The scope of encouraging or glorifying terrorism is not easy to delimit. The controversy stirred up by this offence in the UK was immense. From human rights organisations to legal scholars, all agreed that the Terrorism Bill on
642
The Home Office website states that there are 48 proscribed international terrorist organisations under TA 2000 compared to 14 organisations in Northern Ireland proscribed under previous legislation.
643
See Amnesty International (2011). Special Rapporteur on Freedom of Expression and Access to Information in Africa- Ethiopia. (AFR 25/009/2011)
138
encouragement of terrorism would have a ‘chilling effect' on freedom of expression.644 Garnering support for TA 2006 that includes among other things new offences on encouraging terrorism was a bumpy road for the former Prime Minister, Tony Blair. Though Tony Blair won the backing of the House of Commons, its success was short lived because the House of Lords twice rejected the inclusion of ‘glorifying' terrorism as a separate offence before the lords dropped their stiff opposition.645 In this section of the thesis we will identify some of the arguments against encouraging terrorism.
Much of the ambivalence towards the offences relate to the fact that the criminalisation of encouraging or glorifying terrorism is drafted bluntly and is vague on details. Moreover, the relevance of the offences when discussed alongside the already available options to prosecute terrorists stimulated heated discussions. The analysis below identifies these discussions in the UK. Then the next section poses a question on whether the offences of encouraging terrorism would be unconstitutional in the US. This will be followed by an analysis of the problems of the EATP in relation to encouraging terrorism in light of section 1 of the TA 2006 and the misuse of Article 6 of the EATP against politicians and journalists.
Because the focus of this thesis is on Ethiopian law, we will use the above arguments as a basis for supporting the Ethiopian government's decision to enact new provisions on encouraging terrorism. However, although the conclusion of this thesis is in favour of introducing these offences, we will show in the subsequent sections that the Ethiopian law is poorly drafted and implemented.
A) Argument one:
One of the refuting arguments against the need for offence of encouraging terrorism as stipulated in TA 2006 is that such an act can already be charged
644
See Submission from different bodies at Joint Committee on Human Rights (2005). Counter- Terrorism Policy and Human Rights: Terrorism Bill and Related Matters: Third Report of Session 2005-06: Vol. 2 Oral and Written Evidence HL Papers 75-II, HC Papers 561-II. London, TSO; see also ARTICLE 19 (2005). Statement On the Encouragement of Terrorism: Clause 1 of the UK Terrorism
645
139
under existing common law and statutory offences.646 However, the elements stipulated for an offence of inciting violence and encouraging terrorism are not the same. A comparison to the offence of racial hatred could be made here to show the difference between inciting violence and encouraging terrorism. For the incitement of racial hatred, the offence can be committed by any means (written, oral, conduct) publicly or privately with the intention of "or having regard to all circumstances, racial hatred is likely to be stirred thereby."647 The cumulative reading of sections 18(2) and 18(4) of the Public Order Act 1986 reveal that racially motivated remarks that fall short of communication (publically or privately) are not within the ambit of the law. The 1986 Act has been further amended to include other offences.648
However, there is striking a difference between the Public Order Act 1986 and the offences under TA 2006. In respect of the former, the offence can be committed privately or publicly, whereas the offence under the latter Act must involve communication to the public.649 As some have pointed out, it is arguably that the distinction between public and private communication undermines the basic justification for enacting the law:650
they were said to be necessitated by the Council of Europe Convention on the Prevention of Terrorismand the government claimed that the … offences were necessary because the existing law of incitement failed to catch certain categories of speech which encouraged terrorism because that law required a degree of explicitness, in terms of the speech constituting encouragement, and a degree of specificity in terms of the behaviour which was encouraged.
The argument is then making a distinction into public and private communication may unnecessarily shift concerns from the content of the views expressed to the
646
See for instance Hansard, HC Deb Vol.443, col.1673 (16 Mar 2006) (Nick Clegg, MP argued that " the arrest of … a number of protesters who used sickening and inflammatory language on their placards when demonstrating against the anti-Islamic cartoons published in Denmark shows that current laws against incitement appear to be working fairly well …")
647
Section 18 of the Public Order Act 1986
648
Racial and Religious Hatred Act 2006
649
Section 1(3) of TA 2006
650
Hunt, A. (2007). Criminal Prohibitions on Direct and Indirect Encouragement of Terrorism. 6 Criminal Law Review 441
140
audience at which they are communicated.651 This argument is backed up by existing laws such as the 1986 Public Order Act, as amended by the Racial and Religious offences Act 2006, which criminalizes both forms of communication.
Therefore, the argument that there is no need for a different law owing to the fact that such offences can be caught by existing laws is arguable fallacious; the elements of the offence of encouraging terrorism as discussed below is covered in a completely different manner.
There are three sorts of relationship between encouraging terrorism and inciting violent actions. This nexus is best shown diagrammatically:
The offence of encouragement, specifically, the glorification of past terrorist acts as stipulated in the TA 2006 Act, adds more to the above illustration:
651
141
A speech in the first diagram is closer to the action and it can be a direct cause of violent action. But the speech in the second diagram simply glorifies terrorist acts which have already been committed. To use the language of the law, it ‘praises or celebrates' terrorist acts.652 The relationships become even more remote when recklessness is used as a mens rea. Therefore, the argument that the existing laws can cover glorification or indirect encouragement is rather vague. As the UK government and others have agreed,653 there was a loophole in the law.
R v El-Faisal654 could be referred as the justification for rejecting655 the provisions under TA 2006 that deal with encouraging terrorism. While a plausible argument could be made that he could have been prosecuted under terrorism laws,656 El-Faisal was prosecuted and deported for inciting racial hatred. Two pieces of legislation were mentioned when justifying why the defendant should be convicted; section 4 Offences against the Person Act 1861; section 18(1) and 21(1) of Public Order Act 1986.657 The following are a selection of the speeches given by the defendant on tapes submitted as evidence:
652
Section 20(2) TA 2006
653
Hansard, HL Deb Vol.676, col.455 (December 5, 2005)
654
R v El-Faisal, supra note 613
655
Roach, K. (2012) supra note 193, p. 299; see also ARTICLE 19 (2005). Statement On the Encouragement of Terrorism: Clause 1 of the UK Terrorism
656
Hunt, A. (2007), supra note 650
657
Section 4 of 1861 Offences Against the Person Act; section 18(1) and 21(1) of Public Order Act 1986
142
...the way forward can never be the ballot. The way forward is the bullet...'; ‘we spread Islam by the sword and so what, and today we are going to spread by the Kalashnikov and there is nothing you can do about.'; ‘is there any peace treaty between us and the Hindus and Indians? No, so you can go to India and if you see a Hindu walking down the road, you are allowed to kill him and take his money.
The defendant also stated that any Muslim who was killed whilst carrying out jihad would become a martyr and go on to paradise. The defendant encouraged suicide bombing campaigns and played tape recordings of Osama Bin Laden encouraging strikes against Western targets.
The prosecution conceded that "the plain and ordinary meaning to be given to the appellant's words was that they were a general encouragement to his listeners to carry out acts of terrorism, the violent overthrow of democracy, and extermination of non Muslims."658 The conviction of the appellant, which was based on a ‘general encouragement' of terrorism, was affirmed on appeal.
Despite the prosecution emphasising that the language used amounted to only a general encouragement of terrorism, in truth the evidence of the speeches display more of a mixture of messages specifically, directly and indirectly encouraging terrorism. For instance, the following sentence is clearly an offence of directly encouraging terrorism: "whenever the holy months expire, kill the pagans wherever you find them."659 In contrast, it is arguable that the following sentence is not an offence in any of the existing legislation or common law rules:
...the jihad of a woman is to bring up her male children with a jihad mentality… when you buy toys for your boys you buy tanks and guns … this is the jihad of the woman, to bring up her sons with jihad mentality …660
658
R v El-Faisal, supra note 613, para. 31
659
Ibid, para.24.
660
143
It is doubtful whether, based on the above statement, the prosecution would have succeeded with a charge of inciting violence. However, there is higher probability of prosecutorial success under the offences in TA 2006 because the above expressions satisfy all the elements of the offences of glorification of terrorism (the expressions glorify future terrorist acts as they teach the ‘Jihad of women' and the targets in this case, i.e. the women, could also reasonably be expected to emulate the message). This is exactly the kind of statement the UK government is trying to criminalize under the new law.661
Accordingly, section 1 of the TA 2006 requires either specific intent or recklessness for the prosecution of encouraging terrorism. The proposal to include glorification of terrorism as a separate offence from encouragement of terrorism was also dropped during the parliamentary debates. It is now included under sections 1(3) and 2(4) TA 2006.
Moreover, an indication as to how the offences concerning encouraging terrorism are going to be applied has become clear in the aftermath of a case in which a young Muslim girl, Roshonara Choudry, stabbed an MP,662 for which she was sentenced to 15 years imprisonment. Though she was tried under ordinary criminal law, her act was a terrorist act as it was committed in furtherance of "political and religious reasons".663
Moreover, what has happened after the trial was a clear indication of why the offence encouraging terrorism does not necessarily encroach upon freedom of expression. Her supporters chanted outside the courtroom the following
661
See Hansard HC DebVol.442 Col. 1437 (15 February 2006); see also the speeches in R v Saleem and others, supra note 613 (the speech by Rahman that called for British soldiers to come back in body bags could not have been covered under the existing common law incitement); see also Leroy v. France, supra note 565(the ECtHR in this cases upheld the conviction of a French cartoonist for publishing a cartoon depicting the terrorist attack in the US. The ECtHR was convinced that the publication of the drawings two days after the 9/11 attack mounts to giving "moral" support to the terrorists.)
662
R v Roshonara Choudhry [2010] T20107212
663
144
sentences: "Islam will dominate the world, we Muslims demand the release of all Muslims, Stephen Timms [the stabbed MP], go to hell..." 664
These words, though they did not encourage, justify or glorify the stabbing of the MP, were expressions that were "controversial, shocking, or offensive."665 But none of the people chanting these extreme views were arrested, or threatened with arrest other than escorting them from the court to a safe place. However, this case is different from another, R v Saleem,666 in which four defendants were convicted for offences contrary to section 18(1) of the Public Order Act 1986. In this case, a speech by Rahman that called for British soldiers to come back in body bags, were far more serious than those used at the demonstration during the sentencing of Roshonara Choudry. However, it is arguable that the statements made by Rahman were not directly inciting terrorism, but were instead "uttered with the intent that they should encourage others to commit terrorist acts."667 Therefore, closer scrutiny of TA 2006 tells us that not all statements that encourage, justify or glorify terrorism are in fact curtailed by law. The emphasis on the contents and circumstances in which the statements are made provides a significant protection to freedom of expression.668 However, during peace time and war, words can imply different things. It should not come as a surprise then if a government does not show leniency in the interpretation of the law during exceptional circumstances. As discussed in the preceding sections, this trend has been accepted by the US Supreme Courts669 as the well as the ECtHR in many cases against Turkey.
664
Seamark, M. (2010). Curse the Judge, Shout Fanatics as Muslim girl who Knifed MP Smiles as she Gets Life. Daily Mail, 5 November
665
Castells v Spain, supra note 596; see also Handyside v the UK, supra note 431
666
R v Saleem, supra note 613; see also Wildhaber, L. (2001). The Right to Offend, Shock or Disturb? Aspects of Freedom of Expression under the European Convention on Human Rights. 36 Irish Jurist. 17
667
See Letter from Charles Clarke, U.K. Home Secretary, to Rt. Hon David Davis MP and Mark Oaten MP, Members of the House of Commons (Sept. 15, 2005)
668
See for instance, Leroy v. France, supra note 565 (the ECtHR in this cases upheld the conviction of a French cartoonist for publishing a cartoon depicting the terrorist attack in the US. The ECtHR was convinced that the publication of the drawings two days after the 9/11 attack mounts to giving "moral" support to the terrorists.)
669
See for example, Schenck v United States, supra note 443; Brandenburg v Ohio, supra note 446
145 B) Argument two:
The other related argument is whether the offence of encouraging terrorism is directed against democratic or non-democratic regimes. While reflecting the views of the UN High Commissioner for Human rights,670 some suggest that "prosecution of those encouraging terrorism against undemocratic regimes could breach a right to freedom of expression as guaranteed by Article 10 of the ECHR and Article 19 of the International Covenant on Civil and Political Rights."671 This view was also shared by the then Home Secretary, Charles Clark MP.672 As with the argument above, the validity of this argument is also doubtful, seemingly tolerating the glorification of terrorism within undemocratic regimes. This argument is problematic for several reasons. Recent decisions in the UK showed that the above argument is not supported.
For instance, in R v F,673 a UK court entirely rejected the appellant's arguments by stating that the TA 2000 does not make a distinction between terrorist acts directed against a tyrant as opposed to a representative government. The UK Supreme Court also affirmed this position in R v Gul.674 The appellant uploaded several ‘martyrdom videos' showing attacks by proscribed groups on military targets.675 He argued that:676
..force against the military was justified and that those who were fighting the Coalition forces were rightly resisting the invasion of their country. He did not agree with the targeting of civilians and attacks on civilians. He was therefore not encouraging terrorism, but self defence.
670
A letter written by the UN High Commissioner for Human Rights Louse Labour states that the definition of encouragement to terrorism "fails to strike a balance between national security considerations and the fundamental right of freedom of expression." For details see Arbour, L. (2005). Letter to the UK's Permanent Representative to the UN Office and other international organisations in Geneva, 28 November
671
The Religious Society of Friends (Quakers) (2005). Definition of Terrorism in UK Law: Memorandum to Lord Carlile's Independent Review of the Definition of Terrorism in UK Law, at http://www.quaker.org.uk/definition-terrorism-uk-law ; see also Liberty (2005). Terrorism Bill: Liberty's Briefing for Second Reading in the House of Lords, November 2005.
672
Hansard HC Deb Vol 438 col 324-328 (26 Oct 2005)
673
R v F [2007] EWCA Crim 243; see also section 59 of TA 2000 for incitement to commit acts of terrorism overseas 674 R v Gul [2013] UKSC 64 675 Ibid, para. 6 676 Ibid, para. 7
146
However, the UK Supreme Court considered the definition of terrorism under section one of TA 2000 and held that:677
The definition in s 1 is clear. Those who attacked the military forces of a government or the Coalition forces in Afghanistan or Iraq with the requisite intention set out in the Act are terrorists. There is nothing in international law which either compels or persuades us to read down the clear terms of the 2000 Act to exempt such persons from the definition in the Act
Unlike some regional definitions of terrorism, such as the Algiers Convention,678 the TA 2000 does not make an exception for ‘freedom fighters'. If the courts were to deviate from the current construction of section 1 TA 2000, they could face the more difficult question of applying the same legislation against the IRA,679 despite the fact that this threat is diminishing. Thus, the approach of UK courts in the above case is perhaps not necessarily to be criticised.
However, the above decisions may prompt some to argue that a failure to acknowledge a distinction between, on the one hand, an armed struggle against oppressive regimes and, on the other hand, terrorist acts would require the UK government "to protect every crazy government in the world."680 Although this argument might be plausible, at least theoretically, it is not supported by recent practices. To start with, Libyan ‘rebels' managed to topple Col. Kaddafi with the help of NATO and other Gulf States. In a stark turn of events, the UK government has agreed to compensate some ‘terrorists' who were rendered to Libya.681
677
Ibid, para. 60
678
See chapter two for further discussion
679
For detail analysis on IRA, see Moloney, E. (2007). Supra note 306; see also Coogan, T. P. (2002). The IRA. Supra note 306; see also Shanahan, T. (200), supra note 306; see also Walker, C. (2011), supra note 224, pp. 340-344
680
Walker, C. (2002). Blackstone's Guide to the Anti-Terrorism Legislation. 1st edition. (Oxford, Oxford University Press), p.175
681
Talor, R. N. (2012). Government pays Libyan dissident's family £2.2m over MI6-aided rendition, 13 December, Guardian; see also Cobain, I. (2012). Libyan dissidents launch action against UK government over rendition, 28 June, Guardian
147
To add another example: it is claimed that Syrian ‘rebels' are funded, trained and armed by their Gulf backers with the implicit approval of Western counties.682 Videos showing attacks on Syrian government military installations and other institutional targets are awash on the internet. Some of these videos, which praise the ‘heroic' attacks, are widely accessible from Western newspapers.683 But neither the UK government nor other western countries are in any mood to bring terrorism charges against people who upload these videos.
Moreover, there were few reported terrorism-related arrests against British nationals who travelled to Syria. Conceded, some individuals were charged for participating in the kidnapping of western journalists or for joining jihadist movements in Syria.684 However, it would be absurd if the UK government brought terrorism charges for the sole reason that such individuals have supported a war against an oppressive regime. This is due to the fact that there