Court had preciously frozen law that imposes sanctions on any individual or entity that calls for an economic boycott of Israel’s settlements in the West Bank or of Israel itself.
In one of its most important decisions of the era, the High Court of Justice on Wednesday upheld (9-0) two core parts of the Anti-Boycott law, struck one core part and narrowly (5-4) upheld lawsuits against boycotts of “1967 Israel.”
The core parts preserved included the power of the Finance Minister to impose fines and withhold funding from Israeli NGOs calling for boycotts of businesses in all or parts of Israel and the power to file lawsuits against those NGOs.
At the same time, the court struck down as unconstitutional a core part of the law which would have allowed punitive damages in such lawsuits.
Finally, on a 5-4 vote, the majority of justices said that the above lawsuits could go forward even if they were against groups which only called for boycotts of “1967 Israel” meaning of Israeli settlements in the West Bank, whereas the minority said that such boycotts should be protected free speech.
The minority explained that since there is a vibrant debate about whether Israelis should remain in the West Bank, that a boycott targeted only at that area and not at the rest of the country, was legitimate speech and not trying to undermine Israel’s existence.
A rare maximum nine justice panel of the High Court of Justice heard arguments on the controversial issue in February 2014 over the constitutionality of the Anti-Boycott Law, which it froze in December 2012.
The High Court hit both sides hard, with many justices, though ultimately a minority, appearing to press the state to accept that penalizing boycotts of “1967 Israel” violated free speech, while appearing to press the petitioners that penalizing boycotts of “1948 Israel” was valid.
In likely the decisive swing vote on the issue of boycotting the settlements, Supreme Court President Miriam Naor appeared to express some sympathy with there being a distinction, but ultimately said that with the massive delegitimization campaign facing the country that the Knesset was well within its authority to ignore that distinction in the law as many Israel-boycotters do.
Explaining the court’s rulings to uphold two of the law’s three main parts, Justice Hanan Melcer wrote that the Finance Minister should be able to take away tax breaks on the principle that the state need not feed those who try to undermine it.
Likewise, with the lawsuits, Melcer said that boycotting was not regular free speech, and was playing a level of political hardball that, if it caused damage to others who were specifically targeted, should expose those practicing it to retaliation and allow those harmed compensation.
Melcer clarified that those lawsuits which were allowed would have a very high standard of proof they needed to show in terms of showing direct causation between a specific boycott and their economic losses, and general proof or the mere announcement of a boycott would not suffice.
The High Court froze the law in December 2012 only days after a first hearing against it, but then gave numerous extensions to the sides for addressing the legal issues in dispute. It also broadened the panel to a maximum of nine justices presided over by Supreme Court President Asher D. Grunis.
The Anti-Boycott Law was passed in July 2011 and imposes sanctions on any individual or entity that calls for an economic boycott of Israel’s settlements in the West Bank or of Israel itself.
The law was passed after the decision of several prominent Israeli artists not to appear or perform in settlements in the West Bank in what they characterized as a protest “against the Occupation.”
The Anti-Boycott Law allows entities to win compensation in civil courts from individuals or organizations who have called for a boycott, with controversial provisions regarding the level of proof needed for actual damages.
The law also empowers the Minister of Finance to impose financial penalties, including the removal of tax exemptions, on NGOs that call for a boycott.
At the last hearing, the petitioners, including Gush Shalom, Adalah – the Legal Center for Arab Minority Rights in Israel, the Association for Civil Rights in Israel (ACRI), Uri Avineri and MK Ahmed Tibi (Ta’al) and many others, claimed that the law essentially does not require proving actual damages have occurred at all.
Gabi Lasky, one of petitioner Gush Shalom’s attorneys, had said that the law was “a classic example of the tyranny of the majority” imposing its will and that she hoped the court would declare “unambiguously that even a majority in the Knesset is obligated to preserve the principle of fairness” that underlies democracy.
Another defender of the law, besides the state’s lawyers, was Deputy Foreign Minister Ze’ev Elkin, who spoke in support of the law at a press conference following the hearing.
The law encountered legal difficulties from the start with Knesset Legal Advisor Eyal Yinon and Attorney-General Yehuda Weinstein each initially trying to convince its proponents to drop it, then trying to dilute it, almost refusing to defend it in court, and even then, admitting that its legality was borderline.
Fighting an uphill battle after the court previously seemed to preliminarily accept the claims of a range of left-wing NGOs that the law was unconstitutional, lawyers for the Knesset and the state added on to arguments from an earlier hearing of maintaining the law on the narrow grounds that it is premature to cancel a law which has not been used.
Arguing that time has proved the law’s proponents correct, the Knesset and the state painted a dramatic picture of a dark shadow of a wave of BDS attacks on the state as evidence that Israel is under fire and needs the Anti-Boycott Law and similar measures for self-defense.
The Knesset, the state and one right-wing NGO all argued that the law merely combated boycotts which, they said, are themselves inherently anti-free speech and not conducive to a robust and full public discourse of ideas.
But the justices hammered the state repeatedly to speak to whether it believed the law violated fundamental free speech rights, with the state relenting and admitted that it did after around 10 minutes of trying to evade the question.
At one point during the evasion, Deputy Supreme Court President engaged in a verbal bout with the state’s lawyer Yohi Gensin, saying, “can I finish my question?”
When Gensin said that she had “hinted” what the state’s answer was before – another justice burst in and said, “we don’t want hints – give us a yes or a no.”
Once many of the justices seemed to assume the invalidity of the law regarding “1967 Israel,” they zoned in on pressing the NGOs to defend their attack on the law penalizing boycotts of “1948 Israel,” claiming that otherwise the NGOs were treating free speech as an “absolute right” – a position they implied was indefensible.
At one point, new Justice Yitzhak Amit even noted that “some say that BDS is anti-Semitism.”
Adalah head Hassan Jabareen gave the most spirited attack, saying that Foreign Minister Avigdor Liberman’s transfer plan and waves of anti-Arab racism, including campaigns to keep Israeli-Arabs out of cities like Safed, meant that 1948 Israel was already part of the political debate as much as 1967 Israel.
He said that if foreign countries and groups in Israel wanted to boycott Liberman or others attacking Israeli-Arab’s status in 1948 Israel, they should be allowed to do so.
Jabareen also said that if the court distinguished between 1967 Israel and 1948 Israel boycotts it would itself improperly be weighing into political debates, and going beyond a court’s role by declaring which political ideas were acceptable and which were not.
Giving a more logic based argument, Dan Yakir of ACRI concisely said that the identity of the current State of Israel is inextricably linked with its occupation of areas won in 1967 to the extent that if boycotting “1967 Israel” is permitted, that should at least theoretically permit a full boycott as well.
A separate area of interest to some of the justices, including Grunis, was whether there was a basis to distinguish between an individual’s right to boycott the settlements or the state, but a no right or a more limited right for group boycotts.
Both sides compared the situation to legal frameworks in other countries, with each side claiming the upper-hand based on which countries it focused on and the interpretation of other countries’ case law.
Following the hearing, NGO Monitor release a statement saying, “BDS is a form of political warfare against the State of Israel based on the exploitation of human rights and humanitarian principles.”
However, NGO Monitor is not pro-the law, instead having the nuanced position that, “Instead of seeking legislation, NGO Monitor emphasizes the need for full enforcement of the 2011 NGO funding transparency law.”
It continued, “While these measures will not bring an immediate end to BDS and political warfare, they constitute the essential first steps towards combating this form of political warfare.”