Is calling for a boycott of Israel a form of hate speech?

Us intolerant liberal types who favour using the power of law to put an end to the sort of intolerant words and deeds that we detest should look to Canada and ... ponder.

As I have said before, I have a somewhat conflicted attitude towards the Israel-Palestine situation:

I’ve long since given up on trying to get my head around the rights and wrongs of Israel’s actions toward the Palestinian territories. It’s one of those issues that would demand far, far more time and effort on my part to understand than can ever pay off in terms of useful action, and at the end of that process I'd still have a nagging doubt that I was wrong. Thus my default position on Israel and Palestine tends to be “a plague on all your houses”.

That may be a sign of moral cowardice, or cast my basic humanity in a poor light. I have to wear such judgments as the cost of my complacency. However, I have to further admit that my ambivalence on the matter extends to the current "Boycott, Divest and Sanction" (BDS) movement intended to pressure Israel into changing its policies towards the Palestinian people. 

Yes, I get that the Israeli Government under Netanyahu is pretty awful ... very, very awful. But a few years ago a visiting scholar from an Israeli law school played guitar and led the carol singing at our Faculty Christmas party, after organising a great afternoon of croquet for us all. Could I really tell him to his face, "sorry - wonderful human being that you are, I will have no professional association with you because your Government (which I'm betting you didn't vote for) is doing some really shitty things"? 

I'm just not sure that I'd be able to do it. So I don't think I personally could sign up to the BDS goals, were it something that ever confronted me. But I also get that others feel more strongly about this issue than I do and do feel morally certain enough to make the judgment that Israel ought to be treated as a pariah state. And they want to get others to see the world in their terms, because they believe that they have right on their side.

Which would seem to be OK - using your powers of persuasion to try and get others to voluntarily exercise their consumer choices in a particular way, or not to do business with certain companies, or to refuse to engage with representatives or members of particular entities all seems to be a part of everyday civic discourse. Hell, it seems to be some people's entire raison d'être! 

But not, it would seem, in Canada:

In January, Canada's then foreign affairs minister, John Baird, signed a "memorandum of understanding" with Israeli authorities in Jerusalem, pledging to combat BDS.

It described the movement as "the new face of anti-Semitism."

A few days later, at the UN, Canadian Public Security Minister Steven Blaney went much further.

He conflated boycotts of Israel with anti-Semitic hate speech and violence, including the deadly attacks that had just taken place in Paris on the Charlie Hebdo magazine and a kosher supermarket.

Blaney then said the government is taking a "zero tolerance" approach to BDS.

Now, it may well be that some individuals or groups advocating BDS harbour anti-Semetic motivations - just as some individuals or groups who support Israel are driven by Islamophobia. But to entirely conflate the two is obvious nonsense. For example, just last week on National Radio's Sunday Morning programme, Wallace Chapman interviewed Amira Hass - an Israeli journalist and daughter of Holocaust survivors who has spent more than two decades reporting on the Israel-Palestine conflict - on why she supports the BDS movement.

To then say that this support marks Ms Hass out as "anti-Semetic" is to rob the term of all meaning - or, rather, it turns any and all criticism of the present actions of the Israeli State into prejudice against the Jewish people. Which is just as silly as saying that members of Northland Iwi asking the Sami people to support their calls for Statoil to stop oil prospecting in Te Reinga Basin thereby demonstrates that Iwi at the tail of Maui's fish hate New Zealanders qua New Zealanders.

Nevertheless, if this is the view that the Canadian Government has chosen to take of the matter, the question then arises - what is it actually going to do in relation to private individuals or civil society groups issuing calls to refrain from engaging with Israeli companies and institutions? Because Canada isn't (yet) a totalitarian autocracy where you need permission before saying what you think. Is it?

The government's intention was made clear in a response to inquiries from CBC News about statements by federal ministers of a "zero tolerance" approach to groups participating in a loose coalition called Boycott, Divest and Sanction (BDS), which was begun in 2006 at the request of Palestinian non-governmental organizations.

Asked to explain what zero tolerance means, and what is being done to enforce it, a spokesperson for Public Safety Minister Steven Blaney replied, four days later, with a detailed list of Canada's updated hate laws, noting that Canada has one of the most comprehensive sets of such laws "anywhere in the world."

Gosh ... that seems pretty heavy-handed! Could it really be that (for example) standing outside a Tennis Stadium with a sign urging spectators not to pay money to watch an Israeli player could result in criminal action? Or that a group of University academics who urge their peers to refuse to engage in research collaboration with Israeli colleagues could get arrested for their views?

The answer, it seems to me, is "maybe - but probably not - although that's unlikely to be the point". Canada does have some pretty strict laws against "hate speech" both at the national and provincial level. I'll just deal with the national (federal) stuff here. Under the Criminal Code, s. 319(2):

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years ...

Subsection 7 then defines an "identifiable group" as being "any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability." Those bolded words were added to the legislation in November 2013, with at least some alleging they were included precisely in order "to make it possible to prosecute human rights discourse and advocacy relating to the oppressive treatment of Palestinians by the state of Israel as hate speech or incitement of hatred."

Now, that may be seeing conspiracy where good old-fashioned intolerance of intolerance is at work. But irregardless, if the BDS campaign "wilfully promotes hatred" of either Israelis or Jewish people generally, then s.319(2) prohibits it. And the Supreme Court of Canada then has found in the case of Saskatchewan Human Rights Commission v Whatcott [2013] 1 S.C.R. 467, at [57]

where the term “hatred” is used in the context of a prohibition of expression in human rights legislation, it should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.

So I guess it is possible that you could maybe try to argue that someone publicly advocating that others should not engage with Israel and Israelis because of the terrible treatment of Palestinians would cause a reasonable person to view the expression as likely to expose Israelis to detestation and vilification. Maybe. Which would then make pro-BDS speech illegal. Unless, of course, the defence in s.319(3)(b) kicks in:

No person shall be convicted of an offence under subsection (2)


if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true;

Which looks to me to encompass the BDS movement - or, at least, the "nicer" elements of it who are genuinely motivated by halting Israeli "crimes" against Palestinians rather than hating on Israel because Jews are bad. 

The point being that the chances of successful prosecution look to me, from a legal point of view, pretty low. (Although, it has to be noted, there have been some 20 convictions of BDS activists in France under the so-called "Lellouche law" - the text of which I haven't been able to find - which shows that the risk isn't entirely zero!)

But I think that whether convictions will result isn't really the point. Instead, merely threatening the use of these laws is intended have a chilling effect on groups that have supported (or may be thinking about supporting) the BDS movement. After all, litigation risk is something that any reasonable NGO or union or professional organisation has to take into account when adopting policies. And if coming out in support of BDS might get you a visit from the Mounties, should you really do so?

Which then raises an interesting thought for us lefty-liberal types. Because we're used to thinking of provisions like Canada's s.319 as being weapons in the culture war against bad guys/girls - the racists, the homophobes, the misogynists. You know, all those backward enemies of human equality whose views ought to be consigned to the dustbin of history. And if the power of the law can put them there more quickly, then let's get the law into action!

What we didn't really stop to think about was, what happens when the people with their hand on the law's trigger want to use it to shut down the sort of speech that we, while perhaps not 100% in agreement with, feel is very valuable and important? Because suddenly the power of the law doesn't look quite as attractive, when it isn't the good guys who are in charge ... .


Postscript: Could our Government make similar threats against the supporters of a BDS strategy here in New Zealand? Well, maybe they could. Maybe they could


[Update: Now you've spent your time reading this post, you should be aware of this development:

The federal Conservatives are denying there's any basis to a CBC News story saying the government is signalling its intention to use hate crime laws against Canadian advocacy groups that encourage boycotts of Israel.

But the response from the Tories appears to contradict the email comments by a public safety ministry spokeswoman, who cited Canada's hate crime laws when asked specifically by CBC News about the government's "zero tolerance" for Israel boycotters.

So the story seems to be that the Canadian Government promised zero tolerance for BDS activities, were asked "what does that mean?", replied with a list of hate speech provisions ... and now say that there is no intention to use them against those advocating BDS. Which all makes very little sense.]