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).
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