Analysis: A law born in controversy

Anti-Boycott Law provided legal tools to settlers and their supporters to sue or fine, those who boycotted them.

Palestinians call for a boycott 370 (photo credit: REUTERS)
Palestinians call for a boycott 370
(photo credit: REUTERS)
The High Court of Justice on Wednesday reluctantly waded into a highly controversial debate over the “Anti-Boycott Law,” which has already brought withering criticism internationally and from much of Israel’s own legal establishment.
The law provides settlers and their supporters an unprecedented right to sue, or to fine through the Finance Ministry, persons or entities which boycotted the settlements and their products.
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 were publicly boycotting West Bank settlements, most notably performances in Ariel.
Boycotts are fairly unpopular with much of the Israeli public, but the idea of making them sanctionable under law was 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, Knesset legal adviser Eyal Yinon took the almost unheard of step of publicly declaring the law illegal. Yinon is not considered a political legal adviser, and was comfortable defending the state vigorously on Tuesday on the also controversial Acceptance Committees Law, one of the largest housing discrimination cases to reach the court in recent years. Yet he vocally opposed the Anti-Boycott Law.
At the time, Attorney-General Yehuda Weinstein also straddled the fence, calling the law borderline legal.
Although Yinon showed up in court to defend the law on the Knesset’s behalf and made some arguments, his longest explanation of why he was defending the law was that it was his job to defend laws once the Knesset voted, even if he thought the law was problematic.
Pressed by the court about the fact that he had “almost killed” the law with his opposition, Yinon, rather than defending the law further, merely stated that he had even considered asking the Knesset to hire independent counsel to appear Wednesday, but in the end did not.
Now that’s a defense.
The State Attorney’s Office showed up in court to defend the law, but did not offer any positive arguments about it, sticking to a classic fall-back argument that since it has not been used yet, it is premature to nullify the law.
This has been a big winning argument for the state in some major recent cases.
On one major ruling, the state beat a petition to strike the Nakba Law, which empowered the state to withhold public funds from institutions which mark the founding of the State of Israel as a day of mourning, using that reasoning.
But here it will be a harder sell.
As the petitioners noted, Israel’s courts have taken most of the doctrine of rejecting cases as “premature” from the US courts. But the petitioners said that the US courts say freedom of expression is an exception to the principle of rejecting cases as premature.
The reason, they say, is that laws which have the effect of chilling free speech already restrict that fundamental right simply by their existing, even if the law is never used.
That could be a formidable argument in this case, where several organizations that had been involved in settlement boycotts rushed to change or take down their websites as soon as the law was passed. It could be all the more formidable because the debate over the settlements is viewed on both sides as being at the core of Israel’s national political discourse.
Still, the premature argument was probably the safest legal argument for the state to make in light of its past public opposition to the law and the argument’s run of successes.
But perhaps the best possible winning argument, although more moral than legal, was made by the Legal Forum for Israel, which appealed to the court’s sense of tolerance and the idea that boycotts are an inherently intolerant form of speech.
But at the end of the day, it will be very surprising if the court upholds a law that was opposed or doubted by both the Knesset legal adviser and the attorney-general.
In addition, the justices will not need to worry about angering Netanyahu if they strike down the law, since he did not even vote for it, but they will face international criticism if it is upheld.
If anything, the court’s indecision so far is likely more about not wanting to rush to be seen by the Israeli public as supporting boycotts, than it is a signal that the law will stand.