Then they came for the Jews,
— Martin Niemöller

Court Archives

Since November 2015, I developed a variety of anti-boycott legal strategies. The first one challenged city and provincial councils' decisions to boycott Israel. A year after, a growing number of such decisions have been annulled, while interim injunctions have halted the boycott across Spain, and even a larger number of councils have desisted of passing motions that had previously garnered the support of a majority councillors.

The legal work stresses the protection of Civil Rights where free speech and non-discrimination are paramount

Since November 2016, my legal work enjoys the support of the legal fund of The Lawfare Project (Manhattan, NY).

 
 Roman Vishniac, 1935-38

Roman Vishniac, 1935-38

Langreo City Council. Appellate Court Decision

On January 2016, the City Council of Langreo —a coal-mining town of 42,403 inhabitants in Northern Spain— passed a motion. It  announced that appropriate legal measures would be taken to ensure that every procurement and purchase proceedings would include provisions that would prevent contracting services or buying products from companies complicit in violations of International Law and of the Universal Declaration of Human Rights. In addition, the council would not sign any agreement with public bodies, companies and organizations that were involved, collaborated or benefited from such violations. A formal statement declaring the city 'Space Free of Israeli Apartheid', and the commitment to cooperate with the BDS campaign to boycott Israel were thrown in for the sake of clarity of purpose.

The High Court —an appeal Court— confirmed in September 2016 a previous judgement from a lower tribunal that had ruled the boycott decision illegal due to the lack of powers of the City Council neither to decree an international boycott nor to alter the European Directive and the national law on public procurement, and for blatant breaches of non-discrimination principles. The High Court accepted the direct action of the petitioner, acknowledging our standing, expanding a previous constitutional doctrine on the matter that allowed any Jew to sue for defamation addressed to any Jew or Jewish community, to bring any action based on discrimination or slander against Israelis.

The appellate decision agreed on the lack of power of a city council to order an international or domestic boycott, nullifying each paragraph of the boycott decision as they altogether shaped a decision by a public body that was in breach of the principles of equality before the law and non-discrimination.  

Sant Adriá de Besós. Court Judgement

The Public Court nº 3 of Barcelona issued a judgement on November 30, 2016, annulling the boycott decision passed by the City Council of Sant Adrià de Besòs —a city of 35,386 inhabitants in the metropolitan area of Barcelona. This judgement may act as a deterrent to a boycott decision on Barcelona and in other capital cities, a goal that is actively pursued by the boycott campaign in Spain.

This boycott decision proclaimed the city a ‘Free Space from Israeli Apartheid’, affiliated the Council with the Boycott, Divestment and Sanctions (BDS) campaign against Israeli, and committed the City Council to refrain from signing any contract, agreement or covenant with Israeli public bodies, companies or organizations, lest they would formally adhere to the objectives of the boycott campaign. This last boycott commitment targeted as well —here without any exemption clause— companies, institutions and organizations that might be involved, cooperate or obtain economic benefits from the alleged violations of International Law and Human Rights in the ‘Palestinian territories’ or the occupied Golan.

Finally, for the sake of clarity of purpose, the City Council agreed to engage in cooperation with the BDS movement, to explicitly ensure the proper implementation of the boycott decision; elevating thus, the BDS activists to the category of arbiters of the anti-Israeli policies of the City Council.

The judgement of this Public Court of Barcelona elaborated on several of my legal arguments, rendering the boycott illegal and without effect as in breach of the most fundamental civil liberties.

- The legal reasoning states that public bodies have a duty of restraint and political neutrality, and are not to be used for the political interest of councillors.

This argument is far-reaching as it can be argued in other cases where the wording of the boycott does not include provisions that preclude Israeli companies or companies that engage in business with Israel, from public procurement; as it prevents city councils from transferring particularly inflammatory views to their own cities, avoiding the use of local councils to broadcast radical statements.

- The boycott sets unconstitutional limitations to academic freedom as it subjects every school, college, researcher, teacher, lecturer or scholar who holds a specific position on the Arab-Israeli conflict that does not match the objectives of the boycott campaign, to exclusion from any City Council funds or activities, in addition to being subjected to a decisive public campaign that will undoubtedly affect their reputation and career.

- The boycott sets a restraint on freedom of speech. The endorsement of the boycott campaign against Israel by a public body seeks to control, select and determine the free circulation of ideas in the marketplace.

- The boycott is in breach of cultural, artistic and technical freedom. Any person or organization that holds or advocates a position contrary to the objectives of the BDB campaign will see limitations set to their free will to hold any opinion, and to the right to disclose it or not. The disparity of opinions is a sine qua non condition to guarantee pluralism and the need for the free exchange of ideas that is the foundation of a democratic society. A boycott policy seeks to control, select or punish the public circulation of ideas. In doing so, it violates freedom of speech.

- Freedom of opinion and freedom of religion. Right not to be forced to disclose opinions, religion or beliefs.

The boycott decision by setting a policy of abstaining from any political, commercial, agricultural, educational, cultural, sporting or security agreement, contract or covenant with public institutions, companies and organizations until Israel recognizes the right of the Palestinian people and abides by International Law, sets a restraint which has the effect of preventing, dissuading or restricting the right to hold ideas or opinions without interference.

Both the guidelines and the exemption clause of the boycott campaign that grants relief to companies, institutions and organizations that abide by the objectives of the campaign, ask for an effort to investigate and disclose personal views, opinions and political inclinations, a task explicitly prohibited both in the Constitution of Spain and in a number of international conventions of Human Rights.

- Violation of the right to equality before the Law. The boycott is sheer discrimination that is blatantly in breach of the national Law on public procurement, the Directives of the European Union, and the International Agreements on the matter.

Rivas Vaciamadrid. Court Judgement

On late May 2016, the City Council of Rivas Vaciamadrid —a town of 80,483 inhabitants, and a traditional trove of Communist support in Madrid— passed a decision committing the Council to sign neither any political, commercial, agricultural, educational, cultural, sporting or security agreement or contract with Israeli institutions, companies and organizations, nor with bodies, companies and organizations that are involved, collaborate or in any way, capitalize on the violation of International Law and Human Rights in the Palestinian territories or in the occupied Golan.

Only the subjects of the primary boycott -Israeli companies, bodies and organizations- could be exempted from such rigours by abiding to the three goals of the boycott campaign. However, such remedy of a public abjuration de vehementi was not accessible to the subjects of the tertiary boycott -any company, body or organization involved in business with Israeli partners.

An amendment to the original motion inserted a provision by which the Council will adopt any technical proceedings for public procurement and purchases, legally within his realm: a thinly disguised cautionary formula designed to excite from a Court a ruling of nonjusticiability by merits of the decision being unenforceable, and thus, outside the Court’s jurisdiction.

As a matter of form, the City Council was granted the BDS-approved seal that distinguished the city as a “Free Space of Israeli Apartheid”, under the condition of it being displayed in the city’s website and in its publications, and the commitment to disseminate the boycott campaign among residents and local businesses.

Finally, the City Council agreed to engage and promote cooperation with the BDS movement in order to ensure the proper implementation of the boycott decision.

In the debate of the decision, the spokesman of the Council and deputy major announced that he was ready and excited to defend Human Rights in Court before the Zionists. We complied, seeking an immediate relief.

Court number 4 of Madrid issued on late July 2016, a interlocutory writ of injunction ordering the City Council to restrain for carrying out the boycott provisions as their application would determine a real veto to organizations, businesses and bodies of a particular country or which, in the sole opinion of the members of the City Council —i.e., without seeking the opinion of competent international body—, were involved, collaborate or profit from the violation of International Law and Human Rights in the Palestinian territories and in the occupied Golan or as correctly identified by the Court simply because they operating commercially in the ‘Israeli-occupied territories’.

On January 17, 2016, the Court published its decision, annulling the boycott. Not only the City Council lacked powers to pass any resolution that interferes with the conduction of foreign affairs by the Government, the Court deemed every working section of the decision as discriminatory and without any substance in the field of International Law, explicitly addressing resolutions 2334 and 1332 of the Security Council of the United Nations to find that neither of them provided any legal foundation to boycott Israeli institutions, companies or organizations.

Santiago de Compostela. Court Judgement

The Public Court nº 1 of Santiago de Compostela issued on December 20, 2016, its decision in the proceedings filed against the boycott decision passed by the City Council of Santiago —a medieval city of 95,612 inhabitants, a World Heritage Site, and the capital of the autonomous región of Galicia in northwestern Spain—. This boycott decision proclaimed the city a ‘Free Space from Israeli Apartheid’, affiliated the Council with the Boycott, Divestment and Sanctions (BDS) campaign against Israeli, and committed the City Council to refrain from any cooperation with Israel, its public bodies and officials in any development project in agriculture, education, trade, culture or security. The City Council also agreed to support the BDS in every campaign for the trade, cultural, sports, academic or institutional boycotts.

The Court dismissed the argument raised by the defendant that the boycott decision was nothing but an institutional statement of the City Council, stressing as per my brief, that the actions and statements of public bodies are subjected to the rule of law, meriting judicial review. The judgement stated that the Santiago City Council lacks competence for the adoption of such a resolution which far for being a mere statement of principles, involves
executive powers for applying the boycott and engaging its targets, exceeding the powers granted to city councils in article 25 of the Bases of Local Rule Act, given that the boycott falls outside the scope of any local interest, and it is not linked to the solution of particular local problems of the neighbors of Santiago de
Compostela.

The Court annulled the boycott decision taking into account that the Council can not claim competences that do not belong to it nor have been entrusted to it, nor do they can be entrusted as they belong to the remit of foreign policy, the Court claimed that it cannot be understood how the decision could improve the efficiency of public management or met the needs and aspirations of the local community.

The City Council of Santiago enjoys since today —December 31, 2016— a term of fifteen working days to file an appeal.

 Roman Vishniac , 1935-38

Roman Vishniac, 1935-38

City Council of Rivas Vaciamadrid. Writ of Injunction

On late May 2016, the City Council of Rivas Vaciamadrid —a town of 80,483 inhabitants, and a traditional trove of Communist support in Madrid— passed a decision committing the Council to sign neither any political, commercial, agricultural, educational, cultural, sporting or security agreement or contract with Israeli institutions, companies and organizations, nor with bodies, companies and organizations that are involved, collaborate or in any way, capitalize on the violation of International Law and Human Rights in the Palestinian territories or in the occupied Golan.
Only the subjects of the primary boycott -Israeli companies, bodies and organizations- could be exempted from
such rigours by abiding to the three goals of the boycott campaign. However, such remedy of a public abjuration de vehementi was not accessible to the subjects of the tertiary boycott -any company, body or organization involved in business with Israeli partners.
An amendment to the original motion inserted a provision by which the Council will adopt any technical proceedings for public procurement and purchases, legally within his realm. A thinly disguised cautionary formula designed to excite from a Court a ruling of nonjusticiability by merits of the decision being unenforceable, and thus, outside the Court’s jurisdiction.
As a matter of form, the City Council was granted the BDS-approved seal that distinguished the city as a “Free Space of Israeli Apartheid”, under the condition of it being displayed in the city’s website and in every official publication, and the commitment to disseminate the boycott campaign among residents and local businesses.
Finally, the City Council agreed to engage and to foster the cooperation with the BDS movement in order to ensure the proper implementation of the boycott decision.
In the debate of the decision, the spokesman of the Council and deputy major announced that he was ready and excited to defend Human Rights in Court before the Zionists. We duly complied, seeking redress, and an immediate relief.
Court number 4 of Madrid issued on late July 2016, a interlocutory writ of injunction ordering the City Council to restrain for carrying out the boycott provisions as their application would determine a real veto to organizations, businesses and bodies of a particular country or which, in the sole opinion of the members of the City Council —i.e., without seeking the opinion of competent international body—, were involved, collaborate or profit from the violation of International Law and Human Rights in the Palestinian territories and in the occupied Golan or as correctly identified by the Court simply because they operating commercially in the ‘Israeli-occupied territories’

City Council of Petrer (Alicante). Writ of Injunction

On July 28 the plenary session of the City Council of Petrer —a city of 34,697 inhabitants where shoe making and leather goods are the most prominent activities— passed a decision committing itself to the boycott campaign against Israel. The Council did not disclose the full details of the decision, but the photos released after the plenary session showing councillors and BDS activist stogether, smiling in bewildered triumph as they held two large Palestinian flags as the Major draped himself in a Keffiyeh as if he was wearing Manila shawl, augured clearly that they were up to no good.

The examination of the public records showed that after the preliminary recitals denouncing the inhumane blockade to Gaza, the 2014 attacks to Gaza, the supposed Apartheid regime set in the historic territories of Palestine —boycott activism is not famed for its intellectual rigour—, and a series of equally adamant reiterations, the decision meant business. The motion passed the commitment of the City Council to refrán from signing any contract, covenant or agreement with public bodies, companies or organizations with a proven record of involvement in the violation of International Law in Palestine-lsrael (sic.) and of the Human Rights of the Palestinian people, at least, until lsrael abides by International Law. Human Right abuses in any other country in the Middle East remained oddly unexplored by the Council. A precautionary caveat was thrown in: such commitment would hold as long as it did not contradict the existing laws and statutes.

Again, the City Council was granted the BDS-approved seal that distinguished the city as a “Free Space of Israeli Apartheid”, that was to be displayed in the city’s website and in its publications. Finally, the Council agreed to engage and to foster cooperation with the BDS movement in order to ensure the proper enforcement of the boycott decision. As usual, certificates of the boycott resolution would be issued and sent to the Government, the Regional Council, Congress, the European Parliament, the Embassy of Israel, and the Palestinian Diplomatic Mission in Madrid.

You just cannot fault the confidence of the boycott activists, but finding the above less than compelling, I filed an action on constitutional protection of civil liberties on behalf of my client claiming that any individual or company engaged in business with Israel, or simply with the most tenuous relation with Israel, would fall under the scope of the guidelines of the boycott campaign, being liable to the boycott decision. The preliminary brief added that even if the boycott remain unenforced, it would be enough to dissuade any company that traded with Israel from entering any public procurement proceeding, affecting the principles of non-discrimination and competition that are preeminent in the national Act of Public Sector Procurement, and in the EU procurement directives, and the WTO Government Procurement Agreement (GPA).

On September 20, 2015, the Court number 3 of Alicante issued a writ of injunction, ordering the City Council to refrain from enforcing the boycott decision as it had detected a possible infringement of the principle of equality before the Law, and breaches of the rights of not being discriminated against for any reason, and of foreigners residents to enjoy in Spain the same public freedoms than nationals. The writ also stated the existence of discrimination in public procurement.

The proceedings are underway.

 Roman Vishniac, 1935-38

Roman Vishniac, 1935-38

City Council of Santa Eulalia (Ibiza). Writ of Injunction

On July 28 the plenary session of the City Council of Santa Eulalia —the third city in number inhabitants in the island of Ibiza, and home of the most exclusive villas—, passed a decision that engaged the city in the boycott campaign against Israel. The Council did not disclose the full details of the decision nor acknowledged the petitions filed to release the public records, and the first official statements from the Mayor's office assured that the decision was merely an endorsement of Human Rights in the Middle East, proved deceptive. When after a Court writ, the public records were examined; the decision condemned the systemic attacks of the IDF against Gaza and the West Bank, regarding them as war crimes and crimes against humanity, and petitioned the Government of Spain to request Israel an immediate stop of the so-called attacks, repression, and illegal flights over Palestine airspace. The City Council in fact, went as far as to join the international campaign of Boycott, Divestment and Sanctions against the state of Israel, passing a commitment to abstaining from fostering any economic, official, cultural o academic exchange with Israel until UN resolutions and International Law were met, the occupation of the occupied Palestinian territories ended, and political prisoners were released.

My client —ACOM, a civil rights charity that fights discrimination while fostering relations with Israel— is determined that boycotts with their inevitable result of discrimination do not go unanswered. However as petitioner, it did not claim that it had at any time indulged in any trade with Israel, nor stated that it desired or intended to do any business with the City Council of Santa Eulalia. Our initial brief stated that would any individual or company that was or intended to be engaged in business with Israel, or simply had a tenuous relation or vocal sympathy with Israel, he would fall under the scope of the guidelines of the boycott campaign, being liable to a boycott as rigorous as the one that target the State of Israel itself.

In effect their case was that would theses individuals wish to engage in any of the activities regarded as deplorable by the decision, the latter if enforced, would be to violate a number of their public liberties, and most prominently, the right to equality before the law, the right to non-discrimination, and the right not to be compelled to make statements regarding his or her ideology, religion or beliefs.

The finest point of the reasoning was that the individuals that might potentially fall under the scope of the boycott decision suffered an unjustified interference with the constitutional rights, even if the boycott would not be enforced, as they had to adjust their conduct to avoid its injurious effect on their freedoms of association and speech.

The Court agreed so, arguing that by simply passing the resolution set limits to the right of the groups targeted by the boycott to engage in economic, official, cultural o academic relationships with the City Council in equal terms before the Law, as any other citizen or legal alien, threatening the constitutional rights.

On December 9, 2016, the Office of the District Attorney General filed its defense, accepting my arguments, and claiming that the contested boycott decision was in breach of article 14 of the Spanish Constitution insofar as it incited and caused discrimination on the basis of birth, race, religion or opinion by setting in motion the adoption of legal measures for contracting or purchasing processes that would prevent access to public procurement to Israeli companies or organizations. Likewise, the comittment of the City Council to cooperate with the BDS campaign that targets Israelis solely for their citizanship, as well as Israeli products, and the agreement to refuse to foster economic, institutional, academic and cultural exchanges with the State of Israel are intended to create discrimination and violate the right to equality beforte ha Law set forth in article 14 of the Constitution of Spain.

On December 23, 2016, the City Council of Santa Eulària held a plenary session calling back the boycott agreement, citing as reasons the judgments from other Courts that had annulled similar boycotts, the decision of the Court of Palma de Mallorca to suspend the boycott while her proceedings are underway, the lack of municipal powers in foreign policy, its coercive effect on companies and individuals, and the new awareness of the rangos, nature and real goals of the BDS campaign, citing in every case, arguments from our briefs.

City Council of Petrer (Alicante). Writ of Injunction

On July 28 the plenary session of the City Council of Petrer —a city of 34,697 inhabitants where shoe making and leather goods are the most prominent activities— passed a decision committing itself to the boycott campaign against Israel. The Council did not disclose the full details of the decision, but the photos released after the plenary session showing councillors and BDS activist stogether, smiling in bewildered triumph as they held two large Palestinian flags as the Major draped himself in a Keffiyeh as if he was wearing Manila shawl, augured clearly that they were up to no good.

The examination of the public records showed that after the preliminary recitals denouncing the inhumane blockade to Gaza, the 2014 attacks to Gaza, the supposed Apartheid regime set in the historic territories of Palestine —boycott activism is not famed for its intellectual rigour—, and a series of equally adamant reiterations, the decision meant business. The motion passed the commitment of the City Council to refrán from signing any contract, covenant or agreement with public bodies, companies or organizations with a proven record of involvement in the violation of International Law in Palestine-lsrael (sic.) and of the Human Rights of the Palestinian people, at least, until lsrael abides by International Law. Human Right abuses in any other country in the Middle East remained oddly unexplored by the Council. A precautionary caveat was thrown in: such commitment would hold as long as it did not contradict the existing laws and statutes.

Again, the City Council was granted the BDS-approved seal that distinguished the city as a “Free Space of Israeli Apartheid”, that was to be displayed in the city’s website and in its publications. Finally, the Council agreed to engage and to foster cooperation with the BDS movement in order to ensure the proper enforcement of the boycott decision. As usual, certificates of the boycott resolution would be issued and sent to the Government, the Regional Council, Congress, the European Parliament, the Embassy of Israel, and the Palestinian Diplomatic Mission in Madrid.

You just cannot fault the confidence of the boycott activists, but finding the above less than compelling, I filed an action on constitutional protection of civil liberties on behalf of my client claiming that any individual or company engaged in business with Israel, or simply with the most tenuous relation with Israel, would fall under the scope of the guidelines of the boycott campaign, being liable to the boycott decision. The preliminary brief added that even if the boycott remain unenforced, it would be enough to dissuade any company that traded with Israel from entering any public procurement proceeding, affecting the principles of non-discrimination and competition that are preeminent in the national Act of Public Sector Procurement, and in the EU procurement directives, and the WTO Government Procurement Agreement (GPA).

On September 20, 2015, the Court number 3 of Alicante issued a writ of injunction, ordering the City Council to refrain from enforcing the boycott decision as it had detected a possible infringement of the principle of equality before the Law, and breaches of the rights of not being discriminated against for any reason, and of foreigners residents to enjoy in Spain the same public freedoms than nationals. The writ also stated the existence of discrimination in public procurement.

The proceedings are underway.

Feature 5

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