Warning: This Post Is Illegal

Gershom Gorenberg

My new column is up at The American Prospect:

This article is against the law. To be more precise: It includes a call for boycotting the products of West Bank settlements, a call that will be illegal in Israel as soon as legislation just approved by the Knesset is published in the official gazette and takes effect. That’s normally a matter of a couple of days, perhaps a week.

The Prohibition on Instituting a Boycott Act was submitted by Zeev Elkin—a West Bank settler and Likud politician who chairs the ruling coalition in Israel’s parliament. On Monday night, the Knesset passed the Boycott Act on a straight party-line vote, with the 47 members of the coalition and a far-right opposition party voting in favor, and the 38 members of center and left-wing opposition parties voting against.

Under the law, publicly calling for an “economic, academic or cultural” boycott of “the State of Israel, one of its institutions or an area under its control” is a “civil tort.” That is, publicly organizing or even supporting a boycott is grounds for the boycott’s target to file a civil suit, and for a court to award punitive damages even if the plaintiff doesn’t prove actual financial harm. Promoting a boycott isn’t a criminal act, but it’s definitely an illegal one, and the Knesset has made civil lawsuits the method of punishment. (My thanks to leading Israeli legal commentator Moshe Negbi and to Georgetown University law professor David Luban for parsing the law.)

The phrase in the law referring to “an area under [Israel’s] control” is a very thinly-veiled reference to the West Bank. The phrase is there to outlaw boycotts of Israeli settlements in occupied territory. The legislation bans promoting a boycott of a specific settlement product—say, wine from ex-terrorist Menachem Livni’s vineyard near Hebron—or of everything produced in settlement farms and industry. If the Israeli actors who publicly refused last year to appear on the stage in the new theater in the settlement of Ariel stick to their position, they too may face legal action.

This is a pernicious law. The future of the West Bank and of the Israeli settlements in that territory is Israel’s single most important political issue. The Boycott Act attacks one form of free expression used by citizens to take a stand on that question. The act also attacks the right to organize, and the right of citizens to act as free agents economically. Defining the supposed offense as a civil tort does not soften the blow. Individual settlers, settlement organizations and local governments can file suit against opponents, keep them tied up in court for years, and punish them with legal costs even before a verdict.

Read the rest at the American Prospect, and comment there or in South Jerusalem. Just be careful of what you say here. Someone might sue you.

 

My new column is up at The American Prospect.

11 thoughts on “Warning: This Post Is Illegal”

  1. At last there’s an issue that all of us Americans can probably agree on, whatever our other differences. This was a really stupid law.

  2. The right wingers probably can’t wait for the left to try to use the courts to declare this law illegal or whatever the correct legal terminology is. They will then use induced public outrage as a way of curtailing the activities of the courts as well as the left.

  3. “The settlement enterprise in occupied territory is a 44-year-long affront to Israeli democracy and the rule of law.”

    I completely agree that this law is as stupid as it gets, also that settlements are intended as faits accomplis. But here you make it seem as if the settlements enterprise was something that is happening to Israel, instead of something the state, not just a handful of settler outlaws, has always pursued and supported. Democracy and the rule of law are what you make of them, and why shouldn’t we in the west not lay Israel’s abominable performance in that department – compared, as is proper, with other democracies – at the state’s doorstep? That’s the cause of BDS against Israel as a whole. It has nothing to do with the Jewish people’s right to self-determination, only with the way they chose to exercise that right.

  4. I trust your readers understand that you have placed yourself in jeopardy. I am proud to be a lowly reader of this blog.

    I am, however, rather hopeful that this law will ignite interest in constitutional thought (consider the Haaretz piece by your Speaker of the Knesset). I think the rhetoric employed by Knesset and other supports of this law will shift some High Court Justices into the constitutionalist camp, and cause some previous mute to confess their belief in constitutionalism.

    My views I have already expressed on this blog. Briefly:

    1) The Declaration of Independence is a constitutional document which, unusally, requires certain content in a constitution, including equality across sex, race, and religion. It also enshrines unencumbered Jewish ingress into Israel in perpetuity.

    2) The Constituent Assembly was mandated by the Declaration to draft a constitution. The Assembly had no mandate to usurp all soverignity by creating the Knesset, which has come to be viewed by many as the politically corporate body of Israeli Jews. An Assembly charged with curtailing State power through a constitution cannot declare itself soverign.

    3) Your country still awaits a drafted constitution, to be ratifed by the polity, as envisioned by the founders of 1948-9. The drafting body should be independent of the Knesset (this latter acting as an interm legislative and executive body–via ministers–until a constitution can be ratified).

    4) A constitution can significantly alter the High Court, determining who nominates and confirms Justices, and how long these serve. And by detailing an more limited appeal process. BUT the constitution must meet the rights specifications of the Declaration. (Note that, by appointing the right Justices, one can turn off rights mandated by the Declaration. But, eventually, appointees will rebel, returning to the Declaration, although it may take a decade of more. The point being that the Knesset, if mandated to confirm, could “win” for a while.)

    The logic is there. And I think the actions of fortress nationalist MK’s are pressing High Court Justices to defend themselves, and their institution, by returning to the Declaration as a constitutional document in itself. It is NOT true that Israel is completely bereft a constitution.

  5. I also think it’s interesting how jurists are already describing this law as unconstitutional. Would that we had a constitution!

    Anyway, almost as bad as the law itself is the pattern we’ve gotten into of running to the High Court as the Place of Refuge of the Left. Very unhealthy situation.

    Now let’s see what happens when an Orthodox Jew appeals to the rest of us not to ride buses or take planes on Shabbos. Will Egged and Arkia sue her for violating the boycott law?

  6. I think that Israel should adopt the US boycott law and be just as democratic as that country:

    The Antiboycott laws under the U.S. Export Administration Act of 1979 [as amended in August 1999] were written specifically to protect Israel from the Arab League and other Moslem countries.

    On Monday, July 11, 2011 the Knesset [the Israeli Parliament] passed an Antiboycott law against those who promote and call to boycott Israel.

    Israel’s Attorney-General claims that the Israeli boycott laws’ border on unconstitutionality. A look at the U.S. Antiboycott laws objectives, should be helpful in defending the Israeli law.

    “The [U.S.] Antiboycott laws discourage, and in some circumstances, prohibit U.S. companies from furthering or supporting the boycott of Israel sponsored by the Arab League, and certain Moslem countries, including complying with certain requests for information designed to verify compliance with the boycott. Compliance with such requests may be prohibited by the Export Administration Regulations (EAR) and may be reportable to the Bureau.”

    The U.S. Laws Prohibits among others:

    “Agreements to refuse or actual refusal to do business with or in Israel or with blacklisted companies.
    “Agreements to discriminate or actual discrimination against other persons based on race, religion, sex, national origin or nationality.
    “Agreements to furnish or actual furnishing of information about business relationships with or in Israel or with blacklisted companies.
    “Agreements to furnish or actual furnishing of information about the race, religion, sex, or national origin of another person.”
    Acting against the U.S. laws is considered a criminal behavior and carry with it penalties of up to $1 million and 20 years imprisonment per violation.

    For further information about US anti-boycott laws see:

    http://www.bis.doc.gov/complianceandenforcement/antiboycottcompliance.htm#boycottlaws

    http://law.justia.com/cfr/title48/48-4.0.4.34.40.2.1.10.html

  7. and someone sent me this:

    Boycotting the ‘settlements’ is attacking the human rights of the ‘settlers’ and of other Jews who might want to move to those places. It is a racist, apartheid policy against Jews. Prof Fleischhacker is a racist against Jews.

  8. Oh Medad,

    There is, in US jurisprudence, a clear distinction between boycotting purchase of products vs discrimination in business. No businessman may refuse to sell with someone based on race or sex or creed, or refuse contract with someone on the same basis. The law you post extends this as a foregin policy tool, Israel being not being identical to Jews as such. It cannot be made illegal in the US to advocate boycotting Israeli products among consumers. Consumers may refuse to buy as they wish. If, however, companies attempted to blacklist Israeli companies, this would be identical to blacklisting, say, African-American companies–although, again, consumers can boycott as they wish.

    Without the boycott as tool both the American Civil Rights movement and labor union movement would have been crippled. There were attempts to prevent boycotts in both cases, somewhat for the reasons you state (“our white businesses are unfairly suffering”), but these attempts ultimately failed in law. Martin Luther King, Jr., in his last speech before assasination, proposed a nation-wide boycott by blacks on all sorts of “white” products (“buy black”). Taking products off shelves would be illegal; but consumers refusing to buy them precisely because of their origin cannot be made illegal; nor can speech explaining why such a consumer boycott should be honored. The consumer is a contractual dead end; s/he just buys, and one may urge her to choose this, not that for just about any reason you can imagine. Businesses are not consumers as people are, in law.Boycotting a product has nothing to do with contract when done at the consumer level; it may have among companies.


    One can also adovcate and organize to divest some entity (such as a University or corporation) from, say, stock in a corporation doing business in Israel (or arpatheid South Africa, or the United Kingdom). Consumers and stock owners may organize or act individually towards these goals. A company may as well divest itself of stock, for owning stock is no contract to trade or do business with a company. No one can tell either a person or corporation what to own.

    In the United States one may not refuse to rent to a race or sell a house to a race; it seems this issue is undecided in Israel.

    I urge you to consider the constitutional crisis in your country rather than argue American law off point. American law will not abide race war. Can you say the same of Israel today?

  9. I wonder when these false analogies with the U.S. civil rights movement will stop. The civil rights movement was not trying to overthrow the U.S. government, demand that white people move “back” to Europe, murder U.S. citizens indiscriminately, nor ally itself with 20 surrounding African American dictatorships.

    Now given that the U.S., still now the greatest country in the world (yadda yadda — check it out — beat the Soviet Union and brought freedom to 1M Jews let alone 300M former USSR citizens + satellites), _settled_ its territory 3-400 years ago by killing off most of the native population, I would say that Americans who want to point fingers, or feel guilty about, race war, should look inward where two race wars (Native Americans, Slavery) happened, not outward to Israel where none exists.

    There is a clear existential war being fought against the Jews and their State of Israel, but it is not a race war, and certainly not perpretrated by Israel.

  10. Boycotts and sanctions aimed at Israel as a whole convey a message that the country’s very existence is the problem. Aimed at military suppliers, they imply that Israel has no legitimate need to defend itself. Politically, those methods create a siege mood that encourages Israelis to put aside their own criticisms of their government.

    I am sorry but I disagree. it has been the Israeli governments, reflecting upon all Israelis, that has continued this settlement policy for years and years ongoing to today. And those who have lived inside of Israel and others from abroad have moved to the settlements, been coaxed and protected by these same governments with the tacit approval of the people- or the majority. A boycott against all Israeli products is therefore morally legitimate in my opinion. I agree it should not be against academics or in fact any business that has been outspoken against the occupation.

    And this does not mean that the person boycotting or such boycotts delegitimize Israel. Nor does it mean that Israel has not right to defend itself if one boycotts military suppliers. let’s cultivate some nuance. Not at all. If anything, Israel puts itself at risk.. including defense, security. The boycott is and should be against the government of Israel AND it’s supporters– including those who live in Israel “proper”.

    That said- I have not joined… not yet. And I agree with Fiddler.

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