Killing in the Name of Islam? Assessing the Tunisian Approach to Criminalising Takfir and Incitement to Religious Hatred against International and Regional Human Rights Instruments

ABSTRACT The rise of political Islam since the 1970s and the lack of a robust political alternative during the Arab Spring have paved the way for the widespread issuance of accusations of unbelief or takfir against individuals, groups of people, or institutions. These pronouncements fit into the broader context of radical Islamist ideologies spread by systematic hate propaganda, and when the two converge they constitute instigation to murder. The need to address this phenomenon has arisen in states with substantive Muslim populations in order to protect essential human rights. Tunisia has chosen a head-on approach by criminalising accusations of unbelief and incitement to religious hatred and loathing as terrorist offences. While this approach can be seen as an encroachment upon the right to freedom of expression, it has to be balanced against states' positive obligations in protecting competing human rights. Drawing on the jurisprudence of the Human Rights Committee of the ICCPR and the African Commission of the ACHPR as well as literature in the field of human rights, this paper demonstrates the interrelation between the right to life, freedom from fear, security of the person, and the right to dignity, as well as their violations through unfettered takfirism.


Introduction
Mainstream Sunni Islam considers it wrong for Muslims to engage in the practice of takfir (excommunication), a right they consider to be held solely by God. 1 An explicit condemnation of such practice can be found in the second sacred source of Islam, the Sunnathe teachings, sayings, actions, and omissions of the Prophet Muhammad.
Three hadiths, the reports of the actions and sayings attributed to Muhammad, demonstrate that he considered the declaration of unbelief of another to be a sin. In one such hadith, the Prophet warned Muslims ' … not to declare a person a disbeliever for committing a sin, and not to expel him from Islam by an action'. 2 In another, it is narrated that he said: 'If a man says to his brother, "O infidel," it redounds upon one of them.' 3 Nevertheless, over the centuries Muslim groups have existed who often uttered accusations of kufr (unbelief), particularly against fellow Muslims. From the Khawarij in the seventh century CE through to the Iraqi insurgency led by Abu Mus'ab al-Zarqawi and the so-called Islamic State of Iraq and Syria (ISIS) in modern times, takfirism has been the political weapon of choice for certain groups. 4 ISIS employed it liberally ' … to license a fratricidal civil war against the Iraqi Shi'a community'. 5 Takfir can be compared to the papal and episcopal excommunication levied against kings and their ministers, or against rebels, that played a significant role in thirteenth-century English politics, carrying various political and social consequences. 6 The main difference is that, theoretically, takfir can be pronounced by any Muslim against any other Muslim.
The devastating implications of the practice of takfir are evident across Muslim-majority states today. As stated by Shiraz Maher, '[f]rom Indonesia to Pakistan, the Levant, the Arabian Peninsula, and across North Africa, militant groups have frequently invoked the doctrine to justify mass casualty attacks against ordinary Muslimsironically, the very constituency in whose defence they often claim to act.' 7 In the past three decades, the Arab world has witnessed a significant number of takfir campaigns and trials; these accusations of apostasy, blasphemy, and unbelief, which ' … have mainly been instigated by the Islamist lobby and coincided with their demand for the codification and implementation of Islamic Law (Sharia)'. 8 The practice can be aimed at any individual, regime, or society based on their supposed un-Islamic actions, regardless of their own profession of belief, thereby making them subject to discrimination and even lawful killing. 9 From the outset, it should be noted that three forms of takfir may be identified: (a) takfir of individuals by private persons, (b) takfir of the state or democracy by private persons or Islamist parties, and (c) takfir of individuals by the state or its judicial and/or religious institutions.
The practice of each of these forms depends on the ideology behind them. In the Arab region in general, and in the Tunisian context in particular, various forms of takfir have been utilised by various radical groups. Takfir of a society, a government, or democracy are mainly practiced by Salafi-jihadist movements who are influenced by the Wahhabi ideology, such as Ansar al-Sharia in Tunisia and Libya and Jabhat al-Nusra and Ahrar al-Sham in Syria.
They, together with al-Qaida, very often reject democracy as an un-Islamic system and genuinely believe that democracy is unbelief because when humans legislate and enforce laws they are taking the place of God as the ultimate source of power and authority. 10 Takfir of democracy or the government has rarely been practised by Islamists groups as long as they had a good political representation in parliament, such as the Muslim Brotherhood in Egypt until its banning in 2013. 11 In Tunisia, Ennahda Party has followed the strategy of political inclusion, but this has led to a loss of support from radical groups, particularly Ansar al-Sharia.
Merone argues that in post-revolutionary Tunisia there was a fear that takfir could be used by the newly emerged Salafi groups … as a blind ideological justification of the conflict between a small group of people and the rest of the society or the world. In the latter case, the concept of [the unbeliever] can be expanded indefinitely. As in Egypt in the 1980s or in Algeria in the 1990s, the anathema of being [an unbeliever] was extended to almost all of society, guilty of not rising up against the tyrant (taghout). 12 Conscious of the dramatic consequences of takfiri practice and fatwas (accusations of unbelief based on non-binding legal opinions) and their ability to tear a society apart, those who wrote the Tunisian Constitution of January 2014 included a declaration of the state's commitment to prohibiting campaigns of accusations of apostasy (takfir) together with incitement to violence and incitement to hatred. 13 In 2015, the new Tunisian counter-terrorism law included a provision criminalising the charge of takfir. 14 This controversial criminalisation, which required complex political compromises, provides a valuable example for Muslim-majority states as well as states with large Muslim minorities to consider when tackling what we see as one of the main catalysts of Islamist terrorism: religious hate propaganda and particularly the charge of takfir.
Most Arab countries have not paid adequate attention to the practice of takfir during their legislative processes, and there has been a concern that criminalising takfir would open the door to widespread blasphemy. Exceptions can be found in Article 7(1) of the 2005 Iraqi Constitution, which prohibits the accusation of unbelief by any entity or organisation, 15 and Article 10 of the UAE's Federal Decree Law No 2 of 2015, which punishes anyone for calling other religious groups or individuals as infidels or unbelievers with the aim of achieving their own interests or illegal purposes. 16  Mediterranean Politics 71, 76, references omitted. 13 The second paragraph of Article 6 of the Tunisian Constitution of 2014 <www.constituteproject.org/constitution/ Tunisia_2014.pdf>. 14  While criminalising accusations of unbelief raises concerns that such provisions can excessively restrict freedom of expression and religion, we argue that it is imperative to recognise that the practice of takfir does not merely subjectively classify people as unbelievers or excommunicate them from society, but that, combined with the religious hate propaganda in which it is embedded, it also includes an inherent call for the killing of these people. As such, we find the criminalisation of both takfir and incitement to religious hatred and loathing to be not merely justified but necessary in light of duties placed on states to combat terrorism by UN Security Council Resolutions 1373 (2001) and 1624 (2005) as well as to protect the fundamental human rights of their citizens, including the rights to life, security, equality, and dignity.
This article focuses on the Tunisian legislation enacted in response to the socio-religious phenomenon of takfir. Part 2 of the article provides an explication of the religious ideologies underpinning takfir, in addition to social and political developments relating to them. Part 3 explores Tunisia's criminalisation of incitement to religious hatred, loathing, violence, and takfir, while highlighting the hurdles faced by Tunisian lawmakers in formulating and passing the relevant legislation. Part 4 examines the prohibition of incitement to hatred and violence in light of UN Security Council (SC) Resolutions and under international and regional human rights instruments, particularly focusing on the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples' Rights (ACHPR) with a view to assessing the compatibility of Tunisia's legislation therewith. Part 5 considers concerns that have been raised vis-à-vis the principle of legality potentially being violated by the legislation discussed, while Part 6 provides an insight into how the law operates in practice.
2. An Overview of Takfir: From the Khawarij to the Salafi-jihadi Ideology civil wars that immediately followed the Prophet's era (656-661CE). Viewed from the present day, the Khawarij were a political party formulating their political positions in theological terms and seeking to defeat their political opponents by branding them as unbelievers and wishing to excommunicate them from the Muslim community. 21 The concept of takfir was not merely the centre around which their main thought revolved and evolved, but also the very origin of their movement. 22 Based on their conviction that Caliph Ali should not have used human decision-making in the form of arbitration, but should have instead turned to God as the only arbiter and applied the law of retaliation against those accused of the murder of Caliph Uthman as envisioned in the Quran, 23 they declared Ali an infidel. The Khawarij also condemned as an infidel any Muslim who committed a grave sin, and considered it incumbent upon all believers to revolt against unjust rulers. 24 Their fanaticism manifested itself in the senseless slaughter of thousands of ordinary people, keeping the local population in a constant state of terror. 25 While preoccupied with excluding others from the Muslim community, the Khawarij in fact only removed themselves from the Ummah as it existed. However, within the fifth century AH/eleventh century CE, there was a shift towards stricter judgments on infidelity. The writings of al-Ghazali may be considered the ultimate stage in this development. Crucially, al-Ghazali considered not just openly professed apostasy but unbelief itself as an offence requiring the death of the offender (either through a ruling or assassination). He thereby knowingly deviated from the practice of the Prophet and his companions, and justifying such deviation with the interest of the state. 26 He recognised that judgments on apostates provided a forceful weapon against the Ismaili which threatened the Seljuq state, so his understanding of them must be regarded as a primarily political interpretation. 27 Al-Ghazali did not accept the universal obligation to grant the right to the istitāba (repentance and profession of belief: shahāda) prior to judgment, limiting it only to those ' … from the mass of the people, who does not know things'. 28 On the other hand he stressed that 'the secret apostate' (zindīq) merely professes the shahāda but stays an unbeliever, 29 referring particularly to the taqiyya as an element of the Shi'a creed which made it possible for them to deny their Shi'a allegiances in a situation of religious persecution. 30 Takfir was further developed by Ibn Taymiyya (d. 728 AH/1328 CE). He classified unbelievers into several groups and considered the most evil among them to be those who were outwardly Muslim but who did not perform their religious duties, since they rejected Islam while still claiming to belong to it. 31 He denied the possibility of any peace agreements with the murtadd (apostates), such as the Persians and Romans, as well as Arab tribes who had returned to their pre-Islamic beliefs. Security could not be granted to them and fighting them was obligatory. 32 Ibn Taymiyya argued that the customary law of the ruling Mongols at the time had strayed from divine law, thus despite their claim to Islam and the introduction of aspects of Sharia to their code, they were not to be considered Muslims and should be actively fought against. 33 The concept of takfir was further developed in the eighteenth century CE by Muhammad Ibn 'Abd al-Wahhab (d. 1206 AH/1792 CE), the founder of the Wahhabi doctrine. He considered the traditions that had emerged in the aftermath of the first generation of Islam as idolatry (shirk) and branded Muslims practising them as polytheists. 34 On this basis he was thus perceived as declaring takfir on the Muslim masses; his brother said that al-Wahhab made takfir into the sixth pillar of the faith. 35 Takfir was revived in the twentieth century when Sayyid Qutb (d. 1966), a leading member of the Muslim Brotherhood in Egypt, referred to the notion of contemporary jahiliyya to denounce Muslim societies and governments who were following Western laws. 36 He effectively stated that a ruler should not be obeyed unless he fully implements Islamic law. 37 In the same vein, Abul A'la Maududi (d. 1979), the founder of the group al-Jamaa al-Islamiya, claimed that the borrowing of laws from non-believers had reduced Islamic law to mere personal law or nothing at all. 38 He coined the term 'Islamic State' to describe what he saw as the form of government to which Muslims must aspire. 39 This ' … intellectual framework of "Islamic State" appears to sit within the mainstream tradition of Salafi-jihadi thought'. 40 The Salafi-jihadi fundamentalist approach to the doctrine of God's oneness (tawhīd) 41 and the principle of hakimiyyah (ruling in accordance with God's sovereignty) necessitates the accusation of takfir upon those who have deviated from these principles. Jihadi-Salafism can thus be described as ' … a revolutionary program of overthrowing regimes in the Muslim world declared as un-Islamic'. 42 However, the level of extremeness in the application of takfir has been a point of contention between the various groups as well as within groups. 43 ISIS, for example, strongly criticises al-Qaeda for not branding the Shi'a sect as unbelievers (kuffar). Their approach 32 Ibid. 9. 33 ibid. 12. 34  to purging members of society through the practice of takfir reached absurd proportions when a fatwa was issued on the 17 May 2017 with 'the second most important seal' in ISIS, that of the Delegated Committee directly subordinate to Abu Bakr al-Baghdadi, the then leader of ISIS. The ruling declared … making of takfir of the mushrikin [those who worship anyone or anything besides Allah] as one of the utmost principles of the religion, which must be known before knowing the prayer and other obligations that are known of the religion by necessity. 44 By elevating takfir to a principle of the religion, they essentially declared takfir on any Muslim who failed to exercise takfir on others. 45 This created some controversy within the group and the ruling was eventually rescinded in an effort to quell the disagreement. 46 Interestingly, those who adhered to the group's ideology were provided with certificates of non-infidelity (shahādet ghayr kāfir). 47 On the other side of the spectrum are Salafis who reject widespread accusations of takfir and consider that all Muslims who commit a crime deserve punishment, but remain Muslim unless they commit serious sins (alkabba'ir). This was the position of Hasan al-Hudaybi, the second leader of the Muslim Brotherhood, who rejected the approach of Qutb. 48 Yet the prohibition of takfir in Tunisian law does not make a distinction between different kinds of takfir; it is considered incitement to violence regardless of which individual or institution pronounced it. The implicit threat in takfir of mobilising elements of society against its targets makes it a powerful tool for political blackmail, although its success is not always assured. Comparing the experiences of Yemen and Tunisia during moments of regime remaking and consolidation, Hartshorn and Yadav observed vastly different outcomes following its use by Islamists intent on disciplining internal members and pressuring secular-left opponents. 49 Considering its mission, it is unsurprising that the spread of takfir often seems to come as a direct response to steps being taken towards the separation of religion and state. In the case of Tunisia this occurred after independence and implementation of secular policies under Habib Bourguiba, president from 1957 to 1987. 50 His moves to clamp down on Islamism proved counter-productive. The University of Zaytuna and the al-taharrur (liberation) movements which sprung from it previously acted as a balance against jihadi-Salafism; 51 Bourguiba's putting an end to the university's independence left a vacuum for the extremists to fill. 52  freedoms, 53 while the new government took a soft approach to the issue of takfir and radical Salafism. The ruling Ennahda Party proclaimed a general amnesty which freed several radical Salafi leaders jailed under the 2003 anti-terrorism law put in place by Zin El Abidine Ben Ali. 54 A number of mosques were overseen by Salafi imams who opposed the secular traditions of the country and sought to instrumentalise Islam for political purposes. 55 It has been argued that this environment encouraged takfiri militants ' … to persist in their attacks as they perceive themselves as the protectors of truest Islam'. 56 However, following criticism and the killings of two left-secular Tunisian members of Parliament by a jihadi cell in 2013, the government changed its approach, stating that anyone who violates the law will be punished, regardless of their affiliation. 57 The 2015 counter-terrorism law was drafted in this spirit. In other words, the use of takfir eventually backfired in Tunisia: instead of driving popular sentiment against the accused, it brought negative attention to Islamist politics, galvanised secular-left collaboration, and nearly derailed the ongoing constitutional process. 58 By comparison, in Yemen takfir has been essential to structuring Islamist-leftist relations as well as North-South relations more broadly. 59 After the unification of North and South Yemen, it helped to ensure the recognition of Sharia as the only source of legislation in the new constitution and it incapacitated socialist opposition to the Islamisation of educational and judicial institutions. 60 It furthermore inspired vigilante attacks on people deemed un-Islamic, 61 derailed institutional reforms, and suspended elections. 62 At the end of the first decade of the twenty-first century, takfir also played an increasingly important role in the sectarian polarisation of Yemen. 63 In short, the takfir discourse ' … obtained concessions from opponents, undergirded cross-ideological fronts and became a justification for violence depending on the configuration of societal powers and institutions'. 64 It is important to note that the fatwa monitoring observatory at Dar Al-Ifta in Egypt, which is considered the premier institute for Sunni Islamic legal research, recently condemned takfiri fatwas and described them as using religion to polarise its followers and exploit their religious fervour to achieve political gains by targeting opponents, including the cultured. 65 The observatory furthermore made it clear that by giving permission for killings and bloodshed, such fatwas undermine the objectives of Islamic law. 66 Ibrahim 53 Ibid. 5. 54  Negm, who is the advisor to the Grand Mufti of Egypt and who supervised the report, said that takfir fatwas ' … lead thousands of youths towards extremism and murder, seeking alleged martyrdom'. 67

Background to the Tunisian Criminalisation of Incitement to Religious Hatred, Loathing, Violence, and Takfir
Tunisian's approach to incitement of religious hatred and violence reflects an effort to curtail significant extremist religious agitation in Tunisian society. After a month of protests in 2011, Tunisia witnessed the fall of Ben Ali's political regime. As various countries in North Africa underwent profound evolution, terrorist and rebel groups exploited the ensuing security vacuum to radicalise new recruits and spread their message of hate and violence. 68 Tunisia was no exception. In the immediate years following the revolution, the country experienced a rise in terrorist attacks carried out by individuals and groups driven by religious motives. 69 During the first three years of the revolution, intellectuals, artists, human rights activists, journalists, and politicians were targeted. 70 This section paints a picture of the battle fought between opposing political camps until a compromise was reached, bringing the welcome criminalisation of incitement to religious hatred, loathing, violence, and takfir alongside wording potentially problematic from the perspective of guaranteeing freedom of religion as well as freedom of expression.

The 2014 Tunisian Constitution: secular tendencies versus political Islam
With the 2011 revolution, Tunisia emerged from five decades of so-called modernising, bureaucratic, and authoritarian presidential regimes, and has since had to redefine essential characteristics of itself as a country and society. A succession of provisional governments followed the 2011 revolution, and until the presidential and legislative elections held in late 2014 the main focus of the Tunisian authorities was to establish new democratic institutions, restore the rule of law, and draft a new constitution. 71 The Constitution was drafted by a Constituent Assembly and only completed after two turbulent years of trying to reach the necessary compromise between radically differing visions. 72 Opinions were particularly divided on Article 1 of the 1959 Constitution: some called for a clear separation between religion and state in the new text, while others demanded an express reference to Sharia as a source of law.
The final version of Article 1 retains the phrasing of its equivalent from the 1959 Constitution, that is: 'Tunisia is a free State, independent and sovereign, Islam is its religion, 67  Arabic its language and the Republic its regime.' Article 2 continues by stating 'Tunisia is a civil state, based on citizenship, the will of the people and the rule of law.' The two provisions can be said to reflect a historical identity endorsed by the postcolonial state (Article 1) and 'enlarged' in a democratic context (Article 2). 73 Article 1 has always been interpreted by legal doctrine as referring to Islam as the religion of Tunisia in terms of sociological fact. During the drafting of the new constitution, another article was proposed declaring inviolable the status of 'Islam as the State religion' which caused major division which was not resolved until the article was removed in the final phases of the process. 74 Controversy also surrounded the drafting of Article 6, which eventually introduced the prohibition of takfir as well as incitement to hatred and violence. The article now reads: L'État est le gardien de la religion. Il garantit la liberté de croyance et de conscience et le libre exercice des culter; il est le garant de la neutralité des mosques et lieux de culte par rapport à toute instrumentalization partisane. [The state commits to disseminating the values of moderation and tolerance and to protecting the sacred and preventing injury to it. It equally commits to prohibiting and stopping accusations of apostasy (campaigns of takfir), as well as incitement to hatred and violence and to halting them.] The provision loosely mimics Article 18 of the ICCPR, but the latter is undoubtedly much broader in guaranteeing religious freedom. Accordingly, the European Commission for Democracy through Law stated that the wording 'protector of the freedom of religion' would be more appropriate than 'protector of religion' and would rule out the possibility of the Constitution protecting Islam to the detriment of other religions. 75 It furthermore suggested a rewording of Article 6 to proclaim freedom of religion, conscience, and belief (protecting theistic, non-theistic, and atheistic beliefs), guaranteeing the freedom to have or adopt a religion or belief of one's choice and to manifest one's religion or belief, individually or in community with others, both publicly and in private, through worship and the observance of rites, practices, and teachings. The European Commission particularly criticised the part of the above provision which commits the state to protecting 'that which is sacred' and suggested its removal. 76 In response, the Tunisian authorities pointed out that the phrase does not refer to the protection of religious unity and theological purity but rather the protection of places and buildings held to be sacred. The European Commission thus submitted that this interpretation should be laid down more clearly in the text of Article 6 if it was maintained. 77 Article 6 was not amended according to these suggestions, and the UN Special Rapporteur on Freedom of Religion raised similar concerns in his 2019 report. 78 He stated that the lack of an elaboration as to what 'protector of religion' entails could problematically be interpreted as an obligation upon the state to protect religion per se, rather than individuals. 79 He further noted that Article 226(2) of the Tunisian Penal Code which protects 'public morals' and 'public decency' is being used by the courts to issue decisions restricting the exercise of freedom of expression 80 and that some officials he had spoken to considered the ongoing application of public morals provisions as being integral to implementing the constitutional mandate to protect the 'sacred'. 81 Criticising the lack of proper definition of that mandate in the Constitution, the Rapporteur reiterated the position of the UN Human Rights Committee that it was not permissible to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith or to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. 82 Unsurprisingly, no issue was identified by the Special Rapporteur on the constitutional obligation to prohibit takfir. On the contrary, his report recognised the legitimate challenges in formulating effective responses to counter violent extremism considering the violence perpetrated in the country in the name of religion. 83 He considered measures such as the ban on incitement to violence among religions and races to be clearly integral to protecting the space for freedom of religion or belief. 84 By analogy, we can consider the prohibition on takfir also such a fundamentally necessary measure.
The drafting history of the Constitution reveals that Article 6 sparked great controversy and underwent several changes as the secular forces and those more religiously conservative struggled to reach a compromise. 85 In the words of one commentator, Article 6 ultimately attempts ' … the impossible task of reconciling two radically different visions of society … in a complicated and wordy fashion'. 86 After the inclusion of 'freedom of conscience' in the wording, some delegates sought to remove it by bringing amendments on two separate occasions, but they were both rejected by a strong majority. 87 77  The Constituent Assembly's Rights and Freedoms Commission, which was working on the drafts, cited Islamic values as its main guidance, followed by the aspirations of the revolution and the universal principles of human rights. 88 While some within the Commission regarded the criminalisation of attacks against the sacred to be a restriction on freedom of expression, others were in favour thereof. 89 On the other hand, the most liberal and secular amendment which sought to extend the protection of the state to all religions and to shield places of worship from political struggles was rejected by a strong majority despite the democratic bloc voting unanimously in its favour. 90 The amendment introducing a ban on takfir and incitement of hatred and violence showed again a striking polarisation between Ennahda (main Islamist party) and the democratic left-wing block. After the amendment was initially rejected on 4 January 2014, the debate was reopened after a member of the Constituent Assembly from Ennahda declared another member from the left coalition, the Popular Front, 'an enemy of Islam'. 91 Mongi Rahoui had proposed an amendment to Article 1 which read that Islam was the religion of the people and not the state, which prompted Habib Ellouze from Ennahda to attack him and to declare that he was fighting against Islam: 92 Rahoui est connu, c'est un ennemi de l'Islam en tant que laïc. Il aimerait bien qu'il n'y air aucune référence à l'Islam (dans la Constitution) … Mais heureusement que nous avons adopté cet article qui énonce l'Islam en tant que religion de l'Etat, avec l'approbation de tous, sauf de Mongi Rahoui. Et le people tunisien prendra position sur ce type de personnes. 93 [Rahoui is known, he is an enemy of Islam as a secularist. He would have liked very much for there to be no reference to Islam (in the Constitution) … Fortunately, however, we have adopted this article that states Islam is the religion of the State, with the approval of everyone, except Mongi Rahoui. And the Tunisian people will take a position on this type of persons.] Shortly after, a fatwa was issued against Rahoui calling for his assassination. 94 In a later interview, Rahoui spoke about the context of the takfir declaration, stating that a clear plan for his assassination was uncovered and the Ministry of Interior believed his assassination would be attempted within 48 hours of Ellouze's statement. Rahoui characterised the declaration as a 'fatwa for assassination'. 95 It is important to note that he was member of the same party as Chokri Belaïd, a politician assassinated in an Islamist attack the year prior, causing large protests against Ennahda. 96 The incident in the Assembly led to outrage and the proposal of a new, almost identical amendment on the 5 January 2014 which stated ' … takfir and the incitement of 88 Ibid. 3. 89 Ibid. 90 Amendment no 127: votes by party Al-Nahda (77 against, 5 abstentions), Block (12 for), other groups were divided. 91 Guellali (n 86). 92 Longo (n 48) 6. 93 Hartshorn and Yadav (n 49) 978. 94 A Mousa, 'Opinion: Eradicating Takfirism in Tunisia' (Asharq Al-Awsat, 21 January 2014) <https://eng-archive.aawsat.
com/a-mousa/opinion/opinion-eradicating-takfirism-in-tunisia>. 95 Mongi Rahoui and Parliamentarian, 13 January 2016 quoted in Hartshorn and Yadav (n 49) 981. 96 Importantly, El-Louz had already stirred controversy in the months preceding the incident by stating that if he were a young man, he would have gone to Syria to take part in jihad. These comments came during an atmosphere of general political and social opposition to the phenomenon of young Tunisians going to Syria to join terrorist groups: ibid.
violence are prohibited'. 97 The amendment was adopted the same day. 98 Ennahda largely opposed the inclusion of the prohibition of takfir, while the democratic left unanimously backed it. 99 While Elluze apologised for his accusations against Rahoui, he nevertheless rejected the amendment as being contrary to Islam, insisting that kufr and apostasy must be adjudicated by Muslim scholars or judges who determine the presence of necessary conditions to issue this kind of ruling. Rached Ghannouchi, the leader of Ennahda, also claimed that while individuals or groups could not be entitled to pronounce takfir, government bodies should have the ability to do so. He nevertheless accepted the amendment, stating that his party was a movement which exerts legal reasoning 'harakat ijtihadiyya' and does not set itself up as spokesperson of Islam. 100 In contrast, several religious leaders and imams strongly condemned the amendment, with some even circulating a petition within the Assembly to demand its withdrawal, while the mufti of Tunisia went as far as issuing a statement saying that charging people with apostasy was one of the 'pillars' of Islam. 101 Salafi sheikh Khamis al-Majri called it ' … the worst law ever adopted in the Arab world'. 102 This prompted the Assembly to renegotiate the article. A new amendment attempting to strike the difficult balance between 'violation of the sacred' and 'incitement to hatred' was presented by the presidents of the parliamentary groups. 103 This amendment replaced the wording '[the state] is the protector of the sacred' and the previous phrase regarding takfir with the final wording of the provision, which passed with a consensus three days before the final vote on the constitution.
From this drafting history, it is apparent why the text of Article 6 is so contradictory and replete with trade-offs between the different elements. 104 It is nevertheless a great political success, as is the Constitution as a whole. The inclusion of the prohibition of takfir is an important innovation, particularly from the point of view of protecting the right to life and security as well as the freedom of conscience and belief.

The 2015 Counter-Terrorism Law 105
President Ben Ali fully exploited the aftermath of the attacks of 11 September 2001. After several terrorist attacks, the country rushed to respond to UN Security Council Resolution 1373 (2001) by adopting anti-terrorism legislation in 2003, making it the first Arab country to do so. 106 The legislation severely restricted civil liberties and fundamental rights, primarily by providing a mechanism that could easily be arbitrarily wielded by the public authorities against any form of political opposition. 107 A particularly broad 97 Abdelkefi (n 72). 98 Ibid. 99 Amendment no 95: votes by party Al-Nahda (53 against, 10 for and 18 abstentions), Kotla (12 for), the independents (38 for, 3 against, 8 abstentions). 100 Longo (n 48). 101 Ibid. 102 Ibid. 6. 103 Abdelkefi (n 72). 104  and vague definition of the terrorism offense (Articles 4 and 6), which included terms such as 'disturbing public order' and 'causing harm to persons or property', and an increase in criminal penalties for offenses described as terrorist (Articles 8 and 10), were particularly problematic in this regard. 108 The government tried about 3,000 people on terrorism charges under the law, many of which were brought against individuals for political dissent, with convictions often based on confessions extracted under torture, and for 'offences' such as ' … growing beards, wearing specific clothing and consulting prohibited sites'. 109 The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism visited Tunisia in May 2011 and expressed concerns over the law, indicating that if it was not possible to amend it, it would be better to repeal it and rely on the Criminal Code. 110 However, he also recognised that, in view of the country's security situation, and with a terrorist threat that had both an international and internal dimension ('indigenous' terrorism), and in light of Tunisia's international commitments in the fight against terrorism, the adoption of a new anti-terrorism law was desirable. 111  Shall be considered a perpetrator of terrorist offence whoever deliberately implements by any means individually or jointly with another a criminal enterprise to commit any act listed in article 14 and in articles 28 to 36 and that this conduct aims by its nature or context to spread fear among the population or to compel a state or international organization to do or to refrain from doing an act.
The counter-terrorism law criminalises takfir along with other types of expression as a tool of counter-terrorism, such as 'incitement to terrorism' (Article 5); and 'incitement to hatred' (Article 14.8); 'glorification of terrorism' and 'apology of terrorism' (Article 31). As noted by Fatima Al Zubairi, ' … incitement to hatred or to religious or other fanaticism' was already part of Tunisia's first definition of 'terrorism' as codified in the 1993 Penal Code. 116 In this sense Tunisia was ahead of international regulations in targeting speech associated with terrorism, yet the inspiration at the time came from the French Press Law of 1881. 117 In terms of speech-related terrorism, Article 14 (8) of the 2015 legislation criminalises ' … takfir or advocating for [excommunication], or incitement of or calling for hatred or loathing among races, religions and faiths'. Apart from a French secular influence, prohibiting takfir also has a purely religious origin, since Sharia law condemns excommunication among Muslims. 118 During the negotiations for the 2015 law, the minister of interior raised the question of whether takfir as criminalised in this provision would constitute a mode of liability or an offence per se. He remarked that to declare takfir of the society constituted the very ideological basis of terrorist organisations, and that according to the Constitution this practise should be considered a stand-alone crime and not merely a mode of liability. 119 According to one commentator, 120 the most delicate moment of the drafting process of the counter-terrorism law was the night of 15-16 Junethe longest sitting and intended to be the last of the general legislation commission. At 3am, MP Noureddine Ben Achour (Union Patriotique Libre) submitted an amendment to introduce takfir in the list of terrorist offences, on the grounds of bringing the newly formulated provisions into compliance with Article 6 of the 2014 Constitution. Some of the Ennahda deputies attempted to block this proposal on the basis of a claim that the terminology posed definitional problems on which judges and legislators may not agree. According to Samir Dilou, there had to be a more general offence which did not target Islam so explicitly. Yet the push for its inclusion from other commission members, including those of the Popular Front, was too strong to ignore. Moreover, Ennahda had already agreed to this prohibition in the Constitution. The position was sketched out that if takfir was included among the culpable acts, the law must also include any form of incitement to racial or religious hatred, in order to de-specify (relatively) the criminalisation in its relationship to Islam. Even though the Popular Front expressed disapproval of that modification, it was retained in the final version. No further definition of takfir was included, but the words 'the call' to takfir were added, which reinforced criminal responsibility.
In response to opposition by Ennahda to the inclusion of the crime of takfir in the law, Ahmed Seddik of the Popular Front stated that the whole anti-terrorism bill was built on the notion of takfir, and would be pointless without the inclusion of said crime. In a similar vein, Rahoui posited that, by definition, takfir ' … frames and governs suicide terrorism', and Hayet Kebaier of the Nidaa Tounes Party pointed out the direct relation between takfir and murder. 121

The Prohibition of Incitement to Hatred and Violence in International and Regional Human Rights Instruments and UN Security Council Resolutions
Apart from the United States, virtually all states have accepted national, regional, or international restrictions on hate speech since the 1960s. 122 Systems which include hate speech bans treat this minimal restriction on freedom of expression as outweighed by the benefits of enhancing the participation of marginalised groups in democratic society. 123 A balance must be struck between freedom of expression on the one hand and the right to health and life, security, equality, dignity, and non-discrimination on the other. 124 Particular forms of speech may affect multiple rights. The prohibition of certain speech acts is thus ' … the corollary to an implicit right of everyone to be free from incitement to acts of hatred, a right particularly significant for members of ethnic, religious or other minorities'. 125 However, restrictions on hate speech vary, and consensus on what exactly constitutes it is yet to be established. The threshold factor for any hate speech is that it targets a group, or an individual as a member of a group, usually based on nationality, ethnicity, religion, race, gender, gender identity, or sexual orientation. 126 Most notably, Article 20(2) of the ICCPR instructs states-parties to adopt incitement laws for advocacy of national, racial, or religious hatred constituting incitement to discrimination, hostility, or violence, i.e. forms of harm that are 'contingent' and 'measurable'. 127 Even narrower definitions of hate speech, largely constituting the trend in international criminal law, demand not just incitement but instigation of the listener and thus a causal link with the discrimination, hostility, violence, or other harm subsequently committed. 128 Approaches in the middle require the likelihood of subsequent harm occurring, in which case context is essential in defining such likelihood. The European Court of Human Rights (ECtHR) has at times used a multifaceted test that considers a variety of factors including the likelihood and seriousness of the consequences of a particular expression and the intention of the speaker, while at other times it has disregarded this for an open-ended and context-based 'democratic necessity' approach. 129 While the right of freedom of expression is enshrined in Article 19(1) and (2) of the ICCPR, its limitations are set out in Article 19(3) and Article 20. In the balance between seemingly conflicting rights, Article 20 weighs in favour of the right to be free from incitement and in favour of non-discrimination, the right to life, physical integrity, freedom from fear, 130 and arguably other rights, such as the right to dignity. 131 It prohibits in absolute terms advocacy of ' … religious hatred that constitutes incitement to discrimination, hostility or violence' on an equal footing with advocacy of national or racial hatred. 132 Article 20(2) represents one of strongest condemnations of hate speech in international law, and arguably constitutes a customary norm. 133 There are important interactions between the right to security, the freedom from fear, and other related rights. We argue that the right to security of the person as provided for in Article 9 of the ICCPR should be read in conjunction with the freedom from fear as enshrined in the third recital of the Preamble to the ICCPR. In addition, the jurisprudence of the Human Rights Committee (HRC) of the ICCPR has made it clear that the right to security of the person ' … has been given an independent operation from the right to liberty'. 134 In Delgado Paez v Columbia, the HRC found that the applicant's right to security under Article 9(1) was violated because of the state's failure to take proper measures to ensure his safety after he received death threats. The HRC stated that: Although in the Covenant the only reference to the right to security of person is to be found in Article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situation of formal deprivation of liberty … It cannot be the case that, as a matter of law, states can ignore known threats to the life of persons under their jurisdiction, just because he or she is not arrested or otherwise detained. State parties are under an obligation to take reasonable and appropriate steps to protect them. An interpretation of Article 9 which would allow a state party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the covenant. 135 As noted by Spigelman, human rights discourse is manifestly comfortable when favouring a right over an interest but ' … that literature often flounders when faced with a conflict between rights'. 136 Waldron has put it as follows: Rights versus rights is a different ballgame from rights versus social utility. If security is also a matter of rights, then rights are at stake on both sides of the equation, and it might seem that there is no violation of the trumping principle or of the idea of lexical probity when some adjustment is made to the balance. This business of conflicts of rights is a terribly difficult areawith which moral philosophers are only just beginning to grapple. 137 Difficulty arises in the context of anti-terrorism legislation where human rights scholars tend to treat ' … the issue of security as a form of "national security", rather than as security of the person, which the State has a duty to protect'. 138 The tension is exacerbated when freedom from fear is considered as a dimension of a right which the state has a responsibility to protect. 139 Writings on terrorism and anti-terrorism legislation often neglect to mention the concept of freedom from fear. Recognising the connection between the two, however, Williams argues that: 'Terrorism is an attack on our most basic human rights. It can infringe our rights to life and personal security and our ability to live our lives free of fear.' 140 Under the ACHPR, the 'right to security of the person' as provided for in Article 6 has two components: individual security and national security. 141 The former has been approached by the African Commission on Human and People's Rights from two different perspectives: public and private. According to the Commission, [b]y public security, the law examines how the State protects the physical integrity of its citizens from abuse by official authorities, and by private security, the law examines how the State protects the physical integrity of its citizens from abuse by other citizens (third parties or non-state actors). 142 Individual security under Article 6 of the ACHPR is associated with other rights, such as that protected under Article 5, ' … the right to the respect of the dignity inherent in a human being', and can be seen as an expansion of such rights. 143 'Dignity', according to the African Commission, ' … is the soul of the African human rights system … [and] consubstantial, intrinsic and inherent to the human person'. The Commission adds, … when the individual loses his dignity, it is his human nature itself which is called into question, to the extent that it is likely to interrogate the validity of continuing to belong to human society … When dignity is lost, everything is lost. In short when dignity is violated, it is not worth the while to guarantee most of the other rights. 144 International criminal law also places great importance on the violation of human dignity and the right to security in the context of speech acts. Jurisprudence at international criminal tribunals has acknowledged that speech acts may constitute persecution as a crime against humanity when they are committed as part of a widespread or systematic attack, involve the denial of a fundamental right, and discriminate in fact. 145 When hate speech targets a population based on ethnicity, or any other discriminatory grounds, it violates the right to respect for the human dignity of the members of the group, whereas in situations where the speech constitutes a call for violence against a population on such grounds, it violates the group members' right to security. 146 When takfir rhetoric targets entire groups of people, it threatens both their right to dignity as well as their right to security. In the context of international criminal law such accusations could furthermore even be considered direct and public incitement to genocide, since they include an inherent call for the extermination of the targeted groups.
It is also worth noting that in her dissenting opinion in the recent case of Gbagbo and Blé Goudé before the International Criminal Court, Judge Carbuccia referred to the European Court of Human Rights in Féret v Belgium to highlight that a politician's comments which constitute public incitement to racial hatred against outsiders, without requiring a call to this or that act of violence or another delinquent act, violated the dignity and security of the affected groups of people, posing a danger to social peace and the political stability of democratic states. 147 Compared with the ICCPR, the ACHPR 148 adopts a slightly different approach to limitations on freedom of expression. Article 9(2) of the Charter states that '[e]very individual shall have the right to express and disseminate his opinions within the law'. 149 This formulation of freedom of speech has raised concerns that it constitutes a 'claw-back clause', that is to say, that the term 'law' is interpreted as 'domestic law' thus enabling state parties to the Charter to simply deny their citizens the right of freedom of expression through domestic legislation. 150 However, the African Commission has made it clear that, as a general principle, governments should avoid restricting rights, and take special care with regard to those rights protected by constitutional or international human rights law. 151 In other words, the reference to 'law' in Article 9 is a reference to 'international law'. The provision does not provide any specific derogation clause. Instead, the limitation mechanism within the Charter is a general one, covering multiple individual rights, and is contained within Article 27. It states that these rights shall be exercised with due regard to the rights of others, collective security, morality, and common interest. 152 Furthermore, states also have an obligation to prohibit incitement to terrorism under UN Security Council (SC) Resolution 1624 of 2005. Already in 2001, the preamble to SC Resolution 1373 equalised incitement to terrorist acts with the acts themselves in their contradiction to the purposes and principles of the United Nations. 153 Building on this, Resolution 1624 stressed in its preamble the concern … that incitement of terrorist acts motivated by extremism and intolerance poses a serious and growing danger to the enjoyment of human rights, threatens the social and economic development of all States, undermines global stability and prosperity, and must be addressed urgently and proactively by the UN and all States. 154 It also emphasised the need to take all necessary and appropriate measures to protect the right to life. In the first paragraph of its operational part, the resolution expressly called upon states to ' … adopt such measures as may be necessary and appropriate and in accordance with their obligations under international law to … [p]rohibit by law incitement to commit a terrorist act or acts'. 155 The Tunisian criminalisation of incitement to hatred and violence as well as accusations of takfir is compatible with the ICCPR, and therefore also the lawful limitations on freedom of expression within the African Charter. During the travaux préparatoires of Article 20(2) of the ICCPR, the term 'hate propaganda' was preferred, as the drafters sought to prohibit incitement roughly comparable to Nazi-like propaganda. 156 When the term 'advocacy' was introduced during the drafting, some delegates maintained that it must be understood as 'systematic and persistent propaganda' 157 while others interpreted it as 'repeated and insistent expression'. 158 The latter raises the question of whether a one-off statement could ever qualify as advocacy. The question may be answered in the affirmative, depending on the context. 159 Pronouncements of takfir, despite potentially being one-off statements, do not fall into an ideological or cultural vacuum, but rather inevitably merge with and contribute to the Salafi-jihadi/takfiri ideology that has been propagated by a number of highly influential figures for decades, if not centuries, in the affected communities using classical propaganda techniques. 160 The propaganda spread today by groups such as ISIS and al-Qaeda is not unlike Nazi propaganda, and can certainly be considered on par with it. 161 The second draft of General Comment No 34 also proposed that incitement ' … refers to the need for the advocacy to be likely to trigger imminent acts of discrimination, hostility or violence against a specific individual or group'. 162 The UN Special Rapporteur on freedom of expression and the Camden Principles reflect a similar sentiment, stating that incitement needs to ' … create such an imminent risk'. 163 The risk need not, however, materialise into further harm, as incitement is an inchoate offence. Takfir can provoke strong reactions in Muslim-majority countries, ranging from public media campaigns against the accused to vigilante violence, and, in some instances, criminal penalties where aspects of Islamic jurisprudence are enshrined in law, such as defamation or indecency, which can have a stifling effect on political expression even without proving apostasy. 164 Furthermore, takfir directed at entire groups of people based on their implicit lack of religious belief can act as a driver of conflict, and even lead to crimes against humanity or genocide. 165

The right to life
Article 6(1) of the ICCPR states that '[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.' 166 In the drafting of the Covenant, it was understood that society owed a duty to the individual to protect their right to life. 167 The Human Rights Committee has furthermore established that under Article 2 … the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. 168 General Comment No 36 on the right to life makes it clear that the obligation of states-parties to ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life. 169 States-parties may be in violation of Article 6 even if such threats and situations do not result in loss of life. 170 The same approach was adopted by the African Commission in its General Comment No 3, where an interpretation of the right to life was provided: 'The right to life should be interpreted broadly. The state has a positive duty to protect individuals and groups from real and immediate risks to their lives caused either by actions or inactions of third parties.' 171 The African Commission added: 'The right to life cannot be enjoyed fully by individuals whose lives are threatened. In the case of death threats this implies that the state must investigate and take all reasonable steps to protect the threatened individuals.' 172 In a few of its communications, the African Commission emphasised that this obligation exists ' … even if the state or its agents are not the immediate cause of the violations'. 173 This gives a clear mandate for the criminalisation of takfir which has led to numerous murders in Muslim-majority states. Moreover, the right to life is not merely the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, but also their entitlement to enjoy a life with dignity. 174

The right of non-discrimination
The African Commission has described the 'anti-discrimination principle' as contained in Article 2 ACHPR as ' … essential to the spirit of the African Charter.' 175 Together with the principle of 'equality' found in Article 3, it means that citizens should have the right to enjoy, with no distinction whatsoever, the rights guaranteed by the Charter, and that states have an 'immediate' duty to protect this right from discrimination. 176 In the context of securing the conditions for dignified life, the African Commission has emphasised the particular responsibility of states to protect the right to life of individuals or groups who are frequently targeted or particularly at risk, including on the discriminatory grounds listed in Article 2 and those highlighted in resolutions of the Commission. 177 The ICCPR further proscribes incitement to discrimination, which can be understood as incitement to any distinction, exclusion, restriction, or preference based on discriminatory grounds which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of public life. 178 The 1981 UN Religious Tolerance Declaration defines religious discrimination as ' … any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis'. 179 There are serious social and judicial ramifications for those against whom takfir is invoked; being excommunicated from the religious community can come with formal sanctions. 180 For example, in Egypt in the 1990s several Islamist lawyers filed lawsuits against liberals using the so-called hisba, a practice that allowed any Muslim to sue another for beliefs that may harm society and that no longer exists. Establishing an individual as an apostate negatively impacted almost all their personal status rights and was ' … in a way equal to death'. 181 It rendered their marriage null and void, required their separation from their spouse, and precluded them from entering a new marriage. 182 An apostate was also excluded from inheritance, and all blood ties with his or her children were considered non-existent. 183 Roswitha Badry describes how open-and secular-minded intellectuals, university professors as well as journalists, writers, artists, bloggers, and feminists have been the main targets of accusations of apostasy, blasphemy, or unbelief in recent decades in a bid to silence those who dare to speak out against the politically motivated Islamist agenda and to share ideas for a radical transformation of the socio-political system. 184 Badry's work can be characterised as a first step towards integrating the gender perspective into the research on takfir. She argues that the contemporary practice of takfir in the Arab world is not gender-neutral, giving examples of three activist Muslim women from Jordan (Toujan al-Faisal), Egypt (Nawal El Saadawi), and Kuwait (Laila al-Othman) who have had to face apostasy cases in their respective countries. In addition to the lawsuits against them, they were all exposed to attacks, intimidation, and threats. These coercive strategies, in the words of Badry, can be identified as a method of 'psychological terrorism'. 185

Potential Violation of the Principle of Legality by the Criminalisation of Takfir and Incitement to Hatred and Loathing
An important criticism of the Tunisian counter-terrorism law has been made in relation to its imprecise definition of terrorism and terrorist-related acts, in potential violation of the principle of legality, that is, the obligation to limit the interventions of criminal justice to responses to acts or omissions clearly prescribed in advance by law. 186 Article 19(3)(b) of the ICCPR allows for restrictions on the freedom of expression only when in accordance with this principle, that is when they are legally precise. 187 The principle of legality has further been emphasised in the Principles and Guidelines on Human and Peoples' Rights while Countering Terrorism in Africa, which state that '[no] one may be condemned for an act or omission which did not constitute a legally punishable offence under national or international law, as defined by clear and precise provisions in the law'. 188 While properly formulated incitement legislation can protect the goals of equality and freedom from fear, unqualified insult and hate speech laws are susceptible to abuse by governments, resulting in the stifling of unpopular speech. 189 The International Commission of Jurists (ICJ) has specifically highlighted the provisions on takfir and incitement to hatred and loathing as among those which give rise to concerns pertaining to the precision and overbreadth of Tunisia's counter-terrorism legislation. The law does not define the elements that would need to be proven to establish an act of takfir, nor does it provide for a list of acts that might amount to it. 190 Likewise, 'incitement to hatred or loathing' is undefined and vague, raising similar concerns. According to the ICJ, it appears to be considerably broader than the 'advocacy of hatred' provision in Article 20(2) of the ICCPR, which refers instead to ' … incitement to discrimination, hostility or violence'. The ICJ further expressed the fear that broadly defined offences such as glorification of and incitement to terrorism could result in the wrongful prosecution of journalists and whistleblowers. 191 However, we argue that considering the circumstances in which the prohibition of takfir was drafted and the intentions of the drafters, a potential misuse of that legislation for prosecuting journalists and whistle-blowers would be a sign of politically driven persecutions rather than a reflection of an overly broad formulation of the law. 192 As mentioned above, the Special Rapporteur on Freedom of Religion raised concerns over the lack of elaboration on and the potential interpretations of the phrase 'protector of religion' in relation to the state, but he recognised no such issue in relation to the constitutional prohibition of takfir or incitement to hatred and violence. Furthermore, when deciding on the speech at hand, the Tunisian Courts are bound to also take into account Article 31 of the Tunisian Constitution, which guarantees that '[f]reedom of opinion, thought, expression, information and publication shall be guaranteed. These freedoms shall not be subject to prior censorship.' Furthermore, Ordinance No 115/2011 dated 2 November 2015 related to the Freedom of the Press and Publication provides in Article 1 that freedom of expression is guaranteed, and that ways of exercising it are determined according to the ICCPR provisions and other international instruments which Tunisia has ratified or acceded to. Such explicit reference allows Tunisian judges to rely on international and regional conventions and to adopt international human rights standards when evaluating speech-related offences. 193 It is also important to note that the Tunisian counter-terrorism law requires spreading fear or terror as an essential element of any terrorist act. While this has been seen as problematic since fear is a psychological, and evidently subjective, element that cannot be confined to terrorist crimes, 194 it nevertheless presents another hurdle for the prosecution to overcome in its obligation to establish that a certain discourse was in fact aimed at terrorising a population or parts thereof instead of merely expressing an opinion or providing, for example, political commentary or disclosing information in the public interest.
Nevertheless, when similar criminalisation is considered for adoption in other Muslim-majority states, the wording of potential legislation criminalising takfir or incitement to hatred and loathing among religious sects should include a specific reference to incitement to discrimination, hostility, or violence. Division) found the accused guilty of spreading hatred against the Shi'a population as well as glorifying a terrorist organisation. The individual posted on Facebook the following comments: (a) 'I am an ISIS member and it is permissible to kill the secularist before the Magian, the Jews and the Christians' and (b) 'O Rawafid (Shi'a as the rejectors) 197 we come to you with slaughter'. 198 It was established before the Court that the accused had adopted Salafi-jihadist thought, that he had glorified a terrorist organisation, and that his statement against the Shi'a constituted an explicit and direct incitement of hatred and loathing among religious sects. The Court sentenced the accused to one year in prison for the above two crimes, but due to his personal and social circumstances, namely his lack of education above primary school, and the fact that he had no previous criminal record, the sentence was suspended. 199 We argue that this shows flexibility in the application of the law and the tools available to the judges in preventing its overly broad and unfair application, while the acts rightly remain criminal and punishable with imprisonment due to the severe danger posed to the lives of others and to society as a whole.

Conclusion
In light of SC Resolution 1624 as well as ICCPR Article 20(2), states have an obligation to tackle incitement to terrorist acts as well as advocacy of national, racial, or religious hatred constituting incitement to discrimination, hostility, or violence. States are also obliged to protect the fundamental human rights of its citizens, including the right to life and physical integrity, the right to security, freedom from fear, freedom from discrimination, and the right to dignity. This paper discusses the dangers of the spread of religious hate propaganda in the form of takfiri ideology and the disastrous consequences of pronouncements of takfir, which affect Muslim societies across the globe. Ranging from severe discrimination to murder in the name of Islam, the impacts on the enjoyment of fundamental human rights of targeted individuals are severe. Furthermore, when takfiri rhetoric targets entire groups of people it threatens their right to dignity and their right to security, and it can even amount to direct and public incitement to genocide against them.
When considering the right approach to tackling the problem, however, other human rights concerns can arise, such as the potential infringement on freedom of expression, the disproportionality of the criminalisation or the violation of the principle of legality. This paper has shown that the Tunisian approach through the Constitutional prohibition and counter-terrorism law criminalisation does not merit any significant criticism on any of these points, particularly considering the case law which demonstrates a just and balanced consideration of the context and potential impact of the utterances under consideration as well as the circumstances of the accused.
It is important to acknowledge, however, that the real test of a continuously balanced and just approach to the prosecution and adjudication of the crimes discussed in this article will only come when the Islamists are once again relegated to the opposition in Tunisia. We may not wait long for this to happen, as we are currently witnessing a substantial loss of public support and political power from the Islamist Ennahda and a dramatic split within the party. 200