Judicial review gone wrong: doors open to boycott

On June 11, the European Court of Human Rights (the ECHR) made an unfortunate ruling. In overruling the convictions against activists of Collectif Palestine 68, a unit of the Boycott, Divestment and Sanction (BDS) movement in France, the Strasbourg-based high tribunal has established the principle that discrimination against Israel, unless the same escalates into violence, does not constitute discrimination under the European Convention on Human Rights (the Convention).

The facts of the case are undisputed and have not been contested. In short, eleven BDS activists were found guilty of racism and anti-Semitism after distributing leaflets calling for the boycott of Israeli products being sold at a supermarket in France in 2009.

The Court of Colmar convicted the campaigners and sentenced them to pay punitive damages in favour of the civil parties, the International League Against Racism and Anti-Semitism, the Lawyers Without Borders Association and the Alliance France-Israel, who had filed amicus curiae briefs, on the basis of inciting discrimination. The French Supreme Court upheld the lower court’s judgment in 2015.

The case was taken to Strasbourg and the ECHR reversed the French courts’ decision. The ECHR judges decreed that there had been no sufficient grounds to convict the accused and their freedom of expression was violated.

According to the ECHR, Article 10 § 2 of the Convention leaves very limited scope for restrictions on political speech or debate on matters of public interest. The Court wrote, “It [is] in the nature of political speech to be controversial and often virulent. That [does] not diminish its public interest, provided that it did not cross the line and turn into a call for violence, hatred or intolerance.”

The ECHR’s decision is not legally sound and seems to prioritize general political purposes over the pursuit of justice in the case before the bench.

Like all free speech statutes, Article 10 § 2 of the Convention, as written, is only applicable to protected speech. By expanding its scope to cover all political speech, the ECHR took an extra step and made new law rather than applying existing law. Furthermore, it overlooked Article 14 of the Convention, which outlaws discrimination based on national origin, religion or association with a minority group.

The call on supermarket customers not to purchase products from Israel had incited people to discriminate against the producers or suppliers of those products based solely on their origin. It is a long-established legal principle that any call for a boycott of products on account of their geographical origin – whatever the tenor, grounds and circumstances of such a call – constitutes discrimination. Discrimination is not protected speech and incitement to discrimination is not covered by the freedom of opinion and expression. In essence, the law does not require discrimination to turn into violence for it to be sanctioned.

By granting BDS the protection of Article 10 § 2, the decision implies that BDS is necessary to democracy and is a legitimate form of political militancy. According to the ECHR: “On the one hand, the actions and remarks imputed to the [accused] had concerned a subject of public interest; and on the other, those actions and words had fallen within the ambit of political or militant expression.”

This view is not agreeable. Political expression is not without limits. Various signatory countries to the Convention disallow the apology of fascism and communist propaganda, along with discrimination, intolerance, hatred and racism in general. The law protects against discrimination per se, not against “violent” discrimination.

As a matter of fact, the BDS movement is motivated by anti-Semitism and aims at portraying Israel as illegitimate under International law. The ruling comes at a time when Israel is contemplating extending its sovereignty over parts of the West Bank under its administration, which has attracted widespread criticism not only at home, but also throughout Europe. Some European countries, including France, have announced that sanctions could be imposed on Israel if it does so.

The ECHR’s ruling appears to have endorsed these very announcements, overstepping its mandate, which is judicial review, and breaking into political territory.

Such trespass establishes a regrettable precedent and its unintended long-term consequences may be far-reaching.