A plea to save Israeli democracy

Those of you who were following this blog regularly would have noticed that I haven’t posted anything for a few weeks. This is because I found another outlet for most of the stuff that I was putting here, so I had no need for this site anymore.

That said, there is something that I need to write, and it cannot go in my regular forum. Therefore, I will use this site to publish it.

For those that are unaware (which hopefully is not many), the Israeli Knesset yesterday passed an anti-boycott bill. The best opinion piece that I’ve read on this piece was the editorial in The Jerusalem Post. It rightly criticises the boycotters vehemently, but notes that this is far from the correct way to go about combating them:

The bad boycott bill – JPost – Opinion – Editorials

Legislation that infringes freedom of expression is not the way to battle the local BDS movement. Boycott initiatives should be allowed to compete for support in the free market of ideas. Judging from the minuscule backing BDS receives locally, we can rest assured that reason will continue to win out.

Attempts to legitimize Jewish presence in Judea, Samaria and Jerusalem through the stifling of criticism may just achieve the opposite, by providing BDS proponents with a truly worthy cause to champion – their own right to freedom of expression.

I will go into more detail on this bill shortly, but first I am going to say this for the record, and if you don’t believe me, please feel free to type “BDS” into the search field to your right and see for yourself:

I am completely and totally against BDS, or any other boycott of Israel.

BDS is a disgusting, racist policy that denies Jewish peoplehood and the Jewish right to self-determination. It apportions all of the blame for the Palestinians’ suffering on Israel – completely overlooking any culpability held by the Palestinian leadership, the Arab states or the international community. It makes disgusting, offensive and unfounded comparisons between Israel and Apartheid South Africa and even, on occasion, Israel and Nazi Germany. It undermines the suffering of people who truly lived through Apartheid and it practically spits in the faces of the victims of genocide, a crime that has been all too real in Sri Lanka, Bosnia, Somalia, Sudan, Rwanda and Cambodia while these self-proclaimed “humanitarians” have been shouting at Israel and turning their backs to the true criminals of the world.

BDS is an insidious attempt to destroy the Israeli state and create an Arab-majority state in its place. Its founders have made the amoral and reprehensible decision to use the language of Western human rights and democracy to push what is a truly anti-democratic and racist policy and then they have the gall to claim to be helping Palestinians, when in actual fact they are pursuing an irrational and venemous hatred of the Jewish State and nothing more.

Now, where was I? Oh that’s right.

Having said all of that, the strongest defence against BDS is that its proponents are lying. They are defaming Israel, and truth is the best defence to defamation. Israel is not, as they claim, a colonial or theocratic nation – it is a multicultural democracy, the only true one in the Middle East. Or at least, that’s the argument that I would give now. As we shall see, that may be changing.

The Boycott Bill

The only actual translation of the bill that I could find comes from The Association for Civil Rights in Israel, so if anyone with better Hebrew than me can track it down and translate it, please send it to majorkarnage@gmail.com

I also will disclaim that I am not a qualified lawyer, I am halfway through a law degree in Australia. The Israeli legal system is built on the British Common Law, as is Australia’s, so my arguments should be valid; but I am not claiming to be an authority. That said, there are some VERY problematic aspects of this bill that I want to run through with people who are not familiar with the foundations on which a Western democracy sits.

In s 1, the definition of “boycott” is as follows: [emphasis added]

deliberately avoiding economic, cultural or academic ties with another person or another factor [sic] only because of his ties with the State of Israel, one of its institutions or an area under its control, in such a way that may cause economic, cultural or academic damage.

The key thing to notice here is the wording in bold – “an area under [Israel’s] control”. It is not difficult to decode what is being said here, there is only one area that is not in the State of Israel, but is under Israel’s control: the land on the West Bank of the Jordan River. This phrase was inserted in order to protect the settlements from damage.

Criminalising a Boycott?

Then, s 2 outlines the civil offence of “boycott” created under the Bill:

(a) Knowingly publishing a public call for a boycott against the State of Israel will be considered a civil wrong, to which the civil tort law [new version] applies, if, according to the content and circumstances of the publication, there is reasonable probability that the call will bring about a boycott and he who published the call was aware of this possibility. 

(b) [regarding breach of contract – not so relevant]

(c) If the court will find that a wrong according to this law was deliberately carried out, it will be authorized to compel the person who did the wrongdoing to pay damages that are not dependent on the damage (in this clause – damages, for example); in calculating the sum of the damages for example, the court will take into consideration, among other things, the circumstances under which the wrong was carried out, its severity and its extent.

s 2(a) is a very odd law, but there may be an explanation. The key difference between civil offences, including torts, and criminal offences, aside from the burden of proof, is that criminal offences require what’s called a mens rea (or intent) and an actus reus (action), whereas civil offenses generally require only the actus reus. This is because torts are not necessarily concerned with deterrence or punishment, they are offences that intend to undo damage that has been done. Defamation is an example – if you defame someone, you will be liable for defamation, no matter what you were intending to do.

The word “knowingly” is adding a mens rea to a tort offence, essentially making this a criminal offence with tort liability. The truth is that the authors of the Bill originally wanted a criminal offence, but were pressured into removing it; so what we have instead is a criminal offence dressed-up as a tort and with a civil standard of proof (“on the balance of probabilities” rather than “beyond a reasonable doubt”).

Now, look at how broad the definition of “damage” is. “Economic damage” is simple enough – any money lost as a result of a boycott – but what exactly constitutes “cultural damage” or “academic damage”? Does this mean that an Israeli musician who declines an invitation to play at a nightclub in Efrat is liable for “cultural damages”? Or similar for a professor at Tel Aviv University who refuses to conduct a research project with a counterpart at the University of Ariel? How would the Court ever quantify that? How much money is participation in an academic study worth in damages?

Well, s 2(c) makes it clear that the damages being paid do not even have to do with the value of the damage caused – the implication being that they are punitive. This again goes against the idea behind tort law, which, in general, aims to return the plaintiff to the situation that they would be in had the offence never occurred. This is not about compensating people for loss suffered, it’s about punishing people who knowingly commit an act. Again, it is not a civil offence, it is a criminal offence in disguise.

This is nothing if not an assault on freedom of expression. Under this law, if a newspaper published an opinion piece that called for a construction company to refrain from building a block of apartments for Jews overlooking Ramallah, the paper and the author would be liable for punitive damages. If a theatre group refused to perform in Ma’ale Adumim, they would be liable for “cultural” damages. The law punishes Israeli citizens for voicing an opinion about the actions of other Israeli citizens, or for doing things that constitute political statements.

This is completely draconian, it doesn’t belong in Israel, it belongs in the USSR (where Avigdor Lieberman seemingly learned his political tricks).

Separation of Powers

Now I’ll turn to ss 3 and 4:

3. The Finance Minister is authorized, with the agreement of the Justice Minister and the approval of the Knesset’s Constitution, Law and Justice Committee, to set the regulations of this matter [special cases where it will be limited] and to limit the participation of he who knowingly published a public call for a boycott against the State of Israel, or who committed to take part in a boycott, in a tender that must to be carried out according to legislation.

4(a) The Finance Minister, with the approval of the Justice Minister, may decide in the case of someone who knowingly published a public call for a boycott against the State of Israel or committed to take part in a boycott [in special cases] that… [goes on to list a number of tax penalties and limits on government grants].

Again, this goes completely against the foundations of the democratic system. These provisions place the responsibility of placing sanctions on people and organisations with the ministry. This means that the ministers, the executive arm of government, are determining guilt and then applying what they see as an appropriate punishment.

The difference between Western democracies and authoritarian states comes down to this issue. In any of Israel’s neighbours, if someone does something that the government doesn’t like, they will find themselves being punished by the law. You see, the countries do not have an effective separation between the judiciary and the executive, meaning that the judges will do what the politicians ask (or the judges are the politicians). This is not the case in the US, the UK, Australia or most of Europe and until yesterday, it was not the case in Israel.

Under a democratic system, if a person commits a civil offence, they are tried in a court of law and the court applies whatever punishment it sees fit. This Bill bypasses the courts and places the judicial function in the hands of the people who write the law – a flagrant breach of the doctrine of “the separation of powers”.

In case you don’t believe me

In fact, Yisroel Beitenu MKs have not left a shred of doubt that this is the case. As soon as the Bill had been signed, they used it to launch an action against an Arab MK, Ahmed Tibi, who has called for a boycott of Ariel. The Beitenu officials allege that his calls would “make investors hesitant”.

Again, this is authoritarian thinking. They didn’t have a law to go after Tibi with, so they made one, and now he can be punished for voicing his opinion.

To re-iterate, I don’t agree with Tibi’s opinion in the slightest. Ariel will remain a part of Israel in any peace agreement and Tibi knows this. Beitenu knows this. As the Palestine Papers revealed, the US knows this and so does the Palestinian Authority. To call for a boycott of Ariel is only going to increase hatred, fuel the conflict and encourage Israelis to vote for dickheads like Lieberman.

That said, in a democratic society, as a MEMBER OF THE PARLIAMENTARY OPPOSITION, he has a right to call for a boycott of Ariel if he so chooses. In suing him under this law, the government is suing a member of the opposition for opposing a government policy.

To give an Australian comparison, this is like the Greens creating a law that it is illegal to criticise Australia’s asylum seeker policy, then immediately filing a lawsuit against Scott Morrisson. It’s is absolutely obscene, it’s not the Israeli society that I know and love.

It’s also not the end:

Lieberman: Court should not intervene – Israel News, Ynetnews

On Tuesday Ynet learned that Yisrael Beiteinu is already planning its next move with another bill, which will establish parliamentary inquiry commissions on the activities of left-wing organizations.

Now the Knesset will again be playing judiciary and punishing organisations that disagree with government policies.

There is hope

Of course, the situation is very depressing, but I don’t want to leave you by saying “the end is nigh”. Fortunately, Israel is still a democracy and does still have a functional and independent judiciary with a strong and proud history of taking on the Government. Groups know this and are using the system to defeat this attempt to destroy Israel from the inside:

Gush Shalom first to appeal ‘Boyc… JPost – Diplomacy & Politics.

Activist Uri Avneri and the Gush Shalom peace movement appealed to the High Court on Tuesday in a request to cancel the “Boycott Law” which was approved in its final reading in the Knesset late Monday night.

According to the petition, which was submitted by Attorneys Gabi Laski and Nuri Ramati, Gush Shalom claimed that the law violates the basic principles of democracy.

… Overnight Monday, four human rights organizations announced that they plan to appeal the new law at the High Court, in a letter sent to government officials prior to the bill’s approval in the Knesset.

Groups participating in the appeal include Adalah – the Legal Center for Arab Minority Rights in Israel, the Public Committee Against Torture in Israel, Physicians for Human Rights and Coalition of Women for Peace.

You read that right. In a bitter twist of Orwellian irony, the very groups that support a policy opposing Israel’s existence are now at the forefront of defending its legitimacy. I am placing my faith in the High Court of Justice, who I believe will strike this law down as unconstitutional and undemocratic.

The question, however, is where this leaves Israel. Most reports have indicated that Netanyahu opposed the Bill, but refused to come out against it for fear of damaging his coalition. That shows a contemptible lack of conviction and a frightening willingness to sacrifice Israel’s democracy for short-term political gain.

Zionists everywhere are speaking about the so-called “campaign against Israel’s legitimacy”, but they are misguided. BDS is based on a lie and will never undermine Israel’s legitimacy, so long as Israel remains the tolerant, democratic society that it is and has always been. The true threat to Israel’s legitimacy comes from inside – in fact, from the strongest opponents of the BDS movement.

For those of you still with me after that long article, I have one thing left to say: please, help stop the delegitimisation of Israel. This will go out to many in the Zionist community, all of you have friends and relatives there. Call them, tell them to campaign for their democracy, tell them not to let Lieberman destroy what Ben-Gurion built and what so many have fought and died to protect: Liyot am chofshi, ve’aretzeinu – Eretz Zion ve’Yerushalayim.