Lawfare against Arno Klarsfeld – and lessons to be learned from the situation in France.

Serge Klarsfeld is known as someone committed to keeping the memory of the Holocaust alive and who in the past was involved in frequent campaigns to bring to justice some of the many criminals of Nazi Germany and their counterparts in other countries – annexed by the so-called Third Reich or allied in various ways with it – who were able to escape punishment for their crimes for realpolitical and other reasons.  He also has played a key role in making possible the identification and the reconstruction of the life stories of as many as possible of the Jewish men, women and children deported to the death camps.

Serge Klarsfeld helped to found the Association of the sons and daughters of Jews deported from France (Association des fils et filles des déportés juifs de France, in which his son Arno, following in his father’s footsteps, also plays a prominent role.  The latter, who qualified as a lawyer and who has joint French and Israeli citizenship, is also an activist who fights against contemporary manifestations of anti-Jewish hostility, as well as racism in general.

In his public activities Arno Klarsfeld  has sometimes behaved flamboyantly – as, for example, when he appealed for massive demonstrations in front of theatres allowing anti-Semitic comedian Dieudonné to perform – so as to produce a situation in which the authorities would be obliged  to ban the performances  in question on law and order grounds.  In reaction to this campaign Karim Achoui, the scandal-ridden founder of an organisation presenting itself as fighting for the civil rights of Moslems (Ligue de défense judiciaire des musulmans), tried to get Klarsfeld junior disbarred.

On the 9^th January 2014 Arno Klarsfeld was interviewed by iTélé.  In the course of this interview he described as follows the sources contemporary antisemitism in France, choosing his words with care:  “No, France is not antisemitic; there is the hard core of the extreme right which is that way inclined – vigorously so – a part of the ultra-left and the Islamists; and a section of the young people living in the suburban (ghetto) areas (“une partie des jeunes de banlieue)”  For saying essentially the same thing as serious observers and analysts of the current (since the end of the 1990s) wave of anti-Jewish hostility are saying (indeed what Manuel Valls said in his parliamentary speech of the 13^th January 2015) this anti-antisemitism activist found himself being sued for libel.

However impressive the massive participation by non politicians in the 11^th January solidarity rallies was,  the fact remains that France has some of the most restrictive laws on press freedom in Europe, which coexist with sincere attachment to fundamental freedoms.  The sweeping nature of the legislation relating to the so-called “droit d’intimité” – so-called “privacy laws” – periodically receive media coverage and/or are analysed by more or less informed observers of the interaction between politics and the media in the French Republic  What is not covered so often is the strictness of France’s defamation laws, when truth is by no means always a defence – and not only when these legal provisions concerning the “droit d’intimité” come into play.  In order to be able to prove “good faith”, essential to the successful defence of a libel action, the author or authors of the offending publication must show – in addition to demonstrating that what is being alleged has a serious basis and/or results from serious research – that there was no personal animosity motivating  what has been published, that it serves some social or public interest and that any negative terms used regarding the complainant or complainants are measured and directly correlate to the facts alleged.

Moreover – and the libel action against Klarsfeld is a good illustration of this, even if he was fortunate enough to have the help of a support group and to see this action end up by being (recently) dismissed – once a complaint has been accepted and presented to a juge d’instruction by a competent lawyer the latter has no discretion to reject it, however unfounded this complaint.  (A number of commentators have asked how “jeunes de banlieue” can be put on the same footing as religious or ethnic communities legally recognised as collective entities entitled to obtain redress in the courts).  This is not to mention the separate criminal offense of “injure publique” which has far more sweeping applications than the relevant provision of Section 5 of the 1986 Public Order Act ever did, even before its amendment.  Yann Moix and the Figaro were successfully prosecuted in 2010 for an article which vigorously criticised the independent cinema chain Utopia for its virulent anti-Israelism and in particular for an article which compared the alleged crimes of the Israeli Defence Forces since the War of Independence to those of the murderous para-military groups (“milices”) which flourished during the Nazi era and the Vichy period.  (He called them the trendy left-wing, sandal-wearing, organic food eating equivalent of Brasillach.)

Media reports about arrests carried out in various places in France in recent weeks have often mentioned the existence of the criminal offence of “apologie du terrorisme”, the defence of specific terrorist crimes – which goes further than the provisions in the  2006 Terrorism Act which are said to punish the “glorification” of the aforementioned crimes.  It is also a crime to justify a wide variety of other criminal offences, with the term “apologie” used in these cases as well.   When this is applied to acts characterised rightly or (often) wrongly by official national or trans-national bodies as “war crimes”, or “crimes against humanity”, there is much room for abuse.  During last summer’s military operations, “Protective Edge”, aimed at neutralising, as far as possible, the new threat of attack tunnels penetrating into Israel, as well as at countering the massive numbers of missiles and rockets being fired – which without a fully equipped Iron Dome system would have produced thousands of casualties – there were calls to prosecute those defending Israel’s actions, who were accused of committing this offence.

However understandable their wish to do so, the various officials in representative Jewish bodies should think twice before associating themselves with campaigns to get politicians to impose even more restrictions upon the media  – both because of the blessings which derive from free societies, however flawed, and because of the way such extra restrictions can and will be misused.