Freedom of Speech and Criticism of Israel’s Human Rights Record

By Alex Neve and Beatrice Vaugrante

On February 22 of this year, the House of Commons passed a motion condemning the Boycott, Divestment and Sanctions (BDS) movement initiated in 2005 by Palestinian civil society. The BDS movement is a non-violent, global campaign which encourages organizations, activists and citizens to apply economic pressure on Israel “until Palestinian rights are recognised in full compliance with international law.”

Amnesty International does not take a position vis-a-vis the BDS movement.  We do, however, unequivocally support the right of individuals to engage in the debate associated with the movement and associated campaign, including the right to advance the objectives of the BDS movement and promote the view that boycotts, divestment and sanctions should be applied.

We are deeply concerned, therefore, that the House of Commons motion goes further than simply rejecting the BDS movement and calls “upon the [Canadian] government to condemn any and all attempts by Canadian organizations, groups or individuals to promote the BDS movement, both here at home and abroad.”  It is unclear what steps the government is expected to take pursuant to this motion to condemn promotion of the BDS movement. Many such measures would certainly raise serious concerns about violating or casting a chill upon the right to free expression. 

The government, which voted in favour of the motion, has not responded or provided any clarification as to the meaning of “condemn”.  While voting in favour of the motion, Minister of Foreign Affairs Stéphane Dion signaled concern about the implications for free expression, pointing out that, “Canada and Israel are strong, vibrant democracies where legitimate criticism within legitimate discourse is expected and accepted as the way to build consensus.”

It is incumbent upon the government to now make a clear statement that the motion will not be interpreted or applied in a way that directly or indirectly violates or undermines the right of individuals to exercise their free expression right to promote the BDS movement. 

Amnesty International’s concerns about the need for strong action to protect free expression rights in this context are heightened due to a longstanding pattern of intimidation of and attacks against human rights defenders within Israel, which has escalated recently.  That concern extends to a growing number of recent laws passed by Israeli authorities restricting the space for opposition to Israeli government policies and actions, including a law that makes it a “civil wrong” for any Israeli citizen or institution to call for a boycott of Israeli institutions or companies in response to Israel’s occupation or illegal settlements.

Amnesty International’s concern about the recent BDS motion builds on similar preoccupations about the Memorandum of Understanding between the Department of Foreign Affairs, Trade and Development Canada and the Ministry of Foreign Affairs of the State of Israel regarding Public Diplomacy Cooperation ( MOU), which was concluded between the Ministers of Foreign Affairs of the two countries on 18 January, 2015.

Amnesty International similarly expressed concern that various provisions in the MOU may infringe on the right to freedom of expression. That MOU is grounded in a concern about “efforts to single out the State of Israel for criticism”, noting in particular “calls for a boycott of the State of Israel, for the divestment of investments, and for sanctions to be imposed on Israel.”  The MOU refers to “selective targeting of Israel” as being the “new face of anti-Semitism.” The MOU commits Canada and Israel to “work together to oppose efforts to single out or isolate the State of Israel.” Language such as this in the MOU which refers to opposing criticism of Israel, opposing boycotts, and in particular expressing “opposition to those” who would call Israel’s existence or right of self-defence into question raises very real concerns about respect for freedom of expression.

When it comes to a government’s obligations with respect to freedom of expression there is a very important difference between disagreeing with or responding to criticism and campaigns on the one hand, and opposing or condemning criticism or campaigns on the other.  Unless criticism or campaigns involve criminal acts that are, when narrowly and proportionately described, recognized to be legitimate exceptions to freedom of expression, such as hate speech provisions in the Criminal Code, governments are barred from curtailing or prohibiting expression. In fact, they should ensure that the space and opportunity for offering such criticism, particularly when it is contrary to the government’s views and policies, is fully protected.

It is of course entirely legitimate for a government to respond to the substance of any such criticism or campaign, including the BDS movement, by expressing an opposing view and by correcting or clarifying misinformation or mistakes, and to do so vigorously and unapologetically. It is a violation of international human rights law, however, to condemn or oppose the offering of the criticism or the promotion of the campaign itself.

Alex Neve has been the Secretary General at Amnesty International Canada since January 2000. He has participated in many Amnesty International missions, and has represented Amnesty International at international meetings such as the Summit of the Americas and the G8 Summit. Alex holds a Bachelor Laws from Dalhousie and an LL.M In International Human Rights Law from the University of Essex. In 2009 he was awarded an honorary Doctorate of Laws degree from the University of New Brunswick. He was named an Officer of the Order of Canada in 2007. Follow Alex on Twitter @AlexNeveAmnesty

Béatrice Vaugrant is the Director General of Amnesty International Canada (Francophone). Follow her on Twitter @BeatriceVaugrante