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JUSTICE - No. 59

JUSTICE The Legal Magazine of the International Association of Jewish Lawyers and Jurists JUSTICE JUSTICE JUSTICE JUSTICE JUSTICE JUSTICE JUSTICE JUSTICE JUSTICE JUSTICE J U S T I C E J U S T I C E J U S T I C E JUSTICE J U S T I C E Spring-Summer 2017 No.59 צדק צדק צדק צדק צדק צדק צדק צדק צדק צדק צ ד ק צדק צדק צדק JUSTICE צדק J U S T I C E JUSTICE JUSTICE J U S T I C E

The International Association of Jewish Lawyers and Jurists Honorary President: Hadassa Ben-Itto, Judge (Ret.) (Israel) Life time 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: Marcos Arnoldo Grabivker, Judge (Argentina) Maurizio Ruben (Italy) Stephen R. Greenwald (USA) 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) Richard Horowitz (USA) Representative to the European Parliament: Pascal Markowicz (France) Irit Kohn (Israel) Haim Klugman (Israel) Avraham (Avi) D. Doron (Israel) Mirella M. Bamberger (Israel) Marcos Arnoldo Grabivker, Judge (Argentina) Maurizio Ruben (Italy) Stephen R. Greenwald (USA) Alyza D. Lewin (USA) 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 (USA) Ruben Pescara (Italy) 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:

Spring-Summer 2017 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 2017 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. Donors to IAJLJ The IAJLJ extends its appreciation for donations made by the following leading Law Firms in Israel during 2017: Herzog Fox & Neeman Levitan, Sharon & Co Publication of JUSTICE is made possible through the generous assistance of Mr. Leonid Nevzlin JUSTICE No. 59, Spring-Summer 2017 Editor Mala Tabory, Dr. Advisory Editor Alan D. Stephens Advisory Board Deborah Housen-Couriel, Adv. Moshe Hirsch, Prof. Natan Lerner, Prof. Michla Pomerance, Prof. Robbie Sabel, Prof. Amos Shapira, Prof. Malcolm N. Shaw, Prof. Research Assistant Alisa Gannel, Adv. Legal Copy Editor Talya Herring Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747 President’s Message 2 Articles Some Reflections on Security Council Resolution 2334(2016) that Condemned Israel Ruth Lapidoth 4 Improving Legal and Other Protections for Europe’s Jews Michael Whine 7 Media Regulation in the UK Jonathan Turner 13 Contemporary Antisemitism on the UK University Campus: A Case Study and Context Lesley Klaff 19 Jewish Interests in International Fora Natan Lerner 26 Legal Framework and Case-Law on Hate Speech in the Republic of Croatia, with Special Focus on Antisemitism Daniel Benko & Ana Vargek 30 "So that We May Cease the Oppression Wrought by Our Hands": Exploitative Contracts and Basic Values in Jewish Law Shahar Lifshitz 37 International Legal Forums Seminar in Israel, March 4-9, 2017 Reviewed by Ronit Gidron-Zemach 48 "Antisemitism and Hate Crime in the Digital Age" Conference in Vienna Reviewed by Julia Andras 49 Book Reviews The Life, Times and Work of Jacob Robinson Edited by Eglé Bendikaité & Dirk Roland Haupt 52 Reviewed by Robbie Sabel Sovereignty in the Age of Global Terrorism: The Role of International Organizations By Miriam Feinberg 54 Reviewed by Rachel Frid de Vries The European Convention on Human Rights (ECHR) – A Guide Including a Comparison with Israeli Law By Chava Shachor-Landau 56 Reviewed by Nellie Munin

2 No. 59 JUSTICE his issue of Justice is published a few months before the IAJLJ international conference on "Fifty Years of a United Jerusalem." During the conference, elections will be held for executive positions in our Association, pursuant to our By-Laws, and I will hand over my honored position to the newly elected IAJLJ President. I would like to briefly outline the activities of the Association during my tenure. The IAJLJ is an apolitical organization – the members of which hold widely differing views on a range of topics. Accordingly, during my presidency, I have tried to develop a pluralistic dialogue with opposing opinions, even when these were not always consistent with the declared principles of our Association or not always politically correct. Given the fact that our Association is devoted to fighting for human rights, we are commanded to exercise vigilance about everyone's human rights, something that we have indeed attempted to do and that I consider to be a vital tenet of our existence. I begin by referencing how we addressed the atrocities perpetrated against the Syrian civilian population, in the Human Rights Council in Geneva. The world is silent. We and others have asked many questions about the role of the United Nations, the great Powers, and others. Hundreds of thousands of men, women and children have been slaughtered, yet the Security Council is unable to reach a decision to end this impossible situation because of cynical political considerations regarding Syria's Bashar al-Assad regime, Russia, Iran and Hezbollah. In a sharp transition, I note the side events we conducted in Geneva and at the UN in New York on terrorism and UNRWA. We held rallies on behalf of Gilad Shalit, near Red Cross institutions around the world, and championed his rights as a captive. We engaged in the activities of the "Davis" UN Committee of Independent Experts responsible for following up on the Goldstone Report by giving voice to the citizens of Sderot, who were then suffering from frequent Qassam attacks; we brought witnesses from the Gaza environs to explain their plight to the committee examining the conduct of Operation "Protective Edge," UNRWA’s activities, the fight against antisemitism and more. The International Association of Jewish Lawyers and Jurists is an institution of immense importance to me, and as the years pass, its significance increases. This is especially true today, as we witness the rise of extreme right-wing forces capable of posing a real threat to democracy and human rights. The spread of antisemitism around the world needs no elaboration. I recently heard Katharina von Schnurbein, European Commission Coordinator on Combating Antisemitism, who stated that, in the final analysis, what we see in Europe is the old antisemitism, which, of course, must be fought. I highlight this fact because we identified a strong connection between events in Israel, for example, Operation “Protective Edge,” and the rise of antisemitic activities against the Jewish citizens of various countries where harsh criticism was directed at the actions of the State of Israel. These activities have been described as "the new antisemitism," but a deeper examination reveals all the hallmarks of the old antisemitism, as noted above by the EU representative. In pursuing our work against antisemitism, we must not forget that a campaign of de-legitimization of the State of Israel has been waged for several years through the BDS, and consequently, during my tenure, our Association turned its attention to the BDS movement as well. As part of the overall fight against antisemitism, we collaborated with Professor Dina Porat of Tel Aviv University's Kantor Center for the Study of Contemporary European Jewry, in activities aimed at persuading European countries to adopt a working definition of antisemitism, which, we considered, could serve as a basis for formulating offenses in the domestic laws of countries. Ultimately, a uniform definition would have made it easier to fight the many antisemitic phenomena taking place across Europe and elsewhere. Our first seminar was held in Austria with the participation of the Austrian Ministry of Justice and Ministry of the Interior. We were pleased to note that Austria had indeed adopted that working definition. We are now in contact with the German Ministry of Justice to conduct a similar seminar. During the course of my tenure, we also placed an emphasis on attracting legal delegations to Israel, where they could have the opportunity to gain a first-hand impression of Israel's legal system. These are similar to IAJLJ delegations abroad, such as the delegation to Spain during my predecessor's tenure, which significantly advanced the debate about Salah Shehade – a Palestinian terrorist, Head of the Military Arm in Gaza killed during the second Intifada –following the submission of complaints against senior Israeli military officials in respect President’s Message T

3 Spring-Summer 2017 of alleged war crimes. Thus, the IAJLJ brought to Israel a delegation of judges from France, organized by veteran member Joseph Roubache, and only recently collaborated with the AJC – Global Jewish Advocacy – to bring a delegation of European prosecutors to Israel – as reported in this edition of Justice. I believe that hosting delegations is an essential component of our mission to increase foreign jurists' familiarity with the Israeli legal system and is a process that should be continued with vigor. In addition, during my tenure as President, emphasis was placed on the Association's character as a human rights organization, a principle enunciated by its founding fathers, René Cassin, Haim Cohn and Arthur Goldberg. In this context, the IAJLJ joined the petition submitted to the Israel High Court of Justice by a number of human rights organizations and private individuals regarding the book The King's Torah, which in our view, deviated dangerously from the right to freedom of expression towards incitement against non-Jews. The views of our Association, among those of others, were heard, and an order nisi was issued. Though ultimately the petition was rejected, Supreme Court Justice Elyakim Rubinstein, who wrote the decision, expressed great concern regarding the way in which the author's opinions had been set out in the book. Our Association worked with other organizations on the problem of refugees in Israel; a painful phenomenon, which regrettably, to this day, has not been resolved in a proper manner, even though the State of Israel is a party to the Refugee Convention. The phenomenon of radicalization in the world has not by-passed the State of Israel, where, to our sorrow, we encounter intolerance towards "the other," to the point of racism. Despite the provisions of the Declaration of Independence, we remain unfortunately far removed from a situation of equal human rights between Israeli Arabs and Jewish citizens of the state. In fairness, it should be noted that in recent years considerable resources have been allocated by the Israeli government to the Arab population, with the aim of integrating women into the employment market, introducing proper public transportation into Arab localities and more. There has also been a shift in construction plans for the Arab villages. Had we also witnessed declarations by our leadership regarding acceptance of "the other," we might have believed that we were at the beginning of a new path. Unfortunately, such declarations have not been heard, and the current state of affairs is still far from satisfactory. Therefore, the IAJLJ is now examining possibilities of assisting the Israeli Arab population on appropriate issues. In order to present a balanced picture, I would like to stress that I have encountered the welcomed activities of numerous private organizations in which many young forces have initiated a variety of cooperative initiatives between the Arab and Jewish populations in Israel. I regard this as a hopeful sign that the right course may still be taken. A different issue of considerable importance is the worldwide deployment of organizations and law firms that are members of the IAJLJ. Their presence and contribution enables rapid action on any subject on the global agenda necessitating our attention. Noteworthy in this context is the initiative of a law firm in Vienna with lawyers who are members of the organization, that asked the IAJLJ to hold a joint seminar on legal enforcement against antisemitic incidents, and particularly the issue of antisemitism on the Internet. I would like to encourage other law offices around the world to initiate similar joint activities with the IAJLJ on issues of mutual concern to us. Recently, I visited Santiago, Chile, and Rio de Janeiro in Brazil, where I spoke to local lawyers as well as community members. I think that such events are important, and contacts should be maintained wherever possible with members around the world. During my tenure, I tried to encourage the recruitment of young people from Israel and the world. I believe that I have succeeded in a certain sense, but there is still much work for the next IAJLJ President to do. Before concluding, I would like to refer to our legal journal Justice. I am sure you have noticed that there has been a significant improvement in the latest issues. I would like to take this opportunity to thank Dr. Mala Tabory for her professionalism and the great amount of work she invested as Editor of the publication, which have produced the excellent results we see today. As I am summarizing a period, I wish to express my heartfelt thanks to Ronit Gidron, CEO of the organization, for her great work and commitment to our causes, as well as to the office manager Iris Zilberman for her enormous dedication and great investment in ensuring the efficient management of our work. Last but not least, I cannot end without mentioning two dear people with whom I have worked a great deal, and who, to my great sorrow, are no longer with us: Dr. Daniel Lack and Dr. Meir Rosenne. They each helped me tirelessly day and night, believing unhesitatingly in the righteousness of the road and I miss them very much. Finally, my thanks go to retired Judge and former President of the Association, Hadassa Ben-Itto, who listened attentively to questions and opinions and provided me with assistance on a variety of issues with her usual unstinting wisdom. Irit Kohn

4 No. 59 JUSTICE ecurity Council Resolution 2334 is usually referred to as the resolution that condemned the Israeli settlements in the West Bank. However, the resolution also deals with other, quite important, issues. An analysis of some of its main provisions will be followed by an examination of its legal effect. After a few introductory remarks, the text of the resolution deals with four different subjects: condemnation of Israel; condemnation of all acts of violence against civilians; promoting peace based on the two-state solution; and the search for means to ensure the implementation of this resolution. Already in its preamble, Israel is severely condemned, not only because of the settlements: Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions… Each of these items merits an in-depth discussion, but that would be beyond the scope of the present article. The settlements are condemned because they are allegedly illegal according to international law and because they are “a major obstacle to the achievement of the two-State solution” (para. 1). It should be noted that this is not the first time that Israel was condemned by the Security Council. In 1980, the Council reacted strongly to the adoption of the Basic Law: Jerusalem, Capital of Israel. However, the term used in the relevant Resolution 478(1980) was not “condemns” but “censures in the strongest terms.” Another object of condemnation are acts of violence: "Condemning all acts of violence against civilians, including acts of terror, as well as acts of provocation, incitement and destruction…” In this regard, Israel is not mentioned as the object of condemnation. This provision does not mention a specific addressee, thus applying to everyone. Of great interest are the provisions that deal with the peace process. On the one hand, the text urges the parties to resume their negotiations. It even calls upon “all parties [whoever that may be]…to exert collective efforts to launch credible negotiations…” (para. 8). The negotiations are to deal with “final status issues” – a term used in the Oslo Agreements of 1993 and 19951 – and include Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of “common interest.”2 The parties should be inspired by the “Quartet Roadmap”3 (the U.S., Russia, the UN and the EU) and by the Arab Peace Initiative.4 The resolution itself does not indicate a time-limit for the negotiations, but it refers to the time frame included in the Statement of the Quartet of September 21, 2010: the negotiations “can resolve all final status issues within one year.”5 The freedom of choice of the negotiators is, however, rather limited since the Security Council has established certain principles for the future settlement: The solution of the two-state system; and the border between Israel and Palestine should be the June 4, 1967 line, except for changes agreed upon by the parties. These principles raise some important questions. Security Council Resolution 242(1967), which has been the “building block” of all treaties of peace and other peaceful agreements between Israel and her neighbors since 1967, speaks of “withdrawal Some Reflections on Security Council Resolution 2334(2016) that Condemned Israel S Ruth Lapidoth The author wishes to express her thanks to Dr. Ofra Friesel and to Tomer Treger, LL.B. 1. Declaration of Principles on Interim Self-Government Arrangements, 1993; Israeli-Palestinian InterimAgreement on the West Bank and the Gaza Strip, 1995. 2. The Declaration of Principles, supra note 1, art. V. 3. Summary in text below. 4. Summary in text below. 5. Quartet Statement, Sept. 21, 2010, available at http://www. un.org/News/dh/infocus/middle_east/quartet-21sep2010. htm (last visited April 24, 2017).

5 Spring-Summer 2017 of Israeli armed forces from territories occupied in the recent armed conflict.” Namely, not all the territories,6 whereas Resolution 2334 “Underlines that it [i.e. the Council] will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations.”7 Does this mean that Resolution 2334 intends to override Resolution 242 and its successor 338(1973)? Most probably, this is not the intention of the drafters. First, in its preamble Resolution 2334 reaffirms its previous resolutions, including 242. Second, and perhaps more important, it recalls several documents which encourage negotiations on the basis of Resolution 242, e.g. the “Madrid terms of reference”8 and the Quartet Roadmap.9 Moreover, both resolutions favor “secure and recognized” boundaries, i.e. agreed ones. Last but not least, the provisions of 242 (and 338) had been accepted by Israel and her neighbors, thus having gained the status of an agreement. One can imagine several explanations for the difference between the two resolutions. First, maybe the drafters of 2334 have adopted the Arab interpretation of 242, namely, as if the resolution had called for full withdrawal from all the territories.10 Amore reasonable explanation would recognize that the two texts actually differ only slightly. According to 242, there should be intensive negotiations on the borders, without any starting point. According to 2334, the starting point is the 1967 line, but this can and will be changed by common agreement. The June 4, 1967 line calls for some background information. In the West Bank, this line is based on the armistice demarcation line of 1949 established by the Israel-Jordan General Armistice Agreement.11 It was not intended to be a political border. The armistice was intended to be a step towards peace, as ordered by the Security Council,12 but the Arab states refused to continue on the road to peace. Thus, the armistice line continued to exist, until the armistice broke down in 1967. Much later, in 1994, the relations between Israel and Jordan were settled by the peace treaty. Thus, the legal foundations of the 1967 line have long ago disappeared. Nevertheless, the international community treats it as the boundary between Israel and “the Palestinian Occupied Territories,” as evident by the International Court of Justice13 and Resolution 2334. The armistice demarcation line was based on the cease-fire line of 1948, a military fact. But political boundaries have to take into account considerations of geography, demography and economics. The authors of Resolution 2334 did not limit themselves to describing the situation and recommending future developments. The Council also reaffirmed its “determination to examine practical ways and means to secure the full implementation of its relevant resolutions” (para. 11). The Council thus did not restrain itself to the mere implementation of Resolution 2334, but required also the implementation of its other relevant resolutions. The resolution mentioned the intensification of international and regional diplomatic efforts (para. 9) and asked to be informed every three months by the SecretaryGeneral about the progress on the implementation (para. 12). There is perhaps a hint about possible means of implementation in the provision that all states should “distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967” (para. 5). It is not stated what kind of dealings are envisaged, but one can assume that they are probably mainly economic. Since Resolution 2334 relies particularly on the Quartet Roadmap (2003) and on the Arab Peace Initiative (2002 and 2007), a short summary of these two documents follows. The Performance-Based Roadmap to a Permanent TwoState Solution to the Israeli-Palestinian Conflict envisions the creation of a Palestinian state as a solution to the 6. Ibid. para. 3. 7. According to some Arab commentators, the provision actually means full withdrawal. The issue has been discussed in Ruth Lapidoth, The Misleading Interpretation of Security Council Resolution 242 (1967), in ISRAEL’S RIGHTS AS A NATION-STATE IN INTERNATIONAL DIPLOMACY (Alan Baker ed., 2011), 85-95. 8. Text of the United States-Soviet Union Invitation to the Madrid Peace Conference, 1991, published, inter alia, in, THE ARAB-ISRAEL CONFLICT AND ITS RESOLUTION: SELECTED DOCUMENTS (R. Lapidoth and M. Hirsch eds.,1992), 384-385. 9. A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, U.S. Department of State (2003), available at https://2001-2009.state.gov/r/ pa/prs/ps/2003/20062.htm (last visited April 24, 2017). 10. E.g., John McHugo, Resolution 242: A Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict between Israel and the Palestinians, 51 INT’L & COMP. L. Q. 851-882 (2002), reprinted in THE PALESTINE QUESTION IN INTERNATIONAL LAW (Victor Kattan, ed., 2008), 357-387. 11. Israel-Jordan General Armistice Agreement, 1949, art. V, VI and Annex I. 12. S.C. Res. 62 (1948). 13. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004.

6 No. 59 JUSTICE conflict which is to be settled in three stages, with reciprocal and parallel steps to be taken by the parties in the field of security, politics, economics, humanitarian issues and institution-building matters. The passage from one phase to the next will depend on confirmation by the monitoring body – i.e., the Quartet – that the obligations under the preceding phase had been fulfilled. The Arab Peace Initiative (2002-2007) is based on an initiative of Prince Abdullah bin Abdul Aziz of Saudi Arabia. According to this proposal, Israel must withdraw from all the areas occupied in 1967 including East Jerusalem, the Golan Heights and Southern Lebanon; an independent Palestinian state with East Jerusalem as its capital should be established; a just solution to the Palestinian refugees should be reached by agreement on the basis of General Assembly Resolution 194(III); and peace between Israel and all the Arab States would be established. Having studied the main issues discussed in Security Council Resolution 2334, it is now time to examine its legal effect. As is well known, the Security Council has been authorized by the UN member states to adopt recommendations as well as binding decisions. Chapter VI of the UN Charter deals with the pacific settlement of international disputes, the continuance of which is likely to endanger international peace and security. Chapter VII of the Charter deals with more dangerous situations – threats to peace, breaches of the peace and acts of aggression. When acting under either of these two chapters, the Council can adopt recommendations and binding decisions. Actually, most resolutions under Chapter VI have been recommendations, while most of the binding decisions were adopted in the framework of Chapter VII. In the 1971 Namibia case,14 the International Court of Justice laid down four criteria that should be taken into consideration in finding the nature of a resolution: (i) the Charter provisions invoked in the resolution; (ii) the terms of the resolution; (iii) the discussions leading to it; and (iv) other relevant circumstances. However, state practice is to regard only resolutions under Chapter VII as binding. In the case of Resolution 2334, the language used indicates that it is a recommendation, namely the terms used: “affirming,” “reiterating,” ”underlining,” “stresses,” “urges” and “calls upon.” Only once does the word “decides” appear, in the provision according to which the Council “Decides to remain seized of the matter” (para. 13). Concluding Remarks Resolution 2334 has severely condemned Israel for several acts, in particular for the building of settlements beyond the “green line.” However, it has not marked them as criminal. It has outlined in strong terms the solution of the Israeli-Palestinian conflict, laying down two principles – the two-state solution and a complete Israeli withdrawal, subject to changes by agreement. A two-states solution is a very general concept that needs more details. What kind of states would they be? What would be the relations between them? Is there a possibility of a confederal relationship? Could there be possible cooperation, e.g. in matters of security and economics? The intention to look for means to make sure that this and other resolutions are implemented is enigmatic. Let us hope that the parties find a solution by sincere negotiations, irrespective of UN resolutions. It may be interesting to consider whether the parties may find a solution which does not include the principles laid down by Resolution 2334. n Ruth Lapidoth is professor emeritus of international law of the Hebrew University of Jerusalem. She was awarded the Israel Prize for excellence in legal research in 2006, and was named prominent woman in international law by the American Society of International Law in 2000. 14. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), I.C.J. 1971, at 6.

7 Spring-Summer 2017 ntisemitic incidents have risen continuously in some European states. While responses by intergovernmental agencies (IGOs) and some states have been designed to enhance protection of Jewish communities, they warrant recording and examination. These responses are being developed as states recognize that their Jewish communities face physical and political threats, and in some cases, the continued existence of several Jewish communities is becoming precarious. In a recent Justice article, I noted that judgments by the European Court of Human Rights (ECtHR) and European states’ case law have improved legal protections for Jews, and that European negotiations with U.S.-based social networks have been designed to reduce online antisemitism, where Internet content crosses the criminal threshold.1 European law against racism and xenophobia, notably the EU Framework Decision 2008/913/JHA, has established a minimum legal level for incitement based on racial or religious grounds, and denial or gross trivialization of the Holocaust. The EU 2012 Victims Directive has improved protections by requiring member states to place the rights of victims at the heart of the criminal justice response to crime.2 Likewise, the Additional Protocol to the Convention on Cybercrime and the ECtHR judgement in Delfi AS v Estonia offer further protections. The former requires signatory states to criminalize online racial and religious incitement and denial of genocide including the Holocaust, and the latter held an Internet news portal responsible for criminally offensive comments published on its platform. Other important judgments by the ECtHR, and in domestic courts, have also strengthened protection against antisemitic incitement and Holocaust denial, including online incitement.3 This article updates the measures noted in my previous article and analyzes recent changes, which taken together now provide greater protection for European Jews. This is not to predict that antisemitism will decline immediately or that anti-Jewish terrorism will cease. But, recognition of the increasing number of incidents and crimes against Jews and Jewish institutions, and terror groups’ plots to attack Jews, have spurred the European IGOs and European governments to translate their former declarations and well-intentioned statements into real action. Jihadi terrorism targeted against general populations, and Jewish communities in particular, by Islamic State (IS) and Al Qaeda affiliates in Belgium, France and Denmark, stimulated the European Union (EU) and its agencies, the Council of Europe and the Organization for Security and Cooperation in Europe (OSCE) to recommend Improving Legal and Other Protections for Europe’s Jews A MichaelWhine 1. Michael Whine, Combating Antisemitic Incitement through the European Courts and Online, 57 JUSTICE, International Association of Jewish Lawyers and Jurists,2015-2016, available at http://intjewishlawyers.org/justice/no57/ files/assets/basic-html/page-4.html (last visited April 19, 2017). 2. Council Framework Decision 2008/913/JHA of 28 Nov. 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, O.J., (L328/55), available at http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:L:2008:328:0055:0058:en:PDF (last visited April 19, 2017). Directive 2012/29/EU of the European Parliament and of the Council of 25 Oct, 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/ JHA, O.J., (L315/57), available at http://eur-lex.europa. eu/legal-content/EN/TXT/?uri=OJ:L:2012:315:TOC (last visited April 19, 2017). 3. Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, Council of Europe, Jan. 28, 2003, available at https://www. coe.int/en/web/conventions/full-list/-/conventions/ rms/090000168008160f (last visited April 19, 2017). For a useful summary of cases, including Delfi AS v Estonia, see Hate Speech, Press Unit, E.C.H.R., (March 2017) available at http://www.echr.coe.int/Documents/FS_ Hate_speech_ENG.pdf (last visited April 19, 2017).

8 No. 59 JUSTICE that member states improve their understanding of contemporary antisemitism and enhance the security of their Jewish communities.4 In recalling these new initiatives, I shall proceed chronologically before making an assessment of their potential effectiveness. Other proposals focus on the wider range of racism and hate crimes, but they clearly also benefit Jewish communities. Chronology of Initiatives In November 2014, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) convened a conference to review progress ten years after the Berlin High Level Conference on Antisemitism. Participants noted the continuing high levels of antisemitism and growing Jewish concerns.5 The conference recommendations were referred to the OSCE Ministerial Council meeting in Basel in December 2014, which proposed to offer member states a set of best practices to combat antisemitism.6 A series of consultative meetings was then held in Warsaw at ODIHR, and at the European Parliament in Brussels, which ultimately led to the creation of the "Words into Action" program. Preliminary consultations were held with European police representatives during 2016 to test the strategies and objectives of the program, which is being finalized as this article is being written. These will be presented in mid-2017 in the German parliament in Berlin, because the program is funded by the German government, as well as in Vienna, where the OSCE is headquartered, to diplomatic delegations representing their governments. It is expected that the two-year program will constitute an effective and focused response to antisemitism by proposing practical security, educational and other measures for governments and their law enforcement and security services to adopt. In March 2015, the newly formed European Parliament Working Group on Antisemitism held a meeting for Members of the European Parliament and European Commission (EC) staff, at which high priority was accorded to the enforcement of existing European mechanisms, and the strengthening of cultural and educational programs that are designed to reduce racism. A second meeting held a month later focussed on the rise in antisemitism within Muslim communities. At the meeting, prominent moderate Muslim campaigners against Islamist extremism noted that they were also engaged in combating antisemitism within their own communities.7 The adoption of the Working Definition of Antisemitism by the 31 member states of the International Holocaust Remembrance Alliance (IHRA) in Bucharest in March 2016 will help governments, their law enforcement agencies and civil society to understand contemporary antisemitism.8 The Working Definition was first formulated in 2005 at the request of the European Union Monitoring Centre (EUMC), when some of its monitoring agents indicated that they did not see antisemitism, because it was no longer expressed in medieval-era or Nazi-like tropes. The Working Definition is not a legal definition and it is not designed to replace domestic laws. Rather, it provides guidance on the contemporary nature of antisemitism for police officers and criminal justice agencies, as well as for the human rights community. However, the European Union Agency for Fundamental Rights (FRA), the EUMC successor agency, removed the Working Definition from their website in November 2013, despite protests from Jewish bodies, insisting that it provided an agreed upon and authoritative explanation for antisemitism in the current era. IHRA has since adopted it and now recommends its use alongside its definition of Holocaust denial. These two definitions now provide a set of tools by which to measure contemporary antisemitism and aid analysis and policy formulation. This becomes ever more important as the EC and other European IGOs seek to approximate laws and judicial responses to hate crime. Annual reports and surveys by FRA indicate that Jewish experiences of antisemitism are substantially under4. Reactions to the Paris attacks in the EU: fundamental rights considerations, FRA-European Union Agency for Fundamental Rights, Jan. 2015, available at http://fra. europa.eu/en/publication/2015/reactions-paris-attackseu-fundamental-rights-considerations (last visited April 19, 2017). 5. 10th Anniversary of the OSCE’s Berlin Conference on AntiSemitism, Final Report, OSCE, 12-13 Nov. 2014, available at http://www.osce.org/odihr/136561?download=true (last visited April 19, 2017). 6. Declaration on Enhancing Efforts to Combat Anti-Semitism, OSCE, Ministerial Council, 2014, MC.DOC/8/14, Dec. 5, 2014, available at http://www.osce.org/cio/130556?download=true. (last visited April 19, 2017). 7. Antisemitism in Europe, European Parliament Working Group on Antisemitism, 14 April 2015 Statement, available at http://www.antisem.eu/antisemitism-in-europe/(last visited April 19, 2017). 8. Working Definition of Antisemitism, International Holocaust Remembrance Alliance, June 26, 2016, available at https://www.holocaustremembrance.com/media-room/ stories/working-definition-antisemitism (last visited April 19, 2017).

9 Spring-Summer 2017 recorded by police and other agencies because they fail to recognize the evolving contemporary manifestations of antisemitism and therefore measure them adequately. The Survey on Perceptions of Antisemitism also indicated quite starkly that many European Jews have little confidence that criminal justice agencies are prepared to investigate antisemitic incidents and crimes, or prosecute the culprits (see below). Spurred by the IHRA decision to define antisemitism, the UK government adopted the Working Definition in December 2016.9 The Scottish government later endorsed the decision in March 2017.10 Shortly after, the UK Secretary of State for Communities and Local Government, Sajid Javid MP, “strongly encouraged” local authorities in England and Wales to adopt the Definition in his letter sent to them on January 30, 2017, and several have done so since.11 The British police had already adopted it in their Hate Crime Operational Guidance sent to all police forces in 2014.12 In March 2016, the German Parliament and Foreign Ministry hosted a joint conference with the Interparliamentary Coalition for Combating Antisemitism in Berlin, which was addressed by German Chancellor Angela Merkel, EU Vice President Frans Timmermans, UNESCO Director General Irina Bokova, UK Justice Secretary Michael Gove MP and other eminent public figures.13 A second inter-parliamentary initiative, by the Parliamentary Assembly of the Council of Europe a month later in April 2016, occurred when Resolution 2106 on "Renewed commitment in the fight against Antisemitism in Europe" was agreed upon.14 Prior to passing the resolution, a substantial report on antisemitism was published by the Council of Europe Committee on Equality and Non-Discrimination, which in turn was examined by the Council of Europe Committee on Political Affairs and Democracy.15 This protracted but necessarily thorough process noted inter alia that Jewish communities are threatened by violent attacks, that states have an obligation to build trust with Jewish communities, encourage them to report antisemitic attacks and hate crimes, provide police forces with appropriate training, ensure security by cooperating with Jewish communities and their representatives, and that parliamentarians should establish cross-party parliamentary groups to combat antisemitism in their legislatures, etc.16 In May 2016, the EC signed a Code of Conduct on illegal online hate speech with the major social networks. European states have become increasingly frustrated by the social networks’ policy of allowing almost complete freedom for antisemites and other extremists to publish what they want on the different platforms, often in contravention of European and national domestic laws. Despite successful prosecutions at the state and European level, it was felt necessary to persuade the main networks to agree upon a code whereby they would remove illegal content, and do so within a specified time limit.17 The Code owed its genesis to the Best Practices for Responding to Cyberhate declaration, to which the major social networks had signalled assent in 2014, and which 9. Press Release, Government leads the way in tackling antisemitism, UK Gov., Dec. 12, 2016, available at https:// www.gov.uk/government/news/government-leads-theway-in-tackling-anti-semitism (last visited April 19, 2017). 10. Response by Angela Constance MSP, Cabinet Secretary for Communities, Social Security and Equalities, Scottish Parliament, March 2, 2017, available at http://www. parliament.scot/parliamentarybusiness/28877.aspx?Sea rchType=Advance&ReferenceNumbers=S5W-07668 (last visited April 19, 2017). 11. Adoption of the IHRAworking definition of antisemitism, Letter to Local Authority Leaders from the Rt. Hon Sajid Javid MP, Secretary of State for Communities and Local Government, Jan. 30, 2017, available at http://www2. guildford.gov.uk/councilmeetings/mgConvert2PDF. aspx?ID=7358 (last visited May 8, 2017). 12. Hate Crime Operational Guidance, College of Policing, Coventry, at 36- 38, available at http://library.college. police.uk/docs/college-of-policing/Hate-CrimeOperational-Guidance.pdf (last visited April 19, 2017). 13. Landmark German Parliamentary Conference, March 1315, 2016, Inter-parliamentary Coalition for Combating Antisemitism, available at https://www.facebook.com/ Inter-parliamentary-Coalition-for-Combating-AntisemitismICCA-363913460650/(last visited May 8, 2017). 14. Eur. Parl. Ass., Renewed commitment in the fight against antisemitism in Europe, Resolution 2106, 20 April 2016, available at http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTMLen.asp?fileid=22716&lang=en (last visited April 19, 2017). 15. Eur. Parl. Ass., Renewed commitment in the fight against antisemitism in Europe, Report, Committee on Equality and Discrimination, Doc. 14008, Parliamentary Assembly Council of Europe, 31 March 2016, http://assembly.coe.int/nw/xml/ XRef/Xref-XML2HTML-en.asp?fileid=22576&lang=en (last visited July 12, 2017). 16. Eur. Parl. Ass., Renewed commitment in the fight against antisemitism in Europe, Doc.14023, Committee Opinion, Committee on Political Affairs and Democracy, April 19, 2016, available at http://assembly.coe.int/nw/xml/XRef/ Xref-DocDetails-en.asp?FileID=22599&lang=en. 17. European Commission, Code of Conduct on Countering Illegal Hate Speech Online, May 2016, available at http:// ec.europa.eu/justice/fundamental-rights/files/hate_speech_ code_of_conduct_en.pdf (last visited April 19, 2017).

10 No. 59 JUSTICE was noted in my previous article in Justice. The earlier document, however, had little public impact and its provisions were not binding on the social networks, although it had for the first time brought them together to discuss the mounting concerns of Jewish groups and others who joined in later meetings, including legal, academic, Muslim and womens’ groups.18 The EC Code of Conduct, however, has a built-in monitoring mechanism, whereby expert civil society organizations, including my own, Community Security Trust, at a meeting in February 2017, were tasked with recording the speed and effectiveness with which Facebook, Google and Twitter remove material containing criminal content.19 The processes are transparent and the conclusions are publicized. They include that, overall, only 28.2% of notifications by selected civil society groups of criminal content were removed by the three main social networks: 28.3% of cases by Facebook, 19.9 % by Twitter and 48.5% by Youtube, and that 40% of criminal content was removed in less than 24 hours after notification (as agreed), but that 43% took up to 48 hours to remove.20 A second monitoring round started as this article is being written, and therefore, it is too early to say if the social networks’ performance has improved at this stage in the monitoring process. In June 2016, efforts to combat antisemitism picked up further momentum when the European Union High Level Group on Combating Racism, Xenophobia and Other Forms of Intolerance was launched in Brussels. This new initiative was designed to exchange and disseminate best practices between national authorities. It was followed six months later by a second meeting that reviewed progress, and in turn identified the need to improve hate crime standards and practices for law enforcement agencies, to better implement existing legislation and provide better protection for victims of hate crime.21 The High Level Group has spawned other initiatives. One is an expert sub-group focused on methodologies for recording and collecting data on hate crime, organized by FRA in cooperation with the EC.22 Another initiative is the thematic discussion on hate crime training, which led to the publication in February 2017 of ten guiding principles that member states are encouraged to implement after recognition that more than half of EU member states provide some form of hate crime training for law enforcement and other criminal justice agencies, and that best practices could be identified.23 At the same time, it published a review of existing resources available to support such training.24 The European Union Agency for Law Enforcement Training (CEPOL), formerly the European Police Agency, has been given new strategic direction after its 2014 transfer to Budapest from Bramshill. The former UK Police Staff College was tasked with creating new training programs on hate crime. They include an online module and a "train the trainers" Hate Crime Certified Training 18. Best Practices for Responding to Cyberhate, AntiDefamation League, available at http://www.adl.org/ combat ing-hate/cyber-safety/best-pract ices/#. WKr9wekae74 (last visited April 20, 2017). 19. First meeting of countering hate speech online subgroup, FRA, Oct. 12, 2016, available at http://fra.europa.eu/en/news/2016 first-meeting-countering-hate-speech-online-subgroup (last visited April 20, 2017). 20. European Commission Code of Conduct on countering illegal hate speech online: First results on implementation, Dec. 2016, available at http://www.google.co.uk/url?sa=t&rct =j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwiLgc6 m2 4 j TAhWKL 8 AKHXHYDLMQF g g aMAA&u l=http%3A%2F%2Fec.europa eu%2Fnewsroom%2Fdocument. cfm%3Fdoc_id%3D40573&usg=AFQjCNEL6trtMzPJWNO h316C243-bLooTg&sig2=QoqquKfmhENMUR0Dh3V2tA& bvm=bv.151325232,d.bGg (last visited April 20, 2017). 21. A EU High Level Group on combating racism, xenophobia and other forms of intolerance, European Commission, Feb. 27, 2017, available at http://ec.europa.eu/newsroom/just/ item-detail.cfm?item_id=51025. (last visited April 20, 2017). European Commission, Minutes of the second meeting of the EU High Level Group on combating racism, xenophobia and other forms of intolerance, Dec. 7, 2016, available at http://ec.europa.eu/transparency/regexpert/index. cfm?do=groupDetail.groupDetailDoc&id=29734&no=1 (last visited April 20, 2017). 22. Subgroup on methodologies for recording and collecting data on hate crime, FRA, Oct. 2016, available at http:// fra.europa.eu/en/project/2017/subgroup-methodologiesrecording-and-collecting-data-hate-crime (last visited April 20, 2017). 23. European Commission, Hate Crime Training for Law Enforcement and Criminal Justice Authorities: 10 Key Guiding Principles, Feb. 2017, available at http://www. google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web& cd=1&ved=0ahUKEwjqyY-Myf7SAhVBKMAKHZe8ChE QFgghMAA&ur l=ht tp%3A%2F%2Fec . europa . eu%2Fnewsroom%2Fdocument.cfm%3Fdoc_id%3D4305 0&usg=AFQjCNEHJF1C00RfX7y-vTLa3mvH3zUFiQ&si g2=dJjOzST2kTdzHufr1ziBIA&bvm=bv.151325232,d.d24 (last visited April 20, 2017).

11 Spring-Summer 2017 Program that aims to establish higher common standards for European police officers and prosecutors who investigate hate crime, including antisemitism. The program was constructed during 2016 as an offering to police forces and prosecution agencies within the 20172019 Work Program.25 Although the European Union Agency for Fundamental Rights (FRA) has published its authoritative annual report on antisemitism since 2005, it was the FRA Survey on “Discrimination and hate crime against Jews in EU Member States: experiences and perception of antisemitism” that may finally have persuaded governments that their understanding of antisemitism, if they had any, was inaccurate or outdated. Large scale polling of Jews in eight EU member states demonstrated that Jews are unwilling to report antisemitic incidents because they believed that criminal justice agencies were unable or unwilling to investigate or prosecute the perpetrators, and that consequently, substantial numbers in the worst affected states were contemplating emigration.26 Dispiritingly, the latest annual report, published in November 2016, notes that twelve years “after the first report on the manifestation of antisemitism in the EU, there is little progress to report with regard to data collection on antisemitism in the EU.”27 However, the Survey is to be repeated and in March 2017, FRA hosted a stakeholders and academics meeting to set the research parameters for the second Survey to be conducted during 2018.28 At the wider European level, and following consultation with a small group of European experts, the Council of Europe Commissioner for Human Rights, Nils Muižnieks, in October 2016, issued a public statement warning against Holocaust denial, minimization and trivialization. In it, he noted that denial and associated activities were on the rise, and that despite strong international and European sanctions, states were failing to prosecute such crimes. He further noted that their own populations had played an active role in the persecution and mass murder of Jews and that some states were attempting to relativize the crimes committed by their own collaborationist wartime regimes. In doing so, he noted that remembrance lies at the heart of the Council of Europe, which existed to remember the crimes of the Nazi era. Member states ignored the evidence of rising antisemitism and Holocaust denial at their peril. European states should encourage Internet media providers and social media to take action to prevent and combat hate speech, accede to the 2003 Additional Protocol to the Convention on Cybercrime and recall that they are bound to sanction racist hatred and violence under the terms of Article 4 of the International Convention on the Elimination of all Forms of Discrimination, and are required by the 2008 EU Framework Decision to criminalize Holocaust denial.29 The final initiative worth recording is that of the European Commission against Racism and Intolerance (ECRI), a human rights agency of the Council of Europe. The Commission advises member states in matters relating to combating racism, xenophobia and antisemitism by 24. European Commission, Overview of resources and initiatives to support hate crime training programs in the EU Member States, Feb. 2017, available at http://www.google.co.uk/ur l?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUK Ewjm8OqwyP7SAhXKJMAKHZKyDsQQFggaMAA&url= http%3A%2F%2Fec.europa.eu%2Fnewsroom%2Fdocument. cfm%3Fdoc_id%3D43147&usg=AFQjCNG49CC6Ymk7RS 4 LpD6mV- g 6XMAHmQ&s i g 2 =uPGdP r C J IUE - rEj9MPzrPQ&bvm=bv.151325232,d.d24 (last visited April 20, 2017). 25. CEPOL – Single Programming Document: Years 2017-2019, at 2427, European Union Agency for Law Enforcement Training, Nov. 2015, available at https://www.cepol.europa. eu/sites/default/files/31-2015-GB.pdf (last visited April 20, 2017). It should also be noted that the author is part of a small team creating the training programs. 26 Discrimination and hate crime against Jews in EU Member States: experiences and perceptions of antisemitism, FRA, 2013, available at http://fra.europa.eu/en/ publication/2013/discrimination-and-hate-crime-againstjews-eu-member-states-experiences-and (last visited May 8, 2017). 27. Antisemitism – Overview of data available in the European Union 2005-2015, FRA-European Union Agency for Fundamental Rights, at 5, Nov. 2016, available at http:// fra.europa.eu/sites/default/files/fra_uploads/fra-2016antisemitism-update-2005-2015_en.pdf (last visited April 20, 2017). 28. Stakeholders discuss FRA’s second antisemitism survey, FRA, March 2017, available at http://fra.europa.eu/en/ event/2017/stakeholders-discuss-fras-second-antisemitismsurvey (last visited April 20, 2017). 29. Nils Muižnieks, Why remembering the Holocaust is a human rights imperative, Council of Europe, Oct. 18, 2016, available at http://www.coe.int/de/web/commissioner/ blog/-/asset_publisher/xZ32OPEoxOkq/content/whyremembering-the-holocaust-is-a-human-rights-imperative/ pop _ up ? _ 1 0 1 _ INSTANCE _ xZ3 2OPEo xOk q _ languageId=en_GB (last visited April 20, 2017).

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