John Spencer highlights the implication of the overturning of a French anti-BDS judgement by the European Court of Human Rights in Baldassi v France. Despite Brexit the UK is still party to the European Charter of Human Rights which is adjudicated by the ECtHR which is entirely separate from the EU. So, this judgement limits the ability of Johnson to press forward on his threats to legally limit BDS activity in Britain in support of Palestinian rights.
French president Macron’s attempt to outlaw Boycott Divestment and Sanctions against Israel seems to have been holed below the waterline by a decision handed down in Strasbourg on Thursday by the European Court of Human Rights. The court held that French legislation criminalising BDS, which was strongly backed by pro-Israel groups, violated the right to freedom of expression. It overturned a decision of France’s highest court, the Cour de Cassation, which had endorsed the anti-BDS campaign.
The decision in the case of Baldassi v France has repercussions right across Europe, including the UK, which despite Brexit remains a member of the Council of Europe and thus subject to the ECHR. It poses immediate problems for the German government which has waged a strident campaign against pro-Palestinian campaigners.
The decision is a triumph for the Palestinian-led movement founded in 2005 on the initiative of 170 unions, refugee networks, women’s organisations, professional associations, popular resistance committees and other Palestinian civil society bodies. Inspired by the movement against apartheid in South Africa, BDS urges non-violent pressure on Israel until it complies with international law by ending its occupation of West Bank including East Jerusalem, Gaza and the Syrian Golan Heights; recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality and respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN Resolution 194.
Speaking from Ramallah, Rita Ahmad from the BDS movement said: “This momentous court ruling is a decisive victory for freedom of expression, for human rights defenders, and for the BDS movement for Palestinian freedom, justice and equality. It confirms a 2016 European Union position defending the right to call for BDS against Israel to achieve Palestinian rights under international law. This is a major legal blow to Israel’s apartheid regime and its anti-BDS lawfare. At Israel’s behest, European governments, especially in France and Germany, have fostered an ominous environment of bullying and repression to silence Palestine solidarity activists.”
Baldassi v France
Baldassi v France was an appeal from the French Court of Cassation by 11 pro-Palestinian activists convicted for having stood inside a branch of the Carrefour supermarket in Illzach, eastern France, with trolleys of Israeli goods urging customers not to buy them. Their leaflet said: “You can oblige Israel to respect human rights. Boycott Israeli imports. Buying imported Israeli products amounts to legitimising the crimes in Gaza and endorsing Israeli government policy ” It quoted Archbishop Desmond Tutu, the Nobel prize-winner, who endorsed the BDS campaign. The 11 activists were charged with having provoked discrimination, hatred and violence by distributing the leaflets.
Their acquittal by a tribunal in Mulhouse which found they had not incited racial or antisemitic hatred. This decision was overturned by a French court of appeal in Colmar which also rejected their argument based on articles 7 and 10 of the European convention on human rights. It imposed fines and required the defendants to pay assorted pro-Israeli organisations which had joined in the action against them.
Article 7 prohibits retrospective criminalisation. Article 10 provides: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers… (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ”
Boycott is a Human Right
The European Human Rights Court regarded boycott as above all a means of expressing opinions that involve protest. For that reason a call for boycott which sought to communicate opinions while calling for specific actions linked to them was in principle protected by article 10. The French courts had failed to show that the activists’ criminal conviction was necessary in a democratic society to protect the rights of others.
The court distinguished the case of Willem which had involved a mayor, a public official, who had ordered that municipal caterers should boycott Israeli goods. The present case involved private citizens whose actions and demands concerned a matter of general interest, namely respect for international law by the state of Israel and the human rights situation in the occupied Palestinian territories, and were part of an open contemporary debate both in France and internationally.
The court observed that by its very nature political discourse gave rise to polemics and was often virulent. It remained in the public interest, however, provided it did not degenerate into calls for violence, hatred or intolerance. This was the limit of the freedom which should not be crossed. The point had been made by the United Nations special rapporteur in his report to the General Assembly in 2019 and had also been emphasised by the International Federation for Human Rights and the French Human Rights League which had intervened in the case. Both organisations had urged the court to protect the activists’ freedom of expression by refusing to make an exception to the principle of article 10 in their case.
The Queen’s Speech in December 2019 proposed to introduce a new law criminalising BDS in Britain. Under threat of prosecution, public bodies like universities and local councils will be prohibited from “imposing their own direct or indirect boycotts, disinvestment or sanctions campaigns against foreign countries.”
Johnson trying to tie Britain to Trump
As Douglas Gerrard pointed out in The Independent on January 3, Johnson’s proposal would bring the UK into line with a number of US states whose laws now prohibit BDS. He wrote: “Laws like this are not aberrations: they reflect the inextricable entanglement of the Israeli state with the settlement project. There is a one-state reality in Israel-Palestine, where a single government rules over roughly seven million Jewish citizens and five million disenfranchised Arabs.
“Johnson’s anti-BDS law effectively endorses this reality, bolstering the occupation with international legitimacy as well as financial support. As for where this all might lead, we can look again to the US, where a Texan speech pathologist recently lost her job after refusing to sign an anti-BDS pledge.
“It’s now brutally clear that the Trump administration is following a post-two-state strategy, of which anti-BDS laws are a central part. Where American support for Israel was once at least nominally conditional on the peace process, Trump’s presidency has given Netanyahu – and his allies to the right – free reign in the occupied territories, green-lighting the impending annexation of parts of the West Bank.
“By placing us in alignment with America, this new law presages a similar future for the UK’s Israel-Palestine policy.”