Confronting Intolerance Today: Tolerance and the rule of law

By Herman Bolhaar, Procurator-General and Chairman of the Netherlands Public Prosecution Service.

It is 80 years ago this year since Anne Frank, her parents and sister fled from Frankfurt to Amsterdam. In 1933 the Nazis had just seized power in Germany and the growing threat to Jews forced the Frank family to emigrate to the Netherlands.

Why the Netherlands? Perhaps they were influenced by the country’s age-old reputation for tolerance and liberal thinking. Since 1983, that tolerance has been enshrined in article 1 of the Dutch Constitution: ‘All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.’

It goes without saying that the Netherlands takes this self-imposed duty very seriously. To give an example: in cases involving crimes with a racist motive, the Public Prosecution Service generally recommends a sentence that is between 50% and 100% more severe than the norm. It also has its own expertise centre where public prosecutors can seek advice in cases of discrimination, which are often complex. Last year the centre registered 131 criminal cases involving discriminatory utterances or acts (not counting ‘hate crimes’). 28% of these discrimination cases took the form of anti-Semitism.

By prosecuting people accused of these and other forms of discrimination, public prosecutors ensure that article 1 is upheld. Some cases are simply so serious that the offenders must be prosecuted. But the criminal justice system also has its limitations. Its main function is to acknowledge when norms have been transgressed. In this way it helps to keep those norms alive. But that’s not enough. We also need to ensure that such norms are part of the public debate. Can the Public Prosecution Service play a role here? Sometimes it can. Take the following two examples.

An Amsterdam rabbi wearing a yarmulke went with a hidden camera into a largely Moroccan neighbourhood. He sent his footage (of youths giving the Nazi salute) to a TV programme. He also lodged a criminal complaint, and the Public Prosecution Service began examining the case. After the programme was shown on television, the rabbi was approached by a Moroccan outreach worker. The two hit it off, and they organised a joint meal in the community centre with the aim of establishing dialogue between the Moroccan and Jewish communities. It was a big success.

The outreach worker also mediated in a meeting of the rabbi with the youths who were caught on camera. It went well, and together they visited the Anne Frank House. The boys were deeply affected and realised that they had gone too far. After the visit they volunteered to take part in a memorial ceremony for victims of World War II. The Public Prosecution Service – which had not yet decided on whether or not to prosecute – was now faced with the question of whether any sanction would be meaningful. Ultimately, with the approval of the rabbi, it was agreed that the case would be dropped.

Another case involved a young Turkish man who had made anti-Semitic remarks on camera. He was brought before the public prosecutor, who explained to him why his actions were criminal. A discussion was then arranged between the young man, a rabbi and a youth worker. Together they visited the Anne Frank House. In this case too, the experience made a deep impression on the boy, who said he wanted to share this new insight with others in his community. He undertook to follow a training course so that he could teach others about anti-Semitism and discrimination. Raising awareness in this way – awareness that has a knock-on effect – is something that the Public Prosecution Service could never have achieved simply by imposing a penalty. The appeal court recently ruled that this crime had been addressed sufficiently and that prosecution was unnecessary.

What’s more, the training course provided the young man – who had lost his work placement because of all the media attention generated by his remarks – with prospects for the future. It is important, when combating discrimination, to combine punishment with positive stimuli. Particularly because the offenders are themselves often the victims of discrimination, for instance because they are refused entry to nightclubs, or find it har to get jobs.

Dutch society as a whole has a moral duty to take a more proactive stance in this respect. Tolerance in a homogenous country is relatively straightforward. It gets trickier when society becomes truly diverse. This is the situation that the Netherlands is now faced with – like so many other countries around the world. The challenge is to create room for diversity and yet maintain the cohesive elements that every society needs, including prosecution where appropriate. It is a complex issue, for which there are no simple answers.

Meanwhile, everyone in the Netherlands must be able to count on the government and the Public Prosecution Service to enforce article 1 of the Constitution and thus actively uphold the norm. And conversely, the government must be able to count on people taking responsibility for their fellow citizens and for their surroundings. Tolerance, democracy and the rule of law aren’t issues that you can delegate to professionals. They are something we must all strive to uphold.

Translated from Dutch.

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