Daphne Anson - So Is Israel's New Anti-Boycott Law Undemocratic?

Daphne Anson
18 July '11

http://daphneanson.blogspot.com/2011/07/so-is-israels-new-anti-boycott-law.html

Inside Israel and outside, one avowedly pro-Israel individual and organisation after another has argued in the affirmative. For example, to quote an antipodean example (hat tip: J-Wire) that appears representative of the widespread condemnation voiced, the executive director of the Union for Progressive Judaism in Australia states of the new law, which the Knesset passed by 47 votes to 38:

"While we are totally opposed to any boycotts or sanctions we are gravely concerned when the Government of Israel makes non-violent protest a criminal act. Israel is the bastion of democracy in the Middle East but such legislation undermines this position and only serves those who seek to deny Israel’s democratic basis. The passage of the anti-boycott legislation, and other recent decisions by the Knesset, tarnishes the open, inclusive, democratic Israel for which we all work each day.

Rather than having to speak out against this legislation we would prefer to be working with Israel to combat the odious efforts to delegitimize her and to encourage our communities to provide moral and financial support."

Politically leftist elements are shriller and less temperate in their denunciations; I shall not raise my blood pressure by quoting them here.

But there is an alternative argument, one that hasn't received as much attention as it undoubtedly ought, and which has been well-articulated in the Jerusalem Post by Eugene Kontorovich, who teaches constitutional law at Northwestern University in the United States.

Here's part of what he writes:

'These criticisms are wrong as a matter of principle. More insidiously, they hold Israel to a standard never applied to other nations, and criticizes it for passing laws that are well within the western democratic mainstream. Moreover, the outrage over the anti-boycott law carries a dose of hypocrisy, as it ignores numerous other laws in Israel that are used to restrict political speech generally associated with the right wing.

There is no universal code of free speech. Determining what gets protection involves trade-offs between the very real harm that speech can cause and the benefit of free expression....

The United States has far more robust constitutional speech protections than almost any Western country....

But even the US has a law against boycotting Israel. It has been on the books for decades, and has been regularly enforced, but no one has suggested it is unconstitutional – and that is for a law protecting another country’s economy. Moreover, Israel’s law, unlike the American one, applies only to organizing boycotts, not to actually adhering to one....

Every nation has laws against conspiracies to cause economic harm: antitrust laws prohibit speech when its purpose is to unfairly cause economic harm. And the common law makes it a tort to “interfere with prospective business advantage,” i.e. scaring off someone’s customers.

The anti-boycott law prohibits speech intended to cause economic harm to businesses solely because of their national identity. Nondiscrimination laws commonly ban plans to deny business to specified groups of certain national or ethnic origins.

Israel’s new law bans discrimination against businesses because they are Israeli. 

Most European states – and Israel – have laws prohibiting speech that is perceived as “hateful” or which simply offends the feelings of particular groups. Often such speech expresses important viewpoints.

A boycott of Israel promotes hatred of Israel, and certainly offends the vast majority of Israelis. To be sure, boycott supporters argue that at least when it comes to settlers, such hatred is deserved, but that is always the opinion of those whose speech is blocked by such laws.

The boycott movement is designed to imperil the State of Israel, and can actually do so. This danger outweighs the benefits of allowing such speech, especially since the law does not in any way limit advocating policies or viewpoints that such boycotts are supposed to promote. Indeed, the law has a characteristic crucial for free-speech scrutiny – it is “viewpoint neutral.”

That is, it applies to boycotts of Israel whether organized by the left wing or the right wing.

Like most European democracies, Israel’s constitutional protection of speech has long been narrower than America’s....

Israel’s current practice is clearly well within the limits of an open democracy. Singling out Israel for laws that are identical to, or just as restrictive as, laws on the books in America and Europe manifests the very problem that exists with the boycotts themselves – the application of an entirely different set of standards to Israel than to the rest of the free world.'

The entire article can be read here: http://www.jpost.com/Opinion/Op-EdContributors/Article.aspx?id=229780

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Navon - For me, not for thee

Emmanuel Navon
For the Sake of Zion
17 July '11

http://navonsblog.blogspot.com/2011/07/for-me-not-for-thee.html

Last week (on Bastille Day), the new Republic of South Sudan became a member state of the United Nations. After being oppressed, massacred and plundered for decades by Khartoum, the people of South Sudan finally obtained the independent state they fought for. Theoretically, the Palestinians should rejoice and ask the UN why they are denied what the South Sudanese were just granted. Instead, Mahmoud Abbas delivered a letter to Sudanese President Omar Hassan Al-Bashir (a man accused of genocide and of crimes against humanity by the International Criminal Court) to express his opposition to South Sudan’s independence.

It’s called self-determination for me, not for thee.

Just as Abbas was about to reap the gold medal for hypocrisy, Catherine Ashton broke a new record. After the Knesset passed a law last week that enables Israeli citizens to bring civil suits against people or organizations instigating anti-Israel boycotts, Ashton expressed public concern for freedom of speech in Israel. Which makes Ashton eligible for the gold medal of hypocrisy too, because in Europe anti-Israel boycott is a criminal offence. In France, for example, you can go to jail for three years and pay a €45,000 fine for trying to impede economic activity out of political, ethnic, or religious prejudice (Articles 225-1 and 225-2 of the “Code pénal”).

The French law is more stringent than the one recently passed by the Knesset. The new Israeli law does not criminalize boycott. It only allows "citizens to bring civil suits against persons and organizations that call for economic, cultural or academic boycotts against Israel, Israeli institutions or regions under Israeli control." So the New Israel’s Fund’s statement that the new law "criminalizes freedom of speech" is false and misleading. The new Israeli law does not criminalize boycott, let alone freedom of speech. French law, by contrast, does criminalize boycott.

US law also prohibits anti-Israel boycott. The Anti-boycott laws under the US Export Administration Act of 1979 (as amended in August 1999) prohibit American companies from furthering or supporting the boycott of Israel. The penalties imposed for each violation can be a fine of up to $50,000 or five times the value of the exports involved (whichever is greater), and imprisonment of up to five years.

It is ironical that the same people in Israel who claim that freedom of speech can suffer no infringement said the very opposite two weeks ago when the police arrested Rabbi Dov Lior. We were told at the time that freedom of speech can and should be curtailed when it borders incitement. True, there is a difference between incitement and boycott (though boycott often turns into incitement). But either freedom of speech suffers no limitation, or it does. And democracies such as the United States and France do limit freedom of speech in order to prevent incitement as well as boycott. So you are allowed to limit freedom of speech in order to prevent discrimination in America and in France, but not in Israel.

It’s called freedom of speech for me, not for thee.

No less ironical is the fact that the very same people in Israel who said after the arrest of Rabbi Lior that the law is sacrosanct are now making a point of publicly defying the law by boycotting Israeli goods produced beyond the “green line” (in France, as explained above, they could be jailed for doing that). Two weeks ago, the law was sacrosanct. Now, it is a moral duty to break it.

It’s called rule of law for thee, not for me.

So who gets the gold medal for hypocrisy? Mahmud Abbas, Catherine Ashton, or Zehava Gal-On? The contest being so tight, here is a compromise. Let’s grant French citizenship to Zehava Gal-On to deter her from discriminating between Israeli products for political reasons. Let’s have Catherine Ashton write an essay on “why civil lawsuits are more dangerous to freedom of speech than criminal prosecutions.” And let’s appoint Mahmoud Abbas as “UN Special Envoy for the Universal Implementation of the two-state solution including, inter alia, in Sudan, Libya, Lebanon, Morocco, Cyprus, Belgium, Canada, and China.”

It’s called making of fool of thee, not of me.

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Stone - Boycott Law lets Israel defend itself

Elihu Stone
Op-Ed Contributor
JPost
13 July '11

http://www.jpost.com/Opinion/Op-EdContributors/Article.aspx?id=229260

Facing ongoing attacks from the global BDS movement, Israel cannot be expected to support those who work toward its economic destruction.

The anti-boycott legislation recently enacted by the Knesset has invoked a firestorm of criticism from many, fulminating against such legislation as inherently “undemocratic.” Allow me to present an alternative viewpoint, dealing with the particulars of the case.

Declaring that boycotts, per se, are illegal might be anti-democratic. However, the legislation in question does not criminalize boycotts. Rather, it provides a balance, allowing those who reject all (even indirect) contact with Israel to act as they see fit – so long as they do not harm otherwise binding contracts between parties who think otherwise, by inciting for their economic destruction and international sanction.

A careful reading of the bill shows that it merely provides possible protection, via the creation of a civil tort, for individuals and institutions (governmental, cultural and academic) that the Boycott, Divestment and Sanctions (BDS) movement means to strangle economically – and most undemocratically.

Adherence to democratic principles neither demands nor compels a democratic country to aid and abet all actions of those who effectively deny it the right to self-defense and actively advocate for its dissolution by any means short of armed assault. Moreover, those who would squash others by economic means should hardly be heard to complain when their intended victim chooses to withhold its economic support (in the form of tax breaks, etc.) from them.

Israel’s refusal to support its detractors in their declared efforts to undermine the country’s economy and blacklist all of its academic and cultural institutions is eminently reasonable, and presents no unfair surprise to those who have consistently exploited democratic rhetoric and institutions in the service of undemocratic ends. It remains a mysterium tremendum why those who would ostensibly utterly shun Israel’s government and urge others to do likewise are suddenly upset that they are ineligible to compete for that government’s tenders.

Any fair assessment of the Anti-Boycott legislation must take into consideration relevant history and context. The BDS movement is no phenomenon sui generis, springing out of thin air. Those with a sense of regional history will recall the Arab boycotts of Jewish and Zionist interests , that began well before the modern State of Israel was recognized in 1948. Indeed, the Arab League boycott remains in effect today, administered by the Damascus-based Central Boycott Office (CBO), a specialized bureau of the League.

THE BDS campaign – like the Arab boycott – targets not only Israel and its institutions, but also companies that do business in or with Israel. A fair read of the BDS movement’s website reveals that its ultimate goal, too, is the dismantling of the Jewish state – continuing the all-out assault initiated by Arab armies in 1948 – via economic means. BDS now constitutes at least as great a menace to Israel and all who associate with it – and to the very notion of free trade – as the original Arab Boycott.

Anti-Boycott legislation, used to effectively combat such threats, is nothing new in the context of the Arab-Israeli conflict. In 1977, the US Congress passed legislation criminalizing cooperation with the Arab boycott against Israel for American companies and individuals – and authorizing the imposition of serious penalties against violators. The legislation Israel has enacted is far less onerous for its opponents than the US legislation is for its opponents.

Israel’s legislation – like America’s – appropriately withholds governmental support from those who work toward its economic destruction. The law also provides a mechanism for Israelis to defend themselves from the (now) tortious interference with third-party contracts, when such interference is premised solely on the contracting parties’ connection to Israel, its institutions or areas under its control.

The wording of the Anti-Boycott measure might be improved upon; surely the courts (which the BDS campaign targets as institutions of Israel) will be called upon to interpret its scope and meaning, over time. However, the basis of the law is sound.

To sum up: A majority of the Knesset has now agreed that Israel will no longer be complicit in engineering its own demise. The legislature has asserted its right to re-level the economic playing field and provide the country’s professors, farmers, merchants, entrepreneurs, hospitals and cultural institutions with some mechanism for defending themselves against the tyranny of those who would wreak commercial and social havoc upon them.

Moreover, this bill – crafted to allow recourse via legal challenge of those who call trans-nationally for trampling Israel’s freedoms and those of its trade partners – is not undemocratic in nature.

Unlike the pernicious boycotts it is meant to combat, this bill actually serves to promote and maintain democratic ideals, such as freedom of association, economic substantive due process and – yes – the free exchange of ideas.

The writer practiced law in Boston, Massachusetts. He has served in leadership roles for a variety of Jewish communal organizations and is an alumnus of the Wexner Heritage Foundation. The writer recently took the Israeli Bar Exam, and lives in Efrat.


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Eydar - The boycott and the Left

Dror Eydar
Israel HaYom
14 July '11

http://www.israelhayom.com/site/newsletter_opinion.php?id=185

Despite the propaganda, the boycott law is not meant to protect settlements.

The ghoulish dance between the Israeli left and its hundreds of front organizations is creating a putsch against democracy. The dance is set to the stirrings of the predictable orchestra of dozens of media outlets, almost all of which believe the boycott law, which passed in the Knesset on Sunday, will muzzle free speech and inhibit democracy. Yadda yadda yadda, and the band played on. The righteousness of these players would put George Orwell to shame.

So who, exactly, does the boycott law muzzle? Only that permanently-aggrieved clique that regularly issues libel against Israel to the global community? Tell me, have you listened to the radio, read a newspaper, watched television or surfed the Internet lately? The concept of democracy has been cheapened. This law followed a drawn-out legislative process, comprising parliamentary votes, speeches both for and against, a heated and active public debate and appeals to the High Court. Is this not democracy? Where is the limit when it comes to falseness and hypocrisy from a group based on negative principles, a group that speaks the language of hatred and boycotts and who morning, noon and night defame Israel and encourage the international community to do the same?

The muzzled include those who encourage boycotts against the culture, economy and research institutions of Israel. Those who seek to silence them protest that the group is finally waking up and fighting back. Like the Palestinians during their Intifadas, they attack Israel's core and then plead victim status.

Despite what the propaganda says, the boycott law is not meant to protect settlements. While the Jewish communities in Judea and Samaria do deserve protection, the boycott law's scope is significantly larger: It combats the entire enterprise of boycotts seeking to harm Israel, encourage delegitimization and, indirectly, condone terror attacks against our citizens.

It is shameful that the boycott movement was initiated by Jews and Israelis. Many other democracies, including the U.S., have laws on their books against such actions. The boycott law is not a violation of democracy -- it is a protection of it.

The Leftist organizations who say this law attacks them are struggling not for freedom of speech but for freedom of hatred and incitement. These same organizations take pride in the slander of their own country, and in doing so they reap dividends from all those around the world who hate Israel.

To the members of this permanently-aggrieved camp who still possess a conscience, I ask: Do you really want democracy? If so, how can you explain the fact that most of the country has become alienated from you and your idea of democracy? They are no less democratic than you are.

Perhaps these aggrieved members should so some soul-searching instead of protesting, with condescension, by beating someone else's chest.

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Hertz - In Line with U.S. Antiboycott Laws to Protect Israel

Eli E. Hertz
mythsandfacts.org
13 July '11

http://www.mythsandfacts.org/article_view.asp?articleID=209

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 the entire U.S. Antiboycott Compliance text see: www.bis.doc.gov/complianceandenforcement/antiboycottcompliance.htm#boycottlaws
http://law.justia.com/cfr/title48/48-4.0.4.34.40.2.1.10.html

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Levin -New law protects democracy

Yariv Levin
Israel Opinion/Ynet
13 July '11

http://www.ynetnews.com/articles/0,7340,L-4094600,00.html

Op-ed: The only undemocratic aspect of Boycott Law is opposition’s attempt to thwart it

The other day we thwarted an attempted legal putsch aimed at trampling the Knesset’s sovereignty in favor of the political considerations of a national minority. The deceptive scaremongering campaign against the Boycott Law, undertaken while ignoring the legislation’s clear instructions and justified aim, was met with the firm stand of Knesset members. We voted in favor of the law and safeguarded democracy.

The State of Israel’s duty is to defend itself and its citizens. If in the past the main battlefield was military, today the campaign is much more complex. Economic strength, academic prowess and cultural wealth constitute a vital element in the power of every state. The Boycott Law is meant to safeguard the national strength of us all.

In essence, the law entrenches the right of each one of us to receive proper compensation for damages incurred as result of being boycotted only because of one’s area of residence or workplace. The law prevents those who call for boycotts against Israel and its citizens from reaching into the public coffers and receiving funding at the expense of tax funds paid by the very citizens facing the boycott.

The law draws a clear line between a legitimate political debate and the exploitation of Israeli democracy in order to undermine the State’s sovereignty, its economy or its academic institutions, whether these are located in Tel Aviv, Jerusalem or Ariel. This is the law’s justified aim, and there is no wonder that the leading Western democracies, headed by the United States, already adopted similar moves and even harsher sanctions against those who seek to boycott them.

Radical minority of judges

Against this backdrop, we should view with special gravity the opposition’s attempt, with the backing of a handful of attorneys, to prevent the law’s approval on the basis of seemingly unconstitutional grounds. The attempt to curb a democratic process and thwart the majority’s decision via controversial legal opinions and threats to petition the High Court of Justice reflect the Israeli Left’s inability to accept the path chosen by most of people here. This is a dangerous process where the minority attempts to force its views upon the majority by using the legal system, and first and foremost the Supreme Court.

A radical minority of judges who represent a post-Zionist agenda are trying time and again to force their worldview upon us after it was rejected by a large majority of the public. The law was declared by its foes as “unconstitutional” while, as we know, Israel doesn’t even have a constitution.

The small group of attorneys who seek to run the State created a sort of virtual “constitution” from thin air, while aiming to disqualify – on the basis of vague rules that it changes in line with its needs – legislation passed in the Knesset via a proper procedure and as an expression of the sovereign’s desire. It is not the law that is flawed, but rather, the anti-democratic move undertaken by its objectors.

The attempt to prevent the affirmation of the Boycott Law yet again proved the need to facilitate genuine change in our legal establishment – a change that will bring the Jewish and Zionist character back into this system.

Likud Knesset Member Yariv Levin chairs the Knesset Committee


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Rennert - A NY Times bogus article of faith

Leo Rennert
American Thinker
12 July '11

http://www.americanthinker.com/blog/2011/07/a_ny_times_bogus_article_of_faith.html

In its July 12 edition, the New York Times runs a piece by Jerusalem correspondent Isabel Kershner about a new Israeli law that makes boycotts against Israel and West Bank settlements liable to financial penalties ("Israel Bans Boycotts Against the State" page A8).

Israel's Parliament, the Knesset, passed the legislation on a vote of 47 to 38 after lengthy and raucous debate. Another 35 legislators absented themselves when the roll was called, including Prime Minister Netanyahu and Defense Minister Ehud Barak. Proponents argued that Israel should not tolerate boycotts in the face of widespread campaigns to weaken the state. Opponents countered that the law threatens freedom of expression. And some lawmakers tried but failed to make it less sweeping.

My point in writing about this is not to line up categorically on either the ''pro'' or ''con'' side -- unlike Kershner, who tilts heavily "con," as one might expect. For what it's worth, from my readings of the legislation, I sense that it's overbroad in imposing penalties on both advocacy of boycotts as well as on actual engagement in boycotts, and it may well be struck down by Israel's Supreme Court.

If an individual, company or organization in Israel advocates a boycott of settlements, let the free market of ideas do its job. But when a publicly subsidized Tel Aviv theater company refuses to perform in Ariel or elsewhere in the West Bank, it should not be able to have its boycott and feed at the public trough at the same time. Ditto for any company that Israel permits to bid on a Palestinian Authority contract for construction in Palestinian areas of the West Bank on condition of formally pledging that it won't do any work for or in Jewish settlements.

That said, what actually brings me to my criticism of Kershner's piece is her gratuitous slaps against settlements -- slaps that the Times should confine to its editorial page and not allow to color news stories to conform to a reporter's ideological agenda.

Here's where Kershner grossly deviates from even-handed objective reporting. In her own words:

''Israel is facing increasing pressure over the West Bank settlements that Palestinians regard as part of the territory for a future state. Continued construction in the settlements has been a major impediment in attempts to resume stalled peace talks."

Three things need to be said about Kershner's exclusive focus on settlements as impediments to peace negotiations:

--Israel has been ready for months to resume peace negotiations immediately -- and without any pre-conditions. Kershner ignores this.

--History demonstrates that settlements do not constitute an obstacle to peace-making. There were Jewish settlements in the Sinai before Menachem Begin and Anwar Sadat engaged in peace making. Once Israel and Egypt concluded a peace agreement, Israel removed every settlement from Sinai. There were Jewish settlements in Gaza with some 8,000 Jewish settlers. Ariel Sharon, on a bad bet, removed every single one, hoping that getting rid of settlements would advance peace. The opposite, of course, happened. Kershner ignores all that.

--When Netanyahu did impose a 10-month construction freeze in West Bank settlements as an inducement to negotiations, Mahmoud Abbas still bided his time and didn't come to the negotiating table until the last hour. It is Abbas, with his insistence on getting unilateral Israeli concessions before talks even start, who has thwarted peace talks, fearing that compromises he would have to make in actual negotiations would brand him a traitor to Hamas and probably make him ineligible for life insurance. Again, Kershner ignores all this.

Bottom line: NY Times is still miles away from balanced journalism about the Israeli-Palestinian conflict.

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For Once, Israel’s Knesset Does Its Job

Evelyn Gordon
Contentions/Commentary
15 July '10

Israel’s Knesset took two important steps yesterday. First, a committee forwarded a bill to the plenum for final reading that, if passed, would for the first time subject territorial concessions to real ratification requirements. Second, the plenum gave preliminary approval to a bill that would, for the first time, impose sanctions on those who promote anti-Israel boycotts.

The boycott bill, which will now proceed to committee, would make Israelis who “instigate,” “encourage,” or “assist” boycotts against Israel or Israeli institutions subject to fines of up to NIS 30,000 even if no damage is proved, and more if damage is proved. Foreigners or foreign entities that do the same could be barred from the country and denied the right to use Israeli banks, land, or stocks. The bill would also allow boycott damages to be deducted from Israel’s remittances to the Palestinian Authority should the latter continue promoting anti-Israel boycotts.

The bill, co-sponsored by 27 MKs from seven parties, is modeled on America’s anti-boycott laws. Ironically, those laws were passed in the 1970s in response to the Arab boycott of Israel. But at that time, Israel saw no need to imitate them: what Israeli then would have promoted a boycott of his own country?

It is a sad comment that today such a law is necessary, as Israelis are at the forefront of the anti-Israel boycott movement. Nevertheless, it’s encouraging that mainstream Israel is finally fighting back: if enacted, boycott promoters would finally be forced to weigh the acclaim and lucrative awards their behavior wins from like-minded peers abroad against a real price.

(Read full post)

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