Israel Takes Legal Aim AT BDS by William Mehlman


Patently untrue and totally irrelevant is the charge of a blow to “freedom of expression” and a misguided attempt at opinion change leveled against a 46-28 Knesset decision barring entry into Israel to non-citizens calling for the boycott of the Jewish state and its communities in Judea, Samaria, the Golan Heights and eastern Jerusalem.

Nobody challenges the BDS (Boycott, Divestment and Sanctions) movement’s right to attempt to bend Israel’s economic, political and security policies to its will–an effort against which 21 American states have, at this writing, legislated–but to demand that pursuit of that objective entitles its alien leaders and followers unrestricted access to the land they have targeted, is to turn freedom of expression on its ear.  That “BDS activity” tops the list of 28 reasons for denying a non-citizen entry to Israel under a new, more muscular anti-BDS Law is testament to the gravity with which the Knesset views the movement’s expanding economic-political agenda.

Not surprisingly, for all its posturing as a strike force in the fight against BDS, the new law, which basically amends a 1952 statue granting Israel entry to any foreign visitor from a non-belligerent state, has not gone down well with the American Jewish establishment.  Both the Anti-Defamation League and the American Jewish Congress find themselves “troubled” by the law, a condition explicated in American Jewish Committee CEO David Harris’ observation that “banning entry to otherwise qualified visitors on the basis of their political views will not by itself defeat BDS, nor will it help Israel’s image as the beacon of democracy in the Middle East.” That, of course, completely misstates the anti-BDS law’s language and intent.  Denial of entry to Israel is specifically conditioned on BDS action and public advocacy, not on political opinion.  Driving for a touchdown on Harris’ handoff, a spokesman for the Association for Jewish Studies warned that the measure could turn Israel into “an isolated entity open only to those who ascribe to official policy.”

In an ironic departure from its mainstream American Jewish detractors, including both the Reform and Conservative blocs, the anti-BDS bill was enjoying a relatively sang-froid reception from a suddenly counterintuitive U.S. State Department.  “While we oppose boycotts and sanctions of the State of Israel,” spokesman Mark Toner declared, ”that said, this is a sovereign decision for Israel to make regarding its borders.”

Six thousand miles removed from Washington, Tel Aviv-based Ha’aretz made it clear it wasn’t buying into the Israeli “sovereign decision” line being peddled by Foggy Bottom.  In a top of the page opinion piece by Chemi Shalev, the nation’s bastion of post-Zionism–with a straight face–labeled what it called the “Entry to Israel” law “anti-Zionist and anti-Israel in its very essence,” a law, “compelling the many Jews and non-Jews who support the state of Israel, but vehemently oppose the ‘settlement project,’ to choose between the two.  Feeling insulted and rejected, some, if not most, will abandon Israel altogether.” Sad, if true, but life is chock full of hard choices.  What Ha’aretz and its minions fail to concede is the veracity-free impossibility, in a single breath, of declaring oneself a supporter of Israel and the participant in or condoner of a movement waging global economic warfare against that same national entity.

Back in Washington, CAMERA (Committee for Accuracy in Middle East Reporting in America) didn’t know whether to laugh or cry over the New York Times’ equally bloodshot eye-view, complete with errors, of Israel’s legislative stance on BDS.  “You can love it, you can hate it,” averred the media sentinel, “but at least be correct, contextual and consistent when talking about it.” CAMERA has called out the “newspaper of record” for correction of its assertion in an editorial on the Israeli law that the U.S.  has “consistently held that settlement building in the occupied areas is illegal,” when, in truth, “since the Carter Administration, the U.S.  has consistently avoided such characterization.” CAMERA additionally charges the Times with “misleadingly downplaying BDS’ aims,” specifically the paper’s contention that the movement merely targets Israel for its occupation of the West Bank, when in fact, a “trifecta of BDS goals essentially amounts to a call for the elimination of the Jewish state.”

Finally, what the Times and most of the media have ignored in their reporting on the Israeli law, CAMERA submits, is that the U.S. employs similar restrictions in its entry policies, only far more encompassing ones.  Section 212 (a) of the Immigration and Nationality Act, it notes, bars entry into the U.S.  for any alien whose “proposed activities the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the U.S.” The door is also closed to those who would “break laws for the purpose of opposition to the U.S.”

Putting the case for Israel’s anti-BDS legislation in further legal context, Fulbright scholar and Harvard Law School SJD candidate Elena Chachko, writing in the “Lawfare” blog, finds little reason to doubt that the law will survive review by Israel’s Supreme Court.  She references in support of that opinion Justice Hanan Melcer’s position that boycotts are “meant to coerce, not persuade” and “do not merit the same level of constitutional protection as other forms of political expression.”  A democratic state, Melcer held, “may legitimately defend itself against boycotts directed at its citizens by imposing proportional legal sanctions.” Chachko finally emphasizes that the ant-BDS law “only imposes limitations on the act of calling for a boycott, not the underlying criticism of Israel.”

Evelyn Gordon, in an April piece in Commentary, argues that the key question overhanging Israel’s anti-BDS law is not its text –“the law’s basic assumption that boycotters must be targeted personally is 100 percent correct”–but whether the Israeli government has the gumption and the intelligence required to enforce it.  Her doubts on that issue were raised in late April by the government’s decision to grant a one year visa to Human Rights Watch researcher Omar Shakir.  In Shakir, she finds the “epitome of someone who should have been denied entry…He has given lectures on college campuses in which he accused Israel of being an apartheid state, advocated anti-Israel boycotts, compared Zionism to ‘Afrikaner nationalism’ and called for ending Israel’s existence as a Jewish state.”

Omar Shakir

Shakir’s being allowed to take a post in Israel in the face all this, Gordon submits, is a testament to bureaucratic bumbling’s power to lay waste to an admirable legal endeavor.  The border control authorities, as she relates, originally denied Shakir a visa not because of his abject hostility to Israel but on the “sweeping grounds” that HRW was an “anti-Israel organization.” However true that might be, it would have been a tough case to prove.  Being an American construction, HRW predictably appealed to the State Department, which just as predictably put the screws to Israel.  In Gordon’s words, “Israel capitulated completely.”

“If Israel is to fight the BDS movement effectively,” she warns, “anti-Israel activists like Shakir must be called out as publicly as possible instead of being allowed to pose as objective researchers…But if the Shakir case is any example,” she adds, “the new law will, at best, contribute nothing to this essential effort and at worst end up hindering it.”

Let us hope that courage and a modicum of common sense will prove that not to be the case.


William Mehlman represents AFSI in Israel.

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