Boycotting bodies that boycott settlements


May 26, 2015
Sarah Benton

Credit here due to technical problems:Home page Photo of olives at the illegal settlement of Shiloh by Moti Milrod

This posting has 4 items:
1) FMEP: Using “Anti-BDS” Laws To Protect Israeli Settlements, Mitchell Plitnick in Forum for Middle East Policy;
2) Tikun Olam: Aipac Wants Congress to Criminalize BDS, Richard Silverstein interprets the bill;
3) Times of Israel: As Illinois quashes Israel boycotts, some see watershed in fight against BDS;
4) Notes and Links on the ICC, thoughts of Eugene Kontorovich, Illinois procurement bill;


From the Fighting BDS Facebook page

Using “Anti-BDS” Laws To Protect Israeli Settlements

Mitchell Plitnick, FMEP
May 21, 2015

In the wake of the collapse of the last round of Israeli-Palestinian talks last April, it’s become widely accepted that the continuing growth of Israeli settlements is a key obstacle to an agreement. This has created difficulties for those inclined to support the Israeli government’s ability to do whatever it wants. One way to make it easier to defend the settlements and the occupation that sustains them is to obscure the difference between them and Israel proper. As I wrote last month, a method that lobbyists like the American-Israel Public Affairs Committee (AIPAC) have been employing lately to accomplish that is to target the Boycott, Divestment, and Sanctions movement (BDS).

Several recent pieces of legislation demonstrate how this is accomplished. In Illinois, a bill prohibiting Illinois from contracting with businesses that are boycotting Israel passed unanimously in both the State Legislature and Senate. The language of the bill specifically includes “territories controlled by the State of Israel” – that is, territories occupied by Israel after the 1967 war, which no country in the world, including the U.S., recognizes as part of Israel.

In Congress, amendments to the bills that would give the President the power to negotiate the Trans-Pacific Partnership trade deal without public scrutiny (called “fast track”) require the President to make combatting any boycotts of Israel a principle trade objective and would require the President to report to Congress on any businesses that are participating in such boycotts. These amendments also specifically include “territories controlled by Israel.”

In both cases, the legislation does little if anything to protect Israel’s legitimacy. Rather, they extend existing American protection to Israel’s settlements, treating them as if they were a part of Israel for the first time in American history.

It is important to recall that US law already protects Israel against boycotts started by foreign governments. The Export Administration Act of 1979 and the Ribicoff Amendment to the Tax Reform Act of 1976 were enacted to protect Israel from the Arab League boycott against it. The Illinois law extends this protection in a small way, to encompass any boycotts against Israel, whether initiated by governments or civil society. The amendments in Congress, by contrast, change nothing with regard to boycotts of the internationally recognized State of Israel.

The real effect of those amendments and the major effect of the Illinois law as well, actually has nothing to do with any boycotts of Israel, whether by Arab states or activists. The upshot of all of these measures is that, for the first time, the United States is treating the settlements as if they were part of Israel. At no time has the United States ever implied any recognition of Israeli sovereignty over any territory it occupied in 1967. Even Israel’s annexations of the Golan Heights and East Jerusalem have never been recognized by the United States.

Promulgating bills purported to be opposing BDS is a clever way to disguise what is, in reality, an effort to affect a major shift in American policy toward the settlements. Admittedly, it is a slower way to change that policy, and one must point out that the Illinois law clearly does have some, albeit small, influence on potential BDS activities. There can be no doubt, however, that when the dust settles and politicians look back on what they did here, the one and perhaps only effect that will stand out will be setting a precedent for treating the settlements as a part of Israel.


Eugene Kontorovich

Here, it is instructive to examine a post by Eugene Kontorovich at the Volokh Conspiracy celebrating these new laws. Kontorovich, who is one of a microscopic number of international law experts who defend the legality of Israel’s settlement program, wastes no time in capitalizing on the dual nature of the bills. He immediately blurs the very crucial distinction between European economic actions directed entirely at Israel’s settlements, and some civil society BDS actions that take aim at Israel more generally.

Kontorovich derides European concerns about the economic and legal risks of doing business with the settlements, calling them legally groundless. He does not expand on this point; perhaps a sign that he knows it is easily assailable. In fact, there are serious issues for firms that are considering doing business with or in the settlements.

The overwhelming opinion of both international law scholars is that Israel’s settlements are illegal and violate the Fourth Geneva Convention, which forbids an occupying power from transferring its own citizens into occupied territory. As a result, the European Union and a number of European countries have passed laws that exclude settlement products from favourable import laws that Israel is entitled to as an associate of the EU or has worked out in trade agreements.

Europe has never really enforced those laws, but this could be changing, and that is what has Kontorovich and his ilk concerned. A recent trade deal between the EU and Israel became controversial due to provisions that barred any dealings with the settlements. The EU is also considering enforcing its laws about labelling products that come from the settlements, and thus distinguishing between them and Israeli products.

Crucially, Kontorovich describes these measures, and European warnings to businesses about them, as actions and warnings against “Israeli companies,” and this is again part of the agenda of blurring the distinction between Israel and the settlements. Kontorovich then moves into a general attack on the global BDS movement.

By melding his arguments against European measures and those of the BDS movement, Kontorovich lumps all economic action together, without distinguishing between actions directed at Israel and those directed at the occupation. This can hardly be seen as accidental; virtually every major move by businesses, governments, churches or any other entity that could have even the slightest economic effect on Israel has been scrupulously directed solely at Israel’s settlements and its ongoing occupation. That holds whether those actions have included any involvement of the global BDS movement or not.

Indeed, Kontorovich hardly stands alone in this. Boycotts or divestment proposals directed solely at the settlements and the occupation are routinely called “anti-Israel” and described, wholly inaccurately, as being directed against Israel.
Kontorovich also employs the disingenuous comparison of the BDS movement’s actions to the Arab League boycott of Israel. A group of governments, however, took that action, and as such, it is appropriate for another government to act to counter it. Economic movements from civil society, by contrast, are one of the few non-violent paths that groups of citizens have to affect policy. It is well established as protected speech under the United States Constitution and cannot be compared to the actions of foreign governments. Kontorovich surely knows this, but chooses, unsurprisingly, not to address it.

That protection of civil society boycott must hold, whether or not the boycott is popular. The global BDS movement is certainly a flashpoint, and clearly, parts of it are distinctly anti-Zionist, often to an extreme, and reject the very concept of a two-state solution. While such attitudes are not universal in that movement, it is certainly fair to say that for many in the pro-Israel community, those views characterize the movement as a whole.

That, however, should not mean that our government should act against a boycott movement. Kontorovich is essentially correct in one of his statements: “the message of the BDS movement…is fundamentally rejected by the vast majority of Americans.” If that is the case, however, that argues AGAINST such legislation, not for it. To legislate against a well-established aspect of free speech should require an extraordinary threat. Yet Israel’s popularity in the United States certainly guarantees, at least for the immediate future, that Israeli products and services will continue to sell in the American market.

It is worth asking, however, how much impact it would have if, someday, the United States also chose to differentiate between settlement products and actual Israeli ones. Aside from the friendly trade deals that settlement products would not qualify for, might people be less inclined to buy products from settlements, which are much less popular than Israel, if they could tell the difference between them and Israeli ones?

Perhaps that is what really concerns Kontorovich, as well as AIPAC, which has been pushing this legislation. The BDS movement has had very little impact, to date, on Israel’s economy. Just to cite one example, one of the biggest victories they were involved in, the decision by the Presbyterian Church, USA (PCUSA) to divest from several companies they viewed as helping to support the occupation, exclusively targeted settlements. Moreover, PCUSA specifically stated that this was done based on its own initiative, and not as a part of the BDS movement.

Kontorovich’s arguments, and AIPAC’s legislation, raise a very fundamental question about restricting free speech. Is the United States willing to restrict free speech, albeit speech that is not very popular, when that speech is directed at another, allied country when the speech has clearly posed no material threat to that country? Is our standard for dangerous speech that low?


AIPAC’s 2013 policy conference, Shaping Tomorrow Together.

It also raises a key question related to American policy in the Israel-Palestine conflict. That question is whether the United States regards the settlements as part of Israel. Do we, in fact, agree with the most radical anti-Zionists and the most radical settlers, both of whom make no distinction between the settlements and the actual state of Israel?
More to the point, are we willing to stigmatize, penalize and perhaps someday even outlaw initiatives by many civil society groups, including many that are profoundly pro-Israel, that seek to end Israel’s occupation, reverse the settlement program and finally reach a two-state agreement?

Ultimately, Kontorovich and AIPAC are working with their arguments and legislation against those things. By hiding protection of settlements in language that seems to be defending Israel, they are moving that agenda forward. It’s important that this disingenuousness is exposed and people understand what they are really being asked to support.



Aipac Wants Congress to Criminalize BDS

By Richard Silverstein, Tikun Olam
May 14, 2015

Of all the lame-brained, lumpen-brained, hare-brained schemes emanating from Aipac’s lobby shop, this is one of the truly lamest. As Israel forms the most dangerous, aggressive, racist government in its history, Aipac thought this was a good time to remind the American people of that by conniving to amend an already contentious fast-track trade bill with a new amendment that would criminalize BDS in the U.S. The specific language seeks:

To discourage politically motivated actions to boycott, divest from, or sanction Israel and seek the elimination of politically motivated non-tariff barriers on Israeli goods, services, or other commerce imposed on the State of Israel…

[This] means actions by states, non-member states of the United Nations, international organizations, or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or…in Israeli-controlled territories.

What interesting about this language is that it outlaws both BDS and BDS-lite. Even liberal Zionists like Peter Beinart and Peace Now support a boycott of products from settlements, though they do not support boycotting products from within the Green Line. The Lobby-written bill would even criminalize the much softer version of BDS.

The amendment is designed to pressure the EU, which is negotiating a U.S.-Transatlantic trade deal, to drop consideration of its own planned version of BDS, which would sanction commerce with Israeli settlements.

This amendment is similar to a law already passed by the Israeli Knesset, a body not known for cherishing free speech rights or democratic values. It too outlawed support for BDS inside Israel in such a way that long-time supporters of BDS like Prof. Neve Gordon feel their hands are shackled and lips sealed shut by such legislation. As if this wasn’t bad enough, Aipac wants to do it to ya here in the U.S.

The fast track legislation sought by Pres. Obama and supported by most Republicans is already fraught with conflict over the usual issues confronting Democrats when they approach foreign trade pacts: how to protect American jobs and grant protections to foreign workers who will be making the products imported to this country.

To add even more contention to the process seems, well spiteful. It’s almost as if the Lobby was taking revenge on Obama for championing a different matter it detests: the Iran nuclear deal. Aipac knows the fast-track legislation is a hallmark of the President’s last term. He wants it bad. The Lobby figures if it can tank this bill, it may gain some leverage or clout in torpedoing the Iran deal as well.


Might these young people lose their right to free speech? And if they (in San Francisco, April 2011) belonged to an organisation would that organisation be made unable to function? Photo by dignidadrebelde / Flickr

Let’s get to another small matter of the legal status of BDS. Boycotts are hallowed practices in Anglo-American democracy. The Montgomery Bus Boycott sparked the civil rights movement. In the 1980s and 90s, the South African divestment movement pressured that country to end apartheid.

There have been legal rulings on the issue as well. Here in Seattle, the Israeli government and StandWithUs brought suit against the Olympia Food Co-op for eliminating nine Israeli products from its shelves. That case ended in defeat for the plaintiffs. The Lobby appealed it all the way to the Washington State Supreme Court and lost there as well.

Despite what Lobby legal “scholars” will tell you, there is no jurisprudence supporting their point of view. BDS is a free speech issue as it relates directly to political speech, a protected category under the Constitution. It has nothing to do with commercial disputes or boycotts related to such matters.

Americans: write, call or e-mail your Congressional representatives. This is a hare-brained scheme. Tell them not to embarrass themselves and Congress as an institution by proposing legislation that is fundamentally unsound, prejudicial and in violation of the Bill of Rights.



As Illinois quashes Israel boycotts, some see watershed in fight against BDS

A day after landmark legislation passes Illinois legislature, pro-Israel activists say winning formula can work in other states

By Rebecca Shimoni Stoil, Times of Israel
May 19, 2015

WASHINGTON — The passage of a landmark bill against Israel boycotts in the Illinois legislature Monday will likely serve as a turning point for ensuing attempts at the state level to combat efforts to delegitimize Israel, opponents of the BDS movement said Tuesday.

The groundbreaking Illinois legislation, passed unanimously by the house and senate, provided a workable model that is already being examined by opponents of the Boycott, Divestment and Sanctions movement targeting Israel in other states.

“We are already hearing from students from campus who are interested in pursuing similar efforts in other states. This will inspire similar pro-Israel activism through the legislatures,” said Jacob Baime, executive director of the Israel on Campus Coalition, an organization deeply involved in supporting the Illinois initiative. “Illinois has shown that states have the ability to stand up and reject the shameful BDS movement.”

The Illinois legislation will prevent the state’s pension fund from investing in companies that boycott Israel. Gov. Bruce Rauner has already pledged to sign the bill, the first of its kind to be enacted in the United States.

“I expect to see this strategy replicated in other states,” continued Baime, whose organization is among those at the forefront of combating pro-BDS activism on campuses. “This legislation attaches a cost to engaging in behavior that is contrary to America’s interest and America’s support for peace in the Middle East. This is a strategy we’re likely to see more of.”

Earlier attempts at legislating against BDS proved unsuccessful at both the national and state levels. Bills in Congress, as well as in Maryland and New York foundered against critiques that they limited academic freedom and individuals’ right to free speech.

“Because of Illinois it will be easy for other states to pick it up,” said Peggy Shapiro, StandWithUs’s Midwest director. “The legal research here is meticulous. It in no way denies anyone freedom of speech or expression, but is based on the same rationale as when the US decided in the 1970s during the Arab oil embargo against Israel that the US will not go along with the destruction of an ally. Other states can follow suit easily and I hope that many will.”

Shapiro noted that the bill’s passage defied the partisanship that has racked the Illinois legislature.

“The fact that it passed in Illinois showed that it is not a partisan, right-wing or left-wing issue,” she said. “Illinois is a solidly blue state and some of the most progressive voices were supportive on this issue. The fact that it came from a legislature that is passionately divided on these issues, makes it clear that it is the right move to make.”

Illinois has been a focal point in recent BDS-related activity. Chicago’s DePaul University was at the vanguard, passing a pioneering campus-wide BDS referendum in 2014. The referendum strategy was attempted at another seven universities in the recent academic year, although only DePaul’s passed.

According to data gathered by the Israel on Campus Coalition, there have been 136 unique instances of anti-Israel activity on 11 Illinois campuses in comparison to 122 in the previous year.

The Midwest region, the organization noted, has seen a sharp increase in anti-Israel activism that exceeds the national average. Data gathered by the ICC indicates that Chicago has become an important hub for anti-Israel activity – a nerve centre alongside New York, Boston and San Francisco which transmits waves of influence to other areas through tactical know-how and financial support.

The Illinois legislation came after Tennessee and Indiana adopted resolutions, though not laws, opposing BDS.

In early April, Tennessee became the first state legislature to pass a resolution condemning BDS. The General Assembly’s resolution condemned both the BDS movement as well as the worldwide increase in anti-Semitism.

The resolution tied the two together, describing the BDS movement as “one of the main vehicles for spreading anti-Semitism and advocating the elimination of the Jewish state,” and saying that BDS seeks to “undermine the Jewish people’s right to self-determination, which they are fulfilling in the State of Israel.”

In late April, the United States Congress also passed carefully crafted legislation to discourage European Boycotts of Israel, tying it to negotiations over a historic trade deal with the EU.

The amendment discourages BDS actions by marking efforts to combat anti-Israel activity as a principal objective for US envoys in the talks with Europe to the authorization for negotiations on the Transatlantic Trade and Investment Partnership.

In addition to intense campaigning by BDS opponents, pro-BDS groups mobilized supporters to campaign against the legislation.

Before the bill’s passage, pro-BDS American Muslims for Palestine warned that the legislation “could have a hugely negative impact on the Boycott, Divestment and Sanctions movement.”

The organization complained that the bill would “punish companies that protest Israel’s human rights and international law violations.”

“Apologists for Israel’s abuses are so desperate, they’re even willing to politicize our pension system to stop the boycott,” the organization complained in a message to supporters. “If the bill gets out of committee and passes, Illinois retirement systems will have to spend valuable resources to blacklist and withdraw investments from companies that choose not to do business with Israeli companies — including those based in the Occupied Palestinian territories — because of Israel’s treatment of Palestinians.”


Notes

Israel on Campus Coalition

From Wikipedia

The Israel on Campus Coalition is a pro-Israel umbrella organization

founded in 2002 under the auspices of Hillel: The Foundation for Jewish Campus Life. The organization was created in order “to evaluate the worrisome rise in anti-Israel activities on college campuses across North America” and “serves as the central coordinating and strategic body to address campus issues and intelligently impact a pro-active, pro-Israel agenda on campus.”

The ICC comprises 33 organizations “committed to a pro-active, pro-Israel agenda on college campuses”.

It’s not the Occupation, Stupid
December 18, 2013
Why Israel’s Democracy is not Endangered by the Lack of Peace

Quotes from essay by Eugene Kontorovich in Commentary, ‘Israel, Palestine, and Democracy’.

Amendments to the Illinois Procurement Code.

Statutes Amended In Order of Appearance
30 ILCS 500/50-36.5 new
40 ILCS 5/1-110.16 new

Synopsis As Introduced
Amends the Illinois Procurement Code. Prohibits a State agency from entering into a contract subject to the Code with a business that boycotts Israel. Amends the General Provisions Article of the Illinois Pension Code. Requires each of the 5 State-funded retirement systems (or the Illinois State Board of Investment where applicable) to make its best efforts to identify all companies that boycott Israel in which it has direct or indirect holdings and, under certain circumstances, to divest itself of holdings in those companies.

Senate Committee Amendment No. 1
In a provision that requires each retirement system to file a report that includes a list of companies that boycott Israel, requires the report to be filed with the Public Pension Division of the Department of Insurance (instead of the Public Pension Division of the Department of Financial and Professional Regulation).

Senate Floor Amendment No. 3
Deletes reference to:
30 ILCS 500/50-36.5 new

Replaces everything after the enacting clause. Amends the General Provisions Article of the Illinois Pension Code. Establishes the Illinois Investment Policy Board. Requires the Illinois Investment Policy Board, by April 1, 2016, to make its best efforts to identify all Iran-restricted companies, Sudan-restricted companies, and companies that boycott Israel and to assemble those identified companies into a list of restricted companies. Defines “Iran-restricted company”, “Sudan-restricted company”, “company that boycotts Israel”, and “restricted companies”. Requires the Illinois Investment Policy Board to review the list of restricted companies on a quarterly basis. Requires State-funded retirement systems and the Illinois Board of Investment to identify restricted companies in which it owns either direct holdings or indirect holdings and, under certain circumstances, to divest from those restricted companies. Prohibits State-funded retirement systems and the Illinois Board of Investment from acquiring securities of restricted companies. Provides that the cost associated with the activities of the Illinois Investment Policy Board shall be borne by the boards of each pension fund or investment board created under the State Universities, Downstate Teachers, or Investment Board Article. Provides that actions taken in compliance with the amendatory Act are exempt from any conflicting statutory or common law obligations, including fiduciary duties. Provides that beginning January 1, 2016, certain Sections of the Code that prohibit investment in certain companies that do business with the Government of Iran and the Republic of the Sudan shall be administered in accordance with the amendatory Act. Contains a statement of legislative intent. Contains a severability clause. Makes other changes. Effective immediately.

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