172/Hungary-ppt © Clive Walker (2015) Terrorism Speech and Militant Democracy Professor Clive Walker University of Leeds Terrorism Speech & Militant Democracy

172/Hungary-ppt © Clive Walker (2015)

Terrorism Speech and Militant Democracy

Professor Clive Walker

University of Leeds

Terrorism Speech & Militant Democracy

Agenda

The concept of ‘militant democracy’Application of the concept to UK

counter-terrorism measures of 2006 – proscription and incitement.


Concept of ‘militant democracy’ - then


Karl Lowenstein, ‘Militant Democracy and Fundamental Rights’ (1937)

Clinton Rossiter, Constitutional Dictatorship (1948)

Prime Minister, Margaret Thatcher,

1985

“The time has come to consider the power of the media to influence the progress of terrorism…There is an urgent need to starve the terrorist of the oxygen of publicity. ”


Concept of ‘militant democracy’ - now


‘zone of anomie’ – Giorgio Agamben‘enemy criminal law’ – Günter Jakobs

Concept of ‘smart militant democracy’


Recognition of permanence and need for sustainability

Accommodation of individual rightsStrategic and not the ‘politics of the last

atrocity’

CONTEST:

Home Office, Countering International Terrorism (Cm.6888, 2006)

PreventPursueProtectPrepare


Testing ‘smart militant democracy’


Both examples under the Terrorism Act 2006 .....

Ban on associations/groups (Proscription) Incitement and glorification offences

Terrorist apologists: FOR BANS (PROSCRIPTION)

Support peaceful politics – practically and symbolically

European Convention on Human Rights forbids violence and threats not extreme policies – Articles 10/11(2) and 17


ECHR Articles 10, 11, 17

17: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at

the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent

than is provided for in the Convention.

Gündüz v Turkey (2003) Herri Batasuna and Batasuna v Spain (2009) Refah Partisi (the Welfare Party) v. Turkey (2003) Leyla Şahin v Turkey (2005) Kalifatstaat v Germany (2006) Hizb ut Tahrir v Germany (2012)


Terrorist apologists: AGAINST BANS (PROSCRIPTION)

The unfairness of the processExisting alternative offencesGratuitous publicityChilling effectCan’t trust the state


Proscription: Glorifiers

London 7 July 2005 bombingsCouncil of Europe Convention on the

Prevention of Terrorism of 2005United Nations Security Council Resolution

1624 of 14 September 2005


Proscription: GlorifiersTerrorism Act 2000, Part IITerrorism Act 2006, s.21: proscription if an

organisation 'promotes or encourages' terrorism, including the 'unlawful glorification of the commission or preparation … of acts of terrorism', glorification requiring the reasonable expectation of emulation


Proscription: Glorifiers

Boundaries uncertainAscription of responsibilityLegislative not judicial act



Al-Ghurabaa Succeeded Al-Muhajiroun after 2004

and was banned in 2006.

The Saved Sect Banned in 2006.

Al Muhajiroun, Islam4UK, Call

to Submission, Islamic Path,

London School of Sharia and

Muslims Against Crusades

Banned in 2010 and 2011 as variant

names for Al Ghurabaa and The

Saved Sect. Al Muhajiroun had been

relaunched in 2009.

Need4Khilafah; the Shariah

Project; and the Islamic

Dawah Association

Banned in 2014 as the same as Al

Ghurabaa and The Saved Sect,

which is also known as Al

Muhajiroun

Proscription: GlorifiersHizb ut Tahrir and Muslim BrotherhoodLord Macdonald, Review of Counter

Terrorism and Security Powers (Cm 8003, London, 2011)

Cabinet Office, Tackling Extremism in the UK (London, 2013)


TA 2006 s.1(1): This section applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences.

Offences:

Indirect incitement/Glorification


s.1(3) For the purposes of this section, the statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism or Convention offences include every statement 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.


Cyber-terrorismReport under s 3 TA 2006


Indirect incitement/Glorification: critique Are Mandela or Cherie Blair terrorists? ‘…in view

of the illegal occupation of Palestinian land I can well understand how decent Palestinians become terrorists’ (Cherie Blair).

Speech against repressive regimes is covered - s.17 eg Ghaddafi

ECHR art.10? R v Faraz, [2012] EWCA Crim 2820 Other offences sufficient Political disadvantages: Castells v Spain (1992) Community stigmatization: House of Commons

Home Affairs Committee, Terrorism and Community Relations (2005-05 HC 165)



Indirect incitement/Glorification: critique

Year GB NI

Charge Convict Charge

2006/07 0 0 n/a

2007/08 3 2 n/a

2008/09 3 2 n/a

2009/10 1 2 0

2010/11 0 0 0

2011/12 1 0 2

2012/13 0 0 0

Total 8 6 2

Conclusions


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172/Hungary-ppt © Clive Walker (2015) Terrorism Speech and Militant Democracy Professor Clive Walker University of Leeds Terrorism Speech & Militant Democracy