The Regulation On Incitement in International Law

Electronic copy available at: http://ssrn.
com/abstract=1992987
Unedited Version
Published as The Regulation of Incitement to Terrorism in International Law, In: Hennebel, L. & Tigroudja, H. (Eds.), Balancing Liberty
and Security: The Human Rights Pendulum, pp. 221-240. Nijmegen: Wolf Legal Publishers

The Regulation of Incitement to Terrorism in International Law

Dr. Eric De Brabandere
Associate Professor of International Law
Grotius Centre for International Legal Studies
Leiden University

Introduction

Propaganda has since long been a subject of international regulation, but it has regained
importance recently, especially in its relation with incitement to violenceparticularly
incitement to commit genocide and, more recently, incitement to terrorism. Although some
cases of terrorist propaganda and incitement to terrorism could fall under the international
prohibition of incitement to (racial) discrimination, incitement to terrorism has been the
subject of specific international regulation as a measure to prevent terrorist attacks. Several
instruments are specifically directed at prohibiting terrorist propaganda through the
prohibition of direct and/or indirect incitement to terrorism: Security Council Resolution
1373 (2001), the European Union Council Framework Decision of 13 June 2002 on
combating terrorism, the Council of Europe Convention on the Prevention of Terrorism of
2005, and Security Council Resolution 1624 (2005).
At the same time, the question needs to be raised whether Security Council action is
the best medium to regulate complex issues such as incitement to terrorism. In the course of
this chapter, we will indeed see that many areas remain especially in relation to the contours
and legality of the criminalization of incitement to terrorism. The only instrument that has so
far proposed a relatively complete framework to address the issue has been the Council of
Europe Convention on the Prevention of Terrorism, since the used instrumentan
international treatyby necessary implication offers more possibilities for detail and
specifications than a Security Council resolution. On the other hand, the adoption of a
Security Council resolution guarantees a quasi- universal approach.
Recent attempts to regulate incitement to terrorism evidently infringe on the freedom
of expression, and to a lesser extent, the freedom of information. Both freedoms are well-
established human rights, but these freedoms are of course not absolute, and are subject to
exceptions according to international law. In the Explanatory Report of the Council of Europe
Convention on the Prevention of Terrorism, for example, one can read that the drafters were
conscious that such regulations might impinge on the freedom of expression, but they were of
the opinion that such a restriction was a proportional and authorized exception to these
human rights provisions.
As such, the notions of propaganda and incitement are relatively vague from an
international law perspective. Various meanings have been attributed to these terms, but no
exact and widely accepted definition of the notion cur rently exists in international law. This,
of course, forms one of the essential problems in attempts to regulate such speech. Can, for
example, apologie of terrorism also be considered incitement, or should such regulation only
aim to prohibit direct incitement to terrorism? Equally, does incitement to commit a crime
necessarily have to be followed by the actual commission of that crime, or is unsuccessful
incitement to terrorism also prohibited?
I will start with an overview of the early efforts to regulate different forms of
propaganda in international law and international relations, such as discriminatory
propaganda, incitement to discrimination, incitement to genocide, and other international
crimes (Section 1). Reference to and discussion of the international regulation of these forms
of propaganda will prove useful in assessing the current discussion as to the (limits to)
Electronic copy available at: http://ssrn.com/abstract=1992987
Unedited Version

regulation of incitement to terrorism.
1
I will then assess the relation between propaganda and
the freedom of expression (Section 2). In view of these findings, I will then examine the
existing international rules on incitement to terrorism, and tackle the problem associated with
such regulations by referring to other already established rules on propaganda in international
law (Section 3). I will finish with a section on the current status in international law of the
criminalization of indirect incitement to terrorism and glorification or apologie of terrorism
(Section 4).

1. Propaganda in International Law

Early attempts
2
to control propaganda were mainly aimed at regulating classical types of
inter-state propaganda, as derived from the sovereign equality of tates, the prohibition on the
threat of the use of force, and the obligation for states not to intervene in the internal affairs
of other States.
3
The focus thus principally on prohibiting propaganda for war;
4
subversive
propaganda aimed at destabilizing State institutions by influencing nationals of another State
towards insurrection, revolt, or civil strife;
5
and on defamatory propaganda directed against
foreign States and their officials.
6

Since then, and although the mentioned traditional forms of propaganda are still
extremely relevant,
7
international attention has principally focused on other forms of

1
The regulation of propaganda for war, defamatory propaganda against foreign States and their
officials, or subversive propaganda will not be dealt with in this chapter, since these types of
propaganda are essentially an application of the duty for States to respect the independence and
sovereign equality of other States and to abstain from interfering in their internal affairs. They are thus
to be distinguished from the other forms of propaganda, the aim of which is to regulate and prohibit
incitement to violence or discrimination, in particular incitement to commit (international) crimes. See
on these forms or propaganda, E. De Brabandere, Propaganda, in R. Wolfrum (ed.), Max Planck
Encyclopedia of Public International Law (2010).
2
See generally, E.A. Downey, A Historical Survey of the International Regulation of Propaganda, 5
MICHIGAN YBK INTL LEGAL STUDIES 341 (1984).
3
See, M. Jamnejad and M. Wood, The Principle of Non-Intervention, 22 LEIDEN JOURNAL OF
INTERNATIONAL LAW 345 (2009).
4
See, M. Kearney, The Prohibition of Propaganda for War in International Law (2007).
5
M.R. Garcia-Mora, International Responsibility for Subversive Activities and Hostile Propaganda
by private Persons against Foreign States, 35 INDIANA L.J. 306 (19591960).
6
See, D. Goldberg Transnational Communication and Defamatory Speech: A Case for Establishing
Norms for the Twenty-First Century, 50 NEW YORK LAW SCHOOL L.REV. 145 (20052006); L.
MacNamara, Reputation and Defamation (2007) and D. Milo, Defamation and Freedom of Speech
(2008). See also Art. 29 of the Vienna Convention on Diplomatic Relations (1961); which contains
the duty for the receiving State to treat diplomatic agents with due respect and (to) take all
appropriate steps to prevent any attack on his person, freedom or dignity. The International Court of
Justice considers that this provision reflects a rule of customary law that, besides its application to
diplomatic agents, is necessarily applicable to Heads of State, and in effect translates into positive
obligations for the receiving State as regards the action of its own authorities, and into obligations of
prevention as regards possible acts by individuals. (International Court of Justice, Case Concerning
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (Jurisdiction and
Merits) (ICJ, 4 June 2008) http://www.icj-
cij.org/docket/index.php?p1=3&p2=3&code=djf&case=136&k=93, para. 174 (last visited 16 October
2009).
7
See the recent cases: Court of Appeal (United Kingdom), Aziz v. Aziz and Others, HM The Sultan of
Brunei intervening [2007] EWCA Civ 712 (Court of Appeal) (United Kingdom), and International
Court of Justice, Case Concerning Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v. France), Judgment of 4 June 2008, available at http://www.icj-
Unedited Version

communications, mainly those directed against individuals in their personal capacity. Such
propaganda can be grouped into different categories: discriminatory propaganda, also
referred to as hate propaganda or hate speech (Section 1.1); incitement to violence; and
incitement to genocide (Section 1.2).

1.1 Discriminatory Propaganda and Hate Propaganda

The prohibition of discriminatory propaganda was first raised at the Nuremberg Trials,
involving major German war criminals. The two trials in effect concerned incitement to
genocide, although they were framed not in these terms but rather in terms of incitement to
discrimination, violence, and murder in general. Although the charges were in both trials
described as crimes against humanity, they in fact boiled down to incitement to genocide. The
first trial concerned Julius Streicher, the editor of a weekly newspaper called Der Strmer, in
which he advocated the destruction of the Jewish people. The second trial concerned the head
of the Radio Division of the Ministry of Propaganda, Hans Fritzsche. In the words of the
Tribunal, the former was found guilty of incitement to murder and extermination, which in
the Tribunals view constituted a crime against humanity. Fritzsche was, on the contrary,
acquitted as the anti-Semitism propaganda did not in the Tribunals view urge persecution or
extermination of Jews. Since then, discriminatory propaganda and incitement to
discrimination have been objects of specific regulation.
Discriminatory propaganda is a relatively broad term that mainly targets racial and
religious discrimination. A general prohibition of discriminatory propaganda is contained in
the International Covenant on Civil and Political Rights (ICCPR).
8
Article 19 of the ICCPR,
which contains the general rule on the freedom of expression, is complemented and restricted
by Article 20(2), which provides that any advocacy of national, racial, or religious hatred
that constitutes incitement to discrimination, hostility, or violence shall be prohibited by
law. Article 20 of the ICCPR has been seen as reflecting a rule of customary international
law.
9
A similar prohibition is contained in Article 4 of the International Convention on the
Elimination of All Forms of Racial Discrimination, which, after condemning all propaganda
[] which attempt to justify or promote racial hatred and discrimination in any form asks
States Parties to 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 color or ethnic
origin. The UN Security Council has similarly emphasized the need to stop propaganda
aimed at spreading hate and fear. Security Council Resolution 1161 (1998) on the situation
Rwanda for example, urged all States and relevant organizations to cooperate in countering
radio broadcasts and publications that incite acts of genocide, hatred and violence in the
region.

cij.org/docket/files/136/14550.pdf (last visited 20 May 2010). See generally for an updated account of
the regulation of propaganda: E. De Brabandere, Propaganda, supra note 1.
8
International Covenant on Civil and Political Rights (19 December 1966), 999 UNTS 17 [hereafter
ICCPR].
9
See ICTR Appeals Chamber, Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The
Prosecutor, Case No. ICTR-99-52-A, Judgment, (28 November 2007), paras. 972988. See, however,
the partly dissenting opinion of Judge Meron, in which he states that Since a consensus among states
has not crystallized, there is clearly no norm under customary international law criminalizing mere
hate speech (Partly Dissenting Opinion of Judge Meron, p. 376, para. 5, own emphasis). See also the
judgment of the ICTY in Kordic, which concluded that the criminal prohibition of hate speech has not
attained the status of customary international law (Prosecutor v. Kordic & Cerkez, Case No. IT-95-
14/2-T, Judgment, 26 February 2001, para. 209, own emphasis).
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1.2 I ncitement to Genocide

It should first be emphasized that only incitement to genocide has been criminalized as a
separate international crime, while this has not been the case for other international crimes
such as crimes against humanity. Note, however, that the International Law Commission
(ILC) in its 1996 Draft Code of Crimes against the Peace and Security of Mankind had
included a general provision criminalizing direct and public incitement to commit all crimes
listed in the articles, which included genocide, crimes against humanity, crimes against
United Nations and associated personnel, and war crimes.
10

The revival of international awareness on the necessity to bring to halt
communications inciting genocide was in particular the consequence of the use of media
propaganda in the Rwandan genocide, inter alia through the now infamous Radio Tlvision
Libre des Milles Collines. In theory, and under certain circumstances, incitement to genocide
can also be covered by the general prohibition on discriminatory or hate propaganda.
11

However, in view of the severity of the crime of genocide, it has already been decided at the
adoption of the Genocide Convention to specifically criminalize incitement to genocide. The
Genocide Convention unambiguously criminalizes direct and public incitement to commit
genocide.
12
The same article condemns complicity in genocide, which can also be seen to
cover incitement to genocide. Certain forms of complicity, such as soliciting and inducing,
can indeed easily cover incitement.
13
In those cases, however, contrary to the specific and
separate crime of incitement to genocide, the crime of genocide has to be actually committed,
since these are modes of responsibility rather than separate international crimes.
Incitement to genocide was also included in the Rome Statute establishing the
International Criminal Court. The Statute provides that a person shall be criminally
responsible and liable for punishment for a crime within the jurisdiction of the Court if that
person [] directly and publicly incites others to commit genocide.
14
The decision to
criminalize incitement to genocide can be explained by both the severity of the crime of
genocide and the generally preventive, rather than reactive, rationale of the Genocide
Convention.
The conditions for certain speech to fall under the prohibition of incitement to
genocide are by far stricter than hate speech in general. The necessity of a causal link
between discriminatory propaganda and the actual commission of the international crime
remains disputed today.
15
Some doubts indeed remain as to the relation between the
inflammatory communications and the actual commission of the international crime, and

10
Article 2 (f) io articles 17, 18, 19, and 20, International Law Commission, Draft Code of Crimes
against the Peace and Security of Mankind, Yearbook of the International Law Commission (1996),
vol. II (Part Two).
11
W.K. Timmermann The Relationship between Hate Propaganda and Incitement to Genocide: A
New Trend in International Law Towards Criminalization of Hate Propaganda?, 18 LEIDEN J. INTL
LAW (2005) 257.
12
Art. III (c), Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by
U.N. General Assembly Resolution 260 (III) A (9 December 1948) (entered into force on 12 January
1951).
13
K. Ambos, Article 25, in O. Triffterer, Commentary on the Rome Statute of the International
Criminal Court 760 (2008).
14
Art. 25(3)(e) of the Statute of the InternationalCriminal Court.
15
See generally, S. Benesh, Vile Crime or Inalienable Right: Defining Incitement to Genocide, 48(3)
VA J. INTL. L. 485 (2008).
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whether incitement can only be punishable if the propaganda is followed by the actual
commission of the crime.
Both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR) have convicted several individuals for
incitement to commit genocide. In its Akayesu judgment, the ICTR confirmed that incitement
to commit genocide is punishable as such, irrelevant of whether such propaganda is followed
by the actual commission of genocide.
16
In its Nahimana judgment, also called the Media
case, the Appeals Chamber of ICTR analyzed incitement to genocide in relation to Radio
Tlvision Libre des Milles Collines broadcasts and writings published in Kangura before and
during the Rwandan genocide. The ICTR Appeals Chamber confirmed that the crime of
incitement to genocide exists as a separate crime, punishable by itself, even if no act of
genocide has resulted from the act(s) of incitement, if the author had the intent to directly and
publicly incite others to commit genocide.
17

In the same case, the ICTR Appeals Chamber insisted on the difference between
incitement to commit genocide and other forms of discriminatory or hate propaganda. The
Appeals Chamber clarified that hate speech or discriminatory propaganda is punishable as
incitement to commit genocide only in case of direct and public incitement to commit the
crime.
18
Of course, one should keep in mind that, in the absence of the effective commission
of genocide, it may be difficult to prove that the contested speech actually constituted a direct
incitement. However, this particular problem did not present itself to the ICTR. We will see
that similar questions have risen in the regulation of incitement to terrorism and apologie of
terrorism.

2. Propaganda, Freedom of Expression, and Freedom of Information

Tensions are likely to appear between the regulation of incitement to terrorism and the
freedoms of expression and information.
19
Article 19 of the Universal Declaration of Human
Rights declares that Everyone has the right to freedom of opinion and expression; this right
includes the freedom to hold opinions without interference and to seek, receive, and impart
information and ideas through any media and regardless of frontiers. A similar provision
was enshrined in Article 19 of the ICCPR mentioned earlier, and in various regional human
rights treaties. The importance of the freedom of expression has at several occasions been
confirmed by international courts and tribunals.
20

We already noted earlier that Article 19 of the ICCPR authorizes restrictions to the
freedom of information, on the condition that these restrictions are both provided by law and
necessary for the respect of the rights or reputations of others and for the protection of

16
ICTR, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T (2 September 1998), para.
561.
17
ICTR Appeals Chamber, Ferdinand Nahimana, see supra note 9, at paras. 677678.
18
Ibid., para. 692.
19
See, M. Eppenstein and E.J. Aisenberg, Radio Propaganda in the Contexts of International
Regulation and the Free Flow of Information as a Human Right, 5 BROOKLYN J. INTL L. (1979) 154.
20
See, e.g., European Court of Human Rights, United Communist Party of Turkey v. Turkey, 30
January 1998, 1998 ECHR 1, paras. 25 and 43, political parties are a form of association essential to
the proper functioning of democracy, and political parties make an irreplaceable contribution to
political debate, which is at the very core of the concept of a democratic society. See also European
Court of Human Rights, Socialist Party and others v Turkey, 25 May 1998, 1998 ECHR 45, para. 43:
[t]he protection of opinions and the freedom to express them [] applies all the more in relation to
political parties in view of their essential role in ensuring pluralism and the proper functioning of
democracy. [] Their activities form part of a collective exercise of freedom of expression.
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national security or of public order, or of public health or morals. Under the European Court
of Human Rights, freedom of expression can be restricted when it is necessary in a
democratic society, in the interests of national security, territorial integrity or public safety,
for the prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others.
21
The broadly worded exceptions contained
in the international human rights instruments have been at the centre of the confrontation
between the freedom of information and the right of a State to protect its internal security and
public order. Especially during the Cold War, Western States were generally inclined to
maximize the rights of individuals to have access to information emanating from a foreign
State, while Communist States were generally reluctant to accept an absolute freedom of
information, while advocating the necessity to maintain their national cultural and social
systems. Even so, it is now beyond doubt that both the freedom of expression and the
freedom of information are not absolute, as they are subject to the exceptions provided for in
international human rights instruments.
22

The European Court of Human Rights has on several occasions emphasized that the
freedom of information is applicable only to information or ideas that are favourably
received or regarded as inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb the State or any sector of the population.
23
The Inter-American
Court of Human Rights,
24
the Human Rights Committee,
25
and the African Commission on
Human and Peoples Rights
26
have also highlighted the importance of the freedom of
expression for all information and ideas, and have accepted the non-absolute character of the
right. The European Court of Human Rights has accepted that restrictions to these rights are
permissible under the general derogations provided for in the main human rights instruments.
The Inter-American Court has also noted that restrictions must not only be previously
established by law, but that they must also be intended to ensure the rights or reputation of
others or to protect national security, public order, or public health or morals; and
necessary in a democratic society.
27

3. The Prohibition of Direct Incitement to Terrorism in International Law

The regulation of terrorist propaganda has received much attention in the past years, and has
been the object of both international and regional regulation.
28
Although early efforts to

21
Art. 10, para. 2.
22
See J. M. Kamatali, Freedom of Expression and Its Limitations: The Case of the Rwandan
Genocide, 38 STANFORD J. INTL L. 57 (2002).
23
See, e.g., European Court of Human Rights, Handyside v. United Kingdom, [1976] ECHR 5 para.
49; European Court of Human Rights, Lingens v. Austria, [1986 ] ECHR, Series A no. 103, para. 41;
European Court of Human Rights, Socialist Party and others v. Turkey, ECHR (1998-III, paragraph
41; European Court of Human Rights, Incal v. Turkey, ECHR (1998) Reports 1998-IV, paragraph 46;
European Court of Human Rights, Jerusalem v. Austria, ECHR 2001-II, paragraph 36.
24
Inter-American Court of Human Rights, Case of Herrera-Ulloa v. Costa Rica, Judgment of 2 July
2004, Series C No. 107, para. 113 and para. 126 (citing the European Court of Human Rights
Judgment in Castells v. Spain, which reiterates the Courts position with respect to freedom of
expression as noted in Handyside).
25
Human Rights Committee, Aduayom et al. v. Togo (422/1990, 423/1990 and 424/1990), report of
July 12, 1996, para. 7.4.
26
African Commission on Human and Peoples' Rights, Media Rights Agenda and Constitutional
Rights Project v. Nigeria, Communication Nos. 105/93, 128/94, 130/94 and 152/96, Decision of 31
October, 1998, para 54.
27
Inter-American Court of Human Rights, Herrera-Ulloa, see supra note 24, at para. 120.
28
I. Cram, Terror and the War on Dissent: Freedom of Expression in the Age of Al-Qaeda (2009).
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combat terrorism have initially focused on the criminalization of terrorism and terrorist acts
as such, and the financing and planning of these, several initiatives have been taken in the
past years to prevent terrorist acts by inter alia criminalizing incitement to terrorism and
recruitment. Several relatively recent instruments are specifically directed atprohibiting
terrorist propaganda through the prohibition of direct and/or indirect incitement to
terrorism.
29
I will first discuss the various international instruments aimed at regulating
incitement to terrorism (Section 3.1). This discussion will focus on Security Council action
(Section 3.1.1) and the regional initiatives taken by inter alia the Council of Europe and the
European Union (Section 3.1.2). Finally, I will analyze whether incitement to terrorism,
similar to the current regulation of incitement to genocide, is considered an inchoate crime
(Section 3.2).

3.1 Multilateral Regulation of I ncitement to Terrorism

3.1.1 Security Council Action

In its Resolution 51/210 of 17 December 1996, the General Assembly has already referred to
incitement to terrorism as part of international efforts to combat terrorism. The Assembly
declared that knowingly financing, planning and inciting terrorist acts are also contrary to
the purposes and principles of the United Nations, 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.
30
The
Security Council, in its Resolution 1373 (2001), also noted that knowingly financing,
planning, and inciting terrorist acts was contrary to the purposes and principles of the UN
Charter (para. 5). Unfortunately, neither the records of the Security Council meeting during
which the resolution was adopted,
31
nor the press release following the adoption of the
resolution,
32
contain any relevant information or explanation as to the (legal) basis for the
prohibition of incitement to terrorism, in addition to the prohibition of financing and
planning.
It was in September 2005, a few months after the terrorist attacks in the London
subway, that the Security Council adopted Resolution 1624,
33
calling upon all Member States
to adopt legislation that prohibits incitement to commit a terrorist act or acts.
34
At the
adoption of Resolution 1624, the Danish Prime Minister declared that 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.
35
The Russian President declared
that incitement to terrorism [] must be qualified as criminal by all States, without
exception.
36
The Resolution was not adopted under Chapter VII of the UN Charter, nor does
the use of the term calls upon imply a clear obligation for member states. However, since
States are also requested under the Resolution to report to the Counter-Terrorism Committee
on the steps taken to implement this resolution, the resolution in effect resembles a mandatory
measure. The UN Secretary-General confirmed in his report Uniting against terrorism that

29
For an analysis of the need to regulate incitement to terrorism, see, Y. Ronen, Incitement to
Terrorist Acts and International Law, 23 LEIDEN JOURNAL OF INTERNATIONAL LAW 645 (2010).
30
Paras. 2 and 5, UN GA Res. 51/210, UN Doc. Nr. A/RES/51/210 (17 December 1996).
31
SC Meeting Records, 4385th meeting Friday, UN Doc. /PV.4385 (28 September 2001).
32
SC Press Release, UN Doc. SC/7158 (28 September 2001).
33
UNSC Res. 1624 (2005), 14 September 2005.
34
Ibid., para. 1.
35
SC Meeting Record, 5261st meeting, UN Doc. S/PV.5261 (14 September 2005) , p. 15.
36
Ibid., 4.
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Resolution 1624 (2005) provides a legal basis for the criminalization of incitement to
terrorism including recruitment.
37
There is no reference, however, as to a legal obligation to
criminalize incitement to terrorism.
Resolution 1624 (2005) does not contain a definition of incitement to terrorism. The
absence, or at least vagueness or non- universal acceptance, of an international definition of
incitement to terrorism and terrorism, can, however, be problematic in view of the
principle of specificity as part of the customary rule of nullum crimen sine lege.
38
The
absence of a definition in the Resolution of the Security Council also raises the question as to
whether the Security Council resolution is the best international instrument to function as a
legal basis for the criminalization of incitement to terrorism. Since the resolution has not been
complemented by specifications as to the exact scope and meaning of the criminalization of
incitement to terrorism, several issues have remained unclear and are thus the subject of
controversy. Ideally, an international treaty would offer more possibilities for detail and
specifications. However, any attempt to negotiate such a treaty would be faced with divergent
interpretations of both the notion of terrorism and incitement to terrorism, and are thus likely
to fail for that reason only.
A general definition of direct incitement in relation to international crimes was
given in the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind. The
ILC noted that direct incitement required specifically urging another individual to take
immediate criminal action rather than merely making a vague or indirect suggestion.
39
A
definition of incitement to terrorism is contained in the 2008 report of the UN Secretary-
General, entitled The protection of human rights and fundamental freedoms while
countering terrorism,
40
which aims at providing guidelines for states to implement
Resolution 1624 (2005). The Secretary-General defined incitement to terrorism as follows:
[i]ncitement can be understood as a direct call to engage in terrorism, with the intention that
this will promote terrorism, and in a context in which the call is directly causally responsible
for increasing the actual likelihood of a terrorist act occurring.
41
The Secretary-Generals
definition has since then been adopted by the UN Special Rapporteur on Freedom of Opinion
and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special
Rapporteur on Freedom of Expression.
42

The Secretary-General also explained that States are only allowed to prosecute direct
incitement to terrorism; that is, speech that directly encourages the commission of a crime, is
intended to result in criminal action and is likely to result in criminal action.
43
According to
the Secretary-Generals report, there thus needs to be three elements in order to categorize

37
Report of the Secretary-General, Uniting against terrorism: recommendations for a global counter-
terrorism strategy, UN Doc. A/60/825 (27 April 2006), para. 61.
38
See S. Lamb, Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law, in A.
Cassese, P. Gaeta & J. Jones (eds) The Rome Statute of the International Criminal Court: A
Commentary 735 et s. (2002).
39
International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind
with commentaries, Yearbook of the International Law Commission, 1996, vol. II (Part Two), pp. 17
et s., p. 22.
40
Report of the Secretary-General, The protection of human rights and fundamental freedoms while
countering terrorism, UN Doc. A/63/337 (28 August 2008).
41
Ibid., para. 61.
42
International Mechanisms for Promoting Freedom of Expression, Joint Declaration by the UN
Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of
the Media and the OAS Special Rapporteur on Freedom of Expression (28 December 2005), available
at http://www.osce.org/documents/rfm/2005/10/26809_en.pdf (last visited 20 May 2010).
43
Report of the Secretary-General, The protection, see supra note 40, at para. 62.
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speech as incitement to terrorism: direct encouragement to commit a terrorist act, intent, and
finally the likelihood of the effective commission of the act. The Secretary-General
differentiated equally clearly incitement to terrorism from apologie of terrorism, as will be
pointed out in the next section. Although the report from the Secretary-General by itself does
not constitute an internationally binding document or a binding interpretation of relevant
Security Council resolutions, one should consider the report, as intended by the Secretary-
General, to be a guideline for states in implementing the resolutions of the Security Council.
In accordance with Resolutions 1373 (2001) and 1624 (2005), the Security Councils
Counter-Terrorism Committee reports on the implementation of the resolutions by the
Member States. These reports contain more information as to how UN Member States have
carried out their obligation to prohibit incitement to commit a terrorist act. The 2006 report
notes that most states have criminalized such behavior, and have done so whether or not the
act had in effect been attempted or committed.
44
Only five out of the 69 reporting states,
however, explicitly reported that the criminalization of incitement to terrorism encompassed
statements that indirectly incite terrorism, such as justification or glorification (apologie) of
terrorism. Six other states expressly noted that their penal laws contain a general prohibition
of public approval or glorification of serious crimes that could thus be applied to terrorist
acts.
45
Most states reported that their penal laws contain general prohibitions of inchoate
offences, such as aiding, abetting, participating, soliciting, and so forth, which are applicable
to crimes generally. Such provisions, without however explicitly mentioning incitement to
commit a terrorist offence in particular, would according to these States include terrorist
acts.
46

The 2008 Report of the Counter-Terrorism Committee clearly confirms that states still
disagree widely on the exact meaning and thus the scope of the prohibition of incitement to
terrorism.
47
This is, of course, due to the general and thus unclear provisions of international
instruments to that effect. The relevant Security Council Resolutions only contain provisions
asking States to criminalize incitement to terrorism, without offering any details as to the
exact nature of the behavior to be criminalized. Although the 2008 Report of the UN
Secretary-General on The protection of human rights and fundamental freedoms while
countering terrorism was adopted in order to provide guidelines for states in implementing
the relevant Security Council Resolutions, it is uncertain whether the Secretary-Generals
restrictive approach to incitement to terrorism corresponds to the objective of the Security
Council and practice. European initiatives, for example, have clearly departed from the
Secretary-Generals perspective.

3.1.2 European Initiatives

At the level of the European Union, the Council of the European Union, after the approval of
Security Council Resolution 1373 (2001), adopted a Common Position
48
that aims at
implementing several provisions of Resolution 1373. However, the Common Position makes
no direct reference to incitement to commit terrorist acts, and focuses rather on the financing

44
United Nations Security Council, Report of the Counter-Terrorism Committee to the Security
Council on the implementation of resolution 1624 (2005), UN Doc. S/2006/737 (15 September 2006),
para. 7.
45
Ibid., para. 11.
46
Ibid., para. 13.
47
Ibid., para. 7.
48
Consideration 3, Council of the European Union, Common Position of 27 December 2001 on
Combating Terrorism, Doc. Nr. 2001/930/CFSP, OJ L 344, 28 December 2001, p. 90.
Unedited Version

of terrorism and the provision of safe havens for terrorists.
49
The Common Position does
indirectly address the prevention of terrorist acts by proposing to take measures to suppress
any form of support, active or passive, to entities or persons involved in terrorist acts,
including measures aimed at suppressing the recruitment of members of terrorist groups and
eliminating the supply of weapons to terrorists.
50

The adoption of the Common Position was followed by the adoption of the Council
Framework Decision of 13 June 2002 on combating terrorism, which includes a reference to
incitement to terrorism.
51
The 2002 Council Framework Decision requests MemberStates to
take the necessary measures to ensure that inciting or aiding or abetting a terrorist offence is
made punishable. However, the Framework Decision contains no definition of these
notions.
52

One of the first comprehensive attempts to regulate incitement to terrorism is the
Convention on the Prevention of Terrorism adopted in 2005
53
adopted under the auspices of
the Council of Europe. The Convention inter alia requests all states to criminalize under their
national laws provocation to commit a terrorist offence,
54
and contains a clear description
of incitement to terrorism. The convention rather broadly, at least as compared to the 2008
Report of the UN Secretary-General, defines incitement to terrorism as the distribution, or
otherwise 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.
55
It is
interesting to point out here that the use of the words whether or not directly advocating
terrorist offences clearly is intended to cover not only direct incitement but also indirect
incitement, such as glorification or apologie of terrorism. The Council of Europe Convention
also makes clear, similar to the international prohibition of incitement to genocide, that the
actual commission of a terrorist offence is irrelevant for an act to constitute public
provocation to commit a terrorist offence, recruitment for terrorism, or training for
terrorism.
56

A few years after the adoption by the Council of Europe of the Convention on the
Prevention of Terrorism, the European Commission adopted a proposal to amend the 2002
Framework Decision, in order to inter alia align it with the Council of Europe Convention on
the prevention of terrorism, by including public provocation to commit terrorist offences,
recruitment for terrorism, and training for terrorism in the concept of terrorism contained in
the 2002 Framework Decision.
57
The Explanatory Memorandum accompanying the proposal
equally states that although the 2002 Framework Decision did include the criminalization of
inciting, aiding, or abetting terrorist offences, there was a need to cover also and explicitly the

49
Council of the European Union, Common Position of 27 December 2001 on Combating Terrorism,
Doc. Nr. 2001/930/CFSP, OJ L 344, 28 December 2001.
50
Article 4, Council of the European Union, Common Position of 27 December 2001 on Combating
Terrorism, Doc. Nr. 2001/930/CFSP, OJ L 344, 28 December 2001.
51
Council Framework Decision of 13 June 2002 on combating terrorism (Doc. Nr. 2002/475/JHA),
OJ L 164/3, 22 June 2002.
52
Art. 4.
53
Council of Europe Convention on the Prevention of Terrorism, 2005 (entered into force 1 June
2007), Council of Europe Treaty Series No. 196).
54
Art. 5, para. 2.
55
Art. 5, para. 1.
56
Art. 8.
57
Commission of the European Communities, Proposal for a Council Framework Decision Amending
Framework Decision 2002/475/JHA on combating terrorism, COM (2007) 650 final (6 November
2007), Explanatory Memorandum, p. 2.
Unedited Version

dissemination of terrorist propaganda and terrorist expertise.
58
The new Framework Decision
was adopted in December 2008
59
and specifically deals with the regulation and prohibition of
incitement to terrorism. The 2008 Framework Decision explicitly refers to Security Council
Resolution 1624 (2005) and the subsequent Report of the UN Secretary-General titled
Uniting against terrorism: recommendations for a global counter-terrorism strategy,
60

which confirmed as mentioned that Security Council Resolution 1624 (2005) provides a legal
basis for the criminalization of incitement to .
61
Article 1 of the 2008 Framework Decision
copied the definition of public provocation to commit a terrorist offence from the Council
of Europe Convention on the Prevention of Terrorism. All acts falling under the Council of
Europe Convention are thus also covered in the 2008 Framework Decision.

3.2 I ncitement as an I nchoate Crime and the Likelihood of Harm

If one makes an analogy with the prohibition of incitement to genocide, it seems clear that the
object of the prohibited conduct is the communication as such, irrespective of whether or not
the speech has effectively lead to the commission of a terrorist act. As noted by the ICTR in
the context of incitement to genocide, the crime of incitement to genocide exists as a separate
crime, punishable by itself even if no act of genocide has resulted from the act(s) of
incitement. The sole criterion to be used there is if the author had the intent to directly and
publicly incite others to commit genocide.
62
The ICTR even noted that, consequently, there is
no need to prove that the prohibited speech substantially contributed to the commission of
acts of genocide if these acts occurred.
63
These considerations are in line with the general
objective of the prohibition of incitement to genocide, namely to prevent the occurrence of
genocide. Since the criminalization of incitement to terrorism also principally aims at
preventing terrorism and terrorist acts, the effective commission of the act rightly is not a
constitutive element of the criminalized speech. If the effective commission of the act were a
constitutive element, the preventive and anticipatory character of the separate criminalization
of incitement to terrorism would be relatively useless. We have, moreover, seen in respect of
other forms of propaganda that these also are generally prohibited as such, irrespective of
whether the acts complained of have had any effect in practice.
Resolution 1624 (2005) does not contain any relevant information as to the
requirement of the likelihood of harm being caused, but implicitly supports that incitement to
terrorism constitutes an inchoate crime, since it asks member states to criminalize incitement
to genocide as such, without any reference as to the result of the prohibited speech on the
effective commission of a terrorist act. The 2006 Report of the Counter- Terrorism Committee
also confirms that the majority of states have, in implementing the resolution, criminalized
incitement, irrespective of whether the incited act was committed or not.
64

The question of potential harm or the likelihood of the effective commission of a
terrorist act in the case of incitement to terrorism is, however, fundamental. The majority of
the states that reported to the Counter-Terrorism Committee also included in their penal laws
that the statement considered as incitement to terrorism can only be punished if it is likely to
lead to the commission of a terrorist act, in order to preserve the right to freedom of

58
Ibid.,at 4.
59
Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision
2002/475/JHA on combating terrorism, OJ L 330 , 09 December 2008, p. 2123 (28 November 2008).
60
Report of the Secretary-General, Uniting against terrorism, see supra note 37.
61
Ibid., para. 61.
62
ICTR Appeals Chamber, Ferdinand Nahimana, see supra note 9, at paras. 677678.
63
Ibid.
64
Report of the Counter-Terrorism Committee (2006), see supra note 44, at para. 7.
Unedited Version

expression.
65
The UN Secretary-General, in the earlier- mentioned 2008 report on the
protection of human rights and fundamental freedoms while countering terrorism, defined
incitement to terrorism as a direct call to engage in terrorism, with the intention that this will
promote terrorism, and in a context in which the call is directly causally responsible for
increasing the actual likelihood of a terrorist act occurring.
66
The Secretary-General also
explained that States are only allowed to prosecute incitement to terrorism if it is likely to
result in criminal action.
67
According to the Secretary-Generals report, the likelihood of the
effective commission of the act is thus an essential and constitutive part of the crime of
incitement to terrorism. The Secretary-Generals report thus endorses a similar, but stricter,
condition than the one contained in the Council of Europe Convention on the Prevention of
Terrorism.
The Council of Europe Convention asks its member states to criminalize incitement to
terrorism, irrespective of whether the terrorist offence was actually committed.
68
However,
direct and indirect incitement is only punishable if the public provocation causes a danger
that one or more such offences may be committed.
69
A similar article is contained in Article
2, paragraph 3, of the International Convention for the Suppression of the Financing of
Terrorism. In the Explanatory Report of the Council of Europe Convention on the Prevention
of Terrorism,
70
the experts do not, however, offer any further clarification or explanation as
to the nature or legal basis of this provision. As compared to the terms used by the Secretary-
General, this provision is clearly broader. The use of the word danger in the Council of
Europe Convention is less strict than the notion used by the Secretary-General, namely that
the incitement is likely to result in a terrorist act. However, it can easily be explained by the
fact that the Council of Europe Convention also explicitly aims at criminalizing indirect
incitement to terrorism as well, for which the causal link with the actual commission or the
actual likelihood of the occurrence of the act is by definition weaker than in cases of direct
incitement.

4. The Grey Zone: Indirect Incitement and Apologieof Terrorism

The prohibition of incitement to terrorism mainly targets direct incitement to commit terrorist
acts. The question remains, however, whether indirect incitement, such as the justification
and glorification of terrorist acts, often described also as apologie of terrorism, also falls
under criminalized behavior, and whether, as a consequence, the right to freedom of
expression is not disproportionately infringed. I will first generally address the current status
of the criminalization of indirect incitement to terrorism (Section 4.1). I will then deal with
the case-law of the European Court of Human Rights, which has, at least in two recent cases,
addressed and discussed apologie of terrorism (Section 4.2).

4.1 I ndirect I ncitement to Terrorism and I nternational Law

The prohibition of indirect incitement, or glorification or apologie of terrorism, has not (yet)
received universal support. Although apologie of terrorism has never been defined in
international instruments, one can find such a definition at the European regional level. The

65
Ibid., para. 9.
66
Report of the Secretary-General, The protection, see supra note 40, at para. 61 (own emphasis).
67
Ibid., para. 62.
68
Art. 8.
69
Art. 5, para. 1.
70
Explanatory Report to the Council of Europe Convention on the Prevention of Terrorism, available
at http://conventions.coe.int/Treaty/EN/Reports/Html/196.htm (last visited 18 May 2010).
Unedited Version

Council of Europe Committee of Experts on Terrorism (CODEXTER) has defined
glorification and apologie of terrorism as the public expression of praise, support or
justification of terrorist and/or terrorist acts.
71
We shall use here the notions of glorification
or apologie of terrorism as understood and defined by the CODEXTER, and consider these to
be forms of indirect incitement to terrorism. It is interesting to note also that Article III (c)
Genocide Convention only contains a prohibition of direct and public incitement to commit
genocide, and makes no reference to indirect incitement, glorification, or apologie. Several
States, however, have criminalized the denial of the Holocaust, which in effect is very close
to indirect incitement, since both concepts aim at preventing acts through the criminalization
of speech posterior to the act.
Indirect incitement and glorification of terrorism is not explicitly part of the conduct
prohibited under Security Council Resolution 1624 (2005).
72
Although the Council, in the
considerations, generally condemned incitement to commit terrorist acts, the Council
only repudiated attempts at the justification or glorification (apologie) of terrorist acts
that may incite further terrorist acts.
73
As a consequence, the operative paragraphs of the
Resolution do not explicitly ask member states to take measures to prohibit apologie of
terrorism. However, at the same time, Resolution 1624 (2005) does not prohibit states from
also criminalizing glorification and apologie of terrorism. The already mentioned report of
the Counter-Terrorism Committee notes that five out of the 69 reporting states had reported
the criminalization of justification or glorification (apologie) of terrorism, and that six other
states noted that their penal laws contain a general prohibition of public approval or
glorification of serious crimes, which could thus be applied to terrorist acts.
74
These states
generally require, however, that glorification of terrorism should be clearly linked to the
commission of a further terrorist act.
75
Moreover, other states reported that glorification is
only punishable to the extent that it in effect constitutes direct incitement to commit terrorist
acts.
76
The reports of the Counter-Terrorism Committee thus confirm that states largely
disagree, or at least are not undivided, as regards the scope of the prohibition of incitement to
terrorism, especially on the question of whether the prohibition of incitement to terrorism
comprises the obligation or the right to criminalize glorification of terrorism as well. In those
circumstances, glorification and apologie of terrorism can only be lawfully criminalized if the
prohibition is in conformity with international rules, such as the freedom of expression.
The UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE
Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of
Expression have similarly stated that incitement to terrorism or acts of terrorism can be
lawfully prohibited, but that States should not employ vague terms such as glorifying or
promoting terrorism when restricting expression.
77
The 2008 Report of the UN Secretary-
General explicitly declared that while incitement to terrorism can be legally prohibited and
thus criminalized, glorification and promotion of terrorism could not.
78
We already noted
the definition by the Secretary-General of incitement to terrorism as a direct call to engage in

71
Ibid., p. 12.
72
Consideration 4, SC Res. 1624 (2005), para. 678.
73
Consideration 4, Ibid.
74
Report of the Counter-Terrorism Committee (2006), see supra note 44, at para. 11.
75
Ibid., para. 11.
76
Ibid., para. 11.
77
See, International Mechanisms for Promoting Freedom of Expression, Joint Declaration by the UN
Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of
the Media and the OAS Special Rapporteur on Freedom of Expression (28 December 2005), available
at http://www.osce.org/documents/rfm/2005/10/26809_en.pdf (last visited 20 May 2010).
78
Report of the Secretary-General, The protection, see supra note 40, at para. 61
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terrorism in order to differentiate it from apologie of terrorism.
79
The Secretary-General
noted that glorification may not go so far as to incite or promote the commission of terrorist
acts, but nevertheless applaud past acts.
80
The Secretary-General noted in that respect that
prohibiting apologie of terrorism would be contrary to the right to freedom of expression,
81

and that States are only allowed to prosecute direct incitement to terrorism, that is, speech
that directly encourages the commission of a crime, is intended to result in criminal action
and is likely to result in criminal action.
82
The Secretary-General, however, makes a rather
principled and unsubstantiated difference between these two forms of incitement to terrorism,
without taking into consideration that glorification can in fact under some circumstances
amount to a clear promotion of terrorist activity.
83
Moreover, it is far from clear whether such
an interpretation is consistent with the objectives of the relevant resolutions of the Security
Council.
However, as we will see, this relatively conservative perspective stands in stark
contrast with the practice of European states (mainly) that have taken a broader definition of
incitement to terrorism, which also includes indirect incitement. Many European States have
indeed considered that the prohibition of indirect incitement is a lawful exception to the
freedom of expression.
Under the Council of Europe Convention on the Prevention of Terrorism, indirect
incitement to terrorism is unambiguously included in prohibited speech.
84
The Explanatory
report indicates that States are under an obligation to criminalize the distribution or otherwise
making available of a message to the public advocating terrorist offence, and notes that
whether this is done directly or indirectly is irrelevant for the application of this
provision.
85
The Explanatory Report similarly explains that, while direct provocation is
already a criminal offence in many States, the criminalization of indirect provocation is
necessary to remedy the existing lacunae in international law or action by adding provisions
in this area.
86
The Report also mentions presenting a terrorist offence as necessary and
justified as an example of a speech that can constitute indirect incitement to terrorism.
87
In
the report, one can also find that indirect incitement can only be punishable under two
conditions, very similar to direct incitement, namely when there is a specific intent to incite
the commission of a terrorist offence, and secondly, if the result of the act is to cause a danger
that such an offence might be committed.
88
The latter condition will need to be evaluated
taking into consideration the nature of the author, the addressee of the message, and the
context in which the offence is committed.
89
These requirements are in line with earlier
jurisprudence of the European Court of Human Rights in respect of the prohibition of
incitement to violence in its relation to the freedom of expression.
These recent attempts to regulate incitement to terrorism evidently, in principle,
infringe onthe freedom of expression. In the Explanatory Report of the Council of Europe
Convention on the Prevention of Terrorism, one can read that the drafters were conscious that
such regulations might impinge on the freedom of expression, but they were of the opinion

79
Ibid.
80
Ibid.
81
Ibid., paras. 6162.
82
Ibid., para. 62.
83
See also Ronen, supra note 29.
84
See paras. 91 et s. of the Explanatory Report, see supra note 70.
85
Ibid., paras. 99.
86
Ibid., para. 97.
87
Ibid., para. 98.
88
Ibid., paras. 99100.
89
Ibid., para. 100.
Unedited Version

that such a restriction was a proportional and authorized exception to these human rights
provisions.
90
The 2004 Analytical Report of the CODEXTER, which had been mandated to
study and analyze the various national legislations with respect to provisions criminalizing
incitement to terrorism and apologie of terrorism in view of the adoption of a multilateral
convention, noted that the criminalization of apologie of terrorism will raise many difficulties
in relation to the protection of the rights to freedom of expression.
91
However, the
CODEXTER concluded that the criminalization of apologie of terrorism could constitute a
legitimate measure under international human rights law in accordance with past case- law
92

of the European Court of Human Rights.
93

Indeed, the European Court of Human Rights has already accepted that the right to
freedom of expression is not absolute, and that a democratic society has a legitimate right to
protect itself against the activities of terrorist organizations.
94
In Hogefeld, the Court thus
found that the claimants right to freedom of expression was not infringed, since the words of
the claimant could under the circumstances of the case be categorized as promotion of
terrorist activities. The restriction of the claimants freedom of expression could thus be
reasonably regarded as answering a pressing social need.
95

In general, the European Courts jurisprudence can be categorized as follows. In cases
concerning convictions because of statements or speech that directly incited violence or
armed struggle, the Court generally found that there was no violation of the right to freedom
of expression.
96
In zgr Gndem v. Turkey,
97
for example, which concerned the publication
by a daily newspaper of articles that advocated intensifying the armed struggle, glorified
war, and espoused the intention to fight to the last drop of blood, the Court concluded that
in view of the fact that these articles could reasonably be regarded as encouraging the use of
violence, the measures taken by the Turkish government could be justified as necessary in a
democratic society.
98
When the speech in question was merely hostile or critical in general,
without any explicit call for or incitement to violence, the Court generally found that there
was a violation of the Convention.
99
In Incal v. Turkey,
100
for example, Mr. Incal had been
convicted for the distribution of a leaflet that contained a number of virulent remarks about
the policy of the Turkish government and made serious accusations and described the
authorities actions as terror and as part of a special war being conducted in the country
against the Kurdish people.
101
The Court found that such statements could not be
considered as incitement to the use of violence, hostility, or hatred between citizens.
102
As a

90
See Ibid., paras. 89 et s.
91
Committee of Experts on Terrorism (CODEXTER), Apologie du terrorisme and incitement to
terrorism: Analytical Report (3rd meeting, Strasbourg, 68 July 2004), Doc. Nr. CODEXTER
(2004) 04 rev (24 June 2004), p. 31.
92
See, Committee of Experts on Terrorism (CODEXTER), Collection of Relevant Case-Law of the
European Court of Human (sic) Related to Apologie du terrorism and Incitement to Terrorism,
Doc. Nr. CODEXTER (2004) 19 (4 June 2004).
93
CODEXTER, Apologie du terrorisme, see supra note 91, at p. 31.
94
European Court of Human Rights, Hogefeld v. Germany, App No 35402/97, 20 January 2000.
95
European Court of Human Rights, Hogefeld v. Germany, App No 35402/97, 20 January 2000, p. 7
96
CODEXTER, Collection of Relevant Case-Law, see supra note 92, at p. 7.
97
European Court of Human Rights, zgr Gndem v. Turkey, App No 00023144/93, 16 March
2000.
98
Ibid., para. 65
99
CODEXTER, Collection of Relevant Case-Law, see above note 92, p. 7.Id..
100
European Court of Human Rights, Incal v. Turkey, ECHR 1998-IV, no. 78, 9 June 1998.
101
Ibid., para. 50.
102
Ibid., para. 50.
Unedited Version

consequence, the conviction of Mr. Incal was unnecessary in a democratic society and would
violated Article 10 of the European Convention on Human Rights.
103

While the prohibition of direct incitement to commit terrorist acts can thus easily be
seen as a legally valid exception to the freedom of expression, which has moreover been
included in many national laws,
104
the case for indirect incitement through glorification or
apologie of terrorism will be more difficult. In those cases, the context, the intent of the
author, and the effective danger of the commission of such an act will be decisive. The
current status of incitement to terrorism is thus essentially to be evaluated in light of the
generally accepted exceptions to the freedom of expression.
105
However, it seems odd to
make a principled distinction as the Secretary-General did, between the illegality of
prohibiting indirect incitement to terrorism and the legality of prohibiting direct forms of
incitement to terrorism in general. Unlike the crime of genocide, there is not yet a general
international instrument that actually defines the proscribed conduct. One would thus have to
look at the intent of the author and the consequences of such indirect incitement to assess
whether or not it could in that case be seen as constituting direct incitement.

4.2 The Leroy v. France and Batasuna v. Spain Cases before the European Court of
Human Rights

One of the first cases to consider the prohibition of apologie as indirect incitement to
terrorism as prohibited under the 2005 Council of Europe Convention was the Leroy v.
France case.
106
The case concerned the publication by M. Leroy, only two days after the 11
September attacks in New York, of a cartoon that contained a parody of the famous Sony
slogan: We have all dreamt of it Hamas did it. Leroy had beenwas convicted by the Cour
dappel de Pau to a fine of 1500 EUR for apologie of terrorism.
The Court noted that the infringement of the freedom of expression was first in
conformity with a French law to that effect, and that it pursued a legitimate aim, which was
moreover not contested by the applicant. With respect to the question as to whether the
prohibition of incitement to terrorism was necessary in a democratic society, the Court noted
that the specificities of the case did show more than a mere criticism of American
imperialism, as argued by the applicant, and in fact amounted to the support and glorification
of the violent destruction of the United States.
107
Among other argument, the Court agreed
that the use of the first plural person we proved that the author identifies himself with
terrorism. The Court thus concluded that there was no unjustified infringement of the
freedom of expression, since the national judge had rightly considered that the
criminalization of apologies or glorification of terrorism could be seen as necessary in a
democratic society.
108

The judgment of the court raised some criticism, principally because the judgment
would form a real threat for independent and critical journalism, and hence for democracy
and pluralism itself.
109
Several authors have indeed noted a departure from previous case-

103
Ibid., para. 59.
104
Para. 97 of the Explanatory Report, see supra note 70.
105
Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, Doc. Nr.
OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. (22 October 2002), para. 310.
106
European Court of Human Rights, Leroy v. France, App. No. 36109/03, 2 October 2008.
107
See, para. 43.
108
See, para. 48.
109
D. Voorhoof, European Court of Human Rights: where is the chilling effect? Conviction of
cartoonist for drawing 9/11-cartoon condoning terrorism is not a violation of freedom of expression
as guaranteed by Article 10 of the Convention, available at http://www-ircm.u-
Unedited Version

law of the European Court of Human Rights, especially the bulk of cases dealing with
freedom of expression in Turkey.
110
However, in previous cases, the Court had never
explicitly addressed the concept of apologie of terrorism.
111
Moreover, it is interesting to note
that the Court also took in to consideration and emphasized the specific circumstances of the
case. The Court noted that the timeframe in which the cartoon was published, namely only
two days after the tragic events of 11 September 2001, and the fact that the publication was
done in a journal in the Basque country, had attracted many reactions from readers and could
have stirred up violence and have a clear impact on the public order in the region.
112

In a subsequent case, Batasuna v. Spain,
113
the European Court of Human Rights also
invoked the international concern to condemn glorification of terrorism. The case concerned
two Basque political parties Herri Batasuna and Batasunagenerally considered as the
political wing of the Basque separatist movement ETA, which is listed as a terrorist
organization by inter alia the European Unionwhich had been dissolved by the Spanish
authorities. The dissolution of the political parties was decided, amongst other reasons, on the
ground that their refusal to condemn terrorist attacks can be seen as constitutive of tacit
political support to terrorism.
114
The Spanish Constitutional Court also noted that the refusal
to condemn terrorist acts can lead to minimizing terrorist attacks. The Constitutional Court
thus found that, in application of the Spanish Law on Political Parties, Herri Batasuna and
Batasuna needed to be dissolved.
The European Court confirmed the Spanish Constitutional Courts decision. The
Court reiterated its statement in the Handyside case, namely that the freedom of expression
extends to "information" or "ideas" that are favorably received or regarded as inoffensive or
as a matter of indifference, but also to those that offend, shock, or disturb the State or any
sector of the population.
115
The Court finally noted that the dissolution could be justified as a
measure necessary in a democratic society, since it corresponded to a pressing social need.
116

The Court pointed out that many of the activities of Batasuna indeed were very close to an
explicit support to violence and the honoring of terrorists.
117
The Court confirmed also that
the absence of condemnation of violent acts could as such have been sufficient to dissolve the
parties, since the activities of political parties must not only encompass actions, but also,
under certain circumstances, omissions and silences.
118
Finally, the Court explicitly referred
to the international concern to condemn glorification of terrorism, as evidenced by the
various international and regional documents in this respect.
119

It should be emphasized, however, that the Court as such did not engage in a detailed
analysis as to whether, in general, the criminalization of apologie of terrorism is compatible
or not with the European Convention on Human Rights. Indeed, the Court only reviews

strasbg.fr/seminaire_oct2008/docs/Voorhoof_Where_is_Chilling_Effect.pdf (last visited 19 May
2010).
110
Ibid.
111
Committee of Experts on Terrorism (CODEXTER), Freedom of Expression and Apologie du
Terrorisme (15th meeting, Strasbourg, 24)26 November 2008), Doc. Nr. CODEXTER (2008) 30 (10
October 2008), para. 25.
112
See, para. 45.
113
European Court of Human Rights, Herri Batasuna and Batasuna v. Spain, App. Nos. 25803/04 ad
255817/04, 30 June 2009.
114
Ibid., para. 46.
115
Ibid., para. 76.
116
Ibid., para. 85.
117
Ibid., para. 86.
118
Ibid., para. 88.
119
Ibid., para. 89.
Unedited Version

whether, in light of domestic laws, convictions on the ground of apologie of terrorism are
compatible with the provisions of the Convention in general, and with the freedom of
expression in particular. Therefore, the European Court of Human Rights did not, in any of
the mentioned cases, define glorification or apologie of terrorism.
120

Conclusion

The prohibition of incitement to terrorism has become prominent in international law. For
obvious reasons, international legal attention in both scholarship and international
organizations has recently focused on that particular form of propaganda and on incitement to
genocide and discriminatory propaganda. Although the notion of discriminatory propaganda
dates back to the end of the Second World War, many authors have advocated the need for a
strong confirmation of the principle in international law, even through the addition of
incitement to genocide and hate propaganda to the list of international crimes. The same is
true with respect to incitement to terrorism, as a corollary of international efforts to combat
and prevent terrorism in general.
While the prohibition of direct incitement to commit terrorist acts can easily be seen
as a legally valid exception to the freedom of expression, which has moreover been included
in many national laws, the case for indirect incitement through glorification or apologie of
terrorism is more difficult. Besides European instruments, no international instrument
provides a clear legal basis for the prohibition of indirect incitement. However, instead of
plainly dismissing the legality of a criminalization of indirect incitement to terrorism, a better
approach would be to work on a case-by-case basis to assess whether the speech in question
can be protected or not by the freedom of expression. The few cases show that the intent of
the author and the effective danger of the commission of such an act will be decisive. It is
thus difficult to make a general and principled distinction between the legality of indirect
incitement to terrorism and the illegality of direct forms of incitement to terrorism in
general. One needs to evaluate the intent of the author, the circumstances of the case, and the
consequences of the indirect incitement to assess whether or not it could in that case be seen
as constituting incitement to terrorism.

120
See also, Committee of Experts on Terrorism (CODEXTER), Freedom of Expression and Apologie
du Terrorisme (15th meeting, Strasbourg, 2426 November 2008) Doc. Nr. CODEXTER (2008) 30
(10 October 2008), para. 7.

The Regulation On Incitement in International Law

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