How Israel’s top court outlawed moral opposition to the occupation

In the topsy-turvy world of Israel's High Court, international law is nothing more than a disguise to delegitimize the state and its settlements.

Human Rights Watch Israel and Palestine Director Omar Shakir speaks to press ahead of his deportation from Israel, flanked by HRW head Kenneth Roth, right, and attorney Michael Sfard, left, November 25, 2019 (Oren Ziv/
Human Rights Watch Israel and Palestine Director Omar Shakir speaks to press ahead of his deportation from Israel, flanked by HRW head Kenneth Roth, right, and attorney Michael Sfard, left, November 25, 2019 (Oren Ziv/

Could a judge from the European Court of Justice be barred from entering Israel because they believe Israeli settlement products made in the occupied territories must be labeled as such? A careful reading of an Israeli High Court decision, in a seemingly unrelated case, may suggest exactly that.

In November 2019, just one week before the European court mandated the proper labeling of Israeli settlement products sold in the EU market, Israel’s High Court approved the deportation of Omar Shakir, the Israel/Palestine director of Human Rights Watch (HRW vs. The Minister of the Interior). The ruling demonstrated yet again how Israeli law — and the High Court’s interpretation of it — clashes with core values of international law while dismissing the very right to support those values.

Shakir’s case and the settlement labeling case are ostensibly very different. But both rulings in fact tackle the same core questions: Are Israeli settlements on occupied Palestinian land illegal? And if so, are ethical considerations a legitimate reason to oppose them? The answers may seem obvious — but in the topsy-turvy world of Israeli jurisprudence on the occupation, they are anything but.

The European court answered both questions with a resounding “yes.” It reiterated basic facts which merit repeating, given the extent to which they are now dismissed in the public discourse:

“The West Bank is a territory whose people, namely the Palestinian people, enjoy the right to self-determination, as noted by the International Court of Justice” (Article 35); “the State of Israel is present in those territories as an occupying power and not as a sovereign entity” (Article 37); and “the settlements… give concrete expression to a policy of population transfer conducted by that State outside its territory, in violation of the rules of general international humanitarian law” (Article 48).

With compelling clarity, the European court concluded that “the fact that a foodstuff comes from a settlement established in breach of the rules of international humanitarian law” is perfectly legitimate as a “subject of ethical assessments capable of influencing consumers’ purchasing decisions.”

How Israel's top court outlawed moral opposition to the occupation
‎Supreme Court President Esther Hayut arrives for a court hearing in Jerusalem, March 14, 2019. (Hadas Parush / Flash90)

Israel’s court, on the other hand, made it clear it would have none of this logic. In Shakir’s case, it ruled that a person accused of “calling for a boycott” of settlements could be denied entry into Israel “even if [one] relies on reasons of protecting human rights” (emphasis added) to justify their position. In other words, acting against Israeli policies that violate international law on ethical grounds may land you on the wrong side of Israeli law — and out of the country (and the areas it occupies).

Echoing the Israeli government’s rhetoric, the High Court claimed that criticism the settlements and activity within them are inherently due to the settlements’ “affinity to” — that is, their identity as part of — the State of Israel or the areas under its control, and added that no arguments based on human rights or international law can overcome the Israeli law’s applicability. The court even had the audacity to warn against attempts to “disguise” such positions “in the rhetoric of human rights or international law.”

Following this logic, it’s not hard to see why judges from the European court may be denied entry into Israel.

Consider that HRW called on businesses to comply with the UN Guiding Principles on Business and Human Rights and to cease working with Israel’s illegal settlements. The European judges, meanwhile, directed EU states to comply with EU law so that consumers would be informed and enabled to stop supporting businesses in illegal settlements.

Are either of these a specific call for boycott? From Israel’s perspective, HRW’s actions certainly are, and the European court ruling may very well be. But either way, this should not overshadow the real issue: calling for a boycott, laying the groundwork for a boycott, or actually boycotting all constitute basic rights to free speech and political expression — and Israel seeks to stifle them all.

Just as alarming, the High Court declared that “opposition to the general policy practiced by the Government of Israel with respect to an area under its control” is unacceptable since, the justices argued, it “express[es] delegitimization of the State of Israel because of its actions, rather than specific conduct exhibited.” Put bluntly: concern for Palestinian human rights is inherently a “delegitimization” of Israel.

How Israel's top court outlawed moral opposition to the occupation
Israeli Jewish workers work at Beit El winery located in the Jewish settlement of Beit El, in the West Bank on September 4, 2019. (Hillel Maeir / Flash90)

The stark contrast between the Israeli and European rulings reveals the immense distance between those who believe international law provides strong ethical guidelines for the world, and those who have no qualms gutting it and using legal verbiage to promote dispossession and theft.

Yet even darker territory lies ahead. As Masha Gessen recently noted in the New Yorker, in the context of the IHRA definition of anti-Semitism and Trump’s executive order on the matter, there has been a “sleight of hand” in how “opposition to or criticism of Israeli policies” is being reframed “as opposition to the state of Israel.” Israel performs a similar sleight of hand: it reframes support for human rights and opposition to settlements as inherently opposed to the state itself.

Thus, from one sleight of hand to the next, Israel’s propaganda logic could easily lead to framing the European court’s ruling as anti-Semitic. If this slippery slope seems far-fetched, consider how quickly Israel’s prime minister began using that exact language against ICC prosecutor Fatou Bensouda, when she announced last month that she may finally pursue a war crimes investigation in the Palestinian territories — including of Israel’s illegal settlements. It took Netanyahu barely 48 hours to start spouting that “new edicts are being issued against the Jewish people — anti-Semitic edicts by the International Criminal Court.”

Such newspeak must be met with old truths. The legitimacy of supporting basic moral principles, including those outlined in international law, cannot be undermined. False accusations of anti-Semitism must not be allowed to become successful silencing tools. Illegal actions must be met with accountability, and unethical policies with ethical action.

Yet it is not enough for consumers to make individual decisions or for businesses to act ethically. It must be expressed at the governmental level, through value-based and assertive foreign policy, led by democratic states that wish to uphold humanity’s conscience and reject the endless occupation, oppression, and dispossession of one people by another.

Rejecting this injustice is not anti-Semitic. Supporting the dehumanization of Palestinians is racist. And allowing this reality to continue is unconscionable.