A/HRC/43/46/Add.1 in a terrorist group, has broader consequences when the group in question is a civil society association designated as extremist or terrorist, creating a layered and overlapping set of categories, which may infringe upon the rights to freedom of expression and association and have a disproportionate application.10 Finally, article 258 of the Criminal Code, which regulates the financing of terrorism, is wide and raises concerns of legal certainty. Given the Special Rapporteur’s concerns about the vagueness and practice of terrorism charging, terrorism financing adds another layer of legal uncertainty as its penalties have criminal, civil and administrative dimensions. (b) Extremism offences 15. The Special Rapporteur notes her serious concern about the use of the term “extremism” in national law and practice (A/HRC/31/65, para. 21). While there is acknowledgment of the challenges of violent extremism leading to terrorism in some Security Council resolutions, as evidenced in the Secretary-General’s 2016 Plan of Action to Combat Violent Extremism,11 human rights treaty bodies have articulated concern about the use of the term “extremist activity”, 12 which she shares. She holds that the term “extremism” has no purchase in binding international legal standards and, when employed as a criminal legal category, is irreconcilable with the principle of legal certainty and is per se incompatible with the exercise of certain fundamental human rights. A former Special Rapporteur noted his concern when the term “extremism” was deployed, not as part of a strategy to counter violent extremism, but as an offence in itself (A/HRC/31/65, para. 21). She finds that all of these concerns are relevant to the exercise of articles 174, 179 and 405, among others, of the Criminal Code. 13 Article 174 of the Criminal Code, the most commonly used article against civil society activists in Kazakhstan, broadly criminalizes incitement to social, national, tribal, class, racial or religious discord, all of which are extremely vague grounds, and fails to provide genuine protection to individuals belonging to minority groups. Prison sentences for those successfully convicted are significant, particularly for leaders of public associations. This latter element appears to target civil society groups and activists, obstructing their work. She concludes that the definition of incitement to hatred is not in conformity with article 20 (2) of the International Covenant on Civil and Political Rights. While the protected grounds of national, racial or religious hatred found in article 20 (2) may not be exhaustive, the list of protected characteristics should be considered in light of the right to non-discrimination, as provided for under article 2 (1) and article 26 of the Covenant. By providing for the limitation of the right to freedom of expression on extremely vague and subjective grounds not recognized by human rights law – referring, for example, to undefined terms such as “discord” or an “insult to national honour and dignity or religious feelings”, it fails to provide legal certainty for individuals to regulate their conduct accordingly. The Special Rapporteur holds that what constitutes incitement under article 174 is extremely imprecise and reiterates that, according to international standards, when judging expression as incitement, regard should be had to six elements: the general context; the speaker; intent; the content of the message or its form; the extent of the speech at issue; and the likelihood of harm occurring, including its imminence.14 The lack of certainty is compounded by the subjectivity in determining what can be considered extremist. The Special Rapporteur notes that this is largely done on the basis of the opinions of government-appointed and security-cleared “experts” (linguists, philologists, psychologists, theologians and political scientists) who are called upon to determine whether any document, statement or group contains an extremist element. Once this opinion is obtained, it is very difficult in practice to refute or counter. The Special Rapporteur thus fully concurs with the assessment of the Human Rights Committee that the broad formulation of the concepts of “extremism”, “inciting social or class hatred” and 10 11 12 13 14 6 Article 257 provides for heavier sentences for “leaders of public associations” of between 10 and 15 years. See www.un.org/counterterrorism/plan-of-action-to-prevent-violent-extremism. See also General Assembly resolution 70/291. General comment No. 34, para. 46. Specifically, arts. 180–182, 184, 258–260, 267 and 404. Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.