The Supreme Court’s ruling to cancel the residency and work visa of a Human Rights Watch director is another step toward legalizing the occupation and silencing its legitimate opponents. Effectively, what the justices said on Tuesday was that it’s permissible to protest a small, localized injustice, but the state is entitled to silence anyone who protests a large, sweeping injustice.
The Knesset defined illegal boycott activity as calling for “deliberately refraining from economic, cultural or academic ties with a person or any other body solely because of his association with Israel, one of its institutions or an area under its control, and which causes it economic, cultural or academic damage.” But the court has ruled in the past that despite this law, it’s permissible to call for boycotts in specific cases of injustice – for instance, a Jewish-owned company that discriminates, or that was built on Palestinian land.
Omar Shakir, HRW’s Israel and Palestine representative, also called for boycotting a specific injustice – Israel’s control over the West Bank and its illegal actions there. This is a protest over a big, broad issue, but like Shakir, many international law experts believe this is an injustice in its own right.
There’s no reason to make a distinction between someone who opposes the dispossession of a single Palestinian and someone who opposes the systematic dispossession of many Palestinians. In fact, the latter seems like a stronger basis for advocating a boycott. But according to the court, it’s the latter that violates the boycott law and justifies deporting a foreign national.
This decision is an example of the slippery slope Israel is on because of its control over the West Bank. It’s also an example of the fact that the court doesn’t always do its job – which is to serve as an obstacle to further slippage.
The original sin lies at the legislature’s door, since it passed the law banning calls to boycott areas under Israel’s control – as if Israel and the West Bank were the same thing.
But the majority of justices on the panel that discussed the law’s constitutional nature didn’t agree with proposals to draw a distinction between the state and areas under its control. They upheld the law in principle, even though it infringes on the freedom of expression of Israelis who oppose this control and the state’s conduct in the West Bank.
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The law thereby extended the principle that a democracy can defend itself beyond Israel and into the territories. The court didn’t address the fact that the West Bank’s Palestinian population has no civil and political rights and no control, or even influence, over its fate.
Given this, what tactics can be employed by people who oppose Israel’s actions in the territories? Is it acceptable, against this background, to deprive them of the ability to advocate boycotts due to Israel’s hold on the territories?
The latest ruling underscores this distinction, since Shakir called for boycotting what is happening in the occupied territories (including East Jerusalem), not in Israel within the Green Line. His call for FIFA to withdraw its sponsorship of Israeli soccer games related only to teams from the settlements. His call for commercial boycotts also focused on companies in the West Bank.
The justices had no qualms about relying on Likud MK David Amsalem’s statement during a Knesset debate that he sees no difference between products of Israel and products of the territories, since it’s “all Israel.” They quoted it without any reservations, even though legally speaking, it’s wrong.
Moreover, in its description of the facts, the court itself similarly failed to distinguish between soccer in Israel and soccer in the territories.
The court also didn’t respect the language of the law, which forbids advocating boycotts only when the sole motivation for doing so is a connection to Israel or territory under its control. Based on this, a more complex motive – objecting to Israel’s behavior in the territories – wouldn’t fall within the prohibition.
In addition, the court said nothing about the damage the law does to freedom of political expression – the most protected form of expression – and the consequent need to interpret it in a way that would reduce this damage as much as possible. Nor did it give any weight to the motive of protecting human rights and the principles of international law.
The justices cast aspersions on human rights activists, deeming their rhetoric about rights a form of camouflage. For the court, a sweeping denial of the legitimacy of Jewish settlements in the West Bank can’t possibly reflect a genuine concern for human rights and the principles of international law. But it’s not clear why.
Isn’t this in itself a political stance in a thin, transparent disguise of legal analysis? How is it possible for a legitimate position to be grounds for prohibitions and sanctions?
According to the ruling, Shakir’s behavior lays in the gray area. But the court didn’t grant decisive weight to the considerations mentioned above, the Foreign Ministry’s opposition to his deportation or the damage this would do to Israel’s image overseas, about which former Foreign Ministry officials testified in court and which even the Strategic Affairs Ministry admitted.
The ruling makes no mention of international law, which forbids an occupying country to settle its citizens in occupied territory. The court treated the legitimacy of the state’s actions in the territories as self-evident and uncritically defended it against a form of opposition to them. Is this judicial conduct appropriate to a democracy?
The court stressed that its decision applied only to Shakir and not to the organization he represents, so HRW can send someone else. But despite the court’s efforts, this distinction seems artificial, reflecting “bravery against the weak.” Its “generosity” ignores the fact that the state has thereby gained the power to influence who represents international organizations in Israel, a power that severely undermines those organizations’ autonomy.
The justices reassured us that the petition against the constitutional nature of the law governing deportations is still pending. But they provided no convincing explanation for their failure to discuss that issue in the context of the specific case brought before it.
Thus petitioners seem to have no recourse. When a legal arrangement is challenged in court without regard to any specific case, the court rules that it must wait for such a case to materialize. But when a specific case that clearly raises the question of constitutionality is brought before the court, it refrains from addressing this question.
As the number of cases in which the court's uncritical loyally serves the occupation mounts, the shadow over judicial supervision of Israel’s conduct in the territories lengthens. Fans of the occupation are applauding. But human rights advocates in Israel and abroad – the very people who are defending the court against attempts to undermine it – are clenching their fists in despair.