Israeli Prime minister Benjamin Netanyahu gestures during the swearing-in ceremony for the Israeli president of the Supreme Court, Esther Hayut on October 26, 2017. Photo: THOMAS COEX/AFP/Getty Images

The story behind Israel’s ‘boycott law’, and how two Kiwis got caught up in a much gnarlier fight

New Zealander Sam Bookman was working at the Supreme Court in Israel when the so-called ‘Boycott Law’ was being challenged. That law has now seen two NZ women targeted in the first ruling, over an open letter they wrote to Lorde last year. Here Bookman – no fan of the boycott movement – argues that the New Zealanders have become the latest pawns in a game for the Israeli right

Waking on Friday to the news that an Israeli Court had ordered two New Zealand women to pay over $15,000 to three would-be concertgoers, you’d be forgiven a feeling of utter confusion. How on earth could a court on the other side of the world impose such an outlandish penalty for simply writing a letter on this website? The question is all the more perplexing given Israel’s constant claim to be “the only democracy in the Middle East”. Surely a key tenet of a democracy is protection of political speech? How on earth did it come to this?

To complicate matters further, it seems strange that the order came from an Israeli judge. Israeli courts are widely respected. Despite being one of three countries (along with New Zealand) without a written constitution, Israeli courts as far back as 1953 found ways stop authoritarian governments from restricting free speech, even where it might harm the national interest. After the Israeli parliament enacted a fairly modest bill of rights in the 1990s, judges weaponized it into a powerful bulwark against government power. Courts have blocked rights abuses from torture to private prisons. It’s the kind of stuff that would make lefty Kiwi constitutional lawyers salivate with excitement.

In 2014 I went to Israel to see this miracle of justice firsthand. I brushed up on my Hebrew and was accepted to a role as a Judge’s Clerk to one of the judges of the Supreme Court of Israel. I was pretty excited: I was getting a chance to work for one of the most highly regarded and activist courts in the world. The Supreme Court is an incredible enterprising, dwarfing anything we have in New Zealand. Its 15 judges each retain a small army of clerks – both foreign and domestic – to meticulously craft every decision. And they hear hundreds of cases each year, many relating to issues that would rarely, if ever, reach our courts: military detention, religion and state, occupation of the West Bank. When one of the judges heard I was from New Zealand, he teased me about our own Supreme Court’s comparative puny caseload.

In the months I was there, our docket included a former prime minister’s appeal against a prison sentence for corruption and bribery, an application to strike down Israel’s harsh asylum-seeker detention policy, and a thorny intellectual property dispute. It was unlike any kind of work I’d done before.

Also on the docket that summer was a case challenging a 2011 law, the ominously titled “Law for Prevention of Damage to State of Israel through Boycott”, but known to all as the “Boycott Law”. It was a controversial piece of legislation. It allowed Israeli residents and businesses to sue anyone who had called for a boycott of “the State of Israel, one of its institutions, or an area under its control”. Other sections of the Act allowed the government to take administrative sanctions against NGOs, such as excluding them from public contracts and tax exemptions.

The law was challenged in court by a group of Israeli human rights organizations led by the veteran activist Uri Avnery. The law had serious consequences for these NGOs. Many of them had long called for a boycott of at least the illegal Israeli settlements which dot the West Bank, and which make lasting agreement between the Israelis and Palestinians an ever-distant prospect. The law would have exposed these small-budget NGOs to huge financial liability, stopping their advocacy efforts in their tracks. Which, of course, was exactly what the law was designed to do.

The year 2014 was a tough time for leftist Israeli NGOs. Not only were they being aggressively pursued by a hostile government, but they were facing violence on the street. It was also the summer of the Second Gaza War. Three Israeli teenagers had just been abducted and murdered in the West Bank. Indiscriminate Hamas rockets, although thankfully leading to relatively few casualties, were raining down on Israel. More than once I had to flee to the safety of my apartment’s central stairwell or to the basement of the Supreme Court building. Israelis were justifiably angry. But the outpouring of violence was extreme. A Palestinian teenager was burned to death in a Jerusalem forest. The night of the attack, I could hear the ominous chants of rightwing activists in the Jerusalem streets. And Israeli activists, Jewish and non-Jewish, were being actively targeted.

One night I attended a rally against Israel’s military operations in Gaza. It was held in Kikar HaBimah in Tel Aviv, the bastion of Israeli liberalism. Yet menacing and violent rightwing demonstrators were also out in force. The police were keeping the two sides apart, until a rocket alert siren sent them scurrying into bomb shelters. Without police protection, a violent mob targeted several of my friends. Some required medical treatment. In this context, the NGOs’ appeal against the Boycott Law meant so much more than just their financial liability: it offered official endorsement that their work deserved protection.

But the Boycott Law also had another, related, purpose which went further than Israelis campaigning specifically against West Bank settlements. Led by Palestinian civil society, and gaining traction across the world, was the Boycott, Divestment and Sanctions Movement – the “BDS” (also incongruously pronounced in thickly accented Hebrew as Bee-Dee-Ess). The movement calls for a boycott of “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”. The movement has left itself open to credible accusations that it tolerates outright anti-Semitism from some of its activists (for example, indiscriminately targeting kosher food, including products with no connection to Israel). And the movement is certainly open to criticism on both moral and utilitarian grounds. I, for one, am not a believer.

The crowd at a Lorde concert during the Melodrama tour at Sidney Myer Music Bowl in Melbourne. Photo: Sam Tabone/WireImage

But in 2014, BDS was frankly insignificant. Most of its calls to international artists had fallen on deaf ears. That summer alone, Tel Aviv rocked out to the Rolling Stones and Lady Gaga. Its impact on the Israeli economy was (and still is) negligible. Back in 2011, when the Boycott Law was passed, the Israeli Foreign Affairs Ministry believed it was a waste of time – BDS wasn’t an existential threat, and even if it was, the Boycott Law wouldn’t help.

But for the Israeli prime minister, Benjamin Netanyahu, there were other, real existential threats. In 2014 his government was under attack, mainly from the right. Religious and secular extremists were portraying him as a soft centrist. Ahead of 2015 elections, he was out to prove them wrong. BDS scaremongering was an easy way to do it. In his annual address to American supporters that year, he mentioned BDS no fewer than 22 times. “The fact that they’re going to fail doesn’t mean they shouldn’t be vigorously opposed … Those who wear the BDS label should be treated exactly as we treat any anti-Semite or bigot ”, he said, to thunderous applause. Moderate politicians and NGOs who defended the speech rights of BDS activists were also in the prime minister’s crosshairs: “Some of their gullible fellow travelers actually do believe that BDS advances peace.” Preparations were beginning for a law that would require all NGOs to publicly disclose their funding sources, just in case they could be smeared with the same brush.

BDS had become the bogeyman that gave Netanyahu the political capital to defend the Boycott Law. To add to the perfect storm, he had one more target: the Supreme Court itself. Its history of activism throughout the 1990s left it vulnerable to portrayal as a politically partisan, left-leaning institution. When I told many Israelis that I worked at the “Bagatz”, the popular nickname for the court, they would sneer or look at me with puzzlement. “Ata smolani?” (are you a leftist?) was the more polite response. “Bagatz mesaken Yehudi” – “the Court endangers the Jews” – was a bumper sticker which quickly became a parody of itself.

By 2014, the court was under serious attack. The government was making moves to wrest control over the judicial appointment process, and several bills had been introduced to curtail its power. These attacks were rarely spoken of at court when I was there – at least not to a lowly foreign Judge’s Clerk. But you didn’t need to look hard to find them. When the court struck down part of Israel’s draconian asylum-seeker law later that year, the attacks on the court reached a new level. It’s not hard to believe that the judges were influenced by the environment of the day.

The Supreme Court released its decision on the Boycott Law in 2015. If you’re a constitutional law nerd with plenty of time, you can read the decision translated into English here – all 245 pages of it. In a nine judge panel, five judges upheld the entire law except for one section which allowed people to sue even when they could not prove damages. Three other judges would have limited the effect of the law only to boycotts against the entire state of Israel, and not just its illegal settlements. Only one judge, the often-conservative Neal Hendel, would have struck down the boycott lawsuits in their entirety. “Lawsuits will become a means for political ‘goring’, with the courts serving as the horns … even where a suit has no real prospect of success”, he warned.

But even the majority decision – which relies heavily on evidence that the BDS was a serious threat to the state of Israel – put some limitations on the law. The victims must be “direct”; the person must “know” that their speech has a “reasonable possibility” of causing an actual boycott; the damage must be real. They also expressed doubt as to whether the law could ever be used to target critics overseas. Clearly these limits were not enough: once the court had opened the possibility for a lawsuit, they were blown out of the water. It seems fairly far-fetched to say that two teenage concertgoers, who lost the price of admission, are really “direct” victims of two women on the other side of the world. It’s very possible that if Justine Sachs and Nadia Abu-Shanab wanted to appeal, they would win. But why on earth would they want to do that?

It is bizarre that two kiwis have become the first successful application of a law that was designed to silence critics and satisfy the political needs of an increasingly authoritarian politician. So bizarre,  it seems, that the decision has attracted surprisingly little attention in Hebrew-language Israeli media. My right-leaning Israeli contacts on social media seem frankly embarrassed. Prominent Israel advocates are hardly celebrating the decision – many are growing tired of Sherut HaDin, the organization which brought the claim to court and is known for its showmanship and publicity-seeking.

And it’s almost as if Netanyahu has moved on to other measures. A day after the Jerusalem court ordered Sachs and Abu-Shanab to pay up, a different court applied a law preventing BDS supporters from entering Israel to turn away an American student at the border. Ironically enough, the student was coming to Israel to study at an Israeli university – hardly a boycott. And Netanyahu’s attacks on Israeli civil society have only grown stronger. Last year, the Israeli prime minister even defended Hungary’s anti-Semitic attacks on the Jewish civil society philanthropist, George Soros. Dark times indeed.

So how did we get here? In my view, Sachs and Abu-Shanab are the latest pawns in a game for the Israeli right to shore up its base and demolish opposition. Anyone in Israel defending Sachs and Abu-Shanab’s actions are opening themselves up to being labeled as traitors at best, and subject to serious financial consequences at worst. The question is, at what point will it backfire? The upshot of all this is a lot more publicity (and money) for Palestinian causes, and an Israeli government that is a laughing stock. Perhaps the best thing that Sachs and Abu-Shanab could do for the cause of Palestinian justice is keep their case on the front page as long as possible.

Sam Bookman is a New York-based former New Zealand human rights lawyer

Related:


The Spinoff is made possible by the generous support of the following organisations.
Please help us by supporting them.