TERRORISM AND THE INTERNET: HOW TO COMBINE FREEDOM OF EXPRESSION AND THE PREVENTION OF TERRORISM. Cristina Ganguzza

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1 TERRORISM AND THE INTERNET: HOW TO COMBINE FREEDOM OF EXPRESSION AND THE PREVENTION OF TERRORISM BY Cristina Ganguzza 1

2 Last January 21, Secretary of State Hillary Clinton lent Google her support, portraying the United States as defenders of a free internet, accessible to all, and naming freedom of expression on the internet as a U.S. foreign policy priority. However, when it comes to terrorism, the priorities change, as shown by the Patriot Act and the H.R. 2278, the U.S. Congress' anti-incitement bill calling for sanctions against satellite companies providing services to television channels that incite against the U.S.. Terrorism constitutes one of the most serious threats to democracy, free exercise of human rights and economic and social development. Throughout the years, repressive measures have been adopted at the international, regional and national level in order to counter terror offences, but the political need of adopting a preventive approach has lately gained support. Enforcement authorities experience shows that effective action against terrorism must take into consideration preventive measures in order to stop terror offences before their commission. Furthermore, the use by terrorists of the new technologies and the exploitation of the internet is to be addressed. However, the problem of countering this phenomenon raises particular concerns regarding the friction with human rights, especially the right of free expression. Policy-makers have two obligations: on one side ensure the security and safety of their citizens, and on the other guarantee the protection of human rights. While incriminating a conduct involving the liberty of expression, attention must be given to the respect of the legality, necessity and proportionality principles, as consecrated by many international instruments and the Johannesburg Principles. The task is even more complicated when it implies the criminalisation of indirect incitement, meaning conducts perceived by the public as apologie, simple encouragement or justification of terrorist actions. This comes from the fact that an internationally recognised and comprehensive definition of terrorism does not exist. Since 1963, the international community has adopted 13 UN and multilateral conventions dealing with different forms of terroristic offences and building the common framework for preventing and repressing terrorist acts. 2

3 As it can be imagined, the absence of an agreed definition of terrorism in international law still leave a broad margin of discretionary power to States in prohibiting and preventing incitement and apologie. Following the United Nations Resolutions 1373 (2001) and 1624 (2005) and the 2005 Council of Europe Convention on the Prevention of Terrorism, calling states to prohibit by law incitement to commit terrorist acts, the European Union as well has adopted a framework decision criminalising the offence of public provocation to terrorist acts, even committed through the internet (COUNCIL FRAMEWORK DECISION 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism). The adoption of this framework decision occurred regardless of the strong opposition by civil society against the criminalization of such a behavior, especially in its indirect form, and the suggestions for a new formulation of the crime put forward by the European Parliament. What is an indirect incitement? Indirect incitement to terrorist violence has been defined as: the dissemination of messages praising the perpetrator of an attack, the denigration of victims, calling for funding for terrorist organisations or other similar behaviour (from a suggestion of the Commissioner for Human Rights of the Council of Europe); attempts at the justification or glorification (apologie) of terrorist acts that may incite further terrorist acts (UN Security Council adopted Resolution 1624 (2005). apologie (Council of Europe). Indirect encouragement: a statement that is likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism or Convention offences, and which: (a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and (b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances (2006 UK Terrorist Act). Following those definitions, which are supposed to guide the judge in its interpretation of the legislation, a hypothetical and provocative example comes to mind, which may help exemplify the problems arising when dealing with such a tricky concept. 3

4 Yasser Arafat, chairman of the PLO (Palestinian Liberation Organisation), was conferred the Nobel Peace Price in 1994 for its role in the Oslo Accords with Israel. The decision to award Arafat the Nobel Prize was mainly political and based on the belief that he had renounced acts of terror and had become a sincere participant in a true peace process. But it was not so. At the time Arafat was awarded the Nobel Price, the PLO was considered the richest of all terrorist organizations with $8-10 billion in assets and an annual income of $1.5-2 billion from donations, extortion, payoffs, illegal arms dealing, drug trafficking, money laundering, fraud, etc., according to a 1993 National Criminal Intelligence Service report. In consideration of the proposed offence of indirect incitement, could the mere fact of giving the Nobel Prize be interpreted as a justification of the terrorist acts the PLO was carrying out even during 1994 and forth? This would lead to the paradoxical conclusion of incriminating the Nobel Foundation for indirect incitement! This case is absolutely improbable, but the main aim is to provoke a logical reasoning regarding the political exploitation of the law, especially when talking about terrorism. The PLO is nowadays a political subject, recognised at the international level, not included on the so-called UN and EU terrorist black-lists (but defined as a terrorist association by the U.S.). However, its charter still includes the armed struggle against the illegitimate State of Israel (a clear case of indirect incitement ). Although the PLO claims it does not support terrorism, documents show that it has actively supported and sponsored various terrorist groups in Israel. The PLO Negotiation Affairs Department website calls for funding and even to make donations to other organisations, which may be inserted into the above-mentioned terrorist lists. This fact alone could constitute indirect incitement. On the other hand, Arafat as well could be criminalised for the crime of incitement (if he was still alive). As denounced by Former Prime Minister Ehud Barak (CNN, 12 September 2001), the terror attacks on the U.S. were the result of continuous incitement by Chairman Arafat and his media. In conclusion, the presence of so many border-line situations should make the judge called to interpret the new legislation to think long and hard before criminalising someone for the offence of indirect incitement, or doing it in a much narrowed way, otherwise political use of the norms or the creation of criminal offences without a real area of relevance is a real and tangible risk. 4

5 As declared by Mr. Bostjan Šefic, Slovenian National Head of the Interdepartmental Working Group on Counter-terrorism, at the opening speech of the OSCE Conference on Human Rights and the Fight Against Terrorism, held in Vienna, July 2005: The sole limitation of human rights and freedoms does not contribute to a successful fight against terrorism but rather reveals a country s inefficiency and by that the success of terrorists. The fact is that the demonstration of a country s and its institutions inefficiency, that of the civil society s activities and the democratic principles, is precisely one of the goals of terrorist groups. We cannot allow this to happen. 5

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