What legal tools are available to fight BDS?
Feb 1, 2022 | Naomi Levin
The Boycott, Divestment and Sanctions (BDS) movement against Israel seeks to convince – or pressure – individuals, organisations and corporations around the world to cancel all commercial, cultural, academic and other ties with Israel and Israelis.
Officially, BDS advocates argue that these actions will, according to the BDS Australia website, “pressure the State of Israel to end the illegal occupation of the West Bank and East Jerusalem and the blockade of Gaza, to allow the internationally recognised right of return to Palestinian refugees to the land and homes from which Israel forcibly expelled them in 1948; and to ensure equal rights for all Palestinians living in Israel according to international law.”
Many BDS advocates are adamant their cause is not a call for the elimination of Israel and is not antisemitic. Yet if just one of their demands came about – implementation of the legally-baseless and historically unprecedented right of return for all Palestinians to Israel – Israeli Jews would be forced into minority status in their own country.
It is also hard to take these claims seriously when the movement’s co-founder, Omar Barghouti, has openly said he is seeking to eliminate a Jewish state – as have other leading BDS adherents.
Following attempts by a group of BDS activists to bully the Sydney Festival board into rejecting sponsorship from the Israeli Embassy for a dance performance – sponsorship the festival itself sought – some have suggested that Australia needs new laws to limit the discriminatory effects of BDS campaigns.
While Australian political leaders from both the Coalition and Labor – as well as the Greens – have expressed public opposition to the BDS movement, Australia has no legal tools in place specifically to deal with such boycotts.
This report looks at selected jurisdictions and the legislation and policies they have implemented to address the discriminatory effects of BDS campaigns.
Attempts to legislate some form of anti-BDS law at a federal level in the United States have been unsuccessful. However, 35 of the 50 US states, representing both sides of politics, have passed laws regulating BDS.
Professor Eugene Kontorovich, a legal expert at George Mason University, explained the nature of these laws:
“What these laws typically say is they do not ban anyone from boycotting Israel, they do not require anyone to support Israel, they do not, in any way, restrict criticism of Israel, but they are based on the understanding that boycotts of Israel are a form of discrimination, which is a proxy often for antisemitic discrimination.
The notion of not doing business with people, simply because they are Jewish Israelis or Israelis is a form of bigotry because it determines your actions towards people, not based on what they’ve done, but what group they belong to.
So 26 states [ed: now 35] have said a company is free to boycott Israel, a company is free to not do business with Israeli companies, but if it chooses not to do business with Israelis, as a matter of boycott, then we, the state, will not do business with that company.”
By December 2021, at least seven US states had utilised their anti-boycott laws to respond to a 2021 decision by food giant Unilever, owner of Ben & Jerry’s, to fire its Israeli distributor as part of a new policy to stop selling ice cream in the West Bank, which the company said was “inconsistent with our values.”
In these states, state-held pension funds divested from Unilever shares. The Israeli business publication Globes noted that New York state’s pension fund alone held US$100 million worth of Unilever stocks. Unilever’s company value has reportedly fallen by some US$28 billion since the Ben & Jerry’s decision was announced (although not all that fall can be attributed to backlash against the boycott decision).
While there is no federal legislation, a resolution did pass the US House of Representatives in 2019 criticising and condemning the BDS movement, saying it “is not about promoting coexistence, civil rights, and political reconciliation but about questioning and undermining the very legitimacy of [Israel] and its people.”
In 2019, UK Prime Minister Boris Johnson announced he would “stop public bodies from taking it upon themselves to boycott goods from other countries to develop their own pseudo foreign policy against a country which with nauseating frequency turns out to be Israel.” This statement followed by three years a UK Government procurement policy, which detailed that “public procurement should never be used as a tool to boycott tenders from suppliers based in other countries, except where formal legal sanctions, embargoes and restrictions have been put in place by the UK Government.”
Similar guidelines were introduced in 2017 by then Communities Secretary Sajid Javid to prevent local councils from boycotting companies and countries contrary to the UK Government’s own position. Javid said BDS-inspired boycotts “have led to the removal of kosher food from the shelves of supermarkets, or calls for Jewish films to be banned.”
These plans came unstuck, however, when the Palestine Solidarity Campaign challenged the anti-boycott guidance in the Supreme Court. A three-to-two majority ruled in 2020 that Javid did not have the power to regulate local council procurement and investing.
Media reports say that Johnson and Javid’s Conservative Party still stands by its 2019 pledge to eventually introduce formal anti-BDS laws.
While it is not a BDS-specific legal framework, a section of France’s anti-discrimination law, called the Lellouche Law, extends anti-racism laws to those who discriminate against specific countries. Some have claimed that France’s willingness to apply the Lellouche Law – charges have been applied against French boycotters of Israel – demonstrates France is leading the global movement against BDS. The Lellouche Law was challenged in France’s highest appellate court, the Court of Cassation, and upheld.
However, others claim the Lellouche Law is an attack on free speech – a claim supported, in one case, by the European Union’s Court of Human Rights (ECHM). In 2020, the ECHM cancelled the Court of Cassation’s conviction of 11 BDS activists, saying its ruling had violated their freedom of expression, and ordered France to pay compensation.
Germany and Austria
While Germany does not have laws affecting boycotts of Israel, in 2019 the Bundestag issued a strong statement on the nature of the BDS movement.
The non-binding resolution, submitted by a coalition of parties including Germany’s Greens, labelled BDS as “antisemitic” and noted that attempts by BDS activists to place “don’t buy” stickers on Israeli goods “remind us of the most terrible phase of German history … [and] inevitably kindle memories of the Nazi ‘kauf nicht bei Juden’(don’t buy from Jews).”
The Austrian National Council, the lower house of the Austrian parliament, adopted a similar resolution condemning BDS as antisemitic in Feb. 2020.
There is no single approach to legislating to limit boycotts of other countries. While measures have been undertaken in North America and Europe to do so, challenges against such legislation have been frequent. The above examples need to be reviewed if anti-BDS legislation is considered for Australia.