The love that dare not speak its name
24 August 2024
Supporting Hamas is a crime in the UK, punishable by up to 14 years in prison. Section 12 of the Terrorism Act 2000 states that “a person commits an offence if the person (a) expresses an opinion or belief that is supportive of a proscribed organisation, and (b) in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.” When the Act became law in 2000, only the military wing of Hamas (the Hamas-Izz al-Din al-Qassem Brigades) was proscribed, but in November 2021 the UK ceased to recognise the distinction between the military and political wings of Hamas, and as a result the entire organisation is now officially designated as a terrorist organisation in the UK.
The definition of “support” is so broad that you can now be convicted of a terrorist offence in the UK simply for posting a single tweet that expresses sympathy for Hamas, or even for displaying an image of a paraglider on the back of your jacket.
On 14 October last year, Pauline Ankunda and Heba Alhayek attended a large protest march in London with images of paragliders attached to their backs. With them was a third woman, Noimotu Taiwo, who carried a sign with an image of a paraglider affixed to it. In February this year, all three women were found guilty of supporting Hamas.
The protest march came just a week after paragliders were used by Hamas to breach the Gaza/Israel border during Operation Al-Aqsa Flood (Arabic: عملية طوفان الأقصى). Given this context, the prosecution argued that displaying images of paragliders provided grounds for a reasonable suspicion that the women were celebrating the action taken by Hamas, and therefore supporting that proscribed organisation. This contravenes Section 13 of the Terrorism Act 2000, which states that “a person in a public place commits an offence if he (a) wears an item of clothing, or (b) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.”
“I support Hamas”
Paradoxically, it may be easier to convict someone of supporting Hamas on the basis of an image they display (in contravention of Section 13) than on the basis of something they write (which contravenes Section 12), for words are often more ambiguous than pictures. Even an apparently straightforward statement like “I support Hamas” may, in some contexts, be perfectly legal. For example, in the subheading above, in the previous sentence, and indeed in this one, the fact that the statement “I support Hamas” appears in quotation marks indicates that it is not intended as an expression of my personal beliefs but refers instead to the statement itself.
Alternatively, a person who utters this statement might be thinking not of the organisation but of the idea it embodies. This way of using the word Hamas is far from esoteric; in June, the head of the IDF Spokesperson’s Unit, Rear Admiral Daniel Hagari, argued that “whoever thinks we can eliminate Hamas is wrong” because “Hamas is an idea” — an idea, moreover, that is “rooted in the hearts of the people.” It would be unsafe, therefore, to conclude merely from the fact that someone who posts the statement “I support Hamas” to Twitter/X that he or she supports the proscribed organisation rather than simply supporting the idea that this organisation embodies.
It is also possible that they might be joking, a defence that was eventually vindicated in the famous Twitter joke trial. In January 2010, a British man by the name of Paul Chambers, posted the following message on Twitter/X for his girlfriend:
Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!
Chambers was arrested by anti-terror police at his office who then searched his house and confiscated his mobile phone, laptop and desktop hard drive. He was subsequently charged with “sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character,” contrary to the Communications Act 2003, section 127. A few months later Chambers was found guilty at Doncaster Magistrates’ Court, fined £385, and ordered to pay £600 costs. As a consequence he lost his job as an administrative and financial supervisor at a car parts company.
The conviction was widely condemned as a miscarriage of justice, but was upheld on appeal to the Crown Court. Chambers then appealed to the High Court, which eventually quashed the conviction. One of the arguments made by Chambers’ barrister for this last appeal, John Cooper QC, was that if the tweet was “menacing” then so was John Betjeman’s poem, “Slough,” with its famous plea: “Come, friendly bombs, and fall on Slough!”. Cooper also asked whether Shakespeare would have been prosecuted if he had tweeted his line from Henry VI, Part 2 (Act IV, Scene 2): “The first thing we do, let’s kill all the lawyers.” The latter reportedly drew laughter from the judges.
In quashing Chambers’ conviction the judges ruled that “a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision [of the 2003 Act]”. In a subsequent review, the Law Commission recommended that the law be reformed to narrow the use of section 127 in future prosecutions:
The reformed offences will refocus the criminal law on communications where the sender specifically intended to cause harm, and that pose a real and substantial risk of causing at least serious distress. It will no longer be enough that the communication was “grossly offensive” regardless of whether harm was likely or intended.
These are just some of the considerations that must be taken into account when endeavouring to construe the meaning of the words in a tweet or on a placard. Sometimes the meaning may be obvious; at others, it may appear obvious at first sight, but turn out on reflection to be anything but. Context is everything.
Thoughtcrime
However, by diving so deeply into the intricacies of hermeneutics, do we not come perilously close to the notorious concept of “thoughtcrime” imagined by George Orwell in 1984?
Section 12 of the Terrorism Act 2000 narrowly avoids this peril by including a reference both to overt behaviour and its potential consequences. Simply having “an opinion or belief that is supportive of a proscribed organisation” is not in itself a criminal offence; indeed, it is hard to see how it could be, given the absence of any reliable technology for reading people’s minds. A crime is only committed when a person expresses such an opinion or belief, and does so in a way that is “reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation” [emphasis added]. So if your support Hamas is entirely a matter of moral support, and you never give voice to this attitude or express it overtly in any other way, you’re good. You’re also good if, should you ever give voice to your support for Hamas, you do so only after carefully judging there to be little or no risk that your words will encourage any listeners or eavesdroppers to adopt a similarly supportive attitude.
The latter condition is important because, as the Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, noted in January this year:
If sections 12(1) or (1A) (inviting support for, or expressive supportive views of, a proscribed organisation) was extended so that an offence was committed whether or not there was a risk that someone might be induced to support the proscribed organisation, then the impacts would be severe. It would be practically impossible to express the view that a group should no longer be proscribed (even though the Terrorism Act 2000 enables members of the public to apply for description). It would prevent neutral or justifiable views being expressed in public or in private (for example, “Hamas has done the right thing to agree to lay down its arms!”). Adapting the sections to apply to acts of individual terrorists, or terrorist acts, would be impossible given the width of the terrorism definition under UK law, without applying equally to Nelson Mandela and the Gunpowder Plot.
If section 1 Terrorism Act 2006 (encouragement of terrorism) applied to individuals who encouraged or glorified terrorism in circumstances where there was no reason to believe that anyone would end up being encouraged, it would again penalise satire (such as Christopher Morris’s 2010 film, ‘Four Lions’), irony and mere stupidity; and it would capture individuals who glorified historic terrorists such as William Wallace (‘Braveheart’), and their actions.
Moreover, to extend liability would result, in many cases, in terrorism convictions of individuals who were by no stretch of the imagination terrorists (such as the ‘Walter Mitty’ character who claimed to be a member of Hamas in a famous case in the House of Lords); and in circumstances where there was no identifiable terrorist risk (for example, a person who makes a supportive statement concerning a proscribed organisation even though no one is remotely likely to end up supporting the proscribed organisation). It would be difficult to justify any reduction in freedom of expression or freedom of assembly in these circumstances.
This truly would be an Orwellian world, as Hall points out:
Not only would it penalise satire, irony and mere stupidity; in addition, members of the public talking (let alone, demonstrating) about current events would need to monitor their words carefully so that they were not seen (or accused, in good or bad faith) to be aligned with a proscribed organisation — even though there was no plausible basis to think that they were in fact members of such a group.
The law is an ass
Let’s say, however, for the sake of argument, that a magistrate or judge has determined that a certain tweet cannot reasonably be interpreted in any other way than as an outright expression of support for Hamas (the proscribed organisation, not the idea). Let us further suppose that the judge has determined that the author posted this tweet without taking sufficient care to ensure that there was little or no risk that the tweet might encourage readers to adopt a similarly supportive attitude. In such a case, the judge must find the tweet’s author guilty of a criminal offence under section 12; they have broken the law.
But the law is not always right. There is absolutely no ground for supposing that merely because a practice (apparently) contravenes a given piece of legislation, it is therefore wrong. And in the case of supporting Hamas, the relevant legislation consists of two things: the Terrorism Act 2000, and the schedule of proscribed organisations (Schedule 2). Under the Act, the Home Secretary may add an organisation to this list if they believe both that (a) the organisation is concerned in terrorism, and (b) that it is proportionate to proscribe it.
Whether or not an organisation meets the first criterion (that the organisation be “concerned in terrorism”) depends of course on how that all-important word “terrorism” is defined. In UK law, the definition is extremely broad, as Jonathan Hall noted in a report published in July last year:
The definition of terrorism in UK law, whilst practical and effective, is broad and carries the risk of terrorism powers may be exercised in cases which fall outside what would generally be considered terrorism. There are no clear dividing lines between terrorism and violent activism or protest.
It is the expansive definition of terrorism in UK law that allows police to use counter-terrorism stop and search powers for such mundane purposes as excluding hecklers from a public event. When, for example, Walter Wolfgang shouted “nonsense” at the Labour Party’s annual conference in 2005, and was kicked out of the hall, police later used powers under the Terrorism Act to prevent the 82-year-old man from coming back in.
The second criterion that must be met before the Home Secretary can add an organisation to the list of proscribed organisations (proportionality) means that, even when an organisation meets all the statutory criteria for proscription, the Home Secretary must still exercise his or her discretion when considering whether or not to proscribe it. In exercising this discretion, the Home Secretary must take into account the following factors:
- the nature and scale of an organisation’s activities
- the specific threat that it poses to the UK
- the specific threat that it poses to British nationals overseas
- the extent of the organisation’s presence in the UK
- the need to support other members of the international community in the global fight against terrorism.
So, how does Hamas measure up, when judged by these criteria? It should first be noted that Hamas does not, and never has, posed any kind of threat to the UK or to British nationals overseas. It has no presence in the UK, and has never attempted to influence the British government by threats of violence, nor has it ever attempted to intimidate the British public or any section of it. The only factor in the above list that the Home Secretary could conceivably have had in mind when deciding to proscribe the political wing of Hamas in November 2021 is the last one: the alleged “need to support other members of the international community in the global fight against terrorism.” The only member of the international community to which Hamas poses any threat is the state of Israel, so I can only conclude that, in deciding to proscribe the political wing of Hamas in November 2021, the Home Secretary acted solely for the purpose of supporting Israel. To allow such important and far reaching domestic decisions to be guided exclusively by the interests of a single foreign power is extremely myopic to say the least, regardless of whether or not that foreign power claims to be one of our allies. It is further proof — as if any were needed — that when it comes to Israel, British foreign policy is invariably characterised by craven submission to, and uncritical support for, the often opaque decisions of whatever government happens to be in power there. Governments in Israel are notoriously fickle, and this is especially true in the case of Hamas, which was actively supported by Netanyahu for many years before he did an abrupt U-turn and decided it was an existential threat to Israel. If British foreign policy in the Middle East is based not just on uncritical support for Israel, but also on aligning itself with the mercurial whims of Netanyahu’s government, it loses its last remaining scraps of credibility.
Domestic policy follows suit, with the result that the UK now regularly arrests its own citizens for posting tweets or displaying images that might possibly offend a foreign power — one which, moreover, finds itself increasingly isolated in the international community. As Beverley Milton-Edwards and Stephen Farrell point out in their recently updated book, Hamas: the Quest for Power, many countries, particularly in the Global South, now believe that “until [Hamas] is recognised as a legitimate political force and included in the accommodation of power, there can never be peace in the region.” By designating Hamas in its entirety — and not just its military wing — as a terrorist organisation, the UK, far from making the Middle East more secure, has actually reduced security in the region.
It has also added further complications to the already difficult task of supplying aid to the civilian population in Gaza. As Jonathan Hall pointed out in his second annual report as Independent Reviewer of Terrorism Legislation:
Aid agencies may have little option, if they are able to reach certain at risk populations, but to run programmes in collaboration with governing institutions, in which senior individuals have links to proscribed groups. An example would be delivering a health programme in hospitals under the control of a government official who is connected to a proscribed group, or which is directly controlled by a proscribed group.
For example, in December 2018 the Charity Commission issued an alert for charities seeking to bring aid through the Bab Al-Hawa crossing from Turkey into Idlib province in Syria because the crossing was under the control of Hay’at Tahir Al-Sham (HTS), an alternative name for Al Qaida. Drawing attention to Section 17 of the Terrorism Act 2000, the Charity Commission noted:
There is a risk that HTS could incur financial benefit from any aid passing through the Bab Al-Hawa crossing and therefore charities and their partners, using this crossing, may be inadvertently funding HTS.
Using a sledge-hammer to crack a nut
And let us not forget the public resources — both time and money — that are now wasted on pursuing journalists, academics, writers, and protesters for expressing “an opinion or belief that is supportive of” Hamas, rather than being used to go after the real bad guys.
Last week it was reported that the Crown Prosecution Service (CPS) had dropped a case against an academic almost a year after counterterrorism officers raided her house and confiscated all her electronic devices (and, just for good measure, a protest sign with “Palestine” written in Arabic). Dr Amira Abdelhamid’s alleged crime? A few tweets that allegedly expressed support for Hamas. Even now, after the case has been dropped, the police have yet to return her confiscated belongings, leaving her unable to teach or continue her research.
This week British journalist Richard Medhurst was arrested shortly after landing in Heathrow for allegedly committing the same offence — namely, expressing “an opinion or belief that is supportive of a proscribed organisation.”
And let’s not forget the recent riots across the UK, which have raised the possibility that anti terror laws may in future be used not just to silence middle class academics and writers but also to jail working class men and women on the other end of the political spectrum. So far, no-one involved in the riots has been charged with a terrorism offence, nor have prosecutors argued that any of the many charges of violent disorder have a terrorist motive. The Crown Prosecution Service, however, says the possibility remains under consideration. The former head of counter-terror policing, Neil Basu, has said he thinks some of the actions did cross the “line into terrorism.”
Prosecutors and police can formally link violent disorder to terrorism. Earlier this month, when seven people appeared in court over a Palestine Action protest at an Israeli-based defence firm’s site in South Gloucestershire, prosecutors claimed that they were involved in terrorist-related activities. Although the protesters were charged with violent disorder, which is not a terrorist offence, the Crown Prosecution Service said that the incident at the Elbit Systems UK building on 6 August had a “terrorist connection.”
Last but not least, the Home Office minister Jess Phillips announced this week that she proposes to treat misogyny in future as an “extremist ideology.” Phillips justified her proposal by citing concerns expressed by the National Police Chiefs’ Council about “the growing rise in misogynistic attitudes among young men,” but categorising the vague and expansive term “misogyny” as a form of extremism threatens to make laddish classroom banter grounds for labelling young men and boys as potential terrorists and referring them to the counter-terror programme, Prevent.
Taken together, these disparate events are evidence of a creeping authoritarianism in British politics and society. It is not just that thousands of Britons dare not speak openly of their support for Hamas for fear of going to prison; the same legislation that targets them could also catch hundreds of thousands of other Britons (who are quite happy to jail Hamas supporters) in its broad and expansive net. Perhaps, when they are all in prison together, they might realise they have more in common than they thought.
