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WorldVoices: Israel's Boycott Bill in the Balance

[Editor’s Note: WorldVoices—a recurring feature of the WorldPolicy blog—links to opinion and analysis of current events from English-language news sources around the globe.]

By Cameron S. Parsons

A nine vote margin was all it took for the Israeli Parliament to unleash the perfect public opinion storm. More than a week after the Knesset vote, which saw the passage of the contentious "Anti-Boycott Law," fierce debates about the law's constitutionality continue to rage, and Israeli society remains sharply divided.

The bill, sponsored by Ze'ev Elkin, a Member of Parliament representing Prime Minister Benjamin Netanyahu's conservative Likud Party, makes it possible for citizens to seek punitive damages from those publicly advocating a boycott against the state of Israel, and outlaws the Israeli government from contracting with companies and nonprofits that threaten such an action.  

Civil rights advocates around the globe were quick to condemn the bill as an assault on democracy and freedom of speech. The Knesset's own legal advisor, Eyal Yinon, has said the bill stands on the "verge of illegality and perhaps beyond," and that it would be difficult for him to defend in Israel's High Courts. But Elkin has staunchly defended his draft, arguing that the Anti-Boycott Bill was not intended to silence citizens of Israel, but rather to help protect the state against "the travesty" of boycott movements and other delegitimizing forces.

As the following commentaries show, the court of public opinion has yet to order a final verdict on the law. Judging by initial responses, however, it may just be that the only "delegitimizing force" the citizens of Israel need protection from is this piece of legislation itself.
 

The editorial board of the Israeli daily Haaretz has been vociferous in its condemnation of the bill, proclaiming that the "boycott law subverts Israeli democracy":

This contemptible law blatantly violates Israel's Basic Laws. It is couched in vague language: It defines "a boycott of the State of Israel" very broadly, while the definition of causing a boycott is fluid. Under the law, it would suffice for a call to boycott Israel to have "a reasonable possibility" of leading to an actual boycott for the lawbreaker (under the Torts Ordinance, New Version ) to be defined as having committed a civil offense. The lawbreaker would then be deprived of significant economic benefits and would also have to pay high compensation to those purportedly harmed by the boycott.

This vagueness is intentional, designed to conceal the goal of spreading a wide protective net over the settlements, whose products, activities and in fact very existence—which is controversial to begin with—are the main reason for the boycott initiatives, both domestic and foreign. The legislators are thereby trying to silence one of the most legitimate forms of democratic protest, and to restrict the freedom of expression and association of those who oppose the occupation and the settlers' violence and want to protest against the government's flawed order of priorities.

The law's sponsors are also creating a mendacious equivalence between the State of Israel and Israeli society as a whole, on one hand, and the settlements on the other. They are thereby granting the settlers sweeping legitimization.

This is a politically opportunistic and anti-democratic act, the latest in a series of outrageously discriminatory and exclusionary laws enacted over the past year, and it accelerates the process of transforming Israel's legal code into a disturbingly dictatorial document. It casts the threatening shadow of criminal offense over every boycott, petition or even newspaper op-ed. Very soon, all political debate will be silenced.

Knesset members who vote for this law must understand that they are supporting the gagging of protest as part of an ongoing effort to liquidate democracy. Such moves may be painted as protecting Israel, but in reality, they exacerbate its international isolation.

However, as Northwestern University Law Professor Eugene Kontorovich proclaims in this Jerusalem Post Op-Ed, protests against the bill may be unwarranted: 

These criticisms are wrong as a matter of principle. More insidiously, they hold Israel to a standard never applied to other nations, and criticize 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. Among liberal Western democracies, how that balance is struck varies significantly, depending on legal traditions and circumstances….

Most European nations—and Israel—have numerous laws criminalizing speech that would not conceivably pass muster under the First Amendment. This does not mean these countries deny freedom of speech; merely that there are competing ideas.

But even the U.S. 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….

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.

Writing for Al Jazeera English, author Neve Gordon reflects on the likely lifespan of the bill in light of the fierce debate, and asks readers to question what the bill truly represents as a strain within Israeli society:

Given [Knesset legal advisor] Eyal Yinon's statement, and the fact that Israeli rights organizations have already filed a petition to the High Court arguing that the bill is anti- democratic, there is a good chance that the Boycott Bill's life will be extremely short.
 
And yet this law should still be considered as a turning point. Not because of what the bill does, but because of what it represents.
 
After hours of debate in the Israeli Knesset, the choice was clear. On one side was Israel's settlement project and rights-abusive policies, and on the other side was freedom of speech, a basic pillar of democracy. The fact that the majority of Israel's legislators decided to support the bill plainly demonstrates that they are willing to demolish Israeli democracy for the sake of holding onto the West Bank and East Jerusalem.
 
The onslaught on democracy has been incremental. The Boycott Bill was merely a defining moment, preceded by the Nakba and Acceptance Committee laws, and will likely be followed by the passing of a slate of laws aimed at destroying Israeli human rights organisations. These laws will be voted upon in the coming months, and, given the composition of the Israeli Knesset, it is extremely likely that all of them will pass.
 
Israeli legislators realize, though, that in order to quash all internal resistance, the destruction of the rights groups will not be enough. Their ultimate target is the High Court of Justice, the only institution that still has the power and authority to defend democratic practices.
 
Their strategy, it appears, is to wait until the Court annuls the new laws and then to use the public's dismay with the Court's decisions to limit the Court's authority through legislation, thus making it impossible for judges to cancel unconstitutional laws. Once the High Court's authority is severely hamstringed, the road will be paved for right-wing Knesset members to do as they wish. The process leading to the demise of Israeli democracy may be slow, but the direction in which the country is going is perfectly clear.

Some of the sharpest criticism has come from the world of independent bloggers. Reporting for the +972blog, social rights activist Roi Maor writes:

This law is outrageous and wrong on so many levels; it is hard to know where to start. It punishes people for expressing an opinion, just because this opinion upsets the majority. It makes it difficult to pursue a peaceful and non-violent method of resisting the occupation. It is discriminatory in a lop-sided manner, hindering opposition to the evils of the occupation, while having nothing to say about racist boycotts of Arab workers, businesses and tenants. It aims to protect Israel and its control of the Palestinian territories from outside pressure, but surely it will only serve to highlight the country’s increasing penchant for oppression and discrimination.

The anti-boycott law’s effect is pernicious enough, but when you look at the situation it reflects, the picture becomes even grimmer. It represents a response to the growing BDS [Boycott, Divestment and Sanctions] movement, but it clearly reinforces its major article of faith: that the strongest forces inside Israeli society are pushing in a dark direction, and any improvement for the Palestinians must rely on foreign intervention.

The counter-productive nature of this measure demonstrates that it is far from an ordinary act of repression. Instead, it exposes an Israeli polity that is incapable of engaging in debates, and responds to criticism with panicked attempts to silence it. It is more fearful of non-violent speech, for which it has no answer, than of violence, which it can quell with overwhelming force. In this sense, the anti-boycott law is almost a perfect encapsulation of Israel’s current predicament. And it is not a good omen.

Nissim Dahan, writing for the blog mideastyouth.com, questions the efficacy of the bill, and wonders whether it does not purposefully distract from the larger goal of establishing a lasting peace with Palestinian:

The Boycott Law will not work. On the contrary, when people who believe strongly in a cause are told “no,” they become even more emboldened to do exactly the opposite. Numerous examples come to mind. The Viet Nam War, for example, was opposed by millions of Americans, some of whom took to the streets, burned their draft cards in the face of criminal prosecutions, and brought the government to its knees in a bid to end the war. The Arab Spring, although the final results are still in play, is a recent example of people taking to the streets and declaring a resounding “yes” to freedom, while assuming incalculable personal risks themselves. Simply put, it is almost impossible, over the long term, to legislate successfully against the idealistic fervor of those who are deeply committed. It doesn’t work, and may actually embolden those who have been sitting quietly on the sidelines.

….It diverts attention from what really needs to be done to restore Israel’s image in the world. Our goal, as Israelis, should be to consummate a peace deal with the Palestinians, and to bring an end to the occupation, as soon as peace is possible. In the meantime, to facilitate and expedite the peace process, we should be doing things which point to the possibility of peace, such as spearheading an effort to revitalize the Middle East economically with good paying jobs, to put new models in place, and to promote the emergence of personal freedoms throughout the region. The Boycott Law is a short-sighted diversion, an ideological poke in the eye, which diverts attention from constructive action that could be taken, even at this time, to end the diplomatic paralysis, to build neutral pathways to peace, and to move forward on a Vision of Hope for the region, a vision of Peace, Prosperity and Freedom.

World Policy Journal invites you to share your thoughts! Join the debate using our comments section below!

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Cameron S. Parsons is an Editorial Assistant at World Policy Journal

[Photo courtesy of the Knesset]

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