Module 9: National Security
Since the terror attacks in the United States on 11 September 2001, much of the focus of security legislation has been on countering terrorism. In part, this reflects a genuine change in understanding the nature of the threat to national security — seen also in the notion that terrorism or terrorist organisations as the objects of a “war.” More generally, it serves as a rhetorical device whereby dissent — including critical media coverage — may be characterised as giving succour to terrorists.
The UN Security Council has required member states to take a number of steps to combat terrorism. One measure of particular relevance to the media is contained in Resolution 1624 of 2005, which was the first international instrument to address the issue of incitement to terrorism. The preamble to Resolution 1624 condemns “incitement to terrorist acts” and repudiates “attempts at the justification or glorification (apologie) of terrorist acts that may incite further terrorist acts.”(1)
One serious problem with legal restrictions on the glorification (or even incitement) of terrorism is the lack of any commonly accepted definition of terrorism in international law. Early counter‑terrorism treaties focused on the criminalisation of particular acts, such as hijacking aircraft, without using the term terrorism. Later treaties, such as the International Convention for the Suppression of Financing of Terrorism,(2) do offer a definition, although this has no binding character beyond signatories to the treaty.
Many states, as well as entities such as the European Union, additionally define terrorism with reference to certain organisations “listed” as terrorist entities. This may hold particular dangers for the media in reporting the opinions and activities of such organisations. The United Nations Special Rapporteur (UNSR) on counter-terrorism and human rights has offered a definition of terrorism, based upon best practices worldwide, which focuses on the act of terror rather than the perpetrator:(3)
“Terrorism means an action or attempted action where:
1. The action:
(a) Constituted the intentional taking of hostages; or
(b) Is intended to cause death or serious bodily injury to one or more members of the general population or segments of it; or
(c) Involved lethal or serious physical violence against one or more members of the general population or segments of it; and
2. The action is done or attempted with the intention of:
(a) Provoking a state of terror in the general public or a segment of it; or
(b) Compelling a Government or international organization to do or abstain from doing something; and
3. The action corresponds to:
(a) The definition of a serious offence in national law, enacted for the purpose of complying with international conventions and protocols relating to terrorism or with resolutions of the Security Council relating to terrorism; or
(b) All elements of a serious crime defined by national law.”
The issue has been relevant in South Africa which, in 2022, tabled the draft Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill, which has been criticised for its broad definitions of terrorism.(4)
Sometimes, expression on its own is deemed a threat to national security — and these situations are addressed under incitement. For more detail on incitement, see Module 6 of this series on Hate speech.
Terrorism and internet shutdowns
General Comment No. 34 on the ICCPR states that the media plays an important role in informing the public about acts of terrorism, and it should be able to perform its legitimate functions and duties without hindrance.(5) While governments may argue that internet shutdowns are necessary to ban the spread of news about terrorist attacks to prevent panic or copycat attacks, the UNSR on freedom of expression has instead found that maintaining connectivity may mitigate public safety concerns and help restore public order.(6)
At a minimum, if there is to be a limitation of access to the internet, there should be transparency regarding the laws, policies and practices relied upon, clear definitions of terms such as ‘national security’ and ‘terrorism’, and independent and impartial oversight being exercised.
Two recent judgments by the Economic Community of West African States (ECOWAS) Community Court of Justice have taken a strong stand against the abuse of national security justifications for limiting freedom of expression. In addition to the June 2020 ruling addressing the internet shutdowns implemented by the Togolese government in 2017, discussed below,(7) in a similar case in 2022, the Court held that the government of Nigeria’s banning of social media platform Twitter, on the grounds of preventing secessionist violence, was also illegal.(8)