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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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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