Will American Zionists be sued for urging a boycott of Israeli settlements?

This article first appeared in Haaretz 4/29/15

There has been a long running debate within the Jewish pro-Israel community in the Diaspora about how to best deal with BDS. One argument states that you must reject BDS in any form or format. Boycott of settlements is just a slippery slope to boycotting Israel and therefore everything from labeling products to identifying settlement companies should be opposed.

The other, often used by the Zionist left, states that the best way to deal with BDS is to demonstrate the utility of the tactic when it comes to settlements and draw a clear line between Zionist BDS (to borrow a phrase from Peter Beinart) and the general BDS movement, whose demand of a full right of return and ambiguity on what solution they are seeking threaten Zionism itself.

When the pro-Israel Jewish community established its red lines, support of BDS was the litmus test. The uncertainty around these red lines boiled down to this: Can one support a settlement boycott and still be part of the pro-Israel community?

In America this debate is played out every year in the Israel Parade in New York, when the Jewish Community Relations Council deals with the pro-Israel right’s attempts to ban the pro-Israel left from marching. The right claims that the left’s support for a boycott of the settlements means it should not be allowed to take part.

This month, Israel’s High Court of Justice upheld the “Anti-Boycott Law” and codified that BDS is an all-or-nothing enterprise. Israel’s finance minister now has the ability to punish entities that call for a boycott of the settlements. In addition, individuals can be liable for damages caused by their call for boycott, be that of settlements or Israel “proper.”

In practice, this means that if you have some 50,000 followers on Facebook and Twitter and you write a status that says that you encourage your friends not to buy wine produced in the settlements, you could be liable for damages that the vineyard could bring against you, if they can show they lost a sale.

The more effective your call is, the more liable you could be.

It’s not clear how much this will affect foreign nationals at this point, but the court decision has legislated an end to the debate within the pro-Israel community. BDS is now an all-or-nothing enterprise, an approach that maintains that there is no difference between the West Bank settlement of Mevo Dotan and Tel Aviv. This is the argument that settler groups have always maintained. Those in the BDS community who also argue that the Green Line is a false distinction join them.

The new all-or-nothing approach is further strengthened by pending Congressional legislation that also links boycott of Israeli settlements to the general BDS movement. The amendment to the customs act would punish corporations and trade partners who support a boycott of Israel or “any of its territories.”

The result of the High Court decision is that one can call for a boycott of a business for unfair labor practices, environmental issues, gender or social statements by business owners or a whole other host of reasons. But calling for a boycott based on the location of the business could cause an NGO to lose its non-profit status.

The High Court’s ruling means that non-profits and individuals no longer have the freedom to express their views on this existential issue for Israel without significant legal and financial ramifications.

It will be interesting to see if prominent left-wing Diaspora Jews, like Peter Beinart and others could be ordered to appear before an Israeli court to pay damages for their activism.

What is for sure, is that the application of this law will further tear apart the pro-Israel community and force people into polemical positions; Israel right or wrong, or support real pressure to get Israel to change course. The ongoing debate within the Diaspora of how one can express their disagreement with Israeli settlement policy has just been severely restricted.

Much like the results of the Israeli election, these legislative moves in Jerusalem, and potentially in Washington, help destroy a complex relationship between the Jewish Diaspora and the Jewish state by forcing people into abject support or rejection of Israel. With a new narrow right-wing government on the horizon in Israel, this will continue to erode U.S. bipartisan support and damage Israel’s most strategic asset.

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