In a statement presented to the Supreme Court in reply to appeals lodged by Uri Avnery and Gush Shalom, followed by other appeals, against the legality of the Boycott Law, the State Attorney’s Bureau admitted that the law passed by the Knesset poses “constitutional problems."
A few months ago there was a preliminary Supreme Court hearing on the appeals against the "Boycott Law", which culminated with the judge issuing an order nisi. In the document submitted to the court this week, responding to that order, the Attorney General’s bureau admits that the law passed by the Knesset poses some "constitutional problems." In fact, before the enactment of the law, the Knesset’s own Legal Advisor called (in vain) upon the initiators to withdraw that bill. However, the State nevertheless called upon the judges to reject the appeal. This, mainly on the grounds that the issue is “not yet ripe” for the Supreme Court to deliberate on, since so far the settlers had not yet initiated any civil action against a person or organization calling for a boycott of their products. Therefore, the State argues, proceedings at the Supreme Court should wait until such an action is brought by the settlers and until it can be seen how a lower court has dealt with it.
”This creates a Catch-22 situation: for the time being, the settlers do not actually sue. But they retain the option of using this law, which is available to their use whenever they so choose. This situation severely restricts and violates the Freedom of Expression of those opposing the settlements” said Gush Shalom spokesperson Adam Keller.
“The Boycott law mandates the payment of 30,000 shekels (about 13,700 dollars) in damages to any settler or settler corporation against whom a boycott call was issued – without those suing needing to prove any actual damage caused to them. There is nothing to stop a hundred settler enterprises, if they so choose, from presenting a hundred simultaneous claims. They could all descend on a single small organization, which is sustained by modest contributions, demand of it to pay a total of three million shekels, completely draining its resources and leaving it with huge debts, unable to function. In practice, even without any settlers having actually filed claims, the law hangs as a Damocles’ Sword over the heads of Israeli peace seekers, creating a deterrent against the use of a civilian boycott campaign – an acceptable and essential device in democratic political struggles worldwide.
It is the right of Israeli citizens who oppose the settlements not to spend their money in supporting the same settlements. It is their right to avoid buying settler products - not only as a private personal act but also through an organized, public campaign. It is their right to have a watchdog keeping track and telling them precisely which products on the shelves of their neighborhood supermarket come from a settlement - just as religiously observant citizens have the right to have a rabbinical watchdog telling them which food is Kosher and which is not. We hope that the appeal will soon be deliberated and ruled on, and that judges will remove this ugly stain from our law books”.
Adv. Gaby Lasky, who represents Gush Shalom in this appeal, said: "The Boycott Law is a manifestation of the parliamentary majority abusing its power in order to silence political dissidence on a controversial issue which divides Israeli society, more than any other issue. Preventing activists who oppose the occupation from pointing out the products of the occupation is a disproportionate violation of the Freedom of Expression, making for a shallow political discourse in which the critical voice is silenced.
”Israeli occupation rule over the Palestinians has just entered into its 46th year, more than 70% of the country's history. At exactly this time, the State embarks on a public defense of an undemocratic law, a manifestation how the occupation aggressively invades our daily lives," adds Adam Keller. "In the document submitted to the Supreme Court, the government’s judicial experts set out a whole set of scholarly and casuistic arguments in defense of the Boycott Law, a law which states that the settlements should be considered as being the same as the state of Israel, and a call for a boycott of settlement products is tantamount to calls for a boycott of Israel. This takes place at the very time when Israel’s best friends are expressing strong opposition to the settlement enterprise and while the European Union is seriously pondering the marking of settlement products which penetrate into the European market, emphasizing the difference between them and products made in Israel. It should have been clear to any sensible person that by blurring the difference between ‘made in Israel’ and ‘products of settlements’ the Boycott Law is itself undermining the very foundations of Israel’s export economy”.
Background to Supreme Court appeal HC 5239/11
Gush Shalom, which already in the 1990’s organized the first campaign to boycott lead settlement products, filed an appeal to the Supreme Court on the very next morning after the Boycott Law was enacted by the Knesset – represented by lawyers Gaby Lasky and Neri Ramati. Later others joined with their own appeals, inlcuding ACRI (Assoc, for Civil Rights) , Adalah, KM Ahmed Tibi, the Coalition of Women for Peace and a citizen group headed by Adv. Adi Barkai.
The Gush Shalom appeal asserted that "The Boycott Law is unconstitutional and anti-democratic, as it violates the Right to Freedom of Expression, the Right to Equality and the Right to Freedom of Profession, all of which are fundamental rights guaranteed to the citizens of the State of Israel" and that these rights are violated “in a disproportionate manner and for an unworthy cause” (Israeli constitutional law permits some violations of Civil Rights, but only “for a worthy cause and in a proportionate manner”).
The appeal set out the argument that a consumer boycott is a legitimate tool of democratic discourse, and should not be abridged. Examples cited range from an ultra-Orthodox boycott on non-kosher restaurants, to the consumer boycott on extravagantly prized cottage cheese which set off Israel’s Social Protest Movement in 2011. Also cited were historical examples of boycotts which led to a change in political situations of public consciousness, such as the economic embargo imposed by the U.S. Jewish Congress on Nazi Germany in 1933, Mahatma Gandhi’s call for a boycott of British products, and the boycotts organized by African Americans as part of the Civil Rights Movement of the 1960’s.
Therefore, the appeal argued that the law violates the principle of equality, since it is intended to violate the right of opponents of the occupation to organize an ideological boycott. This, while other groups which hold boycott campaigns on an ideological basis can continue them undisturbed, such as a boycott against artists who did not serve in the IDF, against gay singers and against enterprises which do not observe the Sabbath.
Adam Keller, Gush Shalom spokesperson: