A “killing the messenger law” against BDS
Stefano Nanni - 28/02/2014
Rarely the BDS (Boycott, Divestment and Sanctions) had all the attention it is receiving in Israel in recent weeks. Online, in early evening shows on TV, or in newspapers’ headlines: most of Israeli media outlets are filled with interviews with economists, business leaders and opinion makers. And the main question that is addressed to them is: How can we defend Israel against the boycott?
The government and institutions, for their part, certainly are not watching. While appeared two other important obvious signs of the growing of BDS - the largest Danish bank 's decision to include in their “blacklist” the Israeli counterpart, the Bank Hapolaim, and the exclusion of two Israeli companies from a Norwegian pension fund - prime Minister Binyamin Netanyahu convened an extraordinary Council of Ministers to discuss strategies to counter the boycott.
The objective is to strengthen and improve the so-called hasbara war, or a war to fight against BDS with a series of initiatives aimed at the promotion of Israel in the world launched by the Foreign Ministry about a year ago. Other than stressing that, in the words of Netanyahu, "the founders of the BDS are nothing more than 'classic anti -Semites' who want the end of the Jewish state", one of the proposals which came out of the meeting is to try to expand Israel’s business and commercial horizons in order to reduce dependence on the EU market. And it came out not as a coincidence that on February 12th Tel Aviv has received the status of observer within the Pacific Alliance in Latin America in the General Assembly of the United Nations.
However it is not only economic institutions that are active to find solutions against the BDS.
Last week, the Ministry for Strategic Affairs has called on the government an investment of 100 million shekels to create a special unit that brings together not only academics, but also military and secret service agents to work exclusively on the boycott.
As for the internal legislation, the government had already adopted a tool anti - BDS. Three years ago the Knessett approved a law whose name by which it has been renamed would suffice to perceive its contents: the Anti- Boycott Law. Actually in this law there is nothing for granted, because beyond the title the text is quite inaccurate. The problem, however , is not just about the clarity or less of the contents, but its legitimacy. As soon as it was approved many Israeli organizations in defense of human rights have been criticizing the government because, in their view, only "the idea of punishing those who promote the boycott violates the basic principle of freedom of expression". Submitted immediately after the entry into force of the act, the petition was discussed Sunday 16th in front of the Supreme Court in a public hearing. For the next months a final judgment is expected.
To explore the problems around this law, I contacted the professor of constitutional and international law at the University of Tel Aviv, Aeyal Gross, also a member of the board of ACRI ( Association for Civil Rights in Israel), one of the petitioners against the law.
What is the "Anti- Boycott Law"?
It is hard to say exactly. The text of the law is somewhat vague. However, what is very clear is that this law creates the possibility to sue anyone who supports the boycott of Israel, which is defined as "any act intended to avoid any direct economic, cultural or academic relation with another person only because the latter has ties with Israel, one of its institutions or an area under its control so as to create economic, cultural or academic damage". During the hearing in the Supreme Court particular attention was given to the expression "an area under its control", because obviously refers to the Occupied Territories, and thus makes the issue even more problematic because, as has been already argued, the constitutionality could be set aside only for a part of the law.
Another aspect is the imprecise definition of "act", because it can be any public intentional appeal of boycott against the State of Israel, and it is automatically considered a tort involving compensation. It is also important to stress that , according to the law, there is no need to prove actual damage, but the intentionality alone is sufficient.
How the law has been applied so far?
There has been no case of damages claimed or a dispute, until now, under the terms of the law. But this does not mean that there have been no effects. One can say that there is a chilling effect, because since the entry into force of the law those organizations that used to publish lists of the products of the colonies , even without calling for a boycott, they stopped doing it because they felt compelled, for fear of infringing the law. This can be considered a real indirect consequence. On the other hand, if someone today would demand compensation by appealing to the law I’m fairly certain that the court will respond that you have to wait for the verdict of the Supreme Court on its constitutionality .
About the lack of specificity of the text of the law, it seems that it is also applicable against Israeli citizens living abroad ...
In theory yes, but I think that in practice it applies only at the domestic level. However, this remains an important question because there is no reference to Israeli citizens who live outside of Israel. But because of the haziness of the law there may be different types of interpretation ...
How do you think the government will try to support the validity of the law before the Court ? In 2011 , when it was passed in Parliament , the Knesset 's legal adviser said it would be very difficult to defend it...
We’ll have to wait and read the government's position, considering also that the legal adviser has changed. But I can imagine that the arguments that will be taken forward will focus on the fact that there are now many more "threats" from the boycott compared to three years ago when the law was justified in this way. It is no coincidence that his original name was the "Law for Prevention of Damage to the State through the Boycott ".
Insisting, however, that today, especially at this time, there are more actions related to the BDS movement does not change the nature of this draconian law.
In a recent article for the Israeli newspaper Haaretz you say that in the debate on the Anti- Boycott Law, there is much more at stake...
This law violates the right to express one’s own opinion, no matter how hard it may be critical. But the boycott is a form of political protest that in a democratic state is absolutely legitimate. With this tool the government wants to punish those who speak out and make them transgressors of the law. And we do not have to forget that initially the intention was to make put the law in the field of criminal law, not civil... Boycott calls may annoy people, but protecting freedom of expression is particularly necessary when that expression is liable to antagonize and be unpopular.
According to her there is a common thread between this and other laws, such as the so-called Nakba Law or the Anti- Defamation of the Army Law?
Certainly. In Israel there are a number of measures, which I call "killing the messenger laws" (laws that affect the messenger, i.e), the have one thing in common: they do not deal with the substance, the content of a question, but simply criminalize those who want to protest and speak against a particular argument. There are so many other laws in addition to the one against Boycott or those you mentioned. In 2011 the peak was with the formation of a special parliamentary committee of inquiry about human rights organizations in order to limit the phenomenon of " de-legitimization " of the IDF (Israeli Defence Forces , ed.).
All this is part of a series of attempts to silence criticism and protests , since these are interpreted as part of a continuous victimization at the expense of Israel. We are therefore faced with a much broader process that has to do with an "old" question: Israel can really be considered a democracy?