Today in Israel is Holocaust remembrance day. Israel will come to a collective halt when the sirens wail. People will stop in their tracks, put their heads down and reflect on the gravest tragedy inflicted on the Jewish people in history. Never before has a modern, industrialized state tried to systematically wipe out an entire people on the basis of their religion. The term “never again” is widely used in Holocaust memorial services. But in the eyes and in the darkest thoughts of many the term “whenever next?” would be more adept.
There are still those who wish for our death. The face may have changed, the name may have changed, the ideological basis may have changed, but the hatred remains the same. The oldest hatred, and the one that has persisted and mutated through generations: anti-Semitism. Anti-Semitism is an embellished term for what we should refer as to Jew hatred. People hate Jews. They always have, they always will. Don’t ask why. They just do. Deal with it. Let’s rewind 65 years ago. Put yourself in my position, right here, where I’m typing, in the south of France. Many French citizens were rushing to the local gendarmerie to denounce their neighbours as Jews. It only took a knock on the door, a visit to a detention center and a train ride to be deported to a concentration camp, where that French Jew, and his entire family would be tattooed, undressed and marching to their death.
Let’s fast forward. To only last month. Same place, right here, in the South of France. Picture another French citizen, fueled by his hatred of Jews, checking he has enough ammunition to kill as many Jewish children as possible. We all know how that ended. Mohamed Merah has a different face to the French collaborator in WW2. They both have different ideologies. But the hatred is the same. Don’t ask why. It just is. We have learned to deal with it for centuries and it is not likely to go anywhere.
Only one thing has changed the balance of power of Jews being at the mercy of the sovereign state they live in. The Jewish state. Israel, a nation of survivors, will survive the onslaught of UN resolutions condemning it for any possible thing. Israel will survive the protests against her diplomats at British universities. Israel will survive because survival is in her DNA. Not only will Israel survive, it will survive and prosper. Israel: the state that has faced the most unabashed condemnation throughout its young existence. Surprising? Not really, considering the historical hatred for Jews. And, as the logic goes, if there’s anything worse than a Jew, it’s a strong Jew who can now protect herself. Israel.
As I continue my reflection, I think of not only those who perished in the hands of evil, but the survivors. Slowly, their numbers are dwindling, and soon, we will be left only with historical archives about what they endured and suffered. There have been great projects to ensure that their stories are preserved and educated, and long may they continue but nothing brings the message home as when you hear the softly spoken voice of a survivor, telling you his story, looking in your eye.
I’d like to end my reflection by mentioning what I predict will be the next phase of anti-Semitism in the digital era. Online Holocaust denial. In my opinion, Holocaust denial should be renamed ‘Holocaust Glorification’. Why? Towards the end of the Second World War, as the Nazis faced the prospect of imminent defeat, they set about burning evidence and ordered the destruction of the camps so that no trace would be left as to the scale of their crimes. By cynically refuting the existence of a genocide, the deniers are in fact continuing the work of deception that the Nazis started. Holocaust deniers aren’t dumb. In fact, most of them are highly educated people who manipulate evidence to suit their anti-Semitic propensities.
In that respect, Holocaust denial is nothing more than an apology of the crime itself. Just look at the Iranian President, who denies the Holocaust while doing all he can to ensure a new one occurs. Online denial of the Holocaust is the next stage that those who hate us are using to spread their ideals of hate. As a member of the Global Forum to combat Online anti-Semitism I am doing all I can to research this phenomenon and ensure to use every possible legal mean to halt the spread of Jew-hatred 3.0.
As I conclude my reflection on this somber today, I’d like to quote from Czech writer Milan Kundera:
“You begin to liquidate a people by taking away its memory. You destroy its books, its culture, its history. And then others write other books for it, give another culture to it, invent another history for it. Then the people slowly begin to forget what it is and what it was. The world at large forgets it still faster.”
Denying the past is a fast track to ensuring it happens again. Let’s live, breathe, and act upon these words. Never again. Never again. Never again…
My name is Jonathan, a 26 year old, half-English, half-French, law graduate. Despite not having received a very religious upbringing, like many of my fellow Jews in Europe, I was deeply involved in Jewish life. I was a member and subsequently a leader of a Zionist youth movement, spent a year in Israel in my gap year, was elected the head of the Jewish society of my University, and thanks to my legal background, became a legal advisor to the Global Forum to combat Antisemitism. Needless to say, I have always been a fair defender of Israel (which isn’t very popular, as you may imagine, in the recent climate) and will continue doing so. Despite this, I still feel a deep sense of attachment to my countries of origin, England and France.
They are two countries which have served as beacons of democracy to the world, and despite all the problems, they are brilliant countries which have served me extremely well. They are countries in which I have received top-class education, reaped the benefits of great healthcare systems, and most importantly, met some top-class people and life-long friends. To my British friends, I am fully British, and to my French friends, I am fully French. England and France are two countries that I am proud to say are an integral part of me. But I still feel, from time to time, as an outsider. They are not countries I can call ‘home’. There is something lacking. There is a spark missing. I have travelled far and wide in the hope to find this missing thing. I have spent time in London, Paris, Madrid, Berlin, Melbourne and New York. Fantastic places. But that ‘sparkle’ just wasn’t there.
It was in the most unexpected place that I found that feeling I was longing for. It was in a ‘sherut’ to be precise. A crowded ‘sherut’ full of sweaty, loud, obnoxious Israelis. You know the type. It was my first week in Israel. I didn’t speak a word of Hebrew apart from ‘shalom’, ‘aba’ and ‘mazleg’ (words, which, let’s be honest, wouldn’t get me very far, unless I asked a random Israeli person who I happen to call ‘dad’ if he has a fork!). But somehow, despite being in Israel for only a week, I knew that it was a special place. For the first time of my life, I felt at home. It was a strange feeling, that of being part of something, yet knowing little of the language, culture or customs of the people. After a year in Israel, I knew the country pretty well, I spoke Hebrew, and I loved culture and the people, (especially the beautiful girls!). Sure, I saw things from an outsiders perspective. For sure, it was like one extended holiday and I did not experience the hardships and struggles a significant proportion of the population go through every day. But despite this, I caught the Israel bug. I wanted more. After leaving to go study law at University, I visited regularly, spending summers working in law firms (and partying in the evenings!)… It was only after I spent my year in Israel that I realised what I was lacking in England and France. A collective sense of purpose, belonging, togetherness and joy that I could feel no where else but Israel.
At the end of the day, Israel is a young country which has been forced to mature faster than it should have, due to historical occurrences. But it is a country which, I see, has so much beauty, joy, potential and to offer, and – I believe – I have a lot to offer You. That is why I have decided, only a few weeks ago, to make Aliyah.
“Whaaat? Are you crazy?!” I hear the cynics scream.
“You should see what reality is like in Israel… The corrupt politicians… the death of the Zionist dream, the social problems we face, our neighbours, not to mention the influx of immigrants… the loss of identity, the cost of living, the low salaries, the trash-culture that is invading us… You haven’t done the army…. You’ll never be fully integrated… Our education system is crumbling…
You get it.
Yes, Israel is far from being an ideal place. It’s got huge problems and issues to be sorted out. But this is the way I think of it. For all the problems there are (and I’m not trying to deny or minimize them in the slightest) – there is still hope. I would rather live a happy man in a place a can feel at home, than a rich man in a country where I do not feel 100% at home (ideally, of course, I’d like to be happy and rich in a place I feel at home, but, then again, who doesn’t!!). I’m still (relatively) young, have plenty to offer, and perhaps ever so slightly naive, but very excited and enthusiastic about the prospect of moving to Israel. I want to play an integral part in the dynamic Israeli society. I want to be part of the collective Jewish story.
Israel – let me at least give You a try. Let me see all Your ‘balagan’ for myself. But I want You to give me a fair chance. If I don’t like it, I can always go back to England or France and continue my career as an international lawyer. If anything, my mum will be happy, because hopefully I’ll meet a nice Jewish girl in Israel!!
Israel, I’d like this to be the start of a conversation. I’d love to hear your thoughts. The pros. The cons. The highs. The lows. Your favourite pubs (you can take the boy out of England, but you can never take England out of the boy!).
If all goes well, I’ll be with You by this summer.
Extract of my talk at the French Ministry of Foreign and European Affairs in Paris, at a conference co-chaired by the LICRA (International League against Racism and Anti-Semitism) and INACH (International Network Against CyberHate). The topic of the conference was Virtual Citizenship and Social Responsibility, and I spoke in the session about about Working towards a Common Values Charter. In the panel, we aimed to define best practices in order to encourage internet users as well as the internet industry actors to use internet in a responsible way. It was structured around a common values charter, including the guiding principles which should rule respectful internet use, aiming to unite the whole community of internet users. I was honoured to speak alongside:
“Ladies and Gentlemen, honourable dignitaries, good morning. It really is a great honour for me to be here in such distinguished surroundings and in such distinguished company today. It’s an honour because I really never expected to find much myself embarked on such a path. I must say that addressing issues of cyber hate in general, and Holocaust denial in particular, has not been what you might describe as a barrel of laughs. I am only a year or two out of University. But it was whilst at the Faculties of Law in Exeter and Rennes that I first became interested in Holocaust denial.
I was particularly interested in the motivations of Holocaust deniers and the path they took to deny the undeniable. Dwelling deeper into my research led me to immerse myself into the world of Holocaust deniers and, inevitably, online denial. Previously, Holocaust denial was limited to small circles and gatherings of middle aged men already predisposed towards racist and anti-Semitic thoughts. I discovered that the internet didn’t change Holocaust denial in its nature. What it did was give the Holocaust deniers an immeasurably larger platform. The platform for which they had always so desperately craved. A platform of hundreds of millions. A platform for new hearts and minds that they could contaminate with their notions of hate.
Cyber hate is, as everyone here knows very well, by no means limited to Holocaust denial. The internet is positively awash with those people brimming over with hatred, and desperate to spread their message still further. Racists, islamophobes, homophobes, anti-Semites misogynists, and fundamentalists of all shapes and sizes. They have one thing in common – they all use the internet as their preferred method of spreading their message, and all too often veiled behind a convenient cloak of anonymity.
“I believe an online Charter of common values is the ideal opportunity not only for self-regulation which is long overdue.”
We have seen the devastating power of hateful words metamorphosing into hateful action in the past. The consequences of hateful words combined with an online platform and spread to millions of people is therefore clearly a threat that needs to be measured and controlled. I believe an online Charter of common values is the ideal opportunity not only for self-regulation which is long overdue.
Just like any independent nation state, the internet requires rules and regulations in order to avoid chaos and to function effectively. We might well think that there is occasionally chaos in the House of Commons in London, or in the Assemblée Nationale in Paris. But just imagine the chaos of creating a legislature for the internet. Each country would inevitably want to vigorously propagate and defend its own laws and regulations. You don’t have to be an expert in parliamentary procedures to know that such a scenario would immediately be unworkable and anarchic. It would be one thousand times worse than the UN General Assembly where it’s invariably impossible for the global community to agree upon anything whatsoever. They couldn’t even bring themselves to condemn Syria for its human rights violations last week.
“With cyber-power comes cyber-responsibility.”
The fact of the matter is that in the wonderful world of cyber-land, states are all but stripped of their power. As we all very well know, in today’s online world, the real power now lies not with individual nation states but with the Facebooks and the Twitters, the Googles and the Yahoos. The power lies with the Apples and the Microsofts. The power lies with the Media groups and the host providers. And to adapt an old adage: with cyber-power comes cyber-responsibility. This is the task that lies before us: examining the merits of a Common Value Charter which would apply to Internet Users and Industry Actors alike, encouraging them to use the internet in a mature and responsible way.
Creating a workable charter that would encourage the 2 billion internet users to behave responsibly online is a daunting task indeed, particularly when one remembers that the internet continues to grow at a meteoric pace. Since 2000, the number of internet users has increased by 1000% in Latin America. By 2000% in the Middle-East. By close to 3000% in Africa. If we refine the numbers, we can get a better idea of the repercussions that having a Common Values Charter would have. Facebook has recently hit its 800 millionth user. We all know statistics can be misleading, and it seems improbable that 1 in 3 of internet users around the world is an active Facebook user. But the reality is probably not that far off the mark. This is precisely what makes the task ahead of us so relevant. So challenging. So exciting.
Having a Charter signed and ratified by both the major and minor players on the web would, in my view, be a game changer in the online world. The repercussions would be huge. It would transcend national and international law alike, and represent a quasi-legal system in its own right. It would represent the next bold step in cyber-responsibility. I believe that adopting a Common Values Charter would represent the coming of age of the internet – in effect turning the online world from a boy into a young and responsible adult. A young adult prepared to grasp the nettle of the huge amount of power which the internet undoubtedly has. A young adult prepared the grasp the nettle of responsibility which this entails.
“…a seal of approval that online players, both big and small, would be able to display with pride on their sites.”
When we speak about a “Common Values Charter”, what I have in mind is a label. Not a metaphorical label. But a very real and visible seal of approval – such as the French “label-rouge”, the “CE Mark”, even a “Michelin star”. A seal of approval that online players, both big and small, would be able to display with pride on their sites.
This online seal of common values isn’t something that we, attendees of the conference, should take lightly. It should be, in my view, led by an independent and hopefully internationally endorsed committee armed with authority and legitimacy. It would have a clear mandate to discuss and vote on the common values it deems appropriate for the online world. It would set the checks and criteria that need to be met. It would award the label to deserving parties who meet its criteria. It would have a sub-committee mandated to regularly check up with the certified parties to ensure that high standards of compliance are being maintained. It would be the proof of credibility for online players: that not only do they state that they stand against online hate and discrimination – but that they act upon it and implement it too.
In 2004, no one spoke about Facebook or Twitter. Now, most people I know don’t spend a day without tweeting or updating their Facebook status! This just goes to show the rapid pace at which online companies can gain prominence. It would be my sincere hope that today’s online giants would lead the way in being the first to be awarded the Common Values label, and display it online with pride. By displaying this label they would be asserting loud and clear: we stand firmly against online discrimination – and we are proud of it. This would in turn inspire tomorrow’s online players who would similarly want to be part of this seal, this label, this movement.
To me, it would constitute the pride of belonging to something that embodies the notion of virtual citizenship.
To me, embracing these common ethical values is the embodiment of social responsibility.
I very much look forward to being part of these discussions and contributing towards what is undoubtedly one of the major issues of our time as we move forwards in this extremely fast changing 21st century. Thank you.”
Voilà. The French Senate has ratified the law criminalizing the denial of the Armenian genocide. French President Nicolas Sarkozy, a supporter of the bill, is widely expected to sign it into law by February. The celebrations in Armenia have already begun. Armenian Minister of Foreign Affairs Edward Nalbandian proclaimed that “this day will be written in gold not only in the history of friendship between the Armenian and French peoples, but also in the annals of the history of the protection of human rights”. Across the border, Turkey has reacted furiously, threatening swift and severe diplomatic retaliatory action. Volkan Bozkir, the head of the Turkish parliament’s foreign affairs committee, tweeted “France opened a black page in its history”. There we have it. France is inscribed on the golden page of history on the one side, and on the black page of history on the other.
The law briefly explained. If you go to Paris, climb up the Eiffel Tower, and proclaim: “There was no Armenian genocide”, you risk being arrested upon your descent and instead of enjoying that cruise on the Seine, you would probably be in the back of a police car heading towards the Police Station of the 7ème arrondissement. If you’re lucky, you’ll get off with a warning. If you’re unlucky, you could end up spending the next year in a French prison, with a 45.000 euro fine to top it off. “What about the First Amendment right to freedom of speech?” I hear you cry. Désolé. There is no Premier Amendement in France. Au contraire, The French are at the forefront of criminalizing genocide denial. In the eyes of the law, denying a genocide is considered incitement to racial hatred. and is therefore not considered protected speech.
Those who oppose laws criminalising genocide denial will argue that freedom of speech is the most fundamental freedom of all in an open society. After all, wasn’t it the Frenchman Voltaire who (allegedly!) said “I disapprove of what you say, but I will defend to the death your right to say it.” Restricting the freedom of speech to deny a genocide, it is argued, plays right into the hands of the denier. American scholar Deborah Lipstadt, who famously exposed David Irving as a Holocaust denier in an English court, told me that when Irving was later imprisoned in Austria, people who vehemently opposed him immediately sprang to his defence – “some of them even asking me to do likewise”. In other words he was unwittingly given the undeserved status of martyr for freedom of speech, famously clutching on to his book “Hitler’s War” on his way in and out of the courtroom.
Playing politics with the Armenian genocide is by no means new. Israel, which understandably refuses to enter into diplomatic relations with any state which denies the Holocaust, had until recently consistently refused to recognise or even debate the Armenian genocide publicly. They feared the worsening relations with its then-regional ally Turkey. Interestingly, since the well-documented breakdown of relations between the two states, Israel has held its first public debate on whether to commemorate the genocide. But Israel is by no means alone in using the Armenian genocide as a diplomatic tool.
At the time Texas Governor and presidential hopeful George W. Bush pledged that as President, he would “ensure that the United States properly recognizes this terrible atrocity”, characterising it as a “genocidal campaign”. Seven years later, he urged Congress not to recognise the Armenian genocide. But fear not – President Obama is just as guilty. As a young, energetic, and popular democratic Senator (remember that?!) he stated that “the Armenian Genocide is not an allegation, a personal opinion, or a point of view, but rather a widely documented fact.” As presidential candidate, he even vowed to use the word “Genocide” to describe the tragic events. But, just like his predecessor, he has, as President, consistently refused to use the G-bomb.
Sarkozy is but the latest in a long line of statesmen who could potentially be seen as playing politics with genocide. With his dwindling popularity, and an impending Presidential election, cynics argue that the timing of the current legislation criminalizing denial of the Armenian genocide is to attract the normally loyal right-wing voters who have recently swung to the National Front party lead by Marine Le Pen. Attracting the ire of a Muslim country, the theory goes, would get those electors back on Sarko’s side.
Genocide denial is indeed morally repugnant, incomprehensible, and akin to smearing the victims in death. But the use of genocide as a bargaining tool for short-term political or diplomatic gain is, in my view, just as repugnant. Be it the promise to recognise a genocide merely to get a few more votes in elections, as we have seen with recent American Presidents. Be it the threat to sever diplomatic ties with a country if it does recognize a genocide, such as in Turkey. Be it the use of genocide to stir populist sentiment, such as in Iran. Be it the evocation of genocide imagery to oppose a legislative policy, as a group of Haredi Jews have recently done in Israel.
No one benefits from the politicisation of genocide – least of all the victims.
I’m going to be posting about how legal systems face the issue of how to deal with Holocaust denial.
Holocaust denial in the United States and the power of the First Amendment
In the USA, the situation is clear cut: it is not possible to enact laws banning Holocaust denial because of the First Amendment to the American Constitution which guarantees freedom of speech. The approach is that ‘criminalising hate speech would severely impair freedom of speech and would in the long run cause more damage than good’. The necessity to defend free speech – no matter what the cost – seems to be the prevailing legal ethos. The scope of the First Amendment is far reaching, covering nearly every form of expression of freedom of speech – even allowing for the burning of the flag. Hardly surprising, then, that denying the Holocaust is also covered by the First Amendment. Case law in the USA examining the question of whether denying the Holocaust falls within the First Amendment is noticeable only by its absence. Nevertheless, it was held in the renowned Chaplinksy v. New Hampshire case that the First Amendment does have certain limits including words which by their utterance inflict injury or tend to incite an immediate breach of the peace.
It would be an interesting debate to ask whether denying the Holocaust inflicts injury ‘by their utterance’ – the ECHR certainly seems to think so, as will be analysed further in a later post. The leading human rights lawyer David Pannick QC, however, told me that he, for one, does not subscribe to this view.
In general, my view is that it is wrong in principle for the law to ban debate on such a political issue. I subscribe to the view of the US Supreme Court (especially Holmes J in the 1920s-1930s) on the First Amendment that truth will win out in free debate and does not need protection.
Despite what would appear to be an almost blanket cover for free speech, there has nevertheless been a Holocaust denial related case in the USA. Most unexpectedly, this arose under contract law. The notorious Institute for Historical Review (IHR), cynically offered $50,000 to anyone who could prove that Jews were gassed at Auschwitz. Survivor Mel Mermelstein rose to the challenge and wrote an article to the Israeli daily The Jerusalem Post with adequate proof. This included a witness account of how he saw his mother and two sisters walking to what he would subsequently learn to be the gas chambers. The IHR did not fulfil its promise of the reward, and subsequently Mermelstein sued them for breach of contract. The case did not go to trial, but both sides agreed to a summary judgement of the court, which held, on October 29th 1981:
…This court does take judicial notice of the fact that Jews were gassed to death at the Auschwitz Concentration Camp in Poland during the summer of 1944. It just simply is a fact (…)not reasonably subject to dispute. And it is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. It is simply a fact.
So even with judicial notice of the Holocaust, the First Amendment prohibits any laws banning freedom of expression. Neo-Nazi Groups are routinely seen brandishing Swastika flags and shouting Sieg Heil and other Nazi slogans. The Klu Klux Klan can likewise go about its business unhindered. All of this is protected under the First Amendment. It would seem as if the situation in America requires reform, because of what Kahn refers to as a ‘dilemma of toleration’. Hundreds of non-US Holocaust denying websites take advantage of America’s First Amendment to use US based servers to host their websites, thus finding a loophole to bypass national laws in countries where Holocaust denial is illegal. Under US Federal Law, the authorities can only override this ‘apparent constitutional carte blanche’ only if the hateful material represents an imminent threat to the security of a specific person, as held in Watts v United States.