A rare maximum nine-justice panel of the High Court of Justice on Sunday heard arguments over the constitutionality of the Anti-Boycott Law, which it froze in December 2012.
The High Court hit both sides hard, 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 other words, the court might not let the state penalize those boycotting “the occupation” of lands that Israel gained control of 1967.
But at the same time, the court would let the state penalize those boycotting the entire country, including parts of Israel on the pre-1967 “Israeli side” of the Green Line.
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 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 1948 Israel.
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 empowers the finance minister to impose monetary 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 Avnery and MK Ahmed Tibi (United Arab List-Ta’al), 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.
A 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 Adviser 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 that 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 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 that, 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 admitting that it did after around 10 minutes of trying to evade the question.
At one point during the evasion, Miriam Naor, Supreme Court deputy president, engaged in a verbal bout with the state’s lawyer Yochi 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 zoomed 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, Junior Justice Yitzhak Amit even said 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-Arabs’ status in 1948 Israel, they should be allowed to do so.
Jabareen said that if the court distinguished between 1967 Israel and 1948 Israel boycotts it would itself improperly be weighing into political debates. It would be 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 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 released 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 in favor of 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.”