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 High Court of Justice (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