Using criminal law to counter critics opens up problems that may very well play into the hands of those who oppose both Israel and free society.
Earlier this month, friends of Israel from all over the world gathered in Jerusalem for a conference organized by the Foreign Ministry. They discussed how best to counter the ubiquitous campaigns aimed at delegitimizing Israel whether in the international media, through boycott, divestment and sanction actions (BDS) or at the UN. The conference offered many good examples of why Israel can call itself a democracy despite the complexities of the ongoing conflict. To name but a few examples it has an independent and assertive Supreme Court, a free press and its army makes extensive efforts to avoid civilian casualties in the mire of urban warfare.
These are facts that the world needs to be made aware of. But there is one tactic that proponents of Israel should refrain from.
SOME ORGANIZATIONS have resorted to taking legal action against Israel-bashers through national and international laws that prohibit both so-called hate speech and incitement to discrimination, including boycotts based on national origin, race or religion. Several French BDS activists, including a mayor, have been convicted for advocating boycotts.. Posting a sticker with the words “Boycott Israel” may be sufficient for conviction.
From the outset it might be tempting to use criminal law to counter Israel-bashers, some of whom do not shy away from shameful anti-Semitism. But using criminal law to silence opponents is objectionable for a number of reasons. The first objection is a principled one.
Governments have no place deciding what their citizens should think and say or which products they should buy or sell. Using criminal law to counter critics – even if they are bigoted – also opens up a Pandora’s box of problems that may very well play into the hands of those who oppose both Israel and free society.
If anti-boycott and hate-speech laws can be used by supporters of democratic Israel, they can also be used by supporters of totalitarian Iran. Moreover, hatespeech laws are continuously being harmonized and toughened throughout Europe. Since hate-speech and anti-discrimination laws often turn on vague and subjective elements, they not only target bigots but stifle public debate of important and issues.
In many countries, authors and newspapers have been the subject of criminal proceedings based on criticism of immigration policies as well as religion. In France, a Christian organization successfully managed to get a journalist fined for critical writings about the Catholic Church’s role in the Holocaust. Several newspapers which printed the Danish Muhammad cartoons had to defend themselves in court and even though not convicted, most newspapers will think twice about republishing cartoons or offending Islam.
One Danish newspaper even apologized for publishing the cartoons and entered into a settlement agreement with a Saudi lawyer claiming to represent the descendants of Muhammad.
At the UN, the 57 countries in the Organization of the Islamic Conference have long advocated the criminalization of “defamation of religion” and argue that criticism of Islam and “Islamophobia” are prohibited by the UN’s covenant on civil and political rights. This is a concerted attempt to strengthen global hate-speech laws and it is supported by Russia, where a director of a museum was recently fined for organizing an art exhibition which offended Russian Christians and the Orthodox Church.
IT BECOMES impossible to counter this blatant attempt to censor global media and free debate if the resistance to this campaign is not based on a principled defense of freedom of speech in the First Amendment tradition, which protects even views that are reprehensible. One cannot convincingly criticize the OIC agenda while simultaneously attempting to silence critics of Israel – even if bigoted – through the use of criminal law.
Those who favor using hate-speech and anti-boycott laws against Israel-bashers may counter that these laws are well established and even recognized by the European Court of Human Rights. But the fact that these laws exist do not mean that they are just. After all, wealthy Saudi sponsors of terrorism and crooked Russian oligarchs may use existing English libel laws to silence critics around the world.
If those standing up for Israel should resist the temptation to use criminal law, what strategies could they then pursue? The gathering in Jerusalem showed a number of best practices. A prominent US lawyer demonstrated how a thoroughly researched report based on irrefutable facts resulted in a UN report acknowledging that threats against freedom of religion are a much bigger problem in Hamas-ruled Gaza than in Israel. Similarly the Canadian “Buycott” initiative has been successful in defeating boycott attempts through organizing the purchase of Israeli products and engaging boycott activists with counterarguments.
These initiatives show that Israel-bashing and BDS campaigns can be countered through civic activism that thrives on rather than poses a threat to freedom of expression. Such a strategy is much more likely to win over the public debate than legal action aimed at silencing critics and bigots. And winning the public debate is crucial to countering misconceptions about Israel. Otherwise pro-Israeli activists may find themselves very busy suing those who seek to delegitimize Israel.
The writer is head of legal affairs at CEPOS, a Danish think tank, and an external lecturer in international human rights law at the University of Copenhagen.