Anti-Semitism Worldwide 1999/2000

FREEDOM OF EXPRESSION:
THREE CASES OF RACISM AND TOLERATION1

Isi Foighel*

The European Council, which today consists of 40 states populated by over 800 million people, has in recent years designated the fight against racism, anti-Semitism and xenophobia as one of its most important tasks.² This has been underlined in numerous declarations of heads of state and ministers, as well as in programs and council statements, inter alia. This struggle has become necessary in light of the increase in xenophobic and anti-Semitic manifestations in Europe in the last ten years. It is therefore remarkable that if one scans the new electronic index³ of all judgments handed down by the European Court of Human Rights -- an institution of the European Council -- one finds only a single case under the heading of racism. This case was against Denmark, which was found in 1994 to have violated the Convention of Human Rights. This apparent paradox can be explained by developments in Europe, which have led to a broadening of the concept of freedom of expression. As a result, it has become more difficult to fight and criminalize racist and anti-Semitic expression.

Jersild versus Denmark⁴

Olaf Jersild was a Danish journalist who had a weekly program on Danish television. When he invited two members of a small group who called themselves Greenjackets for a three-minute interview on the program, they used the opportunity to make viciously racist slurs. The purpose of this interview -- so Mr. Jersild claimed -- was to prove the presence of neo-Nazis in Denmark. The journalist was reported to the police and eventually brought to trial. He was fined for having disseminated racist remarks, which in Denmark was, and still is, a criminal act.

On appeal, the Danish Supreme Court found that no public interest was served in disseminating the degrading remarks of a few youngsters, who, in the eyes of the court, were of no significance. However, when the case was brought before the European Court of Human Rights, it found that by convicting the journalist, Denmark had violated his right of freedom of expression.

This judgment of the Court of Human Rights divided public opinion in Denmark. While some welcomed it as a victory for the right of freedom of expression, others were worried by its potential consequences. Would it be possible, for example, to show parts of a video containing child pornography as footage in a TV program illustrating the existence of such products?

With the law criminalizing racist remarks under heavy attack by journalists and other libertarians, the Danish government became even more hesitant in its efforts to prevent the export of anti-Semitic and Nazi propaganda from Denmark, one of the few European countries where this is not illegal.

In order to understand the verdict in the Jersild case, it is important to understand the background and experience of the 12-15 judges from the former communist East and Central European countries who joined the court after 1989. They have often claimed that the repression they suffered over the past 50 years was exacerbated by the lack of a free press which could inform citizens and the world at large what was taking place in their own and in other countries. They believe this freedom that they have now regained should not be used to limit journalists, who might constitute an important factor in preventing new and corrupt regimes from coming to power.

When the arguments were weighed, those in favor of freedom of expression prevailed over considerations for the victims. It seems that the new East and Central European democracies lack sufficient confidence to let the fledgling regimes restrict freedom of expression. The real danger in this development is that this fear might be transmitted to other European states where such insecurity is unjustified. As a result, the way would be paved -- in the name of human rights – for the dissemination of degrading expressions, particularly those rooted in xenophobia and anti-Semitism.

An element of the Jersild case was the fact that it concerned the conveyance of statements by third parties. A few years later, the court went even further in extending the concept of freedom of expression.

Lehideux and Isorno versus France⁵

On 24 September 1998, the Court of Human Rights handed down its verdict in the case of Lehideux and Isorno versus France. The court found that France had violated the right of freedom of expression as laid down in the Convention of Human Rights. The case was characterized by the following features:

- For many of the judges it re-awakened memories of a sad chapter in European and Jewish history.

- It underlined the debate which has taken place in Europe, including France, in recent years over a possible re-evaluation of the World War II period and its aftermath.

- It showed how far the Court of Human Rights is willing to go in order to protect the right of freedom of expression, and how often the victims are ignored when a legal institution has to create or apply this principle

The background of the case is as follows: After the defeat of France in 1940, Germany occupied the northern part which included Paris. Southern France, including the city of Vichy, was not occupied by Germany but was ruled by a government headed by the World War I hero Marshal Phillipe Pétain. The French National Assembly had urged him to take over the political leadership as head of state and to negotiate a cease-fire with the Germans. After the war, on 15 August 1945, Pétain was condemned to death and to forfeiture of his civil rights for high treason and collusion with the enemy, including, among other crimes, his anti-Semitic and racist policies.

In July 1984 -- 40 years later -- Le Monde published a one-page advertisement entitled “People of France, You Have Short Memories,” which recapitulated the main stages of Pétain's life. In respect to the period 1940-45, the text contained the following assertions

- that in the face of enormous difficulties, including Nazi atrocities and persecutions, he protected the French people from German ruthlessness and barbarism, thus ensuring that two million prisoners-of-war were saved.

Referring to the episode on 20 October 1940 when Pétain went to see Adolf Hitler and shook his hand, the text stated “... that, through his supremely skillful policy, he managed to send a personal representative to London thereby allowing defeated France to maintain its position between the contradictory demands of the Germans and those of the Allies.” The advertisement continued in this vein, underlining Pétain’s alleged achievements for France and the French people.

Nothing, however, was mentioned of his signing, on 3 October 1940, the act relating to aliens of the Jewish race, which provided that Jews be interned in camps set up in France. These camps were created in order to facilitate the Jews’ conveyance to the Nazi death camps. Modern historians have called this “the ugliest side of the Vichy government's abortive moral revolution, namely its vicious racism, and in particular its own special brand of anti-Semitism. Recent research has established beyond question that far from being a Nazi imposition, Vichy's anti-Semitism was entirely home-grown and in certain respects even exceeded German requirements.”⁶ Neither was anything mentioned in the advertisement about the execution of members of the French resistance.

The advertisement was ordered and paid for by an organization called the Association for the Defense of the Memory of Marshal Pétain. On the initiative of the National Association of Former Members of the Resistance, a complaint was filed against the leadership of the association. The association was charged with having violated a French law which criminalized the public defense of persons convicted of collaboration with the enemy.

The Paris Court of Appeal and later the Cour de Cassation (High Court of Appeal) found that this act had been violated, since while hailing Pétain and justihis acts, it omitted relevant information, thereby providing a distorted defense of the marshal. The French verdict further underlined the fact that the story of sending emissaries to London was an unsubstantiated assertion frequently rejected by scholars.

After the two persons representing the leadership of the Association for the Defense of the Memory of Marshal Pétain had been convicted and fined one franc, they brought their case to the European Court of Human Rights, claiming their right of freedom of expression had been violated.

Because of the important principles involved in the case, 21 judges took part in the deliberation. Fifteen of them found that France, by convicting the two men, had violated their right of freedom of expression. A minority of six judges, including myself, wanted to acquit France of this violation. The majority underlined the lack of proportionality between the conviction of the two men on the one hand and, on the other, a paid advertisement to promote the rehabilitation of Marshal Pétain, which was the declared purpose of a legally constituted association. There existed -- so the judgment continued -- other means of intervention and rebuttal, particularly through civil remedies. In other words: because of this disparity, the plaintiffs’ conviction was unnecessary in a democratic society.

The gist of this judgement was underlined by the Belgian judge who, in a separate opinion, said:

Our dissent was dictated by two other reasons. First, we were dealing with a case which affected the history of France and its people's painful re-evaluation of the events during and after the end of World War II. We thus felt that the French government was in a better position than a European court to assess and regulate acts which had occurred in wartime. At the same time, it had to be understood that the French government would have a legitimate interest in demonstrating through a case like this that racism, and especially anti-Semitism, should not be treated lightly.

Second, we found that in circumstances such as those of the present case, the degree of offensiveness of the advertisement to the sensitivities of groups of victims affected by it should be taken into full and sympathetic account. In this instance, it concerned veterans of the resistance movement and hundreds of thousands of Jewish survivors and others who, on the initiative of Pétain, were deported to concentration camps.

It is relevant to note that, in contrast to the Jersild case, which concerned indirect involvement in the dissemination of racism, this case concerned persons who were directly responsible for publishing offensive texts. Limiting the right of government -- in the name of human rights -- to prevent such acts, was, in the opinion of the minority – unjustified. However, we could not convince our colleagues in the majority, and the judgement therefore constitutes a new example of the expansion of the concept of freedom of expression found in the jurisprudence of the court.

Vogt versus Germany⁷

Vogt versus Germany (1995) is, to my mind, one of the most important cases to have been deliberated during the ten years I presided as a judge on the European Court of Human Rights. It concerned the so-called law on Berufsverbot, which stipulated that civil servants had to be loyal to the German constitution.

Dorothea Vogt was an educated elementary schoolteacher in a small town of Lower Saxony, West Germany. After a number of years of teaching, she was granted tenure as a civil servant. In 1982, still the era of the Cold War, a disciplinary case was brought against her after it became known that she was a member of the German Communist Party. According to German jurisprudence, this was enough to doubt her loyalty to the constitution, which was a necessary condition for securing tenure as a civil servant. She was suspended from her job in 1986 and eventually fired as a teacher and deprived of part of her pension rights. Throughout the four years the disciplinary case was being heard, she continued teaching in the school, where she was much appreciated and where she had never propagated her communist ideas.

In 1994 she brought her case before the European Court of Human Rights. She alleged that the dismissal violated her right to freedom of expression which included the right to hold an opinion. The case was very complex. It concerned the serious fight of the new Germany against communist influence from the east. It also reflected Germany’s wish to show the world that it would do its utmost to prevent extremist political movements -- be they communist or Nazi - from gaining influence in the administration.

By a slim majority, the court held that Vogt's dismissal and reduction of her pension were disproportionate to her modest position in society and her de facto membership in the Communist Party. Germany had violated her human rights.

I consider this to be one of the court’s most important decisions, not because Germany lost by only one vote, but because of a more fundamental consideration: It is the right and duty of every government to protect its population against enemies from within and outside its borders. Thus, it is also the government’s right and duty to define the enemies of the people and to protect the population from them. Governments have done this throughout history, but often erroneously and with horrendous results. During the period of the Roman Empire the Christians were declared the enemy of the people and thrown to the lions. In Spain of the Middle Ages the enemy was anyone who was not Catholic. Nazi Germany demonized Jews, Roma and homosexuals. In former Yugoslavia it was the Muslims in some places and non-Muslims in others.

On 20 April 1998, in Strasbourg, the government of the strongest power in Europe was sued by a schoolteacher and forced to defend its actions before a European court of human rights. It had to prove that it was necessary in a democratic society to exclude a schoolteacher from that society and prevent her from performing the only job she was trained for. The German government was unable to provide such proof to the satisfaction of the court.

Reflecting on this judgment, which is based on freedom of expression and the right to hold an opinion, one can appreciate the distance the postwar generation has covered. For centuries every government was free to control its own citizens as it saw fit; now a European court has been created whose purpose is to protect the rights of citizens and thereby determine whom a government can or cannot exclude and prosecute. This is a consequence of extending the cof freedom of expression. While a positive and valuable development, it has its price: when one opens up to progress, the opposite may also occur -- retrogression. The delicate balance between these two trends has been illustrated here through an analysis of recent decisions of the court.

* Professor Isi Foighel, Dr. Jur. (Copenhagen University), Judge at the European Court of Human Rights, 1988-98.

NOTES