Justice winter 1998

The Legal Fight Against Anti-Semitism in the Netherlands

Ronny Naftaniel

On 8 December this year the Civil Court of Amsterdam banned all publications that cast doubt en the authenticity of the Anne Frank's diary, declaring that such questions insulted and offended Jews. The case was ruled after the unsolicited distribution to Dutch libraries in 1991 of a book by the Belgium revisionist Siegfried Verbeke with a foreword of the French revisionist Robert Faurisson, that alleged that Anne's father Otto, was the true author of the journal that chronicled her family's years of hiding from the Nazi's. The case was brought up by the Anne Frank Foundation in the Netherlands and the Anne Frank Fund of Basel, Switzerland. The court barred the publishers and authors of the book Anne Frank: A Critical Approach from distributing it, on pain of a $ 12,500 fine. A month earlier the Penal Court in Amsterdam had ruled that the selling of a single historie copy of Adolf Hitler's Mein Kampf at the fleemarket in Amsterdam was illegal. The book, worth about $ 200, was seized. Both cases show that The Netherlands possesses strict and well applied anti-discrimination laws.

These laws were introduced six years after the General Assembly of the United Nations had adopted the International Convention on the Elimination of All Forms of Racial Discrimination. The states participating in the convention agreed to take several measures to prevent racial discrimination. Article 1.1 of the Convention contains a definition of racial discrimination. In 1971 Dutch criminal law was amended to reflect the Convention's principles. These steps included Article 90 quater in the Penal Code, which describes discrimination as follows: "Every type of distinction, exclusion, restriction or preference with the intention or result of undoing or compromising the use or exercise of human rights based on equality and the fundamental freedoms on political, economic, social or cultural grounds or other aspects of public life."

This definition is slightly broader than Article 1.1 of the International Convention, which lacks the words "result of". The changes also included elaborating articles 137 c-e in the Penal Code, which all concern some manner of public and deliberate insult of a group of people on grounds of their race, religion or etnic background, or the encouragement of such action. Over time, new modifications or amendments arose. In 1981, Article 429 quater in the Penal Code, which prohibits discrimination in economic transactions, was extended to prevent Dutch companies from issuing so-called Gentile certificates in accordance with the Arab boycott against Israel. At present, discrimination on the basis of gender or sexual preference is prohibited as well.

Although the term anti-Semitism appears neither in the International Convention on the Elimination of All Forms of Racial Discrimination nor in the Dutch penal clauses, these anti-discrimination articles have considerably enhanced legal protection of Jews in the Netherlands. Contrary to the expectations that would normally arise from these generic prohibitions, most Dutch courts have kept close tabs on the special characteristics of anti-Semitism with respect to racism and in general. In this article I try to provide an historical background about the way courts have treated the special characteristics of anti-Semitism under the Dutch anti-discrimination law and the development of the the relevant case law over the past 27 years. In this more than quarter century since the new anti-discrimination was enacted, the situation has largely changed for the better. Jews in the Netherlands have found the court to be one of the most forceful means of combatting open utterances of anti-Semitism, which occur some dozens of times a year.

Xenophobia - versus anti-Semitism

For centuries the Jews were in Europe the only visible and numerable minority. By the outside world they were despised for being foreigners who clung to their traditions and refused to, assim-ilate. This field of tension between the steadfast identity of the Jewish people and the ongoing attempts (violent and non-violent alike) by the people in whose midst the Jews lived to strip them of their identity is an important element of anti-Semitism. Jews were the first and in some countries for a long time the only allochtones (inhabitants with a cultural heritage different from the surrounding culture). However, the despisal of a people that does not wish to assimilate by no means defines the manifestations of anti-Semitism over the centuries. Rather, the religious component (i.e. the Christian religion) is the common thread. Christianity evolved from a separate Jewish sect to a fiercely competing religion. Parts of the Gospel were deliberately misinterpreted by priests and Church Fathers with a view toward depicting Judaism as heresy. In the New Testament, Matthew 27:25 is infamous: "Then answered all the people, and said, his blood be on us, and on our children." This passage was interpreted as the Jewish people's self-imprecation for the crucifixion of Jesus Christ until the end of time. Those priests and Church Fathers wanted the Jews to suffer for refusing to acknowledge Jesus as the Messiah or to embrace the "true faith": Christianity. This idea coincided with restrictive measures imposed by the Church, which usually gave rise to discrimination, persecutions and pogroms over the centuries. Many negative ideas about Jews were also adopted by the Reformation.

Only after World War II did the Protestant and Catholic churches change in this respect. On 31 December 1993 the Vatican and the government of Israel signed "The fundamental agreement between the Holy See and the State of Israel", which normalized relations between Jews and Catholics after 1,900 years. The Vatican recog-nized the State of Israel and in Article 2.2 condemned "hatred, persecution and all other expressions of anti-Semitism directed against the Jewish people and individual Jews at any place or time in the world or by anybody." The agreement rectified one of the injustices in the history of the Roman Catholic Church. In this past, Christianity was an essential pillar of anti-Semitism. In some cultures (i.e. the Eastern Churches and among some Western funda-mentalist factions) it still is.

The religious background precludes a blanket identification with general xenophobia. Admittedly, anti-Semitism and xenophobia should both be eliminated and are equally unpleasant for their victims. Both patterns are embedded in the culture in which we live. Answering the social and legal question as to whether an action or statement is offensive, however, should consider the historical expe-riences of the specific group of the population targeted by the statement or action. Discrimination against Jews, who are fully inte-grated in most European societies at present, has long ceased to entail being slighted in economic transactions or insults based on physical appearance (as remains the case for allochtones all too often). Today, most discrimination against Jews concerns expres-sions of prejudices with deep social, cultural and religious roots or negative references to past outbursts of anti-Semitism.

Special considerations

In his contribution to the collection What is Anti-Semitism? (Kok, Kampen, 1991), Professor J.C.M. Leyten, formerly an advocate general at the Supreme Court of the Netherlands, covers the role of the past in determining whether certain statements directed at Jews are offensive under civil or criminal law in the Netherlands. He uses two cases to illustrate his argument. In the first, the defendants were a few members of the Palestina Komitee. In 1980 they had distrib-uted cards with a cartoon comparing Israel to the Nazis. In Israel's name in the cartoon, the "s" had been replaced by a swastika. The Lower Court had ruled that the cartoon was offensive. Leyten, who tried the case in the Supreme Court, agreed. He submitted, however, that if the cartoon had referred to a group other than the Jews, the court might have ruled otherwise.

Consider history. This past determines the vulgarity, as well as the monstrous danger that lurks. […] Anybody who reproaches the state where some of the people live who were annihilated by the racism of an underworld regime - the state established precisely to avoid any recurrence of this Holocaust - of being comparable to this hell, should realize that such an imputation will achieve a horrible impact on the majority of the survivors, even the ones who may severely criticize the current policy of the Israeli government. This device, this comparison is both vulgar toward Israel and vulgar toward Jews in general.

Law and case law function in society. Society is an entity that derives its present bearing and existence from the past.

The second case noted by Leyten is the Supreme Court ruling in the civil suit against two Dutch evangelists, Mr and Mrs Goeree. Unasked, the couple went door to door dropping their gospel publi-cation Evan in mailboxes, preferably those of Jews. In their pamphlet, they maintained that the Jews brought the Holocaust on themselves by refusing to accept Jesus as their redeemer. Regarding the suits against the Goerees, the Advocate -General of the Supreme Court of the Netherlands commented:
"I repeat: law and case law reflect the past. [ ... ] The law's widely acclaimed abstract quality - Themis's blindfold, judging without considering an individual's appearance - has only a relative value and truth. Visible aspects are observed by the law and play a role in defining the law and case law. Without World War II and the annihilation of six million Jews for being Jewish, case law regarding discrimination against Jews would be quite different than it is, even without any changes in the relevant legal stipulations."

Looking back twenty-seven years at the fight against racism in the Netherlands, the main accomplishment with respect to anti-Semitism is the growing awareness among courts that hatred of Jews is no isolated phenomenon hut is part of our common history and should be repressed as soon as it rears its ugly head. This awareness is attributable to tighter anti-racist legislation following the ratification of the International Convention on the Elimination of Racial Discrimination, which has afforded case law greater leeway. Another factor is the increased interest that arose in the 1970s - following years of relative silence on the subject - in the atrocities during World War II. Since their implementation in 1971, case law regarding articles 137 c-e and Article 429 quater in the Penal Code (which was improved on 22 May 1981) and the modifi-cations and amendments to these articles dated 14 November 1991 have set a firm guideline for the elements of racism and anti-Semitism that will not be tolerated by society. A rift has occurred between the small minority, which attributes every social setback or economic recession to people with a different skin colour or cultural heritage, and the overwhelming majority of Dutch society, which eschews racism.

The Centre for Information and Documentation on Israel (CIDI) has - often in collaboration with the Anne Frank Foundation, the National Bureau Against Racial Discrimination and the Dutch Council of Christians and Jews (OJEC) - initiated several lawsuits highlighting the subtleties that constitute racism. In the process, the Centre for Information and Documentation on Israel deliberately targeted statements that were modern versions of old, persistent stereotypes. They caused the greatest upheaval within the Jewish community. Moreover, the public prosecutors and judges were likely to discern and acknowledge racism and to issue final rulings that might affect other groups suffering discrimination as well.
The new anti-racism legislation has offered potential victims of discrimination an opportunity to discard the view that the battle against racism needs to be fought by the majority. The French philosopher Jean Paul Sartre was an exemplary supporter of this perception. In his book Reflections sur la Question Juive (1946) he argued that anti-Semitism was not a Jewish problem.
In the same way we must say that anti-Semitism is not a Jewish problem; it is our problem. Since we are not guilty and yet run the risk of being its victims - yes, we too - we must be very blind indeed not to see that it is our concern in the highest degree. It is not up to the Jews first of all to form a militant league against anti-Semitism ; it is up to us.
Though appealing, this view defies application. The barriers in the criminal justice system concern the need of public prosecutors and judges in a criminal suit involving racism to know whether the group in question has indeed been offended, even though the plain-tiff need not pertain to that group. Socially, such a perspective deprives the discrimination victims of their say, whereas successful legal action can raise the self-esteem and the standing of the group that has suffered discrimination. The 1971 legislation has therefore been of considerable emancipatory value.

Path breaking cases

Let me describe further three notable cases to illustrate the devel-opment of the anti-discrimination legislation in the Netherlands. How have they improved the legal protection for the Jewish community and possible other groups of potential discrimination victims in Dutch society?
I already mentioned the Goeree couple, who exemplified current religious anti-Semitism , by distributing leaflets door to door. According to the Goerees, the Jews brought the Holocaust on them-selves by refusing to accept Jesus Christ as their redeemer. Seven organizations and four individuals initiated summary proceedings against the Goerees. On 13 September 1985 the civil court in Zwolle prohibited the Goerees from making any more offensive statements about Jews at the risk of a penalty of NLG 1,000 for each violation. The Supreme Court upheld this verdict. Initially, the criminal suit against the same offence was less successful. The court in Arnhem acquitted both evangelists because their motives were considered "beyond reproach". The Supreme Court reversed this ruling, finding that the allegations by the Goerees were offen-sive "regardless of the reasons of the individual making this public statement for believing that the Jews were to blame for everything."
These judgments were path-breaking. They created a pecking order between two civil liberties in the Constitution. The Supreme Court ruled that the right to freedom from discrimination took precedence over freedom of religion. Another achievement was the finding by our highest court that the intent of the perpetrator is irrelevant. Only the fact that the offence has been committed matters. A disadvantage of the Goeree case was the meagre return of the costly civil proceedings. Collecting the penalty proved impossible. Moreover, Jenny Goeree continued distributing her leaflets. The criminal courts had no qualms about imposing unconditional sentences on the couple.

The second issue concerned the Gentile certificates issued by Dutch companies to employees posted in Arab states. In 1981, following a parliamentary inquiry, the government modified Article 429 quater in the Penal Code to prohibit such differentiation. A few resulting criminal cases floundered (primarily on technicalities). The outcome was different in the case against the Flakt company in Amersfoort. This firm had issued two statements indicating that the employees to be posted in Saudi Arabia were Christian or Muslim and had no ties with Israel. On 14 March 1985, following an extended legal process, the court of appeal in Amsterdam sentenced Flakt B.V. to pay two fines of NLG 750 each. On 26 June 1984 the Supreme Court had decreed that "differentiating on the grounds of religion and political belief, if actually intended as or resulting in a discriminatory distinction, is within the scope of Artiele 429 quater".

The ruling demonstrated that the current legislation also covers indirect discrimination, meant to exclude Jews. This judgment, as well as the Binderen ruling (against a housing association that rented on purpose too few dwellings to allochtones) and several judgments against discotheque owners for excluding people because of their appearance, increased legal protection in economic transactions. As a result of the Flakt ruling, issuing Gentile certificates by Dutch companies virtually ceased.

The final issue is the Siegfried Verbeke case. This Belgian had sent schools, the press and individuals in the Netherlands various pamphlets denying that the Nazis had murdered millions of Jews in the gas chambers. The Centre for Information and Documentation on Israel and the Anne Frank Foundation initiated summary proceedings and filed a criminal complaint. On 16 June 1994 the court in The Hague ruled in the civil case that the pamphlets were indeed unlawful (Article 1401 in the Civil Code) and imposed a penalty of NLG 10,000 for each violation. Remarkably, the civil court ruled that Verbeke's theories were injurious only toward the victims of Nazi persecution and their descendants but not toward the entire Jewish community or society overall. The civil court further stepped into the shoes of the criminal court by asserting that denial of the Holocaust was unlawful but not punishable. The criminal court in The Hague later found that Verbeke had indeed committed an indictable offence. On 2 May 1996 he was fined NLG 5,000 and received 6 months probation. Verbeke lodged an appeal in cassation, which he recently lost on the same grounds.

The advantage of the outcome in these cases and the one on the Diary of Anne Frank, metioned in the beginning of this article, is that the court rightly found that proving the Holocaust took place is unnecessary. Moreover, a Dutch court has proven able to prosecute a foreigner committing an unlawful or punishable act on Dutch territory. The ability to take legal action against the denial of the Holocaust without the need for a separate article in our penal code is an international milestone. Jewish organizations in Europe have been lobbying for an article directed against the denial of historical mass murders. Some countries have already enacted prohibitions. At present, such a measure appears unnecessary in the Netherlands.

Internet

Since the introduction of the International Convention on the Elimimination of All Forms of Racial Discrimination in Dutch law the fight against racism has achieved considerable progress, although much work remains. More effective measures are necessary against racism in sports. Sometimes sporting events seem like sanctuaries where offences are permitted that would be forbidden outside the stadium. Interest groups and the Public Prosecutions Department need to keep a close watch on all forms of anti-Semitism that do not yet play a role. Professor D. van Arkel, a former professor of social history at Leiden University, has stated that "Anti-Semitism is like Proteus, tic slippery god of water who constantly changes shape."

Anti-Semitism keeps reappearing in different manifestations. Today Internet users can surf to sites that provide information prohibited under Dutch criminal law. Those sites, denying that the Holocaust ever took place, are especially popular. Because of the absolute freedom of speech under the First Amendment in the USA, revisionist ideas are exported by the Internet from the USA to European countries, where the utterances of those ideas is forbidden. In practise the States are exporting their First Amendment to Europe. Soon this may lead to a serious weakening of the effectivity of the present anti-discrimination laws, including the ones in the Netherlands. That is why international co-ordination between governments is imminent. That is also, why internet providers all over the world need to observe a special code of conduct. The political process to achieve this is highly complex. The history of anti-Semitism, however, has demonstrated that we must meet this challenge.

Ronny Naftaniel is since 1980 director of the Dutch Center for Information and Documentation on Israel, based in The Hague, The Netherlands. He is a board member of the Central Jewish Council in the Netherlands and initiated the European branch of the Jewish Interparliamentary Committee Against Anti-Semitism.