Analysis from Israel
Why could an overly harsh Boycott Law pass while a more moderate one could not? Because too much of the Left refuses to accept any sanctions on anti-Israel boycotters.
The Jerusalem Post columnist Susan Hattis Rolef and I are on opposite sides of the political spectrum, but I share her that one of the most perceptive comments on the “Boycott Law” enacted last week came from MK Eitan Wilf (Independence Party). Wilf lamented that what she termed “sane, state-oriented, centrist Zionism,” once the province of most Israeli politicians, was being gradually squeezed out by “the extremist right and the post-Zionist Left.” Her point was that while it’s perfectly legitimate for Israel to defend itself against anti-Israel boycotts, the current law disproportionately infringes on freedom of speech.

Yet there was no majority for a more moderate law, because too many leftist MKs refused to support any  penalties on anti-Israel boycotters, while too many rightist MKs refused to grant boycott advocates any freedom of speech.

Anti-boycott legislation is indisputably legitimate in principle. For starters, when aimed at an entire country, boycotts – better known as trade embargoes – are an internationally recognized form of hostilities. So when people advocate boycotting Israel, they are in fact advocating economic warfare against it. By using the term “boycott,” with its civil-rights connotations, rather than “embargo,” they merely seek to conceal their intent.

Second, many boycott advocates don’t even bother denying that their ultimate goal is Israel’s eradication. Thus the boycott resolution adopted by the Canadian Union of Public Employees’ Ontario chapter, for instance, stated explicitly that the boycott would continue until Israel commits demographic suicide by granting a Palestinian “right of return.”

Third, Israel is hardly the only democracy to enact anti-boycott legislation. Indeed, as the Postnoted, America’s Export Administration Act of 1979 imposed much stiffer penalties on compliance with the Arab boycott of Israel than anything in Israel’s law: It even allowed prison sentences, whereas Israel’s law includes no criminal penalties.

Finally, no state is obliged to actually subsidize those working for its destruction. Hence many of the law’s penalties – like denying tax-exempt status or the right to compete in government tenders to boycott advocates – are clearly legitimate: They don’t infringe on anyone’s freedom of speech; they merely deprive boycott advocates of state funding.

So why is the current law nevertheless problematic? First, unlike the American law – which penalized only those who actually engage in boycotts – the Israeli law also penalizes those who merely advocate boycotts: They can now be sued for damages even if the plaintiffs can’t prove actual harm, meaning they will almost certainly have to pay for exercising their right to free speech. Since freedom of expression is a fundamental democratic right, restricting speech is always more problematic than restricting action, and this provision clearly has a speech-chilling effect.

Nevertheless, given the clearly hostile nature of anti-Israel boycotts, even this might have been tolerable (albeit undesirable) had the law been restricted to those who advocate boycotting either Israel as a whole or specific institutions (like universities) solely because they are Israeli. What made it completely unacceptable was extending this provision even to those who advocate or engage in targeted boycotts of the settlements – and I say this as a longtime resident of an “ideological” settlement that absolutely nobody thinks Israel could retain under any agreement with the Palestinians.

Obviously, I personally oppose boycotting the settlements. But it’s impossible to ignore the fact that the future of the settlements is one of Israel’s leading domestic political controversies, and boycotts are an indisputably legitimate method of applying pressure in domestic political disputes. Pressing the settlers to leave by advocating boycotts of their produce is no less legitimate than pressing dairy companies to lower prices by advocating boycotts of their products: Both employ nonviolent economic pressure to achieve a domestic policy goal, and both challenge specific government policies (dairy prices have soared largely thanks to the state-sponsored dairy cartel and import restrictions) rather than Israel’s very existence.

So why didn’t the Knesset just enact a more moderate law – one that, say, deprived boycott advocates of tax exemptions and the right to compete in government tenders, but restricted the lawsuit provision to those who actually engage in boycotts and exempted boycotts of the settlements? Because, as Knesset Speaker Reuven Rivlin discovered after repeated efforts to broker some kind of compromise, there was no majority for it.

And yet, there should have been. There were Wilf’s Independence Party faction and Likud dissenters like Rivlin, all of whom ultimately refused to vote for the law; there were other center-right MKs who would have supported a compromise, but decided the law as it stood was better than no law at all; and there were many Kadima MKs who initially supported even a far more draconian bill but voted against the final version under pressure from the party leadership, and should thus have been happy to support a compromise that would let them vote for it.

But Kadima chairwoman Tzipi Livni refused to throw her weight behind any form of sanctions, as did Labor and Meretz. And without support from the Left, there was no possibility of securing a majority for compromise. Thus the center-right had only two options: supporting the more extreme provisions backed by harder-line MKs or seeing the bill fail altogether.

Moreover, without support from the Left for a more moderate law, the maximalists had no incentive to compromise. There are certainly MKs who, even though they favored harsher penalties, would have accepted a less stringent law in exchange for widespread backing, because a united Israeli front against boycotts clearly has public-relations value that a partisan bill lacks. But if the entire Left was going to brand the law fascist and anti-democratic in any case, why should they settle for less than the maximum they could pass?

An Israel that vigorously defends itself while also vigorously protecting civil rights is impossible without support from both sides of the political spectrum. By refusing to support even moderate legislation to defend the state’s interests, the Left undermines conservatives like Rivlin, who care deeply about civil rights, and bolsters the more extreme faction that doesn’t. And it thereby promotes precisely the kind of anti-democratic measures it claims to want to prevent.

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Israel’s unity government may prove a constitutional time bomb

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

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