Published in May 2021.
This module is a resource for lecturers
Topic 4. Contemporary issues relating to non-discrimination and fundamental freedoms
Foreign Terrorist Fighters and deprivation of nationality laws
There are two different but complementary themes which run through the contemporary issues being considered regarding non-discrimination and fundamental freedoms in relation to the obligations of States: (1) their responses to the violation of these rights by individuals and non-State actor groups with terrorist agendas in order to safeguard them; and (2) their own requirements as States to fully respect these rights in the context of counter-terrorism laws, policies and practices.
In the United Nations Strategy and Plan of Action on Hate Speech (Hate Speech Action Plan) adopted in 2019, the Secretary-General described a hate speech as “a menace to democratic values, social stability and peace”. He also mentioned that “tackling hate speech is also crucial to deepen progress across the United Nations agenda by helping to prevent armed conflict, atrocity crimes and terrorism, end violence against women and other serious violations of human rights, and promote peaceful, inclusive and just societies”. “Addressing hate speech should never be confused with suppressing freedom of expression”, he stated, but instead keep it from “escalating into something more dangerous, particularly incitement to discrimination, hostility and violence”. The United Nations Committee on the Elimination of Racial Discrimination has defined hate speech as "a form of other-directed speech which rejects the core human rights principles of human dignity and equality and seeks to degrade the standing of individuals and groups in the estimation of society" (CERD/CGC/35, para. 10).
Direct and public incitement to genocide is absolutely prohibited (see Convention on the Prevention and Punishment of the Crime of Genocide 1948, article 3(c); Rome Statute of the International Criminal Court 1998, articles 6 and 25(3)(e); Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), article 4(c); Statute of the International Criminal Tribunal for Rwanda (ICTR), article 2(3)(c)) as is propaganda for war and "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" (article 20 ICCPR). The Human Rights Committee dealt with this issue in J.R.T. and the W.G. Party v. Canada (1984), where the applicant ran a phone line with anti-Semitic messages. The Committee found the applicant’s complaint regarding violations to his right to freedom of expression inadmissible and incompatible with the ICCPR since his opinions amounted to advocacy of racial or religious hatred, which the State party had an obligation to prohibit under article 20(2).
Any hate speech that endangers national security, public order, public health or morals can be restricted under article 19(3) ICCPR. Furthermore, in terms of specific and concrete action by States, the Committee on the Elimination of Racial Discrimination in a 2013 Report recommended that racist organizations that promote and incite racial discrimination should be declared illegal and prohibited (CERD/C/GC/35, para. 21). Furthermore, the Committee exhorted States to actively prevent racist hate speech in national laws and policies, national plans of action and human rights programmes (para. 47). However, criminalization of racist expression should be reserved for serious cases, proven beyond reasonable doubt and only when it is stipulated in legal provisions, proportional and necessary (para. 12). One issue worthy to note is that while laws aimed at preventing hate speech and violent extremism are being adopted, their approach may not always be applied consistently across the board (e.g. in terms of applying equally or having the same effect on all religious, ethnic groups. In relation to addressing violent white supremacy and extremism, see Kanno-Youngs, 2019).
Other mechanisms for the prevention of hate speech, which do not carry criminal sanctions, are suggested in the Rabat Plan of Action (General Assembly, Human Rights Council Report A/HRC/22/17/Add.4), such as broader education against racial discrimination, law enforcement training, and preventive legislation. (These issues are illustrated further in video 6 onwhether terrorists should have the right to free speech).
Terrorism and Internet restrictions
The Internet has always been emblematic of an international, public and open forum in which to quickly exchange views and spread ideas, sometimes anonymously. Such features, including its affordability and the challenges to effective regulation, have provided a medium for terrorists to spread their messages and recruit potential members. Globalization and the popularity of modern mass media, especially social media, has facilitated a faster spread of terrorist content and recruitment to terrorist organizations. (Issues relating to cybercrime, including human rights and privacy issues, are explored in more detail in the E4J University Module Series on Cybercrime).
Due to the spread of terrorism through the Internet, governments and ‘tech’ companies especially are under increasing pressure to effectively control and restrict forbidden content through quickly removing or reporting it so that it can be removed. For example, a priority of the United Kingdom Government is to ensure that companies like Google, Facebook and Twitter remove terrorist propaganda within hours of it being posted online. Empowering companies to take action and eliminate materials that can incite terrorism requires careful drafting and restrictive policies. In particular, care is needed to ensure that State responses – especially policy and legislative - with respect to media commentary and Internet postings are not overly expansive and restrictive in their scope and effect. Furthermore, the rights and interests of the authors of any materials at risk of removal need to be carefully balanced, especially since the criteria and processes used by these tech companies may not be subject to challenge despite the fact that they can be arbitrary in nature and wide-ranging in their effect. (Patel, 2019).
ISIL alone has generated thousands of extremist postings on online platforms (ITV News, 2017). In response to such pressures, four major tech firms - Facebook, YouTube, Twitter and Microsoft - in a partnership with the United Nations Security Council Counter-Terrorism Executive Directorate (UN CTED) launched in 2017 the Global Internet Forum to Counter Terrorism (GIFCT). A principal objective of the GIFCT is to share good practices regarding preventing the spread of terrorist content and identification of new terrorist organizations and leaders, while respecting freedom of expression and privacy. After the Christchurch attack in March 2019 in New Zealand, where the murder of 51 people was live-streamed, GIFCT member companies developed a Content Incident Protocol (CIP). The GIFCT activated its CIP protocol for the first time on 9 October 2019, to remove the perpetrator’s content related to his shooting in Halle, Germany. (These issues are illustrated further in video 7 on challenges facing tech companies to remove terrorist propaganda).
Human Rights Council Resolution 31/30, entitled “Effects of terrorism on the enjoyment of all human rights”, encouraged States to "refrain from supporting terrorist groups in establishing propaganda platforms, such as electronic or satellite platforms or any other media, on their territory for disseminating hatred or instigation". The effectiveness of some of the tools is being debated. For example, although terrorist social media accounts often get suspended, new accounts are quickly created by terrorist actors which can actual hinder rather than facilitate law enforcement efforts (e.g., Wright et al., 2016).
A key tension is how to ensure that more effective preventive as well as removal mechanisms are in place, yet without infringing the right of freedom of expression as well as other rights such as digital privacy. This is an area which attracted particular attention of the previous Special Rapporteur on Promotion and Protection of Human Rights while Countering Terrorism (General Assembly Report A/69/397). Privacy plays a critical role in relation to the protection of other fundamental rights and freedoms, including freedom of opinion and expression (A/RES/71/199). In a Joint Declaration on Freedom of Expression and the Internet, issued by the United Nations and other regional Special Rapporteurs with this mandate, possible criminal and civil mechanisms were explored aimed at protecting the rights as well as meeting the obligations of all interested parties using and monitoring the Internet. Notably too, in the 2016 Joint Declaration on Freedom of Expression and Countering Violent Extremism, the Special Rapporteurs "highlight[ed] that CVE/PVE programmes and initiatives that restrict freedom of expression must be based on evidence of their effectiveness and a legal framework to support their necessity and proportionality to achieve legitimate objectives".
Restriction of the media
The media performs a central function in any democratic society in terms of providing information and spreading ideas and opinions. It does, however, raise important challenges including legal ones explored here as well as ethical ones examined in more detail in Module 10 Media Integrity and Ethics of the E4J University Module series on Integrity and Ethics.
More specifically, in its UNSC Resolution 1624 (2005),the Security Council stressed the importance of the media in efforts to "enhance dialogue and broaden understanding, and in promoting tolerance and coexistence, and in fostering an environment which is not conducive to incitement of terrorism" (Preamble). Journalistic efforts can similarly be hindered by terrorist groups, such as ISIL which has carried out executions of journalists.
In terms of where a permissible line may be drawn in lawfully restricting freedom of expression, some guidance has been given by the ECtHR and its former European Commission. In the case of Purcell and Others v. Ireland (1991), the Commission found that an order restraining the broadcasting of interviews did not violate freedom of expression since it protected national security and prevented disorder and crime. Subsequently, the Court has held that criminal convictions imposed for press articles designating State agents as targets for terrorist organizations went too far in that the sentences were not necessary in a democratic society and were disproportionate to the aims being pursued in imposing them. Such approaches reflect that of the Council of Europe's Parliamentary Assembly as well, which in its Recommendation 1706 (2005) on Media and Terrorism advocated the need "to abstain from prohibiting or even restricting unduly the dissemination of information and opinions in the media about terrorism as well as about the reaction by state authorities to terrorist acts and threats under the pretext of fighting terrorism".