The High Court of Justice on Wednesday heard petitions filed to strike down the
“Anti-Boycott Law” as a violation of the fundamental right to freedom of
Although there was a break in the proceedings after the
lawyers had finished arguing, leading to speculation that there might be an
on-the-spot decision, the court temporarily deferred the
Deferred decisions at an initial hearing generally mean that
the court wants to carefully craft its opinion or there is a lack of consensus
among the justices and they want more time to study the issue.
Anti-Boycott Law was passed in July 2011 and imposes sanctions on any individual
or entity that calls for an economic boycott of Israeli 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 as an act of protest “against the occupation.”
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 damages to be awarded.
The petitioners, including
Gush Shalom, Adalah: The Legal Center for Arab Minority Rights in Israel, the
Association for Civil Rights in Israel and many others, claimed that the law
essentially does not require proving actual damages have occurred at
The law also empowers the finance minister to impose financial
penalties, including the removal of tax exceptions, on NGOs that call for a
At the time the law was passed, Knesset legal adviser Eyal Yinon
warned the Knesset plenum that the legislation was “borderline illegal” since it
could violate freedom of political expression.
Yehuda Weinstein reportedly called it “borderline” defensible and admitted in
defending the law that it had serious problems.
Weinstein’s main argument
for not striking it down was that the law has never been used – as opposed to
making any positive legal arguments in its favor.
At Wednesday’s hearing,
Yinon partially reversed himself, formally defending the law on behalf of the
Yet his defense was at most lukewarm.
questioned him sharply how he could defend the law when he himself had “almost
killed” the law.
Yinon responded that he still disagreed with the law and
thought it should have been drafted differently, but that ultimately he had to
defer to the Knesset, which was not bound even by his opinion as legal
According to Yinon, once the Knesset had voted, his job was to
He even noted that they had considered not appearing at the
hearing and asking the Knesset to hire outside counsel, but eventually decided
Moving beyond the idea of the law and making an argument
that the law’s sanctions were proportionate, Yinon noted that boycotters were
merely being faced with financial sanctions like the financial costs they were
trying to place on settlers.
He also said that though there might be a
chilling effect by the law’s existence, the very existence of boycotts could be
said to automatically damage the livelihood of the settlers.
Forum for Israel joined the case as an interested party and commented that the
court has limited freedom of expression where such expression would lead to
intolerance, arguing that a boycott was an inherently intolerant
Responding to the state’s argument that it was premature to judge
the law when no lawsuits had been filed or fines issued, the petitioners said
the law has had a widespread chilling effect on freedom of expression, as many
groups are afraid of the possibility of being sued.
The problem with the
law, said one of the petitioners’ attorneys, Gabi Lasky, was not the number of
lawsuits or the size of the fines that might occur in the future, but the idea
that they could occur at all against an activity that just exercises freedom of
The petitioners added that the law is completely different
from the sanctions on the call for illegal and criminal actions, such as
incitement to violence and disobedience.
According to the petitioners,
the boycott law “imposes sanctions on the call for a boycott itself, although
both the call for a boycott and actual boycott actions are unequivocally legal.”
The petitioners highlighted articles 3-4 of the law, which they said “grant
politicians great powers for harassing public institutions, including civil
society organizations, on account of their political
Essentially, the petitioners said the law strikes at the
heart of the ability to exercise political expression on a political issue at
the core of the country’s peace and security debate.
petitioners noted that the law was not protecting a minority, the settlers, from
the tyranny of the majority.
Rather, the law was empowering the settlers
at the expense of another political minority, those members of the Left
advocating boycotts of the settlements.
To try to portray the law as
unreasonable, one of the petitioners’ attorneys asked rhetorically if a lawsuit
could be filed against someone for opposing the recognition of Ariel University
Center as a university, at a time when the Defense Ministry still has not
approved the change.
The court questioned the petitioners about why this
law was different than the “Nakba Law.”
The Nakba Law empowered the state
to withhold public funds from institutions that mark the founding of the State
of Israel as a day of mourning and, so far, was upheld by the court on the
grounds that the state has never used the law.
The petitioners said that
sanctioning the commemoration of the Nakba limited only particular conduct on a
particular day and only to institutions, whereas the Anti-Boycott Law chilled
and restricted an entire area of political speech and conduct on a core issue of
debate in the public sphere year-round.
They also added that this law was
different because it required “offenders” to be brought before the courts for
hearings and litigation, whereas the Nakba Law only involved the state making an
administrative decision without being compelled to come to court.
law’s main supporters are NGOs associated with the settlements and politicians
on the Right, although Prime Minister Binyamin Netanyahu absented himself from
the vote on the law.
The case is being heard by Supreme Court President
Asher D. Grunis as well as Justices Esther Hayut and Salim Joubran.
Jerusalem Post Annual Conference. Buy it now, Special offer. Come meet Israel's top leaders