Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Exercises and case studies

 

This section contains suggestions for in-class or pre-class educational exercises, while a post-class assignment for assessing student understanding of the Module is suggested in a separate section.

The exercises in this section are most appropriate for classes of up to 50 students, where students can be easily organized into small groups in which they discuss cases or conduct activities before group representatives provide feedback to the entire class. Although it is possible to have the same small group structure in large classes comprising a few hundred students, it is more challenging and the lecturer might wish to adapt the facilitation techniques to ensure sufficient time for group discussions as well as providing feedback to the entire class. The easiest way to deal with the requirement for small group discussion in a large class is to ask students to discuss the issues with the four or five students sitting close to them. Given time limitations, not all groups will be able to provide feedback in each exercise. It is recommended that the lecturer makes random selections and tries to ensure that all groups get the opportunity to provide feedback at least once during the session. If time permits, the lecturer could facilitate a discussion in plenary after each group has provided feedback.

All exercises in this section are appropriate for both graduate and undergraduate students. However, as students' prior knowledge and exposure to these issues varies widely, decisions about appropriateness of exercises should be based on their educational and social context.

 

Exercise 1: Discrimination research exercise

In small groups, your students could undertake some basic research (before or during the class) and then discuss their findings in relation to the following questions:

  • How is discrimination defined and prohibited in your legal system?
  • Are there any laws, codes of practice or other instruments dealing with the prevention of discrimination in law enforcement more generally, and counter-terrorism specifically?
  • Do you or others whom you know have personal experience of 'profiling' based on national, ethnic or religious characteristics in law enforcement? What impact did it have on you/them?
 

Exercise 2: Hate crime surge following terrorist attacks

Commonly, hate crimes against minority religious groups of different faiths increase in the wake of terrorist attacks, even where the latter are perpetrated in third party countries.

Watch and compare the following short film clips relating to such increases in hate crimes following the terrorist attacks in 2001, 2015 and 2017 in the United States, France and the United Kingdom respectively:

 
  • What are your views on what you have heard? Did anything surprise you from what was said?
  • Can you think of any circumstances in which terrorism related hate crimes have occurred in your own country? What was the cause and outcome of these?
  • What steps does your own country take against terrorism related hate crimes? Are they adequate? Or are there any other reforms and actions you would propose?
  • Have you ever personally experienced hate crimes relating to terrorist acts or ideology? If so, what impact did it have on you and how did you respond?
 

Exercise 3: Research exercise on Article 19 of the International Covenant on Civil and Political Rights (ICCPR)

  • Compare the text of article 19 of ICCPR right to freedom of opinion and expression with constitutional and other legislation protecting this right in your country. Are they the same? Or are there noticeable differences, in which case what is the effect of these on the exercise of this right in your country?
  • Article 19(3) of ICCPR requires that any restrictions on the right to freedom of expression must be "provided by law". Identify examples of legislation in your country which could be a legal basis for limiting freedom of expression on grounds related to countering terrorism.
  • How does your country criminalize crimes relating to the incitement of terrorism? Have any related human rights concerns been raised, e.g., by civil society? How does it compare with the "model offence of incitement to terrorism" developed by the United Nations Special Rapporteur on the protection of human rights while countering terrorism?
 

Exercise 4: Gallery Walk (see Teaching Guide)

Create, e.g., four stances, one for each of the fundamental freedoms examined in this Module (religion, opinion/expression, assembly and association).

On each stance, identify a small number of questions that the groups at each stance should discuss in relation to each of the fundamental freedoms being considered, e.g.:

  • What are the key elements of this fundamental freedom?
  • How is it most commonly eroded by terrorist actors?
  • In what ways can these rights and freedoms come under strain in a counter-terrorism context?
  • What are the impacts (e.g., on legal systems, society) when fundamental freedoms come under strain (e.g., as terrorist objectives)?
 

Case study 1: German Constitutional Court decision regarding 'dragnet' investigations *

Following the 11 September 2001 attacks with airplanes on targets in the United States of America, the German police authorities launched a sweeping 'dragnet' investigation aimed at the identification of terrorist 'sleeper cells' in Germany in what was known as the ' Rasterfahndung' programme.

The police obtained from universities, colleges, immigration offices and other private and public entities holding such information data sets about several hundred thousand individuals. This information was then screened automatically regarding certain criteria such as male gender, age between 18 and 40, Islamic religious affiliation, country of origin with a predominantly Islamic population. The names of all the persons fulfilling such criteria were collected in a file (the so-called 'sleeper' file) and subsequently matched with the register of persons holding licenses to fly airplanes, with the aim to then initiate further investigation. This effort is not known to have resulted in the exposure of a potential terrorist, nor in any charges of membership in a terrorist organization being brought.

A 28-year old Moroccan man of Islamic faith attending university in Germany filed a complaint before the Federal Constitutional Court. The Court noted that each individual piece of information gathered had relatively limited relevance to the right to privacy. However, the covert nature of the collection of this information and the stigmatizing effect of the criteria used (the religious profiling which resulted in only information on persons of Islamic faith being collected) meant that a very strong justification would be needed for the mass data collection and screening. Significantly, the Court noted that a situation of very specific heightened threat of a terrorist attack could have justified such measures. On the facts, however, the general situation of heightened threat perceived in Germany following 11 September 2001was not a sufficient justification.

* Bundesverfassungsgericht (BverfG-Federal Constitutional Court), Order of 4 April 2006, 1 BvR 518/02.
 

Case study 2: Limitations to freedom of religion

 

Güler and Uğurcase*

In this case, the ECtHR considered issues of limitations of the freedom to manifest religious beliefs in a case brought against Turkey by applicants who were convicted of promoting a terrorist organization. The legal basis of the applicants' conviction was section 7(2) of Law no. 3713 on the prevention of terrorism under which "[a]nyone who engages in propaganda in favour of a terrorist organisation shall be sentenced to a term of imprisonment of between one and five years."

The applicants had participated in a religious service in memory of three members of an illegal organization in Turkey - the PKK (Workers' Party of Kurdistan) - who had been killed by its security forces. The service was held on the premises of a political party, where PKK symbols had been displayed. According to the applicants their conviction was based on their participation in a religious service.

The Court found that there had been a violation of article 9 of ECHR and that the applicants' freedom to manifest their religion through participation at a service had been violated. The applicants' conviction had not been "prescribed by law" since the domestic law provision on which it had been based had not met the requirements of clarity and foreseeability.

The term 'propaganda' is commonly understood, according to the Court, as meaning "the deliberate dissemination of information in one direction to influence the public perception of events, persons or issues", but may also include certain forms of identification with a terrorist organization, the manifestation of support for terrorism, dissemination of messages praising the perpetrator of an attack, denigration the victims of an attack, raising money for terrorist organizations, or engaging in other similar conduct. The applicants had been found guilty of propaganda in favour of a terrorist organization based merely on the fact that the persons in whose memory the ceremony in question had been held were members of a terrorist organization and because of the choice of the venue for the ceremony. It had not been possible to foresee that mere participation in a religious service would fall within the scope of section 7(2) of the Law on the prevention of terrorism.

* Güler and Uğur v. Turkey (Application nos. 31706/10 and 33088/10), judgment of 2 December 2014, ECtHR.
 

Case studies 3: Freedom of expression, national security and terrorism

 

The Article 19 v. Eritrea case*

The African Commission on Human and Peoples' Rights considered a case regarding the limitation of freedom of expression in Communication Article 19 v. Eritrea brought by the non-governmental organization 'Article 19'.

The case concerned18 journalists from the private press who had been arrested and detained incommunicado without trial in Eritrea since September 2001. The journalists were arrested for a variety of alleged acts, including threatening national security (e.g. such as attempting to overthrow the government) and failing to observe licensing requirements. The only newspaper allowed inEritrea was a government owned daily newspaper.

The African Commission ruled that imprisoning journalists and banning the entire free press in the country violated article 9 (together with articles 1, 5, 6, 7(1) and 18) of the African Charter. Specifically, it was of the view that while it may be appropriate to place some restrictions on the dissemination of options, "[a]ny law enacted by the Eritrean Government which permits a wholesale ban on the press and the imprisonment of those whose views contradict those of the Government's is contrary to both the spirit and the purpose of Article 9." (Para. 105). The Commission was further concerned that unlawful constraints upon the ability of journalists to freely express and disseminate their views would not only violate their article 9 Charter rights, but also the public's right to information. (Para. 106).

Furthermore, the Commission articulated opinions of wider significance in terms of the relationship between security imperatives and the rule of law, specifically here how to reconcile these with freedom of expression and opinion. First, it found that "banning the entire private press because it constitutes a threat to the incumbent government is a violation of the right to freedom of expression, and is the type of action that Article 9 is intended to proscribe. A free press is one of the tenets of a democratic society, and a valuable check on potential excesses by government". (Para. 107) Additionally, regarding the more general relationship between the African Charter and international law obligations, the Commission further held that "[t]o allow national law to have precedence over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law." (Para. 105).

The Ekin Association case**

The case was lodgedwith the European Commission of Human Rights against France by the French association ''Ekin''. The association published in 1987 a book entitled Euskadi at war. The book promoted the Basque national liberation movement and the content of the book did not contain incitement to violence or terrorist acts. It was written mainly by Spanish authors and printed in Spain. Four language versions of the book were available: Basque, English, Spanish and French.

The book was banned from circulation on 29 April 1988 by a ministerial order issued by the French Ministry of the Interior. According to the order "the circulation in France of this book, which promotes separatism and vindicates recourse to violence, is likely to constitute a threat to public order". The Minister banned the publication based on "foreign origin" grounds according to sect. 14 of the 1881 Act as amended by the decree of 1939.

The European Court of Human Rights held as follows:

Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. (Para. 56).

The Court held that article 10 of ECHR had been violated. The interference arising from sect. 14 of the Law of 1881 as amended was not considered to be "necessary in a democratic society". The "foreign origin" concept was vague, and the decree did not include any justification as to why a foreign publication might be banned. Moreover, the section was in direct conflict with the wording of article 10(1) of ECHR, according to which the rights set forth in that article are secured "regardless of frontiers" (para. 62).

The J. case***

The case was brought before the Inter-American Court of Human Rights by Ms. J., accused of terrorism. According to the Government of Peru, she worked for El Diario, a clandestine journal, which the government claimed was part of the Communist party of Peru - Shining Path. El Diario had been monitored since 1992 by the National Counterterrorism Directorate, as according to the Government the newspaper directly incited the commission of terrorism.

On 13 April 1992, State agents detained Ms. J. on the grounds of aiding and abetting Shining Path's terrorists. She was raped, beaten and during her criminal proceedings she also experienced violations of her due process rights. On 18 June 1993, the 'faceless' Lima Superior Court of Justice acquitted Ms. J. due to insufficient evidence. Ms J. left Peru and was granted refugee status in the United Kingdom. On 9 February 1994, the 'faceless' National Counter-terrorism Chamber issued a warrant to re-arrest Ms. J.

The Inter-American Court found that the State had violated many provisions of the American Convention on Human Rights (articles 1-8, and 11). The Court further noted that despite a State's obligations to prevent terrorism, maintain public order and guarantee security to its citizens, "its powers are not unlimited, because, at all times, it has the obligation to apply procedures that are in keeping with the law and that respect the fundamental rights of every individual subject to its jurisdiction".

The Park case****

Mr. Park, a citizen of the Republic of Korea (South Korea), studied in the United States between 1983 to 1989. There, he was a member of an organization named the 'Young Koreans Union' (YKU), participating in its peaceful demonstrations and gatherings highly critical of the government of the Republic of Korea and of the military alliance between the Republic of Korea and the United States. Upon his return home, he was charged and found guilty of having violated the Republic's National Security Law and was sentenced to one year's suspended imprisonment. In considering Mr. Park's appeal, the Supreme Court found that the YKU was an organization which had as its purpose the commission of the crimes of siding with and furthering the activities of the Democratic People's Republic of Korea (North Korean) Government and thus an "enemy-benefiting organization".

Article 7 of the National Security Law under which Mr. Park was convicted read:

(1) Any person who has benefited an anti-State organization by way of praising, encouraging or siding with or through other means the activities of an anti-State organization, its members or a person who was under instructions from such organization, shall be punished by imprisonment for not more than seven years.

(2) Any person who has formed or joined an organization which aims at committing actions as stipulated in paragraph 1 of this article shall be punished by imprisonment for not more than one year.

Mr. Park complained to the United Nations Human Rights Committee. In considering the application, the Committee remarked that "the right to freedom of expression is of paramount importance in any democratic society, and any restrictions to the exercise of this right must meet a strict test of justification." It noted that the Government stated that the provisions of the National Security Law and their application in Mr. Park's case were justified to protect national security. However, "the Committee must still determine whether the measures taken were necessary for the purpose stated."

The Committee found that the Government had not explained "the precise nature of the threat … [Mr. Park's] exercise of freedom of expression posed." Nor was it of the view that Mr. Park's conviction could be said to be necessary for the protection of one of the legitimate purposes in article 19(3) ICCPR. It therefore concluded that there was a violation of freedom of expression.

* ACommHPR (2007). Article 19 v. Eritrea , Communication 275/2003. 30 May. See as well the case of six Ethiopian bloggers, 'Zone 9 Blog' who were arrested in 2014 under Ethiopia's Anti-Terrorism Proclamation. The blog's articles generally focused on respect for the constitution and rule of law, and highlighted the plight of political prisoners. The bloggers were accused of using social media to create instability in the country. As a 'terrorist act' their blogging potentially could have carried with it a 15-year imprisonment or the death penalty. These journalists were held for more than a year and were brought to court several times where police requested additional time for their investigation, before finally being released. All the charges brought against them were dropped prior to the official diplomatic visit to the country by then-President Obama. See further Oakland Institute, Ethiopia's Anti-Terrorism Law: A Tool to Stifle Dissent (Oakland, CA: Oakland Institute, 2015), p. 9.
** Ekin Association v. France (Application no. 39288/98), Judgment of 17 July 2001, ECtHR.
*** J. v. Peru (Preliminary Objection, Merits, Reparations, and Costs), Judgment of 27 November 2013, IACtHR, Series C, No. 275.
**** United Nations, Human Rights Committee (1998). Park v. Republic of Korea, Communication no. 628/1995. 3 November. CCPR/C/64/D/628/1995. Similarly, see United Nations, Human Rights Committee (1999). Kim v. Republic of Korea, Communication no. 574/1994. 4 January. CCPR/C/64/D/574/1994.
 

Case study 4: Freedom of association and assembly

 

The Gülcü v. Turkey case*

In 2008, the applicant, then a 15-year-old boy, participated in a demonstration during which he threw stones at police officers. He was convicted by an assize court of membership of an illegal armed organization (the PKK) for disseminating terrorist propaganda and for resisting the police. The charges against the applicant did not concern the infliction of any bodily harm.

The applicant was sentenced to a total of seven years and six months' imprisonment. He served part of his prison sentence. In 2012 his case was re-assessed by a juvenile court and he was released.

The European Court of Human Rights found a violation of article 11 of ECHR, noting that "nothing in the case file suggested that the demonstration attended by the applicant was not intended to be peaceful or that the organizers or the applicant himself had violent intentions". Furthermore, it took issue with the fact that the domestic courts had failed to provide any reasons for his conviction of membership of the PKK or of disseminating propaganda in support of a terrorist organization. The Court concluded that, given the applicant's young age, the harshness of the sentences imposed was disproportionate to the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others.

* Gülcü v. Turkey (Application no. 17526/10) , Judgment of 19 January 2016, ECtHR.
 

Case study 5: Restrictions on freedom of association

 

The Herri Batasuna case*

In June 2002, the Spanish Parliament enacted a new law on political parties, which in Chapter III regulates the dissolution by court of political parties which do not respect democratic principles and human rights.

In March 2003, the Supreme Court of Spain declared Herri Batasuna and Batasuna (two separatist parties from the Basque region) illegal, pronounced their dissolution and the liquidation of their assets. The Supreme Court considered that Herri Batasuna and Batasuna had the same ideology as the terrorist organization ETA ( Euskadi Ta Askatasuna, meaning "Basque Homeland and Freedom"), were in fact tightly controlled by ETA, and that they were instruments of its terrorist strategy. As evidence of this, the Supreme Court referred to incidents in which representatives of Batasuna had refused to condemn terrorist acts; had expressed support for detained ETA terrorists, including making them honorary citizens of municipalities governed by Batasuna; and had issued statements such as "ETA [does] not support armed struggle for the fun of it, but [it is] an organisation conscious of the need to use every means possible to confront the State".

Herri Batasuna and Batasuna appealed to the European Court of Human Rights. ECtHR stressed the linkage between freedom of expression and freedoms of association and assembly and recalled [para. 78] that "it is well-established in its case-law that drastic measures, such as the dissolution of a political party, may only be taken in the most serious cases". ECtHR agreed with the Spanish courts that "the refusal to condemn violence against a backdrop of terrorism that had been in place for more than thirty years and condemned by all the other political parties amounted to tacit support for terrorism" (para. 88). It further recalled the universal condemnation of justification for terrorism and the international instruments obliging States to criminalize public provocation to commit a terrorist offence.

ECtHR concluded that the dissolution of the two parties could reasonably be considered as meeting a "pressing social need" and as proportionate to the legitimate aim pursued. The measure could accordingly be considered "necessary in a democratic society". The sanctions imposed against Herri Batasuna and Batasuna were also proportionate. They were not criminal sanctions, but rather concerned the right to participate in elections and run for public office.

* Herri Batasuna and Batasuna v. Spain (Application nos. 25803/04 and 25817/04), Judgment of 30 June 2009, ECtHR.
 
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