Whose human rights? The marginalisation of dissent in France and spreading
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BDS France.
Human rights’ ideals have inspired the mobilization of many people worldwide.
Human rights defenders conceive human rights as a tool to oppose unfair
policies and to hold political leaders accountable for their decisions. However,
as they are politically ambivalent and socially constructed, human rights can
also be a tool for governments to oppress social movements.
Human rights can indeed serve the purpose of either emancipating the
powerless or maintaining structural inequalities. The latter happens for
example in areas where international human rights law is restrictive. For
example, governments often resort to the exclusive definition of “refugee” provided by international law to deny rights to
people who do not fit it and to return them to their countries.
The ambivalence of human rights is a slap in the face when authorities
criminalize, prosecute and silence peaceful activists by applying laws whose aim
is, on the contrary, to protect human rights.
The prosecutions against the peaceful activists involved in the Boycott,
Divestment and Sanction (BDS) campaign in France are glaring in that respect.
These campaigners engage in peaceful actions to put pressure on the state of
Israel to respect the human rights of Palestinians. French authorities prosecute
them, arguing that they discriminate against a group of people, i.e. Israeli
producers, on the basis of their nationality.
The ambivalence of human rights strikingly manifests here. Both BDS
campaigners and authorities frame their actions by referring to human rights. One
can argue that it is just a matter of perspective and that prosecuting BDS
activists is a genuine attempt to combat discrimination. However, a closer look
into these cases raises several concerns regarding the instrumental use of anti-discrimination
laws to prosecute peaceful activists.
The BDS campaign in France
In July 2005, the Palestinian civil society launched the campaign Boycott, Divestment and Sanctions
(BDS) calling on international civil society
organizations and individuals to put in place boycott and divestment
initiatives. The campaign aims to put pressure on Israel to end the occupation
of Palestine, to ensure the equality of Palestinians living in Israel and to respect
the rights of Palestinian refugees to return to their homes. One year earlier,
the International Court of Justice (ICJ) had advised
that the wall built by Israel in the Occupied Palestinian Territories was
against international law.
In June 2009, the BDS campaign was launched in France. Imen, one of the coordinators of the French
campaign, refers to it as a human rights initiative, “because its objectives
are in line with international law and because it is an anti-racist campaign
that rejects any form of racism. It is inspired by the struggle against the
apartheid regime in South Africa”. BDS activists in France and abroad see the
campaign as a necessary tool to end a “regime of apartheid” enforced by Israel and resulting in the racial segregation of
Palestinians.
BDS activists often call on people not to buy Israeli products by
organizing peaceful actions in front of retailers. They also call on companies to
divest from Israel and on artists not to stage concerts or performances in
Israel.
The BDS campaign is far from being the only campaign promoting commercial
boycotts targeting a specific country or company. In recent years, campaigners
have for instance launched boycott actions targeting China because of its poor
human rights record in Tibet or Burma for the atrocities committed by the
military junta.
Grafitti prompted by BDS campaign against Veolia.Boycott campaigns against specific companies deemed
responsible for facilitating human rights violations have also been promoted. These
included for example the campaign against the French company Veolia that sold off all its Israeli operations in 2015,
after having been a target of the BDS campaign.
The BDS campaign is a powerful tool to exercise pressure insofar as it
results in substantial economic losses. The Israeli Minister of Finance has
estimated that these amount to USD 3.2 billion a year, or 1% of Israel’s Gross
Domestic Product (GDP). The policy think-tank RAND Corporation has found that the economic
losses inflicted by the campaign comprise between 1% and 2% of the Israel’s annual
GDP.
Legal anomalies
Since 2009, dozens of BDS activists in France have been prosecuted for
their involvement in peaceful boycott campaigns, authorities resorting to anti-discrimination
laws for that purpose. Since 2009, dozens of BDS activists
in France have been prosecuted for their involvement in peaceful boycott campaigns.
In February 2010, a few months after the launch of the BDS campaigns in France,
Michèle Alliot-Marie, the then Minister of Justice, adopted a document
containing instructions addressed to prosecutors (a Circular).
The Circular exclusively tackled the calls for boycott formulated within
the BDS campaign. The document took stock of the several prosecutions launched
against BDS campaigners for incitement to discrimination. It reiterated the
need to ensure a “coordinated and strong response” against BDS-inspired actions.
In 2012, Michel Mercier, the then Minister of Justice, adopted a new Circular
specifying that BDS calls for boycott discriminated against Israeli producers
because they hindered their economic activity on the basis of their
nationality.
The prosecutions against BDS activists are based on two laws. The first
one is the 1881 Law on the Freedom of the Press. Article 24.8 of the
law punishes incitement to discrimination, hatred and violence on grounds of
origin, race, ethnicity, religion or nationality. This article was included
into the Criminal Code in 1972 with the aim of complying with the1965 UN International
Convention against all Forms of Racial Discrimination.
The second provision is article 225.2 of the Criminal Code, which punishes
discrimination in specific instances, including when it results in hindering
the normal exercise of an economic activity. In 1977, the French legislator introduced
the reference to the hindrance of an economic activity into the Criminal Code
to overcome the boycott of Israel adopted by the Arab League. The provision
provided a legal tool for those French companies that maintained business ties
with Israel when trading with countries of the Arab League.
However, resorting to those two laws to prosecute
BDS activists clashes with the aims for which they were adopted. It is also at
odds with the existing interpretation of the notion of discrimination in
international human rights law. In particular, some differences of treatment
may be justified and thus do not constitute discrimination. This is for
instance the case when it comes to differences of treatment that protect safety
and security, public health or the human rights of other people. The calls for
boycott framed within the BDS campaign have the purpose of exercising pressure
on Israel with the view to improving the rights of Palestinians.
Moreover, any incitement to discrimination, hatred
and violence must reach quite a high threshold to become punishable. In
particular, judicial authorities should consider the intent to incite and the
likelihood that this incitement causes actual hatred, violence or discrimination
as constitutive elements of the offence. For example, the French provision
punishing incitement to discrimination has been used to prosecute leaders of
the French far-right, in particular the founder of the National Front,
Jean-Marie Le Pen. In 2005, he was convicted and fined for his statement
about Muslims in an interview with the daily Le Monde. He said “When the day
comes that we will have 25 million Muslims instead of 5 million in France, they
will rule”. The conviction was subsequently confirmed by a second instance
Court and then by the Court of
Cassation. BDS calls for boycott are promoted by activists without exercising
any coercion on clients or those retailers selling goods imported from Israel. Campaigners
limit themselves to calling on consumers to exercise their conscious and
informed choices. It is a stretch to consider those calls as constituting
incitement to discrimination. None of the
activists whose boycott actions target either other countries than Israel or
specific companies have been the target of such criminal prosecutions.
French authorities have specifically instructed
prosecutors to use those laws against BDS campaigners. None of the activists
whose boycott actions target either other countries than Israel or specific
companies have been the target of such criminal prosecutions. The prosecutions
against BDS activists are often initiated in the aftermath of legal actions
launched by civil society organizations opposing anti-Semitism. They include,
for example, the National Board for Vigilance against anti-Semitism (BNVCA), which considers
the combat against the BDS campaign and against the “delegitimization of
Israel” an “absolute priority”. None of the retailers targeted by the actions
mentioned earlier has filed a complaint against the activists.
In sum, laws adopted with the aim of punishing discriminatory
speech or actions are being used to prosecute peaceful human rights defenders.
Cases against BDS activists
A case concerning the conviction of BDS activists for
inciting discrimination is currently pending before the European Court of Human
Rights. Seven activists brought the case to court following the rulings of the
French Court of Cassation confirming their convictions.
BDS Campaigning outside supermarkets.On 22 May, 2010, they organized a peaceful action
in front of a supermarket in the town of Illzach, near Mulhouse (Eastern
France). They distributed flyers aimed at raising public awareness on the BDS
campaigns and calling on clients not to buy Israeli products. The flyers argued
that boycotting Israeli products was an effective strategy to contribute to
ending human rights violations committed by Israel. For example, one of the
flyers stated: “You can constrain Israel to respect human rights. Boycott
products imported from Israel”. Another flyer referred to a citation of
Archbishop Desmond Tutu regarding the BDS campaign. It read: “If apartheid in
South Africa came to an end, then this occupation [of the OPT] can also be
stopped. However, international and moral pressures should be fair and strict. Divesting
is the first step towards that direction”.
In 2013, a second instance Court convicted the
activists to a fine for inciting discrimination on the basis of nationality and
disconfirmed the ruling of the first instance Court, which had acquitted them.
The Court argued that calling on clients to boycott the products imported from
Israel constituted incitement to discrimination against a group of people, i.e.
Israeli producers, because of their nationality. In November 2015, the Court of Cassation confirmed the convictions. The
Court argued that the right to freedom of expression can be restricted in a
democratic society to protect public order and the rights of others, i.e. the
rights of Israeli producers. The Court did not mention any specific elements demonstrating
that the peaceful actions organized by the activists may have endangered public
order. Nor, did it take into account the objective of the BDS action, i.e. the
improvement of human rights in Israel and the OPT.
On 14 November 2016, a Court in Toulouse (Southern
France) convicted four BDS activists to a suspended fine. In December 2014 and
February 2015, they had organized similar peaceful actions. By drawing on
articles 225.1 and 225.2 of the Criminal Code, the Court ruled
that they had committed a discriminatory offence aimed at hindering an economic
activity. The Court also warned the activists against committing another
similar offence as this may entail a new conviction.
Jean-Pierre, one of the activists convicted in
Toulouse, believes that the prosecutions and convictions against the BDS
campaign, which are often extensively covered by mainstream media, are designed
to spread the idea that the campaign is illegal in France, which refrains new
activists from mobilizing. Both Palestinian rights’ groups and Jewish
settlers’ organizations in Israel and the OPT frame their diametrically opposed
discourses through human rights.
BDS activists consider France as a laboratory for
the criminalization of the campaign and are concerned about the chilling effect
of these prosecutions as well as the “internationalization” of this
criminalizing trend. France is indeed one of the first countries in Europe
where prosecutions against BDS campaigners have been launched. Similar efforts
are currently flourishing in the United States, the United Kingdom and Israel,
which had already passed a law against the BDS campaign in 2011.
Nicola Perugini and Neve
Gordon
convincingly argue that both dominant and oppressed groups can rely on human
rights either to challenge oppression or to justify it. They point out that
both Palestinian rights’ groups and Jewish settlers’ organizations in Israel
and the OPT frame their diametrically opposed discourses through human rights.
Several
parallels can be observed between that context and the battle for human rights
around the BDS campaign in France. As described above, BDS campaigners refer
to, and frame their calls and actions within, human rights. French authorities
equally resort to human rights, and the principle of non-discrimination
protected by domestic law, to prosecute those campaigners. By doing so, they
hijack the purpose of anti-discrimination laws, using them to contain a human rights
campaign rather than to protect the rights of oppressed groups.
How to cite:
Perolini M.(2018) Whose human rights? The marginalisation of dissent in France and spreading, Open Democracy / ISA RC-47: Open Movements, 20 April. https://opendemocracy.net/marco-perolini/whose-human-rights-marginalisation-of-dissent-in-france-and-spreading