20 July 2011
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Confronting BDS from home

I am somewhat unhappy with the anti-boycott law – and not because the hysterical far Left screams that it undermines Israeli democracy. I am concerned that if it is not adequately comprehended, it enables demonizers of the Jewish state to pose as bogus martyrs in the cause of freedom of expression.

The legislation has already created anxiety and confusion among many of our genuine friends. Particularly so in the United States, where the concept of freedom of expression without limits is a fetish based (in my opinion) on the false belief that public debate neutralizes hatemongers. It finds American Jewish civil libertarians even defending the right of Nazis to incite hatred.

Yet the US – ironically under the Carter administration – introduced far more draconian laws against boycotting Israel than the fairly tame legislation (with civil rather than criminal penalties) passed by the Knesset. It is noteworthy that Will Maslow, a prominent liberal from the American Jewish Congress who proudly produced a newsletter documenting actions taken against the Arab boycott, was never accused of supporting fascist legislation.

Much of the press coverage has focused on the civil remedies provided by the legislation for victims of boycott campaigns of Israel or Israeli communities. If the actions of those promoting boycotts damage segments of Israeli society, the boycotters should be obliged to bear the cost. Former Israeli Supreme Court Judge Yaakov Turkel pointed out that even in the absence of legislation, those suffering economic loss as a result of a boycott may already have a cause of action.

But we should be absolutely clear. The new legislation has no bearing on freedom of speech, and in no way infringes on the right to debate the merits of settlements. However, it is unconscionable to deliberately target a community with the express purpose of causing economic hardship because one is opposed to it ideologically. If extremists called for a boycott of products produced by Arab Israelis in order to promote the goal of transfer, opponents of the current legislation would rightly demand that those inciting such boycotts face criminal sanctions. We should therefore dismiss the hypocritical calls for freedom of expression from those whose primary raison d’être is to undermine the Jewish state.

The principal – and totally justified – motivation of the legislation is to discourage Israelis from promoting the international boycott, divestment and sanctions (BDS) campaign, which today represents an important component of the global war being waged against us.

In this context it is disconcerting that many mainstream American Jewish organizations exclude Jews calling for BDS, while tolerating those who call for boycotts of settlements. They do not appreciate that those boycotting settlements are consciously or unconsciously paving the way for the broader BDS.

It is also obscene to witness the histrionic statements flowing from the Israeli far Left, alleging that Israel is being transformed into a fascist dictatorship.

It is surely not fascist to legislate that organizations which encourage or promote BDS activities against Israel may forfeit their tax-exempt status for charitable donations. This is the principal operative element of the legislation. The far Left’s hypocrisy and chutzpa know no bounds. It wants to maintain the insane scenario whereby Israeli taxpayers subsidize activities undermining their own country. (This parallels academics demanding they be accorded full benefits while simultaneously calling for an international boycott of their own university.)

THE JEWISH state remains the only country in the world which, since its inception, has been obliged to defend itself from neighbors committed to its destruction, and whose civilians are still subject to ongoing rocket attacks. In a recent poll, the vast majority of Palestinians reaffirmed their desire to kill every single Jewish man, woman and child.

Yet Israel remains one of the most robust democracies in the world. It boasts the highest level of free press. Its leaders, including the president and prime minister, are held to stricter accountability than ordinary citizens. And Israel provides its Arabs citizens (who amount to 20% of the population), the right to elect radical MKs who express the views of those seeking our destruction. It is thus utter nonsense to allege that by introducing legislation to curb BDS activities, Israel is on the verge of becoming a fascist dictatorship.

In recent years, much of the Israeli Left seems to have lost the plot. Not so long ago, the dominant Israel Labor party prided itself on representing the essence of the Zionist establishment. Its role models were pioneers and farmers creating settlements and transforming deserts into gardens.

In contrast, today the Israeli far Left has been hijacked by urban post-Zionists. Many left-wing academics seem to have absorbed the cosmopolitan characteristics of diaspora Jewry. Some, like the 19th-century Russian Jewish Social Revolutionaries who regarded pogroms as necessary to create revolutionary consciousness among the masses, today even identify with the Palestinian jihadists and pay tribute to their culture of death.

They share the outlook of European post-modernists, and classify Israel with European post-colonial guilt. They spew hatred against their own people, demonize the IDF and paved the way for the Goldstone Report. In so doing they were assured instant recognition and standing among their European counterparts.

In these troubling times, we must consider how to deal with citizens engaging in activities which undermine the very existence of the state, or provide aid to those seeking our destruction. This is not fascism, it is self-preservation. The German Weimar Republic is testimony to the tragic outcome when a democratic state fails to protect itself against forces seeking to undermine it.

We can achieve this while retaining our unique Jewish democratic character. But it will only be accomplished if the prime minister and leader of the opposition are both willing to set aside their ambition and petty politics to promote the national interest.

ileibler@netvision.net.il

This column was originally published in the Jerusalem Post

 

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Isi Leibler

Isi Leibler is a veteran international Jewish leader with a distinguished record of contributions to the Jewish world and the cause of human rights, including the struggle for Soviet Jewry. He was head of the Jewish community in Australia for many years and made aliya in 1999. Leibler has held senior roles in the World Jewish Congress, including chairman of the governing board and senior vice president. Today, he writes prolifically and is a regular columnist for The Jerusalem Post and Yisrael Hayom.

(1) Reader Comment

  1. Dear Mr. Leibler,
    I just read your latest column about your reasons for objecting to the anti-boycot law. I share your feeling that the BDS campaign is outrageous and a scandal that should be confronted harshly wherever possible. My initial feeling when I first heard about the new legislation was therefor \great- serves them right\.

    But I am also a lawyer and went trough my legal training in Germany which has the toughest law schools in the world. I spent 8 years training in all areas of law including constitutional law (which entails human rights) even though my primary expertise is now in criminal law. During those years which I thorougly didn’t enjoy I had to put myself through the exercise of not going by my gut feeling any more. More than once I had to defend outcomes that I just hated because my feeling of what was right was not in line with what is right under the law. Even while reading a lot of the decision of the constitutional court like most people I found myself changing my mind about a case several times while reading the text because as the argument evolves through the different legal aspects and viewpoints I could not hang on to my former view.

    I did the same thing with the anti boycot law and to make sure my view is not mistaken doublechecked it with a colleague. The outcome was very clear: the law is a breach of freedom of opinion. Even though i sympathize with the law emotionally there is no way I could find a different outcome to this applying legal standards.

    Your article contains a lot of assumptions which are plain wrong which is understandable. Few things are as counterintuitive as human rights law. I know you as a real democrat and want to take the time to respond to you in detail.

    I will put the citations from your article into quotation marks and then respond to each of them.

    \I am somewhat unhappy with the anti-boycott law – and not because the hysterical far Left screams that it undermines Israeli democracy.\
    Yes the left is hysterical and I would bet that if that law was directed against their political oponents (us) they would not care for a second. But even if human rights might be used by the radical left for their own agenda. Human rights as such are not their invention. Being concerned about them does not make you a radical leftist.

    \Particularly so in the United States, where the concept of freedom of expression without limits is a fetish based (in my opinion) on the false belief that public debate neutralizes hatemongers.\ The law has sparked the very same discomfort among european friends. Even though freedom of opinion here has limits that doesn’t mean that you can set those limits arbitrarily. There are strict conditions for it.

    \Yet the US – ironically under the Carter administration – introduced far more draconian laws against boycotting Israel than the fairly tame legislation (with civil rather than criminal penalties) passed by the Knesset.\
    I have no knowledge of such laws in the US.However they could be justified based on laws that protect minorities against racial incitment (if the jurisdiction has such laws in place, which are constitutionally problematic too…). The difference is though that Jews are not a racial minority in Israel. The majority in a democratic state has no right to such protective measures. For example in Germany incitment against Jews is a crime. But not against the Germans.

    Most important: there is really nothing tame about the israeli law. It uses the harshest sword that the law has to offer: civil legislation. By doing so it circumvents the general principles of criminal law such as in dubio pro reo by putting the burden of proof on the defendant (for the damages). Any lawyer will agree that civil courts are much tougher for the parties concerned than a criminal court could ever be. Other factors are for example the possiblity to use a civil law out of the spectre of it’s wording where an analogy is seen fit – something strictly forbidden in criminal law.

    \If the actions of those promoting boycotts damage segments of Israeli society, the boycotters should be obliged to bear the cost.\
    The mere fact of calling for a boycot doesn’t do any damage at all. It is those who follow the call who cause the damage by omitting to buy israeli products. However omitting something is only comparable to a positive action if the person that ommits has an obligation to act. There is no obligation to buy israeli products, nowhere.

    \The new legislation has no bearing on freedom of speech, and in no way infringes on the right to debate the merits of settlements. \
    This is really wrong Mr. Leibler. Not only does the law have an effect on freedom of speech, it is in breach of the consitutional guarantee of it because it cannot be justified legally. When does a state’s action \affect\ a human right (we call it – when does it open the protective scope). In modern law anything that will shorten the freedom guaranteed by any means – by linking the protected behaviour with a negative consequence will be considered to affect that freedom. That doesn’t yet mean that it is in breech of it – but it then needs to be justified. This law makes anyone calling for a boycot which of course is an expression of opinion liable to damages and other disadvantages. By doing so it shortens the freedom of speech. Could it therefore be justified?

    -The justification fails to work in the case of this law. I have written in more detail about why in my latest article on http://cheerfulcoyote.wordpress.com/2011/07/15/arger-um-boykott-gesetz-in-israel/ . There is a classic constitutional court decision that is pertaining to this situation – the \Lüth case\. Lüth was a politician calling for a boycot of Harlan’s movies (the maker of the Nazi movie Jud Süß). You will wonder why a german court decision should interest you. It is not any court decision but THE text when it comes to freedom of speech, boycots and validity of constitutional law in the areas of civil law. It has been adopted around the world.

    I hope you don’t find it irritating that I write this to you. I really believe we share the exact same values but you overlook something here. And very far from saying that Israel is a fascist country I believe that this law represents a breech of the rule of law and democracy. That is nothing special for Israel- all democracies dish out anti constitutional laws regularly and if lucky they are remedied by constitutional courts (where such courts exist..).

    All the best
    Bearach

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