Communication No. 41/2008
UN Committee on the Elimination of All Forms of Racial Discrimination
The petitioners argued that the decision of the Norwegian Court not to convict a speech supporting Adolf Hitler and Rudolf Hess was a violation of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee agreed.
Date: 15 August 2005
Description of applicant(s): Association
Brief description of facts:
In 2000, a group known as the ‘Bootboys’ organized and participated in a march in commemoration of the Nazi leader Rudolf Hess near Oslo. Some 38 people took place in the march, which was routed over 500 meters through the centre of Askim and lasted 5 minutes. The participants wore ‘semi-military’ uniforms and a significant number allegedly had criminal convictions. Many of the participants had their faces covered. The march was headed by Mr. Terje Sjolie. Upon reaching the town square, Mr. Sjolie made a speech, in which he stated, amongst others:
Our dear Führer Adolf Hitler and Rudolf Hess sat in prison for what they believed in, we shall not depart from their principles and heroic efforts, on the contrary we shall follow in their footsteps and fight for what we believe in, namely a Norway built on National Socialism …”
The authors claimed that the immediate effect of the march appeared to be the founding of a Bootboys branch in nearby Kristiansand, and that for the next 12 months the city was ‘plagued’ by what the authors describe as incidents of violence directed against blacks and political opponents.
In 2002, the Norwegian Supreme Court overturned a previous conviction of Mr. Sjolie, finding that penalizing approval of Nazism would involve prohibiting Nazi organizations, which it considered would go too far and be incompatible with the right to freedom of speech.
The authors contend that this decision lead to a violation of, amongst others, Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.
(Alleged) target(s) of speech: Jews
The Committee’s assessment of the impugned speech:
The Committee found that the statements made by Mr. Sjolie constituted ideas based on racial superiority or hatred and thus were a violation of Article 4.
Important paragraph(s) from the decision:
10.3 The Committee has noted the State party’s submission that it should give due respect to the consideration of the Sjolie case by the Supreme Court, which conducted a thorough and exhaustive analysis; and that States should be afforded a margin of appreciation in balancing their obligations under the Convention with the duty to protect the right to freedom of speech. The Committee notes that it has indeed fully taken account of the Supreme Court’s decision and is mindful of the analysis contained therein. However, the Committee considers that it has the responsibility to ensure the coherence of the interpretation of the provisions of article 4 of the Convention as reflected in its General Recommendation No.15.
10.4 At issue in the present case is whether the statements made by Mr. Sjolie, properly characterized, fall within any of the categories of impugned speech set out in article 4, and if so, whether those statements are protected by the ‘due regard’ provision as it relates to freedom of speech. In relation to the characterization of the speech, the Committee does not share the analysis of the majority of the members of the Supreme Court. Whilst the contents of the speech are objectively absurd, the lack of logic of particular remarks is not relevant to the assessment of whether or not they violate article 4. In the course of the speech, Mr. Sjolie stated that his people and country are being plundered and destroyed by Jews, who suck our country empty of wealth and replace it with immoral and un-Norwegian thoughts’. He then refers not only to Rudolf Hess, in whose commemoration the speech was made, but also to Adolf Hitler and their principles; he states that his group will ‘follow in their footsteps and fight for what (we) believe in’. The Committee considers these statements to contain ideas based on racial superiority or hatred; the deference to Hitler and his principles and ‘footsteps’ must in the Committee’s view be taken as incitement at least to racial discrimination, if not to violence.
ICERD Article: 4