Ronnie Kasrils, the Minister of Intelligence, requested an opinion from the South African Human Rights Commission as to whether statements that he had made amounted to hate speech as defined in the Constitution. His comments were characterised as hate speech by Helen Suzman and by the South African Jewish Report (SAJR). We requested further details and copies of the statements from Mr Kasrils and afforded both Mrs Suzman and the SAJR an opportunity to make further representations. We are grateful to them for acceding to our request. It is apparent from their comments that they find Mr Kasrils’ comparisons offensive and disturbing.
In a series of articles (the focus here will be on an article entitled ”David and Goliath — Who is who in the Middle East” published in Umrabulo in November 2006, a summarised version of which appeared in the Mail & Guardian on September 1 2006), Mr Kasrils robustly criticises what he perceives to be disproportionate, excessive and unjustified measures adopted by the Israeli government in response to attacks, threats and perceived threats.
In the M&G article, he focuses on the responses to attacks from Hamas in Gaza and on the attack on Lebanon after the abduction of Israeli soldiers. The article details the disproportionate and excessive nature of the force used and reflects on the consequences and costs to both Gaza and Lebanon.
Mr Kasrils concludes that Israel lost the war in Lebanon both on the ground and on the airwaves and has been taught a lesson. He argues that the world’s witnessing Arab children being dug out of the rubble of destroyed buildings has led people to say: ”Now Jews too have behaved like Nazis.”
He refers to a comment, similar in content, made by the former Israeli Cabinet minister, Ahron Cizling, in 1948 after the Deir Yassin massacre.
He concludes by saying that ”like Joostein Gaarder we must call baby killers ‘baby killers’, and declare that those using methods reminiscent of the Nazis need to be told that they are behaving like Nazis”.
In the much more detailed piece in Umrabulo, Mr Kasrils describes the Nazi Holocaust as the most horrific act of genocide in modern history, draws parallels between the Jews of Nazi Europe and the indigenous Palestinians who have become homeless refugees, reflects more broadly on the conflict of the Middle East and argues that Israel has and continues to adopt methods that are aggressive and disproportionate in dealing with threats and perceived threats against itself.
In our findings in Freedom Front v South African Human Rights Commission, we described the importance of freedom of expression in our society: ”Freedom of expression constitutes one of the essential foundations of any democratic society. It has been universally recognised in all democracies as pivotal to the growth and enhancement of the constitutional state and vital to the progress and development of humankind …
”The necessity to protect the freedom of expression and the rights of the media cannot be overstated in a democracy such as ours which is still in its infancy and which has recently emerged from decades of repression, censorship and prescribed conformity. The robust debate of ideas, the lifeblood of any constitutional democracy, must be safeguarded. Thus any reflection on the right to freedom of expression must have regard to its importance to the constitutional state.”
Section 16(2) of the Constitution is an internal modifier of some significance. It provides that the constitutional protection afforded to freedom of expression does not extend to propaganda for war, incitement of imminent violence and the advocacy of hatred.
Thus to accuse a person of engaging in hate speech is in effect to accuse them of acting in a manner that is contrary to the broader objectives and values of our Constitution. In the Freedom Front award we found that: ”In terms of section 16(2)(c), expression will amount to hate speech if it is advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm” (our emphasis). The harm must be caused by the advocacy of hatred on the stipulated grounds. These requirements are interrelated and must be considered cumulatively when interpreting section 16(2)(c) of the Constitution.
Thus expression will only amount to hate speech if it involves the advocacy of hatred.
These comments provide an appropriate basis to determine when expression degenerates to such a level that it can be classified as the advocacy of hatred. The issue is whether Mr Kasrils’s statements and comments are of an extreme nature and whether they advocate and imply that Jews/Israelis are to be despised, detested, scorned, denied respect and made subject to ill-treatment on the basis of their religious or national affiliation.
In our opinion, the comments made by Mr Kasrils in the articles referred to above do not amount to the advocacy of hatred. The obvious and true purpose of the article is to condemn what is perceived as disproportionate, excessive and counterproductive reprisals by the Israeli government. He is participating in a legitimate political debate. The M&G article concludes by calling on the Israelis to see reason and negotiate peace. In the Umrabulo article, Mr Kasrils criticises the Israeli government for being a danger to its neighbours and for imperiling its own people by fermenting war instead of seeking peaceful diplomatic solutions. The article in Umrabulo is a researched piece which seeks to make the point that the Israeli reaction was illegal and caused catastrophic destruction of Lebanon. The article argues that this was a part of a pattern of similar conduct engaged in by the state of Israel for many decades.
Israeli reaction has ignited worldwide debate and controversy as to whether it acted illegally and in violation of international law. Amnesty International has called for an investigation into the conduct of both Israel and Hizbullah regarding the conflict in July 2006. Comment on this issue is not only legitimate but also vital and necessary. It is the very sort of speech that is protected by section 16 of the Constitution.
The issue is whether the comparison between the reprisal methods adopted by the state of Israel and those used by the Nazis convert legitimate debate into hate speech. We think that it does not. The M&G article condemns the killing of Arab children by actions of the Israeli army and then asks the question whether Jews are behaving like Nazis. In effect, Mr Kasrils concludes by saying that as Israel is using methods reminiscent of Nazis, it needs to be told that it is behaving like Nazis.
The comparison with Nazism is extreme, but in the context of the article, it is clearly designed to demonstrate the extreme distaste of the writer towards the reprisal methods of Israel. A sober reading of the articles reveals trenchant criticism of the methods adopted by Israel and an explicit plea for diplomacy and peace talks.
The Nazi comparison has elicited the interpretation that ”comparing Israelis with Nazis implies that, just as the Allies had to destroy the Nazis to save the world from the most evil force in history, so Israel must be destroyed as an evil entity” (SAJR, November 9 2006).
Mr Kasrils’ call for peaceful negotiations is not compatible with the interpretation that he is calling for the destruction of the state of Israel. Neither can his comments reasonably be associated with Holocaust denials.
A contextual and holistic analysis of the articles indicate that the probable intention in using the Nazi comparison was to provoke and shock in the hope that the Israeli government would change its methods and adopt a different tack which could lead to a sustained peace. From an objective perspective and read in context, the articles do not advocate and imply that Jews/Israelis are to be despised, detested, scorned, denied respect and made subject to ill-treatment on the basis of their religious or national affiliation.
It is understandable that the comparison would cause great unhappiness and concern within the Jewish community. But if the Jewish community and others are of the view that the comparison is odious, unjustified and illogical, then it is preferable for them to articulate these sentiments fully and robustly engage in a debate of ideas.
Classifying the comparison as hate speech may have the effect of chilling the legitimate expression of ideas, may unacceptably stifle political expression and will effectively remove the debate and exchange of views from the public arena.
The opinion published above, edited for length, is the official stance of the South African Human Rights Commission. Karthy Govender is an SAHRC commissioner and a professor of law at UKZN