Legal briefing - BDS: a Legitimate Human Rights Movement to be Respected and Protected by States
In light of the Israel-led campaign of de-legitimization and intimidation in many countries against human rights defenders who campaign for Palestinian rights through BDS advocacy, this brief presents an overview of facts and legal principles and demonstrates that BDS is legal and an expression of the responsibility of civil society to act for realizing Palestinian human rights.
A Briefing on the Right to Boycott
Prepared by the Palestinian BDS National Committee (BNC), May 2016
The BDS movement is a Palestinian civil society-led global movement of citizens that carries out and advocates for nonviolent campaigns of boycotts, divestment and sanctions (BDS) as a means to overcome the Israeli regime of occupation, settler-colonialism and apartheid and achieve freedom, justice and equality of the Palestinian people.
In light of the Israel-led campaign of de-legitimization and intimidation in many countries against human rights defenders who campaign for Palestinian rights through BDS advocacy, this brief presents an overview of facts and legal principles which demonstrate that,
- The BDS movement pursues a genuine and legitimate human rights agenda which is in conformity with international law and resolutions adopted by the United Nations;
- BDS campaigning is not only a right. It is also an expression of the responsibility of civil society to act for realizing Palestinian human rights which, in light of the failure of the United Nations to do so, is a moral imperative and has been publicly supported by UN human rights experts;
- Individuals, groups, associations, local councils and public institutions participating in BDS campaigns in Palestine and elsewhere are human rights defenders. They are entitled to protection and support by governments and national authorities in accordance with the UN Declaration on Human Rights Defenders.
- At the very least, states and national authorities must uphold and respect the right to boycott as part of the right to freedom of expression. Free speech is incorporated into the national legislations of democratic states. On this basis, states have respected many citizens’ boycotts, including during apartheid in South Africa and the Civil Rights movement in the United States. Equal respect is owed to BDS campaigning.
Based on the above, this brief shows that the BDS movement is entitled to protection, support or at least respect by everyone concerned about human rights and democracy, and that national authorities, including governments, lawmakers and courts, must distance themselves from Israel-led attacks.
BDS: a Legitimate Human Rights Movement to be Respected and Protected by States
A Briefing on the Right to Boycott
Prepared by the Palestinian BDS National Committee (BNC), May 2016
The General Assembly,
Acknowledging the important role of international cooperation for, and the valuable work of individuals, groups and associations in contributing to, the effective elimination of all violations of human rights and fundamental freedoms of peoples and individuals, including in relation to mass, flagrant or systematic violations such as those resulting from apartheid, all forms of racial discrimination, colonialism, foreign domination or occupation, aggression or threats to national sovereignty, national unity or territorial integrity and from the refusal to recognize the right of peoples to self-determination and the right of every people to exercise full sovereignty over its wealth and natural resources,
Recognizing the right and the responsibility of individuals, groups and associations to promote respect for and foster knowledge of human rights and fundamental freedoms at the national and international levels,
Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.
— Excerpt from the UN Declaration on Human Rights Defenders, 9 December 1998.
The BDS movement is a Palestinian civil society-led global movement of citizens that contributes to ending the systematic violation of fundamental human rights of the Palestinian people resulting from the Israeli regime of occupation, settler-colonialism and apartheid. The movement carries out and advocates for nonviolent campaigns of boycotts, divestment and sanctions (BDS) as a means to compel Israel to end these flagrant violations and respect the human rights of Palestinians, including the rights to self-determination, equality and return of the refugees.
BDS is rooted in a long heritage of Palestinian nonviolent resistance and is inspired by the South African anti-apartheid movement and the U.S. Civil Rights Movement.
In light of the Israel-induced attacks on the BDS movement in several countries, including undemocratic legislation, lawsuits and threats against the safety and integrity of human rights defenders active in the movement, this brief provides an overview of facts and legal principles which explain why national authorities, including lawmakers and courts, must cease these attacks. It also explains why individuals, groups and associations active in the BDS movement are entitled to protection, support or at least respect by states and everyone concerned about human rights and democracy.
BDS: a legitimate human rights agenda
The BDS movement pursues a genuine and legitimate human rights agenda, because the rights claimed, the nature of the Israeli violations addressed and the means promoted for eliminating these violations are grounded in international law and recognized by the United Nations, including:
- The right of Palestinian refugees to return to their homes and properties;
- The right to self-determination of the Palestinian people. In the early 1970s, the UN General Assembly declared that the right to self-determination and the right of the refugees to return to their homes and properties are inalienable rights of the Palestinian people, and that the exercise of these rights is a condition for lasting peace; and,
- The right of the Palestinian people to resist foreign occupation by lawful means.
The flagrant and systematic Israeli violations established by the Security Council, General Assembly, the International Court of Justice (ICJ) and/or the Human Rights Council include:
- Severe and repeated breaches of the Fourth Geneva Convention resulting from the illegal Israeli settlements, annexation of occupied Palestinian and Syrian territory including East Jerusalem and the Golan Heights, the Wall and Israeli military operations. These include findings on Israeli war crimes, such as forcible transfer of populations and indiscriminate or deliberate military attacks against Palestinian civilians and their property, most recently in the occupied Gaza Strip. Some of these prima facie war crimes are currently the subject of preliminary investigation by the International Criminal Court (ICC);
- Violation of the prohibition of acquisition of territory by force and the right to self-determination of the Palestinian people with the Wall that annexes de facto many of the illegal settlements in occupied Palestinian territory. The ICJ (2004) confirmed that these are violations of universally binding (peremptory or jus cogens) norms of international law and the Charter of the United Nations;
- Institutionalized racial discrimination, racial segregation and apartheid through a myriad of discriminatory laws, policies and separate “Arab and Jewish sectors” which deprive Palestinian refugees and Palestinian citizens of Israel of status, rights and resources equal to the Jewish population. In the Occupied Palestinian Territory, including East Jerusalem (OPT), these violations, as well as findings on colonialism, have been established in connection with the illegal settlements, the privileged status and rights of settlers under Israeli civil law, and the separate, restrictive military regime over the occupied Palestinian population.
Third state responsibilities, i.e., the legal obligations of all states and their organizations such as the UN and EU in connection with the flagrant Israeli violations:
- In the 1980s, the Security Council called on UN member states not to provide any assistance to Israel that may be used to maintain the illegal settlements and annexation occupied territory;
- The General Assembly called for a military embargo as well as economic and other sanctions against Israel for this reason;
- In 2004, the ICJ confirmed that the serious violations carried out by Israel with the illegal Wall and settlements – acquisition of territory by force, violation of the right to self-determination and some of the serious breaches of the Fourth Geneva Convention – result in third state responsibility, that the UN should adopt measures for ending these violations, and that all states are to refrain from providing recognition, aid or assistance in maintaining the unlawful situation resulting from them.
With regard to business in the OPT, the Human Rights Council has confirmed that:
- Private companies must ensure that their business activities are in conformity with international law and the Guiding Principles on Business and Human Rights and do not have an adverse impact on the human rights of the Palestinian people, and that this includes terminating their business interests in the illegal Israeli settlement activity;
- All States are to take appropriate measures to ensure that business enterprises domiciled in their territory and/or under their jurisdiction, including those owned or controlled by them, respect the above in the conduct of their business operations;
- In March 2016, the Council decided to facilitate the implementation of the above by establishing a UN database of companies implicated in the illegal Israeli settlement enterprise.
BDS: a moral imperative
As explained in the Palestinian civil society’s 2005 BDS Call, the launch of the BDS movement was motivated by the failure of UN resolutions, international interventions and peace-making since 1948 to end the flagrant Israeli violations of the fundamental human rights of the Palestinian people.
The assessment that states and the United Nations have failed the Palestinian people and that action by civil society, as was done to end apartheid in South Africa, is imperative has been supported publicly by many UN experts. In 2006, for example, the UN Special Rapporteur on Human Rights in the OPT concluded in his report to the Human Rights Council (at paragraph 75) that,
It is pointless for the Special Rapporteur to recommend to the Government of Israel that it show respect for human rights and international humanitarian law. More authoritative bodies, notably the International Court of Justice and the Security Council, have made similar appeals with as little success as have had previous reports of the Special Rapporteur. It also seems pointless for the Special Rapporteur to appeal to the Quartet to strive for the restoration of human rights, as neither respect for human rights nor respect for the rule of law features prominently on the agenda of this body, as reflected in its public utterances. In these circumstances, the Special Rapporteur can only appeal to the wider international community to concern itself with the plight of the Palestinian people.
In 2010, the Rapporteur concluded (at paragraph 39):
Individuals and NGOs have come out in support of BDS in increasing numbers… It is [… ] making use of persuasive and coercive non-violent means to secure the human rights of Palestinians living under oppressive and unlawful conditions of occupation that the actions of diplomacy or the authority of the organized international community seem unable to correct. BDS represents the mobilized efforts of global civil society to replace a regime of force with the rule of law in relation to the OPT,
and recommended (at paragraph 40) that,
Consideration should be given [by the Human Rights Council] to the Boycott, Divestment, and Sanctions campaign as a means of implementing human rights, including the right of self-determination, and guidelines should be provided for such a campaign.
BDS: a movement of Human Rights Defenders
As confirmed by Amnesty International, BDS activists are human rights defenders entitled to protection. Amnesty has publicly called on the Israeli government to stop violent threats, arbitrary arrests and forms of intimidation and restrictions against Palestinian and Israeli human rights defenders, among them Omar Barghouti, a founding member of the BDS movement.
BDS activists, groups and associations in Palestine and elsewhere are protected human rights defenders under the 1998 UN Declaration on Human Rights Defenders, because:
- We contribute to the effective elimination of violations of human rights and fundamental freedoms of the Palestinian people;
- We are committed to the universality of human rights as defined in the Universal Declaration of Human Rights. BDS is an inclusive human rights movement that calls for equal rights, rejects all forms of racism and discrimination, and does not target any person or entity based on their respective origin or identity. Rather, the movement targets Israel’s flagrant violations of human rights and oppression of Palestinians and challenges privileges derived from these. Conscientious Israelis are part of the movement;
- Our non-violent BDS campaigns meet the requirement of peaceful action under the UN Declaration.
The status of human rights defender also applies to the (members of) private and public institutions, local councils, government officials and parliamentarians worldwide who meet the above criteria and carry out or advocate for BDS measures, including divestment or non-procurement from businesses and institutions involved in Israeli violations of Palestinian human rights. This is because the Universal Declaration for Human Rights provides in Article 1 that, “Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.”
The Declaration does not create new law. It rather specifies the particular meaning of existing civil and political rights, such as the rights to freedom of expression and assembly, political participation, fair trial and access to effective remedies, for human rights defenders and the corresponding duties of states.
Of particular relevance for the BDS movement is that the Declaration emphasizes that:
- The right to participate in peaceful activities against violations of human rights includes the right to react against or oppose acts of states that support or result in violations of human rights;
- The right to peaceful activities against human rights violations includes the right to act at the international level, and to cooperate internationally with NGOs, states and the United Nations;
- States, which have the primary duty to implement human rights, are to protect human rights defenders. This includes the obligation of states to ensure that their domestic law and judicial framework is consistent with the Charter of the United Nations and international human rights law, and to adopt such legislative, administrative and other steps as may be necessary to ensure that the rights of human rights defenders are effectively guaranteed.
Western states, including the United States and members of the EU, are the primary promoters of the mechanisms established to implement the Declaration internationally. This has resulted in a situation where the activities of the Organization for Security and Cooperation in Europe, Council of Europe and the UN in support of human rights defenders have been focused on Russia, China and other Asian and African countries.
At the same time, these Western states have failed to protect the human rights defenders of the BDS movement, including their own citizens, from intimidation, restriction, Israeli espionage and criminalization under domestic laws. Many of these governments cooperate with Israel in delegitimizing and undermining the BDS movement, among others by using existing domestic law or promoting new legislation to restrict, outlaw or criminalize BDS, and by upholding the position that WTO law precludes divestment or non-procurement from businesses involved in Israel’s flagrant violations of the human rights of the Palestinian people, a position that is baseless and contradicts international law. Such governments should be held accountable to the universality of their obligations under the Declaration, including the concerns and calls adopted by the UN General Assembly in a 2015 follow-up resolution on human rights defenders:
Mindful that domestic law and administrative provisions and their application should not hinder, but enable the work of human rights defenders, including by avoiding any criminalization or stigmatization of the important activities and legitimate role of human rights defenders and the communities of which they are a part,
Gravely concerned that national security and counter-terrorism legislation as well as measures in other areas, such as laws regulating civil society organizations, are in some instances misused to target human rights defenders or hinder their work, endangering their safety in a manner contrary to international law,
Urges States to acknowledge through public statements, policies or laws the important and legitimate role of human rights defenders in the promotion of human rights, democracy and the rule of law;
Calls upon all States […] to ensure that the promotion and protection of human rights are not criminalized or met with limitations in contravention of international human rights law.
BDS: protected under the right to freedom of expression
The right to boycott, meaning the right to advocate for and participate in BDS actions, is supported by international human rights law on which the Declaration on Human Rights Defenders is based.
The International Covenant on Civil and Political Rights (ICCPR) affirms the right to hold opinions without interference and the right to freedom of expression, as well as other interrelated rights such as the rights to freedom of assembly and association. While freedom of expression may be subject to restriction, the call for BDS does not fall within the narrow limitation outlined in the ICCPR. In 2014, the UN Human Rights Committee reviewing Israel’s implementation of the ICCPR has criticized the Israeli anti-boycott law in its report (paragraph 22) for this reason.
In 2012, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression confirmed in his report on Israel and the OPT (paragraph 34) that “Calling for or participating in a boycott is a form of expression that is peaceful, legitimate and internationally accepted.” The Palestinian Human Rights Organizations Council (PHROC) has called on states to respect the right to BDS on this basis.
The right to freedom of expression is widely incorporated into the domestic legislation of states, and in practice, governments have in general accepted the right of their citizens to practice domestic and international boycotts as a means to end violations of human rights, including child and labor rights and environmental abuses. In some occasions, governments and public institutions have also provided at least partial support to such civil society campaigns, the most famous historical examples being the international boycott campaign against apartheid in South Africa and the Civil Rights movement in the United States.
Legal protection of the right of citizens to boycott is particularly robust in states in which free speech is a constitutional right, such as in the United States. In light of the increasing willingness of US lawmakers to craft anti-BDS legislation explicitly tailored to protect Israel’s violations of international humanitarian law and human rights of the Palestinian people, civil rights organizations such as the New York branch of the American Civil Liberties Union (ACLU) have already made clear that:
To uphold the right to engage in a boycott is not necessarily to support its aims or objectives – just as to uphold freedom of speech is not to endorse the ideas expressed. However, when advancing a bill that addresses the scope of politically motivated speech, assembly, association and expression, lawmakers are bound by certain first principles of a constitutional democracy. These principles compel government to promote, and to protect, the robust contest of ideas. The proposed legislation would violate these constitutional principles.
European governments, lawmakers and courts, including the European Court of Human Rights are still due to uphold at least equal protection of free speech, including the right to boycott. At the very minimum, European governments should follow the example of the Swedish foreign ministry which affirmed basic democratic principles by stating that BDS “is a civil society movement” and that “governments should not interfere in civil society organization views”.
 See also: Report of the UN Fact Finding Mission into the Gaza Conflict 2008-9 (“Goldstone Report”), A/HRC/12/48 (15 September 2009).
 See also: Report of Human Rights Council’s Independent Fact Finding Mission on the Israeli Settlements in the OPT, A/HRC/22/63 (7 February 2013); Reports of the UN Special Rapporteurs on Human Rights in the OPT John Dugard, A/HRC/4/17 (29 Jan 2007), and Richard Falk, A/HRC/16/72 (10 January 2011) and A/HRC/25/67 (13 January 2014).
 Fact Finding Mission on the Israeli Settlements, supra, para. 117.