Battle Over the Israel Anti-Boycott Act

Should the boycott against Israel be declared illegal?

A bill called the Israel Anti-Boycott Act targets companies that participate in the Israel-bashing campaign known as the Boycott, Divestment, Sanctions (BDS) movement under economic pressure from international governmental organizations such as the United Nations. The bill has languished as the days remaining in this session of Congress tick down. Senators Ben Cardin, Democrat of Maryland, and Rob Portman, Republican of Ohio, who are the chief sponsors of the Israel Anti-Boycott Act, have tried to add the bill to a package of seven spending bills that needed to pass by last Friday to avoid a partial government shutdown. The bill got swept up in the political maelstrom swirling around the funding dispute with Democrats over President Trump’s border wall. The shutdown took place as the impasse continued past the midnight deadline.

The bill declares that Congress opposes the United Nations Human Rights Council resolution of March 24, 2016, which urges countries to pressure companies to divest from, or break contracts with, Israel. The bill would also prohibit U.S. companies from participating in commercial boycotts that are fostered or imposed by international governmental organizations against Israel, adding to the existing laws making it illegal for U.S. companies to cooperate with the Arab League boycott against Israel. The language of the original bill was revised to clarify that the rights of individual U.S. citizens to engage in personal boycott activity, such as personal decisions not to buy a particular product based on where it came from, would continue to be protected. The bill covers only individuals or entities acting in an official commercial capacity. It targets those who refuse to deal commercially with persons doing business in Israel or in Israeli-controlled territories in compliance with boycott demands by member states of international governmental organizations such as the United Nations, non-member states (i.e., Palestine), the international governmental organizations themselves or their affiliated agencies. The penalties for violating the Israel Anti-Boycott Act are only monetary. There would be no jail time.

“Our bipartisan legislation is a direct response to highly selective and discriminatory efforts to isolate Israel, such as those by the U.N. Human Rights Council,” Senator Portman said in a statement. The Human Rights Council has compiled a database to use in blackballing, for UN procurement purposes, any companies said to be doing business in what the UN has defined as Israeli-occupied territories including East Jerusalem. The UN's former Human Rights Commissioner, Zeid Ra'ad Al Hussein, sent out threatening letters in 2017 to about 150 companies around the world, including 30 American companies such as Caterpillar, Priceline.com, TripAdvisor and Airbnb. The letters warned that unless these companies stopped doing business in "occupied" areas the UN said were off limits they could be placed on the UN blacklist for companies acting in violation of "UN decisions."

The economic boycott pushed by BDS advocates, including at the United Nations, would likely extend beyond the companies doing business with Israeli settlements. "These companies just can't make the distinction between Israel and the settlements and are ending their operations all together," a senior Israeli official explained. BDS itself states on its website that “the BDS movement is currently in the process of moving away from campaigns focused mainly on illegal Israeli settlements.”

Not surprisingly, Palestinian activist groups and left-wing organizations such as the American Civil Liberties Union and J Street have denounced the bill. Senators Dianne Feinstein (D-CA) and Bernie Sanders (D-VT) announced their opposition to the bill on the grounds that it “would violate Americans’ First Amendment rights.” The New York Times published a lead editorial on Thursday criticizing the bill on the grounds that it “is clearly part of a widening attempt to silence one side of the debate.”

The First Amendment argument is a canard. American companies that support the BDS movement would not be punished for engaging in political speech. Their officers and employees are free to criticize Israel’s policies to their hearts’ content and to decide not to buy Israeli-made products for their personal use. What the companies should not be permitted to do is discriminatorily single out the Jewish state for economic punishment because of its settlements activities when these companies do not apply the same standard to other countries with settlements in “occupied” territories. Turkey comes to mind. Turkey illegally occupied Northern Cyprus in 1974.

There are currently about 115,000 Turkish settlers and 35,000 Turkish occupation troops in Northern Cyprus according to the internationally recognized government of the Republic of Cyprus. Yet last month, for example, Airbnb decided to remove Israeli-owned West Bank properties from its short-term rental listings, a move that followed pressure from the BDS campaign and the UN human rights apparatus, while Airbnb has continued to advertise listings in Turkish-controlled Northern Cyprus. These disparate policies constituted blatant discrimination based on national origin, despite Airbnb’s protestations to the contrary. Perhaps Airbnb is beginning to have some second thoughts, however. It recently gave mixed signals as to whether it will implement its boycott decision and expressed its opposition to the BDS movement. This followed a strongly worded letter The Lawfare Project sent to Airbnb asking it to reverse course, and a visit by several Airbnb officials to Israel along with a visit by one executive to West Bank settlements.

Airbnb may be seeing the light. However, there is no hope for anti-Israel outlets such as the New York Times or left-wing groups such as the ACLU.

The New York Times editorial opposing the Israel Anti-Boycott Act, entitled “Curbing Speech in the Name of Helping Israel,” is full of specious arguments to rationalize its unjustifiable position. The editors questioned why the Palestinians should be “deprived of nonviolent economic protest” - even though the Palestinians’ purchase decisions are of no concern to the sponsors of the Israel Anti-Boycott Act. The editors then foolishly resorted to comparing boycotts and sanctions against Israel with sanctions against odious dictatorships. “The United States frequently employs sanctions as a political tool, including against North Korea, Iran and Russia,” the editors wrote as if that mattered in the case of the anti-Israel boycott. They tried to distinguish existing law aimed at the Arab League boycott against Israel. The Arab League boycott, the editors argued, “was coercive, requiring companies to boycott Israel as a condition of doing business with Arab League member states.” Thus, according to the editors, a company going along with the Arab League boycott did so for economic reasons – continued trade relations – not because they were exercising free speech rights.

The New York Times editors adopted the ACLU’s nonsensical argument that companies trying to stay off the BDS blacklist would be doing so of their own free will as an expression of their political opinions. “Neither the United Nations or the European Union have authority to force companies to do anything,” said Kathleen Ruane, ACLU’s Senior Legislative Counsel who now purportedly specializes in the First Amendment. It has not occurred to the First Amendment’s self-proclaimed “guardians” at the New York Times and ACLU that the same economic concerns are at work as with the Arab League boycott. Companies would have serious fears of being blacklisted not only by private firms but by the largest international inter-governmental body in the world - the United Nations - and member states that follow the UN's example.

The issue is not, as Ms. Ruane claimed in a statement on behalf of the ACLU, whether the UN simply advocates a boycott against Israel. In that case, the Trump administration could just cut more funding contributions to the UN in response to the UN’s continued rhetorical expressions of anti-Israel bias. The issue is that the UN would be proactively intimidating businesses on its own blacklist by threatening to refuse to procure from them and would be facilitating member states to do the same thing by creating a database they can readily use for punitive purposes. Many businesses caving to such economic coercion would not be motivated to participate in the boycott as a political protest against settlements in any “occupied” territories. Rather they would be bowing to economic pressure, magnified by the United Nations blacklist, to single out Israel for its settlements in Israeli-controlled territories. The Israel Anti-Boycott Act would require Airbnb, which claimed it opposed the BDS movement, and other businesses to recalculate the economic costs and benefits in buckling under pressure to engage in this discriminatory boycott against Israel.

The BDS advocates like to think of themselves as heirs to the 20th century boycott of South Africa by the Anti-Apartheid Movement. The only problem is that Israel is not an apartheid state. It is anything but. While Israel has a Jewish majority, it is also a racially, religiously and ethnically diverse society and a pluralistic democracy. Israel has offered the Palestinians generous terms for their own independent state on multiple occasions, only to be rebuffed each time. Israel withdrew unilaterally from Gaza in 2005 and uprooted all Jewish settlers there, only to see Gaza turned into a launching pad for Palestinian terrorists to use in attacking Israeli civilians inside Israel. The truth is that the BDS movement and its offshoot at the United Nations have a much darker lineage than the South Africa Anti-Apartheid Movement. They are the latest anti-Semitic embodiment of the Nazi boycott of Jewish businesses and the Arab League boycott of Israel. 

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