July 17, 2020
This guest post was written by Robert Wintemute (a Professor of Human Rights Law at King’s College London, who gave some comparative-law advice to the lawyers for the applicants) (*)
Criticism of the policies of a government, and calls for peaceful action intended to put pressure on it to change its policies, would normally be considered political expression protected by Article 10 of the European Convention on Human Rights. But, since at least 1973, when Israel’s Foreign Minister, Abba Eban, wrote that “[a]nti-Zionism is merely the new anti-Semitism”, attempts have been made to characterise criticism of the Government of Israel’s treatment of the Palestinians as “anti-Semitic” (“anti-Jewish”), and therefore as a form of hate speech. Describing Israel-Palestine as a situation of “apartheid”, and calling for a boycott of goods from Israeli settlements (built illegally in occupied Palestinian territory) or from anywhere in 1949-67 Israel, is especially likely to trigger this characterisation. In Baldassi & Others v. France (11 June 2020), the European Court of Human Rights ruled unanimously (7-0) that Article 10 protects the right to call for a boycott of goods from Israel.
Criminal prosecutions for peaceful political expression
The eleven applicants were supporters of the Palestinian call for Boycott, Divestments, or Sanctions (BDS) against Israel (similar to those applied to Apartheid South Africa prior to 1994), until Israel complies with its obligations under international law, especially in relation to its illegal settlements and the right of Palestinian refugees to return to their homes. The applicants participated in two demonstrations at the same supermarket on 26 September 2009 and 22 May 2010, at which they urged consumers not to purchase goods imported from Israel. There was no violence or damage, but they were charged with inciting economic discrimination against producers of goods in Israel. France appears to be the only Council of Europe member state in which criminal prosecutions of this kind have taken place (a 12 February 2010 Ministry of Justice circular encouraged prosecutions).
The trial court, the Tribunal correctionel de Mulhouse, acquitted the applicants on 15 December 2011, having been convinced of the absence of incitement to racial or anti-Semitic hatred. The court of appeal, the Cour d’appel de Colmar, convicted them on 27 November 2013, imposing suspended fines of 1000 EUR per participant for each demonstration, and ordering the collective payment of 28,000 EUR in compensation to four intervening non-governmental organisations. The supreme civil court, the Cour de cassation, upheld their convictions on 20 October 2015, concluding (without giving reasons) that the convictions were “necessary in a democratic society” under Article 10(2).
The Chamber’s reasoning under Article 10
Was the clear interference with the applicants’ Article 10(1) right to freedom of expression (the imposition of criminal penalties) “necessary in a democratic society” for the protection of the “rights of others” under Article 10(2)? The Court began by observing that a boycott is a means of expressing protesting opinions. A call to boycott, which seeks to communicate these opinions, while calling for specific actions linked to them, therefore enjoys in principle the protection of Article 10 (para. 63).
However, a call to boycott combines the expression of a protesting opinion and incitement to differential treatment, which means that it might constitute a call for discrimination against others. A call for discrimination is a form of call for intolerance which, like a call for violence or a call for hate, is one of the limits not to be crossed in exercising freedom of expression. But inciting to treat differently is not necessarily the same as inciting to discriminate (para. 64).
The applicants were not convicted of having made racist or anti-Semitic statements, or for having incited hatred or violence. They had not been violent or caused any damage. Instead, they had been convicted of calling for a boycott of Israeli goods (paras. 71-72).
The Court then noted that, as interpreted and applied in this case, French law prohibits any call for a boycott of products because of their geographic origin, whatever the content of the call, its motivation, or the surrounding circumstances (para. 75) (It would appear that consumer boycotts based on geographic origin had been tolerated in France, except in the case of Israel, which might have raised an issue under Article 14 combined with Article 10.) But the French courts did not demonstrate that, in the circumstances, the conviction of the applicants for calling for a boycott of products from Israel was necessary in a democratic society to achieve the legitimate aim of protecting the rights of others (para. 77).
Reasoning taking into account the circumstances was all the more essential in this case, in which Article 10 requires a raised level of protection of the right to freedom of expression. On the one hand, the actions and words for which the applicants were criticised concerned a subject of general interest, respect for public international law by the State of Israel and the human rights situation in the occupied Palestinian territories, and was part of a contemporary debate, in France as in the whole international community. On the other hand, these actions and words were a form of political and activist expression. The Court has stressed on numerous occasions that Article 10(2) leaves very little room for restrictions on freedom of expression in the area of political discourse or questions of general interest (para. 78).
As the Court recalled in Perinçek v. Switzerland, by its nature, political discourse is a source of polemics and is often virulent. It remains nonetheless of public interest, unless it degenerates into a call for violence, hate, or intolerance. That is the limit not to be crossed. That is also what the United Nations Special Rapporteur on freedom of religion or belief stressed, in relation to a call to boycott, in his report (para. 79). The Court rejected the French Government’s argument that the applicants’ actions could be categorised as comments calling for hate, violence, discrimination, or intolerance (para. 52). As compensation for the violation of Article 10, the Court ordered France to pay each applicant 7380 EUR (paras. 85-86).
Comparative human rights law
Baldassi & Others in 2020 reaches the same conclusion as the Supreme Court of the United States in National Association for the Advancement of Colored People v. Claiborne Hardware Company in 1982: “a nonviolent, politically motivated boycott … is constitutionally protected [by the First Amendment]”. The Strasbourg Court could have cited NAACP to support its reasoning, as Judge O’Leary cited an even older (1958) decision of Germany’s Federal Constitutional Court in her separate opinion (para. 40).
The Strasbourg Court could also have cited Organisation juive européenne and Vignoble Psagot Ltd v. Ministre de l’Économie et des Finances, a 12 November 2019 judgment of the Court of Justice of the European Union, which explained why consumers might not wish to purchase goods from illegal Israeli settlements (or from anywhere in 1949-67 Israel), and why the place where the goods were produced must be indicated on the label:
“37 … to prevent consumers being misled as to the fact that the State of Israel is present in those territories [the West Bank, including East Jerusalem, and the Golan Heights] as an occupying power and not as a sovereign entity …, it appears necessary to inform them that those foodstuffs do not originate in that State. …
48 … the settlements … give concrete expression to a policy of population transfer conducted by that State outside its territory, in violation of the rules of general international humanitarian law, as codified in the sixth paragraph of Article 49 of the Convention relative to the Protection of Civilian Persons in Time of War, signed in Geneva on 12 August 1949 …, as noted by the International Court of Justice, with respect to the Occupied Palestinian Territory, in its Advisory Opinion of 9 July 2004 … Moreover, that policy has been repeatedly condemned by the United Nations Security Council, … and by the European Union itself. …
53 … the provision of information to consumers must enable them to make informed choices, with particular regard to health, economic, environmental, social and ethical considerations.
54 … other types of considerations, such as those relating to the observance of international law, may also be relevant in that context.
55 … consumers’ purchasing decisions may be informed by [ethical] considerations relating to the fact that the foodstuffs … come from settlements established in breach of the rules of international humanitarian law.
58 … foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from … an Israeli settlement within that territory, the indication of that provenance.”
If the Strasbourg Court had cited the Luxembourg Court’s judgment, the Strasbourg Court could have explained why the applicants were not inciting illegal discrimination. Anti-discrimination legislation generally does not apply to the right of consumers to decide to buy or not to buy goods from a particular territory. Indeed, European Union law (Regulation 1169/2011 of 25 October 2011 on the provision of food information to consumers) requires that labels on goods provide the geographic information that consumers need to make ethical decisions. France criminalised the applicants’ attempt to persuade French consumers to do something that they had a legal right to do.
Questions left open
Baldassi & Others leaves two questions open. First, was Willem v. France (no violation of Article 10) wrongly decided in 2009? In Willem, the applicant was a mayor who had instructed the catering services of his municipality not to purchase goods from Israel. Did the mayor not have the same freedom of expression as the applicants in Baldassi, and the municipality the same freedom to buy or not to buy goods from Israel as the consumers in Baldassi? It made sense for the applicants in Baldassi to distinguish themselves as private citizens from the mayor in Willem. The Court accepted the distinction (paras. 65-70), which meant that it did not have to consider whether the dissenting opinion of Judge Jungwiert, who found a violation of Article 10 in Willem, was correct. It can be argued that the mayor in Willem should have enjoyed the same protection from French criminal law under Article 10. It seems odd that the Court imposes a duty of “neutrality” on an elected politician with regard to a political question. Whether the mayor had the power to adopt a policy of not purchasing goods from Israel, without a resolution of the municipal council, or because the policy conflicted with the foreign policy of the French Government, was a question of French administrative law. His decision could have been challenged on that basis, without a criminal prosecution.
Second, in describing the line which boycott activists must not cross, the Court refers (paras. 79 and 21) to the report of a UN Special Rapporteur (para. 18 of the report), which includes the phrase “expression which … rejects the right of Israel to exist” in describing boycott activity that “should be condemned”. BDS activists are frequently accused of supporting a one-state solution in Israel-Palestine, and therefore “calling for the destruction of the State of Israel”. In future, BDS activists must stress that all human beings in Israel-Palestine have a right to exist (a right to life) under Article 6 ICCPR (Article 2 EConHR), but may argue that states and governments do not have a ‘right to exist’, especially if they violate international law. Peaceful political pressure may be brought to bear on them so that they change their policies, which might mean a change of government and changes to borders. Does the United Kingdom of Great Britain and Northern Ireland have a “right to exist”? Not if majorities in Scotland and Northern Ireland vote to leave the UK.
Future application of Baldassi & Others
Sanctions against boycott-Israeli-apartheid activism in Europe often take the form, not of criminal penalties, but of refusals to provide public services, such as space for meetings, or participation in a festival. The European Legal Support Centre and other non-governmental organisations that defend the right, under Articles 10 and 11, to defend Palestinian human rights will be able to rely on Baldassi & Others in pending and future cases in all 47 member states of the Council of Europe.