BDS is the French exception to international boycotts

French presidential candidate Emmanuel Macron said on 24 January, “Boycotting Israel has been condemned by France and there’s no reason why we should discuss the matter again.” By sheer coincidence, on the same day, a French Boycott, Divestment and Sanctions (BDS) movement activist appeared in a court in Metz because an Israeli pharmaceutical company, TEVA, blamed BDS for encouraging French pharmacists not sell their generic medicines.

Why is France the only country in Europe — perhaps in the world — apart from Israel, to sue BDS activists? The BDS campaign is worldwide and takes different forms, all of which are non-violent.

Like Israel, France has started to criminalise BDS activities, even though there is a long history of international boycotts; against nuclear tests, for example, or the US invasion of Iraq, and the government in Paris never targeted those calling for such boycotts. Even in France, some calls for boycotts were well-supported; the anti-Apartheid movement against South Africa, for example, and against the military junta in Myanmar when it was in power. So why is France taking this stand against the anti-Israel BDS movement?

According to historian and Middle East expert Dominique Vidal, this can be explained by the size of the Jewish community in France, the largest outside Israel and the US, as well as its large North African community. “Israel-Palestine is thus a sensitive topic,” said Vidal. Indeed, the French government is determined to prevent the conflict from being imported into France. During Israel’s military offensive against Gaza in 2014, this was one of the arguments used to ban any demonstration in Paris in support of the Palestinians. It was, however, swept aside by BDS activist and former co-president of the French Jewish Union for Peace Jean-Guy Grielsamer: “What fuels anti-Semitism is banning BDS,” he countered. “It also assumes that all Jewish people are supporting Israel.” The number of French Jewish activists involved in the BDS movement “is not insignificant,” he added.

Another BDS activist in France, Imen Habib, explained what BDS does: “BDS spreads the call initiated by Palestinian civil society inspired by the fight against apartheid in South-Africa. We invite everyone to look at our guidelines where we outline that a boycott is not an end in itself; it is used against an apartheid regime and we are not targeting kosher products.” The BDS struggle, she insisted, is for human rights. “We are not racists; we are fighting against racism.”

For Dominique Vidal, if it is more complicated to develop any BDS campaign in France compared to other European countries it is because of all the pressure placed on both left- and right-wing governments, which is not the case elsewhere. Such pressure comes from the Israeli state itself and any institution that supports the same viewpoint, such as the Representative Council of French Jewish Institutions (RCFJI), for instance, which does not deny that it defends Israeli policies.

“BDS campaigns were getting bigger in France,” explained Vidal, “then the political pressure started with a dinner organised by the RCFJI in Bordeaux in February 2010. That’s where François Fillon lied blatantly by claiming that it was clear that some people wanted to boycott kosher products.” Michèle Alliot-Marie, the then Minister of Domestic Affairs, spread that fake news. “Saying that there’s a boycott on kosher products instead of Israeli products took the debate to a religious level instead of remaining purely political. Alliot-Marie spread this despite telling parliament a few months’ earlier that there was no kosher product boycott.”

A ministerial order dated 12 February 2010 has been used as a base to all legal actions that have been taken against BDS. Alliot-Marie signed the order telling prosecutors to give “a firm response” to “all calls for a boycott of Israeli products.” The legal reason invoked is either discrimination or racial hatred.

Initially, the issue of BDS was linked to freedom of speech. However, the French Supreme Court, the highest jurisdiction in France, ruled on 20 October, 2015 that simply calling for a boycott of Israeli products would be illegal in France and punishable by law, with a fine of up to €28,000 for those found guilty.

The ruling affected the iconic trial of the “Mulhouse 12”, who were fined heavily for calling for a boycott of Israeli goods while standing in front of a supermarket. Although originally acquitted, they were found guilty by the Supreme Court on the grounds that they encouraged “discrimination, hatred or violence against a person or a group of people on grounds of their ethnic origin, nationality, race or religion”.

According to Habib, pro-Israel pressure has created what is without doubt a real French legal exception. “Whenever BDS activists are being acquitted, the public prosecutor’s office — which is the State — has systematically brought an appeal,” she pointed out. “However, we have noticed that the majority of the accusations have been closed by the public prosecutor’s office itself. Amongst all the cases that had come before the courts the majority ended up with an acquittal, until the Supreme Court rule. There’s a real exception. It goes all the way back to the ministerial order for this, which doesn’t target the activists who boycott China in support of Tibet. This order is politically-motivated because it is only applied to Israel.”

Activists brought an action before the European Court on the grounds that article 10 of the European Convention on Human Rights lays down the principle of freedom of speech. They are worried that, in France, foreign suppliers and manufacturers rights now take precedence over political freedom; that is the implication of the Supreme Court decision. The economic freedom pleaded by the court is not threatened at all; having the right to boycott goods is simply consumers exercising their freedom of choice; it does not, the activists argue, hinder the economic freedom of any Israeli suppliers and manufacturers.

In the meantime, only boycotts decided by the French government — in other words “embargos” —are legal until the ECHR gives its long-awaited decision. In October last year, Federica Mogherini, the EU High Representative for Foreign Affairs, said that freedom of speech as it is defined by the jurisprudence of the European Court of Human Rights should also be applied to information and ideas that ‘”shock or bother the State or any other part of the population”. “The EU,” added Mogherini, “firmly supports freedom of speech and of association… which includes BDS actions.”

Further evidence that the Supreme Court ruling did not close this hot topic came on 10 December, the anniversary of the Universal Declaration of Human Rights, when around 200 European legal experts signed an open letter against the ever more frequent attempts to stifle the BDS movement. Two-thirds of the signatories are very well-respected French citizens. “The question is not about knowing if we approve the goals or methods of BDS,” they wrote, “but in order to protect Israel, an exception to freedom of speech, a cornerstone of human rights, is allowed. States that prohibit BDS actions jeopardise this fundamental right.”

The fact of the matter remains that no subsequent minister of home affairs in France has tried to revoke Alliot-Marie’s order: “The attitude of Christiane Taubira, former Minister of Justice during Hollande’s presidency, has been outrageous,” argued Vidal. “When she was appointed, associations brought to her this Goebbels-type order so that she could revoke it but she didn’t. Why is that?”

The BDS campaign points out that Israeli settlements in Occupied Palestine are illegal according to international law, and violate a number of UN resolutions; the settlements have also been condemned by France. Thus, importing and exporting goods to or from companies located within settlements constitutes a violation of international law.

Despite this French exception, or maybe because of it, the BDS campaign keeps on getting bigger in France. Its successes include campaigns against Veolia and Orange. In Europe, pension funds and banks have stopped investing in Israel. A study carried out by Rand Corporation calculated the loss caused to Israel by BDS at $4.7 billion per year. Israel thus views BDS as a “strategic threat” and its intelligence agencies have a special “BDS team”.

“We have started a campaign for an arms embargo against Israel,” said Imen Habib. “France had planned to buy drones from Israeli company Elbit Systems for a total of €100 million. Eventually, the government changed its mind and bought them from the French Thales Group instead.”

The BDS cultural campaign has also been successful, she added, with artists such as Vanessa Paradis and Peter Brook being convinced not to perform in Israel. “Moreover, four cities have voted to support BDS and not serve any product in their staff canteens that might come from the illegal settlements.”

French public opinion seems to favour BDS activities and a Palestinian State. For Dominique Vidal, there has been a clear evolution in such thought across the years. In 1948, people were mainly in favour of the creation of an Israeli State. “The shift started to happen in 1982, with the Sabra and Shatila massacre during the war in Lebanon,” he explained. “The first Intifada in 1987 shocked the public [in France] when they saw how brutal the Israeli army was. Since 2000, public opinion has been more inclined to listen to the Palestinian narrative. Between 70 to 75 per cent of the people think that a Palestinian State has to be created. This has become very complex for Israel to deal with, since the majority of the public are now in favour of BDS.”

At the same time, Vidal has noticed that the State is becoming more and more in favour of Israel. This started clearly with Nicolas Sarkozy; François Hollande and his Prime Minister, Manuel Valls, have continued to give massive support to Israel.

The day before he went to visit Israel in May last year, Valls said: “The government [in Paris] is clearly against any BDS actions. However, trying to ban it or restrict freedom of speech would be counterproductive.” He claimed that criticism of Israel has moved on to “anti-Zionism” and from there to “anti-Semitism”.

“During the Hollande presidency,” concluded Imen Habib, “the authorities have been allowed to interfere in citizens’ freedom of speech and movement.” She gave as an example the arrest of a woman during a pro-feminism demonstration because she was wearing a BDS t-shirt. “BDS is the target of repression. We reply to this by intensifying our campaign in France.”

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.