Situating Shrinking Space of the International Palestinian Solidarity Movement and Advocates for Palestinian Rights within the European Legal Framework

Globally, civil society-based advocacy and campaigns for Palestinian human rights have contributed to public awareness and criticism of Israel’s illegal settlements, annexation of Palestinian land, racial discrimination, and forcible displacement of Palestinians, as well as the role of corporations and governments in facilitating these systemic violations of international law. Civil society organisations and networks, including the Palestinian civil society-led Boycott, Divestment, and Sanctions (BDS) Movement, have mobilised and pushed for the implementation of effective measures by the United Nations, the EU and Member States to uphold international and EU law, as well as Palestinian human rights.

However, a recent trend of criminalizing Palestinian advocacy is spreading dangerously throughout Europe, resulting in shrinking space for advocates who are accused, at best, of disrupting public safety and, at worst, of antisemitism or inciting hate. These groundless accusations are spearheaded by the widespread implementation of the IHRA’s working definition of antisemitism. The definition has been adopted by a concerningly high number of European legislative bodies, including the German Bundestag, and the Austrian and British Parliaments. It goes without saying that the shrinking space of Palestinian civil society impairs the work of NGOs operating in Palestine, and Palestinian rights advocates internationally, which in turn, wholly undermines the Palestinian cause.

In 2004, the European Union adopted the Guidelines on Human Rights Defenders, a tool aimed at supporting and protecting human rights defenders and their cause. This non-legally binding tool failed to prevent the blatant attack on six leading Palestinian NGOs that Israel designated as terrorist organizations to outlaw them and delegitimize their work.

[1] Earlier this summer, Israeli Occupation Forces (IOF) raided their offices, confiscated documents and equipment, destroyed office items, and sealed their doors. While European governments publicly denounced the grave limitation of Palestinian civic space, this attack from the IOF reasserts the EU’s shortcoming in providing effective protection for human rights defenders in Palestine.

Similarly, there is no mechanism set in place to protect Palestinian human rights defenders based in the EU territory. Consequently, Palestinian rights advocates in Europe face attacks and shrinking of civic space that remain as unaddressed as attacks on civil society in Palestine. Last May, Berlin authorities prohibited all public gatherings aimed at commemorating the 74th anniversary of the Nakba, based on claims that the majority of participants in the demonstration would be from the Arab diaspora and from Muslim-influenced groups. The justification was that “experience has shown that this clientele currently has a clearly aggressive attitude and is not averse to violent action”.[2]

This goes to show just how much public discourse surrounding the Palestinian cause is endangered in Europe. In a region where freedom of expression and opinion and freedom of peaceful assembly are supposedly guaranteed, this is a worrisome development. These attempts to silence Palestinian and allies’ voices by criminalizing Palestinian rights advocacy and denial of public spaces increase the difficulty in amplifying the Palestinian narrative and advancing Palestinian rights.

This already hostile environment is aggravated by the lack of an institutionalized European response, which borders on complicity in its inability to face systematic and multifaceted attacks directed against the Palestinian solidarity movement. European inaction renders the EU the silent accomplice of the always wider shrinking Palestinian civic space in the region. Activists are currently forced to resort to individual judicial remedies in order to see their rights protected, which is often a long and expensive road to take.

BDS and the criminalization of human rights defenders

Conflating the Palestinian rights movement with antisemitism has been the prevailing silencing mechanism considering that European guilt and atonement, as incumbent as it is, also conflates Judaism with Zionism. That atonement, Edward Said once explained, exploits the tie between the victims of the Holocaust and Israel’s actions as a state, instead of noting how it has been used to protect Israel from its crimes against the Palestinian people.[3] In theory, the implementation of the IHRA definition in the UK, Germany, and Austria is nothing new in a long historical trend where Palestinian grievances, including their right to armed resistance, are pushed out of the frame through a constant discussion about terrorism and antisemitism. In practice, however, the IHRA definition adds another dimension to the crackdown on human rights defenders in Europe as alleged antisemitism now constitutes a breach of law or policy at the disposal of pro-Israel lawfare groups.

Alongside the adoption of the IHRA definition - which already blurs the lines between antisemitism and antizionism by putting Israel into the equation - several city councils in Germany and Austria identified the international BDS movement as an antisemitic venture. In June of 2018, the Austrian city councils of Vienna and Graz adopted a motion that rejected the BDS campaign, labeling it as antisemitic. In May 2019, the German Bundestag took it one step further by implementing a similar motion on a national level, which intertwines “the pattern of argument and methods of the BDS movement” with “the most terrible phase of German history”.

The BDS movement has been labeled as antisemitic since its launch in 2005, but the aforementioned developments of the IHRA definition and Anti-BDS resolutions have completely closed the civic space for Palestinian rights advocacy in their respective countries. Although the space for human rights defenders to organize, participate, and communicate has always been exceptionally limited and policed when discussing Israel-Palestine, such motions set a dangerous precedent. Despite their non-legally binding nature, the motions justify the limitation of the three freedoms of expression, assembly, and association that provide the civic space for activists, scholars, and civilians to discuss BDS in the first place.

In accordance with the Anti-BDS motions and IHRA definition, municipal authorities in Austria and Germany are prohibited from supporting events organized by groups promoting boycotting campaigns against Israel. This means that communities, academics, and artists supporting  BDS are denied the use of public spaces, excluded from funding, disinvited from events, and prevented from speaking out. In the UK, too, the use of the IHRA definition has had detrimental effects on students, scholars, and politicians who were targeted in smear campaigns architected by Israeli lobbies. Holding on to their fundamental and constitutional rights, BDS activists and Palestinian rights advocates in Europe continue to challenge unfounded allegations of antisemitism and terrorism under repressive policies.

Ironically enough, the same call for BDS that is punished throughout the EU and the UK when directed against Israel, is preached when directed against Russia, Iran, or North Korea and seen as a legitimate response to their human rights violations and breaches of international law. Considering Russia’s recent invasion of Ukraine, Europe’s reliance on the tools of BDS implies that it is the appropriate mechanism to address a state violating the territorial sovereignty of another, and not an antisemitic “pattern of argument and methods”. After all, European states, organizations, and institutions did not hesitate to implement the exact same measures against Russia that Palestinian human rights defenders have been advocating for to be implemented against Israel for decades now. More cynical is that the Palestinian approach to BDS, which is principled enough to call for a boycott of Israeli institutions and not of Israeli individuals, is seen as antisemitic while the state-led implementation of BDS tools against Russia has been Russophobic at best, and discriminatory at worst.

Europe’s cognitive dissonance when it comes to Israel became more evident than ever once Russia was expelled from competitions like Eurovision, Russian state authorities were sanctioned, and commercial and institutional abstentions through boycotts were called. While these double standards are invisible to those that apply them, and frustrating to those that experience them, they only reaffirm the legitimacy of BDS and righteousness of the Palestinian struggle as a whole.

Reclaiming shrinking space: resisting the repression of Palestinian voices

In spite of deterring anti-BDS legislation and policies across EU Member States, human rights defenders persist in their struggle. They are demanding justice, both at the national and international level, to challenge the repression of their rights and the silencing of their voices.

The monumental judgement by the European Court of Human Rights (ECtHR) in the case of Baldassi and Others v. France is indicative of the hope for achieving protection of the right to boycott under international human rights law. On 11 June 2020, the ECtHR ruled that Article 10 of the European Convention on Human Rights (ECHR) protects the right to call for a boycott of goods from Israel.[4] The case involved 11 BDS activists who partook in demonstrations calling on consumers to boycott Israeli products. They were consequently criminally charged with inciting economic discrimination against Israeli goods producers. The trial court acquitted them, but the court of appeal convicted and fined them, and the Supreme Court upheld their convictions, concluding – without reasoning – that the convictions were “necessary in a democratic society”.[5]

The ECtHR observed that a boycott is a means of expressing protesting opinions. The activists’ calls for boycott, therefore, enjoy, in principle, the protection of freedom of expression under Article 10 ECHR.

[6] The demonstrations constituted part of a contemporary debate, and concerned a subject of general interest: respect for international and human rights law by Israel. Further, they were a form of political expression. The ECtHR has repeatedly stressed that there is very little room for restrictions on freedom of expression in the area of political discourse, or questions of general interest.[7] Ultimately, it ruled that there had been a violation of the BDS activists’ right to freedom of expression. In another victory, the Constitutional Court of North Rhine-Westphalia (NRW), Germany, ruled in September 2020 that a motion adopted by the parliament of NRW designating the BDS movement as antisemitic may infringe constitutional and fundamental rights.[8] Said non-legally binding motion was adopted in 2018 and led to city councils adopting similar resolutions. The City Council of Bonn not only passed an anti-BDS resolution, but also invited all municipal institutions not to support the movement or its affiliated groups. German-Palestinian organizations and human rights defenders inevitably found themselves bearing the brunt of the motion, especially the Palestinian Community of Bonn and the German Palestinian Women’s Association. The two organizations, with the assistance of a lawyer and the European Legal Support Center, filed a complaint against the motion before the Constitutional Court of NRW.