Briton David Cawthorne Haines: Next on
the beheading list for the Islamic
State: Should the glorification of this type of violence be
de Volkskrant, lawyer FeerVerkade advises
Despite Horror of Beheading, 'Glorifying Terrorism' Should Not Be a Crime (de Volkskrant, The Netherlands)
"CDA Party leader Buma has
asked that the glorification of terrorism be criminalized. The occasion was the
- disgusting - publication of photos of the beheading of journalist James Foley,
and parodies depicting other 'victims.' Would such a criminalization be legally
possible - and would it improve matters? ... Many potential suspects would
simply 'enjoy' being convicted. So much free publicity (and
after a conviction, also - martyrdom).
on the glorification of violence is asking for trouble, and gives suspects free
publicity, says FeerVerkade.
Last week, CDA
leader Sybrand van Haersma Buma asked that the glorification
of terrorism be criminalized. The occasion was the -disgusting - publication of
photos of the beheading of journalist James Foley, and parodies depicting other
Would such a criminalization be legally
possible - and would it improve matters?
Nationally and internationally, free expression
has been established as a fundamental right. That doesn't necessarily rule out
a ban if the glorification of violence impedes the right to life or privacy of
others and there is a "clash of fundamental rights." Also, incidentally,
legal restrictions on free speech are possible - provided they are "necessary"
to protect, for example, public safety, prevent crime or protect the rights of
Criminalizing the glorification of violence
or terrorism therefore requires balancing those interests against the interest
of free speech. In addition, the "glorifier" can always appeal to the
court, which has the final say. The legislature (and in its wake: the public
prosecutor) could thus be reprimanded. The European Court of Human Rights in
Strasbourg has handed out dozens of those "reprimands," especially in
defamation and sexual abuse cases. Our national courts have followed the Strasbourg
case law in hundreds of cases.
If the legislature criminalizes the
glorification of violence, it would therefore be imposing greater judicial control
over itself. Let the buyer beware!Incidentally,
the legislature is only beginning to address the question of how it would
impose such a ban. Horrifying beheadings may be the reason, but one cannot
create a separate article of law for that alone. It would apply to the
glorification of these and all other acts of violence. The question arises: What
are acts of violence? What are terrorists?
Are terrorists from the past, who came to power after a revolution or became heroes, considered
exceptions? Are there not non-violent terrorists for whom there is also sympathy
in the Netherlands? In the August 22 edition of De Volkskrant, JannyGroen, from comments made by from AfshinEllian, highlighted the examples of the Crusaders
(historic) and Palestinian suicide bombers (current). Such examples can be
increased ten-fold (think of Robin Hood, Joan of Arc, and the Indonesians
against whom the Netherlands carried out "police actions").
Even if the legislature succeeds in a
formulation that attracts a majority of the House, we return to the application
in specific cases. When it comes to criminal provisions of this nature, we have
not had good experiences in the Netherlands.
The criminalization of blasphemy (knee-jerk
legislation from the 1930s) resulted in little more than a fiasco for the
prosecuting justice in the "Donkey Trial" against writer Gerard Reve. That criminal provision has recently been correctly
removed from the Penal Code.
With regard to "group defamation"
of Article 137c, and the "spreading of hate" of Article 137d of the Penal
Code, we are still licking the wounds of the Geert
Wilders trial. The Public Prosecutor did not want to prosecute Wilders, but
had to do just that (following a complaint from an activist group) according to
the Amsterdam Court. This was followed by a cascade of procedural skirmishes,
which was on balance, an attack on the capacity and prestige of the judiciary.
Wilders came out the winner: he was acquitted. But if he had been convicted, in
the opinion of very many people, he would also have been the winner, as a
victim of deprivation of free speech.
The experience of the Wilders trial should retrain
Sybrand Buma and others from steering toward a new criminal offence, this time the
"glorification of terrorism." Many potential suspects would simply "enjoy"
a role like Wilders'. So much free publicity (and after a
conviction, also - martyrdom).
Those who believe that the offensive "glorification
of violence" should nevertheless be prohibited by law don't have to wait.
We also have a Civil Code in the Netherlands. This gives any well-organized pressure
group access to the courts for testing any perceived wrongful act (such as the
glorification of terrorist violence), with the aim of achieving a ban and obtaining
monetary penalties. Objectors among the CDA-grassroots
or any grassroots can organize themselves to this end and make an attempt in
the civil court. The court will be spared nothing in this delicate matter, but
the Public Prosecutor should be.
*FeerVerkade was High Council
advocate general and is a professor of law.