Today, 11 June 2020, the European Court of Human Rights found in favour of the right of human rights activists to mobilise for Palestinian liberation, ruling that their peaceful protests in advocating for the Boycott, Divestment and Sanctions (BDS) of Israel, is protected under Article 10 of the European Convention on Human Rights. Shawan Jabareen, General Director of Al-Haq stated: “Today we saw human rights brought to the precipice, and the right to freedom of expression and respect for the rule of law, won out. This is a turning point for our people, whose peaceful protest against Israel’s 72-year Nakba and 53-year military occupation and colonisation of our lands, forcible transfer and killing of our people, can no longer be silenced. Today is a victory for the freedom of expression of human rights activists, advocating for the right to self-determination and liberation of the Palestinian people”.

1. Background to Boycott Divestment and Sanctions (BDS) campaign

In 2016 the Palestinian Human Rights Organizations Council noted the right of all individuals to participate in and advocate for boycott, divestment, and sanction in the face of international inaction in the face of Israel’s continuing and accelerating colonisation, stating:

Although world governments and international and regional bodies, like the United Nations and the European Union, still lack the political will to hold Israel accountable, the Boycott, Divestment, and Sanctions (BDS) movement has grown to provide an important nonviolent counter-narrative and alternative for achieving the enjoyment and exercise of freedom, dignity, and justice for Palestinians.

The 2005 BDS call, issued by Palestinian civil society, and the Palestinian BDS National Committee (BNC), which leads the global movement, both affirm that BDS is inclusive, rejects all forms of racism and discrimination, and does not target any person or entity based on their respective identity. Rather, the movement targets Israel’s occupation and oppression of Palestinians. Corporations and institutions that aid, abet, or profit from Israel’s denial of Palestinian rights also fall within the purview of the movement. 

As the impact of BDS grows, so too do efforts by Israel, its lobby groups, and supporters to vilify, smear, and attempt to criminalize the movement. Many attempt to falsely associate the nonviolent movement with discrimination or anti-Semitism; such claims are not only baseless, but also unjustly trample on the rights to freedom of expression and protest, amongst others.”

In April 2019, three United Nations (UN) Special Rapporteurs, called on Israel to overturn the deportation of Human Rights Watch director Mr. Omar Shakir, stating that the supporting or opposing of BDS is protected by the universally recognised rights to freedom of opinion, expression, and of association. In particular, the Special Rapporteurs highlighted that:

“[t]he ability of human rights organisations and defenders to actively engage in civil society work to defend and advance the principles guaranteed in the International Bill of Human Rights is a litmus test for measuring the respect for democratic liberties in any society […] Stifling these liberties undermines any government’s claim to respect fundamental freedoms and values.

Nevertheless, the campaign to stifle Palestinian freedom of expression extended into Europe, culminating with countries such as France and Germany introducing legislative measures, conflating Palestinian civil society calls for peaceful resistance against the occupation, with anti-semitism. This had an immediate and unwarranted chilling effect on activists campaigning for Palestinian human rights and Palestinian campaigners were forced instead to channel their energies into challenging the legislative measures, while Israel advanced and accelerated it’s colonisation and annexationist measures.

 In May 2019, Palestinian civil society organisations, human rights groups, networks, and coalitions called on the German Bundestag to immediately withdraw a resolution adopted on 17 May 2019, which incorrectly conflates BDS and anti-Semitism, and upon the German Government to refrain from adopting the resolution and passing it into law, considering its violation of the rights to freedom of expression, opinion, and of association, as well as its serious ramifications for civil society organisations, primarily Palestinian civil society.

In the face of concerted efforts directed towards threatening and intimidating human rights defenders, Al-Haq has repeatedly called for the protection of Palestinian human rights defenders, highlighted attacks as a key indicator of the shrinking space for civil society, and documented Israel’s systematic efforts to prevent Palestinians from seeking accountability. Today’s judgment from the European Court of Human Rights is highly significant in affirming the right to boycott, and the right to advocate for the boycott, divestment and sanctions of states such as Israel, whose persistent violation of international law is a matter of international record and concern, and is a right protected by international human rights law.

2. ECtHR ruling in Baldassi and Others v. France (2020)

The applicants in the case, Baldassi and Others v France, were eleven members of a local collective in France, “Collectif Palestine 68”, supporting the Palestinian cause as part of the international Boycott, Divestment and Sanctions (BDS) campaign.[1] Following peaceful protests directed against the sale of Israeli products in French supermarkets, the collective were prosecuted under a French law “prohibiting incitement to discrimination against a group of persons on account, inter alia, of their origin or belonging to a specific nation”. However, the European Court of Human Rights (ECtHR) has found that France was in violation of the applicant’s right to freedom of expression on the grounds that:

the actions and remarks imputed to the applicants had concerned a subject of public interest (compliance with public international law by the State of Israel and the human rights situation in the occupied Palestinian territories), and had been part of a contemporary debate, in France as throughout the international community.

Article 10 of the European Convention on Human Rights (ECHR) requires that for a restriction on the right to freedom of expression to be lawful, such interference must be "provided for by law," directed towards one or more legitimate goals and "necessary" in a democratic society. It was the latter element on which the judgment turned.

Summarising the applicants claims, the Court noted the contention that “call for a boycott of Israeli products is part of a long and ancient tradition of non-violent citizen action with a political aim ([the applicants] refer in particular to peaceful movements against apartheid and against discrimination in the United States)”[2], and the applicants’ position that:

their call for a boycott is political and militant expression on a geopolitical issue of major general interest: the resolution of the Israeli-Palestinian issue through the effective application of public international law and the international responsibility of corporations for the violation of human rights in the occupied Palestinian territories.[3]

As such, the applicants claimed that this was a case where Article 10 of the European Convention on Human Rights requires a high degree of protection of freedom of expression and where the State's discretion in restricting such expression is particularly limited.

Boycott is essential foundation of a democratic society

First the Court reiterated the principle that “Freedom of expression is one of the essential foundations of a democratic society and one of the most important conditions for its progress and of everyone's development”,[4] and emphasised that “Boycott is above all a means of expressing protestors’ opinions” and as such the call for a boycott, which aims to communicate these views by calling for specific actions related to them, is in principle protected by Article 10 of the Convention”.[5] It further clarified that where a call for boycott of necessity calls for differential treatment, this cannot be understood as being inherently discriminatory or an incitement to discrimination. 

Noting that the purpose of the protest in question was “clearly to provoke or stimulate debate among supermarket consumers”,[6] the Court observed:

that the applicants have not been convicted for making racist or anti-Semitic remarks or for calling for hatred or violence. Nor were they convicted of violent acts or for causing damage during the events of September 26, 2009 and May 22, 2010. It is very clear from the rest of the record there was no violence or damage. The hypermarket in which the applicants carried out their actions did not form a party civil court before the domestic courts.[7]

The Court noted that “as interpreted and applied, French law prohibits any call for a boycott of products based on their geographical origin, regardless of the purpose of this call, its motivations and context”.[8] As such, in convicting the applicants, the French courts failed to consider whether in the circumstances of the case, the restriction on the applicants right to freedom of expression was necessary in a democratic society to achieve the legitimate goal of the protection of the rights of others, within the meaning of Article 10.[9] This failure was particularly serious since the speech of the applicants “concerned a matter of general interest, that of respect for public international law by the State of Israel and the human rights situation in the occupied Palestinian territories, and were part of a contemporary debate, in France as well as throughout the international community”.[10]

Holding that political discourse, including calls for boycotts, can be a source of controversy and is often virulent, the Court, citing the opinions of the UN’s special rapporteur on freedom of religion and belief, and the submissions made to the Court by FIDH, reiterated that “Nevertheless, it remains in the public interest, unless it degenerates into a call for violence, hatred or intolerance”.[11] As such, the Court concluded that France was in violation of Article 10 of the ECHR, since the applicants' conviction had not been based on relevant and sufficient grounds, and that the French courts had neither applied the law in line with the principles of Article 10, nor based their approach on an acceptable assessment of the facts.[12]

Dissenting Opinion of Judge O’Leary

While the finding of a violation of Article 10 was a unanimous decision, the Court’s presiding Judge appended a partly dissenting opinion which held that the Court should also have found that France was in violation of article 7 of the Convention which provides for no punishment without the law. Where the majority were content to find that the French process by which the applicants had been prosecuted was sound in nature, but that it had been interpreted and applied in violation of the Convention, in dissent, Judge O’Leary perceived the framework of the law to be inadequate in so far as it did not meet the requirement that “criminal provisions be accessible and predictable”.[13] Where the majority held that “as case-law stood at the material time, the applicants ought to have known that they were likely to be convicted on that basis for their call to boycott products imported from Israel, since the Court of Cassation had already convicted an applicant for similar acts”, Judge O’Leary observed that “even if the applicants had taken advice from legal professionals, I don't see how they or their lawyers could have foreseen, at the time, that the national courts would interpret the contentious provision of the law of 29 July 1881 so as to broaden its scope to include acts of economic discrimination committed by protesting citizens”.[14]

As such, the actions and remarks of the applicants, which the Court concluded, did not amount to any form of violence, hatred, or intolerance, constituted the exercise of free speech as protected by the European Convention on Human Rights.

Conclusion

Al-Haq welcomes the ruling by the European Court of Human Rights as a watermark moment in the campaign for accountability. The right to freely object to ongoing violations of international law domestically and in third countries, where populations are held under foreign domination and military control, is critical for the maintenance of international peace and security, especially in cases where the United Nations Security Council has been frozen for decades with the misuse of the permanent five veto. While millions of Palestinians in the occupied territory are governed under a discriminatory and racist Israeli apartheid regime, fragmented into separate and artificially contrived administrative zones wherein they are denied their fundamental human rights and freedom of movement, this ruling affirms the right to object and agitate for change. In line with the ruling, it is critical that corporations active in the illegal settlements are held accountable for complicity in acts amounting to war crimes and crimes against humanity, and that the rights of human rights activists to boycott and call for the boycott, divestment and sanction of entities implicated in the construction and maintenance of Israel’s illegal settlement enterprise, is vindicated.