Current negotiations on an European Union (EU) Directive defining terrorism intends to accord a large role to the notion of incitement as a way to criminalise particular speech acts. Western societies have harboured a paradox in the last fifteen years about what constitutes legitimate acts of speech. One strongly advocated position is that free speech means that ‘anything can be said’. At the same time, there is increasing intolerance towards speech acts deemed to endanger society. This concerns speech by those suspected of terrorist offences. Efforts to criminalise incitement to terrorism reflect uncertainty by the EU and Western governments rather than faith in the strength of liberal democratic principles.
Incitement as a concern of EU policy
Incitement became an EU matter through a concern over racism and xenophobia. A 1996 Joint Action aimed to foster judicial cooperation to tackle certain offences, one of them being “public incitement to discrimination, violence or racial hatred“. Framework Decision 2008/913/JHA was more compulsory by mandating the harmonisation of national laws criminalising acts
Then there is the broadcasting sphere. Article 22a of the 1997 Directive regulating television broadcasting activities calls on Member States to
The update in the form of the 2010 Audiovisual Media Services Directive retained this inhibition to incite to violence and hatred in Article 6. In this sense, it could be argued then that the criminalising of incitement to terrorism as laid down in the 2002 Framework Decision on Combating Terrorism seems to be nothing out of the ordinary. However, the aim of this contribution is to show that incitement to terrorism duplicates existing policies.
Incitement and the link to terrorism
The 2002 Framework Decision required of all EU member states to incorporate a definition of terrorism into their national laws. This definition, set out in Article 1, was accompanied by a number of other articles criminalising aspects related to terrorism – leadership of, and participation in, a terrorist group, and ‘terrorist-linked offences’. Of particular interest here is Article 4 which criminalised ‘[i]nciting, aiding or abetting, and attempting’ acts of terrorism. The 2008 amendment of the 2002 Framework Decision contained only a small change by setting incitement apart from the notions of aiding or abetting and attempting in the second section of Article 4. Currently, the Council of the European Union is negotiating with the European Parliament over another modification of the EU’s definition of terrorism.
The draft text of this new Directive seeks to further broaden the already wide-ranging scope of incitement to terrorism. In the 2002 and 2008 Framework Decisions, incitement applied to the terrorist offence defined in Article 1, to offences relating to a terrorist group (directing and participating in a terrorist group) in Article 2, and to offences relating to terrorist activities (aggravated theft, extortion, falsifying administrative documents) in Article 3. Under Article 16 of the proposed Directive, incitement would apply not only to the three acts added by the 2008 amendment (public provocation to commit a terrorist offence, recruitment, providing training) but equally to the acts newly criminalized in the proposed Directive (travelling abroad for terrorism, organising or otherwise facilitating travelling abroad for terrorism, terrorist financing). The proposed Directive reflects a situation already evident in the 2008 Framework Decision whereby the definition of a terrorist offence, i.e. the actual violent act or the threat thereof, is supplanted in terms of importance by related offences – provoking, recruiting, training, aiding, abetting, inciting, attempting, travelling, organising, financing – which in themselves do not involve the perpetration of violent acts. The proposed Directive thus fits the desire for anticipatory action – acting before the actual threat emerges – that is much in evidence since the September 2001 attacks. After all, as the 2008 amendment explicitly introduced in Article 3(3) and incorporated as well by the proposed Directive in Article 15, for offences relating to terrorist offences it shall not be necessary that a terrorist offence be actually committed’ in order to regard them as criminal acts. These related offences concern those listed above in Articles 2, 3 and Article 16. Government intervention becomes possible well before the violent act is committed. By enlarging the scope of incitement the proposed Directive broadens the meaning of terrorism to such an extent that it provokes the question whether terrorism can be said to have any coherent meaning at all any longer.
Returning to incitement to terrorism, this notion is home to a peculiarity. If incitement to violence and hatred is already a criminal offence, the criminalization of incitement to terrorism seems somewhat superfluous. How should then we understand the EU’s attention to incitement to terrorism? One way is via the notion of radicalisation which gradually emerged as a prominent policy domain following the bombings in Madrid (2004) and London (2005). The concept of radicalisation has sensitised politicians and policy makers to be concerned with incitement to terrorism since the former refers to the processes of being socialised into potentially (violent) radical ideas which inciting speech may aid. Criminalising incitement to terrorism could then be a way for governments to get a better grip on radicalisation and terrorism by intervening early on by stemming a threat before it emerges. However, as is spelled out below, the notion of incitement to terrorism is something that should be met with caution due to the severity that is associated with terrorist acts.
The regulation of free speech and the status of terrorism
The prohibition of incitement to violence and hatred is a way to regulate and thus make compatible multiple liberal democratic values. Free speech is generally hailed as the hallmark of liberal democracy. Contrary to what has often been claimed in the last fifteen years in Western societies, free speech is not absolute in the sense that it permits anything to be said. Speech being claimed as jeopardising core liberal democratic values – regular democratic procedure as well as fundamental rights such as non-discrimination – can be acted upon in order to safeguard the principles of liberal democracy. Thus, criminalising incitement to violence and hatred is a way of regulating and governing the limits of free speech. The labelling of certain acts as terrorist has a comparable function. It operates as an exclusionary practice regulating and enforcing the space of liberal politics by drawing a boundary, and thus defining, between legitimate and illegitimate political violence. As with the claim of incitement to violence and hatred, the effect of labelling a perpetrator as terrorist is to exclude him or her from the space of normal politics as a legitimate participant.
Terrorism often has a profound effect on societies. It tends to put a strain on daily life in societies by fostering fear and suspicion in everyday interactions and often can lead governments to overreact. For instance, a report by Amnesty International showed how French police carried out a disproportionate amount of house raids and searches on the basis of slim evidence in the wake of the November 2015 attacks in Paris. Being accused of terrorism carries a strong stigma: it can exclude a person as a legitimate participant from the space of politics and result in deprivation of rights and incarceration. In light of this exclusionary potential, what becomes paramount with regard to incitement to terrorism is how it affects the way in which liberal democracies relate to civil liberties such as free speech.
Anticipatory action and governing through free speech
As a practice of governing, incitement to terrorism has an anticipatory nature. It seeks to act on a situation – by removing the speech from public space – before this situation spirals towards the perpetration of physical violence. Incitement to terrorism thus attempts to anticipate the creation of a conducive environment that could harbour the potential to predispose individuals toward such violence. But in altering this ideational space considered conducive to unlawful behaviour, the space of free speech is also modified. To be more precise, what incitement to terrorism affects is the possibility for dialogue between the inciters and the rest of society.
Incitement to terrorism is based on a literal reading of speech. Such a literal reading is necessary to make possible incitement as a mode of criminalising in the first place, as instances of speech by themselves should offer a sufficient pretext for criminalisation. However, this literal reading is not the only interpretation of inciting speech. Another possibility is an indirect reading with the effect of situating inciting speech in a wider context. Inciting speech thus becomes a signifier of broader issues at stake. Rather than just being a criminal deed, inciting speech functions as a veil that shrouds other issues from public view. An interesting example in this regard is the so-called Context Case in the Netherlands. Here, six of the nine suspects were convicted for participation in a terrorist organisation facilitating and funding of individuals travelling to Syria in order to fight; incitement to terrorism was among the charges on the basis of which the suspects were convicted. However, according to expert witness Martijn de Koning, the provocative statements by the suspects served to expose the double standards of Dutch society regarding Islam. The inciting speech of the suspects was thus a form of critique that a literal reading cannot uncover.
Inciting speech might be controversial and uncomfortable, but nevertheless constitutes a form of dialogue. Criminalising this dialogue by banning the inciting speech from public space ends the interaction between the inciters and the rest of society as a form of speech. The banning of inciting speech is often considered a good thing, because it stops the abuse of free speech and protects it as a space of proper deliberation. But such a response underestimates the potential of a strong condemnatory reaction made possible by free speech with the effect of isolating and thus disciplining inciting talk. Alternatively, engaging inciting talk through free speech might also move the interaction toward a less antagonistic context. In other words, free speech can govern and thus regulate inciting speech.
Free speech regulating inciting, terrorising speech may appear as idealistic and naïve. But there is already a means of last resort in order to discipline unruly speech: incitement to violence and hatred. The continuation to criminalise incitement to terrorism as done in the EU Directive on Combating Terrorism now under negotiation between the Council and the Parliament shows EU member states acting more from a defensive position rather than governing inspired by the core values as laid down in its own Charter of Fundamental Rights. As Frank Furedi observes in his 2007 book Invitation to Terror, this defensive stance reflects uncertainty about where Western political elites stand for and their
inability (…) to give meaning to their global policies means they are losing the battle of ideas with their own public.
The notion of incitement to terrorism evinces Furedi’s observation. In terms of addressing concerns of terrorism, caution and restraint is in order rather than duplication of policies.
 Framework Decision 2002/475/JHA, p. 5.
 Framework Decision 2008/919/JHA, p. 23.
 European Commission, ‘Proposal for a Directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism’, COM(2015) 625 final, p. 17-18.
 Framework Decision 2008/919/JHA, p. 23.
 Amnesty International, ‘Upturned lives: The disproportionate impact of France’s state of emergency’ (London: Amnesty International Publications, 2016).
 Court of The Hague, Verdict of 10 December 2015, ECLI:NL:RBDHA:2015:14365.
 Janny Groen, ‘Zelfs in de jihad speelt humor een rol (Even in the jihad, humour has a role)’, Volkskrant, 9 September 2015.
 Frank Furedi, Invitation to Terror: The Expanding Empire of the Unknown (London / New York: Continuum, 2007) p. 87.