A/HRC/43/46 Shift to the regulation of the “pre-terrorist” space A. 24. The Special Rapporteur is profoundly concerned about the increased regulatory focus on thought and action in the so-called “pre-criminal” or, more accurately, “pre-terrorist” space, involving the fluid interaction of the criminal with social, religious and administrative regulation. The shift criminalizes legitimately protected rights under international and domestic law,51 destabilizes fundamental tenets of the rule of law, including legal certainty, proportionality and non-discrimination and renders groups and individuals as “suspect” often primarily on the basis of stereotypes concerning religious or ethnic groups and geographical location.52 25. Enabled or led by the goal of preventing and countering violent extremism, regulatory practices have moved from sanctioning the acts of individuals to anticipating those acts, in a sweep of pre-emptive criminal sanctions supported and extended by multipronged socioadministrative regulation around the globe. Some countries have shifted towards the increased use of administrative measures as the undergirding legal basis for managing and preventing terrorism and the establishment of a posteriori rather than a priori judicial review, a perceptible shift towards the anticipatory prevention of terrorism, with substantial consequences for the protection of individual rights. 26. In targeting acts that are far removed from the commission of an act of terrorism, such problematic law and policy fail to require that the intent to commit an act of terrorism existed. Regulation often solely targets acts that are the legitimate exercise of fundamental freedoms, particularly freedom of expression and freedom of religion. Legislation that criminalizes speech that praises, justifies, excuses, encourages, glorifies, advocates or that is an apologia of terrorism bases liability on the content of the speech, rather than the speaker’s intention or the actual impact of the speech. 53 Similarly, law and practice that forces information and communications technology companies hosting third-party content to take down content deemed to be related to terrorism or extremism, or that allows executive authorities to – even indirectly – block websites, in the absence of any judicial controls or ex post facto judicial recourse, and measures to simply block websites or the entirety of the Internet allow Governments to bypass their own obligations to protect the rights to freedom of expression and opinion and to religious belief, when the banned content is religious material. 54 27. As noted by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, some of the current approaches, characterized by vaguely worded laws on what is proscribed and draconian intermediary penalties, are likely to be highly counterproductive and to have a chilling effect. 55 The Special Rapporteur recalls that no site or information dissemination system should be prohibited from publishing material solely on the basis that it may be critical of the Government, or the political or social system espoused thereby,56 or the religious beliefs or lack thereof adopted by the Government. In line with the recommendations of human rights mechanisms and the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, 57 the threshold for those inchoate crimes should be the reasonable probability that the expression in question would succeed in inciting a terrorist act, thereby establishing a causal link or actual risk of the proscribed result occurring. 58 Such 51 52 53 54 55 56 57 58 10 Jude McCulloch and Sharon Pickering, “Pre-crime and counter-terrorism: imagining future crimes in the ‘War on Terror’”, British Journal of Criminology, vol. 49, No. 5. A/HRC/28/66. A/HRC/40/52, para. 37; and A/HRC/31/65, para. 39. See also Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and expression, para. 46; and A/63/337, para. 61. See https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile? gId=24234. A/HRC/40/58, para. 53. Human Rights Committee, general comment No. 34, para. 43. A/HRC/22/17/Add.4. Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (A/HRC/22/17/Add.4), para. 29; and A/HRC/16/51, para. 30 and practice 8.