Xeraco. Court Judgement

On May 30, 2016, the City Council of Xeraco —a Mediterranean small town of 5,907 inhabitants, South of Valencia— passed a decision committing itself to refrain from signing any political, institutional, commercial, agricultural, educational, cultural, sporting or security agreement, contract or covenant with Israeli public bodies, companies and organizations.

The subjects of this primary boycott —Israeli companies, public bodies and organizations— could be exempted from the rigours of the boycott by abiding to the ‘inalienable rights of the Palestinian people’. To be effective such public abjuration should exactly match the terms of the three objectives of the boycott campaign

As in other cities in Spain, the City Council was granted the BDS-approved seal that distinguished the town as a ‘Free Space of Israeli Apartheid’, under the condition of the seal to be displayed in the city’s website and in its publications. In turn the City Council agreed to broadcast the boycott campaign among residents and local businesses, going as far as to inform the neighbours and local businesses that to sell, buy, invest or sign contracts with Israeli companies, including the agri-food, banking, exports and tourism sectors, might well implicate the neighbours in litigation with the Palestinian population, involved them in Human Rights violations, or even, end in indictments for war crimes.

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

The Court number 10 of Valencia issued on September 1, 2016, an interlocutory writ of injunction ordering the City Council to restrain for carrying out the boycott provisions. The Magistrate stated that although precautionary measures are only to be applied in the very exceptional cases of patent and gross illegality, the endorsement of a boycott campaign and the refusal to enter into agreements, contracts or covenants with Israeli corporations and organizations entail a priori the violation of the principle of political neutrality of public offices, and imply the imposition of unwarranted discrimination against Israeli tenders in public procurement.

On January 26, 2016, the Court number 10 published its decision that annulled the boycott. The Magistrate stressed that the boycott equals to the rejection of tenders based on their opinions, arguing that even a neutral position on the Israeli-Arab conflict from a tender would alienate him from public procurement. Moreover, excluding Israeli tenders from the boycott only when they  “abide by the inalienable rights of the people Palestinian people, under the terms of this agreement’ means nothing less than asking a third party to publicly position himself in a matter of foreign policy and International Law, fields where there is not such an obligation to take a stand, in a clear violation of the constitutional freedom to held personal beliefs and opinions.

The decision holds that even in the absence of its enforcement, the boycott entails the infringement of Human Rights, as the rejection to accept tenders from Israel is tantamount to discrimination on account of national origin and personal opinions. The Court remarked that asking for statements on a controversial issue of foreign affairs is inappropriate for a city council, bound to serve impartially the general interest of its neighbours, an area where is preeminent the absence of coercion into the beliefs of others —however mistaken they might be in the eyes of the council members— nor the promotion of their own. There is a clear separation between politics and public office where the latter is not to be converted into an instrument at the service of the former, especially when the objective is to exclude the adversary, which determines a clear abuse of power that aspires to place public office at the service of political ideas that are discriminatory and contrary to the civil rights of every citizen, in an attempt to coerce others out of their freedom to hold their personal beliefs and opinions.

Court Judgement against the boycott to Israel in Madrid

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.

New Court Judgement in Barcelona

On January 13, 2016, the plenary session of the City Council of Sant Quirze del Vallès —a residential city of 19,549 inhabitants— passed a decision committing itself to the boycott campaign against Israel.

The examination of the public records showed that after the preliminary recitals denouncing Israel, and a series of equally adamant reiterations —boycott activism is of course, not famed for its intellectual rigour— of breaches of International Law, the decision included a commitment of the City Council to not signing any contract, covenant or agreement with Israeli public bodies, companies or organizations, at least, until Israel would acknowledge the right of self-determination of the Palestinian people, and abide by International Law, nor with companies and organizations outside Israel, that are involved, cooperate or obtain benefits from the alleged violation of International Law or Human Rights in the Palestinian territories, explicitly targeting Israeli multinational companies Elbit Systems and Eden Springs, North-Americans Hewlett-Packard, Caterpillar and British G4S.

The boycott decision left oddly unexplored any Human Right abuses in any other country in the Middle East remained. However, it ordered that technical procedures in public procurement were to be adapted to exclude such companies from the purchase of good and the hiring of services.

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.

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. My brief added that would 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 June 1, 2016, the Court number 4 of Barcelona 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 to 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.

One year since the boycott decision was passed by the City Council, on January 13, 2017, the Public Court number 4 of Barcelona noticed me the final judgement, annulling the boycott against Israel. The Court regarded discriminatory and in breach of the principle of equality before the Law the blatant commitment of the City Council to abstain itself from covenants, contracts or agreements with Israeli companies on the sole base of where they are chartered, while also targeting other companies or entities that might fall under the indistinct assumption of collaboration, involvement or reaping an economic benefit from the so-called violation of International Law and Human Rights in the occupied Palestinian territory or the Golan Heights,  leaving undetermined the procedures and authorities that would have to pass judgement on such criteria.

The City Council now has a term of fifteen business days to file an appeal before the High Court of Catalonia in Barcelona.

Court Judgement in Barcelona.

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.

First Appeal Decision against the boycott to Israel

Last Thursday, the High Court of Asturias —a region in Northern Spain, bathed in the Bay of Biscay, where boycott activists are influential in several city councils– dismissed in very clear terms, the appeal submitted by the City Council of Langreo against a successful Court action brought by Angel Mas —President of ACOM. 

This is first appeal decision outside France –where economic boycotts are a felony.

The High Court of Asturias by rejecting the appeal confirms 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 has accepted the direct action of the petitioner, acknowledging our standing, expanding a previous constitutional doctrine on the matter that allowed any Jewish individual 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.

As the lawyer who presented before the Court, the case against the appellant, it is a happy time. Not only the legal arguments of the High Court endorsed my brief, the decision is both persuasive and conclusive. Public bodies cannot enact the boycott against Israel without disembowelling the core civil liberties that shield us against the abuse of office. As the first ruling by a High Court in this matter, the impact of this appeal on city councils that may entertain the notion of boycotting Israel, or companies engaged in trade with Israel, could be remarkable. Councillors should now pay heed to the consequences of passing discriminatory policies or guidelines.