On 9 July 2004, the International Court of Justice published its advisory opinion on the legal consequences of the wall which Israeli authorities were building on Palestinian territory. [1] The Israelis called it a “security wall”; the Palestinians, an “apartheid wall”. The UN General Assembly asked the Court, which is headquartered in The Hague, to decide. In its carefully worded advisory opinion, the Court refused to engage in controversy and recognised the right of any state to build a wall to protect itself, provided the wall be built on its own territory. However, it noted that the Israeli wall was mostly built on Palestinian territory and cut through entire sections of Palestinian land, which made it illegal. Furthermore, as the International Court of Justice pointed out, the route of the wall encompassed a number of Israeli settlements on Palestinian land – which was also illegal. The Court concluded that Israel should give up building the wall, dismantle the sections already built, abandon illegal settlements and compensate Palestinians. It added that member states of the international community had an obligation to put pressure on Israel to comply with the advisory opinion. For a moment, there was hope, but it was quickly dashed. There was no such pressure from other states, and Israel continued to build its wall as well as to establish new settlements on Palestinian land.
In response to this situation, on 9 July 2005, Palestinian civil society, represented by 170 trade unions and civil society organisations, asked international civil society to mobilise in order to get states to finally take action. It launched an appeal to demand compliance with international law. How could this be achieved? By launching a peaceful Boycott of Israeli companies and institutions, and through initiatives aiming at a Divestment from the Israeli economy and Sanctions against Israeli institutions. [2] The BDS movement was born, taking its inspiration from the anti-apartheid movement in South Africa. [3] In 2009, about fifty French organisations, shocked by the Israeli military operation “Cast Lead” in Gaza, [4] decided to respond to the call of Palestinian civil society and launched the BDS France campaign. [5] Their preferred method of action is to organise gatherings outside shopping centres or shops, with activists appealing to customers to refrain from buying Israeli products. [6] The rallies are often filmed by the activists, and the resulting videos are posted on social media and on the web pages of the campaign’s member organisations.
In short: a state is violating international law (although Israel is certainly not the only state to do so [7]). As the International Court of Justice itself points out, the main states of the international community are obliged to take action. However, these states fail to put any serious pressure on Israel. Consequently, a section of French civil society takes action by asking consumers to boycott products from Israel in order to put pressure on it. Is it not totally legitimate for civil society organisations and activists to mobilise through peaceful means for the application of international law? Is it not a form of civic duty?
Yet French public authorities launched a legal and judicial attack against the BDS France campaign. The method used to silence the campaign is to criminalise its actions. This is a powerful and effective method, because no citizen wants to face criminal justice for his or her activism. Legal risks are even less well accepted when the cause does not directly concern the citizen in his or her daily life, region or country. Palestine remains a distant horizon.
How and why did this attempt to criminalise calls to boycott Israeli products take place in France? Although the legal mechanism used to criminalise boycott campaigns has been widely documented (I), the reasons behind this strategy are little known (II).
I) The criminalisation mechanism
The criminalisation of the BDS campaign was initiated by the Ministry of Justice, at the request of organisations that support the State of Israel. [8] Although the European Court of Human Rights ruled against this approach, French authorities do not seem to have given it up.
A) Circulars and ruling of the Cour de Cassation (French High Court)
When individuals disapprove of the political, economic or cultural practices of certain states, they are free to not buy their products. As individuals, they can boycott states through their own consumer choices. But do they have the right to publicly call for people to boycott the products in question? The strategy of French public authorities has been to make people believe that there is no such right and that legal provisions could prohibit citizens from making such calls under criminal law.
In 2010 [9] and 2012, [10] Ministers for Justice Alliot-Marie and Mercier instructed their departments to issue two circulars addressed to public prosecutors, requiring them to prosecute people calling for a boycott of Israeli products. The reasoning was simple: criminal law – the 1881 law on press freedom – prohibits calls for discrimination against individuals, including discrimination on the basis of nationality. Both circulars are based on the claim that calling for a boycott of Israeli products has an impact on Israelis and therefore constitutes a call for discrimination on the basis of nationality, which is illegal. [11]
There were two flaws in this legal reasoning: it confused “products and men”, to paraphrase Steinbeck, and it was based on an over-interpretation of criminal law, as French criminal law does not refer to the notion of boycott or refusal to purchase. [12] Its implementation also results in a violation of freedom of expression.
Subsequently, since 2010, some fifty BDS activists have been subjected to criminal investigations, often following reports by associations defending Israel. About fifteen criminal proceedings have been initiated. Several courts and appeal courts have refused to endorse the legal argument expounded in the circulars and found the BDS activists not guilty (Versailles, Mulhouse, Pontoise, Perpignan, Montpellier, Alençon, Bobigny, Créteil, Paris, Toulouse). However, the reasoning was taken up by two appeal courts (Bordeaux and Colmar) and eventually confirmed by the Cour de Cassation (High Court) in 2015. [13] France thus became the only country in the world to make calls for boycott of Israeli products a criminal offence, punishable in this case by one year’s imprisonment and a fine of 45,000 euros. [14]
The convicted activists took their case to the European Court of Human Rights, with the support of the Association France Palestine, the International Federation of Human Rights and Ligue des droits de l’homme.
B) The ruling of the European Court of Human Rights (ECHR)
In a decision dated 11 June 2020, the European Court ruled against France: [15] it found that calling for a boycott of Israeli products cannot in itself constitute a criminal offence because it is covered by freedom of expression. As France did not appeal, the ruling is final from a legal point of view, as of 11 September 2020.
It was expected that the French Ministry of Justice would take the necessary steps to repeal the Alliot-Marie and Mercier circulars. [16] On 20 October 2020, however, the Ministry of Justice issued a dispatch to public prosecutors on “the repression of discriminatory calls for the boycott of Israeli products”, [17] which seeks to uphold the criminalisation of calls for boycott under French law. The dispatch (effectively, a penal policy circular) even claims that the Alliot-Marie and Mercier circulars are still valid and that actions calling for the boycott of Israeli products are still likely to constitute an offence. One cannot but wonder what France makes of the 11 June 2020 ruling in which European judges felt obliged to point out that they have “repeatedly emphasised that Article 10 § 2 leaves little room for restrictions on freedom of expression in the domain of political speech or matters of general interest”.
A few lines earlier, European judges observed that calling for a boycott of Israeli products indeed touched on “a matter of general interest, that of compliance with public international law by the state of Israel and of the human rights situation in the occupied Palestinian territories, and are part of an ongoing debate in France as well as in the international community as a whole”.
Clearly, French authorities are refusing to submit to the ruling of the ECHR and to European law, violating the hierarchy of norms. Worse still, the dispatch takes us back to before 11 June 2020, to the Cour de Cassation ruling that condemned calls for a boycott as discriminatory.
It’s as if the “summa divisio”, reaffirmed by the European Court, did not exist. Yet the ECHR ruling explains in a very clear manner that a distinction must be made between, on the one hand, incitement not to buy certain products in order to challenge the policy of a state – which is lawful and protected by freedom of expression – and, on the other, calls for violence against persons (or racist and anti-Semitic statements targeting Jews as an ethnic-religious group) or for the destruction of property – which is hate speech and must be prohibited.
The dispatch plays upon what may at first glance seem like a grey area between these two situations, by deliberately blurring the difference between calls for a boycott of Israeli products and antisemitism, without clearly specifying what might tip the former towards the latter. [18] Ultimately, the objective of the dispatch is clearly ideological: repress at all costs any call to boycott Israeli products as part of the BDS campaign.
II) The reasons for criminalisation
French authorities have never clearly explained their reasons for seeking to criminalise calls for boycott, which added to the concern about this stigmatisation of peaceful activism. The debate on the appropriateness of such an approach must take place within the relevant ministries (Interior, Justice, Foreign Affairs, Prime Minister), but it is not public, and ministers have always remained vague or evasive on the subject, even in their answers to written or oral questions from members of Parliament. Only Christiane Taubira, then Minister of Justice, dared to speak publicly about the issue, declaring that calling for a boycott was a legitimate "activist act" in regards to the situation of apartheid South Africa, but ultimately condoning the notion that when it comes to Israel, things are different. [19] We therefore have no choice but to make hypotheses, focussing on the weakness of French democratic tradition when it comes to boycotts and on the special status of the state of Israel in France.
A) The weakness of the French tradition of boycott
Several compounding factors played a role in France’s decision to criminalise calls to boycott products from a state because of the controversial policies of its government.
– In France, “citizen boycott”, initiated by civil society and consumer activists, is often confused with the boycott as a prerogative of the state in the context of international relations. [20] France has a history of strong centralisation, and the government is traditionally reluctant to allow for unwelcome initiatives by civil society or local authorities. There is even more reluctance when the citizen boycott deals with a subject that falls within the state’s field of competence, in this case, international relations and international trade. The French government has thus tried on several occasions to prevent local authorities from calling for a boycott of Israeli products or settlements. It has challenged the resolutions of certain French local authorities (Bondy, Ivry, Saint-Pierre-des-Corps, Clermont-Ferrand) in favour of such a boycott before administrative courts. [21] The ideological boycott of a foreign state or of its institutions, although an important means of action in a democracy, is not considered a “noble” form of boycott in France, as a consumer boycott can be. [22]
– In the French constitutional set-up, international relations issues have traditionally been the domain of the President of the Republic, with the Prime Minister’s office and the Ministry of Foreign Affairs responsible for implementing presidential decisions (except during periods of “cohabitation”, when the Parliament and ministers on the one hand and the President on the other are from different political sides). These issues are only occasionally debated in Parliament. Generally speaking, French public authorities are reluctant to discuss matters of international relations with civil society, especially when civil society advocates concrete action such as boycotts or sanctions. In the area of foreign policy, the conditions for a democratic, free and transparent debate involving civil society are still lacking.
– The business community remains hostile to citizen boycotts. They see it as a risk for French economic interests. Calls to boycott products of certain countries could prevent French corporations from setting up in these countries and lead to a boycott of French products. The impact on the French economy would then be significant, particularly for countries such as China or Russia. While recognising that a democratic society must allow for debates on international affairs, business circles are not in favour of inciting citizen boycotts and civil society-led boycott movements, which involve commercial risks and possibly legal insecurity regarding their contracts with companies from the criticised countries. [23]
– Consumer activism is a growing movement [24] but remains weak in France. [25] It is only recently that the National Assembly has spoken out in favour of boycott: “Calling for a boycott, as the ultimate weapon of responsible consumption, must be considered lawful when it is established by credible reports from international organisations and credible NGOs that a multinational corporation is deliberately and seriously violating international law”. [26] The boycott of corporations such as Amazon or Airbnb because of their negative impact on employment and living conditions is only a recent development in France. Although public authorities never intended to prohibit calls to boycott the products of corporations because of their commercial practices or their social [27] or environmental [28] impacts, such calls have never been particularly successful in France, because unions (fearful of job losses) and political parties have never supported them. This is strikingly different from Anglo-Saxon countries, where the boycott of products, brands and businesses has generally been recognised and encouraged. [29] The great history of citizen boycott movements against discrimination, apartheid, colonisation and, more recently, French nuclear tests, has never really had much traction in France. [30]
Most of the reasons cited above also existed in the 1970s and 1980s, and did not prevent calls to boycott South African products during the apartheid era. Nevertheless, the anti-apartheid boycott campaign has always been rather subdued in France and, on the whole, has had little effect. But no one ever imagined criminalising such calls for boycott. This naturally raises the question of how the matter at hand differs: the Israel exception.
B) The Israel exception
If one can speak of an Israel exception, it is because Israel is clearly treated differently from other states by French politicians and French public authorities. In spite of Israel’s repeated violations of United Nations resolutions, especially since 1967 – the year when the occupation of Palestinian territories began – France has always maintained a cautious position in the Israeli-Palestinian conflict, which ultimately favours the stronger side. Along with other EU Member States, it has constantly reinforced its commercial and scientific ties with Israel, [31] without ever demanding compliance with international law and human rights in return. This cautiousness originates in the French political class’ (be it from the left, the centre or the right) long-standing fascination with Israel – a fascination that sometimes stems from a kind of nostalgia for the colonial era, sometimes from admiration for the militarisation of Israeli society, or for the establishment of an apparent democracy in a Middle East dominated, admittedly, by autocrats. Israel, in turn, has forged strong links with these public officials. On the other hand, what is known as France’s Arab policy (politique arabe de la France) (which, since General de Gaulle, was somewhat sympathetic to the Palestinian national cause) has lost momentum, particularly since the 2000s when the fight against terrorism became a focal point. At the same time, parts of the French Jewish community, particularly the Conseil représentatif des institutions juives de France, mobilised very strongly in defence of the Israeli government’s policies – including its most brutal aspects – while the French community of Arab or North African origin seemed to struggle to articulate a credible political response in support of the Palestinian public authorities or of the Palestinian population under the yoke of the occupation.
French foreign policy remains committed to compliance with international law in the Arab-Israeli conflict, with regular reminders of the need to respect the spirit of UN resolutions. However, at the same time, it refuses to take any initiative against or impose sanctions on the State of Israel, or even its components (military, settlers, politicians, companies involved in the colonisation, etc.) directly involved in violations of international law; [32] this caution is also intended to avoid offending our American ally, Israel’s main supporter, as well some of our European partners such as Germany.
It is not hard to understand why a large part of the political class does not want a debate on the boycott of Israeli products or on sanctions to be adopted against Israel, which might exacerbate divisions within French society. Some also see a danger to the harmony of our nation, given the presence of religious communities or communities of foreign origin on French soil, with the risk of creating disturbances to public order. But such restrictions on the right of citizens to participate in political debate hardly seem legitimate, when there are already laws and regulations in place that are precisely designed to prevent demonstrations that could generate disturbances to public order. The use of the authoritative argument of antisemitism to stigmatise calls for boycotts remains a permanent feature in the debate. [33] This powerful and intimidating argument is used to discredit the BDS France campaign and makes it difficult to take any initiative on the subject.
The BDS movement, whose goal is to ensure states comply with international law, is the target of a disinformation campaign aimed at depicting it as an antisemitic and illegitimate movement. In Israel, the “anti-BDS” law passed in 2011 and confirmed by the Supreme Court in April 2015 provides for a civil penalty against calls for boycott. In the United States, many states have approved anti-BDS legislation which provides for civil or disciplinary action against legal or natural persons who support the boycott of Israeli products. In Germany, the Bundestag passed a resolution calling BDS an antisemitic movement. In this regard, France, which has chosen the path of criminalising boycotters of Israel, is a laboratory in the fight against the BDS movement. The German Supreme Court, the US Supreme Court, and more recently the Court of Appeal of England and Wales and the European Court of Human Rights have all ruled in favour of the right to boycott, protected by freedom of expression. In reality, a “legal war” is a tactic used by this international disinformation campaign to discredit the BDS movement, scare off those who might be tempted to join it and persuade civil society that it has no role to play in the defence of international law. Just as all attempts to discredit the anti-apartheid movement have ultimately failed, it is safe to assume that current attempts to discredit the BDS movement will also fail. But how long will this take? That will certainly depend on the capacity of civil society organisations and activists to mobilise.