On 11 June 2020, the European Court of Human Rights (ECtHR) in Baldassi & Ors v. France set aside an ‘incitement to discrimination’ conviction of activists avowing commitment to the “Boycott, Divestment, Sanctions” movement.
With a groundswell of support amongst the Palestinian diaspora, this campaign usually employs boycott mechanisms against Israeli universities, products, businesses, and cultural institutions in an effort to convey dissidence for human rights & international law violations committed by Israel. A website dedicated to the cause describes the movement as being inspired by the anti-apartheid movement in South Africa.
As a professedly non-violent crusade, it advocates for thematic action under its signature three heads – Boycotts, Divestment (urging the withdrawal of investments from Israel and any institutions and/or companies that endorse Israel’s actions) and Sanctions (ending trade agreements with Israel, banning connected businesses and imploring international associations like the UN to suspend Israel’s membership) – for a sustained endeavor to pressurize the Israeli government to concede and cooperate.
The activists were charged in connection with events they organized at a supermarket in Illzach, France, distributing leaflets and exhorting customers to spurn Israeli products. For these acts, they were charged under section 24(8) of the Law on Freedom of Press of 29 July 1881. That provision punishes those who incite discrimination, hatred, or violence for an individual or a group of individuals for their origin, membership or non-membership of a particular ethnic group, nation, race, or religion, by means of any writing, speech or imagery exposed to the public. In December 2011, the Mulhouse Criminal Court acquitted them of the charge as in its opinion, the provision did not cover an action that incited what it called “economic discrimination.” According to the Court, incitement to that form of discrimination was more appropriately covered by section 24(9) of the law, which made a reference to acts of “economic discrimination” by proxy of the penal code.
Reversing the acquittal, the Court of Appeal held them liable under section 24(8) of the law. The Court felt that the Mulhouse Court had erred in acquitting the activists on the assumption that the absence of a direct reference to inciting economic discrimination meant that it wasn’t contemplated by section 24(8). Further, the Court clarified that section 24(9) had no application in the matter since it dealt with incitement of hatred or violence against persons for their sex, sexual orientation or their handicap, and not for membership of a nation or other like group. Aggrieved by the said reversal, the activists filed appeals. The Court of Cassation dismissed the appeals and a case was subsequently filed at the ECtHR.
At the ECtHR, two primary issues were raised in relation to a violation of the European Convention of Human Rights: (i) whether there was a violation of Article 7 (no punishment without law) of the Convention inasmuch as the activists were punished under a law that does not cover economic discrimination and (ii) whether there was a violation of Article 10 (freedom of expression) in so far as a simple call for boycott inciting no violence was punished?
The ECtHR held that: (a) there was no infraction of Article 7 as applicants could reasonably foresee a conviction under the concerned law in light of case law of the time that indicated the Courts’ inclination towards construing acts inciting economic discrimination as punishable under that law; (b) there was a violation of Article 10 in as much as the call for boycott was penalized without sufficient cause. Albeit, the decision might seem in line with the precepts of the Convention’s protection of expressive freedom, its ratio decidendi is problematic on various fronts.
In Willem v. France, the ECtHR upheld the conviction for acts of discrimination, of a French Mayor who announced that municipal services were to refrain from buying food products from Israel. The ECtHR refused to apply that ratio decidendi and distinguished this case by emphasizing that culpability arose in that matter on account of the fact that the person acted in his official capacity in defiance of the neutrality that his office demanded out of him, and that the announcement by the Mayor foreclosed any possibility of deliberation on a matter of public interest, which wasn’t the scenario presently. Yet, the Court does not challenge Willem’s characterization of the “boycott call” as discriminatory. In that regard, it is absurd to lay down that culpability will arise in a case of incitement to discrimination by one occupying state office but not otherwise, especially when the aim of the legislation is to penalize such incitement regardless. This creates a legal milieu where penalization of incitement to discrimination is contingent on: (i) whether the person has so much influence that the incitement is likely to engender actual action; and (ii) whether there is a “reasonable expectation” of neutrality on the person — provisos that the 1881 law never envisaged.
To legitimize the boycott entreaty, the Court asserted that differential treatment did not necessarily imply discrimination, and it left it at that. Jurisprudentially, this would mean that an instance of differential treatment is immune from being reproached with having a discriminatory character as long as the determinants are justified, i.e., academic qualifications in employment, merit in college admissions, etc. But, what this means in the context of a boycott call based on the geographical origin of the supplier/producer is still obscure, since the Court does not concede that criticizing international law violations is an aim “justified enough” to provide immunity to a boycott protest advancing it. This prevarication is accentuated with the Court’s insistence that Willem was decided correctly but on its own facts. Regardless of its peculiar facts, as long as a BDS call for boycott is designated as discriminatory,” the Court cannot escape Willem’s dictum unless it says that its characterization of the call as discriminatory was misconceived, because the boycott call’s nature doesn’t change from being “discriminatory” in one case to assuming the character of “legitimate differential treatment” in another for the sole reason that the evangelist does not occupy state office. Considering that the 1881 law provides punishment for incitement to discrimination and not when this incitement fulfills the prerequisite of violating a duty of neutrality that one’s office might ordain. The absolution that ECtHR grants could only fit in if it challenges the very premise on which the 1881 law is based, viz., “incitement to discrimination is an act deserving punishment irrespective of any considerations of whether such incitement violates an imputed duty of neutrality or whether the propensity of the incitement being acted upon is high.” The Court’s decision could have filled this gap by discussing the incompatibility of the 1881 law with ECHR’s protection of freedom of expression to say that an interpretation that imputes the “provisos” that the Court embraces as considerations for upholding a conviction. This harmonizes the two legal instruments to ward off the risk of repugnancy. In the absence of this interpretative approach, the Court inexorably leaves itself open to criticism for not factoring in the fact that Article 10 of the ECHR allows States to restrict the exercise of expressive freedom by law for legitimate state purposes.
The Court reasons for its ruling on an Article 10 violation that domestic courts failed to provide adequate reasons for why such penalization was imperative in a democratic society. That appears to be a sidestepping exercise where the Court does not respond to answers proffered by the Government (summarized in their judgment) to the question of necessity. Merely because the domestic judgments do not provide the desired justification does not furnish ground to bypass arguments advanced at the current stage. Explanations ranging from the risk of providing fillip to anti-Semitic hatred to a genuine intent of minimizing conflict in a tense international context were provided to justify the penalization of BDS calls for boycott. But, none were considered.
Notwithstanding these gaps in the Court’s reasoning, it managed to arrive at a conclusion that is desirable for the freedom of expression and that appreciates the fundamental divergence between criticism of State policy and sinister exhortations for intolerance and anti-Semitism. Painting the BDS movement as “anti-Semitic” and punishing peaceful activists is harshly paternalistic in light of the fact that the movement does not advocate for hatred towards the State of Israel for its Jewish background, but for its acts that scoff at the precepts of international law.
Jaideep Singh Lalli is an undergraduate student reading for B.A. LL.B.(Hons) at the University Institute of Legal Studies, Panjab University, Chandigarh, India. He has previously interned with Senior Advocate Anmol Rattan Sidhu, Senior Advocate Sacchin Puri and the Punjab State Human Rights Commission. His academic interests include constitutional law & jurisprudence, criminal law and human rights.
Suggested citation: Jaideep Singh Lalli, Freedom of Expression and the “Boycott, Divestment, Sanctions” Movement for Palestine, JURIST – Student Commentary, July 1, 2020, https://www.jurist.org/commentary/2020/07/jaideep-singh-lalli-bds-france-palestine/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org.
