By François Dubuisson, Professor of International Law (ULB) and member of the JURDI Scientific Council
The proposed law «aimed at combating renewed forms of antisemitism,» tabled by Caroline Yadan and others[1], provides for the introduction of a series of new offenses into the French penal code in response to the resurgence of antisemitic acts and statements observed since the Hamas attack in October 2023 and the Israeli war in Gaza. The reforms envisioned by the proposed law raise numerous questions regarding respect for the requirements stemming from freedom of expression, due to the significant new limitations placed on the exercise of this right. JURDI will examine in this paper the specific consequences of the proposed law for preserving free legal debate on the Israeli-Palestinian conflict in its many dimensions.
As the European Court of Human Rights emphasized in its ruling Baldassi v. France, The Court held that «respect for public international law by the State of Israel and […] the human rights situation in the occupied Palestinian territories» constitute a «matter of general interest» that is part of «a contemporary debate, open in France as in the entire international community»[2]. According to the Court, this falls within a domain that «leaves little room for restrictions on freedom of expression,» except in cases of ’incitement to violence, hatred, or intolerance«[3]. From this perspective, three offenses proposed in the bill raise serious concerns about the preservation of free debate regarding Israel’s application of international law and risk directly impacting the work of civil society organizations such as JURDI.
1. The extension of the glorification of terrorism to the characterization of acts as "legitimate resistance" or to the "relativization" of terrorist acts
The proposed law aims to penalize, firstly, the presentation of acts of terrorism "as legitimate resistance" and, secondly, "statements that have the purpose or effect of trivializing, minimizing, or relativizing acts of terrorism," even if they do not express a favorable opinion of these acts. The potential scope of these two offenses would be considerable and would inevitably have consequences for the ability to hold a legitimate legal debate on the classifications to be applied to acts of armed violence perpetrated by various actors in various conflicts, particularly with regard to Article 51 of the Charter of the United Nations on self-defense in the event of armed aggression. The question of the legal definition of terrorism is highly controversial internationally, even more so in the case of the fight against a "foreign occupation," as is the case with the Israeli-Palestinian conflict, and the answer can only be the product of complex legal reasoning open to debate. The question of whether the State of Israel is entitled to use force under the guise of "self-defense," and whether its actions constitute "state terrorism," are delicate issues that require a fully preserved space for doctrinal debate. All these questions necessarily involve a process of historical, political, and legal contextualization that must not be hindered in any way by the risk of being perceived as a means of "relativizing" or "minimizing" acts of terrorism. From this perspective, the two proposed offenses, with their broad and vague definitions, constitute a disproportionate infringement on freedom of expression.
2. Incitement to the destruction or negation of a State
The exact content of this new offense of inciting the destruction or denial of a state is hardly explained in the proposed law. The only explanation given is that "nothing can justify a call for the destruction of Israel." In any case, calls for the (violent) destruction of a state already appear to be covered by various existing offenses (incitement to violence, glorification of war crimes or crimes against humanity, etc.), which renders the new offense largely unnecessary. On the other hand, an offense of inciting, directly or indirectly, the "denial of a state" would be entirely unprecedented, yet its substance has not been defined in any way in the explanatory memorandum of the proposal. We are therefore left to speculate as to what specific types of statements would be targeted. Whether or not a state is recognized by France should not infringe upon the right of individuals to hold debates on this subject, concerning the relevance of such recognition, the legitimacy of the form of government chosen by such state, the historical conditions of its creation… In the specific context of the Israeli-Palestinian conflict, discussions on the different formulas for a solution – two states, a single binational state, a confederation… – which could lead to a substantial modification of the legal form of the Israeli and Palestinian states, fall within a fully legitimate legal and political debate that cannot be limited by a criminal law.
3. The extension of the offense of Holocaust denial to relativization through comparison, analogy, or drawing parallels
The proposed law also aims to extend the offense of Holocaust denial to include "relativization" through "comparison, analogy, or drawing parallels," with the stated objective of penalizing "the comparison of the State of Israel to the Nazi regime […] as an outrageous trivialization of the Holocaust" (explanatory memorandum, p. 8). The proposed text is very broadly worded, since any comparison, analogy, or drawing parallel between a given situation and the genocide committed by the Nazi regime seems likely to fall under the definition of "relativization," even though historical or legal analysis very regularly proceeds by comparison—which does not imply equivalence—and by reference to precedents, particularly case law. As is well known, the question of classifying a series of acts committed by the Israeli government against the Palestinian population of Gaza as genocide is a pressing issue and is widely debated, notably in the context of the case brought by South Africa against Israel before the International Court of Justice. There is a risk that the proposed text could be used to accuse those who advocate applying the genocide designation to Israel of "relativizing" the Holocaust by drawing a parallel with a state "perceived as a Jewish community," to use the terms of the IHRA definition of antisemitism, to which the explanatory memorandum of the proposed law refers (explanatory memorandum, p. 5). Thus, this broad extension of the offense of Holocaust denial could have extremely negative effects both on scientific research in general and on the legal debate concerning the classification of violations of international law committed by the Israeli authorities in the context of the Gaza war.
- Bill "aimed at combating renewed forms of antisemitism", presented by Caroline Yadan and others, National Assembly, November 19, 2024, No. 575. ↑
- ECHR, Baldassi and others v. France, judgment of 11 June 2020, § 78. ↑
- Ibid., § 79. ↑
