Last year, I attended the Dutch trial of the century: that of Geert Wilders, leader of the third-largest party in the Dutch parliament. Sparking the charges against Wilders were about 50 statements that he had made about Islam. Three of the most widely circulated, from newspaper columns that Wilders wrote, will give an idea of the rest: The heart of the problem is the fascist nature of Islam, the sick ideology of Allah and Mohammed as laid down in the Islamic Mein Kampf: the Koran; We have a huge problem with Muslims which crosses boundaries in every field, and we come up with solutions that wouldnt make a mouse go back into its cage; and Islam is a violent religion. If Mohammed were living here today, Parliament would instantly agree to chase him out of the country in disgrace.
Wilders was charged under articles 137c and 137d of the Dutch penal code, which forbid group insult, hate speech, and incitement to discrimination. The trial was hugely controversial, partly because the articleswhich were passed in the 1930s as an attempt to halt rising anti-Semitismhave rarely been invoked. Further, the fact that the leader of a powerful anti-establishment party was standing trial for his opinions inevitably cast a political shadow over the affair.
The trial dominated public debate in the Netherlands for months and captivated Europe as well. It will probably continue to do so for at least another year, because Wilderss lawyers successfully appealed for a declaration that the judges in the Amsterdam District Court had appeared biased. The trial will now have to start all over again. What follows is an account based on my firsthand observations of this tawdry episode.
Wilderss prosecution came about in a most unusual way. The public prosecutor, Paul Velleman, initially refused to prosecute him because, in his view, Wilderss statements did not break the law. In refusing to press charges, Velleman acknowledged that Wilderss statements may have been insulting for Muslims, but concluded that Wilders was not guilty of lawbreaking, since the statements were made in the context of public debate. Velleman added that Wilders didnt incite hatred or call for discrimination, as his comments concerned Islam the religion and not Muslims as human beings. The relevant laws did not forbid merely criticizing a religion, he maintained.
But Gerard Spong, a prominent defense lawyer and critic of Wilderss, appealed Vellemans decision to the Court of Appeal, which, according to Dutch law, can order the prosecutor to prosecute anyway. On January 21, 2009, thats just what it did. After stating that they disagreed with the public prosecutor, the courts three judges concluded that Wilderss statements were punishable under Dutch law and added that in the past, others, including politicians, have been convicted for less. (In an accompanying footnote, the court referred to only one case.) By ruling that Wilders abuses the liberty of expression and incites discrimination and hatred against a group of people or a community of believers, the Court of Appeal scandalously exceeded its authority. The presumption of innocence is, after all, one of the central principles of a fair trial. It is not up to the Court of Appeal to decide whether the accused is guilty, only to decide whether a prosecution is warranted. If Wilders is ever found guilty and chooses to appeal the verdict, he would have to appeal to a court that had pronounced his guilt before trial.
After the Court of Appeals ruling, the only sensible decision for the District Court in Amsterdam, where the trial would take place, was to declare the public prosecutor unreceptive from the start and dismiss the case. This, however, did not happen. So in January 2010, almost a year after the Court of Appeals ruling, a preliminary session to decide the course of the trial commenced in the District Court.
During this preliminary session, Wilderss main defense lawyer, Bram Moszkowicz, requested that a number of witnesses be allowed to testify about Islam. The court rejected most of these. Some were unlikely to appear in court anyway, such as Ahmed Jannati, chairman of the Guardian Council of Iran; Yusuf al-Qaradawi, ideologue of the Muslim Brotherhood in Egypt; and Ayatollah Yazdi, a former student of Ayatollah Khomeini and currently a spiritual leader of Islamic fundamentalists in Iran. But others might have appeared and rendered fascinating testimony backing up Wilderss assertion that Islam was fascist: Mohamed Bouyeri, the Islamist murderer of filmmaker Theo van Gogh; and Fawaz Jneid, imam at the radical As-Soenah mosque in The Hague, who had cursed van Gogh and his colleague Ayaan Hirsi Ali shortly before the former was killed and the latter had to flee the country for safety.
In the end, the court accepted only three of Wilderss witnesses, whose testimony it heard before the trial began in the fall: Hans Jansen, an Arabist and writer of numerous books on Islam; his former student, Simon Admiraal; and Wafa Sultan, a U.S.-based writer and journalist who grew up in Syria. Admiraal, the first to be heard, stated that Islam is an ideology. This is as clear as the sun at noon. He also testified against the charge that Wilders had incorrectly translated Koranic verses in his film Fitnaabove all, sura eight, verse 60, which opens the film. In Fitna, the verse is translated as follows: Prepare for them whatever force and cavalry ye are able of gathering to strike terror, to strike terror into the hearts of the enemies, of Allah and your enemies. Admiraal maintained that this translation was correct, in spite of claims by other Dutch Arabists that the Arabic original would have been betterthat is, less Islamophobicallytranslated as merely to scare them off.
In his testimony, Jansen emphasized that Islam prides itself on the destruction of the Christian and Zoroastrian empires that flourished in the Middle East before the seventh and eighth centuries. No moderate Islam exists, Jansen said; moderate Muslims do exist, but they do not have scripture on their side. When Jansen pointed to passages in the Koran instructing Muslims to kill unbelievers, beat their wives, embark on jihad, and so on, Velleman asked Jansen to concede that such things could also be found in the Bible. Jansen, who had brought a Bible to the trial in anticipation of such a question, presented it to Velleman and asked him to identify the passages he had in mind. Velleman declined, murmuring that these things would perhaps be addressed later.
Wafa Sultan, who testified from the United States through a video connection, said that Islam is the greatest problem the world has to face. The recipient of many death threats herself, Sultan indicated that inequality between men and women, aggression toward unbelievers, and the lack of ambition and scientific development found in the Islamic world were all rooted in the essential teachings of Islam.
The trial proper commenced on October 4, 2010. An army of police guards and armored police cars surrounded the courthouse, and accredited visitors were checked extensively before entering. (Its worth noting that while Wilderss remarks have aroused no social disorder of the sort that the Dutch laws were intended to prevent, he himself receives continual death threats and lives under permanent police protection.)
First the court, consisting of three judges, read out the Wilders utterances that sparked the charges. Then the judges, referring to an occasion when the politician had allegedly said that if all the hateful verses in the Koran were removed, the book would be reduced to the length of a Donald Duck comic, asked why it was necessary to bring the famous Disney character into it. Wilders invoked his right to silence. One of the judges then remarked that it was said of Wilders that he was good at stirring up controversy and then avoiding discussion. It seems as though you are doing that again here, the judge added.
Feeling that the remark represented an inappropriately damning reflection on Wilderss conduct and character before any guilt had been established, the defense appealed to the courts challenging committeea component of every Dutch courtto complain that the judges had displayed what Dutch law calls the appearance of bias. Wilders broke his silence to say that he felt as though he were confronting his left-liberal political opponents in parliament, rather than objective judges in a court of law (cleverly referring to recent research that showed that a majority of Dutch judges voted for left-liberal parties). The appeal was turned down; while the judges remark was an unfortunate choice of words, the committee ruled, it did not reveal partiality.
The trial therefore continued with the same judges, and in an icy atmosphere. Another clash came just before Fitna was shown in court. Moments before the screening, a Muslim woman attending the trial requested permission to leave the court because she did not want to see it. I can imagine that, one of the judges responded. I find it unimaginable that you can imagine that, Wilders said. The judge defended himself by claiming that he merely could imagine that someone does not want to see a film and that his remark was not a judgment on the films content.
After Fitna was shown, Moszkowicz demanded that Vellemans earlier decision not to prosecute Wilders be read aloud. After it was read, Velleman found himself in a particularly difficult position. If he now demanded that Wilders be convicted, it would be inconsistent with his own earlier judgment; if he argued for an acquittal, it would make the Court of Appeals decision, suggesting that Wilders was guilty, look foolish. Bravely, he stuck to his earlier judgment. Criminal law only has a limited role to play in society, he said, and the public prosecutor does not want to make statements on matters of politics.
Velleman addressed the three charges against Wilders one by one. The first, recall, was that Wilders had insulted a group, which is forbidden in the Netherlands (as opposed to insulting symbols, books, or religions, which is allowed). However, Velleman pointed out, group insult was punishable only if aimed at individuals; if directed at intrinsic qualities of the individuals concerned; and if its contribution to the public debate was unnecessarily grievous. Most of Wilderss statements were not aimed at individuals, Velleman said. And those that were aimed at individuals concerned their behavior, not their intrinsic qualities. (An example was Wilderss statement that those Moroccan boys are really violent. They beat up people because of their sexual disposition, which referred to a particular action of the people in question, not to their intrinsic quality of being Moroccan.)
The second charge was hate speech. A statement formed a punishable incitement to hatred, Velleman continued, when it suggested an unavoidable conflict between people on the basis of their inherent nature, not their conduct. Claiming that there was an intrinsic conflict between Islam and the West, as Wilders had, would thus not be illegal, because Islam is merely a system of thought; things would presumably be different if Wilders had suggested that something in Muslims inherent natures would lead inevitably to conflict with others. But in fact, Velleman reminded the court, Wilders had once said, I still only have something against the religion, not against the people; he had also said that if Muslims assimilated, they would, in his opinion, be equal citizens, not a millimeter less than you or me. Further, Velleman pointed out, when Wilders had argued that there is a battle going on, and we must defend ourselvesanother statement being held against himhe was clearly referring to an ideological, not physical, battle. Thus on the charge of hate speech, Velleman concluded again that Wilders ought to be acquitted.
Velleman likewise demanded that Wilders be acquitted on the third charge, incitement to discrimination. Here, the proposals of Wilderss Freedom Party to ban the Koran and Muslim immigration were in question. But these proposals did not constitute incitements to discrimination, Velleman said, because the party did not call on any private person to act on them; rather, it called on the legislature to implement them. The proposals might have been insulting or offensive, but they did not constitute an infringement of the law.
In Dutch law, the fact that the prosecutor demands an acquittal does not mean that the judges must acquit. So the trial continued. A number of Muslim organizations and some individual Muslims testified in court, claiming that they felt fear, anger, grief, and humiliation because of Wilderss words and the social climate of intolerance that they had engendered. Though the parties believed that the harm that they suffered was of an immaterial nature, they demanded that Wilders pay them the symbolic sum of one euro. (In Dutch law, criminal guilt is assumed to create civil liability; to streamline the administration of justice, civil claims can be made during criminal trials even before the fact of guilt is established.)
One of the plaintiffs lawyers argued that Moroccans and other non-Western immigrants felt reduced in their humanity by Wilderss crudity. Another lawyer claimed that Wilders had besmirched the good name of the Moroccan community. Among the injured parties who testified was Mohamed Rabbae, former leader of a small green-left party in parliament who, during the 1994 election campaign, supported a ban on Salman Rushdies Satanic Verses because of its insulting character to Muslims. Rabbae warned the court that Moroccan Dutchmen found a reason for their criminal behavior in the racist views of people like Wilders. Rabbae also cited psychiatric research showing that incidence of schizophrenia among young Moroccans was seven times higher than among the rest of the population; the reason, he said, was that they dont feel welcome any more.
Because none of these claims was very convincing, the defense lawyer felt that he hardly needed to respond to them. He emphasized instead that the more truth Wilderss statements contain, the more freedom he should be given to make them. His trial, the lawyer said, should be called Dont shoot the messenger.
With this, the trial would normally have neared its end. On the morning of October 20, the concluding statements of both sides were scheduled to be heard, after which the judges would withdraw to deliberate. But on that day, the daily newspaper De Pers published an article revealing that just days before Hans Jansen gave his testimony, he had been present at a dinner party at which one of the judges of the Court of Appeal was also a guest. Moszkowicz demanded that Jansen, who was present in court, be called to the stand to determine whether any attempts had been made to influence him. The court refused this request; Moszkowicz then appealed to the challenging committee on the grounds that the judges appeared biased. This time, the committee agreedpartly because of the earlier incident involving the Muslim woman, the Fitna screening, and the sympathetic judgeand the judges were dismissed from the case. Now, a team of new judges will have to try the case all over again. The preparation for a new trial may take a year.
The higher courts decision that the lower courts judges had appeared biased has damaged the reputation of the Dutch judiciary. There are no jury trials in Holland; and if judges were incapable of remaining fair-minded when, for the first time in history, the eyes of the world were upon them, what must they be like when no one is looking?
The Wilders trial has also inflamed feeling everywhere in Europe about the place of Islam in European society. In France, the burqa has been banned; in Switzerland, the prohibition of new minarets was passed by referendum; in Sweden, the results of the elections last September were called a catastrophe by Muslim leaders because of the gains of the Swedish Democrats, an anti-Islamic party; in Germany, a party officially inspired by Wilderss Freedom Party has been organized. Almost certainly, then, the Wilders trial backfired, and not just in Holland.
Yet this may only be the beginning. Now that new trial judges will be appointed, it is possible that new witnessessuch as Mohamed Bouyeri, the murderer of van Goghwill testify, verifying Wilderss claim that Islam is a fascist political ideology rather than a religion. Not only Wilders but Islam itself may thus stand trial in Holland. Opponents of Islamism have long said that the trial should never have been held in the first place; but apologists for Islamism may come to regret that they ever pressed for it.
Thierry Baudet, a lawyer and historian, is a research fellow at the Department of Legal Philosophy at the University of Leiden in the Netherlands.