One never knows how the High Court of Justice will rule until its decision is issued, but if questions were any indication, no one will be happy with its possible middle-of-the-road solution to the petition against the Anti-Boycott Law.
A compromise keeping part of the law and striking part of the law is somewhat unexpected after the court blasted the state at the initial December 2012 hearing and froze the law before it was even implemented.
The law itself was born in controversy, considered by many to be a political stunt and response to performers, artists and authors on the Left who, in what was seen by many others as a stunt, were publicly boycotting the settlements, most notably performances in Ariel.
Boycotts are pretty unpopular with much of the Israeli public, but the idea of making them sanctionable made the law’s status problematic from the start.
Initially, Prime Minister Binyamin Netanyahu appeared to try to prevent or delay a vote on the law. Even when he let the vote go forward, he absented himself.
Prior to the vote, the Knesset legal adviser, Eyal Yinon, took the almost unheard-of step of publicly declaring the law illegal, and Attorney- General Yehuda Weinstein also straddled the fence, calling the law borderline legal.
The state remained on the defensive at the start of Sunday’s final hearing, with the justices breathing down lawyer Yohi Ginsen’s neck until she admitted that she believed the law violated fundamental free speech rights.
But then the hearing took a surprising turn.
The High Court not only pressed the state to accept that penalizing boycotts of “1967 Israel” went too far in violating free speech, it also pressed the petitioners with the view 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 might let the state penalize those boycotting the entire country, including parts of Israel on the pre- 1967 “Israeli side” of the Green Line.
This compromise would make no one happy, as the main proponents of the law cared most about attacking the NGOs that “fight the occupation,” and the NGOs will feel potentially under the gun if there is any legal basis, however narrowed, to sue them for what they view as critical political action.
How did the court move from seemingly leaning toward throwing the whole law out to a possible compromise position? The most effective, albeit less legal, argument that the state raised on Sunday was the dark specter of BDS, which has shaken up much of the country, no doubt flowing to the halls of the High Court as well.
In this new, more threatening, environment of BDS, the court may be hard-pressed to give a ruling implying that it validates (even if only legally) boycotts of “1948 Israel.”
At the same time, the court may hope to somewhat assuage the Israeli and international freespeech and left-wing pressure by saying that it freed them to continue to boycott the “heart” of the “occupation” of “1967 Israel.”
Curiously, while far from endorsing Peter Beinart’s active “settlement- only” boycott, it would indirectly utilize some of his concepts – and would probably be equally unpopular.