On October 7, 2023, Hamas launched an attack on Israeli civilians, resulting in deaths and hostage-taking. Reports of various atrocities, including sexual abuse, emerged. The victims included not only Israelis but also citizens of other countries such as France and Germany.
The attack shocked the international community and drew widespread condemnation from governments worldwide. However, it also sparked pro-Palestinian rallies, demonstrations, and events in several countries. These shows of support have continued, particularly in response to Israel’s ongoing military operations in Gaza.
The October 7 attack clearly fits the definition of a terrorist operation, and Hamas is designated as a terrorist organization by both the US and the European Union. However, public reaction has reflected the old saying, “One man’s terrorist is another man’s freedom fighter.”
In Neukölln, Germany, dozens gathered to celebrate the attack. A 23-year-old man, draped in a Palestinian flag, was seen handing out sweets. Such rallies and protests have raised concerns among European authorities, not just about potential riots but also about radicalization.
Both on the ground and online, certain slogans and images have emerged that question Israel’s existence. For example, the chant “From the River to the Sea, Palestine will be Free” and maps circulating without Israel have raised concerns about glorifying terrorism. This has prompted debates about how countries should respond.
France’s highest administrative court ruled that pro-Palestinian protests must be evaluated on a case-by-case basis. This decision followed a petition against French Interior Minister Gérald Darmanin’s blanket ban on such demonstrations. The complexity of the issue is further illustrated by a past Dutch Court of Appeal decision that protected the “From the River to the Sea” chant on free speech grounds.
However, this Dutch ruling predated the October 7 attack, which resulted in numerous casualties and threatened Israel’s security. Recently, the Dutch House of Representatives adopted a motion to ban the slogan, initiated by MP Diederik Van Dijk. Similarly, the U.S. House of Representatives passed a resolution condemning the slogan as an anti-Semitic “call to arms” aimed at eliminating the State of Israel.
With bans on protests and police intervening in rallies in several countries, Europe and the international community more broadly can expect to see an uptick in cases centering on whether the performance or deployment of certain songs, slogans, or symbols constitute crimes, or whether free speech concerns protect this conduct. Such cases can be expected also to reach the European Court of Human Rights (ECHR), which will then be tasked with determining whether countries and their national courts have correctly applied the European Convention of Human Rights in balancing free speech concerns against hate speech.
To this end, I have explored ECHR jurisprudence on these matters, which has revealed criteria for its decisions.
The basic article of the European Convention on Human Rights (Convention) serving as the basis of the legal discussion here is Article 10 (freedom of expression), which reads:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
I found two decisions showing two different ways the ECHR has dealt with cases that criminalized behavior seen as supportive of terrorism.
On August 31, 2021, the Chamber unanimously ruled that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The case involved an applicant’s criminal conviction for disseminating propaganda favoring a terrorist organization through two Facebook posts.
The applicant, an imam in Diyarbakir, was charged by the public prosecutor for propaganda that condoned, praised, and encouraged the use of PKK’s methods involving coercion, violence, and threats.
It’s important to note that the PKK (Partiya Karkerên Kurdistanê, meaning Workers’ Party of Kurdistan) is designated as a terrorist organization by multiple countries and the EU. The Court referred to it as “an illegal armed organization” in its decision.
The “message” in question was linked to an image posted and circulated online. This case is set against the backdrop of the long-standing Turkish-Kurdish conflict.
Regarding the alleged by the applicant breach of Article 10, the ECHR determined:
The Court considered that the decisions lacked an adequate explanation of the reasons why the impugned contents had to be interpreted as praising, condoning and encouraging the methods entailing coercion, violence and threats used by the PKK, in the context of the sharing of the posts. It noted that the decisions consequent upon the assessment carried out by the domestic courts in the present case had failed to take into account all the principles established in the Courts’ case-law under Article 10 of the Convention concerning verbal and written statements presented as fuelling or justifying violence, hatred or intolerance, since they had not explained whether the sharing of the posts in question could have been considered, in view of their content, context and capacity to lead to harmful consequences having regard to their potential impact on the social networks under the circumstances of the case, as comprising incitement to the use of violence, armed resistance or uprising, or as amounting to hate speech. The domestic authorities had therefore failed to conduct an in-depth analysis taking account of all the criteria which the Court sets out and implements in cases concerning freedom of expression. The Court concluded that by convicting the applicant on a charge of disseminating propaganda in favor of a terrorist organization by posting the impugned contents on his Facebook account, the domestic authorities had failed to conduct an appropriate balancing exercise, in keeping with the criteria set out in its case-law, between the applicant’s right to freedom of expression and the legitimate aims pursued (protecting national security and territorial integrity and preventing disorder and crime). Thus, the Government had not demonstrated that the grounds relied on by the domestic authorities to justify the impugned measure had been relevant and sufficient and had been necessary in a democratic society. There had therefore been a violation of Article 10 of the Convention.
The ECHR evidently emphasizes the importance of member states applying the balancing test between freedom of expression and national security, as required by the second paragraph of Article 10 of the Convention.
In September 2021, the ECHR ruled on a case involving an applicant convicted by French courts. The conviction was for glorifying crimes of willful killing through terrorism-related slogans. The slogans in question were: “I am a bomb” and “Jihad, born on 11 September.” These were displayed on a T-shirt given to the applicant’s three-year-old nephew. The slogans referred to the child’s name and birth date. The boy wore this T-shirt to nursery school in 2012, 11 years after the 9/11 attacks.
The Court found no breach of the Convention in this case.
According to the Court:
The applicant had knowingly devised the slogans, relying on the polysemic nature of the word “bomb”, which could refer, in colloquial French, to the physical characteristics of an attractive person, while associating this description with his nephew’s identity. The slogans could not be regarded as participating in a debate of general interest in relation to the attacks of 11 September 2001 or other subjects….The general context of terrorist attacks in France, however serious, could not in itself justify the interference at issue in the present case. However, the Court could not ignore the importance and weight of that general context. Although more than eleven years separated the attacks of 11 September 2001 from the events giving rise to the present case, the fact remained that the slogans at issue had been displayed only a few months after other terrorist attacks, which had resulted in the death of three children in a school. The passage of time could not be regarded as having diminished the significance of the message at issue. The fact that the applicant had no links with any terrorist group and did not espouse a terrorist ideology could not detract from the significance of that message either. As to the specific context in which the slogans had been made public, the Court of Appeal had noted that a three-year-old child, who was the unwitting bearer of the offending message, had been instrumentalized without any possible awareness of the fact, and that the message had been disseminated not only in “a public place” but also on the “premises of a school” where young children were present. In addition, the T-shirt bearing the slogans at issue was not directly visible to third parties but was discovered when the child was being dressed by adults. Nor was it accessible to the general public, since it was worn only on school premises. The message could thus only be read by two adults. While the Court could not speculate on the exact nature of the applicant’s intentions on this point, he had not denied that he had specifically asked his nephew to wear the T-shirt in question at school or that he had intended to share its message. On the contrary, he had presented it as a humorous gesture. The applicant could not have been unaware of the particular connotation – over and above the mere provocation or bad taste on which he relied – of such slogans on the premises of a nursery school, shortly after attacks that had claimed the lives of children in another school and in the context of a proven terrorist threat.…The grounds on which the applicant’s conviction had been based, namely to prevent the glorification of mass violence, were both “relevant” and “sufficient” and in this sense it had met a pressing social need. … Accordingly, having regard to the specific circumstances of the present case, the impugned interference could be regarded as “necessary in a democratic society”…In its judgment, the Court found no violation of Article 10 in view of the general context in which the impugned events had taken place, including the Toulouse terrorist attacks in which three children had been killed outside their school, and also the specific context, that is to say the instrumentalization of a three-year-old child.
The Court emphasizes that a “message” must be interpreted within its general context to be evaluated correctly. This means that words, images, and symbols don’t have fixed, standard meanings, and that all circumstances must be considered in judicial assessment, including security parameters and the sense of danger felt by members of society.
The Court holds that the impact of a terror attack, including victimization, pain, and fear caused, should not be considered irrelevant by courts.
This approach is consistent with the ECHR’s decision in the Leroy v. France case, which involved a cartoon published two days after the September 11, 2001 terrorist attacks, with the caption “We have all dreamt of it … Hamas did it”.
Regarding this case, the Court observed:
The events of 11 September 2001 had given rise to global chaos and the issues that had been raised on that occasion were part of a debate of general interest. The drawing was itself a good indicator of the applicant’s intention. However, when viewed together with the accompanying text it could be seen not merely to criticize American imperialism, but to support and glorify its violent destruction. By publishing the drawing, the applicant had expressed his moral support for and solidarity with those whom he presumed to be the perpetrators of the attacks, demonstrated approval of the violence and undermined the dignity of the victims. His underlying intentions were not relevant to the proceedings brought by the public prosecutor. Indeed, they had not been expressed until after the event and could not, given the context, undo the harm caused by his positive reaction to the consequences of the criminal act. Provocation did not necessarily need to cause a reaction to constitute an offence. While in the applicant’s case it had taken the form of satire, a form of artistic device and social commentary whose natural aim, though its intrinsic characteristics of exaggeration and distortion of the truth, was to provoke and cause agitation, anyone relying on freedom of expression undertook duties and responsibilities. The drawing had assumed special significance in the circumstances of the case, as the applicant must have realized. It was published two days after of the attacks, with no precautions as to language, at a time when the entire world was still in a state of shock at the news. The timing of the publication could only increase the applicant’s responsibility. In addition, the impact of such a message in a politically sensitive region was not to be overlooked; the publication of the drawing had provoked a reaction that could have stirred up violence and suggested that it may well have affected public order in the region. The applicant’s conviction had thus been based on relevant and sufficient grounds and only a modest fine had been imposed. In the circumstances, regard being had in particular to the context in which the caricature had been published, the measure imposed on the applicant had not been disproportionate to the legitimate aim pursued.
The European Court of Human Rights has issued numerous decisions on relevant cases (e.g., Gözel and Özer v. Turkey, Stomakhin v. Russia, Rouillan v. France). In these rulings, the Court has tended to consider several factors:
- The actual impact of an attack
- The danger caused by the “message” in question
- How the message is expressed
- People’s right to criticize and express their views
In the current situation, messages that deny Israel’s existence or support Hamas are closely linked to the October 7th atrocities. These messages could potentially endanger Jews and Israelis worldwide. With rising antisemitic incidents in Europe, supporting Hamas could incite violence against Jews beyond Israel. Recent arrests in Germany and Denmark for alleged Hamas plots underscore this concern.
The Israeli-Palestinian conflict’s long history and complexity cannot be overlooked when discussing the current polarization. While solidarity with Palestinians, calls for peace, demands to end the Gaza war, and criticism of illegal Israeli policies should be protected under European law, this protection has limits. It shouldn’t extend to messages supporting terrorist violence or hate crimes, especially given the recent attack in Israel, ongoing hostage situation, and potential for new attacks in Europe.
Content calling for the destruction of nations or targeting people based on religion, ethnicity, or culture can be considered incitement to violence. Europe’s counter-terrorism efforts have focused on preventing radicalization, both online and offline. How this legislation will be applied in the current circumstances remains to be seen.
Democracies must carefully balance counter-terrorism measures with civil liberties. While the fight against terrorism shouldn’t be used to silence opposition or impose authoritarian measures, societies also can’t remain defenseless against terrorist threats and radicalization.
Balancing freedom of expression and security is one of the most crucial and challenging exercises in democracy, especially during turbulent times.
The author, Maria Alvanou, is a Greece-based Supreme Court lawyer, criminologist, and scholar of law and terrorism.
