Incitement to terrorism: The nexus between causality and intent and the question of legitimacy-A case study of the european union, Belgium and the United Kingdom

Abstract

In an effort to prevent terrorism and an environment conducive to terrorism, legislators increasingly resort to speech-restricting measures. To exemplify this expansion, the evolution of the European Union’s (EU) criminal policy on incitement to terrorism is mapped. Domestic authorities often go further than the minimum requirements of the EU (for example Belgium) or have introduced far-reaching criminal law provisions regardless of an initiative at the EU level (for example the United Kingdom (UK)). Therefore, this chapter aims to subject the criminal policies of incitement to terrorism of the EU, Belgium and the UK to a legitimacy test. To answer this question of legitimacy, the three main principles of criminal law, namely subsidiarity, proportionality and legality, are used as the theoretical backbone of the research. The author argues that by lowering or eliminating certain constitutive elements, and by introducing vague language, these principles have come under pressure. In order to safeguard the fundamental values of democracy and the requirements of the rule of law, a criminalisation of speech must always entail a strong nexus between an objective imminent danger and a subjective intention.