Court Orders Israel to Reconsider Entry Ban of First BDS Deportee

Judge rules that anti-BDS legislation couldn't be applied retroactively to bar an activist from visiting Israel and that the reasoning provided to Dr. Isabel Phiri at that time was without foundation

Dr. Isabel Phiri at a conference in Schotland in 2016.
Albin Hillert/WCC

A Jerusalem administrative appeals court on Wednesday invalidated a decision by the state to bar entry into the country by Dr. Isabel Phiri, the deputy secretary general of the World Council of Churches. 

The Strategic Affairs Ministry and Interior Ministry said Dr. Phiri was the first person denied entry into the country for supporting the boycott, divestment and sanctions movement.

It his ruling, custody court judge Marat Dorfman ruled that the anti-BDS legislation could not be applied retroactively to bar a BDS activist from visiting Israel and that the reasoning provided to her at that time, involving concern over "illegal immigration," was without foundation.

Phiri was barred entry to Israel in December of 2016, but the change in the law, permitting BDS activists to be barred under some circumstances, took effect the following year. The official explanation provided to Phiri at the time was that she was not being allowed into the country due to "illegal immigration considerations."

The attempt to apply the change in the law retroactively was first reported by Haaretz.

In his ruling on Wednesday, Dorfman gave the Interior Ministry 60 days to issue a new decision and required that Phiri's lawyers also be provided the main outlines of the Foreign Ministry's professional opinion on her case. Dorfman also awarded the World Council of Churches 3,000 shekels ($820) in legal expenses.

Phiri, a theologian from Malawi who as deputy secretary general of the World Council of Churches, which represents about 350 church denominations around the world, is based in Geneva, arrived in Israel in December 2016 to participate in the Ecumenical Accompaniment Program in Palestine and Israel, which the World Council supports.

The program brings members to churches to Israel who are interested in learning about the Israeli-Palestinian conflict and to volunteer in the territories. The program's website states that its goals include collecting testimony about life under occupation.

Phiri arrived in Israel with four colleagues who were allowed to entry the country. Phiri, however, was questioned, first by officials from the Shin Bet security service, who decided there were no security grounds for preventing her from entering the country. She was then referred for further questioning by the Interior Ministry's Population and Immigration Authority.

Following consultations between the Strategic Affairs Ministry, which is involved in countering the BDS movement, and the Interior Ministry, Strategic Affairs Minister Gilad Erdan and Interior Minister Arye Dery ordered that Phiri be denied entry into Israel due to her purported support for BDS, the boycott, divestment and sanctions movement against Israel.

The ministers issued a press release in which they said Phiri's case was "actually the first time the State of Israel was clearly refusing entry to a tourist following activity against Israel and promoting economic, cultural and academic boycotts against it."

But the border control officer's decision that was provided to Phiri said she was being denied entry due to "illegal immigration considerations."

In his ruling, the administrative court appeals court judge stated that the decision to bar Phiri from the country in December 2016 came before the law was amended (in March of the following year) to allow BDS activists to be denied entry under certain conditions. The change in the law could not be enforced retroactively, Judge Dorfman ruled.

For its part, however, the state countered that in practice even before the amendment of the law took effect, the state conducted "a pilot program in which we examined about ten cases involving the entry of figures involved in delegitimization and the promotion of boycotts, through which the entry of two activists, including [Phiri] was barred." The aim of the pilot in part was testing the use of Strategic Affairs Ministry databases to check the background of those at the country's borders including Ben-Gurion International Airport.

Judge Dorfman ruled, however, that in light of the fact that Phiri was given official notice that she was being barred over "illegal immigration" concerns, that had to be considered the explanation that should be considered on appeal.

Reacting to Judge Dorfman's decision on Wednesday, Michael Sfard, one of Phiri's lawyers, told Haaretz: "The handing by the interior and strategic affairs ministries of Isabel Phiri's case was marked all along the way by negligence and foolishness. They prevented the entry of a senior official of a church organization that represents more than half a billion believers based on an inquiry full of errors and inaccuracies and reliance on questionable sources. They gave her a mistaken reason for excluding her and made arguments in court that essentially [involved] silencing legitimate political criticism. The appeals court has given the authorities a golden opportunity to correct their mistakes."

The Foreign Ministry's analysis

Documents submitted by the state in Phiri's case show that some of the accusations against the World Council of Churches didn't relate to support for the boycott, disinvestment and sanctions movement against Israel but rather criticism of Israel's policies in the territories and its support for the "Palestinian narrative." In addition, it now appears, the Israeli Foreign Ministry had its own reservations about the case.

The Foreign Ministry issued a professional opinion that it submitted to the Strategic Affairs Ministry on the church council's Ecumenical Accompaniment Program in Palestine and Israel. The professional opinion, which provided the basis for the position that Phiri should not be allowed into the country, included arguments related to program participants' activities in the territories. It was noted, for example, that they were present in locations where there was friction "and documented the security forces' 'violations' there."

"The biased documentation creates imaginary images of Jews in general and soldiers and settlers in particular, who show cruelty to Palestinians and abuse them in all kinds of ways," the Foreign Ministry document stated, adding: "After they return to their countries, many activists devote their time to giving lectures and writing articles against Israel while expressing support for promoting boycotts against it. These activities contribute to the creation of the State of Israel's negative image in the view of the international community."

"The program's activists' reports present a false picture of reality while ignoring Israel's work in improving the wellbeing of the Palestinian population," the Foreign Ministry said. The program's participants "have generally refrained from condemning the Palestinians' terrorist activity against Israeli citizens, but on the other hand emphasize the acts of residents [of Jewish settlements] towards the Palestinian population as violent attacks."

As an example of distortions of reality, the Foreign Ministry said program participants released pictures showing them accompanying Palestinian school children, purportedly to prevent them from being harmed by Israeli soldiers or settlers, and pictures of soldiers and settlers pointing weapons at Palestinians.

Reacting to Wednesday's appeal, Rev. Olav Fiske Tveit, a Norwegian who is the secretary general of the World Council of Churches, told Haaretz that his organization does not support a general boycott or sanctions against Israel. There are 350 church denominations that are members of the council, he added, and they set policy for their own churches independently. He rejected the state's contention that Phiri supports the anti-Israel boycott.

Phiri herself had told Haaretz after her denial of entry into the country that she was never asked by Israeli authorities about boycott activities or her position on the boycott, and she said she was surprised to read that her exclusion was related to BDS.

A spokesman for Strategic Affairs Minister Erdan said at the time, however, that a comprehensive examination by the ministry had revealed that over the years the World Council of Churches had expressed support for the anti-Israeli boycott in articles that it published and through "extremist statements of its activists."