Supreme Court: Replacing Star of David on Israeli flag with a cockroach is hate speech

The Supreme Court upheld a hate speech conviction against a man who attended a protest against Israel six years ago, and displayed an Israeli flag where the image of a blue cockroach was used instead of a Star of David. The Court of Appeal previously convicted the man for publicly insulting Jewish people as a segment of the population. He was handed a fine of 350 euros, which was conditionally suspended, as part of the earlier verdict.

The Supreme Court affirmed both the verdict and the suspended fine on Tuesday. The man had filed the further appeal with the Court, which is the highest for criminal cases in the Netherlands.

The man demonstrated against Israel on June 7, 2018, at Dam Square in Amsterdam. During the protest, he sparked a confrontation with people who disagreed with him. He then pulled out the flag with a cockroach on it from his bag.

One of the people to whom he showed the flag had a grandparent who died in the Holocaust. That individual pressed charges against the man.

The District Court that first heard the case acquitted the man. "The court acquitted the suspect because, in the court's opinion, the suspect's statement was not unmistakably directed against a population group, but against the State of Israel. That is not criminally punishable," the Supreme Court noted.

"On appeal, the court did convict [him] for insulting Jews as a group because of their race. The court imposed a conditional fine of 350 euros." His attorney filed the appeal, and defended the client saying it was both a protest against Israel, and the protest was a form of protected speech.

In affirming the conviction, the Supreme Court pointed out that group insult is only protected speech under the European Convention on Human Rights when it either contributes to public debate, or is a form of artistic expression. It is not protected speech under European Law when the expressed thought is "unnecessarily offensive," the Supreme Court said.

The court then used the man's own reasoning against him, as he affirmed that he wanted to use the flag to irritate people with an opposing view point. Or, "in his own words, to give a 'fuck you' to them," the Court ruled.

In addition, they believe that a cockroach in the spot of the Star of David means that Jewish people are being likened to cockroaches. The court determined this association is partly evoked by the well-known historical background of World War II, in which Jews had to wear a Star of David and were killed ‘as if they were vermin,’” the Supreme Court wrote in a statement about the appellate ruling. The high court agreed with the lower court's explanation.

The Supreme Court also said that the suspended fine was proportionate and "not so drastic as to have a 'chilling effect' on other people who want to exercise their right to demonstrate."

The man's lawyer said they will appeal the decision to the European Court of Human Rights. He claims that the criticism was aimed at a country and not at a group of people.