Drawing a Line: Encouraging Legal Developments
Several encouraging legal developments relevant to combating antisemitism occurred in 2021.
European Union/European Commission. In February 2021, the European Court of Human Rights issued a ruling on statements made by Mr. Volen Siderov, a Bulgarian parliament member and the founder of ATAKA, a far-right political party. In his book The Boomerang of Evil (2002), Siderov wrote several antisemitic and xenophobic statements, including: “Enslaving other people has for centuries been the supreme goal of the Jewish world elite.” In The Power of Mammon (2004), Siderov wrote: “[E]verywhere on the European continent Jews got under the skin of rulers, pushed them towards wars and cataclysms, so that they would fall in an acute need of money.”
For these and other statements, Siderov was subsequently sued by 18 people and 66 NGOs, alleging various types of harassment and discrimination against Roma, Turks, Jews, Catholics, and sexual and gender minorities. Among the petitioners were two Jewish Bulgarian citizens, Gabriela Aron Behar and Katrin Borisova Gutman, who sued Siderov because of his anti-Jewish rhetoric. From the court of first instance to the appellate and supreme court, Bulgarian courts all dismissed the lawsuit, stating that Mr. Siderov had been within his rights to express “unpopular” opinions and that the petitioners had not been personally named by him or affected by the comments.
Having exhausted all legal proceedings in Bulgaria, Bechor and Gutman petitioned the European Court of Human Rights in Strasbourg. In February 2021, the European Court declared in its ruling that Mr. Siderov’s statements were antisemitic hate speech – “virulently anti-Semitic” in fact – and that they had “rehearsed timeworn anti-Semitic and Holocaust denial narratives.” The European Court further stated the comments were meant to “vilify Jews and stir up prejudice and hatred towards them,” in stark contrast to the position of the Bulgarian courts and government that had downplayed them.
Apart from confirming the European Court’s long-standing position regarding hate speech, the ruling is important since it clarifies that a person does not have to be named explicitly for the offending statement to be considered hate speech. In this sense, the ruling can be viewed as strengthening the rulings of several national courts across Europe that declared that some forms of hate speech are so virulent that they violate the rights of all persons belonging to the maligned group. The ruling also clearly states that European countries are obligated to provide redress to such persons and access to effective legal remedies.
The European Commission introduced in 2021 two important initiatives related to combating antisemitism. The first is to expand the “EU Crimes” list to include hate speech and hate crimes. This will allow for a harmonized and common approach among member states in handling antisemitic hate speech and hate crime.
The second is the EU Strategy on Combating Antisemitism and Fostering Jewish Life, introduced on 5 October 2021. The strategy includes a list of measures to combat antisemitism, foster Jewish life, and promote Holocaust research and remembrance. Several noteworthy measures are specified, including: (a) Encouraging member states to complete the transposition of the Framework Decision on combating racism and xenophobia and prosecute antisemitic hate speech and hate crimes in line with EU and national legislation. (b) Introducing new laws, strengthening the roles of the equality bodies in the member states responsible for monitoring and supporting equal treatment, and increasing their knowledge about antisemitism. (c) Proposing the adoption of a “Digital Services Act” that will aim to harmonize reporting obligations of online platforms to counter hate speech.
Ukraine. On 22 September 2021, the Ukrainian parliament passed the “Prevention and Counteraction to Antisemitism Law,” which was signed into law by President Volodymyr Zelensky on 7 October 2021.
The law aims to prevent and counter antisemitic manifestations in Ukraine, and defines antisemitism in accordance with the IHRA definition. The law also states that persons guilty of violating the law would be subject to punishments under the existing hate crimes law (but does not specify the exact punishments) and allows victims to seek compensation.
The law’s sponsors noted that antisemitic manifestations had largely gone unpunished since there had been no clear definition of antisemitism under Ukrainian law. Israeli officials and Jewish groups praised the passage of the law. Still, the law was also criticized by some, primarily on account of its vague language, for not specifying exact penalties, and for not prohibiting glorification of collaborators of the Nazi regime as part of antisemitic-based offenses.
Despite these criticisms, the importance of the Ukrainian law stems from considering antisemitism as a specific type of manifestation of hate that is addressed via a specific law wherein antisemitism is defined in accordance with the IHRA definition.
United States. In May 2021, the US Congress enacted the “COVID-19 Hate Crimes Act” in response to the sharp rise in anti-Asian hate crimes across the US in 2020 and 2021. The law strengthens reporting mechanisms on hate crimes and provides reporting resources in several languages. Moreover, the Justice Department announced it will appoint a person to review COVID-19 related hate crimes and organize crimes reduction programs.
Several states across the US also strengthened their anti-hate policies, including New York’s Prohibition of Hate Symbols on Public Property Law of 2021. The law, which prohibits displaying or selling “symbols of hate” – such as confederate flags and swastikas – on publicly funded property, was introduced after Confederate flags were displayed on several occasions across the state and antisemitic incidents in New York City increased fifty-percent during 2021.
A California hate crimes statute was signed into law by Governor Newsom on 8 October 2021. It was introduced following a rise in antisemitic events during 2021, including displays of antiIsrael graffiti in San Francisco near a Chabad center and a Jewish-owned café, as well as white supremacist groups distributing antisemitic flyers in Santa Cruz. The law will require local hate crimes policies to recognize religious bias and discrimination bias and law enforcement officers to undergo educational training on hate crimes.
These relatively modest developments should be viewed within the context of the United States’ unique approach to free speech, which has made hate crimes laws difficult to adopt across the country.
- Train police, prosecutors, and judges to identify antisemitism. The new ruling from the European Court mentioned above highlights a crucial missing piece in the struggle against antisemitism: correctly identifying an antisemitic offense. Perfect laws may be enacted, but if the police officer, prosecutor, or judge do not recognize offenses for what they are, then those laws would never be effectively enforced. Thus, relevant training programs for law enforcement and legal professionals should be advanced.
- Create a mechanism for quick reporting of online hate speech. As shown in the European Commission’s latest efforts, countering hate speech online is a major priority. Internet companies often remove online hate speech after receiving a specific complaint. Therefore, robust reporting mechanisms must be put in place. On the national level, justice ministries working in coordination with law enforcement can develop technology for quick and effective online reporting and effective follow-up on individual reports.
- Promote coordination and cooperation. Many organizations are working on online hate speech. Creating a shared platform for them will enhance cooperation and promote sharing resources and technology. Such a platform would also encourage organizations to combat antisemitism as a form of hate speech.
- Adv. Talia Naamat