Commentary on the case of Baldassi and others vs. France , ECHR 11 June 2020
Summary: The European Court of Human Rights (ECt.HR) has ruled that calls for boycott of Israeli products are justified under European human rights law. This case raises serious policy issues. BDS activities are at their core discriminatory and anti-Semitic, and should be prohibited – as they are in several countries.
The BDS-movement was launched in 2005 by Palestinian organizations with the purpose to call for a boycott, sanctions and the withdrawal of investments (disinvestment), all directed against Israel, because of its policies concerning Palestinians living in what they considered to be occupied Palestinian territory. It grew out of the 2001 Durban Conference, which branded Israel as an apartheid state guilty of ethnic cleansing and genocide. Organizations such as NGO Monitor have exposed the Durban conference as deeply anti-Semitic, because it attacks the very existence of the Jewish people as a nation in the land.
As US negotiator Tom Lantos observed:
“The official NGO document they produced debases terms like genocide, ethnic cleansing, and crimes against humanity by using them to describe Israeli settlement policies in the occupied territories. This language not only infects the official document of the NGO forum itself, but tragically is also evident in the Youth Forum document. The leaders of the great Western human rights NGOs like Human Rights Watch, the Lawyers Committee for Human Rights, and Amnesty International participated in the NGO Forum in Durban. Shockingly, they did almost nothing to denounce the activities of the radicals in their midst. They made no statements protesting the debasement of human rights mechanisms and terms taking place in front of their eyes and they offered no support to the principled position that the Bush administration took against the singling out of Israel and Jews for attack and criticism at the conference. Instead, they repeated, like a mantra, the ludicrous charge that the Bush administration was using the Middle East issue as a smokescreen to avoid discussion of slavery. Durban demonstrates that we cannot always assume that all NGOs are focused on advancing universal standards of human rights.”
Since then, many NGO’s (non-governmental organizations) and individuals all over the world support the purposes of the movement and put this into practice by organizing boycott actions in supermarkets and other venues to incite customers not to buy Israeli products, as did the applicants in this case. They consider this to be a way to express their opinion, protected by Article 10 ECHR. In a previous commentary we have seen that the ECt.HR has ruled that calls for boycott of Israeli products are justified under Article 10 ECHR.
The BDS movement and anti-Semitism
Some commentators have welcomed this judgment. One writer referred to it as “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.”
Freedom of expression is an important value, and must be protected. But the same is true for the prohibition of discrimination.
Those who defend the BDS movement and its activities as legitimate argue that it is a valid way of defending human rights and criticizing Israeli policies that infringe Palestinian human rights. But they miss the point of the BDS movement, and under-estimate its malicious background. The problem with the BDS movement is that it is cloaked in language which seems to promote modern values such as human rights, but at its core it attacks the right of the Jewish people to nationhood, and the legitimacy of the Jewish State of Israel.
As Canadian PM Trudeau has observed, the BDS movement is at its root “deeply anti-Semitic in nature”, because (citing Prof. Irwin Cotler) it demonizes Israel, applies a double standard, and calls into question the legitimacy of the Jewish State of Israel.
Human rights advocate and former Chair of The Institute for the Study of Global Antisemitism and Policy Natan Sharansky has stated: “when the Jewish State is singled out for criticism that not even the vilest dictatorship is subject to and it is held to standards that not even the most vibrant democracy is judged by – those are double standards, and that is antisemitism.”
Professor Alan Dershowitz explained in 2019 that the BDS movement is a form of anti-Semitism, infringing the now widely-accepted IHRA definition:
“Three years ago, the international community came to an important consensus on defining antisemitism – in the form of the IHRA Working Definition. Since then, 15 countries and the EU have formally adopted the definition. The United States also uses the definition. The IHRA Working Definition does not curtail criticism of Israel. It does not silence anybody. What it does is to identify speech that may be antisemitic, just as racists and other forms of bigoted speech have been identified and condemned in the marketplace of ideas.
BDS is an antisemitic tactic directed only against Jewish citizens and supporters of Israel. Its purported protest is not against Israeli policies but a protest against Israel’s very existence. It has nothing in common with a grassroots protest campaign, because it is led by a small number of extremely well-funded and closely coordinated organizations, who together decide on strategies and tactics – hiding behind a façade of promoting international law and human rights.
If one looks at the foundation documents of the BDS campaign, one will realize that it reeks of bigotry. First, it calls to end the so-called “colonization of all Arab lands,” denying the Jewish people any right to self-determination in their historic homeland. Second, calling for a return of all Palestinian refugees including descendants and other relatives to their “homes” and properties in reference to UN Resolution 194, would in fact mean, the end of the State of Israel as a Jewish and democratic state.
As shown in this report, many leaders of Palestinian organizations created under the disguise of promoting human rights and for the purpose of strengthening the idea of an “active Palestinian civil-society” have disseminated and endorsed anti-Semitic rhetoric and motifs. The relentless delegitimization and demonization of the Jewish State directly or indirectly contributes to the stigmatization against Jews as individuals.”
The Court’s omission
In the Baldassi case, the Court overlooks this important background. It hardly pays attention to the relevance of the rights of those who were discriminated by the action of the applicants. In the framework of the balancing of the importance of the freedom of expression and the counterweighing right to be protected against discrimination, one would have expected a more thorough analysis. The Court should have looked into the effect of the actions on Israeli citizens against the background of the dark history of the treatment of Jews in European history. In history the call to boycott products sold by Jews (“Kauft nicht bei Juden”) frequently was one of the first expressions of anti-Semitism.