The ruling of Israel’s top court last week upholding the country’s so-called anti-boycott law has touched off a fresh debate about the nature of Israel’s democracy, with some saying it ends freedom of speech and others saying it affirms the destructive nature of the BDS (Boycott, Divestment and Sanctions) movement.
In the ruling, Israel’s High Court of Justice upheld the constitutionality of the 2011 law that permits the finance minister to fine or remove tax breaks from any organization that participates in a boycott of Israel proper and its territories. The decision was lauded by NGO (non-governmental organization) Monitor as an “important milestone in the response to political warfare.”
Its founder, Gerald Steinberg, said its importance is the “recognition that the BDS movement needs to be taken seriously, that it is a form of warfare and discrimination, and that there are costs” to such activity.
“It makes fighting BDS a legitimate issue and no longer a far right issue,” he added.
But an official of the New Israel Fund, an American nonprofit that describes itself as advancing equality, human rights and democracy in Israel, said it believes Israel’s High Court of Justice “got it wrong” and that attempts will be made to convince the court to soon revisit the issue.
“To exclude calls for a boycott from the category of free speech is incorrect,” said Rabbi David Rosenn, NIF’s executive vice president. “There is not a separate category for speech that is political. The most important speech is political, and people should have the ability to express their opinions without fear of government sanctions.”
He said NIF is “on record as opposing the global BDS movement and thinks it is a bad strategy to support calls for BDS. But even though we disagree with this view, we still say people ought to be able to express it in a free society.”
He stressed that NIF has never provided support for BDS activities, and in the last four or five years has refused to fund groups that support BDS in any manner — even if that support was peripheral to their mission and done with funds from other sources.
The anti-boycott law is just one of several laws or bills that some argue impact the soul of the country. In 2011, Rabbi Eric Yoffie, then the leader of the Reform movement in the United States, was quoted as saying that “the anti-democratic laws that have passed, or that are expected to pass, in the Knesset are not bad only for Israel — these laws could have a catastrophic impact on relations between Israel and the Jews of the diaspora — especially American Jews. Commitment to shared moral values and to democracy is what binds Jews to Israel.”
He was referring to one bill that would have put a cap on the amount of money Israeli NGOs could receive from overseas, and another that would have required all organizations not funded by the Israeli government to pay a 45 percent tax on all donations from foreign states. And another would establish a Basic Law in which Israel would be defined as an inherently Jewish state that has “a democratic regime,” in which Arabic would be a language with “special standing” instead of one of two official languages of the state.
The Association for Civil Rights in Israel has warned of “intensifying infringements on democratic freedoms in Israel” coming from both the Knesset and the cabinet.
“As a result,” it said, “the basic principles of the Israeli democratic system are being undermined.”
Steinberg of NGO Monitor, who is also a professor of political science at Bar-Ilan University, pointed out, however, the Israeli High Court “has a reputation as being a judicial body, not a political body.” And he said its decision last week “was nuanced, carefully weighed and given in great detail.”
For instance, he noted that there were different parts to the High Court’s decision and that the nine-member court ruled differently on each — suggesting that they “carefully weighed the evidence.”
In last week’s decision, the court voted 9-0 to preserve the heart of the law that authorized the finance minister to impose fines or withhold state funding from Israeli NGOs that call for boycotts of businesses in all or parts of Israel; by an 8-1 vote, the court upheld the ability to file suits against those NGOs that call for a boycott; by a 9-0 vote it struck down as unconstitutional a provision of the law that permitted punitive damages against those calling for a boycott, and by a 5-4 vote it said the anti-boycott law applied to both Israel proper and the Israeli territories.
Nitsana Darshan-Leitner, an Israeli attorney known for her legal activism and as founder of the Shurat HaDin Israeli Law Center, said she believes the court in effect gutted the law by declaring as unconstitutional the section that permitted punitive damages. As a result, a business seeking to sue an individual or group boycotting its establishment must now prove it sustained monetary damage directly as a result of that boycott. And damages would be limited to the amount of damage proven.
“The law was intended to deter people from calling for a boycott against Israel by imposing civil penalties on them without having the need to prove that any damages occurred,” she said. “Now that the court deleted that part, it is almost impossible for someone to prove damages as a result of a call for a boycott.”
However, she added that should the Knesset put a limit on the punitive damages that could be collected, she believes it would pass constitutional muster.
Daniel Sokatch, CEO of NIF, said nevertheless that the court did uphold the constitutionality of the law itself.
“What kind of statement was the court making?” he said. “If it was only symbolic, it was a hell of a symbolic statement to make … The court has restricted freedom of expression when no lives are in danger. The court is saying that Israelis do not have the right to freedom of expression when they disagree with popular opinion.”
But Professor Barak Medina, a professor of human rights at the Hebrew University of Jerusalem, said that by removing the punitive damages provision of the law the court was upholding the right to freedom of expression. He, too, said it would be “quite complicated” to prove that a call for a boycott caused provable damages. And he noted that the law permits only civil — not criminal — liability.
“The concern is that prohibiting this kind of speech curtails public discourse in Israel — and there is concern,” Medina observed. “But I am not calling it the end of democracy or an end to freedom of speech — it is just not favorable for democracy. … The real concern is the chilling effect of this [decision].”
Uri Avnery, founder of the Gush Shalom peace movement in Israel and one of the named petitioners in the appeal, said he sees the decision more starkly.
In an email, he told The Jewish Week that the decision is part of the “slow — but gathering in speed — destruction of Israeli democracy.”
Rabbi Rosenn said that despite the court ruling, the NIF does not believe the issue is dead.
“We understand the court ruled and upheld it as the law of the land, but citizens have a right to criticize,” he said. “Our groups are not saying the court should be scaled back or reigned in. We think the court is an essential institution for Israeli democracy. However, courts sometimes change their minds and overrule themselves. We hope and expect that in the fullness of time, the Israeli legal system will realize that this was an ill-considered restriction on and suppression of free expression and will overturn the ruling.”
Sokatch said he is also disturbed that the court found no difference “between criticizing the settlements and Israel proper.” That ruling, he argued, “hands a huge victory to the global BDS movement, which sees no difference between Tel Aviv and Ariel [in the West Bank]. First the prime minister said there would be no two-state solution on my watch, and now the High Court says it sees no difference between Tel Aviv and Ariel. But most of us believe there is a tremendous difference.”
On the other hand, the Zionist Organization of America issued a statement “strongly praising” the court decision and saying it properly refused “to exempt from Israel’s anti-boycott law those boycotts that ‘only’ target Jews and Israelis in Judea and Samaria [West Bank]. The high court properly recognized that these so-called ‘targeted’ boycotts in fact delegitimize and damage all of Israel.”