With a simple wave of a hand, the High Court of Justice on Wednesday propped up a law with one of the most powerful weapons yet produced to fight boycotts against Israel (at least from within the country) while also narrowly rejecting exempting boycotters who target only the West Bank or “post-1967 Israel” from the law.
The implications of the ruling for the Boycott Divestment and Sanctions campaign and counter-campaign globally could be massive.
What’s it all about? The law at stake empowered the finance minister to fine or remove tax breaks from Israeli NGOs that called for boycotts of parts of Israel, as well as empowering individuals to sue those NGOs for civil damages they claimed were caused by such boycotts.
The court did strike a provision that would have allowed punitive damages against those NGOs, somewhat reducing the biggest threat they faced for calling for boycotts, but leaving the overall threat in place.
The five fingers and the hand signify the five justices who voted 5-4 to view boycotts targeted only at the West Bank settlements as no different under the law than boycotts of all of Israel or “post- 1948 Israel.”
Some first-year constitutional law professors (in countries like the US and Israel, which have nine justice panels) like to tease their law students about what is the most dominant principle of constitutional law. Students call out: free speech, equal rights, no discrimination and separations of powers between the branches of government, only to get the hand from the professor.
When five fingers or five justices say the law of the land is “x” it becomes “x” – all the rest is commentary.
This simple but subtle determination has led to studies of which justices are “swing justices” – those who switch sides on major ideological debates and often end up casting the deciding vote when each ideological side otherwise often could “claim” an equal number of justices.
On Wednesday, though we will never know for sure, it seems that Miriam Naor was that swing judge by siding with the five in the narrow vote over “post-1967 Israel” boycotts.
In February 2014, Naor pounded the state with no less than six questions, mostly with overtones of skepticism, about aspects of the law’s constitutionality.
She, along with several other justices, also seemed to imply that there was room for “political disagreement” when it came to the West Bank, which led to some speculation that Naor and a majority of the justices would vote to exempt post 1967 boycotters – those only boycotting the West Bank – from the law’s sanctions.
But, in February 2014, Naor did not head the court. In contrast, three months ago, and as she authored her opinion for Wednesday, Naor had become the Supreme Court president.
The mantle of the crown of greater institutional power has a way of swaying justices in new directions, especially if they were borderline on a case.
Pnina Lahav, a professor at Boston University School of Law, notes the phenomenon of an evolution of views upon becoming a chief justice in her biography of the highly respected former chief justice Simon Agranat.
She writes that he started off as a revolutionary aggressively defending certain often to the chagrin of other branches of government, but that once Agranat became head of the Supreme Court, he was more cognizant of trying to please the different branches of government, the status quo and a greater focus on extra-legal impacts on the state from the court’s decisions.
The same might have happened with Naor, especially since in her opinion she refers to a dangerous tidal wave of delegitimization challenges facing the state – a major consideration of state and one which could have led her to abandon defending boycotters of the West Bank, but less of a traditional legal point.
And what will the impact be on the global BDS battle of a decision by the Israeli High Court pertaining to Israeli NGOs? Gerald Steinberg, head of NGO Monitor, a professor at Bar-Ilan University and a leading fighter of boycotts against Israel, said that outside of circles such as the New Israel Fund and some of the groups they support the ruling would not impact boycotters or the guidelines of those who fund them because the hard core of the BDS movement view all of Israel as illegitimate.
Peter Beinart, who wrote the hotly debated book The Crisis of Zionism
, is an associate professor at the City University of New York, a Haaretz
columnist and a leading Jewish voice calling for targeted boycotts of the West Bank, said it would not impact hardcore BDS activists “because it’s a one-state movement and rejects” the two-state solution.
Still, Steinberg said there could be impact on the NIF and the groups it funds. He also said the ruling, which treats boycotters of the West Bank similarly to boycotters of all of Israel, could reflect the justices’ recognition of a growing movement in some European countries such as Scandinavia where particular corporate-social responsibility, pension funds and corporate investors have been more influenced by BDS ideas to boycott Israeli banks that do business over the Green Line.
Regarding this threat, Steinberg said the justices have declared that such a distinction is “not black and white” with so much blurring of business between “post 1948 Israel” and “post 1967 Israel.”
He speculated that NGOs and their financiers boycotting only the West Bank might get some moral support from the four of nine justices who were ready to exempt them from lawsuits, but that ultimately the majority ruled against them in a “carefully worded ruling,” which would limit their ability to criticize it.
In contrast, Beinart, having called the entire idea of a law against boycotts “unfathomable” in the context of how the US views free speech and political activism, said he saw the High Court supporting the law in a context of Israeli democracy experiencing some deterioration.
Beinart said that since Prime Minister Benjamin Netanyahu assumed power in 2009, this law, the Nakba law, which penalizes groups that commemorate the Palestinian Nakba, or catastrophe as they refer to the creation of Israel and their losses in the 1948 war, and the threatening of left-wing professors indicate a dark turn.
As for any moral support from four justices who appear ready to defend boycotters of the West Bank from the law’s provisions, he said, “Four is better than none, but the law being approved overall is certainly more troubling than comforting.”
He also added that the ruling would not deter him as he viewed boycotting the West Bank as “preserving the two-state solution and Israel” versus what he said was Netanyahu’s undermining of the peace process as helping the BDS movement and one-state supporters grow in power.
Ultimately the 5-4 ruling likely hit the most ideological nerve within the Israeli public, but only time will tell about how big an impact the ruling has on West Bank boycotters and those completely boycotting Israel.