The new crime of ‘glorifying’ terrorism, recently introduced under the Terrorism Act 2006, will lead to the suppression of legitimate debate on the causes of terror.
Since 13 April 2006, it has been a criminal offence to directly or indirectly encourage terrorism; those convicted face up to seven years imprisonment. ‘Direct encouragement’ is largely the same as the existing offence of incitement. It is ‘indirect encouragement’ that involves the idea of ‘glorifying terrorism’ as a part of its definition and thereby introduces an entirely new legal concept on to the statute books. It is an offence if a statement is issued from which it could reasonably be inferred ‘that what is being glorified is being glorified as conduct that should be emulated in existing circumstances’. In order to commit an offence, one has either to intend that members of the public be encouraged to commit terrorist acts, or be reckless as to whether members of the public would be encouraged to commit acts by knowingly taking such unreasonable risk that encouragement might occur.
Infringement of free speech
While the government’s original plans for an offence of ‘glorifying terrorism’ have been substantially amended since August 2005, as the Terrorism Bill has passed through the legislative process, there remain serious concerns that the new powers are so vaguely drawn that they will lead to a suppression of legitimate speech, publications and artistic works.
The concepts of ‘glorification’ and ‘indirect encouragement’ are wider than the long-established common law offence of incitement. Incitement involves encouraging or persuading a person to commit a criminal act and requires a fairly direct attempt to produce that behaviour in another person. Abu Hamza, for example, was convicted under incitement legislation dating from the 1860s. The new concept of ‘glorification’, on the other hand, is intended to cover a wider series of acts which are more oblique than incitement. And this is where the basic problem with the glorification clause lies: in cases where there is incitement, prosecutions can take place already under existing laws; and in cases where there is no incitement, to prosecute would be an unjustifiable infringement of freedom of speech.
Take, for example, the case of a preacher who describes the 9/11 suicide bombers as the ‘Magnificent 19’. To do so now is to risk prosecution for ‘glorification’. If such a case comes to court, it would have to be shown that the preacher intended to produce emulation in others. The problem is that if sufficient evidence could be produced to show that the speaker intended his audience to emulate the ‘Magnificent 19’ then it is hard to see how one would not have evidence of incitement – in which case there would be no need for the new legislation anyway.
In practice, the introduction of the new offence of glorification is likely to widen the net beyond incitement but in an entirely arbitrary way. Noticeably, the whole debate on the glorification clause has been conducted on the tacit assumption that only Muslims will be prosecuted. Charles Clarke makes much of the idea that juries know instinctively what glorification means and will take notice of the context in assessing whether glorification has occurred. In fact, given the arbitrary nature of terms like ‘glorification’, juries will be forced to make entirely subjective decisions and, in the current context of Islamophobia, it is likely that they will be much readier to convict someone who has already been labelled a Muslim extremist by the press.
Bear in mind, also, that the definition of terrorism that the 2006 Act relies on has two important characteristics:
- it does not draw a distinction between terrorist actions against the British state and against other states – thus the implication is that to encourage a terrorist attack on Israel or Iraq is equivalent in law to encouraging a terrorist attack on Britain;
- it does not draw a distinction between indiscriminate attacks on civilians or the use of violence against military targets in the context of an illegal occupation – in fact, even attacks that damage property are covered by the definition.
Because of this, the new offence of glorification directly criminalises anyone who argues in favour of the use of force against occupations in Palestine, Iraq, Afghanistan – or for that matter in Tibet. Since a significant number of people in Britain would probably support the use of violence against the Israeli occupation, this would effectively prevent possibly hundreds of thousands of people in the UK from freely expressing their political views. And, there are possibly millions of people in Britain who believe that Israel’s actions are at least as morally reprehensible as the terrorist actions of Palestinian suicide bombers. Courts may have to decide whether to argue this publicly constitutes reckless ‘indirect encouragement’.
For example, last year, Nasser Amin, a student at London’s School of Oriental and African Studies, wrote in a student magazine an article, entitled ‘When only violence will do’, arguing that Palestinians had the right to use violence against Israel. When the article was published a year ago, there were calls from the MP David Winnick for the author’s prosecution for incitement to racial hatred, a suggestion that does not seem to have been seriously considered. If a similar article were to be published today, there would no doubt be calls for a prosecution under the new glorification legislation rather than incitement, which would have a much higher chance of success.
Of course, the number of prosecutions brought is likely to be small. But the real impact will be found in the thousands of hidden acts of self-censorship and informal censorship that are likely to result. In the same way that public criticisms of the rich and powerful are often informally censored in the UK for fear of a libel suit, so the new glorification offence (which targets the dissemination of publications as much as the authors) may lead to publishers, editors, producers and theatre directors deciding that it is not worth the risk to publish or commission the work, particularly if the author in question is a Muslim.
Indeed, in the case of the internet, the law seems specifically designed to bring about informal censorship without the need to go to court. Police officers can now issue a notice to internet service providers (ISPs) stating that they consider an item on a website that it hosts to be ‘unlawfully terrorism-related’. The ISP then has two days to remove the item or to face possible prosecution for endorsing the item. No ISP is going to run this risk on behalf of its clients; this mechanism therefore gives the police the effective ability to censor UK-based websites, generally without the likelihood of going to court.
It is clear that the aim of the legislation is to go from criminalising terrorism per se to criminalising what Tony Blair calls the ‘evil ideology’ of terrorism. Tony Blair clearly wants this to be a global endeavour. At the UN Security Council meeting in September 2005, Tony Blair tabled a text on terrorism which became part of resolution 1624. In the resolution, the security council declared its repudiation of attempts at the ‘justification or glorification of terrorist acts’ and called on states to take measures against such attempts. And, in proposing this resolution, Tony Blair offered the following account of why he believed ‘glorification’ legislation was necessary: terrorism is ‘a movement with an ideology and a strategy… Terrorism would not be defeated until … [our] defence of freedom was as absolute as their fanaticism, and until [our] passion for democracy as great as their passion for tyranny… Terrorism would only be defeated when the [Security] Council united not only in condemning acts of terrorism but also in fighting the poisonous propaganda that the root cause of terrorism lay with [us] and not them.’ He went on: ‘The root cause of terrorism was not a decision on foreign policy, however contentious, but was a doctrine of fanaticism.’ The thinking here is clear: terrorism today is a fanatical ideological movement, not a single organisation; that ideology is defined by its view that the root causes of terrorism lie with western states; the war against terror must therefore involve also a war on this ideology, which must be criminalised as ‘glorification’.
What this represents is an attempt – led by Britain but likely to be replicated by other western countries – to expand the existing armouries of anti-terrorist powers into the realm of criminalising ideas, as well as acts. With the notion that it is necessary to combat a new kind of ideologically driven terrorism, western states will attempt to justify such an expansion. But the effect is that governments will be able to use their nations’ statute books to send out messages about what the limits of legitimate debate on terrorism are to be. In particular, they can rule out discussion of whether the causes of terrorism might indeed lie in the imperialist policies of western states. The question of when the use of violence is legitimate and when it is illegitimate will be circumscribed in their interests. The young Palestinian who becomes a suicide bomber out of a sense of hopelessness will be defined as a terrorist, whereas the remote-controlled missile attack on a Pakistani village, undertaken on the grounds that al-Qa’ida terrorists are suspected of hiding there, will not be defined as terrorism. Armed groups that seek to carry out regime change are ruled illegitimate but western states that carry out regime change are legitimate. With the criminalisation of ‘glorification’, dissenting from the official definition of terrorism is at risk of becoming a matter for the police rather than a matter of legitimate debate.
But this is the underlying meaning of all anti-terrorist legislation: to seek to monopolise the definition of when it is legitimate to use violence to bring about political change. In his press conference in August 2005, when Tony Blair first announced that the ‘rules of the game’ had changed, he said that there could never ‘be anything acceptable about deliberately killing innocent people for the purpose of furthering a political cause’. How carefully he had to choose his words so as not to rule his own wars and occupations illegitimate. Home secretary Charles Clarke was less careful: last year he told the House of Commons Joint Committee on Human Rights that ‘there is nowhere in the world today where violence can be justified as a means of bringing about political change’. By ‘violence’, of course, he meant only violence not carried out by western states. Yet there is no logically consistent way of defining terrorism that does not include state terrorism. And, in accruing to themselves a Hobbesian near-monopoly over discussion of what the nature of the terrorist threat is, Western states will be able to maintain a silence on how their own use of political violence is one of its ‘root causes’.
UN Security Council resolution 1624