Andreina De Leo
On June 11, 2020, the European Court of Human Rights (ECt.HR) delivered the much-awaited judgement Baldassi and Others v. France (application no. 15271/16). The Court found by a majority that there was no violation of Article 7 (no punishment without law) and unanimously that there was a violation of Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR). The present analysis will focus on its findings regarding Article 10.
Facts of the Case
The applicants are eleven members of the ‘Palestine 68 Collective’, a French organization supporting the Boycott, Divestment, Sanctions (BDS) movement. The movement was founded on July 9, 2005 as a response from Palestinian non-governmental organizations to the Advisory Opinion on the Legality of Israel’s Construction of a Wall delivered by the International Court of Justice (ICJ) the year before. According to the ICJ, the Wall and the regime of de facto annexation it created was contrary to international law, and in particular international humanitarian law, international human rights law and the right of the Palestinian people to self-determination. The Court called on Israel to put a stop to such grave breaches of international law and on third states not to recognize, aid or assist the illegal situation established. The BDS movement was created to call for boycotts, divestments and sanctions towards Israel as a non-violent strategy to put pressure on Israel to comply with international law and universal principles of human rights.
On September 26, 2009 and May 22, 2010, the applicants took part in an action inside a supermarket, where they placed products which they deemed to be of Israeli origin in trolleys and called for a boycott (para. 6). On May 22, 2010 they were summoned by the Colmar public prosecutor to appear before the Mulhouse Criminal Court for incitement to discrimination under section 24 (8) of the Law of 29 July 1881. While the first instance court acquitted the applicants on December 15, 2011 (para. 12), the Colmar Court of Appeal convicted them on November 27, 2013 (para. 13). The applicants appealed the decision before the Court of Cassation for violation of articles 7 and 10 of the ECHR, but the Court of Cassation confirmed the decision of the Appeal Court on October 20, 2015. With regard to Article 10, the Court justified its decision by affirming that the right to freedom of expression can be limited when it is in pursuit of a measure necessary in a democratic society for the prevention of disorder and the protection of the rights of others (para. 16).
The Court started its analysis by assessing whether the French criminal conviction restricting the freedom of expression of the applicants was justified, rather than firstly demonstrating that the case fell within the scope of application of Article 10, as it usually does. Interestingly, the fact that the call for a boycott of Israeli products represented an exercise of the right to freedom of expression was undisputed by both the parties and the Court itself (para. 58). The Court, consequently, applied its three-part test according to which an interference is justified only if it is prescribed by law, it pursues a legitimate interest and it is necessary in a democratic society. With regard to the first condition, the Court found that French law contained such a restriction recalling its previous findings of non-violation of Article 7 (for an alternative view, see the partly dissenting opinion of Judge O’Leary at paras. 13-34). Likewise, the Court found that the French measure was in pursue of a legitimate aim, that is protecting the commercial rights of the producers or the suppliers of products coming from Israel (para. 60). However, such a restriction was not necessary in a democratic society, and thus amounted to a violation of Article 10. In reaching this outcome, the Court recalled the principles repeated in the 2013 Perinçek v. Switzerland judgement (commented here), where it held that i) freedom of expression also applies to information and ideas that can offend, shock or disturb; ii) the adjective necessary implies a pressing social need, which leaves Contracting States a margin of appreciation, but that the Court can ultimately review in order to assess its compliance with the requirements of the Convention; iii) it is not the task of the Court to substitute itself to the competent national authorities, but it falls within its role to assess whether the reasons adduced were proportionate, relevant, and sufficient to justify a restriction of a right protected by the Convention (para. 61).
The Court then noted that a boycott is above all a means to express political opinions, and that a call for a boycott is aimed at communicating these opinions while calling for specific actions related to them. It thus, in principle, falls within the scope of application of Article 10 (para. 63). Nonetheless, a call for a boycott is a peculiar mode to exercise freedom of expression insofar as it combines the expression of a protest with incitement to differential treatment which, depending on the circumstances, may amount to incitement to discrimination against others. In this regard, incitement to discrimination implies a call for intolerance which, together with a call for violence and a call for hatred, is a limit which cannot be exceeded in any circumstance (para. 64).
Finally, the Court distinguished between the case at hand and the Willem v. France case, in which it had found that the criminal conviction of a mayor who had asked the municipal restaurant services to boycott Israeli products was not in breach of Article 10. In this regard, the Court highlighted that a public servant such as a mayor has particular duties and responsibilities, including maintaining a degree of neutrality and reserve with regard to the territorial community which he represents as a whole. The Court further noted that the mayor had not promoted a debate or a vote on the matter, thus not encouraging a free discussion on a matter of general interest (para. 69).
The Court stated that ordinary citizens are not bound by the same duties and responsibilities of public authorities, and thus the outcome of Willem could not have been analogically applied to this case (para. 70). Furthermore, with regard to the distinction between incitement to a differential treatment and incitement to discrimination, the Court highlighted that the applicants were never convicted for racist or anti-Semitic remarks, and that their actions did not cause any violence or damage in the supermarket (para. 71). Finally, the Court found that the national court failed to establish that the restriction of the freedom of expression of the applicants was necessary in a democratic society insofar as French law prohibits any call for a boycott of products because of their geographic origin, without taking into account the content of the call, its motives, or the specific circumstances in which it is made (para. 75). The Court concluded its assessment with some remarks of the call for boycott of Israeli products in particular, stressing that the respect of public international law by Israel and the human rights situation in the Occupied Palestinian Territory (OPT) is a subject of general interest, which forms part of the contemporary debate taking place in France as it is taking place in the entire international community. In addition, since the actions and statements of the applicants were political and militant in nature, they were particularly protected by Article 10 and could be limited only in exceptional circumstances (para. 78). In light of the above, the Court concluded that the conviction of the applicants, and thus the restriction on their right of freedom of expression, was not based on a relevant and sufficient ground, and that Article 10 had thus been violated (para. 81).
The present judgement represents an important precedent for the 47 Contracting States of the Council of Europe (CoE), and a welcome outcome for BDS activists in Europe. By stressing that everyone has the right to call for a boycott of Israeli products, as long as it does not turn to incitement to intolerance, violence or hate, the Court firmly and categorically rejected the idea that the BDS movement is discriminatory and anti-Semitic in itself.
The conflation of antisemitism and criticism towards Israel is an increasingly common trend, which has resulted in an escalation of the anti-BDS smear campaigns in Europe in the last few years. In May 2019 the German Parliament passed a motion (strongly opposed by many scholars, including Jewish and Israeli ones), equating the BDS movement with anti-Semitism. A similar resolution passed in Austria’s national Parliament in February 2020. Reacting to the ECt.HR judgement, Amnesty International underlined that “since 2010, French authorities have specifically instructed prosecutors to use anti-discrimination laws against BDS campaigners which are not used against activists who participate in similar boycott campaigns targeting other countries.”
The relationship between anti-discrimination law and freedom of speech is the subject of a long-standing debate in legal scholarship, and it should not be used as a means to silence human rights defenders, or censor legitimate criticism of State policies. In this regard, the Strasbourg Court confirmed that the juridical notion of discrimination integrates criteria of legitimacy and proportionality and that a differential treatment does not amount to discrimination if it is based on objective and reasonable justifications, in line with the interpretation of the Committee on the Elimination of Racial Discrimination of Article 1(1) of the Convention on the Elimination of Racial Discrimination (at 115, para. 2). In this light, it is apparent that the objective of the BDS is not to advocate for an arbitrary discrimination of Israeli citizens, but to target a deliberate State policy and to promote, through non-violent and non-constraining means, the application of international law with the aim of ending Israeli violations, recognized by the ICJ in the Wall Opinion mentioned above, and more recently by the European Court of Justice (ECJ) in the labelling judgement (para. 48), welcomed by the Special Rapporteur on the situation of human rights in the OPT. The differential treatment of the State of Israel by the BDS Movement is entirely directed at its foreign policies and practices, not at Jewish people, an element which the anti-BDS policies distort. Furthermore, with regard to the call for boycott in particular, it should be noted that – as underlined in this article published in the Harvard Law Review – products originating from Israel are not necessarily produced by Israeli companies but also include foreign companies operating in Israel/Palestine. It is thus neither necessary nor sufficient that a company is Jewish or Israeli. Instead, a company is targeted due to its active complicity in Israel’s violations of Palestinian rights, a conduct that is not related to a specific national identity (at 1376). It is thus hoped that this landmark judgement will finally spark a serious legal and political debate on the consequences, in terms of democratic legitimacy, of a trend aimed as silencing any criticism of the policies of the Israeli government.