JUSTICE The Legal Magazine of the International Association of Jewish Lawyers and Jurists Winter 2015-2016 No.57 In this issue Combating Antisemitic Incitement through European Courts & Online Facebook & Holocaust Denial Children's Rights & Brit Mila Legality of the International Coalition against ISIS “Combating Antisemitism Through Legal Means” Conference Defining and Fighting Antisemitism in Today's Europe Book Reviews
The International Association of Jewish Lawyers and Jurists Honorary President: Hadassa Ben-Itto, Judge (Ret.) (Israel) Lifetime Member: Irwin Cotler, Prof. (Canada) Honorary Vice Presidents: Joseph Roubache (France) Oreste Bisazza Terracini, Dr. (Italy) Executive Committee: President: Irit Kohn (Israel) Deputy President: Haim Klugman (Israel) Vice President and Treasurer: Avraham (Avi) D. Doron (Israel) Vice President and Secretary General: Mirella M. Bamberger (Israel) Vice Presidents: Alyza D. Lewin (USA) Marcos Arnoldo Grabivker, Judge (Argentina) Maurizio Ruben (Italy) Representatives to the U.N. in Geneva: Calev Myers (Israel) Gavriel Mairone (USA) Representatives to the U.N. in New York: Regina Tapoohi (USA) Calev Myers (Israel) Elad Popovich (Israel/USA) Mark A. Speiser (USA) Representative to the European Parliament: Pascal Markowicz (France) Irit Kohn (Israel) Haim Klugman (Israel) Avraham (Avi) D. Doron (Israel) Mirella M. Bamberger (Israel) Alyza D. Lewin (USA) Marcos Arnoldo Grabivker, Judge (Argentina) Maurizio Ruben (Italy) Amos Shapira, Prof. (Israel) Baruch Katzman (Israel) Calev Myers (Israel) Daniel Benko (Croatia) David Benjamin (Israel) David Pardes (Belgium) Edna Kaplan-Hagler, Judge (Ret.) Dr. (Israel) Ethia Simha (Israel) Gavriel Mairone (USA) Jeremy D. Margolis (USA) Jimena Bronfman (Chile) Jonathan Lux (UK) Lipa Meir, Dr. (Israel) Maria Canals De-Cediel, Dr. (Switzerland) Meir Linzen (Israel) Michael H. Traison (USA) Nathan Gelbart (Germany) Noemi Gal-Or, Dr. (Canada) Olaf S. Ossmann (Switzerland) Pascal Markowicz (France) Peggy Sharon (Israel) Pesach Kanir (Israel) Regina Tapoohi (USA) Richard Horowitz (Israel) Ruben Pescara (Italy) Sarah B. Biser (USA) Stephen C. Rothman, Judge (Australia) Stephen R.Greenwald, Prof. (USA) Suzanne Wolfe-Martin (Malta) Vera Rottenberg-Liatowitsch, Justice (Switzerland) Chief Executive Officer: Ronit Gidron–Zemach (Israel) * All members of the Executive Committee are members of the Board of Governors Board of Governors:
Winter 2015-2016 1 Contents JUSTICE is published by The International Association of Jewish Lawyers and Jurists 10 Daniel Frisch St. Tel Aviv 6473111, Israel Tel: +972 3 691 0673 Fax: +972 3 695 3855 IAJLJ@goldmail.net.il www.intjewishlawyers.org © Copyright 2016 by IAJLJ ISSN 0793-176X JUSTICE is published for members and friends of the International Association of Jewish Lawyers and Jurists. Opinions expressed in JUSTICE are those of their authors and do not necessarily reflect the views of JUSTICE or the International Association of Jewish Lawyers and Jurists. The accuracy of articles appearing in JUSTICE is the sole responsibility of their authors. Articles in English are welcome but should be preceded by a query to the IAJLJ Advisory Board at iajlj@goldmail.net.il. Back issues of JUSTICE are available at www.intjewishlawyers.org. POSTMASTER: Send address corrections to Justice, 10 Daniel Frisch St., Tel Aviv 6473111, Israel. NEVZLIN FAMILY FOUNDATION Publication of JUSTICE is made possible through the generous assistance of the Nevzlin Family Foundation. JUSTICE No. 57, Winter 2015-2016 Special Adviser Irit Kohn, Adv. Editor Mala Tabory, Dr. Advisory Editor Alan D. Stephens Advisory Boards Alan Baker, Amb. (ret.), Adv. Natan Lerner, Prof. Michla Pomerance, Prof. Daphne Richemond Barak, Dr. Robbie Sabel, Prof. Amos Shapira, Prof. Mala Tabory, Dr. Research Assistant Alisa Gannel, Adv. Legal Copy Editor Avi Charney, Adv. Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747 President’s Message 2 Articles Combating Antisemitic Incitement through the European Courts and Online Michael Whine 4 Facebook and Holocaust Denial Raphael Cohen-Almagor 10 Children's Rights and Brit Mila Rhona Schuz 17 The Legality of the International Coalition against ISIS: The Fluidity of International Law Myriam Feinberg 24 Speech at the “Combating Antisemitism Through Legal Means” Conference Austrian Federal Minister Johanna Mikl-Leitner 32 Defining and Fighting Antisemitism in 21st Century Europe Aleksandra Gliszczy ska-Grabias 34 Book Reviews The Yale Papers: Antisemitism in Comparative Perspective Edited by Charles Asher Small 38 Reviewed by Robbie Sabel The War of a Million Cuts: The Struggle against the Deligitimization of Israel and the Jews, and the Growth of New Anti-Semitism By Manfred Gerstenfeld 40 Reviewed by Rabbi Abraham Cooper The Definition of Anti-Semitism By Kenneth L. Marcus 42 Reviewed by Günther Jikeli
2 No. 57 JUSTICE his is the first time that Justice is appearing exclusively in digital form. We trust that the new format will reach a wider readership than before, and that the articles and materials herein will contribute to and expand on the subjects dealt with by the IAJLJ. Diaspora and Israeli Jewry are experiencing difficult times. Manifestations of antisemitism involve injury to Jews in various countries, of late in France in particular. In Israel, we are witnessing an occurrence still labeled as an "intifada of individuals," characterized by stabbing of citizens and soldiers. As I am finishing to write this message, terrorism has reached a higher level. On February 3, 2016, a border policewoman was shot and killed at the Damascus Gate in Jerusalem and her female partner was critically wounded by a gang of three, which indicates planning and coordination. This brings us to the conclusion that we are dealing no more with individual initiatives. The result is that over 30 Israelis have been killed and over 300 wounded to date in this current wave of terrorism. On October 4, 2015, Palestinian law student Muhammad Al-Halabi was killed after stabbing two Israelis to death in Jerusalem's Old City. Shockingly, the Palestinian Bar Association awarded an Honorary Law Degree to this murderer, referring to him as a “martyr,” and stated that its next bar swearing-in ceremony would be dedicated to him. As the Palestinian Bar Association received funding from the European Union, IAJLJ sent a letter on October 13, 2015 to EU Ambassador to Israel, Lars FaaborgAndersen, calling upon the EU to review its policy of supporting such an organization. Our letter and the reply we received are available on the IAJLJ website. The year 2016 began with another deadly attack, in the heart of Tel Aviv. On January 1, 2016, three citizens were murdered by an Israeli Arab on Dizengoff Street. The fine fabric of civic relationships between Jews and Arabs was severely shaken by this horrendous murder. However, we must not forget that blame should not be cast on Arab society in its entirety, and that a large proportion among them condemned the murder and wish to live alongside us peacefully. This wish must be reinforced. Israel's Declaration of Independence reminds us that: The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles! …it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex… The contribution of Israeli Arabs to diverse areas of society must also be kept in mind. I have already reported in our Newsletter of April 2015 and on our website, on establishing a joint council of Arab and Israeli lawyers together with IAJLJ members, the goal being to ensure that Israel’s law will be enforced everywhere in an egalitarian manner, and that the phenomenon of racism is fought against. Additional recent activities by the IAJLJ that we feel are highly important include efforts to develop dialogue with European Union states to discuss with them definitions of antisemitism, and action to enforce the law relative to crimes of antisemitism perpetrated in various countries. In this context the IAJLJ, together with the Kantor Center for the Study of Contemporary European Jewry at Tel Aviv University, held a symposium at the Austrian Ministry of Justice, with the participation of Austria’s Minister of Justice and Minister of the Interior, who delivered greetings and addressed the topic under discussion. I take this opportunity, therefore, to thank the President of the European Jewish Congress, Dr. Moshe Kantor, whose generosity made this event possible. The objective was to focus attention on the working definition of antisemitism, which was not adopted by EU countries, and which even includes “the new antisemitism,” directed against the State of Israel. The lectures there were intended to expose the positive aspects of the definition, in an attempt to possibly lead to its eventual adoption. No less important is working with law enforcement authorities in the various countries, and conducting dialogue on how to enforce domestic law in each country relative to antisemitic crimes. The EU indicated its serious intentions in this area by appointing Katharina von Schnurbein as EC Coordinator on Combating Antisemitism. We will of course be in touch with her. This approach will also be applied to other states that expressed willingness to discuss the topics presented in President’s Message T
3 Winter 2015-2016 Austria. At the end of September 2016, the IAJLJ will hold its annual conference in Paris, where we will confront these and other issues, and try to cope with antisemitic manifestations and the attitude of states toward these, and more. I invite you all to participate in this important conference. The IAJLJ has recently been very active against the boycott phenomenon, which is manifested on three levels: in academic institutions, including among students; in the media, through unfair coverage of events; and economically, by banning products from Israel, etc. IAJLJ is in contact with other organizations, among them universities and international friends, concerning actions where the law is significant, since this is the IAJLJ’s realm of activity. We also approached members of the Association in several countries and asked them to assist in locating and reporting such phenomena in their countries. Sadly, as their scope seems to be widening, we would appreciate your involvement and cooperation in this activity. We wish our friends—wherever you are—that the year 2016 will bring with it good health and a better world than the one we witness today. Irit Kohn President, IAJLJ Donors to IAJLJ The IAJLJ extends its appreciation to all the donors in Israel and abroad: Meitar, Liquornik, Geva, Leshem, Tal - Law Offices Herzog, Fox & Neeman Goldfarb Seligman & Co. Balter, Guth, Aloni & Co. law offices Levitan, Sharon & Co Cohen, Wilchek & Co. McCarter & English, LLP
4 No. 57 JUSTICE uropean law offers increasing protection for Jews and other minorities through judgments by the European Court of Human Rights (ECtHR), and successful case law from European national courts. This improvement in legal protection arises from recent and parallel developments that are not directly related, but are slowly changing perceptions about hate speech, and its links to racist violence, radicalization and extremism, while nevertheless recognizing the importance of free speech. While there is no universally accepted definition of "hate speech," the ECtHR has established certain guidelines making it possible to characterize it in order to exclude it from the protection afforded to freedom of expression. At the political level, the Office for Democratic Institutions and Human Rights (ODIHR) at the Organization for Security and Cooperation in Europe has also published a definition agreed upon by its participating states and their criminal justice agencies, which participating states are urged to use. Accordingly, ODIHR has noted that hate speech, however discriminatory or insulting, would not be a crime without a specific base offense, such as the glorification of Nazi ideology or Holocaust denial, which European Union (EU) member states are required to criminalize.1 The second development is a consequence of continuing discussion between the major social networks, lawyers, a small group of NGOs and government experts. They have been brought together by shared concerns over the malign power of the Internet. This has led recently to the former agreeing to a set of standards to reduce online harmful content. This is fuelled by the realization that social networks have social as well as financial and technological interests, and demands by European states and international agencies for more effective controls against harmful online content. The over-riding consideration by all participants in these discussions is that self-regulation by the internet industry will be more effective than imposed rules and laws. European Agreements Three European agreements directly and indirectly offer protection to Jewish communities. Two of them are directives that have to be transposed by EU member states and are attached to a time-scale governing their incorporation into national legislation. States transposing them are also subject to inspection by the European Commission, with the possibility of a referral to the European Court of Justice if a state either fails to transpose the directive or if it fails to transpose it effectively. Chronologically, the first of the three agreements, the Additional Protocol on the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems to the Council of Europe Convention on Cybercrime (2003) is not enforceable, and only ratifying states are bound by its terms. The Additional Protocol requires signatory states to adopt criminal laws against: making available racist and xenophobic material through a computer system; threatening persons distinguished by race, color, descent, religion or national or ethnic origin through a computer system; publicly insulting persons as defined above through a computer system; denying, grossly minimizing, approving or justifying genocide or crimes against humanity, including the Holocaust.2 All Council of Europe (CoE) member states were expected to ratify the Additional Protocol by January 1, 2014, but the European Commission has since extended the timeframe to allow EU member states to ratify it by the end of 2015.3 Combating Antisemitic Incitement through the European Courts and Online E MichaelWhine 1. Hate Crime Laws - A Practical Guide, OSCE ODIHR (2009), at 25-26, available at www.osce.org/ odihr/36426?download=true (last visited Sept. 9, 2015). 2. Additional Protocol to the Convention on Cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through Computer systems, 2003, Council of Europe, available at conventions.coe.int/ Treaty/en/Treaties/Html/189.html, (last visited Sept. 9, 2015). 3. Council conclusions on combating hate crime in the European Union, December 2013, Council of the European Union, available at www.consilium.europa.eu/uedocs/ cms_data/docs/pressdata/en/jha/139949.pdf (last visited Sept. 9, 2015).
5 Winter 2015-2016 The second agreement is the European Union Council Framework Decision 2008/913/JHA, on combating certain forms and expressions of racism and xenophobia by means of criminal law. This has enforcement powers from January 1, 2014, and requires EU member states to legislate against: publicly inciting to violence or hatred against a group of persons defined by reference to race, color, religion, descent or national or ethnic origin; publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes; publicly condoning, denying or grossly trivializing the Holocaust.4 The third agreement is the Framework Directive on Victims’ Rights, which reinforces existing national measures with EU-wide minimum standards on the rights and protection of victims of crime, and which requires that victims of crime are recognized and treated in a respectful, sensitive and professional manner according to their individual needs without discrimination. The preamble to the Directive notes inter alia that victims must be encouraged to report crimes in order to break the cycle of repeat victimization, and that a respectful, sensitive, professional and non-discriminatory response by the authorities will increase victims’ confidence in criminal justice systems and reduce the number of unreported crimes. A second introductory note states that the collection of systematic and adequate statistical data is an essential component of effective policy making and that states are required to publish relevant statistics on crime victims. While these provisions do not specifically apply to hate crime, another introductory note lists protected characteristics including race, religion, ethnicity etc. The Directive entered into force on November 15, 2012 with a deadline for transposition by member states of November 16, 2015.5 General Principles Underlying European Law on Incitement The authors of the European Convention on Human Rights (the Convention) sought to establish an institutional framework based on democratic values in order to overcome extremism, following the Second World War, although critics, including the UK government, are now pressing for the Convention to be updated in the light of recent history.6 The ECtHR was established in 1959 to consider cases initiated by organizations, states and individuals against any state that has signed the Convention. Parties must comply with its rulings although the ECtHR has no enforcement power, unlike the Luxembourg-based European Court of Justice. Over the years the ECtHR has identified a number of forms of expression that were considered offensive and contrary to the Convention including racism, xenophobia, antisemitism, aggressive nationalism and discrimination against minorities and immigrants. However, it has been careful to make a distinction in its findings between, on the one hand, genuine and serious incitement to extremism and, on the other hand, the right of individuals (including journalists and politicians) to express their views freely and to “offend, shock or disturb” others.7 While there is no universally accepted definition of the expression “hate speech,” the ECtHR case-law has established certain parameters making it possible to characterize “hate speech” in order to exclude it from the protection afforded to freedom of expression (Article 10 of the Convention) or freedom of assembly and association (Article 11).8 The ECtHR therefore excludes hate speech from protection by means of two approaches: (a) by applying Article 17 of the Convention (prohibition of abuse of rights) where the comments in question amount to hate speech and negate the fundamental values of the Convention, or (b) by applying the limitations provided for in the second paragraph of Article 10 and Article 11 of the Convention. This approach is adopted where the speech in question, although it is hate speech, is not apt to destroy the fundamental values of the Convention.9 4. Council Framework Decision 2008/913/JHA, Nov. 2008, O.J. (L.328/55), available at eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:L:2008:328:0055:0058:en:PDF (last visited Sept. 9, 2015). 5. Directive 2012/29/EU of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, 2012 O.J. (L.315/57), available at eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ: L: 2012:315:0057:0073: EN:PDF (last visited Sept. 10, 2015). 6. The Case for Change, p. 3, Protecting Human Rights in the UK - the Conservatives’ proposals for changing Britain’s human rights laws, The Conservative Party, 2015, available at https://www.conservatives.com/~/media/files/ downloadable%20Files/human_rights.pdf 7. Hate speech, ECtHR, June 2015, available at www.echr. coe.int/Documents/FS_Hate_speech_ENG.pdf (last visited Sep. 10, 2015). 8. European Convention on Human Rights, art. 10, para. 2, Nov. 1950, noting that the exercise of these freedoms (of expression) may be subject to restriction in the interests of national security, available at www.echr.coe.int/ Documents/Convention_ENG.pdf (last visited Sep.10.2015) 9. Ibid., art. 11, para. 2, noting that restrictions on freedom of assembly may be necessary for the prevention of crime or disorder.
6 No. 57 JUSTICE European Case Law on Holocaust Denial In three separate judgments, the ECtHR has ruled that Holocaust denial is a breach of the Convention, thereby establishing the fact that, in certain cases, Holocaust denial constitutes incitement to hatred. In the first case, the French Holocaust denier Roger Garaudy sought to overturn his conviction for denying the Holocaust that was upheld by the Court of Cassation. The ECtHR ruled that his right to free speech enshrined in Article 10 of the Convention did not outweigh his duty not to dispute the existence of crimes against humanity, contained in Article 17. They further stated that the purpose of Holocaust deniers was to rehabilitate the National Socialist regime, to accuse the victims of the Holocaust of falsifying history, and therefore constituted one of the most severe forms of racial defamation, and of incitement to hatred.10 In Honsik v. Austria, the European Commission on Human Rights, sitting in private as a court, dismissed the applicant’s complaint under Article 10 of the Convention that his right to freedom of expression had been violated when he had published material denying the facts of the Holocaust in his periodical, Halt, in September and November 1986, and that they constituted National Socialist activities within the meaning of Section 3(g) of the Austrian National Socialist Prohibition Act.11 In Marais v. France, Pierre Marais had complained that the French courts had convicted and sentenced him for defending war crimes, publishing racial insults, denying crimes against humanity and publishing racially defamatory statements for an article about the NatzweilerStruthof death camp in the journal Revision. In June 1996, the Court dismissed his claim that the French court was biased against him and had no right to rely on the judgment given by the Nuremberg International Military Tribunal.12 Although it does not deal with antisemitism, the Delfi AS v. Estonia case lays down an important principle, though one that some have found contentious, namely that a publisher is liable for the material on his platform if it contains illegal content. This has important implications for the right of Jews, among others, not to be defamed or not to be the focus of incitement to hatred.13 The case concerned the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. In particular, the domestic courts had rejected the portal’s argument that under the EU Directive 2000/31/EC on Electronic Commerce, its role as an Internet society service provider or storage host was merely technical, passive or neutral, finding that the portal exercized control over the publication of comments. Before the Court, the applicant company complained that being held liable for comments of its readers breached its right to freedom of expression. The ECtHR upheld the judgment of the Estonian courts regarding the liability of an Internet news portal for offensive comments posted by readers in 2013. It rejected the argument that an ISP’s role was merely technical, passive or neutral, finding that it must exercise control over the publication of comments. The judgment was upheld two years later by the higher Grand Chamber, to which the earlier judgment was referred for final adjudication. The case therefore concerned the duties and responsibilities of Internet news portals that provide on a commercial basis a platform for user-generated comments on previously published content and some users, whether identified or anonymous, engaged in clearly unlawful hate speech that infringed the rights of others. The Delfi case did not concern other fora on the Internet where third party comments could be disseminated, for example an Internet discussion forum, a bulletin board or a social media platform. The Grand Chamber held by a majority decision that there had been no violation of the applicant’s freedom of expression and therefore no breach of Article 10 of the Convention.14 Some Cases from the European Courts On July 11, 2008, at Leeds Crown Court in the UK, Stephen Whittle was convicted of four counts of publishing racially inflammatory material and Simon Sheppard was convicted of nine counts of publishing racially 10. Garaudy v. France, 65831/01, ECtHR, press release (2003). 11. Honsik v. Austria, Eur. Comm'n H. R. First Chamber (1997), ECtHR, available at hudoc.echr.coe.int/eng?i=00146008#{"itemid":["001-46008"]} (last visited Sept. 9, 2015). 12. Marais v. France, Application No. 31159/96, Decision of June 24, 1996 on the admissibility of the application, ECtHR, available at hudoc.echr.coe.int/sites/eng/pages/search. aspx?i=001-88275#{"itemid":["001-88275"]} (last visited Sept. 9, 2015). 13. Delfi AS v. Estonia, ECtHR, Application No. 64569/09, Decision of October 10, 2013, available at http://hudoc.echr. coe.int/eng?i=001-126635#{"itemid":["001-126635"]}. 14. Press Release, the Registrar of the Court, ECtHR. Commercially run Internet news portal was liable for the offensive online comments of its readers (June 16, 2015), available at http://hudoc.echr.coe.int/app/conversion/ pdf/?library=ECHR&id=003-5110487-6300958&filena me=003-5110487-6300958.pdf (last visited September 9, 2015).
7 Winter 2015-2016 inflammatory material. They fled the UK to the U.S., where they claimed asylum, but were returned nearly one year later, having failed in their asylum claim. On July 14, 2008, Whittle was convicted of a further count of the same offense, and Sheppard of a further two counts, in their absence. On July 10, 2009, Sheppard was sentenced to four years and ten months imprisonment, and Whittle to two years and four months imprisonment. The material, which included antisemitic, Holocaust denial, and other criminally racist content, was posted on the heretical.com website, that Sheppard managed, and was hosted in California. The Court held that as the material in question was uploaded in the UK, and that it was available to the public at large, the offense occurred in the UK, and was therefore subject to British jurisdiction and was not extra jurisdictional as the defendants had argued. The convictions were upheld by the Court of Appeal, and the Supreme Court, although Sheppard’s sentence was reduced by the former.15 On June 12, 2013, the French Court of Appeal rejected Twitter ’s attempt to shield the identities of those responsible for antisemitic posts made in 2012 with the hashtag #unbonjuif (a good Jew), that contravened French laws on hate speech. The Union of French Jewish Students (UEJF) and four anti-racism organizations had asked Twitter to reveal the identities of the posters and to make it easy for its users to flag messages that contravene French hate speech laws. In March 2013, faced with Twitter’s reluctance to hand over the names, UEJF filed a criminal complaint against the company. Twitter appealed the initial ruling, which the Court rejected on June 12, 2013, ordering it to pay compensation and costs.16 In November 2010, Mohammed Sandia was convicted at Edinburgh’s Sherrif’s Court in Scotland for posting remarks on the website of The Scotsman newspaper in March 2008, which included “Jews are not fit to breathe our air. They must be attacked wherever you see them: throw rocks at their ugly hooked-nosed women and mentally ill children, and light up the REAL ovens." He pleaded guilty, but sentence was deferred for a year pending reports on his behavior. When he appeared for sentencing in December 2011, he was found guilty and admonished, but no custodial sentence was handed down.17 In April 2013, four men from various Italian cities were convicted of inciting race hatred after posting antisemitic and white supremacist messages on the Italian website of the U.S. based neo-Nazi Stormfront website. A Rome court sentenced them for promoting and directing a group whose purpose was the instigation to ethnic, religious and racial discrimination and violence. Additionally, the Court found the men guilty of “targeting Jews and immigrants, advocating the supremacy of the white race and instigating racism and Holocaust denial.”18 In June 2013, a court in Feldkirch, Austria, sentenced a neo-Nazi to eighteen months in prison for posting on Facebook pictures of Adolf Hitler, swastikas and other material banned in Austria. The defendant admitted uploading the material but stated that he was not aware that it could be seen by anyone and that he did not intend to glorify Nazism. The Court however pointed out that his computer contained other material that is illegal and that he was active on the skinhead scene.19 In July 2013, Manchester-based DM Digital, a Muslim television channel, was fined £85,000 by OFCOM, the UK broadcasting regulator, for broadcasting a program in which Abdul Qadir Jilani, an east London-based preacher, urged Muslims to kill anyone who insulted Islam.20 15. Sheppard & Whittle v. Regina, EWCA Crim 65 (January 29, 2010), available at www.bailii.org/ew/cases/EWCA/ Crim/2010/65.html (last visited Sept. 10, 2015). 16. Somini Sengupta, Twitter yields to pressure in hate case in France, N.Y. TIMES, July 13, 2013, available at www.nytimes. com/2013/07/13/technology/twitter-yields-to-pressurein-hate-case-in-france.html (last visited Sept. 9, 2015). 17. Narrative for Court on November 10, 2010, Procurator Fiscal Edinburgh v. Mohammad Sandia, ED09013728, document in author’s possession. Sandia posted the comments on March 1, 2008 and March 2, 2008, but the Scotsman web-link no longer exists; Mohammed Sandia sentenced for posting Anti-Semitic comments on the Scotsman website, Dec. 9, 2011, SCOTTISH COUNCIL OF JEWISH COMMUNITIES, available at www.scojec.org/news/2011/11xii_sandia.html (last visited Sept. 9, 2015). 18. Four race-crime convictions for neo-Nazi website, GAZZETTA DEL SUD, April 8, 2013, available at www.gazzettadelsud. it/news/english/41782/Four-race-crime-convictions-forneo-Nazi-website.html (last visited Sept. 9, 2015). 19. Austrian neo-Nazi gets jail term for Facebook posts, THE NEW AGE, June 27, 2013, available at www.thenewage.co. za/99730-1020-53-Austrian_neoNazi_gets_jail_term_for_ Facebook_posts (last visited Sept. 9, 2015). 20. David Barrett, Muslim television channel fined after preacher of hate incited murder live on air, THE TELEGRAPH, July 5, 2013, available at www.telegraph.co.uk/news/uknews/ terrorism-in-the-uk/10162099/Muslim-television-channelfined-after-preacher-of-hate-incited-murder-live-on-air. html (last visited Sept. 9, 2015).
8 No. 57 JUSTICE In August 2014, John Curchod from Sussex England, posted messages on Twitter, including the following: “The world will exterminate you. As Hitler failed to do in entirety”; “We are waiting - got the shotguns man – ready to shoot Jews”; “Why are Jews so despicable”. The following June, he pleaded guilty to sending messages that were antisemitic and of a grossly offensive, obscene or menacing character. He was fined £1,000 and ordered to pay costs at Hastings Magistrates Court, Sussex.21 In February 2015, Mahmudul Choudhury, a married teacher, was fined £464 plus costs at Bromley Magistrates Court, south east London, for posting a picture of Adolf Hitler on his Facebook site with the caption “Yes man, you were right. I could have killed all the Jews, but I left some of them to let you know why I was killing them. Share this picture to tell the truth [sic] a whole world.”22 The cases cited above indicate that prosecutions against antisemitic incitement can now take place across the EU and span offenses across the social networks and electronic media. European law has therefore caught up with the use of the Internet and is applying the law to this medium, as it does with material published offline. Moreover, service providers will no longer be able to plead that they merely act as the unknowing vehicles for spreading criminal incitement against Jews, or any other minority, and that they bear no responsibility for what appears on their platforms. As the process of transposing the EU Directives into national legislation, and as the pressure on states to prosecute hate crime and hate speech that crosses a criminal threshold gain momentum, it is likely that the number of cases will increase. Some states have publicized their determination to prosecute harmful content that crosses the criminal threshold, and the European agreements noted above will underpin their action. In the UK, which has gone further than most states in tackling the problem, a series of warnings and amendments to legislation are facilitating the prosecution of such material. After extensive consultation with the police and civil society experts, The Crown Prosecution Service published Guidelines on prosecuting cases involving communications sent via social media in 2013, and the Ministry of Justice published Complaints about defamatory material posted on websites: Guidance on Section 5 of the Defamation Act 2013 and Regulations in 2014.23 In 2012, the Chief Crown Prosecutor issued a public warning Resolve to use Facebook responsibly this year – or risk jail.24 In July 2014, the House of Lords Select Committee on Communications published its review of legislation available to prosecute incitement and concluded that it is generally appropriate for the prosecution of offenses committed using social media, but that some laws might be adjusted, such as investigation periods extended to twelve months, due to the frequent need to obtain evidence from abroad, and that questions of jurisdiction and access to communications data might be resolved by an international treaty.25 Working with the Social Networks to Reduce Antisemitism In 2012, the Inter-Parliamentary Coalition for Combating Antisemitism (ICCA), an organization of parliamentarians from around the world, asked the American AntiDefamation League (ADL) to convene a Working Group on Cyberhate. The request followed the ICCA conference held in Ottawa in 2010, at which parliamentarians inter alia called for the establishment of an “International Task Force of Internet specialists comprised of parliamentarians and experts to create common indicators to identify and monitor anti-Semitism and other manifestations of hate online and to develop policy recommendations for governments and international frameworks to address these problems.” 21. Fine for Antisemitic Twits, Coordinating Forum for Combating Anti-Semitism, July 10, 2015, available at antisemitism.org.il/article/98128/fine-antisemitic-twits (last visited Sept. 9, 2015). 22. Teacher fined for posting pro-Hitler image on Facebook aimed at Jews, THE TELEGRAPH, Feb. 18, 2015, available at www. telegraph.co.uk/news/uknews/crime/11419645/Teacherfined-for-posting-pro-Hitler-image-on-Facebook-aimedat-Jews.html (last visited Sept. 9, 2015). 23. Guidelines on prosecuting cases involving communications sent via social media, June 2013, CPS, available at www. cps.gov.uk/legal/a_to_c/communications_sent_via_social_ media/ (last visited Sept. 9, 2015); Complaints about defamatory material posted on websites: Guidance on Section 5 of the Defamation Act 2013 and Regulations, January 2014, Ministry of Justice, available at www.gov. uk/government/uploads/system/uploads/attachment_ data/file/269138/defamation-guidance.pdf (last visited Sept. 9, 2015). 24. Resolve to use Facebook responsibly this year – or risk jail say Chief Crown Prosecutor, CPS, January 4, 2012, available at blog.cps.gov.uk/2012/01/resolve-to-use-facebookresponsibly-this-year-or-risk-jail-says-chief-crownprosecutor.html (last visited Sept. 9, 2015). 25. Social media and criminal offences, 1st Rep. of Sess. 201415, Select Committee on Communications, House of Lords (UK), July 29, 2015, available at www.publications. parliament.uk/pa/ld201415/ldselect/ldcomuni/37/37. pdf (last visited Sept. 9, 2015).
9 Winter 2015-2016 The Working Group’s mandate was to develop recommendations for the most effective responses to antisemitism, and other forms of bigotry, online. Its membership includes representatives from the major social networks and internet industry, civil society, academia and the legal community. Meeting over the course of two years, the Working Group members have shared information, experiences and knowledge of the developing legal frameworks and court cases described above. Their work culminated in the publication of the Best Practices for Responding to Cyberhate, a set of best practices that both sides agreed to share. Since then, several of the major social networks have followed up the agreement, by inviting representatives of Jewish organizations, alongside police officers, prosecutors, and representatives of anti-racist NGOs to meetings at their European headquarters to discuss ways to reduce harmful content on their platforms, while respecting the free speech ethos that govern the Internet. An example of this determination to improve their service was Twitter ’s unveiling of a "Safety Centre" to improve reporting of, and action against, antisemitic messages, developed in conjunction with the Community Security Trust in the UK. Twitter, Facebook and Google have all responded to invitations to meet NGOs campaigning against cyber hate. Twitter and Facebook, for example, have sent senior representatives to meetings of the International Network against Cyber Hate (INACH). Facebook and Google sent senior representatives to the Israel Ministry of Foreign Affairs Global Forum Against Antisemitism in 2015, to explain their developing strategies. The latter two companies are also funding the Facing Facts project to develop online programs to assist civil society to monitor hate crime to criminal justice standards. Thus slowly but determinedly, the social networks are participating in a scheme to bridge the trans-Atlantic gap between the American stance which adheres closely to the First Amendment doctrine of free speech, and that of Europe which holds that free speech is not absolute and that those who incite hatred are to be held accountable to law. Conclusions Jews and Jewish communities are therefore afforded protection in law against antisemitic incitement as a consequence of European agreements, directives and cases settled before the ECtHR. The realization by the social networks that their platforms provide a vehicle for antisemitic incitement, as well as all the benefits that the Internet has brought, should also begin to strengthen that protective shield. The Additional Protocol to the Council of Europe Cybercrime Convention requires that signatory states criminalize incitement to hatred and Holocaust denial; the Council Framework Decision has greater force, and EU Member States are now inspected to ensure that it is properly implemented, while the Framework Directive on Victims’ Rights reinforces existing measures, and Member States will again be inspected on its implementation. The interpretation of the European Convention on Human Rights by the ECtHR criminalizes Holocaust denial, and has ruled that deniers cannot claim the right of free speech, nor can they seek to rehabilitate Nazism or Nazi ideology. However, European states have sometimes been reluctant to use the tools they have been provided with, and it is therefore the task of civil society, and Jewish communities to hold them to their responsibilities. This will become ever more vital as European populations react to economic decline and migration pressures, and turn to far right populism and other forms of extremism that appear to offer short term solutions. n Michael Whine MBE is Government and International Affairs Director at the Community Security Trust, and the UK Member of the European Commission against Racism and Intolerance (ECRI) at the Council of Europe. He is also a member of the Hate Crime Independent Advisory Group at the UKMinistry of Justice.
10 No. 57 JUSTICE ntroduction In this article, I take issue with Facebook’s policy that allows Holocaust denial on its web pages because its directors believe that Holocaust denial is not hateful per se. I aim to show that it is hateful and that Facebook and other networking sites should reconsider their position in line with their own terms of conduct. All Internet providers and web-hosting companies whose terms of service disallow hateful messages on their servers should not host or provide forums for such hate-mongering. This is of paramount importance as Holocaust denial is prevalent in Europe, in the United States, and across Arab and Muslim parts of the world. While some countries, mainly in Europe, prohibit Holocaust denial by law, other countries have no such prohibitions. The question, however, is not only legal. It is also ethical and a matter of social responsibility for Internet service providers (ISP) and Web-Hosting Services (WHS) to decide whether or not they wish to host this kind of hate speech on their servers. Background January 27 has been designated by the United Nations as International Holocaust Remembrance Day. On this day, Auschwitz-Birkenau was liberated. On this day, we remember the six million Jews who were murdered by the Nazi regime. Despite clear historical evidence, some people deny the Holocaust. The Internet has become a very handy platform for spreading those claims and for making a case for what the deniers term “revisionist history.” Among the major social networking sites that allow Holocaust denial on their platform, Facebook is the most prevalent. Facebook prohibits posting content that is hateful or threatening. Facebook disabled a group called "I Hate Muslims in Oz." Barry Schnitt explained: “We disabled the ‘I Hate Muslims in Oz’ group… because it contained an explicit statement of hate. Where Holocaust-denial groups have done this and been reported, we’ve taken the same action."1 In May 2010, Facebook took down a page titled “Kill a Jew Day,” which urged Netusers to violence “anywhere you see a Jew” between July 4 and July 22. Facebook distinguishes between an "explicit statement of hate" and Holocaust denial. Its directors believe that Holocaust denial is not hateful per se and does not therefore contravene the company’s terms of service. The terms of service state: “You will not post content that is hateful, threatening, pornographic, or that contains nudity or graphic or gratuitous violence.”2 Many of the gatekeepers of the large IT companies – Google, Facebook, Yahoo and Twitter-- are young Americans who were brought up on the values of the First Amendment.3 For them, freedom of expression is the most important principle that guides their actions. So much so that Facebook at first did not have rules on what speech violated its terms of service,4 and Twitter ’s only exception to free speech stipulates that “You may not publish or post direct, specific threats of violence against others.”5 Consequently, hate speech is legitimate, protected speech. But the role of gatekeepers, which gives them great powers, also requires great responsibility. A balance needs to be struck between freedom of expression and social responsibility, between rowdiness and civility, between the desire to have an open wide marketplace of ideas, and ascertaining that the marketplace of ideas does not facilitate violence and lawlessness. Holocaust Denial What do we mean by "Holocaust denial"? Why does this form of speech constitute hate? If you ask a person on the street what he or she knows about the Holocaust, and the answer is that he or she has never heard of it, this cannot be considered as Holocaust denial. Ignorance and denying reality are not forms of hate. Even if the person Facebook and Holocaust Denial I Raphael Cohen-Almagor 1. Chris Matyszczyk, Facebook disables ‘hate Muslims’ group, CNET, June 10, 2009, available at news.cnet.com/830117852_3-10262136-71.html (last visited Oct. 19, 2015). 2. See www.facebook.com/terms.php (last visited Oct. 19, 2015). 3. http://constitution.findlaw.com/amendment1.html 4. Jeffrey Rosen, The Delete Squad, NEW REPUBLIC (April 29, 2013), available at www.newrepublic.com/article/113045/ free-speech-internet-silicon-valley-making-rules (last visited Oct. 19, 2015). 5. The Twitter Rules, support.twitter.com/articles/18311the-twitter-rules (last visited Oct. 19, 2015).
11 Winter 2015-2016 appears to know, this does not necessarily constitute a form of hate. The content of the speech and the intention of the speaker should always be taken into account. Disputing certain historical facts is not a form of hate either, and I doubt whether it can be considered Holocaust denial. If one argues that five million, not six million, were murdered during 1938-1945, based on a study of sorts done on Jewish demography in Europe, this is an issue that can and should be discussed in the open in order to discover a possible new facet of the truth.6 If one brings evidence showing that an alleged massacre did not happen, or happened on a different date, or more people were killed than we know, or that an alleged war criminal was not at an alleged place at the alleged time, then these are all issues that should be probed and discussed. All this does not constitute Holocaust denial or a form of hate. Moreover, generally speaking, people are entitled to hold and express vilifying and outrageous views, to voice their dislike of other people and to use derogatory words and discriminatory adjectives against others. While we do not enjoy such expressions, we feel it is wrong, and we feel outraged confronting such statements, some liberals believe that such speech is protected under the free speech principle. The way to fight against such discriminating and damaging opinions is through more speech, not by silencing or censoring. This, indeed, is the essence of tolerance. Nevertheless, Holocaust denial constitutes a special category of speech that does not necessarily merit protection, certainly not in all places. Consideration needs to be given to the historical context and circumstances of the utterance. Holocaust denial is far from being innocent. It is a propaganda movement that seeks to deny the reality of the Holocaust, the systematic mass murder of six million Jews and millions of others deemed "inferior" by the Nazi regime. Misrepresenting their propaganda as” historical revisionism,” Holocaust deniers attempt to disseminate their extremist ideas by offering unsupported arguments against the well-established historical facts of the Holocaust. Their beliefs include accusations that Jews have falsified and exaggerated the tragic events of the Holocaust in order to exploit non-Jewish guilt. Holocaust denial groups have uploaded thousands of web pages, filled with distortions and fabrications, designed to reinforce negative stereotypes.7 Among the most visited sites promoting Holocaust denial are the Institute for Historical Review, originally and intentionally established for this purpose,8 Bradley Smith and his Committee for Open Debate of the Holocaust (focusing largely on U.S. college campuses),9 and sites sponsored by David Irving,10 Ahmed Rami,11 and Ernst Zundel.12 All portray themselves as hubs, even paradigms, of unbiased, unorthodox, gutsy historical research. Holocaust denial is a form of hate speech because it willfully promotes enmity against an identifiable group based on ethnicity and religion. It is designed to belittle the tragedies of the Holocaust while providing a justification for murder, genocide, xenophobia and evil. Holocaust denial assumes a form of legitimacy for racism in its most evil manifestation to date, under the guise of a pursuit of "truth." It speaks of an international Jewish conspiracy to blackmail Germany and other nations, and to exploit others in order to create Israel. It depicts a scenario in which Jews conspired to create the greatest hoax of all time. Specifically, deniers claim that Adolf Hitler did not plan genocide for the Jews but wished instead to move them out of Europe. They claim that no gas chambers ever existed as if they were an invention of the Jews to dramatize the mere "fact" that in every war there are casualties, and World War II was no different. People from many countries were killed, many of them Germans. And yes, Jews were killed. But so were people from other religions.13 6. For discussion of J.S. Mill’s Truth Principle and its importance in generating a tolerant atmosphere for unconventional expressions, see R. Cohen-Almagor, Why Tolerate? Reflections on the Millian Truth Principle, 25 PHILOSOPHIA, Nos. 1-4, at 131-152 (1997); Eric Barendt, FREEDOM OF SPEECH 8-14 (2005); R. Cohen-Almagor, John Stuart Mill: Utilitarianism, in ETHICAL COMMUNICATION: MORAL STANCES IN HUMAN DIALOGUE, 25-32 (C. G. Christians and J. C. Merrill eds., 2009). 7. Anti-Defamation League, Hate on the Internet (2003), at 14. 8. www.ihr.org/(last visited Oct. 19, 2015). 9. www.codoh.com/(last visited Oct. 19, 2015). 10. www.fpp.co.uk/(last visited Oct. 19, 2015); www.fpp. co.uk/online/index.html (last visited Oct. 19, 2015); Andrew Walker, Profile: David Irving, BBC, Feb. 20, 2006, available at news.bbc.co.uk/1/hi/uk/4449948.stm (last visited Oct. 19, 2015).For further discussion, see Ruth Wodak, Saying the unsayable: Denying the Holocaust in media debates in Austria and the UK, 3(1) JOURNAL OF LANGUAGE AGGRESSION AND CONFLICT 13-40 (2015). 11. Jews and the Black Holocaust, available at radioislam.org/ islam/english/toread/jewslave.htm (last visited Oct. 19, 2015); Statement of the Anti-Defamation League (ADL) Before the US Senate Committee of the Judiciary, Sept, 14, 1999, available at radioislam.org/adl/net.htm (last visited Oct. 19, 2015); Ahmed Rami, Holocaust Denial, ADL, available at adl.org/poisoning_web/rami.asp (last visited Oct. 19, 2015). 12. www.zundelsite.org/(last visited Oct. 19, 2015). 13. www.hdot.org/en/learning/myth-fact (last visited Oct. 19, 2015).
12 No. 57 JUSTICE According to the deniers, the Holocaust is the product of partisan Jewish interests, serving Jewish greed and hunger for power. Some Jews disguised themselves as survivors, carved numbers on their arms and spread atrocious false stories about gas chambers and extermination machinery. It was not Germany that acted in a criminal way. Instead, the greatest criminals are the Jews. The Jews are so evil that they invented this horrific story to gain support around the world and to extort money from Germany. For their extortion and fabrication, for creating the greatest conspiracy of all times, they deserve punishment, possibly even death. Jews are demonic and crooked people who deserve to die for making up this unbelievable tragedy. In effect, the ultimate purpose of Holocaust denial is to legitimize another Holocaust against Jews. Accordingly, Holocaust denial can be seen as the last stage of the Holocaust and it is the inception of a second stage of a vile bigotry that undermines Jewish existence in the world. Those who deny the Holocaust are antisemitic. It is demeaning to deny the Holocaust, for it is to deny history, reality, and suffering. Holocaust denial might create a climate of xenophobia that is detrimental to democracy. It generates hate through the rewriting of history in a vicious way that portrays Jews as the anti-Christ, as destructive forces that work against civilization. Furthermore, hateful messages desensitize members of the public on very important issues while silencing others. Hate speech builds a sense of possible acceptability of hate and resentment of the other that might be more costly than the cost of curtailing speech. And hate speech, in its various forms, is harmful not only because it offends but because it potentially silences the members of target groups and interferes with their right to equal respect and treatment. Hateful remarks might reduce the target group members to speechlessness or shock them into silence. The notion of silencing and inequality suggests great injury, emotional upset, fear and insecurity that target group members might experience. Hate might undermine the individual’s self-esteem and standing in the community.14 Drawing the Line Deciphering what constitutes hate is not always simple. In my book, Confronting the Internet's Dark Side: Moral and Social Responsibility on the Free Highway,15 I argue that on the one hand, statements that assert “Jews are money hungry,” “gays are immoral,” “Israel is an apartheid state” and calls to boycott Israel16 are all unpleasant, yet legitimate speech. On the other hand, calls that provoke violence against target groups fall under the definition of incitement; here the context is harmful speech that is directly linked to harmful action. By “hate speech” I refer to malicious speech that is aimed at victimizing and dehumanizing the targets, who are often (but not always) vulnerable minorities. Hate speech is fuzzier than incitement and concretely more damaging than advocacy, which is speech designed to promote ideas. Hate speech creates a virulent atmosphere of “double victimization”: the speakers are under attack/misunderstood/ marginalized/delegitimized by powerful forces (governments, conspiratorial organizations), and the answer to their problem is to victimize the target group. Their victimization is the speakers’ salvation. In 1996, the United States accounted for 66% of the world’s Internet users, while in 2015 the American market was reduced to 9.3 percent.17 Still, the American influence on the Internet is very significant. As the United States is taking the most liberal view in the world on the scope of freedom of expression, hate speech is shielded under the First Amendment. There is no basic disagreement that hate speech is vile and offensive. Most people believe it is. Still, it is a price that Americans are willing to pay to preserve and protect free speech. Generally speaking, hate is derived from one form or another of racism, which has facilitated and caused untold amounts of human suffering. It is an evil that has acquired catastrophic proportions in all parts of the world. Notorious examples include Europe under Nazism, and since then Yugoslavia, Cambodia, South Africa and 14. See Gordon W. Allport, THE NATURE OF PREJUDICE (1954); Richard Moon, THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION, at 127 (2000); Phyllis B. Gerstenfeld, Diana R. Grant and Chau-Pu Chiang, Hate Online: A Content Analysis of Extremist Internet Sites, 3(1) ANALYSIS OF SOCIAL ISSUES AND PUBLIC POLICY 29-44 (2003); Richard Delgado and Jean Stefancic, UNDERSTANDING WORDS THAT WOUND (2004); Raphael Cohen-Almagor, Harm Principle, Offense Principle, and Hate Speech, in Raphael Cohen-Almagor, SPEECH, MEDIA, AND ETHICS: THE LIMITS OF FREE EXPRESSION, at 3-23 (2005); Jessie Daniels, CYBER RACISM: WHITE SUPREMACY ONLINE AND THE NEW ATTACK ON CIVIL RIGHTS (2009); Abraham H. Foxman and Christopher Wolf, VIRAL HATE (2013). 15. Raphael Cohen-Almagor, CONFRONTING THE INTERNET'S DARK SIDE: MORALAND SOCIAL RESPONSIBILITY ON THE FREE HIGHWAY (2015). 16. Boycott Israeli Apartheid page, available at www.facebook. com/kaiser.hafeez1?fref=ts (last visited Oct. 19, 2015). 17. World Internet Users and 2015 Population Stats, http:// www.internetworldstats.com/stats.htm
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