The Boycott Law 2.0

The provision being pushed by the coalition isn’t intended for the battle against BDS, but for the battle against Israeli citizens who oppose the occupation

Likud lawmaker Yoav Kish, May 31, 2018
Olivier Fitoussi

The Knesset Constitution, Law and Justice Committee voted on Wednesday to forward a proposed amendment to the 2011 Boycott Law for its first of three parliamentary votes. The essence of the amendment is simple: It would reenact, almost word for word, a provision that was unanimously ruled unconstitutional by nine justices of the High Court of Justice. The provision that was overturned allowed lawsuits against anyone who “calls for a boycott of the State of Israel” without requiring plaintiffs to prove any actual harm.

The amendment’s sponsor, MK Yoav Kish (Likud), went so far as to link the urgent need to approve the bill with this week’s cancellation, “due to BDS activity,” of a soccer game between Israel and Argentina. But we should remove the masks: This provision, as the committee’s legal adviser explained, would be very hard to enforce against someone who isn’t an Israeli citizen. Therefore, it isn’t intended for the battle against BDS, but for the battle against Israeli citizens who oppose the occupation.

The law defines a boycott of the territories or the settlements as a “boycott of the State of Israel.” And this was the real motivation for its enactment – to hurt and punish opponents of the right’s annexationist policy who seek to stymie it through boycotts of the occupied territories. This is a law that seeks to delegitimize supporters of a two-state solution who refuse to stand on the sidelines and keep silent at a time when the government is establishing irreversible facts on the ground.

The court was aware that the law infringes on freedom of political speech. But a majority of the justices upheld it, on one very clear condition – that it focus solely on cases in which calls for a boycott caused actual damage. Any attempt to create “compensation without proof of damage” is an attempt to punish the speaker, not an attempt to compensate for harm done. And it is therefore a way of gagging speech.

By attempting to reenact a provision that was unanimously overturned by nine justices, the Knesset is spitting in the court’s face. Effectively, it is ignoring the ruling and the reasoning behind it and enacting a provision that will clearly leave the court no choice but to overturn it again. And at the end of this process, legislators will be able to complain once again about the court’s “excessive activism.”

The Boycott Law shouldn’t exist in any version. But the amendment adds insult to injury. If members of the governing coalition have any remnants of honor left, they will refrain from advancing this bill any further.