172/hungary-ppt © clive walker (2015) terrorism speech and militant democracy professor clive...
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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
Agenda
The concept of ‘militant democracy’Application of the concept to UK
counter-terrorism measures of 2006 – proscription and incitement.
Terrorism Speech & Militant Democracy
Concept of ‘militant democracy’ - then
Terrorism Speech & Militant Democracy
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. ”
Terrorism Speech & Militant Democracy
Concept of ‘militant democracy’ - now
Terrorism Speech & Militant Democracy
‘zone of anomie’ – Giorgio Agamben‘enemy criminal law’ – Günter Jakobs
Concept of ‘smart militant democracy’
Terrorism Speech & 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
Terrorism Speech & Militant Democracy
Testing ‘smart militant democracy’
Terrorism Speech & 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
Terrorism Speech & Militant Democracy
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)
Terrorism Speech & Militant Democracy
Terrorist apologists: AGAINST BANS (PROSCRIPTION)
The unfairness of the processExisting alternative offencesGratuitous publicityChilling effectCan’t trust the state
Terrorism Speech & Militant Democracy
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
Terrorism Speech & Militant Democracy
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
Terrorism Speech & Militant Democracy
Proscription: Glorifiers
Boundaries uncertainAscription of responsibilityLegislative not judicial act
Terrorism Speech & Militant Democracy
Terrorism Speech & Militant Democracy
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)
Terrorism Speech & Militant Democracy
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
Terrorism Speech & Militant Democracy
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.
Terrorism Speech & Militant Democracy
Cyber-terrorismReport under s 3 TA 2006
Terrorism Speech & Militant Democracy
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)
Terrorism Speech & Militant Democracy
Terrorism Speech & Militant Democracy
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
Terrorism Speech & Militant Democracy
If you want to know more ... buy the book!
Terrorism Speech & Militant Democracy