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Housing construction is ongoing on the eastern slopes of Pisgat Zeev, in East Jerusalem, January 23,2017.Nir Alon Zuma Press/Press Agency. All right reserved. In recent weeks great attention and debate have
followed the approval of the United Nations Security Council (UN SC) Resolution 2334, which reaffirmed with clarity the international
illegality of the Israeli settlements in the Palestinian Territory occupied
since 1967, including East Jerusalem. By contrast, an important statement
signed – on the eve of the UN SC vote – by more than
200 lawyers and professors of International Law (among whom were John Dugard,
Guy Goodwin-Gill, Kevin Jon Heller, Robert Kolb, Alain Pellet, Marco Sassòli
and William Schabas) passed almost unnoticed.
The document is directed against the measures adopted
by several states to outlaw, prohibit, and in some cases to criminalize the “Boycott, Divestment
and Sanctions” (BDS) campaign, which has for years engaged in the promotion of
critical consumerism and economic non-cooperation of national and local
institutions with Israeli companies and bodies involved in the occupation of
the West Bank and in practices violating the human rights of Palestinians.
One of the decisive passages of the statement
declares: “Whether one approves of the aims or methods of BDS is not the issue.
The issue is whether, in order to protect Israel, an exception is to be made to
the freedom of expression that occupies a central and pivotal place among
fundamental human rights. States that outlaw BDS are undermining this basic
human right and threatening the credibility of human rights by exempting a
particular state from the advocacy of peaceful measures designed to achieve its
compliance with international law”.
The problems reflected in the statement offer
different profiles of interest. They intersect, in fact, between at least two critical levels of international legal discourse: on the
one hand, the growing debate – even jurisprudence – related to the content and
limits of the right to freedom of expression, as enshrined in human rights
conventions; on the other hand, the growing discussions about horizons and
contradictions of the human rights
movements, about the decline of
their emancipatory potential and
the emergence of a “dark side”
of these rights capable of altering, and even capsizing, their protective
functions.
The Boycott, Divestment and Sanctions
campaign
The BDS campaign has recently achieved
significant world impact. Campaign activists have greeted as success the sale of most of its activities in Israel by the British company
of security services 'G4S', targeted for providing equipment and technologies for Israeli
military prisons, checkpoints and settlements in the West Bank. Moreover,
mobilizations for the boycott caused, according to many observers, the withdrawal of the French telecommunications giant Orange from
activities in Israel (in particular after the publication of a report denouncing involvements of the company in the
infrastructure of the Israeli occupation).
In recent years this impact has induced the Israeli government to develop countering strategies that have raised
concerns from various human rights organizations. In July 2011, the Knesset had
approved the Bill for Prevention of Damage to the State of Israel Through
Boycott, which, as a result of amendments that changed the provisions
originally intended to create a criminal offence, sanctioned the promotion of
boycott as a civil offence. The law sparked protests from several Israeli civil rights NGOs and pushed
organizations like Human Rights Watch to assert that the bill "stifle[d]
expression".
The radicalization of the state-sponsored opposition
to the BDS movement has since grown steadily, both in intensity and in the kind
of arguments used. In March last year, for example, the Israeli intelligence
Minister Yisrael Katz spoke openly of the need for “targeted
civil eliminations” in relation to BDS movement
leaders. This motivated Amnesty International to issue a tough statement, inferring from the expression of the Minister an allusion
to targeted killings ( “the term alludes to “targeted assassinations” which is
used to describe Israel's policy of targeting members of Palestinian armed
groups”) and requesting the government of Israel to “stop intimidation against human
rights defenders” and to “protect them from attack”. According to several
national newspapers, in 2015 the Government of Israel (in support of what some
commentators have called a «declaration of war» against the campaign) has allocated some 100 million NIS
(26 million euros) for internal and international activities against the
movement. Similarly, anti-BDS activities have been a major point in the covert lobbying
campaign (and recruiting
activities) linked to the Israeli Embassy in the
United Kingdom, as recently unveiled by Al Jazeera, whose inquiry led to the resignation of a young Israeli diplomat.
What level of “threat”, therefore, is posed by the BDS
movement? Is it a threat for the State of Israel? Or does the campaign pose a
threat only for its illegal occupation?
It is significant, in this regard, the constitutive appeal of the campaign (available here), entitled: “Call for Boycott,
Divestment and Sanctions against Israel Until it Complies with International
Law and Universal Principles of Human Rights [emphasis added]”,
signed in 2005 by over 170 Palestinian organizations of different inspirations. The call requests the implementation of divestment
initiatives against Israel "similar to those applied to South Africa in the
apartheid era" in order to "end the occupation and colonization of all Arab
lands and dismantle the Wall", to "recognize the fundamental rights of the
Arab-Palestinian citizens of Israel to full equality" and to promote "the
rights of Palestinian refugees to return to their homes and properties as
stipulated in UN resolution 194". This request, addressed significantly also to "conscientious Israelis for the sake of justice and genuine peace
[emphasis added]", is openly qualified by the subscribers as a last resort
tool, because – as they underline – "all forms of international intervention
and peace-making have until now failed to convince or force Israel to comply
with humanitarian law, to respect fundamental human rights and to end its
occupation".
In light of these explicit premises,
arguments against BDS centred on accusations of racism and anti-Semitism
frequently directed at the campaign by several commentators (see, between many,
Hirsh) appear to lack persuasive force. On the contrary, it
seems only fair to note that (no matter how subjectively one shares or disagrees
with the arguments of the mentioned call) the “order of discourse” of international
law, along with the keywords of self-determination,
protection of human rights, non-discrimination and peace, constitute the main anchor of
the campaign claims.
This observation is particularly evident by virtue of
the recent UN SC Resolution 2334, the content of which appears to highlight
that the instances of the BDS movement reproduce, on the level of civic
mobilization, numerous warnings and calls from international institutions
against the long-lasting violations of international law reiterated in the
Middle East conflict.
The resolution, in fact, expresses strong condemnation
of the construction and expansion of settlements and the related “confiscation of land, demolition of homes
and displacement of Palestinian civilians” continued over the years. The
Security Council, therefore, emphasized that the “the status quo is not sustainable”, as it is “steadily eroding the
two-State solution and entrenching a one-State reality”.
The Resolution also calls on third countries to “distinguish, in their
relevant dealings, between the territory of the State of Israel and the territories
occupied since 1967” and, above all, it reaffirms the obligation of Israel to
freeze “all settlement activity” and to dismantle “all settlement outposts
erected since March 2001”.
Legal validity
Despite the dramatic reactions of the Israeli government, the remarks of the UN SC are
predominantly a consolidation of orientations already followed several times
before by different international institutions.
For a brief reconstruction of the international legal issues of the Israeli occupation, it is worth
recalling that the International Court of Justice (ICJ), in the well known
Advisory Opinion on the Legal Consequences of the Construction of the Wall in
the Occupied Palestinian Territory, authoritatively concluded on the international illegality of the Israeli settlements
in the West Bank, stating that they violate the provisions of art.
49, par. 6 of the 1949 Fourth Geneva Convention,
prohibiting an occupying power from “transfer parts of its own civilian
population into parts of its own civilian population into the territory it
occupies”.
It is important to note that this prohibition, among the sources of
international humanitarian law, holds particular force, as it is: 1) considered
of customary rank and 2) qualified as a grave
breach of the Conventions protection system by art.
85(4)(a) of their 1977 First Additional Protocol.
The article has then been used as a model in the drafting of the war crimes
offenses of the Rome Statute of the International Criminal Court, which, in
fact, codifies the conduct in question in its art. 8(2)(b)(viii).
For these reasons, the Resolution recalls that the
policy of Israeli settlements “has no
legal validity” and constitutes a “flagrant violation” of the Fourth Geneva Convention (reiterating
the assertions of Resolutions 446
and 452
of 1979, and of the ICJ itself in the mentioned Advisory Opinion, see par.
120).
Even the Fourth Hague Convention of 1907
dictates prescriptions relevant for the situation at issue. In the Regulations on the Laws and Customs of War on
Land annexed to the Convention, in fact, art.
55 states that “The occupying State shall be
regarded only as administrator and usufructuary [emphasis added] of
public buildings, real estate, forests, and agricultural estates belonging to
the hostile State, and situated in the occupied country”. It is also provided
that the capital of these properties must be safeguarded, and they should be
administered in compliance with the rules of the usufruct. Clearly the law of
armed conflict is no longer that of 1907, but according to several recent
reconstructions, dedicated specifically to the law of occupation, there are
only two conditions (developing from the mentioned article) that justify the
exercise of economic activities in occupied territory by the occupying power,
namely: 1) the presence of imperative reasons of military necessity and 2) the
benefit to the population under occupation (v.among others, Arahi Takahashi, p.169). At the domestic
level, Israeli courts have made reference to these conditions in different
cases (see the Israel High Court of Justice in Beth El [Ayub et al. v. Minister of Defense et al., HCJ
610/78] and Elon
Moreh and Cooperative
Society [ Duweikat et al. v. Government of
Israel et al., HCJ 390/79]), while no acknowledgement of their compulsoriness
has come from the Government. On the contrary, the Knesset has discussed in
recent weeks the controversial Regulations Bill that, if passed, would
legalize retroactively the situation of thousands of houses built in violation
of the above-mentioned principles and insisting on private Palestinian
properties subject to illegal expropriations (as underlined by Ronen
and Shani).
United Nations Charter
Effects of the Israeli occupation also collide with
several principles of the United Nations Charter. The right to self
determination of the Palestinian people, repeatedly recognized internationally
(see again the ICJ Advisory Opinion, cit., par.149), is clearly obstructed and eroded by the territorial
atomization due to the continuing growth and multiplication of the settlements
themselves (see, among others, Ben-Naftali,
Gross e Michaeli).
Even in terms of human rights violations, the use of concepts such as
‘apartheid’ or ‘segregation’ cannot be reduced to a mere activists' claim, in
particular if one confronts the definitional elements of the two phenomena
provided by the Convention
for the Suppression and Punishment of the Crime of Apartheid of 1973 and the Convention
on the Elimination of All Forms of Racial Discrimination of 1965, as numerous
and distinguished jurists have done, sharing – in many cases – the opinion that "there are indeed strong grounds to conclude that a system of apartheid has
developed in the occupied Palestinian territory" (Dugard e
Reynolds, p. 912).
A protest against the expanding of Jewish settlements in Kufr Qadoom village near the West Bank city of Nablus, Jan. 20, 2017. Xinhua SIPA USA/Press Association. All rights reserved.
Considering all these legal issues,
scholars have sustained, even more categorically than the BDS campaign, the
existence not only of a faculty, but of an international obligation upon third
states not to trade products from Israeli settlements in occupied Palestinian
territory.(see Moerenhout here
and here;
contra, see Kantorovich
and Crawford).
One of the most discussed aspects of this
debate is the existence, or not, of self-executing obligations of non-recognition from third States with respect to
occupations and annexations violating the prohibition of aggression and the
principle of territorial integrity of States. It is legitimate, in this regard,
to draw a comparison with the annexation of Crimea by the Russian Federation.
The Council of Europe responded to the annexation prohibiting imports from the
region and from Sevastopol (see the Council conclusions of March 2014). The issue remains controversial (see Milano). However, the presence of such an open and challenging
legal debate renders the ‘lawfare’ exercised against the BDS movement by states particularly striking.
Significantly, the fact that the claims of
the campaign clearly echo International Conventions, UN General Assembly and
Security Council resolutions, as well as relevant decisions of the
International Court of Justice, not only failed to stop – in the political
debate – the mislabelling of
this peaceful form of mobilization (intended to influence the political and
military decisions of a government) as an incitement to racial discrimination on an ethnic or
national basis, but failed even to discourage legislative initiatives seeking
to impose this debatable vision juris
et de jure.
These initiatives are too numerous and
differentiated to be exhaustively examined here. A few examples, however, serve
to elucidate:
– In
the United States, the measures
at issue were taken mostly in the form of laws adopted by Federal States to ban
commercial collaborations with, or to exclude from public procurements, the
companies participating in boycotts against States not affected by embargoes or
sanctions. Particularly explicit, among others, the legislation adopted by
Illinois, which prompted the drafting of a blacklist
of companies “engaging in actions that are
politically motivated and are intended to penalize, inflict economic harm on,
or otherwise limit commercial relations with the State of Israel or companies
based in the State of Israel or in territories controlled by the State of
Israel”. This legislation banned the State pension fund from contracting or
investing with those companies (see the amendment to the Pension Code here). Similar provisions are being considered or have been
adopted by several other States (such as the South Carolina Bill H.3583, commented on the Harvard Law Review).
– In February, the Canadian Parliament approved a motion
rejecting the campaign, which – according to the text – “promotes the
demonization and delegitimization of the State of Israel”, and calling on the
government to "condemn any attempt by organizations, groups or individual
Canadians to promote the BDS movement". There have also been voices in support
of the criminalization of the boycott as a form of hate
speech.
– In the same month, the United Kingdom Government, with the declared intention of countering BDS, passed a controversial Policy
Note regarding public procurements, which
essentially required local institutions, public bodies and executive agencies
to cut ties with companies adhering to boycott campaigns, unless already “formal
legal sanctions, embargoes and restrictions have been put in place by the UK
Government”. On the other hand, in June, the High Court of Justice dismissed the claims of Jewish Human Rights Watch against the motions of three
City Councils (Leicester, Swansea and Gwynedd) endorsing the boycott on goods
produced in illegal settlements in the West Bank.
– In France the
legal and jurisprudential scenario is particularly relevant to this discussion.
The home of Charlie Hebdo is the only state besides Israel itself that
criminalizes citizens propagating the boycott of Israeli products. Art. 225-2
§ 2 of the French Criminal Code criminalizes
those who, on the basis of discrimination or of incitement to discriminate on
grounds of the origin or membership of a national group, “obstructs the exercise
of any economic activity”, with a penalty up to three years’ imprisonment.
One of the cases discussed by French legal scholars, however, emerged from
indictments based on different provisions. In October 2015, the Criminal
Chamber of the Cour de Cassation confirmed the sentence imposed and the
indictment issued by the Colmar Cour d'Appel against a group of
activists for distributing leaflets calling for the boycott of Israeli products
in a supermarket. The judges stated that in this case the Court of Appeal had
rightly extended the applicability of Art.
24 § 8 of the Loi
sur le liberté de la presse, which punishes public incitement
to discrimination. The Court of Cassation also asserted that the Colmar Court
had correctly excluded the actions at issue from the scope of application of the
right to freedom of expression laid down in art.10 of the European Convention
on Human Rights (ECHR). According to the judgement, the defendants had incited
discrimination, urging customers not to buy goods because of their national
origins, justifying the compression of freedom as necessary by virtue of other
people's rights, as provided by art. 10 § 2 of the ECHR (Cass. Crim., 20 octobre 2015, No. 1480021, av.
here). The reasoning of Court of Cassation has been subject to
much criticism (see, among others, Médard) for
undermining the distinction occurring between products and producers, and for
failing to clarify to what extent the “incitement” to boycott was characterized
by racist or xenophobic motives.
– Even in Italy
a draft law to stifle the BDS movement has been deposited for
examination at the Senate. The draft includes new amendments to the Italian law
ratifying the Convention on the Elimination of All Forms of Racial
Discrimination in order to punish with imprisonment from six months to four
years those who “obstruct the exercise of any economic activity” on the basis
of discrimination against physical or juridical persons, on the grounds of “membership
of national, ethnic, racial, religious, state or territorial groups”. The draft
also proposes to punish with imprisonment up to six years those who direct or
promote movements with these purposes.
Penal populism
Similar instances of criminalization reveal serious
dangers. Particularly at odds with the arguments behind the adoption of these
laws (and the rhetoric of the forces advocating for them) is the risk of incriminating the same groups they are
intended to protect from discrimination: which would be the outcome of
these penal norms in the numerous cases of staunch Zionist commentators, Jewish organizations, and Holocaust survivors endorsing the boycott in recent years. If inviting to boycott Israeli
products, as these laws assume, equates with incitement to racial
discrimination or anti-Semitism, it may well be possible to indict these
commentators for the same offenses contested in the case of BDS activists and
leaders.
The paradoxes of these legal initiatives, however, are
more general and complex. The laws and draft laws
mentioned previously indirectly utilize the Convention on the Elimination of
All Forms of Racial Discrimination as a source
to criminalize citizens actively advocating for
the respect of the rights therein. The legal tools to be
amended in order to introduce these penal norms, in fact, are precisely the
national laws ratifying the Convention.
This therefore precisely reveals a short circuiting of international
legal discourse: the possibility of outlawing
and suppressing, at state level, not
the violations of international law, but rather the struggles for its affirmation and for international
legality.
One would be hard-pressed to find a more emblematic illustration of the “dark side” of
human rights, as revealed by the growth of repressive optimisms too
often assuming criminal law as the main
instrument to guarantee the effectiveness of these rights.
This over-reliance on penal sanctions, in fact,
usually ignores the dangers arising from the uncontrolled expansion of criminal
systems, in particular when combined with the growth of criminal policies inclined
to pursue merely symbolic functions. A tendency, in other words, leading to penal populism and, consequently, jeopardizing human rights themselves.
Depoliticization
Human rights tend to the universal, but universalism brings with it the
impulse for the de-politicization
and the removal of the adversarial dynamics from which human rights have
arisen. Universalism, in fact, abstracts the human within the Conventions from
the field of tension in which, instead, men exist and operate as historical and political subjects. The more one tries to expand the universalist implications
of these rights and their supposed neutrality, the more generalized the
tendency to transform the human rights language becomes, in a kaleidoscope
of translations and claims intended to universalize particular
interests. Within this tendency, depending on
who in a determined context acts as “translator”, the concepts of abuse, perpetrator and victim
become dramatically interchangeable
(see Gordon and Perugini).
Can collective
subjects, in opposition to transnational dominant powers, restore a progressive
historical function to these rights?
Concepts such as “endtimes” or “twilight”
of human rights and of their emancipatory potential are
becoming a topos of the human rights debate (see, in particular, Hopgood and Posner).
Particularly significant, within this ambit, is the point of view of those who underline that, in the
age of neoliberalism, what escapes the possibilities
of the human rights discourse – neutralizing its performativity – is to assume equality as a crucial factor of
transformation of the reality. “Even perfectly realized – as has been
efficaciously noted – human rights are compatible with radical inequality” (see
Moyn here and,
more extensively, here).
It seems, however, that the short circuit
triggered by campaigns such as BDS testifies to a possibility. It is, on the one hand, surely possible to
agree with the opinion of the jurists subscribing the statement quoted at the
beginning of this argument, that BDS is a campaign exercising the rights
to freedom of expression and political dissent and that, as such,
it must be protected even by those
who do not share its claims.
But, on the other hand, this point of view does not
catch a crucial aspect: campaigns such as BDS have the distinctive
characteristic of going beyond the individual dimension of human rights and their
mere expression. This transforms
these rights into a platform of collective action that, even using the
same “idiom of the hegemonic”, has shown itself able to organize a confrontational pressure of civil
society against the radical inequalities
in the enjoyment of human rights, as well as against the discriminatory selectivity of
the mechanisms to sanction their serious violation on
the basis of power relations.
Gramscian hegemony
From this point of view, the critical issues
mentioned bring to mind the views of jurists attempting to actualize the lessons
of Antonio Gramsci and his theory
of hegemony, by projecting them into the international arena. Some of these jurists, referring to the Prison Notebooks
of the Italian intellectual, have underlined the tactical and strategic
centrality of movements for critical consumerism in the global struggle for
effectiveness and equal enjoyment of human rights.
Within a perspective intended to show the
transformative potential of a theory of International Law “from below”, these
scholars have substantially argued that, as in Gramscian theory, even in the
international arena transnational dominant powers are able to rule over
their social adversaries also because they obtain the consensus of their social allies.
For this reason, international lawyers should look at states “as a plural and
fragmented terrain of contestation rather than as a monolith”. Adopting
this view would induce the acknowledgement that, as
shown by the case at issue, “international law and institutions provide
important arenas for social movement action”, with the consequence of “expanding
the space of transformative politics” based on the nexus between freedom,
social justice and peace (see
Rajagopal, pp. 19 e 23).
After all, the possibility of contending
their outer limits is one of the constitutive
elements of the historical process of codification of human rights. In contradistinction to recent attention directed
at euro-centrism and the colonial mindset behind the
rise of modern international law, many scholars are illustrating how the importance of the
opposite Weltanschauung of decolonization
has been significantly underestimated, and are striving to demonstrate the
crucial endeavours of politicians, jurists and
diplomats of the Global South in setting the human rights agenda between 1948 and the 1960's (see the important
work of Jensen here, and
more synthetically here).
In conclusion, it cannot only be argued that the right to campaign for boycotts
to pursue the affirmation of basic human rights should be protected
by every jurist, legislator and citizen sensible to
the Rule of Law but, more profoundly, it seems
that campaigns such as BDS seem to have formulated new horizons of civil and
political practice (in opposition to declamation) of human rights; horizons that can be useful for those who intend to let these
rights “walk”, in their dialectic relation with the international
powers, “upon their feet rather than on their head”.
This article originally appeared in Italian on the blog
of the Italian Society of International Law.