Why the Israeli Anti-Boycott Law is a Slap in the Face to Democracy


Israel’s right-wing government passed a law which penalizes any Israeli who engages in, or speaks about, boycotting Israel or the Occupied Territories. For example, if an Israeli urges artists to not have a concert in Jerusalem, that individual could be sued in civil court and under the law, the person bringing the suit does not have to show damages as a result of the call for boycott- that is the truly incredible part- to not have to show damages is virtually unheard of in tort law.

This law obviously also targets those who engage in, or call for, divestment and sanctions on Israel- the term used to describe the boycott movement is Boycott, Divestment and Sanctions, or BDS, and it is modeled after the successful BDS movement in the 1980’s targeting apartheid South Africa.

In response to the passage of the legislation, there has been almost universal condemnation of it- it seems to be one of the few issues about which liberals, conservatives and Jewish organizations agree- the boycott law is bad for democracy.

The independent Israeli news site +972 has excellent coverage of the law and they have pointed out something which the western media has largely ignored- that the boycott law essentially reaffirms Israel’s intent to keep the West Bank as part of “Greater Israel.” Here is an excerpt:

…what is even more alarming about the law, which has gone largely unmentioned in the press or by organizations opposing it, is what it says about the State’s relation to the territory under its control: The boycott law makes no distinction between Israel and the Occupied Territories and thus is in effect a legalization and normalization of the occupation, the total erasure of the Green Line and the moratorium on the two-state solution (in case this was not already clear).

[snip]

The boycott law, like other laws, such as the Citizenship Loyalty Law that passed last March, as well as other imminent bills and remarks by government committee heads – such as Danny Danon’s recent demand that birthright trips “stop boycotting Judea and Samaria” – is the government’s way of taking advantage of its power to formally cement its hold on the West Bank, and with it the Palestinian people.

If Israel were in any way interested in a two-state solution, it would be legislating laws geared at diminishing Israel’s institutional presence in the West Bank, not further deepening it. Instead of the principles of democracy and the desire to remain a Jewish state dictating its actions in the West Bank, what we see is the discriminatory, militant practices of how Israel runs the West Bank seeping into Israel proper, turning the whole area into one giant mold of apartheid jello.

Instead of crying out about the violations of freedom of speech and the antidemocratic nature of the law, concerned entities, and first and foremost the US government, should be explicitly pointing out the message such a law clearly sends to the world about Israel’s intentions vis-a-vis the two-state solution: primarily that it has none.

The US State Department is incorrect in its assessment that the boycott law is an internal Israeli matter – how could a law that defines a civil offense from the Mediterranean to the Jordan River be an “internal matter?”

More than anything else, the boycott law is a clear indication of Israel’s diligent work at erasing the distinction between Israel’s 1948 and 1967 borders…

As noted above, the U.S. State Dept. responded to the passage of the law with it’s usual pandering. Victoria Nuland, the spokesperson, made the jaw-dropping assertion that the law was an internal issue for Israelis and that because Israel was a “vibrant democracy,” Israelis could have their concerns addressed by other “democratic” institutions within Israel. In other words, Israel’s frontal attack on democracy is ok and not a matter for U.S. comment because Israel is a vibrant democracy. As a big fan of Hillary Clinton, such cynical pandering by the State Dept. is truly depressing.

The State Dept. was probably alluding to the purported opportunity for Israelis to challenge the constitutionality of the boycott law in court. Here’s the problem- Israel has no constitution! Hello!?! That doesn’t mean that the law can’t be challenged in in the courts but it certainly won’t be found to be unconstitutional. Thus, there is a very good chance the courts, always deferential to the Knesset, will uphold the law.

In addition, the Knesset is scheduled to pass another law soon which will give it the power to overturn any Israeli court decision that strikes down the boycott law. I wonder what the State Dept. will say about that little gem?

972 also has an excellent primer discussing exactly what the boycott law does and doesn’t cover. Here is an excerpt:

Definition:

1. In this bill, “a boycott against the State of Israel” – deliberately avoiding economic, cultural or academic ties with another person or another factor only because of his ties with the State of Israel, one of its institutions or an area under its control, in such a way that may cause economic, cultural or academic damage.

Boycott – a civil wrong:

A. Knowingly publishing a public call for a boycott against the State of Israel will be considered a civil wrong to which the civil tort law [new version] applies, if according to the content and circumstances of the publication there is reasonable probability that the call will bring about a boycott and he who published the call was aware of this possibility.

B. In regards to clause 62 [A] of the civil tort law [new version], he who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be viewed as someone who operated with sufficient justification.

C. If the court will find that an wrong according to this law was deliberately carried out, it will be authorized to compel the person who did the wrongdoing to pay damages that are not dependent on the damage (in this clause – damages, for example); in calculating the sum of the damages for example, the court will take into consideration, among other things, the circumstances under which the wrong was carried out, its severity and its extent.

[snip]

When will the law take effect?

It already did. Starting yesterday (Tuesday), it is now illegal to call for a settlement boycott in Israel. The only part of the law which is not effective yet is article 4, which deals with the punishment of organizations that would support a boycott (they will be stripped of their special statutes). This article, which is seen as a backdoor way to persecute civil society and leftwing organizations (more on this issue here), will be made effective in 90 days.

Yesterday an Israeli Beitenu MK already threatened Arab MK Ahmed Tibi that he will be the first to feel the effect of the new law. “Whoever shows contempt for the law and stomps on it will be responsible for the outcome,” MK Miller told Tibi in the Knesset.

Is it really so bad? I heard there is a similar law in the US, and that in France, a court punished some group calling for boycott on Israel.

Those examples are very different from the Israeli law. The US legislation refers to boycott by foreign governments, and the French case had to do with a unique interpretation to a law concerning discrimination. In fact, a Knesset research report, prepared during the work on the boycott bill, concluded that it couldn’t find examples of similar laws in Western democracies, and resorted to citing examples from countries such as Venezuela, Eritrea and Ethiopia. As a result, the Knesset’s legal advisor filed an opinion stating that it would be very hard to defend this law in the High Court for Justice. The Government Attorney thinks it is a “borderline case,” but he is willing to defend the law in court.

What about the High Court? I hear that it is likely to strike down the law as unconstitutional.

For that, Israel would need to have a constitution… But the answer is yes, many think that the court will kill the law or parts of it, and petitions on this issue has already been filed. Yet a verdict would take time, and more important, it might gravely hurt the Court’s own statues, as will be perceived as acting in against the will of the public (the right to override Knesset law is not formally granted to the Israeli high court, and therefore lies in the heart of a political controversy). Already, there are threats from leading politicians to the court not to intervene in this issue, or else they would limit the court’s power. This has become a true watershed moment for Israel.

Furthermore, there are those on the left who believe that going to the court would play into the hands of those who initiated the boycott law, and ultimately strengthen the ability of the right to introduce such pieces of legislation. Read this though-provoking piece from Yossi Gurvitz on this issue.

[snip]

Mike Asks: Is full boycott illigal as well?

Yes. for example, if an Israeli writes a letter to an foreign artist and suggests he cancel his gig in Tel Aviv as long as the occupation goes on, he could potentially be sued by the producer, and any other person who thinks this act hurts him. I guess that even by the bartender could sue – and they won’t have to prove damages. Calls for boycott of academic institutions are illegal too.

Alex asks regarding Foreign nationals in Israel – does the law include them too?

Yes. When in Israel, one needs to obey Israeli laws, including ones concerning damages. From what I understand from ACRI (Association of Civil Rights in Israel, which has been in the frontline of the struggle against the law), the anti-boycott law would include foreign nationals as well – as long as they make the boycott call while in Israel. One reservation is that it’s not a criminal law, so you need someone to actually sue you for damages, and the court needs to be able to collect them. My guess is that if this law remains active, rightwing and settlers’ organizations will become serial prosecutors plaintiffs of boycotts in order to silence dissent, and, of coarse, make some money on the way.

The law doesn’t apply to foreign nationals in the West Bank, which is under military rule and not Israeli civilian law.

how about Israelis abroad?

The law should apply to Israelis everywhere in the world, so theoretically, if a Boycott from Within activist gives a lecture in London, he could be sued by a fellow citizen upon his return to Israel. Still, it seems that suing over offenses done abroad will be more complicated; check out Woody’s comment from 12:51PM for a discussion of some of the problems it raises. I could only add that with every new law–not just this one–it’s hard to predict the outcome of such borderline cases. We can only wait the rulings of Israeli courts to see how they interpret the law.

For the State Dept. to claim this is an internal matter for Israel just boggles the mind. If that is indeed the standard by which sovereign nations are judged, then Hillary Clinton would not be meeting with opposition parties in Turkey right now, as we speak. The State Dept. has been very vocal about disagreeing with some of Turkey’s recent efforts to silence opposition and freedom of speech. And of course, the State Dept. issues statements almost every other day condemning this or that country for infringing on the rights of journalists and other citizens when it comes to freedom of association, religion and expression. For example, Secretary Clinton in Turkey today chastised Turkey for it’s crack down on freedom of speech:

U.S. Secretary of State Hillary Clinton, visiting Turkey, expressed concern about the country’s arrest of journalists and moves to restrict Internet freedom.

Turkish authorities have jailed reporters and columnists in recent months under anti-terror laws. A government proposal set to go into effect in August would place compulsory filters on the Internet that could allow monitoring of household Web use.

Clinton described the moves as “an area of concern.” She made the comment during a two-day visit to Istanbul, in response to a question on a show on CNN’s Turkish-language channel.

“I do not think it’s necessary or in Turkey’s interests to be cracking down on journalists and bloggers and the Internet, because I think Turkey is strong enough and dynamic enough” to handle diverse opinions, Clinton said. The issue “deserves attention from citizens, from lawyers, because it seems to me inconsistent with all the other advances that Turkey has made.”

This hypocrisy is almost embarrassing. But the sad fact is, the reason the U.S. government can get away with this is because the fervently pro-Israel, peace rejectionist media would never dare question the Secretary of State about such a blatant contradiction. Because when it comes to Israel, special rules apply. In fact, while there has been some coverage of the boycott law in the U.S., it has been minimal and inadequate. Where’s that hack Bronner when you need him? If he’s written about it I apologize but as of yet I haven’t seen anything.

And as 972 pointed out in the first article I highlighted, Israel’s recent laws are a way of preventing a two-state solution, treating the Occupied Territories as a permanent part of Israel. That in itself is a reason for the State Dept. to speak out. But no, the State Dept. and White House are apparently too busy preventing the Palestinian bid for statehood at the U.N.

This law and the U.S. response to it is further proof that Israel and the U.S. simply can’t handle nonviolent resistance to the Occupation. Here is an excellent opinion piece that points out that Israel and the U.S.’ worst fear is nonviolent resistance- they’d prefer suicide bombers and rockets because that gives them an excuse to use the same violent tactics of repression that they/we’ve been using for decades. That’s the ugly truth of the matter that the State Dept., the media, the Israel Lobby and White House don’t want you to see.

But how can Israel and the U.S. fight the Arab Spring in Palestine? How can the U.S. rationalize Israel’s imprisoning and killing unarmed protesters? Sadly, they do continue to rationalize it, but it’s getting harder with each passing day and they are growing increasingly desperate- the most recent hysterical diplomatic response to the Flotilla being just one example- the State Dept. invoking Israel’s right to self defense, threatening protesters with prosecution and implying that they were somehow linked with Hamas. The question is, how long can the U.S. and Israel keep using these tactics with a straight face? Hopefully not much longer.

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Attorney, Publisher, Foreign Policy wonk

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10 Comments on “Why the Israeli Anti-Boycott Law is a Slap in the Face to Democracy”

  1. Steve Says:

    Thanks. That is the most well-rounded informative description of the boycott law I’ve seen yet. It’s pretty amazing how the Western media just briefly announced the laws passage then quickly shut up about it. You can’t tell me that that was anything other than a purposeful attempt to silence the controversy.

    I think the State Dept. screwed up on this one. I’m sort of floored at how Hillary is running things right now. I think everyone understands that with an election coming up, they will want to keep the Jewish community happy, as annoying as that is. But lately she seems to really be going overboard. As you noted, Abe Foxman and conservative Israel Firsters have condemned this law. Jeffrey Goldberg called for a boycott of Bibi. For the Secy of State to claim it’s an internal matter for Israel while criticizing Turkey while she’s in Turkey on foreign travel, is so unbelievably hypocritical. Again, you pointed out why she can get away with it- because the press corp. and media moguls simply won’t bring up the inconsistency and we all know why that is. But the Arab world is watching and they DO CARE about our hypocrisy.

    I was really hoping that with the Arab Spring the Obama admin. would use the opportunity to convince AIPAC and Congress that the same old way of doing things would relegate us to the dustbin of history, at least in the region, but just like Israel, Obama and Hillary seem to be digging in and clinging to this idea that American exceptionalism will always prevail. Honestly I think our politicians have spent too much time in their safe, elite bubbles. Hillary and Obama wouldn’t last five minutes in the Occupied Territories- drinking dirty water and running underground every couple of days during Israeli air assault.

    Reply

  2. Just-Us Says:

    Great post. Someone (not you) tweeted it out to their followers. You should cross-post this on another site too so more Americans can see what is really going on. Hillary Clinton should be ashamed for lecturing Turkey on democracy and freedom of speech while Manning is kept in solitary with forced nudity and while the State dept refuses to speak out against Israel’s horrific violations of international laws.

    The Obama administration has no credibility anymore. The only reason he will probably win re-election is because his corporate masters will toss millions of dollars into his campaign coffers.

    Reply

  3. thainjacobs Says:

    Great post. I didn’t realize Israel doesn’t have a constitution. That explains a lot. I’m beginning to think Israel is a pretend democracy.

    On another note I saw this article over at 972- has anyone been following the controversy over Rabbi Dov Lior and how much support he has among the Israeli population? Truly frightening. I find it interesting that we hear so much about how Saudi Arabia, Palestinians etc. have anti-Semitic text books, tv shows etc. but we never hear about how Israel uses racist propaganda too. A law was passed in the Knesset to change the curriculum of Palestinian students- you know, to erase their history and replace it with a Zionist version.

    Anyhoo, here is an article on Rabbi Lior:

    http://972mag.com/extremist-rabbi-dov-lior-has-widespread-israeli-support/

    Keep in mind that many of these Rabbis are supported by the Israeli government. They actually hold official positions. There is no separation of religion and State in Israel.

    Reply

  4. thainjacobs Says:

    Oh one more thing- the EU issued a statement raising serious concerns about the boycott. Too bad our government are such wimps while Catherine Ashton of the EU has the courage to stand on principle.

    Reply

  5. Pilgrim Says:

    My understanding is that it is not strictly necessary to have a constitution in order to have a good democracy. For example, England, I believe, has no written constitution. They have an accreted common law. I’m no lawyer so I may be quite incorrect. Stacy’s the lawyer. She would know more about this.

    But Israel is making a mockery of the notion of the rule of law. Just make bad laws. Voila. You have the rule of law.

    Reply

    • Stacy Says:

      No, you don’t absolutely have to have a constitution but most younger democracies do. Constitutions tend to provide a good framework for the courts to follow, although the UK’s system of Common Law, which is the basis for U.S. law, has worked quite well. The UK also is a bit different in that it’s made up of several different countries and protectorates, some with slightly different relationships to the Crown (Scotland vs. British Virgin Islands, for example). And of course, there’s a monarchy.

      What makes Israel unusual is that it is such a young state and as noted above, most younger states/countries that have had major upheaval and reforms, such as South Africa after apartheid, the U.S. after the Revolutionary War, etc. generally create constitutions as a social compact with their citizens. We tend to judge a country by the rights it protects- in the absence of an overarching document or set of principles which clearly lay those out, it gets quite murky.

      The other problem with Israel is that its court system is not as independent as that in the US and the UK (or actually, Great Britain). Because our federal courts operate under very explicit directives in our constitution which proscribe Separation of Powers, our courts are a little bit more independent although one can always argue that the process of selecting judges is very political. It’s something we take for granted- the military has absolutely no sway over our civilian courts. Such is not the case in Israel. Also, as I mentioned in my post, the Knesset is trying to give the Israeli courts less power to overturn legislation and this is possible for them to do specifically because they have no constitution prohibiting it.

      Here’s an interesting article on the UK and its lack of one:

      http://www.independent.co.uk/news/uk/politics/the-big-question-why-doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html

      Basically, I think Israel should have a constitution and the fact that they never created one, raises some tricky questions about their commitment to equal rights under law.

      Reply

  6. Carolyn-Rodham Says:

    So, if I understand the law correctly, even as an American citizen, I can’t go to Israel and call for a boycott on Israeli tourism ( without risk of legal action). But could I call for a boycott, say, of EL AL because…um…the food’s lousy — in other words, a symbolic sort of boycott? There must be ways to circumvent this if you’re creative enough. Were dissenters ultimately able to find a way around the BDS movement in apartheid South Africa?

    Reply

    • Stacy Says:

      As far as I know, the BDS movement in South Africa was never outlawed and most of the people pushing BDS were foreigners.

      They might be able to find a way around the law but given the broad language and lack of proof required to bring a successful claim, they could still face lawsuits if it is suspected that they are really taking part in BDS activity under the guise of something else. Israel keeps very, very close tabs on it’s citizens, particularly those that are part of the Palestinian solidarity movement.

      But the point is, in a free society, they shouldn’t have to be creative, they should have full freedom of speech.

      At the end of the day, like most things Israel does, this stupid law just proves the point people like us are trying to make- that Israel’s democracy hangs by a thread and the Occupation is poisoning Israel from the inside out. Ultimately, the U.S., Europe and the Jewish diaspora have to try to talk sense into the far-right government and let them know that if they continue down this path, they will not openly support them. Of course, then maybe pigs will fly and I’ll win the lottery.

      Its getting harder and harder for Israel and the U.S. to argue that Israel is an innocent victim of delegitimizers and anti-Semites. Israel seems to be going out of its way to delegitimize itself.

      Reply

  7. thainjacobs Says:

    It’s getting harder and harder to take Israel seriously, at least as anything other than a racist, paranoid society that hides behind past oppression and religion to justify their intolerance.

    HIDE YOUR DAUGHTERS!- The A-rabs are coming!

    http://www.ynetnews.com/articles/0,7340,L-4096350,00.html

    Reply

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