Friday, January 29, 2010

The Highs and Lows of the Freedom of Expression and Religion (Part II)

After finding no legal basis for the prosecution of Geert Wilders, leader of the PVV (Party for Freedom), prosecutors were forced to change course in January 2009 after the Amsterdam Appeals Court decreed that charges may (or “should”?) be brought against the politician for inciting hatred, discrimination and the insult of a group.

Without warning and breaching court procedures the detailed 21-page indictment, listing all his Islam and Koran critiques during interviews and his film Fitna, was amended with new accusations of racism against muslims and Moroccans a week before the trial began. At the start of the trial the Court rendered Wilders’ appeal on the extended indictment was inadmissible as the defence had not produced new facts or evidence. Although the prosecution was deemed to be in the public’s interest, the press was, unusually and unexpectedly, barred admittance and was denied coverage of the pre-trial proceedings. This was interpreted by Thomas Bruning, secretary of the Dutch Society of Journalists, as a “serious incident, hindering the freedom of the press, and lessening the public function of a court of law”. The response of the Court was that it was free to deny admittance to anyone if it so decided. According to Wilders, freedom of speech is on the verge of collapse and he is being prosecuted for his political convictions. He said “[i]f a politician is not allowed to criticize an ideology anymore this means that we are lost, and it will lead to the end of our freedom. However, I remain combative: I am convinced that I will be acquitted.”

On 20 January 2010 Geert Wilders went on trial in Amsterdam. The first day of the trial was spent deciding who would be called as witnesses and whether they would all be heard in public. On 3 February the Court will announce which witnesses will be allowed to testify. It will also decide whether it has jurisdiction on the case.

Wilders’ trial is very similar to the judicial procedures that led to the conviction of Daniel Féret, the former chairman of the “Front National” political party and former member of the Belgian Parliament. Between July 1999 and October 2001 Daniel Féret distributed Front National leaflets during their election campaign which led to complaints by individuals and associations of incitement of hatred, discrimination and violence, filed under a law dated 30 July 1981, which penalized certain acts of racism or xenophobia. In the leaflets Féret argued for repatriation of immigrants, preferential treatment for Belgians and Europeans, conversion of asylum centres into relief centres for homeless people and the cessation of immigrant integration projects. In his party’s manifesto he objected to the Islamization of Belgium, the termination of non-European immigration and the expulsion of unemployed non-Europeans. Féret’s statements bear some resemblance to the statements made by Geert Wilders.

Féret’s parliamentary immunity was waived on the request of the principal public prosecutor at the Brussels Court of Appeal. In November 2002 criminal proceedings were brought against him as author and editor-in-chief of the offending leaflets and owner of the “Front National” website. Amongst other matters the court deemed that the writing of leaflets, the content of which leads to discrimination, segregation, hatred and even violence based on race, colour, nationality or ethnic origin, was not the normal work of a parliamentarian. After a lengthy procedure and several appeals, in April 2006 the Brussels Court of Appeal sentenced Daniel Féret to 250 hours of community service related to the integration of immigrants, together with a 10-month suspended prison sentence. It also declared Féret ineligible as parliamentarian for ten years and ordered him to pay one euro to each of the civil parties.

On 29 March 2007 Féret lodged an application with the European Court of Human Rights. On the basis of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), he alleged that his conviction for the content of his political party’s leaflets represented an excessive restriction on his right to freedom of expression. The seven-member chamber deemed, with three dissenting opinions, that the interference with Féret’s right to freedom of expression had been provided for by law (law on racism and xenophobia dated 30 July 1981) and had the legitimate aims of preventing disorder and of protecting the rights of others. The Court observed that the leaflets presented the communities in question as criminally-minded and keen to exploit the benefits they derived from living in Belgium, and that they also sought to make fun of the immigrants concerned, with the inevitable risk of arousing, particularly among less knowledgeable members of the public, feelings of distrust, rejection or even hatred towards foreigners. While freedom of expression was important for everybody, it was especially so for an elected representative of the people: he or she represented the electorate and defended their interests. However, the Court reiterated that it was crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance. The impact of racist and xenophobic discourse was magnified in an electoral context, in which arguments naturally became more forceful. To recommend solutions to immigration-related problems by advocating racial discrimination was likely to cause social tension and undermine trust in democratic institutions. In the present case there had been a compelling social need to protect the rights of the immigrant community, as the Belgian courts had done. With regard to the penalty imposed on Mr Féret, the Court noted that the authorities had preferred a 10-year period of ineligibility rather than a penal option, in accordance with the Court’s principle of restraint in criminal proceedings. The Court thus found that there had been no violation of Article 10. As there was no request to refer the case to the 17-member Grand Chamber of the Court (Article 43 ECHR) the judgment was finalized on 12 December 2009.

The three dissenting judges deemed the 10-year period of ineligibility out of proportion considering the dangers were speculative only. This way the freedom of expression is sacrificed to the anti-discrimination policy. They also remarked that the statements objected to in the party manifesto are from a political party which is not forbidden. There is also not enough ground to restrict a political debate. For example there is no incitement to violence.

Only time will tell if the Amsterdam Court follows the reasoning of the European Court in the Féret case and define the limits of the freedom of expression. One thing is clear, inciting violence is not allowed.

- The Highs and Lows of the Freedom of Expression and Religion (Pt I)
- Geert Wilders
- Indictment Geert Wilders [Dutch only]
- Geert Wilders Speech at the pre-trial hearing
- Juridische analyse uitspraken Wilders [Dutch only]
- do. Summary [Dutch only]
- Fitna [new English version] juxtaposed Quranic verses with images of terrorism by Islamic radicals.
- Daniel Féret
- ECHR: Affaire Féret c. Belgique (Requête no 15615/07) [French only]
- do. Press release
- E.J. Dommering: Annotatie bij EHRM 16 juli 2009 (Féret) [Dutch only]
- Dirk Voorhoof: Politicus die haat zaait is strafbaar. (Note on the judgment of the European Court in Féret/Belgium) [Dutch only]

Tuesday, January 19, 2010

The US and UK led invasion of Iraq in 2003 violates international law according to the Dutch Davids Committee

The independent investigation of a special committee led by Willibrord Davids, former president of the Dutch Supreme Court investigated the preparation and decision-making process of the Dutch government when it supported its North Atlantic Treaty Organization (NATO) allies, the United States of America (US) and the United Kingdom (UK), at the time they invaded Iraq. The report led to political problems amongst the coalition partners within the present Dutch government. The government will study the report thoroughly before it will give an in depth comment on the investigation.

The report of the Davids committee said that there was no legal mandate for the political support of the Dutch government of the 2003 Iraq invasion. The 550 pages long report with 49 conclusions said that the United Nations Security Council resolution 1441 of 2002 provided no legal mandate for the US and the UK-led invasion of Iraq. [1]
This was contrary to the opinion of the Netherlands at that time. In the Prime Minister's words, 'A new resolution, while desirable, was not legally necessary. [2] During that time, a substantial parliamentary majority backed the Dutch government in their decision to give political support to the US and UK-led invasion of Iraq. The government was convinced that a sound judgment had been made.[3]

According to the Davids Committee, the wording of resolution 1441 does not offer a legal basis for the use of force to influence Iraq: “the wording of resolution 1441 cannot reasonably be interpreted as authorizing individual Member States to use military force to compel Iraq to comply with the Security Council’s resolutions, without authorization from the Security Council”. [4]

According to the Davids inquiry, "the decision to support the invasion of Iraq was based mainly on international political considerations" instead of legal examination. [5] The report says that the purpose of the Iraq war of 2003 was not consistent with Dutch government policy. [6] The Prime Minister was pleased that the Committee “found no evidence whatsoever for Dutch military involvement in the invasion of Iraq”. [7]

Another issue which caused concern is that according to the committee, the Dutch government had not been frank with the Dutch Parliament. It never mentioned that in 2002, prior to the invasion of Iraq, the USA requested The Netherlands to cooperate and to support the mobilization of military force against Iraq. ” [8]

The committee concluded that the Dutch government based their support to the USA and the UK- led invasion of Iraq on public documents and information of the UK and the USA which were found to be flawed. [9] The information of the Dutch intelligence services, the AIVD and the MIVD however were more nuanced than the foreign reports concerning Iraq. The Dutch government chose to emphasize only those aspects of the reports which were in the interest of the position that had already been taken. [10]

In the UK the Chilcot inquiry concerning the decision of the government of the UK to invade Iraq in 2003 is still in progress. According to experts, the conclusions of the Davids committee report concerning information of intelligence services about the use of Weapons of Mass Destruction (WMD) have serious political implications for the UK. The Davids committee report raises questions about the use of the information of intelligence services. The Davids committee questions the decisions of the UK which were not based on a proper legal investigation of the implications of the decision to go to war. ”[11]


Rapport Commissie van Onderzoek Besluitvorming Irak. On page 517 of the report you can find an English summary followed by a conclusion.
Iraq invasion had no legal mandate, says Dutch panel. An article from The Independent.
Iraq invasion violated international law, Dutch inquiry finds. An article from the Guardian.
Chilcot inquiry casts new doubts on Iraq war. An article from the Guardian.
Committee to investigate Dutch decision-making on Iraq. Press releases and news items from the Dutch government.
Balkenende: thorough report by Davids Committee. Press releases and news items from the Dutch government.


[1] See: Iraq invasion had no legal mandate, says Dutch panel. An article from The Independent.
[2] As quoted from: Balkenende: thorough report by Davids Committee . Press releases and news items from the Dutch Government. See also Rapport Commissie van Onderzoek Besluitvorming Irak, Conclusions, par.19, p.530.
[3] As quoted from: Balkenende: thorough report by Davids Committee . Press releases and news items from the Dutch Government.
[4] As quoted from Rapport Commissie van Onderzoek Besluitvorming Irak, Conclusions, par.18, p.530.
[5] As quoted from Ibid, Conclusions,par. 14, p. 530.
[6] As quoted from Ibid, Conclusions, par.7, p.529.
[7] As quoted from: Balkenende: thorough report by Davids Committee
. Press releases and news items from the Dutch Government See also: Rapport Commissie van Onderzoek Besluitvorming Irak, Conclusions, par. 39, p. 532.
[8] As quoted from Ibid, Conclusions, par.33, p.532
[9] See Ibid,Conclusions, par.30, p.531. See also Chilcot inquiry casts new doubts on Iraq war. An article from the Guardian
[10] See Ibid, Conclusions, par.25-32, p.531-532.
[11] See: Iraq invasion violated international law, Dutch inquiry finds. An article from the Guardian. And see: Chilcot inquiry casts new doubts on Iraq war. An article from the Guardian

Friday, January 15, 2010

In memoriam: Sir Ian Brownlie CBE QC (1932-2010)





Sir Ian Brownlie, the second from the right on the photo, taken at the International Court of Justice when he was arguing the Nicaragua-Honduras case for Nicaragua.

The great British international lawyer, Sir Ian Brownlie, died on January 3th 2010, in a car­-accident while on holiday with his family in Egypt. His name is a household word for international law students.

Sir Ian Brownlie was international Chichele Professor of Public International Law (after 1999 as Emeritus) at the University of Oxford and a Fellow of the All Souls College. He was a practicing barrister since the mid 1960s and appeared in several courts, international and national, including the House of Lords, as well before numerous international tribunals, the International Court of Justice (ICJ) in The Hague, the European Court of Human Rights and the European Court of Justice.

Highlights of his career included advising US President Jimmy Carter during the Iranian Hostage Crisis as well as appearing in a series of high profile cases, including the 2006 Bosnian genocide trial, which was heard the by the UN’s top judicial body the International Court of Justice. He also represented Amnesty International at the extradition trial of Chilean coup-leader Augusto Pinochet in 1999.

According to the Guardian, Sir Ian Brownlie was a strong believer in the bar's "cab-rank" principle, and frequently acted for ­unfashionable clients and causes, enhancing his ­formidable reputation for integrity and independence. Brownlie also had his own style of advocacy. His approach was understated and focused on substance, and he was not interested in "hand-waving or flamboyance". He had a knack of quickly getting to the heart of a case and the key issues. In his politics he was a progressive man, and he was often perceived as being on the left. Brownlie was much appreciated by the judges at the ICJ and was treated with the greatest respect, as a major figure who made a unique contribution to the progressive development of international law.

Over the years he helped shape public international law through numerous notable publications and practical achievements. His first book, International Law and the Use of Force by States (1963), identified the United Nations Charter as a significant new moment for the rules governing military force.

Most famous among his publications is perhaps his manual on public international law, ‘Principles of Public International Law’, which first came out in 1966 and was published in its 7th edition in 2008, and which – rightly – has been called ‘the most well established and authoritative textbook on international law on the market' (See for the latest book review on studentlawjournal). Now in its seventh edition, and one of the most read treatises on the subject, it has been translated into Russian, Japanese, Portuguese, Chinese and Korean. Almost every international lawyer and judge has referred to this classic text. Brownlie's other collection of writings touched on a range of varied topics, including international human rights law, African boundaries, the law of state responsibility, human rights and the rule of law.

Peace Palace Library's collection on books and articles by Sir Ian Brownlie