JUSTICE - No. 68

Summer 2022 No.68 ה א ר ג ו ן ה ב י נ ל א ו מ י ש ל ע ו ר כ י - ד י ן ו מ ש פ ט נ י ם י ה ו ד י ם ( ע ״ ר )

The International Association of Jewish Lawyers and Jurists Honorary President: Judge Hadassa Ben-Itto z”l (Israel) President Emeritus: Irit Kohn (Israel) Lifetime Member: Irwin Cotler, Prof. (Canada) Honorary Vice Presidents: Oreste Bisazza Terracini, Dr. (Italy), Joseph Roubache z”l (France) Executive Committee President Meir Linzen (Israel) Deputy President Daniel Reisner (Israel) Vice President and Coordinator for International Organizations Pnina Sharvit Baruch (Israel) Vice President and Secretary General Rachel Levitan (Israel) Vice President and Treasurer Avraham (Avi) Doron (Israel) Vice Presidents Marcos Arnoldo Grabivker (Argentina) Stephen R. Greenwald (USA) Maurizio Ruben (Italy) Chief Executive Officer Ronit Gidron-Zemach (Israel) Head of the Legal Center for Combating Antisemitism Avraham Yishai (Israel) International Organizations Advisor Ido Rosenzweig (Israel) Representatives to the U.N. in Geneva (UNOG) Pnina Sharvit Baruch (Israel) Ido Rosenzweig (Israel) Ronit Gidron-Zemach (Israel) Representatives to U.N. Headquarters in New York Pnina Sharvit Baruch (Israel) Ido Rosenzweig (Israel) Regina Tapoohi (USA) Richard Horowitz (USA) Mark Speiser (USA) Representative to the European Parliament Pascal Markowicz (France) Media Director Avraham Tzur (Israel) Meir Linzen (Israel) Daniel Reisner (Israel) Avraham (Avi) Doron (Israel) Marcos Arnoldo Grabivker (Argentina) Stephen R. Greenwald (USA) Rachel Levitan (Israel) Maurizio Ruben (Italy) Pnina Sharvit Baruch (Israel) Julia Andras (Austria) Mirella Bamberger (Israel) David Benjamin (Israel) Daniel Benko (Croatia) Sarah B. Biser (USA) Jimena Bronfman (Chile) Maria Canals De-Cediel, Dr. (Switzerland) Jacques Cohen {France) Jonathan David (Israel) Noemi Gal-Or, Dr. (Canada) Nathan Gelbart (Germany) Ronit Gidron-Zemach (Israel) Aleksandra Gliszczynska-Grabias (Poland) Richard Horowitz (USA) Edna Kaplan-Hagler, Judge (Ret.) Dr. (Israel) Baruch Katzman (Israel) Michael Kempinski (Israel) Irit Kohn (Israel) Alyza D. Lewin (USA) Jonathan Lux (UK) Jeremy D. Margolis (USA) Pascal Markowicz (France) Calev Myers (Israel) Olaf Ossmann (Switzerland) David Pardes (Belgium) Ruben Pescara (Italy) Dan Roskis (France) Stephen C. Rothman, Judge (Australia) Alan Sacks (Israel) Carlos Schlesinger (Brazil) Amos Shapira, Prof. (Israel) Isaac (Tzachi) Shragay (Israel) Ethia Simha (Israel) Dalia Tal (Israel) Regina Tapoohi (USA) Daniel Taub (Israel) Michael H. Traison (USA) Axel Freiherr von dem Bussche, Dr. (Germany) Suzanne Wolfe-Martin (Malta) Avraham Yishai (Israel) Board of Governors All members of the Executive Committee are members of the Board of Governors.

Summer 2022 1 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 office@ijl.org www.ijl.org © Copyright 2022 by IJL 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 IJL Advisory Board at office@ijl.org. Back issues of JUSTICE are available at www.ijl.org. POSTMASTER: Send address corrections to Justice, 10 Daniel Frisch St., Tel Aviv 6473111, Israel. JUSTICE No. 68, Summer 2022 Editor Mala Tabory, Dr. Special Advisor Irit Kohn, Adv. Advisory Editor Alan D. Stephens Academic Advisory Board Michael Bazyler, Prof. Noemi Gal-Or, Dr. Oren Gross, Prof. Moshe Hirsch, Prof. Deborah Housen-Couriel, Adv. Robert Katz, Prof. Michla Pomerance, Prof. Arie Reich, Prof. Nicholas Rostow, Prof. Robbie Sabel, Prof. Amos Shapira, Prof. Malcolm N. Shaw, Prof. Joseph H. Weiler, Prof. Legal Researchers Naomi Burke Shani Birenbaum Copy Editor Gavriella Lazarus Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747 Cover Photo Credits André Derain: La Chapelle sous Crécy, Avers André Derain: Paysage à Cassis, Avers André Derain: Pinède à Cassis, Avers Credit: © ADAGP, Paris, 2022 Marc Chagall: Le Pere, 1911, oil on linen backed canvas Credit: © ADAGP, Paris, 2022 Camille Pissarro: La cueillette des pois Gimpel gallery Credit: René GIMPEL family archive Contents President’s Message Meir Linzen 2 The Danger of Holocaust Denial and Distortion Ellen Germain 3 The Echo of Wannsee – Eighty Years Later Matthias Küntzel 6 Articles On Freedom of Religion and Freedom from Religion in Modern Democracies: Crucifixes and Mezuzas in Classrooms Joseph H.H. Weiler 8 Is Europe Finally Coming to Grips with Antisemitism? Michael Whine 14 The New Antisemitism Bills in the United States: A Practical and Legal Analysis Mark Goldfeder 20 The Challenges of Writing History in Contemporary Poland Jan Grabowski 27 Restitution of Nazi Looted Art in France: A Historic Law Adopted Mélina Wolman 33 The Facilitation of Naturalization for Descendants of Nazi Persecutees Steffen Kaemper and Mirco Stellbrink 39 Book Review The Conflict over the Conflict: The Israel/Palestine Campus Debate By Kenneth S. Stern Reviewed by Paul Finkelman 41

2 No. 68 JUSTICE n January 20, 2022, the UN General Assembly condemned any denial of the occurrence of the Holocaust. This date marked the 80th anniversary of the Nazi Wannsee Conference, which laid the groundwork for the implementation of the “Final Solution.” This resolution, initiated by Israel, was only the second General Assembly resolution to be successfully introduced by Israel in 72 years of UN membership. The fact that such a resolution was necessary is indicative of the continuing challenge we face regarding the spectre of antisemitism in the world and makes it evident that IJL's work in fighting antisemitism and anti-Zionism when it masks antisemitism continues to be crucial. I will not elaborate here on the legal work the IJL has undertaken in recent years regarding the protection of kosher shechita in Europe, defending the libel cases that have been brought against scholars calling out Nazi supporters by name, fighting the proliferation of antisemitic material in the social media, and initiating programs that aid individuals who are subject to antisemitic incidents. Our legal agenda continues to be implemented unabated, and we seek to expand our activities to meet the increasing challenges we face around the world. The cover of this issue illustrates how the implications of the Holocaust continue to haunt and challenge us to this day. Stolen art is just the tip of the iceberg of the material losses of the millions who perished, and the ongoing struggle of many of those who survived. We trust that you will find interest in the article dealing with this subject, as well as the other articles that showcase and highlight legal issues relevant to the Jewish people and Israel. We continue to dedicate our work to the memory of the victims of the past, and to seek to eradicate the plague of antisemitism that seems to spawn new variants, much like the terrible pandemic that we have endured these past few years. Contemporary developments, including repercussions of COVID and increased manifestations of institutional antisemitism in the context of the Russian-Ukrainian conflict, inevitably trickle down to threaten the safety and well-being of the Jewish population. As a legal organization, IJL focuses on issues and brings cases to protect Jewish rights and confront Jewish problems by legal means. Our modus operandi is to eschew sensitive issues publicly, but to achieve significant legal results under the radar. Our philosophy is to win wars, not talk about them. As always, we are open to your comments and suggestions, as well as your continued involvement in our projects and activities. We invite you to participate in our next conference that will focus on IJL responses to contemporary legal issues. September 2022 President’s Message O Meir Linzen Photo: Ami Erlich

3 Summer 2022 was asked to talk about a topic of my own choosing, but one that took into consideration the ethical, religious, or moral dimensions of the aftermath of the Holocaust. After much thought, I decided to focus on Holocaust denial and distortion. The passage of the UN General Assembly resolution on combating Holocaust denial and distortion on January 20, 2022, is evidence of the importance of this issue. It seems incredible that more than 75 years after the end of World War II and the Holocaust, people still deny and distort the facts of the genocide, one of the best-documented mass atrocities in human history. We have mountains of evidence, extensive survivor testimonies, and eyewitness accounts from those who liberated the concentration and death camps. Yet Holocaust denial and distortion persist. Indeed, one could say they have gone viral. Modern-day Holocaust distortion and denial have been further exacerbated, and amplified, through the use of digital tools and the ease with which misinformation and disinformation can be spread on social media platforms. This is shocking. The Holocaust is fact; the evidence is overwhelming. So, what is going on, why does it matter, and what can we do about it? First, some definitions. According to the International Holocaust Remembrance Alliance, “Holocaust denial seeks to erase the history of the Holocaust. In doing so, it seeks to legitimize Nazism and antisemitism.” “Holocaust distortion acknowledges aspects of the Holocaust as factual. It nevertheless excuses, minimizes, or misrepresents the Holocaust in a variety of ways and through various media.” The United States, alongside the Netherlands, is a proud member of the International Holocaust Remembrance Alliance, or IHRA; and I want to acknowledge the excellent work that IHRA has done in identifying and countering Holocaust denial and distortion. Indeed, IHRA’s working definition of antisemitism – which the United States embraces and encourages other countries to embrace – identifies Holocaust denial and distortion as forms of antisemitism, and their increase is particularly relevant in the context of rapidly rising antisemitism around the world. I have drawn extensively on IHRA’s work for this talk, and I want to especially thank Dr. Robert Williams and other members of the U.S. delegation to IHRA for their invaluable help and suggestions. In Malmo, Sweden, I attended the International Forum on Holocaust Remembrance and Combating Antisemitism held in October 2021. Holocaust survivor Tobias Rawet talked there about how hearing a Holocaust denier made him realize he had to bear witness to what had happened. He said that when he was 56, he heard a Holocaust denier on television, and it felt as if that person was saying that Mr. Rawet’s life was a lie – as if his cousins and other family members had never lived and had never been murdered during the Holocaust. He therefore decided that he had to speak up and share his experience of the Holocaust. Born in Poland, Mr. Rawet was taken to the Łodz ghetto with his parents when he was three years old and then deported to the Ravensbruck concentration camp. He and his parents survived, but much of his extended family was murdered. Mr. Rawet’s story of why he decided to bear public witness to the Holocaust was incredibly moving, and it showed us in a few words how Holocaust denial tries to erase the suffering of Holocaust survivors and tries to wipe out the historical reality of the murder of six million Jews and millions of non-Jews by the Nazis and their collaborators. Professor Deborah Lipstadt, an eminent historian of the Holocaust, said it clearly: “The Holocaust has the dubious distinction of being the best documented genocide in the world. For deniers to be right, all survivors would have to be wrong.” Holocaust distortion is a more recent threat, especially in our social media age. One example of Holocaust distortion is the rehabilitation of people who played roles in committing the crimes of the Holocaust. Some, like Jonas Noreika in Lithuania and Roman Shukhevych in Ukraine, are considered national heroes because they fought against Soviet tyranny, but they also collaborated with the Nazis. Some countries have named sport stadiums after Nazi collaborators. All countries, the United States The Danger of Holocaust Denial and Distortion* I EllenGermain * Remarks for International Holocaust Remembrance Day, The Hague, January 31, 2022. The author thanks Rabbi Shmuel Katzman and The Centre for Yiddishkeit (CHAJ), the Municipality of The Hague, and the Israeli Embassy for organizing this commemoration.

4 No. 68 JUSTICE included, need to face up to the reality of their history, both the bad as well as the good. Indeed, my own country, the United States, took steps that made it more difficult for Jews fleeing the Holocaust to enter the country. Another example of Holocaust distortion is the use of Holocaust imagery or language for political or ideological purposes. This can trivialize and demean the Holocaust. A recent example is the yellow stars worn by anti-COVID vaccination protestors in the United States and Europe. The Nazis forced Jews to wear yellow stars of David on their clothing to easily identify, harass, and isolate Jews; force them into ghettos; round them up; deport them; and kill them. This is not comparable to the inconvenience of not being allowed to enter a restaurant because you choose not to be vaccinated. Some politicians in both the United States and in the Netherlands have compared COVID-19 restrictions to the persecutions suffered by the Jews in the Holocaust. These false comparisons distort the Holocaust’s significance as a uniquely horrific effort to systematically annihilate an entire people. They harm our democratic institutions by comparing measures taken to protect public health and save lives to measures taken by the Nazis to cold-bloodedly target and murder six million Jews, the Sinti and Roma community, the LGBTQI+ community, and others. Holocaust distortion can also involve minimizing the impact of the Holocaust or claiming that fewer people were killed than has been established by overwhelming evidence. Holocaust distortion is a form of antisemitism and it feeds more antisemitism. And of course, the Holocaust is the most horrifying example of the destruction and death to which unchecked hatred can lead. Countering Holocaust denial and distortion matters because all efforts to downplay or blur the facts of what happened and who was complicit are insults to the victims and survivors of the Holocaust. It matters because it further perpetuates antisemitism. It matters because it can also fan the flames of violent extremism. One example is the gunman who killed eleven people in a synagogue in the United States in 2018. He frequented a social media platform that trafficked in Holocaust denial and other forms of antisemitism. Countering Holocaust denial and distortion matters because not doing so threatens our ability to understand and learn from the history of the Holocaust. We often say that we must teach about the Holocaust and learn from it so that no such depravity is ever permitted to happen again. “Never again” is one of the most important moral lessons the world can draw from the Holocaust. But the world has been far from perfect in applying this lesson – mass atrocities such as the genocides in Cambodia, Rwanda, Bosnia and Herzegovina, Darfur, and Xinjiang show that very clearly. But we are trying to do better, including by bringing a measure of justice through efforts to support war crimes units, and international investigative mechanisms and courts like those in The Hague. Our efforts to prevent and deter atrocities also include peacekeeping operations, and education. The United States, for example, supports programs to train teachers to teach about the Holocaust and supports exchange programs for teachers, people involved in civil society and law enforcement, as well as others to learn about confronting antisemitism and Holocaust distortion and denial. Education means not only teaching the facts of the Holocaust and other genocides and mass killings, but also teaching tolerance and inclusivity, so that – we hope – in the future people will be less inclined to discriminate against and harm or even kill those who are different from them. That kind of education has been shown to have positive associations. The Anti-Defamation League, the University of Southern California’s Shoah Foundation, and Yad Vashem carried out a survey in 2020 of American university students. The survey looked at the relationship between Holocaust education and students’ behavior and attitudes. Students who had received Holocaust education in their high school classes not only did better in their historical knowledge of the Holocaust, but also had “more pluralistic attitudes” and were “more open to differing viewpoints.” They were also more willing to challenge intolerant behavior in other people. Correlation is not causation, of course, but those survey results at least offer some hope that teaching about the Holocaust can have positive effects on people’s behavior in the real world. One of the real challenges in countering Holocaust denial and distortion is that such efforts inevitably get caught up in debates about freedom of expression. Many European countries have laws criminalizing Holocaust denial and promotion of Nazi ideology. The United States, however, does not criminalize hate speech of any kind, including Holocaust denial and promotion of Nazi ideology, as odious as it may be. In fact, in the United States, the First Amendment to the Constitution broadly protects speech, including offensive speech, from government regulation. In a seminal court case that tested the limits of free speech, in 1977 a group of neo-Nazis sought a permit to

5 Summer 2022 demonstrate, while carrying Nazi banners, in Skokie, a Chicago suburb nearly half of whose population was Jewish and which was home to hundreds of Holocaust survivors. The attorney who represented the neo-Nazis (himself a Jew) saw the issue as clear-cut because, “if the government can prevent lawful speech because it is offensive and hateful, then it can prevent any speech that it dislikes.” In the end, although the courts ultimately ruled that the neo-Nazis had a right to peaceful assembly, the demonstration took place in downtown Chicago rather than in the town of Skokie. While the case was very controversial, it illustrates that in the United States, even abhorrent and hateful speech is protected. Indeed, in the United States’ tradition, the answer to bad speech – including racist, antisemitic, Holocaust denying and distorting speech – is not government intervention or censorship, but more speech; speech, however, that promotes tolerance and counters lies with facts. Internet and social media platforms are now the subject of debate with respect to regulation of content. As a general matter, U.S. law does not require digital platforms or services to regulate user content online that is protected under the First Amendment. In the United States, that means social media platforms are not liable for content posted by third parties. We might ask: should social media companies be responsible for the information people post on their sites? Should they be held responsible for the results of algorithms inciting hatred and violence? Should companies be regulated to limit their ability to do those things? Governments are trying to figure out how to deal with these thorny questions while respecting and protecting freedom of expression. In the meantime, some platforms have taken some actions against online Holocaust denial and distortion. In late 2020, Facebook finally agreed to take down posts which deny or distort the Holocaust and to instead direct users searching for information to authoritative sources. I tested that myself by searching for “Holocaust,” and “Holocaust hoax” on Facebook and each time I was directed to reliable sources. Twitter followed Facebook’s lead and banned Holocaust denial posts. Having said this, everyone acknowledges that it is extremely difficult to find and remove all instances of Holocaust distortion and denial. I also want to acknowledge that online platforms can be powerful tools for disseminating truth and facts. They pose a challenge to authoritarian regimes and can help amplify voices of peaceful dissent. Speaking about the reactions of such regimes with respect to their messages, Russia recently fined Google $100 million for “systematic failure to remove banned content,” which includes posts related to the peaceful political opposition. The People’s Republic of China has sophisticated controls to block websites and censor content, including about the ongoing genocide in Xinjiang. And so, while the Internet and social media help spread Holocaust denial and distortion, they also make it easier to publicly disseminate accessible, accurate information about the Holocaust and to publicize important information about serious violations of human rights. In conclusion, Holocaust denial and distortion not only deny and distort historical fact, they are also antithetical to our democratic values. Accurate historical education and truthful commemoration of the Holocaust teach new generations about our past, and the horrors to which unbridled hate can lead. What can we do about this? As we commemorate International Holocaust Remembrance Day, we must do all we can, every day, to counter Holocaust denial and distortion, and other modern manifestations of antisemitism and other forms of hate. We must stand up for the truth and promote the accurate and truthful history of the horrors of the Holocaust. We must highlight the painful lessons of the Holocaust, including the importance of respecting the human rights and dignity of people who are different from each other. That is the only way we will ever fulfill our solemn pledge of “never again.” n Ellen Germain assumed her duties as United States Special Envoy for Holocaust Issues on August 23, 2021. She is a career member of the Senior Foreign Service. Ellen Germain served as Deputy Chief of Mission at the U.S. Embassy in Sarajevo, Bosnia and Herzegovina from 2018-2021. Her previous positions include director of the Office of Arabian Peninsula Affairs in the Bureau of Near Eastern Affairs (2015-2017), head of the U.S. Consulate General in Krakow, Poland (2012-2015), and postings as deputy political counselor at the U.S. Embassy in Baghdad (2007-2008) and at the U.S. Mission to the United Nations in New York (20082012) where she was responsible for issues relating to the Middle East, East Asia, and non-proliferation. In Washington, D.C. Ellen Germain has also held positions in the offices of Russian Affairs, Israel-Palestinian Affairs, and Maghreb Affairs. Her other overseas tours were Tel Aviv, London, and Moscow. She joined the Foreign Service in 1995.

6 No. 68 JUSTICE ighty years ago, at a Conference in the Villa am Grossen Wannsee, the Nazi elite passed a death sentence on millions of European Jews. There, they set in motion the process that would lead to the most brutal mass murder in the history of humanity – known as “the Final Solution.” This Conference did not take place in some backwater, but rather in one of the world’s most culturally, technologically, and scientifically advanced societies. It is valuable to use our memory of this awful event to sharpen our attention with regard to contemporary threats to Jews. It is widely known that the protocol of the Wannsee Conference talks about eleven million Jews in Europe who are to be killed. Less well known are the plans for the murder of Jews outside Europe. A few weeks before the Wannsee Conference, Hitler, in a face-to-face meeting, had promised Amin el-Husseini, the Mufti of Jerusalem, that he also wished to take the earliest opportunity to kill the 700,000 Jews living in North Africa and the Middle East. A special concern during this meeting was the destruction of Zionism and the annihilation of the Jews in Palestine. While the Allies defeated the Nazis, the idea of thwarting a Jewish state at any cost found a new home in Egypt where, after 1945, the Muslim Brotherhood built the world’s largest antisemitic movement. The Brotherhood defended the alliance between el-Husseini and Hitler, declaring in 1946 that, “This hero [el-Husseini] fought Zionism with the help of Hitler and Germany. Germany and Hitler are gone, but Amin el-Husseini will continue the struggle.” The Mufti did indeed actively continue the Nazi struggle, playing a crucial role in inspiring the effort by several Arab states to snuff out the nascent Jewish state of Israel in 1948. Amin el-Husseini embodies the link between the Nazis’ big war against the Jews and the subsequent small war of the Arabs against Israel – a link that I have described in my latest book.”1 As we know, the Arabs failed to defeat Israel. However, the idea of abolishing the Jewish state lives on. The Muslim Brotherhood passed on the baton to an Iranian cleric, Ruhollah Musavi, who would later become famous under the name Ruhollah Khomeini (who died in 1989). Ever since the Iranian revolution led by Khomeini in 1979, Tehran has pursued the aim of destroying Zionism by force. Focusing on Israel, the Iranian regime today pursues the project begun by Hitler and the Mufti. Iranian missiles capable of striking Israel bear the slogan to the effect that “Israel must be wiped from the face of the earth.” The Revolutionary Guards boast that they “will raze the Zionist regime in less than eight minutes.” An Iranian TV Documentary, entitled “7 Minutes to Tel Aviv,” shows footage of simulated attacks against key targets in Israel, including the Dimona nuclear reactor, the Knesset, and Tel Aviv cultural and shopping centers and business hubs. Iran’s Supreme Leader, Ali Khamenei, has stated that by 2040 at the latest, Israel will no longer exist. An oversized countdown clock in Tehran (installed on June 23, 2017) shows the number of days to go before the date of Israel’s appointed and supposed end. Khamenei has even reused a term from the Wannsee Conference Protocol: the “Final Solution.” Everyone understands the underlying message of this term. Khamenei, however, is the first world leader to use it with respect to the Jewish population of Israel. On Khameinei’s homepage, he endorsed a poster proclaiming in several languages “Palestine will be free. The final solution: Resistance until referendum.” For Hitler the “Final Solution to the Jewish question” was the annihilation of the Jews. For Khamenei, the “Final Solution” of the Israel question is the annihilation of Israel. Still, it seems that the majority of the Iranian population reject the regime’s hatred of Israel that is inextricably linked to an antisemitic world view, including Holocaust denial and conspiracy fantasies. The Echo of Wannsee – Eighty Years Later* E Matthias Küntzel * This (edited) paper was presented on January 20, 2022 at the online event “80 Years Since Wannsee: An Alarm Call to Warn of Other Genocides?” organized by the Henry Jackson Society, The Simon Wiesenthal Centre Europe and the Memorial and Educational Site House of the Wannsee Conference. 1. NAZIS UND DER NAHE OSTEN: WIE DER ISLAMISCHE ANTISEMITISMUS ENTSTAND (Hentrich & Hentrich, Leipzig, 2019).

7 Summer 2022 The Iranian regime uses the terms “Zionist” and “International Zionism” in precisely the same way as Hitler used the terms “Jude” and “Weltjudentum” – as the embodiment of evil. From this follows a dystopian moment in both cases: Just as Hitler ’s “German peace” required the extermination of the Jews, so the Iranian leadership’s “Islamic peace” depends on the elimination of Israel. At this point a remark often attributed to Elie Wiesel comes to mind: "When someone says they want to kill you, believe them." The international community, however, seems not to want to acknowledge this murderous ambition. It even shrinks back from calling the Iranian regime’s antisemitism by the name which defined Nazi Germany’s policies with respect to the genocide of the Jews. Words, however, matter. They shape our way of thinking and determine our actions. The term “antisemitic” possesses a historical dimension. To speak of antisemitism today when referring to current politics and affairs is to recall the Wannsee Conference and thus the dangers associated with this monstrous irrationality. It calls on us to mobilize not only our historical knowledge, but also our ongoing historical responsibility. Eighty years have passed since the Wannsee Conference. Its echo, however, still reverberates, along with the willingness to propagate and prepare for a new genocide. It is our urgent task today to prevent this from occurring. n Matthias Küntzel, Member, German Council on Foreign Relations (DGAP) and Advisory Board, United Against Nuclear Iran (UANI), is a political scientist and historian.

8 No. 68 JUSTICE n Italy, and in some other European democracies, there is a legal obligation to display a crucifix in public primary school classrooms. In 2009/2010, a case was brought before the European Court of Human Rights in Strasbourg by Ms. Soile Lautsi, who claimed that requiring her child to sit in a classroom with a crucifix violated her rights under the European Convention of Human Rights (ECHR). She brought her case before a Chamber of the ECHR, which ruled that the Italian requirement to display the crucifix violated the Convention. The decision created a huge controversy. An appeal was lodged with the Grand Chamber of the ECHR, the highest jurisdiction on human rights in Europe, which is composed of seventeen judges. Eight states joined Italy in lodging the appeal. I was invited to plead on behalf of the intervening states and accepted such on a pro bono basis. The case was heard on June 30, 2010.1 The Grand Chamber issued its decision in March 2011. By a majority of 15:2, it reversed the decision of the Chamber and held that the Italian requirement of displaying the crucifix was not a violation of the Convention, and that Ms. Lautsi’s fundamental human rights were not compromised by such. I was roundly criticized from liberal and some Jewish circles (not least from within the Jewish community of Italy) for taking the case pro bono (“he actually believes in his pleadings”), and even more for winning it. “Son of a Rabbi defending the Cross? Que Orrore!” (What horror!). I received numerous e-mails of this nature, to all of which I answered in the same manner: “In Israel a mezuza is affixed in all public-school classrooms in the Jewish sector. Would you insist on removing them?” I received few replies in return. How, then, must we think about this representative dilemma where identity-based impulses seem to clash with individual liberties? Following my pleadings, I offer a somewhat novel, surely contestable, way of framing the issues as they manifest themselves today. While my context is Europe, I maintain that the principles can and should be generalized. Framing the Issue We habitually talk of the positive and negative aspects of religious freedom: freedom of religion and freedom from religion. European states are constitutionally, and under the Convention system, obliged to guarantee their citizens and residents both aspects. I suggest that the European constitutional landscape posits two distinct kinds of “freedom of religion.” In addition to the classical individual freedom of and from religion, in its very structure, Europe represents a second collective, identitarian, freedom. This stems from selfdetermination, namely the right of nations/states to include in their self-definition, in their self-understanding and in their national and state symbology, a robust entanglement of religion and religious symbols. (There is no small measure of hypocrisy in the oft-heard insistence that Turkey must be laïque. One might ask: why Turkey yes and Denmark no?) France and the United Kingdom are good examples because both are founding members of the European Convention of Human Rights and with the usual imperfections, both are considered robust liberal democracies in good standing. France, in its Constitution, defines itself as laïque— usually understood as a political doctrine which does not allow the state any endorsement or support of religion and would consider the display of religious symbols by the state or the funding of religious schools as anathema. At an individual level, laïcité does not necessarily mean individual atheism or agnosticism. Many persons are religious in a profound and capacious way, and nevertheless uphold laïcité. They do so because they believe that independent of their personal conviction, it is wrong for the state to become entangled with religion. On Freedom of Religion and Freedom from Religion in Modern Democracies: Crucifixes and Mezuzas in Classrooms I JosephH. H. Weiler 1. ECHR Grand Chamber Case of Lautsi and Others v Italy (Application no. 30814/06). Hearing on June 30, 2010. Decision on March 18, 2011.

9 Summer 2022 This precision highlights the fact that laïcité is a political doctrine that outlines the best way to regulate the relationship between state and religion. The origins and justification of laïcité can be historical (the specificities, for example, of the Ancien Régime and the subsequent French Revolution) but also theoretical — rooted in both principled and pragmatic consideration of how the state can ensure peaceful coexistence among religious factions. Laïcité is to be contrasted with an opposing doctrine which has no accepted name but is also very common in Europe. “Theocracy,” even by the most ardent supporters of French style laïcité, would not be an appropriate label to describe a state like the modern UK or Denmark. For convenience, let us refer to “non-laïque” states. Like France, non-laïque states are committed to assuring freedom of and freedom from religion, but see no wrong in a religious, or religiously rooted, self-understanding of nation and state, accompanied by a public space replete with state-endorsed religious symbols. In England, part of the UK, the monarch is both the head of state but also the titular head of the Anglican faith and its institutional manifestation in the Church of England: the “Established Church” of the nation and state. Many state functions have a religious character: clergy sit (or sat) ex-officio as part of the legislature, the flag carries the cross of St. George and the national anthem is a prayer to God. In a mirror image of what I wrote above, there are many persons in England who are atheists and yet see no harm in the “non-laïque” state, able to draw on considerations of principle and pragmatism. Has the UK been more riddled with religious strife than, say, France? It would seem that at least until recently, Catholics, Jews and Muslims in the UK were at peace with, for example, a photo of the monarch on the wall of a classroom. Another, perhaps more significant, example can be found in the English (or British) public which is largely at peace with a Catholic or Jewish, Muslim or Church of England classroom funded from the general tax receipts of a mostly secular population, whereas their French counterparts would be uncomfortable with this. I do not claim normative parity for these two positions — a proposition that makes many people anxious. However, I will make two claims in relation to them. First, both the France and the UK (English) models are considered constitutionally legitimate in Europe. The UK (as well as Denmark, Malta, Greece, and many others with different recipes from the “non-laïque” cookbook) is not, simply by being what it is, in violation of the Convention or in violation of the common constitutional traditions of Europe. Second, the claim that laïcité embodies a principle of neutrality requires a very narrow (and self-serving) definition of what we mean by neutrality. A laïque state, à la France, is certainly neutral vis-à-vis different religious factions in the French public space, but it is not neutral in a broader political sense. What may hang on a French classroom wall will, ultimately, depend on the political color of French democracy at any given time: A bust of Voltaire? S’il vous plait. Marx? Pourquoi pas? The noble battle cry of the French Revolution – Liberté, Égalité, Fraternité – is to be found above countless school portals across the country. What may not be displayed, independently of the contemporary color of voter preference, is a cross, or a mezuza, or a crescent. There is no contestation in Europe about the principle of freedom of and from religion (though there are many debates regarding its application). However, there is a deep contestation about the most suitable way to regulate the symbolic and iconographic entanglement of church and state. The laïque position is surely not “neutral” about that contestation: it is as much a polar position as is the “non-laïque” position. It does not simply choose a side. It is a side. It is disingenuous to claim neutrality for a term whose essence is defined by one pole in a bipolar dispute. This argument brings about a third distinction that is rarely articulated, but was visible in Lautsi, since it undergirded both the impassioned plea by the lawyers of Ms. Lautsi and the decision of the chamber currently on appeal before the Grand Chamber. There are those who believe that laïcité is a primordial condition — sinequa-non for a good liberal democracy — and that the non-laïque position is sub-optimal at best and aberrational at worst. It is consequently morally imperative for good democrats and liberal pluralists to clip the wings of religious manifestations of the non-laïque state as far as possible — a principled and consistent position. There are others (myself included) who maintain that the European version of the non-laïque state is today particularly important in the lesson of tolerance it imposes on such states and their citizens for those who do not share the “official” religion. For the rest of the world, it sets an example of offering a principled mediation between a collective self-understanding rooted in a religious sensibility, or religious history, or religiously-inspired values and the imperative exigencies of liberal democracy. While the Queen is the titular head of the Church of England, it is inspiring and very positive that the many Catholics, Muslims and Jews under her sovereignty, not to mention the majority of atheists and agnostics, can genuinely consider her as “their Queen,” and be equal

10 No. 68 JUSTICE citizens of England and the UK. There is intrinsic value of incalculable worth in the European pluralism that validates both France and UK as acceptable models in which the individual right to and from religion may take place. This, then, is how I would frame the issues against which the spate of cases and debates currently at issue/ deliberated in the European public space must take place. All too often, these debates are reduced to the difficult line drawing exercises between freedom of and from religion and their counterbalancing by other social mores. We all accept that when it comes to the right of freedom of religion, this, like all other fundamental rights, is not absolute. We would not allow, in the name of religious freedom, human sacrifice, or even the kind of conduct that incites to hatred or threatens public order and peace. Individual liberty is “balanced” against a collective good variously defined. But surely freedom from religion is not absolute. The principle of collective good against which it should be balanced would, in my view, be the aforementioned collective freedom of a self-understanding, self-definition and determination of the collective self as having some measure of religious reference. Surely, freedom of religion requires that no school child be obligated to chant God’s name no matter the context, even, for example, in the national anthem, “God Save the Queen.” But does freedom from religion entitle a demand that others not chant this and to indeed refer to a different national anthem? How does one negotiate the individual and the collective rights at issue here? Meaningful, ethical, deontological, identitarian and pragmatic results may benefit from this reframing. My suggested reframing, as it was originally presented to the ECHR in the Lautsi case, is reprinted following this article. n Joseph H. H. Weiler, BA (Sussex); LLB and LLM (Cambridge), Diploma of International Law (The Hague Academy of International Law), PhD in European Law (the European University Institute (EUI), Florence, Italy). He is currently serving as European Union Jean Monnet Chair at New York University Law School and Senior Fellow of the Minda de Gunzburg Center for European Studies, Harvard University.

11 Summer 2022 May it please the Court, 1. My name is Joseph H.H. Weiler, Professor of Law at New York University and Honorary Professor at London University. I have the honour to represent the Governments of Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, The Russian Federation and San Marino. All Third Parties are of the opinion that the Second Chamber erred in its reasoning and interpretation of the Convention and its subsequent conclusions. 2. I have been instructed by the President of the Grand Chamber that the Third Parties must not address the specifics of the case and be limited to the general principles underlying the case and its possible resolution. Time allocated is 15 minutes. I will, thus, only mention the most essential arguments. 3. In its Decision the Chamber articulated three key principles with two of which the Intervening States strongly agree. They strongly dissent from the third. 4. They strongly agree that the Convention guarantees to individuals Freedom of Religion and Freedom from Religion (positive and negative religious freedom) and they strongly agree on the need for a class room that educates towards tolerance and pluralism and is bereft of religious coercion. 5. The Chamber also articulates a principle of “neutrality:” “The State's duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the ways of expressing those convictions. [paragraph 47] 6. From this premise the conclusion is inevitable: Having a crucifix on the walls of classrooms was obviously found as expressing an assessment of the legitimacy of religious conviction – Christianity – and hence violative. 7. This formulation of “neutrality” is based on two conceptual errors which are fatal to the conclusions. 8. First, under the Convention system all Members must, indeed, guarantee individuals freedom of religion but also freedom from religion. This obligation represents a common constitutional asset of Europe. It is, however, counter balanced by considerable liberty when it comes to the place of religion or religious heritage in the collective identity of the nation and the symbology of the State. 9. Thus, there are Members in which laïcité is part of the very definition of the State, such as France and in which, indeed, there can be no State endorsed or sponsored religious symbol in a public space. Religion is a private affair. 10. But no State is not required under the Convention system to espouse laïcité. Thus, just across the Channel there is England (and I use this term advisedly) in which there is an Established State Church, in which the Head of State is also the Head of the Church, in which religious leaders, are members, ex ufficio, of the legislative branch, in which the flag carries the Cross and in which the National Anthem is a prayer to God to save the Monarch, and give him or her Victory and Glory. [Sometimes God does not listen as in a certain football match a few days ago…] 11. In its very self definition as a State with such an established Church, in its very ontology, England would appear to violate the strictures of the Chamber for how could it be said that with all those symbols there is not some kind of assessment of the legitimacy of religious belief? 12. There is a huge diversity of State-Church arrangement in Europe. More than half the population of Europe lives in States which could not be described as laïque. Inevitably in public education, the State and its symbols have a place. Many of these, however, have a religious origin or contemporary religious identity. In Europe, the Cross is the most visible example appearing as it does on endless flags, crests, buildings etc. It is wrong to argue, as some have, that it is only or merely a national symbol. But it is equally wrong to argue, as some have, that it has only religious significance. It is both – Given history that is part of the national identity of many European States. [There are scholars who claim that the 12 Stars of the Council of Europe has this very duality too!] ORAL SUBMISSION BY PROFESSOR JHH WEILER ON BEHALF OF AREMENIA, BULGARIA, CYPRUS, GREECE, LITHUANIA, MALTA, THE RUSSIAN FEDERATION AND SAN MARINO – THIRD PARTY INTERVENING STATES IN THE LAUTSI CASE BEFORE THE GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS JUNE 30TH, 2010

12 No. 68 JUSTICE 13. Consider a photograph of the Queen of England hanging in the classroom. Like the Cross, that picture has a double meaning. It is a photo of the Head of State. It is, too, a photo of the Titular head of the Church of England. It is a bit like the Pope who is a Head of State and Head of a Church. Would it be acceptable for someone to demand that the picture of the Queen may not hang in the school since it is incompatible with their religious conviction or their right to education since – they are Catholics, or Jews, or Muslims? Or with their philosophical conviction – they are atheists? Could the Irish Constitution or the German Constitution not hang on a class room wall or be read in class since in their Preambles we find a reference to the Holy Trinity and the Divine Lord Jesus Christ in the former and to God in the latter? Of course the right of freedom from religion must ensure that a pupil who objects may not be required actually to engage in a religious act, perform a religious ritual, or have some religious affiliation as a condition for state entitlements. He or she should certainly have the right not to sing God Save the Queen if that clashes with their world view. But can that student demand that no one else sing it? 14. This European arrangement constitutes a huge lesson in pluralism and tolerance. Every child in Europe, atheist and religious, Christian, Muslim and Jew, learns that as part of their European heritage, Europe insists, on the one hand on their individual right to worship freely – within limits of respecting other people’s rights and public order – and their right not to worship at all. At the same time, as part of its pluralism and tolerance, Europe accepts and respects a France and an England; a Sweden and a Denmark, a Greece and an Italy all of which have very different practices of acknowledging publically endorsed religious symbols by the State and in public spaces. 15. In many of these non- laïque States, large segments of the population, maybe even a majority are no longer religious themselves. And yet the continued entanglement of religious symbols in its public space and by the State is accepted by the secular population as part of national identity and as an act of tolerance towards their co-nationals. It may be, that some day, the British people, exercising their constitutional sovereignty, will divest themselves of the Church of England, as did the Swedes. But that is for them, not for this distinguished Court, and certainly the Convention has never been understood as forcing them to do so. Italy is free to choose to be laïque. The Italian people may democratically and constitutionally elect to have a laïque State. (And whether the crucifix on the walls is compatible with the Italian constitution is not a matter for this court but for the Italian Court.) But the applicant, Ms. Lautsi, does not want this Court to recognize the right of Italy to be laïque, but to impose on her a duty. That is not supported by law. 16. In today’s Europe countries have opened their gates to many new residents and citizens. We owe them all the guarantees of the Convention. We owe the decency and welcome and non discrimination. But the message of tolerance towards the Other should not be translated into a message of intolerance towards one’s own identity, and the legal imperative of the Convention should not extend the justified requirement that the State guarantee negative and positive religious freedom, to the unjustified and startling proposition that the State divest itself of part of its cultural identity simply because the artefacts of such identity may be religious or of religious origin. 17. The position adopted by the Chamber is not an expression of the pluralism manifest by the Convention system, but an expression of the values of the laïque State. To extend it to the entire Convention system would represent, with great respect, the Americanization of Europe. Americanization in two respects: First a single and unique rule for everyone, and second, a rigid, American style, separation of Church and State, as if the people of those Members whose State identity is not laïque, cannot be trusted to live by the principles of tolerance and pluralism. That again, is not Europe. 18. The Europe of the Convention represents a unique balance between the individual liberty of freedom of and from religion, and the collective liberty to define the State and Nation using religious symbols and even having an established Church. We trust our constitutional democratic institutions to define our public spaces and our collective educational systems. We trust our courts, including this august court, to defend individual liberties. It is a balance that has served Europe well over the last 60 years. 19. It is also a balance which can act as a beacon to the rest of the world since it demonstrates to countries which believe that democracy would require them to shed their religious identity that this is not the case. The decision of the Chamber has upset this unique balance and risks to flatten our constitutional landscape robbing of that major asset of constitutional diversity. This distinguished Court should restore the balance. 20. I turn now to the second conceptual error of the Chamber – the conflation, pragmatic and conceptual, between secularism, laïcité, and neutrality. 21. Today, the principal social cleavage in our States as regards religion is not among, say Catholics and Protestants, but among the religious and the ‘secular ’. Secularity, Laïcité is not an empty category which signifies absence of faith. It is to many a rich world view which holds, inter alia, the political conviction that religion only has a legitimate place in the private sphere and that there may not be any entanglement of public authority and religion. For example, only secular schools will be funded. Religious

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