Is HRW official being expelled for BDS or criticism of Israel? - analysis

The court suggests it was about both human rights and boycotts – and where they are connected, Israel can deport someone whose human rights’ criticism takes the shape of specific calls to boycott.

Human Rights Watch representative Omar Shakir (photo credit: HILLEL MAEIR/TPS)
Human Rights Watch representative Omar Shakir
(photo credit: HILLEL MAEIR/TPS)
The decision on Tuesday of three justices from the High Court of Justice to deport Human Rights Watch (HRW) official Omar Shakir may have the largest impact ever of any decision regarding human rights groups and boycotts.
While the justices framed the case in terms of Shakir’s activities to actively and continuously encourage boycotts of Israel, critics of the decision noted that Israel is now on a short list – with North Korea, Iran and Syria – of other countries which have expelled HRW officials.
Was this case more about silencing criticism of Israel’s human rights record or more about fighting the global wave to boycott Israel?
To the extent it was about boycotting Israel, has Israel been singled about by HRW for unfair treatment and criticism, or was Shakir acting the same as other HRW officials act in criticizing countries’ human rights records all over the world?
Finally, most of the BDS (Boycott, Divestment and Sanctions) activities attributed to Shakir were via Twitter. Will the High Court ruling usher in a new age of Israel policing the Twitter accounts of human rights critics, or was this an exceptional case and Israel will unhesitatingly invite in a new HRW official to replace Shakir?
Regarding human rights and boycotts, the court suggests that it was about both, and that where the two are connected, Israel has the right to deport someone whose human rights criticism takes the shape of specific calls to boycott Israel.
On Twitter, Shakir did call on FIFA, Airbnb, and a Spanish company to boycott Israel due to his criticism of its human rights record and HRW’s view that Israel illegally occupies the West Bank.
Some other notable points in the court’s decision included its distinguishing Lara Alqasem, who had been involved in anti-Israel groups as a student but was allowed to stay in Israel to study at the Hebrew University of Jerusalem, versus Shakir. The court said that Shakir was worse than Alqasem and, therefore, deportable.
While Alqasem’s anti-Israel activities were all as a young student and she had declared she would not undertake any boycotting activities while studying at Hebrew University, the court said that Shakir was a professional, seasoned, serial boycotter who had refused to pause his boycotting activity.
In addition, none of the court’s three justices made any distinction between boycotting Israeli activities in the West Bank (Israel post-1967) for activities that much of the world views as problematic under international law, versus boycotting Israel within the Green Line (Israel post-1948.)
This was a fascinating move, as four out of nine justices in a 2015 case on a parallel law had said that boycotts limited to post-1967 Israel should be considered protected free speech.
The four-justice minority in that case explained that there is a vibrant debate about whether Israelis should remain in the West Bank. In that light, they said that a boycott targeting only that area and not the rest of the country was legitimate speech and did not undermine Israel’s existence.
Yet, even in that 2015 case, the five justices of the majority, led by then-chief justice Miriam Naor, said that with the massive delegitimization campaign facing the country, the Knesset was well within its authority to ignore that distinction in the law – as many Israel boycotters do, by boycotting even post-1948 Israel.
This appeared to be the approach of the three justices on Tuesday, although each of the justices on this panel identify with the court’s more conservative wing.
Ironically, in 2015, there was one justice – Neal Hendel – who would have declared all lawsuits against boycotts unconstitutional, called free speech the “lifeblood” of democracy and reviewed American law, noting that there is no category of lawsuits against boycotts.
In Tuesday’s decision, however, Hendel wrote the opinion justifying expelling Shakir, focusing more on BDS as a serious threat than on a conversation about rights.
Did he switch sides because of the different laws presented or the different playing field of BDS in 2019 versus 2015?
The justices were not swayed by arguments that HRW criticizes most countries and that its criticism was based on international law. Rather, the three justices indicated that Israeli domestic law for deporting boycott activists could trump any international law delegitimizing Israel.
They also did not view Shakir’s boycott statements as being less important because they came from Twitter and because he said he was representing HRW’s global policy. Instead, the court noted that Shakir used his personal Twitter account and would have needed to use a clearly official HRW account had he wanted to try to claim immunity for merely representing an organization.
The court did not seem terribly concerned about what future “chilling” impact a deportation based in large part on Twitter statements would have on limiting free speech and criticism of Israel.
Mainly, the court said it was reassured that Shakir would be an exception since it said that the government guaranteed it would permit HRW to send a new official quickly to replace Shakir. But this begs the question: does the court really think the next HRW official will not criticize Israel and sometimes call for boycotts?
If that official calls for boycotts and is also deported, then won’t that mean that Israel is effectively not allowing HRW in the country? At this stage, the court has sidestepped the issue, noting that the government has not listed HRW on its own blacklist.
And whether all of this is legal domestically or not, what impact will this ruling have on Israel’s image as a democracy and on the High Court’s glowing image as an independent branch which cares about human rights?
The bigger question in this case is whether the value of deporting Shakir is worth the cost – the government presumably values giving him less access to what is going on in Israel and feels good about “teaching him a lesson.” Is it possibly a slippery slope toward limiting free speech criticism, as well as problems of defending Israel’s image?
NGO Monitor and Shurat Hadin both felt that the government had a basis to expel Shakir, and viewed him as an extreme enough case that some of the negatives would not come into play.
The court discussed the negatives – but for now, it is supporting the government’s gamble that the negatives from the deportation are outweighed by the desire to strike back at the BDS movement.
Whether the ruling will be looked back on years from now as a turning point in Israeli democracy remains to be seen.