eds.), Freedom of Speech and Incitement against Democracy (2000), 147, at 165.

93 Convention on Offences and Certain Other Acts Committed on Board Aircraft, supra note 1, Art. 2; Convention for the Suppression of Unlawful Seizure of Aircraft, supra note 1, Art. 3(3), (4); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, supra note 1, Art. 4(2); International Convention against the Taking of Hostages, 1316 UNTS 205, Art. 1(1); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, supra note 2, Art. 4; International Convention for the Suppression of Terrorist Bombings, supra note 2, Art. 3; International Convention for the Suppression of the Financing of Terrorism, supra note 3, Art. 3; International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the General Assembly of the United Nations on 13 April 2005, entered into force 7 July 2007, Art. 3.

94 Most of the states reporting under Resolution 1624(2005) declare that they already criminalize incitement to violence or incitement to offences in general. It is not clear, however, whether these criminal provisions concern incitement as an inchoate offence, as conceived in the resolution, or as a form of complicity. Second Report of the CTC, UN Doc. S/2008/29, paras. 5–6. The CTC notes, for example, that ‘As noted in the first report, many States indicate that they address the problem of incitement through widely recognized accessory offences such as aiding, abetting, participating and soliciting.’ State reports are available at www.un.org/sc/ctc/countryreports/Creports.shtml.

95 UN Doc. A/63/337.

96 CETS No. 196, adopted on 16 May 2005, in force from 1 June 2007.

97 The declared purpose of the 2005 Convention is ‘to enhance the efforts of states parties in preventing terrorism and its negative effects on the full enjoyment of human rights, through criminalization of certain conduct that can lead to the commission of terrorist offences’. Art. 2, Explanatory memorandum, para. 78.

98 infra note 103.

99 For a list see B. Saul, Defining Terrorism in International Law (2006), 144. At the time of writing, fourteen of the treaties are in force.

100 EU Council Decision 2008/919/JHA of 28 November 2008, amending Framework Decision 2002/475/JHA combating terrorism, Official Journal of the European Communities (OJ) L 330/21, 9 December 2008 (hereafter Framework Decision), Art. 3(2) of the 2002 Framework Decision as amended; Proposal for a Council Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism (presented by the Commission) {SEC(2007) 1424}{SEC(2007) 1425} explanatory memorandum, section 2; EU Council Conclusions 16325/1/08 REV 1 (Presse 344), at 38. States must report on the implementation of the Framework Decision by 9 December 2010, 2008 Framework Decision, Art. 3(2). Unlike the 2005 Convention, the Framework Decision is binding on all EU member states and only on them.

101 2002 Framework Decision as amended, Arts. 3(1)(a), 3(2). The Decision lists specific conduct defined as ‘terrorist acts’, Art. 1(1)(a)–(h). The term ‘provocation’ should be understood in this context as ‘incitement’, namely an independent, inchoate offence; cf. Art. 4(2) of the 2002 Framework Decision as amended, which concerns ‘aiding or abetting, inciting and attempting’, suggesting that in that context the term ‘inciting’ indicates a form of complicity such as instigation, rather than incitement as an inchoate offence.

102 supra note 50.

103 See conventions listed infra note 104. Other conventions not mentioned in the 2005 Convention's Appendix are the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed in Tokyo on 14 September 1963, entered into force 4 December 1969, and the Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed in Montreal on 1 March 1991, entered into force 21 June 1998, which do not establish criminal offences; Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, adopted in London on 14 October 2005; and the International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the General Assembly of the United Nations on 13 April 2005, entered into force 7 July 2007.

104 2005 Convention, Art. 1(1). The Appendix lists the following conventions (the article indicated contains the offence): Convention for the Suppression of Unlawful Seizure of Aircraft, signed in The Hague on 16 December 1970, 860 UNTS 105, Art. 1; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, concluded in Montreal on 23 September 1971, 974 UNTS 177, Art. 1; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, adopted in New York on 14 December 1973, 1035 UNTS 168, Art. 2; International Convention against the Taking of Hostages, adopted in New York on 17 December 1979, 1316 UNTS 205, Arts. 1, 2; Convention on the Physical Protection of Nuclear Material, adopted in Vienna on 3 March 1980, 1456 UNTS 124, Art. 7; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, done in Montreal on 24 February 1988; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done in Rome on 10 March 1988, 1678 UNTS 221, Art. 3; Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done in Rome on 10 March 1988, 1678 UNTS 3045, Art. 2; International Convention for the Suppression of Terrorist Bombings, adopted in New York on 15 December 1997, UN Doc A/52/49(1998), Art. 2; International Convention for the Suppression of the Financing of Terrorism, adopted in New York on 9 December 1999, UN Doc A/54/49 (vol. I) (1999), 39 ILM 270 (2000), Art. 2.

105 SC Res. 1566(2004), operative para. 3 (emphasis added).

106 Definition endorsed by UN Secretary-General Kofi Annan, keynote address to the closing plenary of the International Summit on Democracy, Terrorism and Security, Madrid, Spain, 10 March 2005, following the recommendation by the High Level Panel Report, para. 164; see also SC Res. 1368(2001), 1373(2001) and 1566(2004); Report of the Independent Fact Finding Committee on Gaza: ‘No Safe Place’, presented to the League of Arab States, 30 April 2009, paras. 417–418, available at www.filedropper.com/reportoftheindependentfactfindingcommitteeongaza30april2009final. On the crystallizing definition of terrorism see Cassese, A., ‘The Multifaceted Criminal Notion of Terrorism in International Law’, (2006) 4 Journal of International Criminal Justice 933CrossRefGoogle Scholar, at 937.

107 2002 Framework Decision, Art. 1(1).

108 See Prosecutor v. Akayesu, Judgment, Case No. ICTR-96–4-T, 2 September 1998 (hereafter Akayesu), para. 555, for an analysis of the term ‘incitement’ in common law and civil law systems.

109 SC Res. 1566(2004), preambular para. 12, operative para. 3.

110 SC Res. 1566(2004), preambular para. 4. Apologie is loosely defined as the praising of perpetration of a terrorist act.

111 UN Doc. A/63/337 (28 Aug. 2008); cf. para. 61 and para. 62.

112 2005 Convention, Art. 5(1) and (2). It further provides that each state party shall ensure that the establishment, implementation, and application of the criminalization of provocation and other terrorism-related offences are carried out while respecting human rights obligations, in particular the rights to freedom of expression, freedom of association, and freedom of religion, and other obligations under international law. 2005 Convention, Art. 12(1).

113 2005 Convention explanatory memorandum, paras. 95, 98. Cf. the jurisprudence of the ECtHR, which held that a criminal conviction for ‘hate speech and the glorification of violence’ was compatible with ECHR Art. 10, as was a message ‘that recourse to violence is a necessary and justified measure of self-defence in the face of the aggressor’. Sürek v. Turkey (No. 1) (Application no. 26682/95), Judgment, 8 July 1999, para. 62.

114 Human Rights Watch, World Report 2009 (2009), at 359. This was linked to the wide definition of ‘terrorist offence’ in the Framework Decision.

115 International Commission of Jurists, Briefing Paper: Amendment to the Framework Decision on Combating Terrorism – Provocation to Commit a Terrorist Offence (undated), at 5.

116 European Parliament legislative resolution of 23 September 2008 on the proposal for a Council Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism (COM(2007)0650 – C6–0466/2007 – 2007/0236(CNS)), Amendment 12.

117 Cf., with respect to genocide, N. Robinson, The Genocide Convention, A Commentary (1960), 67; Report of the ILC on the Work of its 48th Session, 6 May–29 July 1996, at 26–7, cited by W. A. Schabas, Genocide in International Law: The Crime of Crimes (2009), 329.

118 Assuming, for the sake of argument, that the criminal prohibition had been enforced and had an impact on individuals’ conduct.

119 The Trial Chamber relied on a statement by Poland during the drafting of the Genocide Convention that it was sufficient to play skilfully on mob psychology by casting suspicion on certain groups in order to create an atmosphere favourable to the perpetration of the crime. Akayesu, supra note 108, para. 557. This is a faulty example, which concerns not implicit but indirect incitement.

120 E.g. ‘to work’ instead of ‘to kill’; ‘inyenzi’ (‘cockroaches’ in Kinyarwanda) instead of ‘Tutsis’.

121 Akayesu, supra note 108, para. 558; Nahimana, supra note 62, paras. 700–701.

122 But see the critique of the ICTR's findings in Nahimana, Zahar, A., ‘The ICTR's “Media” Judgment and the Reinvention of Direct and Public Incitement to Commit Genocide’, (2005) 16 Criminal Law Forum 33CrossRefGoogle Scholar.

123 Cf. with respect to genocide, G. Werle, Principles of International Criminal Law (2005), 212 marginal 626.

124 SC Res. 837(1993) of 6 June 1993, preambular para. 10, operative para. 5; SC Res. 1040(1996) of 29 January 1996, operative para. 4; SC Res. 1049(1996) of 5 March 1996, preambular para. 5, operative paras. 3, 5; SC Res. 1161(1998) of 9 April 1998, operative para. 5; SC Res. 1296(2000) of 19 April 2000, operative para. 17; SC Res. 1565(2004) of 1 October 2004, operative para. 17; SC Res. 1572(2004) of 15 November 2004, preambular para. 5; SC Res. 1738(2006) of 23 December 2006, operative para. 4. In all these resolutions the Security Council referred expressly to ‘radio broadcasts’, ‘media broadcasts’, ‘incitement by radio stations’, and ‘use of the media’. SC Res. 1417(2002) of 14 June 2002, operative para. 5, refers to the events of 14 May 2002, when a group of soldiers took control of the Kisangani local radio station RTNC and aired declarations inciting the population to insurrection and murder on an ethnic basis, against Rwandans.

125 Robinson, supra note 117, at 67.

126 Iranian statement, cited in Schabas, supra note 117, at 322–3.

127 Schabas considers that the difference between incitement and instigation lies only in whether the genocide eventually took place, in which case instigation is the graver form of responsibility. Schabas, supra note 117, at 323.

128 Report of the ILC on the work of its 48th session, 6 May–29 July 1996, supra note 117, at 26–7.

129 ICCPR, Art. 17; ECHR, Art. 8; UDHR, Art. 12; Kretzmer, supra note 88, at 493.

130 Nowak suggests that even Art. 20 of the ICCPR, which does not require criminal proscription, should be interpreted as prohibiting only public speech. Nowak, supra note 47, at 475 marginal 15.

131 Cf. with respect to genocide, G. W. Mugwanya, The Crime of Genocide in International Law: Appraising the Contribution of the UN Tribunal for Rwanda (2007), at 208.

132 Akayesu, supra note 108, para. 556.

133 Ibid., para. 562; Prosecutor v. Nahimana, Trial Judgment, Case No. ICTR-99–52-T, 3 December 2003, para. 1013; F. Jessberger, ‘Incitement to Commit Genocide’, in A. Cassese (ed.), Oxford Companion to International Criminal Law (2009), 373, at 374. In both cases the ‘harm’ referred to was the possibility that an individual would engage in a genocidal act, rather than the destruction of a group or part of a group. Report of the ILC on the work of its 48th session, 6 May–29 July 1996, supra note 117, at 26–7.

134 Benesch, supra note 60, at 494–5, argues that there must be an implicit requirement of probability, otherwise it would be indicting a person for hate speech. This confuses the question of content with the question of probable causal link to the target offence. While content and probable harm may be linked (e.g. the wider the type of content that is suspect, the higher the danger of commission of the target offence that would be required to proscribe the speech), a probability test would not exclude the possibility that a person be indicted for hate speech. Conversely, it is possible to exclude hate speech from the prohibition regardless of whether there is a probability test. There are other circumstances surrounding an act of incitement to genocide which justify a factual presumption of risk, such as the actual existence of a genocidal campaign, and possibly the position of authority of the inciter. According to the view that only a state or quasi-state can perpetrate international crimes, the person advocating the genocide holds formal authority or is backed by state machinery and authority, thereby increasing the chances of the target conduct's materialization. For the role of the inciter in domestic offences of incitement to violence see Kremnitzer and Ghanayim, supra note 92, at 168–9.

135 For criticism to this effect of the 2005 Convention see E. Barendt, ‘Incitement to, and Glorification of, Terrorism’, in I. Hare and J. Weinstein (eds.), Extreme Speech and Democracy (2009), 445, at 459.

136 UN Doc. A/63/337, paras. 61, 62.

137 2005 Convention, Art. 5(1); 2002 Framework Decision as amended, Art. 3(1)(a).

138 2005 Convention, Explanatory Report, paras. 99–100.

139 For a discussion of this standard see Laborde and DeFeo, supra note 7, at 1097–8.

140 European Parliament legislative resolution of 23 September 2008 on the proposal for a Council Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism (COM(2007)0650 – C6-0466/2007 – 2007/0236(CNS)), Amendment 12.

141 International Commission of Jurists, supra note 115, at 6.

142 UN Doc. A/63/337, para. 61; 2005 Convention, Art. 5(1).

143 E.g. the International Convention for the Suppression of the Financing of Terrorism, supra note 3, Art. 1(b); International Convention for the Suppression of Terrorist Bombings, supra note 2, Art. 5.

144 I.e. to provoke another to commit genocide, and to destroy a protected group as such, in whole or in part. Akayesu, supra note 108, para. 560; Prosecutor v. Niyitegeka, Trial Judgement, Case No. ICTR-96–14-T, 16 May 2003, para. 431; Prosecutor v. Ruggiu, Trial Judgement, Case No. ICTR-97–32-I, 1 June 2000, para. 14; Prosecutor v. Kajelijeli, Trial Judgement, ICTR-98–44A-T, 1 December 2003, para. 854; O. Triffterer, ‘Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such’, (2001) 14 LJIL 399, at 403.

145 Prosecutor v. Nahimana, supra note 133, para. 1022: ‘[T]he accuracy of the statement is only one factor to be considered in the determination of whether a statement is intended to provoke rather than to educate those who receive it. The tone of the statement is as relevant to this determination as is its content . . . The Chamber also considers the context in which the statement is made to be important. A statement of ethnic generalization provoking resentment against members of that ethnicity would have a heightened impact in the context of a genocidal environment. It would be more likely to lead to violence. At the same time the environment would be an indicator that incitement to violence was the intent of the statement.’ This statement is an obiter dictum, since the Trial Chamber noted that the speech in question was not direct incitement (para. 1021), and was not, according to the appeal judgment, at the basis of the conviction (Appeal Judgement, para. 696).

146 Kremnitzer and Ghanayim, supra note 92, at 167.

147 Ibid., at 170.

148 Prosecutor v. Galić, Judgement, ICTY Case no. IT98–29-A, 30 November 2006, para 16. In the Special Court for Sierra Leone (SCSL), defendants Brima, Kamara and Kanu were convicted of terrorism as a war crime (Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case no. SCSL-04-16-T (20 June 2007) paras. 2113, 2117, 2121); Prosecutor v. Sesay, Kallon and Gbao (RUF Case), Case no. SCSL-04-15-T, disposition, paras. 18, 20, 39, 76); defendents Fofana and Kondewa were acquitted (Prosecutor v. Fofana and Kondewa (CDF Case), Case no. SCSL-04-14-A, para. 379). See also Cassese, supra note 106, at 943–5; Sassòli, M., ‘Terrorism and War’, (2006) 4 Journal of International Criminal Justice 959CrossRefGoogle Scholar.

149 Weigend, T., ‘The Universal Terrorist: The International Community Grappling with a Definition’, (2006) 4 Journal of International Criminal Justice 912CrossRefGoogle Scholar.

150 Cassese, supra note 106, at 948–50, 943–5.

151 C. Kress, ‘The Crime of Aggression before the First Review of the ICC Statute’, (2007) 20 LJIL 851.

152 G. Werle, ‘General Principles of International Criminal Law’, in Cassese, supra note 133, 54 at 60. Instigation of these crimes is punishable if the crimes themselves were eventually committed.

153 Schabas, supra note 117, at 325. A remnant of pre-ICC criminalization of crime against humanity remains in the International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 UNTS 243 (Apartheid Convention). The treaty remains in force even after the transition of South Africa to democracy. Art. II provides, ‘For the purpose of the present Convention, the term “the crime of apartheid”, which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman acts’, extending the reach of the Convention beyond the specific case of pre-1994 South Africa. This Convention establishes individual criminal responsibility for apartheid, including of persons who ‘directly incite or conspire in the commission’ of apartheid, as well as to those who ‘directly abet, encourage or cooperate’ in the commission of the crime, Art. III(a) and (b). It is not clear whether ‘incite’ in this context indicates an inchoate offence or ‘instigation’. The proximity of ‘incitement’ to ‘conspire’ may suggest the latter. In contrast, ‘encouragement’ may substitute for ‘incitement’ as used in this article. States also undertake to ‘suppress as well as to prevent any encouragement of the crime of apartheid’, Art. IV(a). Although the Convention envisaged the establishment of an international tribunal, the jurisdiction of the tribunal would not have extended to incitement or encouragement, Art. III. Bassiouni, M. Cherif and Derby, D. H., ‘Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments’, (1980–1) 9 Hofstra Law Review 523Google Scholar. No one has ever been prosecuted under the Convention. J. Dugard, ‘Introduction to the Convention on the Suppression and Punishment of the Crime of Apartheid’, http://untreaty.un.org/cod/avl/ha/cspca/cspca.html. Formally the Convention remains in force, but its provisions have been largely superseded by the ICC Statute, which incorporates apartheid as a crime against humanity, ICC Statute, Art. 7(1)(j); Apartheid Convention, Art. 1(1).

154 J. Nilsson, ‘Crimes against Humanity’, in Cassese, supra note 133, 284 at 287.

155 In connection with war crimes.

156 France and others v. Göring and others, Judgment and Sentence, (1946) 22 IMT 203, para. 540.

157 Akayesu, supra note 108, para. 550; Ruggiu, supra note 144, para. 19; Nahimana, supra note 133, para. 981; Schabas, supra note 117, at 333; Timmermann, W. K., ‘Incitement in International Criminal Law’, (2006) 88 International Review of the Red Cross 823CrossRefGoogle Scholar, at 827.

158 The IMT notes that Streicher continued his propaganda ‘[w]ith knowledge of the extermination of the Jews in the Occupied Eastern Territory’, para. 538. It is not clear whether this finding was necessary for finding Streicher guilty.

159 Prosecutor v. Tadić, Trial Judgement, Case No. IT-94-1, 14 July 1997, para. 697.

160 Prosecutor v. Kuperškić, Trial Judgement, Case No. IT-95-16-T, 14 January 2000, para. 621.

161 Ruggiu, supra note 144, para. 24.

162 Ibid., para. 22.

163 The reference to the Belgians is unclear. Since Ruggiu was convicted on the basis of a guilty plea, the matter was not elaborated any further.

164 Kordić and Čerkez, Trial Judgement, Case No. IT-95-14/2, 26 February 2001, para. 209.

165 Nahimana, supra note 62, para. 996. Judge Meron dissented on this issue, paras 1–8, for the reasons enumerated in Kordić and Čerkez.

166 Nahimana, supra note 62, para. 987. In the circumstances it found that the hate speech amounted to incitement to genocide, paras. 995–6.

167 Prosecutor v. Bikindi, Trial Judgement, Case No. ICTR-2001-72-T, 2 December 2008, para. 392, obiter dictum. Bikindi was acquitted of this charge because his individual responsibility for the broadcast had not been proven.

168 ‘Uniting against Terrorism’, supra note 65.

169 Leaving aside whether the right to self-determination takes precedence over the prohibition on resort to force, national liberation movements do not necessarily advocate national hatred.

170 E.g., in Bikindi, supra note 167, the Trial Chamber found that the defendant's songs were composed with the intention to encourage ethnic hatred, para. 436 (but not to incite to genocide) and were in fact used to this effect. The Trial Chamber assumed that the underlying act of persecution attributed to Bikindi was ‘aiding and abetting the persecution of the Tutsi through the dissemination of his songs’ (para. 433). Had it been proved that Bikindi had broadcast the songs himself, Bikindi might have been found guilty of persecution through aiding and abetting the persecution of Tutsi by others. In other words, the dissemination of songs might not itself have constituted an act of persecution, but only a conduct that aided and abetted different conduct that did constitute persecution (presumably murder).

171 Office for Democratic Institutions and Human Rights, Final Report from the Expert Meeting on Security, Radicalization and the Prevention of Terrorism, 28–29 July 2008, Istanbul, para. 2.