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Boycott goes on trial in Israel's High Court

Civil rights organizations argue the ‘anti-boycott law’ has created a chilling effect, stifling debate on one of the most divisive issues facing Israeli society. If that’s the case, the state counters, then how has BDS grown so much in recent years?

Panel of the Israeli Supreme Court (file photo, Activestills.org)

Panel of the Israeli High Court of Justice (file photo, Activestills.org)

In a hearing that felt at times like the political boycott itself was on trial, an extended panel of nine justices from Israel’s High Court of Justice heard arguments for and against legislation targeting calls to boycott Israel on Sunday. It was the second such session following petitions by civil rights groups asking the court to strike down the law.

Lawyers for civil society groups including Gush Shalom (Peace Bloc), the Association for Civil Rights in Israel (ACRI) and Adalah-the Legal Center for Arab Minority Rights in Israel made a passionate case that the two-year-old piece of legislation unconstitutionally violates freedom of expression. Attorneys for the Knesset, joined by the right-wing Legal Forum for Israel, contested that the law exists to defend the civil rights of Israeli citizens who may be harmed by boycott.

The petition to annul the law insists that by making calls to boycott Israel — including those against settlements or enterprises in occupied territory — a civil offense, it violates political freedom of expression. The law stipulates that a party claiming injury due to a boycott need not prove damages, monetary or otherwise, for the accused to be held liable in a civil suit. An earlier draft of the law that made calling for a boycott a criminal offense was adjusted prior to being passed in July 2011.

The civil society groups argued that even if the law is nearly impossible to enforce, its very existence has a “chilling effect,” leading to self-censorship and stifling of a necessary and legitimate political debate about Israeli policy, and that it is not an attack on Israel itself. They claimed that the law effectively blocks a legitimate form of non-violent protest against the policies of the state. Peace organization Gush Shalom, for example, was forced to remove from its website a list of products and companies originating from the West Bank; its lawyers claimed that the law thus alters and hinders prior activity of the organization.

Against claims that the boycott can do actual economic damage, Attorney Hassan Jabareen of Adallah claimed that any political speech can cause harm as such – implying that singling out boycott is a slippery slope towards limiting other kinds of free speech.

Challenged by the justices themselves that boycott can harm Israeli citizens and enterprises that operate legally (under Israeli law) in the West Bank, Attorney Gabi Lasky, arguing on behalf of Gush Shalom, responded that some Israelis believe Israel’s presence in the West Bank harms the livelihood of the State of Israel, and they must be allowed the tools to advocate their position. Another member of the civil society team pointed out that the potential harm to business owners is no different from the risk inherent to employers in a worker’s right to strike.

Lawyers for the state and the “The Legal Forum for Israel” countered that they are defending Israelis, opposing incitement and possibly anti-Semitic racism, and protecting Israelis from the harm that boycotts may cause. There is no “chilling effect,” they claimed, arguing that the boycott movement in Israel and abroad has only grown since the law was passed.

The justices pressed the two sides about a phrase in the current law relating to “any area that Israel controls” – which makes boycott advocates liable even if they call only for sanctions against the occupied territories. The justices repeatedly asked whether removing that clause would make the law more legitimate.

They also raised hypothetical, and even counter-factual challenges. What if an Israeli had called to join the Arab states’ general boycott against the State of Israel in the first decades of its existence? What if someone called to boycott goods that were produced in the Arab-Israeli town of Umm al-Fahm, would the civil society groups be as quick to condemn the law?

The justices also challenged the state’s representative as to whether the actual threat posed by boycotts truly warranted such a limitation on freedom of expression. After the hearing Attorney Gabi Lasky said she believes the justices admitted that the law violates freedom of expression. However, one justice also specifically posited that the Boycott Divestment Sanctions (BDS) may in fact be an anti-Semitic enterprise, and as such the law could be considered a measure to counter racism.

The focus on specific clauses — including the occupied territories or the fact that plaintiffs would not have to prove damages — caused concern among some members of the civil society groups that the justices would modify just those aspects rather than overturn the whole law.

Attorney Hassan Jabareen of Adalah reiterated outside the courtroom that the law itself is the problem, which is why the petition did not seek adjustment but annulment: “we think there is no place for this law at all.” Member of Knesset Ahmed Tibi said that the law’s true intention is “to suffocate those who oppose settlements, by calling anyone who criticizes the settlements an anti-Semite.”

However, longtime peace activist and head of Gush Shalom Uri Avnery held precisely the opposite position. “Our goal was made clear,” he said after the hearing. “We assume they will cancel just the words ‘in the settlements’ [referring to ‘an area under Israel’s control’ – DS].” He went on to clarify Gush Shalom’s position on the distinction between boycotting the settlement and occupation enterprise in the West Bank and boycotting Israel proper: “we are not for a boycott against Israel, just against settlements. Our goal is the clear separation between the State of Israel and the settlements. A boycott against Israel won’t achieve that goal.”

These divisions represent the tangled web of considerations needed to address political protest, constitutional rights in a country with no constitution, and civil and human rights under both civilian rule and military occupation. But there is a certain disingenuous hubris to the argument that the law can actually protect Israeli interests from the damage caused by such sanctions. Whatever the court’s verdict, no domestic legislation will curb the most fertile ground for boycott: Palestinian, and, increasingly, international society.

Related:
The boycott isn’t economic warfare, it’s psychological
The academic boycott of Israel: No easy answers

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    1. “Peace organization Gush Shalom, for example, was forced to remove from its website a list of products and companies originating from the West Bank; its lawyers claimed that the law thus alters and hinders prior activity of the organization.”

      Does not some Israeli administrative agency make such a list somewhere? Making lists is a major form of government activity. It is not likely available to the public upon request? So what has really happened to Gush Shalom is that fear of civil litigation, which can become costly, has muzzled a public presentation which a State agency can do. The effective legal target is an unwanted political viewpoint which advocates no violence at all. One could, for example, want to post the list to show how the settlement economy is growing and how this links to government aid and political parties, thereby making a case that the settlements are feeding back onto Israeli politics. But Gush Shalom cannot do that, or fears to.

      This law is about Israeli speech and association, not growth in international BDS. BDS could be growing considerably with no internal advocacy in Israel. Indeed, I find it hard to believe that the right nationalists are worried about internal BDS aid within Israel under their own patriotic assumptions of the people–unless they focus on Arab citizens,thinking these somehow not part of the patriotic people. There is, remarkably, a fear that Israelis will head a boycott call not to purchase, and individual choice, and so must not be allowed to hear it.

      Since major Israeli corporations can be argued to enhance Israel, one can as well argue that a call to strike such, which is just a call to boycott work, presently activates the law too. This is not without precedence. Courts in the US can order strikers back to work for the public good, but the good must be tangible (although that can be stretched, and has been). But you need to show potential damage. This civil law says you do not.

      The easiest way out for the Court is to remove the no damages clause, a clause which is legally absurd in a tort action in any case (harkening back to the old concept of defamation of character, which was a matter of social, hierarchical standing); and restrict “damage to Israel” as damage to the existence of the Israeli State as such. Combined, these changes would make it quite difficult to successfully employ the law, as Israel is a regional superpower of sorts and so hard to “damage.” A judge could then argue that since settlement withdrawal is on ongoing political option considered by major Israeli parties, or at least those in the Knesset, targeting settlements by internal civil boycott does not damage Israel as such. But this trajectory depends on the first instance judge and the willingness of a civil group or individual to risk litigation costs.

      Avnery wants a win and fears that annulment might be barred by Justice patriotism and fears for national defense. MK Tibi wants free political expression as such. Recall that the Foreign Minister has not so long ago suggested the corporate stripping of Israeli citizenship by race as part of a “deal” with the PA; Tibi is going to see the protection of expression somewhat differently than Avnery.

      Underlying this case, and Justice questioning, is the power of the Court as such. Annulment would affirm pure independent judicial review of law. Adjustment, such as removing the no damages clause or “under Israeli control” clause, retains what I have called the War Council implicit constitution, where “constitutional” partners (Administration, Knesset, Court, and, now, I think, IDF) agree to compromises, bowing to a certain degree of inviolable turf in each. Annulment forces the Court to walk out of that deal, or at least open the door to that end; I can see a 5+ majority much harder to achieve for that reason. The African Refugee “Open Prison” case is a lot easier in this regard, as the Knesset there has been, as applied by a 30 vote majority, exceptionally stupid, given the Court more room even under implicit War Council logic.

      I once again apologize for being here.

      Reply to Comment
      • Ginger Eis

        For someone from the United States, a country where- (a) tens of thousands of failed asylum seekers are in jails with common criminals, (b) several millions of migrants who have been living there for decades are undocumented and denied residence permit, have no access to the law, courts and social services, may be arrested on the basis of their appearance and sent to jail for illegal stay, are exploited for cheap labor, sex, etc. (c) certain prisons and prisoners are beyond the reach of the Courts, etc. the amount of time (i.e. round the clock!) you devote on Israel is indeed staggering and inexplicable. Why is that? Don’t you think this behavior is compulsive and has all the hallmarks of obsession/addiction? It might be useful to consult a professional and hear what he/she has to say, no?

        Reply to Comment
        • “Don’t you think this behavior is compulsive and has all the hallmarks of obsession/addiction? It might be useful to consult a professional and hear what he/she has to say, no?”

          We could go together, no?

          Reply to Comment
    2. Ginger Eis

      I am very grateful to the BDS-movement for the following reasons: (a) waking Israelis and Jews around the world up from their deep slumber/complacency, (b) reminding them that the Jewish People are still very vulnerable; that the Zionist-project isn’t yet completed and still faces such serious existential threats abroad that neither the IDF nor the IAF can reach, i.e. coalition of Muslims/Islamists, (closet) anti-Semites and confused utopian/idealistic thugs from the far left, all disguised as Human Rights NGOs/activist whose ultimate goal is the replacement of the Jewish State Of Israel with “Palestine” and (c) galvanizing the Israeli Right, the Israeli Left and Jews and freedom loving Peoples from around the world to face these contemporary enemy together. My heart knows no greater joy than when (at least 90% of) the Jewish People are UNITED! And whenever that happens, the enemy trembles. Ultimately, WE will crush the BDS-movement – one way or another – regardless of what the Israeli Courts will do. Thank you BDS. Thank you!

      Reply to Comment
      • Maryanne

        As a BDS supporter, (albeit very minor) let me accept your thanks graciously. I, in turn, thank you for your observations and/or wishful thinking that the BDS movement is awakening Israelis and Jews to the as yet unrealised Zionist project – priceless.

        Meanwhile the real world continues to turn….

        Reply to Comment
        • Ginger Eis

          Thanks my good friend, Maryanne. The State Of Israel Is and Will Ever Be. That’s the Zionist-project. That project has been realized several decades ago (and there is no need mischaracterizing what I said). Anyone who fantasizes about bringing about Israel’s demise – militarily or otherwise – is seriously deluded.

          Reply to Comment
    3. Pablo

      This comment has been deleted due to anti-Semitic content.

      Reply to Comment
    4. sh

      I’m very grateful to +972 for providing a comments section that reveals the nature of the faults in education and the ramifications of that, which have gone unchecked in Israel for so long. All that seems to have been needed to draw contributors who demonstrate it raw from the woodwork is reporting on events and processes in Israel frankly and honestly, without the euphemisms and prevarications that societies like that become addicted to. For those in the wider world who worry about the dangers in their own society and can observe here how basic moral principles and even history can be dislodged and disposed of piece by tiny piece by sectors of society that are initially considered marginal, this is an invaluable lesson learned in real time, in a universally understood language.

      Reply to Comment
      • Ginger Eis

        Talking about “the faults in education and the ramifications of that”, in 2013 Israel ranked 10th in the world ABOVE Norway, Germany, China, Belgium, the US, France, New Zealand, Denmark, etc. Education in Israel (which EQUALLY benefits Muslims, Christians, Jews, and others living in Israel) is not perfect, but still among the best. This is one of the countless good things the hateful, envious BDS-movement intends to destroy. But know ye this: WE will not be intimidated. We will continue to build Israel, fortify her and aspire to be the best in everything that enriches the whole of humanity – regardless of whose ox is gored! It will take a lot of hard work and dedication. But that’s what Israel is known for.

        http://www.youtube.com/watch?v=HXG1sqAgVTU&feature=player_embedded

        Reply to Comment
        • Average American

          Ginger, what is the “Zionist Project”?

          What are its end goals?

          What are its final borders?

          Are you confirming that Israel is enacting Zionism?

          Reply to Comment
          • Ginger Eis

            (1) Zionism is the movement for the self-determination of the Jewish People in a Jewish State in the Ancestral Homeland of the Jewish People. (2) The Jewish State Of Israel is the “Project” that embodies and guarantees Jewish Self-determination – hence the phrase ‘Zionist-project’. (3) The final borders of the State Of Israel depend on the outcome of the negotiations between Israel and the Palestinians. Because said borders are yet to be determined and many more Jews are yet to make Aliya, the Zionist Project is not yet completed. (4) Muslim-Arabs have invested huge fortune in trying to turn the word “Zionism” into something nefarious. Such efforts included the abuse of the UN (what a surprise!) which resulted to a UNGA Resolution equating Zionism with racism. Several years later, the UNGA was forced to retract said Resolution. (5) Zionism is as normal/good as- and equivalent to “Pan Arabism”, “Pan Americana” and Europeanism as inherent in the spirit of the Supra-national State called the European Union, i.e. EU. (I am surprised by yourr question because 99.99% of the folks here claim to be experts on Israel).

            Reply to Comment
    5. Average American

      Thank you Ginger, may I ask more.

      1) You might be aware some people point out that the area of the Jewish State is also the ancestral homeland of other people. How do you respond to that?

      3) Am I understanding you that since more Jews will be making Aliya, naturally Zionism would adjust the borders to make room for them? Even beyond the West Bank if needed?

      4) What factors in Zionism did UNGA find equates with racism, can you give examples?

      5) Am I understanding you that Zionism will form its own supra-national state (like EU) governing Israel and the surrounding nations?

      Reply to Comment
      • Ginger Eis

        First of all, my compliments for your style. You are only one here that asks questions in a judicious manner. I shall answer in two posts. (1) the Middle east is a place that defies logic. Both Israelis and Palestinian Arabs can reasonably claim the Land Of Israel as their ancestral homeland (just as the biological mother and the adoptive mother may claim parentage of the same child). (2)If and when there is a Palestinian State, Israel will have to build within her own borders to accommodate diaspora Jews (about 5milion more) returning home. If the Palestinians continue to reject every peace-offer, that would open-up the Pandora box with lots of possibilities such as (and I am speculating here) growth of Jewish cities in Judea and Samaria, the fall of the Hashemite Kingdom and the Rule of the Palestinian majority in Jordan. I am aware that the latters are taboos no one wants to talk about, but it remains a theoretical possibility. I do not see BDS, ICC, etc. being effective instruments of war against the Jewish State.

        Reply to Comment
      • Tzutzik

        “You might be aware some people point out that the area of the Jewish State is also the ancestral homeland of other people. How do you respond to that?”

        How do you respond to the fact that you live in a land that was stolen from Native American Indians?

        Reply to Comment
    6. Ginger Eis

      Post 2: (3) the premise of UNGA Resolution 3379 was that Zionism and Apartheid practices have the same nature. The conclusion was that Zionism is therefore a form of racism. Said resolution was not based on any scientific research and it did not matter whether or not it’s content was fabricated. All the UNGA needed was enough votes to pass it. And in ALL matters re the Arab/Israeli conflict, there is ALWAYS an AUTHOMATIC majority against Israel – regardless of whether or not Israel is right. (4) a Supra-national State is an International Organization that has Sovereign Powers over her member-States. By definition Zionism cannot form a Supranational State because (a) Zionism is a movement not an Int. Org., (b) at least two States are required to set up a Sovereign Supranational State; (c) only the government of the Jewish State Of Israel (i.e. the Knesset, the executive and the judiciary combined) may exercise sovereign powers over Israeli citizens. Anything else will conflict with the core of the Zionist Ideal (i.e. Jewish Self-determination).

      Reply to Comment
      • Average American

        Thank you Ginger, very informative and I feel like your answers are authentic. I’ve printed them out if that’s allright with you. Thanks for taking the time.

        Reply to Comment

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