Dr.Gerstenfeld’s article on Europe’s rule of law and the Jews was originally published in the Jerusalem Post, and republished here with the author’s consent…
Europe’s Rule of Law and the Jews
A key characteristic of democracy is the rule of law. One cannot easily analyze the problems of such a complex subject in an area as big as the European Union (EU). As a useful shortcut one can however focus on a small community which has many interactions with the majority population and the state. Jews, who represent about 0.3% of the EU’s population and in no country reach even one percent of all citizens can serve as an instrument for such an analysis.
A few extreme court cases or lack of them will expose a variety of problems of the rule of law in EU countries, including a court case against Israelis. For a start there is the lawsuit in Belgium in 2001 against Israeli Prime Minister Ariel Sharon and two Israeli generals. It was brought by family members of Palestinians murdered in 1982 by Christian Lebanese militia in the camps of Sabra and Shatilah. This became a political process abroad of leading Israelis who had already been investigated in their home country.
The Belgian procurer general did not want to prosecute, yet in a highly unusual decision the appeals court did not accept his position. The process against Sharon and the generals finally came to nothing because the Belgians overplayed their hand and wanted to prosecute under the same universal law inter alia U.S. president George Bush Sr.. The American government then threatened to move the NATO headquarters from Brussels. The Belgian parliament subsequently voted to change its laws of universal jurisdiction.1
One judgment in Germany concerned three Palestinians who attempted to burn a synagogue in the town of Wuppertal in 2014. A German court decided that this was out of protest against Israel and could not be considered an antisemitic act. The perpetrators were given suspended sentences.2
In December 2017, three perpetrators threw a Molotov cocktail at a synagogue in Sweden’s second largest city, Gothenburg. Some twenty youngsters in the building took shelter in its cellar during the attack.3 A Swedish appeals court overturned a criminal tribunal ruling which had decided that one of the perpetrators, a Gaza-born Palestinian, would be deported at the end of the two-year prison term. The court said that he should not be deported because the antisemitic nature of this attack could put him in danger from Israel. 4 The court apparently preferred the imagined interests of the perpetrator over those of his victims. It seemed to matter less to the court that if he stayed in Sweden he might potentially commit other crimes.
An indirect result of the deficiencies of the rule of law in ultra-liberal Sweden was that the Jewish community of Umea was dissolved because of neo-Nazi threats. Nothing similar has occurred anywhere else in the European Union in this century.5
Sweden’s third largest city, Malmö, is considered by many experts as the capital of European antisemitism. The perpetrators of the many physical and verbal antisemitic acts are mostly, or perhaps even all, Muslim.6 A record number of complaints about hate crimes in the city in 2010 and 2011 did not lead to any convictions.7
In the Netherlands the failures of the rule of law are less extreme. In 2017, Israeli schoolchildren visited the Dutch parliament. A Muslim municipal council member in The Hague, Abdoe Khoulani, called the students “Zionist terrorists in training” and “future child murderers and occupiers.” A Dutch judge dismissed a court case against Khoulani, saying his remarks did not constitute incitement to hate.8
One court case in the United Kingdom is described in great detail by David Hirsh in his book, Contemporary Left Antisemitism. The book tells the story of British Jewish academic activist, Ronnie Fraser, who took his trade union, the University and College Union (UCU) to court. He argued that a culture of institutional antisemitism has been created by the union, which resulted in antisemitic harassment against him. In 2013 the tribunal decided that “there had been no antisemitism at all.” It ruled against Fraser on everything: ”technicalities, legal argument and every significant issue of substance and of fact.” Hirsh details how a number of witnesses in favor of Fraser were ignored and not mentioned in the court’s judgment.9
In 2010, British judge, George Bathurst-Norman, influenced a jury to acquit a group of campaigners who had attacked and seriously damaged a factory that made parts for Israeli war planes. In the criminal damage trial the judge compared Israel to the Nazi regime.10 The Office of Criminal Complaints later said that the judge was reprimanded for his words.11
The problems in France are again of a different nature. It took a long time before France recognized that the murder of Sarah Halimi by her Muslim neighbor was a hate crime.12
This was all the more worrying because of the many years of ongoing antisemitic violence. In 2001 there was already a huge outburst of antisemitic attacks in France mainly perpetrated by Muslim immigrants. For a long time both the press and public authorities hardly reported these cases.
The above few cases demonstrate major legal failures concerning Jews in several European countries. Others can be added. They are not only indicative of shortcomings in the rule of law but also of the democratic deficit of these countries.
2 www.jta.org/2017/01/15/news-opinion/world/german-court-affirms-ruling-that-said-synagogue-arson-isnt-anti-semitic; https://www.tagesspiegel.de/politik/antisemitismus-in-deutschland-wie-kann-ein-anschlag-auf-eine-synagoge-nicht-judenfeindlich-sein/19572812.html
9 David Hirsch, Contemporary Left Antisemitism, (London and New York, Routledge, 2018) p. 154