France’s prime minister has criticised boycotts of Israeli products, saying they fuel anti-Semitic sentiment. But critics say using France's strict laws against "inciting discrimination" to criminalise the boycotts violates free speech.

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Addressing a meeting of the Crif, the umbrella group of French Jewish communities, on Monday, Manuel Valls said “French authorities must change their attitude” towards demonstrations that call for a boycott of Israeli products, which he accused of fostering a “nauseating climate” in the country.

“It is perfectly obvious how we have shifted from criticism of Israel to anti-Zionism and from anti-Zionism to anti-Semitism,” he added, slamming a recent protest in Paris, staged by the Boycott, Divestment and Sanctions (BDS) movement, which opposes the Israeli “colonisation” of Palestinian land and has grown in popularity as people lose faith in the stalled Mideast peace process.

When the Crif’s president, Roger Cukierman, repeated longstanding calls to ban all BDS protests, Valls said he had discussed the issue with France’s interior minister and would raise it again. He did not specify what actions he had in mind, though adding that any new step would be taken “in compliance with the rule of law”.

'Inciting hatred'

In the case of France, the rule of law already provides ample scope to crack down on the likes of BDS. Nicolas Hervieu, a legal expert and lecturer at the Panthéon-Assas University in Paris, noted that “France already has a law to pursue such groups, and it is very much in use.”

Hervieu pointed to a recent ruling by the Court of Cassation, France’s court of final appeal, which upheld the criminal convictions of 12 BDS activists who burst into a supermarket in 2009 wearing “Boycott Israel” shirts and handing out fliers that read, “Buying Israeli products means legitimising crimes in Gaza.”

In ruling against the activists, the court cited French anti-discrimination laws that prescribe imprisonment or a fine of up to $50,000 for parties that “incite discrimination, hatred or violence towards a person or group of people on grounds of their origin, their belonging or their not belonging to an ethnic group, a nation, a race or a certain religion”.

The legislation means that what BDS activists regarded as political statements denouncing Israel’s violations of international law could be – and indeed were – treated by French courts as an "incitement" to hatred.

Potent legislative tool

Much of France’s legislation against hate speech goes back to the late 19th century. But it was strengthened in 2003 with the so-called Lellouche law, which added stiffer penalties and emphasised the protection of “national groups” alongside the more customary parameters of race, religion and sexual orientation.

The stated aim at the time was to curb a rise in racist incidents, including anti-Semitic attacks, which coincided with a surge in support for the far-right and anti-immigrant National Front party. But the law’s reference to the victimisation of nationality also turned it into a formidable tool to prosecute anti-Israeli groups.

As Israeli newspaper Haaretz noted in 2014, “the dragnet has also swept up BDS protesters whose actions have targeted Israel, not Jews”.

The left-leaning daily said the Lellouche law was “among the world’s most potent legislative tools to fight (…) BDS, and has catapulted France to the forefront of efforts to counter the movement through legal means.”

It quoted Pascal Makowicz, the Crif’s top lawyer, as saying that the French law amounted to “the most effective legislation on BDS today”. The lawyer added: “We had only one acquittal, so the statistics are looking good.”

Curtailing free speech

Last October, Makowicz published a post on the Crif’s website in which he hailed the decision by the Court of Cassation in the Colmar case, saying it definitively sanctioned the illegality of boycotting Israeli products.

The ruling by France’s highest judicial court, he argued, “confirmed that freedom of expression can be subjected to restrictions and sanctions that are necessary in a democratic society in order to protect order and the rights of other individuals”.

But the court’s decision sparked outrage among several rights groups, including accusations of double standards at a time when French authorities were rallying behind satirical weekly Charlie Hebdo and the cherished principle of free speech.

The Paris-based Human Rights League (LDH) said the ruling constituted an “infringement of freedom of expression”, describing it as “a consequence of attempts to silence all criticism of the policies of Israeli governments”.

Prominent journalist Glenn Greenwald, known for his work on NSA whistleblower Edward Snowden, asked in a scathing article: “Where are all the newfound free speech activists who insisted after the Charlie Hebdo murders that a defense of free expression was so vital to all that is good and just in the Western world?”

State of emergency

The row over France’s criminalisation of calls to boycott Israel comes amid mounting concern over the restriction of individual liberties in the wake of recent terrorist attacks.

Just days after Greenwald's outburst, US-based NGO Freedom House wrote in its annual report that anti-terror laws in France had prompted the sharpest decline in “freedom on the Internet” of all the 65 countries in the study, barring only Libya.

Earlier this week, the state of emergency imposed after the November 13 attacks in Paris prompted a rare rebuke from a panel of UN rights specialists, which slammed “excessive and disproportionate” restrictions on key liberties.

The extraordinary powers were even used to place environmental activists under house arrest during the COP21 climate summit in Paris, a move veteran activist Naomi Klein blasted as a “gross abuse of power that risk[ed] turning the summit into a farce”.

But rights groups have so far struggled to get their message across amid a fraught atmosphere marked by fear of further terrorist attacks and reports of a spike in both anti-Semitic and Islamophobic attacks.

There was widespread dismay earlier this month after a Jewish teacher was attacked and injured in broad daylight by a machete-wielding 15 year-old who claimed to act in the name of the Islamic State (IS) group. When a local Jewish leader urged members of his faith to refrain from wearing their skullcaps, President François Hollande said it was “intolerable” that French citizens would have to “hide because of their religious beliefs”.

Slippery slope

France’s Socialist government has acted aggressively to crack down on anti-Jewish and anti-Israeli speech. It has also been forceful in its condemnation of Islamophobic attacks.

The government notably banned comedian Dieudonné M’bala M’bala, who has been convicted multiple times of belittling the Holocaust. But while Dieudonné’s anti-Semitic speech has been proven in court, critics of Israeli policy are a very different matter.

Hervieu, the French legal expert, said it was of course imperative to combat anti-Semitism and other forms of racism.

However, he added, “One has to be wary of the perverse effect of victimising those who spread nefarious ideas while at the same time banning a discourse that is perfectly legitimate in a democracy”.

He described the existing legislation as “perfectly questionable in terms of freedom of expression”, adding: “The problem is that it leaves little or no room for differentiation between campaigns motivated by racist beliefs and those motivated by political considerations.”

Critics have noted that under a strict application of the law, campaigns to boycott South Africa’s former apartheid regime would have been liable to prosecution.

The paradox may explain why many French prosecutors have been reluctant to enforce it, and why France’s previous conservative government felt the need in 2010 to publish a memo, known as the “Circulaire Alliot-Marie”, urging them to prosecute people who call for boycotts of Israel.

Hervieu said he agreed with Haaretz’s assertion that such legislation would be a hard sell in other European countries, such as the United Kingdom, where, according to the newspaper, “free speech traditions are more robust”.

In its 2014 article, Haaretz noted that pro-Israeli activists in other European countries had been less successful in challenging BDS and other groups calling for boycotts of Israel.

Hervieu said existing laws meant France was, relative to many other Western democracies, a little further down the “slippery slope” of restrictions to freedom of speech.

European appeal

BDS activists are hoping European judges will prove more lenient when they take their case to the European Court of Human Rights (ECHR) this year. But Hervieu pointed to a legal precedent that could dampen their optimism.

In 2004, the ECHR upheld the conviction of a French mayor who had called for a boycott of Israeli products in his town. It ruled that in punishing “his incitement to discrimination and not his political opinions”, France had not violated his freedom of expression.

The ruling in the so-called "Willem vs France" case came as a surprise to many observers as it appeared to contrast with the court’s past decisions, which tended to veer in favour of protecting free speech.

Hervieu noted that the ECHR’s decisions were typically very close, not least because the court’s multinational composition inevitably ensured that a plurality of views and legal traditions are represented.

“It is perfectly normal for democrats to have opposing views on such sensitive topics,” he said, adding that it was possible the Strasbourg-based court might overturn the French verdict this time.

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