(December 21, 2018 / KDJ)
A legal overreach
When it was founded in 2005 the Boycott, Divestment, and Sanctions movement aimed to bring the Israeli government to its knees using financial pressure and cultural alienation. The concept goes back to ancient times, even to the Bible itself with the concept of an imposed kherem – the setting apart of a person from the camp of the Israelites due to leprosy or ritual impurity. The ancient Greeks also started the custom of social ostracism, and such practices continue today in all of the western religions and Islam. But whereas the objective in those times was to give the afflicted person time to recover while being quarantined away from family and others, BDS believes that Israel is intrinsically vulgar and profane. The movement seeks to weaken, transform, or destroy it in order to rid the world of what followers see as a cancerous tumor on humanity.
The BDS activists often make the accusation that Israel’s abuse of the Palestinian inhabitants of the West Bank and Gaza is so egregious that it is in a category of infamy unique among nations. However, in their zealous campaigns to swing world opinion BDS has clumsily stumbled to show the results of its efforts. Here the movement’s founder Omar Barghouti is even doubted by the presenter for sympathetic Turkish channel TRT World as to the success of the movement:
The reality is that while Israel’s economic growth has fluctuated in recent years, it still has consistently grown rather than go through a stagnation or recession period. Whatever one’s judgment of Israel’s moral and social position in the world, the numbers indicate that on the economic front it is busting through many barriers. According to Organization for Economic Cooperation and Development Chief Economist Alvaro Pereira: “The Israeli economy has grown faster and more consistently than nearly any other in the OECD for the past 15 years.”
In other words, Barghouti’s claims of success are crap, just as the statement by the presenter that he is speaking from Acre in the Occupied Territories is pure denial of reality. (The author’s family is from the same city, which is situated north of the larger port of Haifa, and is roughly 70 km from the closest part of the Occupied Territories).
BDS goals vs. Accomplishments
In some of the nations and subdivisions where Israel has favourable relations with the government’s BDS, there have been calls to pass measures against the movement based on a number of well-intended yet dubious pretexts. The most applicable legal response to the movement has been the disqualification of BDS-supporting organizations from state contracts, and the most common rationale is that the BDS movement is anti-Semitic. By this logic the government of a given state, let’s say Georgia, could be abridging the rights of its Israeli and/or Jewish residents by directing business to an entity that could deal with those residents but, according to some BDS guidelines, actively bans them. But whether this is true is difficult to surmise, because the official BDS movement muddles the definition of its own campaign. In those guidelines, the movement affirms its commitment to academic freedom while still reserving the right to deny the hosting of representatives of Israeli institutions of higher learning.
Here are the definitions according to the BDS Movement’s website:
- “BOYCOTTS involve withdrawing support for Israel and Israeli and international companies that are involved in the violation of Palestinian human rights, as well as complicit Israeli sporting, cultural and academic institutions.
- DIVESTMENT campaigns urge banks, local councils, churches, pension funds and universities to withdraw investments from all Israeli companies and from international companies involved in violating Palestinian rights.
- SANCTIONS campaigns pressure governments to fulfil their legal obligation to hold Israel to account including by ending military trade, free-trade agreements and expelling Israel from international forums such as the UN and FIFA.”
In Europe, the BDS movement has had notable gains among local and some national governments in steering them away from doing business with companies that also have relationships with Israel’s security forces or other sectors of the economy. Such a ban was passed earlier this month in Ghent, a city of about 260 thousand residents in Belgium’s Flanders region. The official BDS movement also claims similar measures were passed in Dublin, Barcelona, Valencia, and Trondheim.
However, other BDS “accomplishments” could be classified as histrionic activists having hallucinatory episodes. In November, Electronic Intifada, Ali Abunimah’s online pro-BDS web news page, gloated over two Jordanian actors pulling out of a TV series involving two Israeli actors. What is truly ironic is that the series. . .
- Was being filmed in Jordan’s capital Amman as the Israeli metropolis of Tel Aviv.
- According to Electronic Intifada, the actors pulled out not due to the citizenship of the actors, but because they were Israeli Jews and not Arab citizens of Israel.
- The film’s producers had stated that the main actors had been American and Australian not Israeli. They also demanded to know the character of the film’s content, something that the Royal Film Commission of Jordan claimed they have no authority over. This is effectively a call for state censorship of a film in Jordan.
The fact that Abunimah’s group would gloat over a saga involving not an Israeli firm or company being discriminated against, but rather the attempted shuttering of a film merely portraying Israel using allegedly Jewish actors shows that they are not even competent to pick a useful target.
This is similar to Roger Waters’ ridiculous recent decision to attempt to prevent a Pink Floyd cover band from performing in Israel. Had Waters just shut his mouth the group’s show would have been a mild curiosity among Pink Floyd’s large Israeli audience, but instead he has transformed it into an episode of comical irony – an over the hill musician shaking his fist at his impersonators.
Defend civil liberties, not their violators
Furthermore, beyond the specific BDS Movement’s public positions, one must consider the Palestinian government’s own zig-zagging on the policy. Just yesterday President Mahmoud Abbas declared that a group of Arab journalists from western nations visiting Israel were committing a sin. By virtue of this statement, he is qualifying the freedom of the press by the content of the material and whether it sustains his position, not as a civil liberty standing on its own as a virtue.
And before illustrating why the BDS laws are a poor idea, it should be stated that while the movement itself is entitled to freedom of speech its own activists show through their actions that they do not believe in that right for their opponents. Examples of this heavy-handed behaviour abound:
- In September an IDF officer and daughter of the Israeli Consul General in New York studying at Columbia University asserted that she had received harassment and threats from members of the Students for Justice in Palestine. SJP is the main BDS activism group on college campuses.
- In 2014 a chapter of SJP at Loyola University of Chicago was suspended following its efforts to forcibly deny platforms to a Jewish group event on campus as well as prevent Hillel volunteers from distributing Birthright Israel campaign literature.
- Also in 2014, an SJP chapter at Northeastern University in Boston was suspended due to an incident where eviction labels were placed on dorm rooms of Jewish students in protest of Israeli policies in the West Bank and Gaza such as housing demolitions. Similar activities have been undertaken at other campuses. This type of targeted activity constitutes vandalism and harassment because rather than protesting a state or institution it targets individual students by their religious or ethnic affiliation.
Incitement to violence and disruption of approved campus events are typical of BDS-supporting SJP chapters such as the one shown below at the University of California-Irvine.
BDS motivated harassment activity is a social problem on American college campuses, but the solution is not to abridge freedom of speech using legal mechanisms. Rather colleges can choose to enforce the laws already in place, and if necessary discipline such students with academic penalties or expulsion. This harassment is a wider problem than just BDS activism as political intolerance on US campuses has increased as a result of an increasingly polarized social climate in the wake of the Trayvon Martin shooting in 2013 and similar incidents that have followed since then. It is, therefore, puzzling that pro-Israel activists and allied groups would choose broader anti-BDS legislation to combat a problem that is much more focused to academia and that can and must be resolved by school administrations.
The law to fix a problem already solved
Most of the laws in question are passed at the state level, although a federal counterpart could be coming down the pike. The one that is currently making headlines is Texas HB 89, simply called the “Anti-BDS Bill” and passed in 2017. According to Volokh Conspiracy and Reason magazine contributor Daniel Bernstein, the now famous claim of speech pathologist Bahia Amawi shown above that her personal beliefs are discriminated against by the law is invalid, because the law pertains to businesses dealing with the state, not with individual private contractors.
In just such a case Amawi would have to be the owner of a sole proprietorship or any of the other company categories listed under the statute in order to have actually been subject to the rule. Otherwise, she may have just punked herself by not signing a contract due to a clause to which she was not subject. It is, therefore, possible that she will lose the suit and that her act of not signing the law was in order to garner pressure for its legislative repeal. However, during the Hurricane Harvey aftermath, it was found that flood victims from Dickinson, Texas were asked to sign a similar declaration asserting that they themselves do not participate in BDS in order that they would receive aid through their municipal government. Had the city council not voted to repeal the statute the complainants would have easily prevailed in courts.
Precedents and parallels
- Bernstein cites the Supreme Court ruling of Rumsfeld v. FAIR where a left-leaning activist group sought to bar military recruiters from law school campuses on the grounds that they found the “Don’t Ask Don’t Tell” policy to be discriminatory. As such, the federal government began withholding the funding for these schools which the court ruled in an 8-0 decision was constitutional. However, this case pertains to law schools receiving grants and aid from the US government while also refusing access to officials of that same government. However, the question, in this case, would be whether an individual or entity may boycott the products or services of a foreign government and continue to be eligible for government contracts. It is therefore debatable that the Solomon Amendment used to rule in this case would apply.
- In a similar case in Kansas, public school teacher and Mennonite Esther Koontz’s suit was withdrawn after the state amended the law. In January the enforcement of the bill was blocked by federal judge Daniel Crabtree. It is unknown therefore whether the law would have been struck down had the Kansas legislature not reversed course.
- Citizens United v. FEC in 2010 established the right to free speech for corporations and unions. While this would not necessarily require state governments to award contracts to BDS supporting businesses such as the ones excluded under HB 89, it does call into question whether they can be disqualified based on a policy position, however controversial that may be.
Is it a done deal that the anti-BDS laws will be struck down? It is too early to tell as it is too early to know how the litigation will pan out. However, even if it is sustained, are such laws in keeping with the spirit of free speech and civil liberties in America, notwithstanding BDS supporters’ own lack of respect for those values? What will come next, similar laws opposing animal rights activists, religious missionaries and other public nuisances?
People with obnoxious points of view, lack of imagination, and poor strategy can be defeated without targeted laws. And indeed, by using legislation to do the work that actually requires competent advocacy, BDS is being handed a tremendous image boost that is undeserved. Unfortunately, it looks like pro-Israel legislators and activists are falling into their own trap.