France and the BDS Movement

Over the last year, France has displayed courage and initiative in dealing with the threat of Islamic fundamentalism in African countries.  Now it is taking the lead in using legal means to counter and punish not only racists, but also those participating in the boycott, divestment, and sanctions (BDS) movement against Israel, which the French legal system views as an expression of anti-Semitism and as a crime.

Under normal circumstances and in ordinary times, no one sharing democratic values would favor limits on free speech or expression.  However, the world is aware of the abnormality of the German Nazi crimes in implementing their anti-Semitic ideology.  In recent years, a number of countries have criminalized hate speech intended to incite violence against particular groups.  These criminal laws are based on the London Charter for the Nuremberg Tribunal, in which advocacy and dissemination of anti-Semitism were first defined as crimes against humanity.

By the Gayssot Law, enacted on July 13, 1990, France made it a criminal offense to question the existence or the number of crimes against humanity on the basis of the category of crimes prosecuted at the Nuremberg Tribunal.

The Gayssot Law was applied in the case of two professors at the University of Lyon.  The first was Robert Faurisson, France's most determined Holocaust-denier, who was prosecuted and fined.  The verdict was upheld in 1996 by the U.N. Human Rights Committee.  The other case was that of Bruno Gollnisch, a major figure in the National Front (FN) party, who was convicted of contesting the existence of crimes against humanity, sentenced to three months in prison on probation, and fined.

France has gone beyond the Gayssot Law.  It realized that the BDS movement against Israel is the latest weapon being used in the attempt to destroy Israel and is implicitly anti-Semitic because of its concentration on Jews.  Some of the boycotters claim and perhaps genuinely believe they are not attacking the Jewish community, but rather only protesting actions by specific sectors of Israeli society, businesses, academic institutions, or the settlements.  Few boycotters will admit to being anti-Semitic, and some perhaps cannot be characterized as such.

Nevertheless, those boycotters must now consider the possibility that they are deceiving themselves.  The link between espousing anti-Semitic beliefs and opposition to or hatred of Israel, while not universal, is present for many of the boycotters.  France realized that, wittingly or not, the BDS boycotters of Israel are engaged in a war to destroy the Jewish State of Israel.

French politicians also came to understand the interaction between outbreaks of anti-Semitism in their own country and attitudes towards Israel.  They were startled by the level of violence against Jews in France, which had increased with the beginning of the second Palestinian intifada, deliberately started by Yasser Arafat in October 2000.  Furthermore, France was and still is coming to grips with the problem of the lack of integration of resident Muslims, now numbering more than five million.

As a consequence, a legislative bill, named after its sponsor, Pierre Lellouche, a politician born in Tunisia who studied at Harvard Law School among other places, was promulgated on February 3, 2003.  It is an important tool in fighting the BDS movement.  The law extends the definition of discrimination beyond the categories of race, religion, and sexual orientation to include members of national groups.  It seeks to increase the severity with which racist, anti-Semitic, and xenophobic offenses are judged.  Individuals committing these crimes face prison sentences.  Special prosecutors were appointed to handle these cases.  A year later, French governmental electronic and audiovisual communications were strengthened to deal with racism and anti-Semitism.  This restriction resulted in the banning of the Lebanese-based TV channel Al Manar because of its anti-Semitic transmissions.

What is important in all this is that France has made clear the connection between boycotters and the crime of anti-Semitism.  The Lellouche law has been applied in a number of cases against boycotters.  In 2009, and again in 2010,twelve activists who had entered a supermarket in Mulhouse and put stickers with anti-Israeli slogans on vegetables imported from Israel were arrested and fined.  The leader of the group, Farida Trichine, wore a "boycott Israel" shirt during the activity.  On December 1, 2013, the Court of Appeals of Colmar fined each of the twelve boycotters individually for activity that it considered "provocation to discrimination."  This was an important decision, because the ruling, based on the Lellouche law, overturned a lower court verdict that found the twelve not guilty.

Is the Lellouche law too restrictive of free speech? The issue has not yet been completely resolved, and judgments have been inconsistent.  On the one hand, in September 2013, seven anti-Israeli activists were fined for boycott actions in a supermarket in Alençon.  However, the highest Criminal Court of Appeal, the Court of Cassation, in November 2013 acquitted a number of protestors for similar boycott actions in 2009 in a supermarket in Evry, near Paris.

Expressions of anti-Semitism in France are not new, and the scars left by the Dreyfus Affair and the Vichy Regime during World War II are still visible.  But the scale of the war against Jews had increased with attacks on Jewish children, school buses, and synagogues; bombing of Jewish establishments; and murders of Jews, including a rabbi.  The overall level of anti-Semitism in one calculation is said now to be about 24% of the French population.

The war on Jews and support for BDS has come from different sources.  Once it was those attached to right-wing political points of view who were the chief proponents.  Though many right-wing advocates still hold anti-Semitic beliefs, the main proponents now are those on the political left, and above all those in the Muslim community.

France, like other European countries, has a long pedigree of anti-Semitism stemming from those who might be considered on the liberal and leftist part of politics, including Voltaire, some of the figures in the Enlightenment, Marat, Fourier, Proudhon, and Karl Marx, who wrote the Communist Manifesto in Paris.  The leftist cry is rooted today in anti-capitalism, anti-imperialism, anti-Americanism, anti-Zionism, and anti-Semitism.  Sometimes, extreme leftists of Jewish origin, if not guilty of self-hatred, declare their Jewish identity publicly to lend credibility to their anti-Israeli diatribes.

Yet most of the criminal offenses -- physical acts of violence, verbal aggression, hate speech, graffiti, display of swastikas, and most recently the demonstration of the "quenelle gesture," a variant of the ancient Roman salute but more reminiscent of the Nazi salute, are associated with the Muslim population.  Certainly, French Jews believe that this is the case.  In a recent survey, 73% of Jews thought that anti-Semitism comes from Muslim extremists.  Criminal offenses mostly came from the Maghrebian and North African Arab youths living in the banlieus, the suburbs with large Muslim population.

Other countries have enacted laws punishing anti-Semitic manifestations.  But France has led in using legal means to punish the perpetrators of hatred of Jews and the State of Israel.  France, like other European countries, remains troubled by the crime of anti-Semitism in its country, but its legal system has shown the way to punish those guilty of racism and bigotry.

Michael Curtis is author of Jews, Antisemitism, and the Middle East.

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