‘Lure Jews’, Nazi salute and the limits of criminal law
Teaching the Holocaust? Or how to prevent young immigrants bringing a Nazi salute in 21st century multicultural Amsterdam.
A Nazi salute in Amsterdam in 2010
In June 2010 the Dutch Jewish broadcasting corporation broadcast a film, made by a rabbi with two young Jewish men walking through Amsterdam-West. The film was taped with a hidden camera. The men wore a yarmulke. Their aim was to see how the neighbourhood, mainly inhabited by immigrant families, responded to them. The then 16 year old Souhail of Dutch-Moroccan descent responded with the Nazi salute.
The film lead to much commotion. Not only because the rabbi used two young men as ‘lure Jews’, provoking others to respond, but also because of the Nazi salute. Bringing a Nazi salute in public can be criminally liable (article 137e Dutch Penal Code). The question is how the state should respond to these acts. The rabbi made an official complaint against Souhail. Souhail was questioned by police, but not prosecuted. The main problem was probably whether criminal law was best suited to deal with this issue. In general, many politicians claim it is. They believe that the problems of the multicultural society are best solved by using repressive criminal law. The Dutch criminal law tradition to solve societal problems in the best suited way case by case, is no longer recognized. The tougher, the better. But would it have been better then to prosecute and punish Souhail?
Fighting anti-Semitism: we need stories
In De Volkskrant (7 April 2012) Souhail explained that he did not know what the Nazi salute was at the time. It was wantonness and utter boredom that drove him to do it. He defended himself by saying that he had learned about the Holocaust at school, but said that he missed someone telling stories about the Holocaust. He was therefore not aware that by bringing the Nazi salute he was discriminating against Jews. This could be dismissed as an attempt at some kind of defense. Even if his claim was true, this would not be enough as a defense: despite his young age he should have known that the salute was discriminating. Second, freedom of speech (which includes making expressions) is limited, especially in cases concerning the Holocaust. Making the Nazi salute in front of Jews will most likely not be accepted under Dutch and international law.
However criminally liable, the question remains whether boys like Souhail should be prosecuted. Souhail agreed to meet the rabbi who sought contact with him. It resulted in a visit to the Anne Frank House. There he learned what had happened to the Jews during the dark years of 1933-1945. Now, as an 18 year old, he wants to help to fight anti-Semitism, which according to him is mainly caused by ignorance. In order to fight ignorance we need stories, not ‘lure Jews’, Souhail explained to De Volkskrant. Jews must tell again and again what happened to their people during the Holocaust, especially to young immigrants who have little knowledge of the Second World War. The rabbi and the politician interviewed in this article mainly agreed with Souhail, but also saw a need for criminal law: repression in cases like this can sometimes be legitimate.
What to do? Punishment or a visit to the Anne Frank House?
Is that so? My answer would be yes and no. Criminal law helps to set boundaries in a multicultural society, especially in cases of free speech. Where Souhail claimed he was unaware that by bringing the Nazi salute he was discriminating Jews, others confront society with offending expressions to make society aware that they feel they do not have full legal protection in cases of free speech. Both issues pose a serious problem that criminal law has to provide answers to. Not by deciding what specific types of expressions to punish in general (Nazi salute yes, anti-Islam cartoon no), but by deciding case by case with respect for every aspect of it, including the person of the defendant. This means that people who – when asked – do not really know what they did when giving a Nazi salute, should not automatically be prosecuted, as is the official policy these days. Contrary to this, the prosecutor should be free to decide whether or not to prosecute or whether a visit to the Anne Frank House, for example, will help a person realize their stupidity. This individual approach, which Dutch criminal law used to be famous for, could help to enhance the legitimacy of criminal law in a complex multicultural society and help to fight anti-Semitism. The fact that Souhail was not prosecuted shows that Dutch criminal law is still somewhat flexible. I am very glad it is.
I'm afraid your argument is utterly naïve and formalistic. Not every sustainable legal argument must follow your suggested pattern of analysis. I believe that specifically in regard to hate crimes, more than anything, it is a matter of policy and public interest. In contrast to your view, I think that the real issue here is not a matter of "doctrinal justice", but a matter of social and moral justice, and it's exactly the Court's role to confront these issues in this way. I think that your model of a doctrinal court is exactly the type of Court that a liberal and modern society should abstain from. Tight and formalistic judges are responsible for much of the judicial wrongs that stressed the sensitivity and social awareness that are required from a true liberal court
I am not a criminal law expert but what is clear from your article is that your argument is not sustainable or should not be sustainable in the court of law, which beleives in respect to an 'individual' in a society. This does not matter whether you are from developed or developing or under developed countries nor does it matter which culture you come from!
It is good to remind you the principle in common law, which many civil law countries should learn - actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged. As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault.
I think your article should have focused on this argument rather than whether to go to Anne Frank house or some where else? It is quite a very conservative look that the article has taken.
Thanks for looking into my comments.
(former student of Leiden Law Faculty - LL.M in Air and Space Law)
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