Incitement to terrorism and freedom of expression: the international framework of a problematic relationship

Abstract

Resolution 1624 (2005) of the Security Council of the United Nations does not define incitement to terrorism. By contrast, Council of Europe Convention n.º 196 on the Prevention of Terrorism (2005) characterizes public provocation to terrorism deliberately including indirect incitement and requiring both specific intent and a result of danger of commission of a terrorist offense. The Explanatory Report of the Convention refers to the case-law of the ECtHR to fix on the elements to be considered in the assessment of the danger, thus making it an interpretative parameter. The Framework Decision of the Council of the European Union has adopted since 2008 the same definition that the Convention as it is possible to speak of a European model of criminalization of incitement to terrorism that has been criticized for using a broad and open definition in conflict with the principle of legal certainty and not determining the nature of the danger caused by incitement. These criticisms have not prevented, however, that the Special Rapporteur of the United Nations has considered the definition of the Convention as a best practice in the fight against terrorism. After the Convention, the ECtHR has led to relevant developments of case-law on the indirect incitement as cases Leroy (2008) and Yavuz and Yayali (2013). The US approach that requires imminence and likelihood of danger is the benchmark for the critical positions with the European standard that is intended to extend universally in a draft international convention for the prevention of incitement to terror raising the issue if it is appropriate beyond the European context in which it has emerged.