Making the unexceptional case for boycott
In this posting Jerry Haber, 1, responds to settler Samuel Lebens’ argument against boycotting settlement products, 2. Media release from Gush Shalom on Supreme Court hearing, 3. UPDATE JPost report of hearing, 4.
Demonstrators hold a placard urging the international community to take action against Israel’s settlement policy in the occupied territories as left-wing Israeli and foreign peace activists join Palestinians in a protest in the Arab east Jerusalem neighborhood of Sheikh Jarrah on November 04, 2009. Photo by Gali Tibbon/AFP/Getty Images.
By Jerry Haber, Open Zion
December 03, 2012
Samuel Lebens [see below] cites some familiar arguments against boycotting Israel in general, and boycotting settlers in particular: boycotts against Israel won’t bring about positive change but will only harden positions; constructive engagement has a better chance of winning hearts and minds; effective economic boycotts may actually constitute collective punishment; it is wrong to boycottt settles who are two-staters, etc.
I would like to make five points about these arguments.
First, their empirical basis is thin. One would expect Lebens to adduce evidence from other cases of state sanctions. This he does not do, substituting for data his own take on the Israeli situation. He does not respond to familiar arguments in support of boycotting Israel, as, for example, the argument that boycotts have a better chance of influencing policy in Israel than, say, in Iran, precisely because Israelis care deeply about their image as a Western style democracy. In Israel, even the most trivial artistic boycott is front page news and is used by progressive elements to make their case in the public sphere.
Second, his arguments seem to be directed against boycotts and sanctions in general. After all, it is hard to find a society that doesn’t have some decent people. Would he have opposed sanctions against Germany in the 1930s on the grounds that such sanctions would harden German attitudes, harm progressives, and constitute collective punishment of the German people? If he believes that boycotts are justifiable in some cases, he has to convince us why they are not justifiable in the specific case of Israel. And given his own position as a settler, his arguments cannot appear to be self-serving.
In fact, Lebens allows that some cases of collective punishment may be justified in order to avert a greater catastrophe (“World War III,” in the case of sanctions against Iran). He implies that the suffering of Palestinians under a long and often brutal occupation does not justify collective punishment of the Israelis, or of the settlers, despite the fact that most countries and legal authorities consider the settlements to be illegal. One comes away with the impression that Lebens is more concerned with the potential suffering of the settlers than with the actual suffering of the Palestinian natives caused by the presence of the settlements. That’s his right, but some arguments are needed.
Third, his arguments are what philosophers call “consequentialist,” i.e., they focus on evaluating the morality of acts in light of their consequences. But some acts may be required, or at least commendable, regardless of their results. Boycotts and sanctions can be merely symbolic, and in the case of Israel, they generally have been. The message underlying the call of the global Boycott Divestment and Sanctions movement, endorsed by elements of Palestinian civil society, is that Israel cannot be considered a decent society as long as it discriminates against Palestinians and denies them civil rights. The boycotters wish to deny Israel a place in the company of decent nations until civil equality for the Palestinian people is achieved and many see this as a required moral stance regardless of the consequences.
Fourth, Lebens’s claim that the boycotters are “underpinned by an almost unconscious anti-Semitism” because they rarely boycott any other country involves a leap of logic that I have examined elsewhere. The boycotters may have good reasons for singling out Israel for moral opprobrium—especially if they are Palestinian, who are directly affected by Israeli actions, or their supporters. There is no need for them to be concerned for all, or even more egregious, cases of injustice After all, isn’t Lebens principally concerned with what affects him as an Israeli settler?
And this brings me to my fifth point. Lebens seems to think that the settler boycott is wrong inter alia because it affects settlers like him who are decent two-staters and not “racist colonialists.” This is a familiar argument against boycotts and sanctions in general, and indeed, the argument was used by those who opposed sanctions in South Africa, which caused economic hardship not only to anti-apartheid whites but also to many blacks. Yet the reply to this is also well-known: the boycott is not directed against settlers as individuals, but against an oppressive Israeli occupation. Boycotts and sanctions, like workers’ strikes, make all sorts of people suffer. But that suffering may be justifiable in certain circumstances, and, in the long run, may actually benefit both Israelis and Palestinians, including settlers.
A final comment on boycott and engagement: the one need not exclude the other. People are complex, and winning people’s hearts and minds requires various strategies. I endorse the global BDS initiative as an act of solidarity with the Palestinian people, although I personally purchase items from Israel (when I live there, it’s hard not to) and generally oppose academic boycotts. How and when to implement a BDS strategy—where should there be boycotts, which companies should be divested from—are tactical issues that need to be discussed and weighed in light of competing principles. Unlike Israel, Palestinians have very few means by which they can advance their cause. If the goal is to win concessions from a hardline Israeli government, boycotts may be a less effective tactic than firing rockets or waging an intifada. But it is a non-violent tactic.
By Samuel Lebens, Open Zion
November 27, 2012
My first blog post for Open Zion caused a stir for this simple reason: I’m a settler, and Peter Beinart decided to publish my words anyway.
On Twitter, Beinart was roundly accused of contradiction: He ‘calls for a boycott on settlement products,’ yet he’s willing to ‘publish, [and] promote authors who are active in the settlement enterprise.’ By way of response, let me say a few quick words about boycotts.
There are four forms of boycott: (1) academic; (2) economic; (3) cultural; and (4) boycotts that only target the settlements.
Academic boycotts are the easiest to dismiss. A founding principle of academia is that all knowledge is valuable. I read the works of Gottlieb Frege despite his anti-Semitism. If a homophobe discovered a life-changing super-computer, we’d utilize, publish and disseminate his research. Research ethics should be respected, but if they were to be violated, we’d still utilize the findings: imagine the cure to cancer discovered via torture. Wisdom is independently valuable; it generally shouldn’t have to answer to other values.
As for economic boycotts, it’s a consumer’s right to support whomever she wants. But economic boycotts have their moral and pragmatic risks. Pragmatically, they’re likely to backfire. The fact that Israel has attracted the exclusive zeal of these boycotters only strengthens the Israeli right, who love the rhetoric of ‘Israel alone against an anti-Semitic world’—a rhetoric that leads to more and more regressive policies.
In the unlikely scenario that enough people were to boycott Israel so as to actually imperil its economy, we might begin to see radical changes in Israeli policy, but there would be an ethical price to pay. This scenario would constitute collective punishment, causing a whole population to languish in poverty until they elect a suitable government. Perhaps we should sometimes adopt such policies as the lesser of two evils. Iranian poverty, caused by economic sanctions, might be better than World War III, for instance. Nevertheless, the point remains: economic boycotts are unlikely to change Israeli policy; they are in fact likely to backfire; and, if they do work, they could only do so on the back of collective punishment.
Now to cultural boycotts: It can hardly be called collective punishment if Elvis Costello refuses to perform in Israel. Perhaps it’s an ethical and effective way of shaking up a population, as they find out that their heroes are not willing to visit their country. And perhaps Elvis Costello fans are much more likely to vote for left-wing parties as a result. But I doubt it. There is a general, if loose, correlation between appreciation for contemporary art and progressive politics. Perhaps Elvis Costello and other artists who boycott Israel only end up ‘harming’ their already progressive fans. Right-wing politicians and their supporters are very unlikely to be moved by cultural boycotts. Furthermore, a vibrant art scene is likely to produce more progressive thinking. So, cultural engagement is a better route to reforming a country than cultural boycotts.
Indeed, the Israelis who follow Arabic music are the sort who are more likely to sue for peace. These sorts of cultural exchanges should be encouraged. There’s also an ethical point to be made here. Each culture has something to share with the entire world. To limit cultural engagement at certain political borders is to dilute the purity of art.
I’ve written about settler-specific boycotts elsewhere. In a nutshell, my point is this. I’m a settler. I’m not a racist. I’m not a bigot. I’m in favor of the two-state solution. I live in a settlement routinely ceded to Israel by Palestinian negotiators, as do the majority of settlers.
Many settlers could be coaxed into voting more progressively if they could be convinced that their property will not be taken from them and that their security will be protected. These two things are consistent with Obama’s formula: 1967 borders with mutually agreed land swaps. Many settlers could be co-opted into the peace camp and become part of the solution rather than the problem. Alienating that population isn’t, in my opinion, the best way to agitate for change on the ground.
Unfortunately, most boycotters won’t be moved by these arguments. They’ve fallen into a sort of groupthink, very often underpinned by an almost unconscious anti-Semitism. After all, they rarely boycott any other country. Still, my message to them is this: My settler identity does not—as you and Beinart’s accuser seem to suggest—justify your desire to silence me.
So don’t boycott me. I can be part of the solution—if you’ll let me.
By Gush Shalom
December 04, 2012
“Boycotting settlement products is a democratic right and a legitimate expression of political views, which should not be outlawed”
On Wednesday, December 5, 2012 at 9:00 am, The Supreme Court in Jerusalem will hear the appeal filed by Gush Shalom against the “Boycott Law” which prohibits calling for a boycott of settlement products. The panel would be headed by Asher Grunis, President of the Supreme Court, and also include his colleagues Salim Jubran and Esther Hayut.
Gush Shalom will be represented by the attorneys Gaby Lasky, Neri Ramati and Limor Goldstein. They will ask the court to issue an order nisi, freeze the application of the law and preventing lawsuits against those calling for a boycott of the settlements, pending the end of the proceedings. They will also seek to transfer the appeal to a broader panel of judges, due to the basic constitutional issues involved.
The “Boycott Law”, passed in the Knesset a year and a half ago, allows the settlers and their supporters to file heavy claims for damages against anyone making a call for a boycott of settlement products. Likud Knesset Member Ze’ev Elkin presented this law as one of his main parliamentary achievements, in a propaganda disseminated recently during in the Likud primaries. In practice, however, not a single such damage claim has as yet been filed.
The Gush Shalom movement made a public call for a boycott of settlement products some ten years ago, and has published a detailed list of settlement products which its activists kept updating. At the time, settler leaders and right-wing Knesset Members made harsh statements against Gush Shalom.
And precisely after the law was passed in the Knesset, other groups made high profile calls for boycott of the settlements, including “Peace Now” which set up a Facebook page entitled “Prosecute me, I boycott settlement products.” Also peace activist Naftali Raz, editor of the online news site “On the Left Side” organized a petition signed by hundreds of people, making an explicit call to boycott settlement products. However, so far the settlers and their supporters did not take up the gauntlet.
“It’s probably not by chance that they do not start proceedings under this law, and neglect to go through the legal doors thrown wide open for them. They probably realize that attempting to attack peace activists through their pockets will work against them, and that even if they won in court they would lose in the court of public opinion,” says Adam Keller, Gush Shalom Spokesperson. “Nevertheless, this stain of anti-democratic legislation, violating the freedom of expression and of political activity, should be removed from the law books of the State of Israel. Individuals and organizations who consider the settlements to be illegal and immoral, constituting a serious threat to our future, have the right not to finance these settlements by buying their products. Those who wish to avoid buying settlement products are also entitled to do so in public and in an organized way.”
Keller added: “The boycott law created a situation of intolerable discrimination in Israeli law. Everybody may boycott anybody else – anybody but the settlers, who have immunity. It is allowed to boycott cottage cheese and other consumer goods in order to pressure producers to reduce their prices; such a boycott is praised – and rightly so – as an expression of civic involvement. Vegetarians and animal lovers may boycott fur or restaurants which serve meat, and observant Jews may boycott anyone who sells non-kosher food. Not only is this last permitted, but the Chief Rabbinate and City Rabbinates make generous use of public funds to run ads, publishing the names and addresses of shops and restaurants and urging the public not to go there – with the express purpose of hurting the livelihood of the owners and force them to follow every dictate of the religious establishment. Boycotts of all types and kinds are allowed by law – except for advocating a boycott of the settlements. We hope that the Court is will declare this blatant discrimination an unacceptable undermining of the foundations of democracy. ”
“This court session, on a date set a long time ago, takes place just as the settlements issue gets to the top headlines, not only in Israel but throughout the world. Right now, this issue causes a serious diplomatic crisis between Israel and the European countries of whose support Netanyahu boasted just two weeks ago. Since 1967, the issue of the settlements determinee to a great degree whether we will live in peace or at war, and in that also defining the conditions for any socio-economic policy, and what resources would be available for this.”
Adam Keller, Gush Shalom Spokesperson 054-2340749
Adv. Gaby Lasky 054-4418988
Adv. Nery Ramati 050-8648854
Court asks the Knesset legal advisor: How can you defend law you yourself “almost killed?”
By Yonah Jeremy Bob, JPost
December 05, 2012
The High Court of Justice on Wednesday heard petitions filed to strike down the “Anti-Boycott Law” as a violation of the fundamental right to freedom of expression.
Although there was a break in the proceedings after the lawyers had finished arguing, leading to speculation that there might be an on-the-spot decision, the court temporarily deferred the decision.
Deferred decisions at an initial hearing generally mean that the court wants to carefully craft its opinion or there is a lack of consensus among the justices and they want more time to study the issue.
The Anti-Boycott Law was passed in July 2011 and imposes sanctions on any individual or entity that calls for an economic boycott of Israeli settlements in the West Bank or of Israel itself.
The law was passed after the decision of several prominent Israeli artists not to appear or perform in settlements in the West Bank as an act of protest “against the occupation.”
It allows entities to win compensation in civil courts from individuals or organizations who have called for a boycott, with controversial provisions regarding the level of proof needed for damages to be awarded.
The petitioners, including Gush Shalom, Adalah: The Legal Center for Arab Minority Rights in Israel, the Association for Civil Rights in Israel and many others, claimed that the law essentially does not require proving actual damages have occurred at all.
The law also empowers the finance minister to impose financial penalties, including the removal of tax exceptions, on NGOs that call for a boycott.
At the time the law was passed, Knesset legal adviser Eyal Yinon warned the Knesset plenum that the legislation was “borderline illegal” since it could violate freedom of political expression.
Even Attorney-General Yehuda Weinstein reportedly called it “borderline” defensible and admitted in defending the law that it had serious problems.
Weinstein’s main argument for not striking it down was that the law has never been used – as opposed to making any positive legal arguments in its favor.
At Wednesday’s hearing, Yinon partially reversed himself, formally defending the law on behalf of the Knesset.
Yet his defense was at most lukewarm.
The court questioned him sharply how he could defend the law when he himself had “almost killed” the law.
Yinon responded that he still disagreed with the law and thought it should have been drafted differently, but that ultimately he had to defer to the Knesset, which was not bound even by his opinion as legal adviser.
According to Yinon, once the Knesset had voted, his job was to represent it.
He even noted that they had considered not appearing at the hearing and asking the Knesset to hire outside counsel, but eventually decided against that.
Moving beyond the idea of the law and making an argument that the law’s sanctions were proportionate, Yinon noted that boycotters were merely being faced with financial sanctions like the financial costs they were trying to place on settlers.
He also said that though there might be a chilling effect by the law’s existence, the very existence of boycotts could be said to automatically damage the livelihood of the settlers.
The Legal Forum for Israel joined the case as an interested party and commented that the court has limited freedom of expression where such expression would lead to intolerance, arguing that a boycott was an inherently intolerant act.
Responding to the state’s argument that it was premature to judge the law when no lawsuits had been filed or fines issued, the petitioners said the law has had a widespread chilling effect on freedom of expression, as many groups are afraid of the possibility of being sued.
The problem with the law, said one of the petitioners’ attorneys, Gabi Lasky, was not the number of lawsuits or the size of the fines that might occur in the future, but the idea that they could occur at all against an activity that just exercises freedom of expression.
The petitioners added that the law is completely different from the sanctions on the call for illegal and criminal actions, such as incitement to violence and disobedience.
According to the petitioners, the boycott law “imposes sanctions on the call for a boycott itself, although both the call for a boycott and actual boycott actions are unequivocally legal.” The petitioners highlighted articles 3-4 of the law, which they said “grant politicians great powers for harassing public institutions, including civil society organizations, on account of their political expressions.”
Essentially, the petitioners said the law strikes at the heart of the ability to exercise political expression on a political issue at the core of the country’s peace and security debate.
Also, the petitioners noted that the law was not protecting a minority, the settlers, from the tyranny of the majority.
Rather, the law was empowering the settlers at the expense of another political minority, those members of the Left advocating boycotts of the settlements.
To try to portray the law as unreasonable, one of the petitioners’ attorneys asked rhetorically if a lawsuit could be filed against someone for opposing the recognition of Ariel University Center as a university, at a time when the Defense Ministry still has not approved the change.
The court questioned the petitioners about why this law was different than the “Nakba Law.”
The Nakba Law empowered the state to withhold public funds from institutions that mark the founding of the State of Israel as a day of mourning and, so far, was upheld by the court on the grounds that the state has never used the law.
The petitioners said that sanctioning the commemoration of the Nakba limited only particular conduct on a particular day and only to institutions, whereas the Anti-Boycott Law chilled and restricted an entire area of political speech and conduct on a core issue of debate in the public sphere year-round.
They also added that this law was different because it required “offenders” to be brought before the courts for hearings and litigation, whereas the Nakba Law only involved the state making an administrative decision without being compelled to come to court.
The law’s main supporters are NGOs associated with the settlements and politicians on the Right, although Prime Minister Binyamin Netanyahu absented himself from the vote on the law.
The case is being heard by Supreme Court President Asher D. Grunis as well as Justices Esther Hayut and Salim Joubran.