Can BDS be stopped through the law?

PAULA SLIER

But Israel’s leadership doesn’t wholly agree, and neither do many in the diaspora. It’s a far cry from when the BDS movement was launched in 2005. Then, Israeli officials echoed the sentiment on the street, dismissing it as a poor attempt to imitate the boycott against South Africa during the apartheid years.

But 10 years later, Israel’s President Reuven Rivlin went on record describing it as a “strategic threat”.

Jerusalem has been ramping up efforts to fight it.Last month, the government announced that the strategic affairs ministry was setting up a public company, comprising former Israeli ambassadors and high-profile security experts, to raise awareness against this global “delegitimisation campaign”.

Prime Minister Benjamin Netanyahu has allocated nearly $40 million (R481 million) towards these efforts, and Israeli courts seem to be supporting him. Since March last year, foreign nationals or organisations supporting boycotts against Israel have been barred from entering the country, among them BDS South Africa.

Already back in February 2011, Israel’s Parliament adopted the NGO Funding Transparency Law to try to curtail secret foreign government funding for nongovernmental organisations (NGOs), some of which promote BDS.

In July of the same year, a contentious anti-boycott law was passed, stating that individuals or organisations that publicly call for an economic, cultural or academic boycott against a person or entity merely because of its affiliation with Israel, may be sued civilly by a party claiming it could be damaged by such a boycott.

And now, in what appears to be the first lawsuit filed under this contentious law, two New Zealanders – a Jew and a Muslim – were sued last week by Israeli concertgoers for allegedly convincing New Zealand pop singer Lorde to cancel a performance she was scheduled to give in Israel this June.

The plaintiffs, three teenagers, are demanding payment not from the singer, but from the Jewish and Muslim activists. The two had written an open letter in which they appealed to Lorde to reconsider her Tel Aviv concert. It was reportedly only after the performer acknowledged their letter on Twitter that she had reservations about the show. The two women took credit for her decision to cancel.

Those who support this law ask: Why should someone who speaks badly of them be allowed into their home? Led by Netanyahu, they argue that the law prevents harm against the State of Israel and its citizens.

But critics insist it is undemocratic and unconstitutional, and stifles freedom of expression. Despite this, Israel’s High Court of Justice ruled it to be a legitimate and balanced measure to protect the country and its citizens from “political terrorism”. Should this latest lawsuit now prove successful, it will have significant implications for the global BDS movement.

Filed by Shurat HaDin, an NGO that sues those it accuses of supporting terrorism or being enemies of Israel, the lawsuit is an “effort to give real consequences to those who selectively target Israel”, according to its president, Israeli attorney Nitsana Darshan-Leitner. She said it aims to “compensate Israeli citizens for the moral and emotional injury and the indignity caused by their discriminatory actions”. She called it “a precedent-setting suit aimed at deterring BDS activists from calling for a boycott of Israel,” adding: “Boycott activists will know there is a price for every action against Israeli citizens.”

But the lawsuit is problematic. Firstly, the complainants need to prove a link between an actual boycott and a call for one. In this particular case, they need to successfully argue that being deprived of the pleasure of listening to one’s favourite singer constitutes damages. What’s more, although the anti-boycott law states it can be applied to anyone regardless of their nationality, there are questions as to whether Israeli law can even be used against people in another country.

Should a judgment be made against someone in South Africa, for example, how does one enforce it and prevent it from becoming a diplomatic nightmare?

The New Zealanders highlighted this point by posting on their Twitter feeds that the lawsuit was a stupid stunt and that “Israel was the only democracy in the Middle East where New Zealanders get sued for exercising their freedom of speech… in New Zealand”.

It will be interesting to see what transpires.

Over the years Shurat HaDin has had its fair share of successes and failures, including one against former US president Jimmy Carter and his publisher Simon & Schuster, whereby the NGO claimed Carter had defrauded consumers with his book Palestine: Peace Not Apartheid. It lost.

When I interviewed Omar Barghouti, co-founder of the BDS movement in its then nondescript Ramallah headquarters, he insisted that despite the millions of dollars being spent to fight BDS, Israel and its supporters would ultimately fail. It remains to be seen whether he is proven wrong.

Paula Slier is the Middle East Bureau Chief of RT, the founder and CEO of Newshound Media and the inaugural winner of the Europcar Woman in Leadership Award of the South African Absa Jewish Achievers.