European Court of Human Rights

upholds right to boycott Israel

“Criminal conviction of activists involved in the BDS campaign boycotting products imported from Israel had no relevant and sufficient grounds and violated their freedom of expression”

That is the heading on the 11 June 2020 press statement from the European Court of Human Rights (ECtHR), announcing that it had overturned the conviction by a French court of eleven individuals for engaging in BDS activity.

The Court ruled that their conviction violated Article 10 of the European Convention of Human Rights – the right to freedom of expression – which states:

“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.”

The Court stated that their “actions and words had fallen within the ambit of political or militant expression” on “a subject of public interest”, which is protected under Article 10.

Providing the judgment is not overturned by the normal review procedure, it will be very significant – it means that non-violent BDS activity is legal in all 47 states that are party to the European Convention on Human Rights.

Two miniscule demonstrations

The original conviction in French courts arose from two miniscule demonstrations, the first on 26 September 2009, when, under the banner of Collectif Palestine 68, five of the group took part in an action inside the Carrefour hypermarket in Illzach, in which they called for a boycott of Israeli products and drew attention to human rights violations by Israel in the Palestinian territories it occupies. A similar event was organised by the Collectif Palestine 68 on 22 May 2010 in the same hypermarket, in which eight of the group were involved. They also presented a petition to be signed by customers, inviting the hypermarket to stop selling products imported from Israel.

In its judgment, the Court observed that

“the applicants had not been convicted of making racist or antisemitic remarks or of inciting hatred or violence. Nor had they been convicted of being violent themselves or causing damage during the incidents of 26 September 2009 and 22 May 2010. It transpired from the case file that there had been no violence and no damage had been caused. The hypermarket where the applicants had conducted their actions had not claimed damages as civil parties before the domestic courts.”

Nevertheless, for participation in one or both of these incidents, in November 2013 the Colmar Court of Appeal convicted the eleven of “incitement to discrimination” under section 24 (8) of the Law of 29 July 1881 on freedom of the press. The penalties meted out to them by the Court of Appeal for involvement in these trivial incidents were extraordinarily severe (see details below). In October 2015, the Criminal Division of the Court of Cassation upheld their convictions.

Very significant judgment

Under Articles 43 and 44 of the European Convention, this judgment of the European Court is not necessarily final. For a three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, this judgment will become final on that day.

If this judgment becomes final, it will be very significant: it will mean that non-violent BDS activity – and likely similar consumer boycotts for a political objective – will be legal in all 47 states that are contracting parties to the European Convention on Human Rights. Prosecuting authorities in these states should no longer charge individuals for engaging in such activity and, if any are charged, domestic courts should dismiss the charges. Failing that, individuals convicted in domestic courts will be able to make application to the European Court of Human Rights, as the eleven convicted in France did and did successfully.

Ground breaking US judgment

Conceivably, the European Court’s 11 June 2020 judgment will prove to be as ground breaking as the 1982 ruling by the US Supreme Court in the case of the NAACP v. Claiborne Hardware Co. This ruling established that consumer boycotts with a political objective are a constitutional right under the freedom of speech guarantee in the First Amendment to the US Constitution and it held that a damages award against the NAACP for its role in organising such a boycott of white merchants in Claiborne County, Mississippi, was unconstitutional.

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Nearly forty years later, that is how the law stands in the US. But that hasn’t stopped the Israeli lobby in the US trying to get legislation passed to restrict BDS activity: as of 1 June 2020, according to Palestine Legal, legislation with that objective has been passed in 29 US states and it is pending in 13 others. The legislation generally takes the form of requiring state contractors — as a precondition for getting any paid work from the state — to certify that they are not engaged in a boycott of Israel and to promise not to do so during the life of the contract. Texas famously came under criticism after one city in Texas required Hurricane Harvey victims to sign such an undertaking in order to receive state aid.

Legislation of this kind, which denies people benefits simply because of their political views and their activism in expressing them, directly violates the First Amendment’s guarantee of free speech. It is not surprising therefore that most if not all legal challenges to the legislation have been successful and have upheld the right to boycott Israel without being penalised by the state. See, for example, Glenn Greenwald’s account of what happened in Kansas (Federal Court Strikes Down a Law that Punishes Supporters of Israel Boycott, The Intercept, 31 January 2018).

Endnote: Penalties imposed by French Court

According to the European Court judgment, the following penalties were imposed on the eleven BDS protesters by the Colmar Court of Appeal:

“As regards the incidents on 26 September 2009, the Court of Appeal imposed on each of the five accused a suspended fine of 1,000 euros (EUR) and ordered them to jointly pay each of the four admissible civil parties (the International League against Racism and Antisemitism, the Lawyers without Borders association, the “Alliance France-Israel” association and the “Bureau national de vigilance contre l’antisémitisme”) EUR 1,000 in respect of non-pecuniary damage, and EUR 3,000 on the basis of Article 475-1 of the Code of Criminal Procedure (civil party expenses not defrayed by the State).

“Concerning the incidents of 22 May 2010, the Court of Appeal imposed on each of the nine accused a suspended fine of EUR 1,000 and ordered them to jointly pay three of the civil parties (the International League against Racism and Antisemitism, the Lawyers without Borders association, the “Alliance France-Israel” association) EUR 1,000 each in respect of non-pecuniary damage, and EUR 3,000 on the basis of Article 475-1 of the Code of Criminal Procedure (civil party expenses not defrayed by the State).”

In total, therefore, fines of 14,000 euros were imposed, albeit suspended, but much more seriously the eleven were required to pay four anti-BDS groups 7,000 euros in damages and 21,000 euros in court costs. French law seems to have allowed them to become “civil parties” to what was a criminal case and to receive damages and have their court costs paid when the eleven were found guilty.

In overturning their convictions, the European Court ordered France to pay the eleven a total of 101,180 euros in costs and damages.

David Morrison

18 June 2020