Anti-BDS laws

Anti-BDS laws and resolutions are laws and resolutions designed to hinder people and organizations from participating in boycotts against Israel. Many such laws have been enacted around the world in response to the BDS movement's call for a boycotts, divestment and sanctions against Israel. Some of the resolutions are symbolic and non-binding, meaning that they just condemn BDS, generally for being antisemitic, others are laws that makes it difficult for citizens and organizations to boycott Israel. Frequently, resolutions condemning BDS are followed by laws preventing boycotts of Israel.

Proponents of such laws claim that they are necessary because BDS is a form of anti-Semitism. Opponents claim that Israel and its supporters are engaging in lawfare by lobbying for anti-BDS laws and that such laws infringe upon the right to free speech.[1]

The specific provisions of anti-BDS laws varies widely. In the US they have taken two forms: contract-focused laws conditioning the awarding of government contracts on the recipient promising that it is not boycotting and will not boycott Israel; and investment-focused laws, mandating public investment funds to avoid entities boycotting Israel.[2]

Anti-BDS laws in the United States
Further information: Israel Anti-Boycott Act

Several bills and resolutions have been enacted in federal and state legislatures with the intent to combat BDS.

Florida

Florida's State Legislature passed the anti-BDS bill SB 86 on February 24, 2016 and it was signed into law on March 10, 2016.[3] The law had the following effects:[4]

  • requiring Florida to create an online blacklist of companies and for-profit organizations that boycott Israel,[4]
  • prohibiting public entities in Florida from entering into contracts worth $1 million or more with blacklisted entities or others who boycott Israel,[4] and
  • preventing state pension funds from investing in companies engaging in politically motivated boycotts of Israel.[4]

The bill was criticized by the American Civil Liberties Union (ACLU) of Florida who wrote an open letter to Governor Rick Scott, urging him to use his veto. It alleged that the bill was a form of "retribution for the content of speech" and warned that approval of the bill would "undoubtedly lead to litigation challenging its constitutionality that will be both needless and needlessly costly."[5]

The village of Bal Harbour in Florida has passed two anti-BDS ordinances; one in 2015 titled "Non-discrimination" which prevents the Village from entering into a contract with a business engaging in boycotts, and one in 2017, adopting a definition of antisemitism which labels most criticism of Israel as antisemitic.[4]

Anti-BDS laws in other countries

Israel
Further information: Law for Prevention of Damage to State of Israel through Boycott

France

France has not enacted any anti-BDS laws, but the country has seen several legal battles against campaigners for boycotts of Israel. In 2003, the Lellouche law named after Pierre Lellouche was enacted which outlaws discrimination based on a variety of immutable characteristics, including national origin."[6][7] The law has been described by the left-wing Israeli newspaper Haaretz as "among the world's most potent tools to fight the growing Boycott, Divestment, and Sanctions movement" and as having "catapulted France to the forefront of efforts to counter the movement through legal means".[8][9] According to Pascal Markowicz, the head of the BDS legal task force of the group French Jewish communities, the law has resulted in France divesting less from Israel than other European countries.[8]

Baldassi & Others v. France

On September 26, 2009 and May 22, 2010, eleven members of the Palestine 68 Collective,[10] a group supportive of BDS, participated in demonstrations outside the same supermarket urging customers not to purchase goods imported from Israel. They wore shirts emblazoned with the words "Long live Palestine, boycott Israel" and handed out flyers saying that "buying Israeli products means legitimizing crimes in Gaza."[11]

While there was no violence or damage, they were charged with inciting economic discrimination. The trial court, the Tribunal correctionel de Mulhouse, acquitted the defendants. But the ruling was appealed by four groups, France-Israel Chamber of Commerce, Avocats sans Frontières, Association France-Israel and the Simon Wiesenthal Center's french associate the Bureau National de Vigilance Contre l’Antisemitisme,[12] to the appeals court,[13] Cour d'appel de Colmar, which convicted the defendants in November 2013 and fined them 1000 Euro each per participant.[14] They were also ordered to pay the court expenses of 28,000 Euro. The supreme civil court, the Cour de cassation, upheld the conviction citing a law that prescribes imprisonment or a fine for parties that "provoke discrimination, hatred or violence toward a person or group of people on grounds of their origin, their belonging or their not belonging to an ethnic group, a nation, a race or a certain religion."

The decision was appealed to the European Court of Human Rights (ECHR) which had to decide whether it was justified to restrict the defendants right to freedom of expression as defined by article 10(1) of the European Convention on Human Rights. Article 10(2) of the Convention allows for such restrictions if they are "in accordance with law" and "necessary in a democratic society." The Court noted that, as interpreted in this case, the French law would appear to prohibit any call for boycotts based on geographic origin, regardless of other circumstances. It further contended that the defendants actions were a form of political expression and that article 10(2) leaves little room for restricting such political expression.[14]

On June 11, 2020, the ECHR delivered its unanimous ruling, acquitting the defendants.[10] It ordered the French Government to pay each applicant 7380 Euro each.[14]

SodaStream
See also: SodaStream § Controversy

In 2010, BDS activists of the French Palestine Solidarity Association (FPSA) targeted the Israeli manufacturer of a home carbonation product bearing the same name for having a factory in the West Bank while its products are labelled "Made in Israel". SodaStream's French distributor sued the FPSA for "falsely claiming that the products are 'illegaly sold' as a result of being manufactured in 'occupied territories' while bearing the 'Made in Israel' label" and for advising French store managers that "selling SodaStream products constitutes fraud" and that they could be persecuted for doing so.[8]

In January 2014, a French court ruled that FPSA could not use the words "illegal" or "fraudulent" to describe SodaStream products and ordered the group to pay SodaStream's distributor 4,000 euros in compensatory damages and 2,500 euros to cover its legal fees. In the meantime, SodaStream announced that it would move its factory from the Israeli settlement to Lehavim, a city in southern Israel.[8]

Germany

Glanz v. Oldenburg

On May 18, 2016, BDS Initiative Oldenburg, a local chapter of the BDS movement in Oldenburg, planned to hold a BDS-related event featuring Israeli human rights activist Ronnie Barkan. On April 15, 2016, Christoph Glanz, one of the group's members, applied to rent a room in the City of Oldenburg's cultural center, PFL. He was informed that his request had been granted and he sent out invitations for the event. After the City received numerous emails expressing doubts about the BDS event, the City informed Glanz that his permission to rent the room had been withdrawn. The City believed that the event would cause a confrontation between BDS supporters and opponents so that public safety could not be guaranteed.[15] Glanz contended that his booking had been withdrawn for political reasons and approached the City in the Administrative Court in Oldenburg.[15]

The Court argued that since the City's withdrawal of Glanz' booking ocurred after it had already been confirmed, it violated article 5(1), the right to freedom of expression, and article 8(1), the right to freedom of assembly, of the German Basic Law and was unlawful.[15]

Ried v. Munich

In December 13, 2017, Munich passed a resolution titled Against every form of antisemitism – No cooperation with the antisemitic BDS (boycott, divestment, sanctions) movement becoming the first German city to deny space and public funds for BDS. Charlotte Knobloch, a Holocaust survivor and chairwoman of the Munich Jewish community who campaigned for the legislation, said, "Munich sent a signal against antisemitism".[16][17]

On April 19, 2018, Klaus Ried applied to the Munich City Museum asking for a venue to hold a debate titled "How far does Munich restrict the right to freedom of expression? – City Council’s resolution from December 13, 2017 and its consequences". The target audience for the debate was politically interested people. On April 25, 2018, the Museum rejected Ried's application on grounds that it would violate the resolution from December 2017 - the very same resolution the event was supposed to debate. The Museum in its decision noted that the debate could not take place without taking about BDS and that it was bound by the resolution.[18]

On May 30, 2018, Ried filed a suit in the Administrative Court Munich, arguing that the refusal to grant him a venue violated his right to freedom of expression and freedom of assembly. The court, however, ruled in favor of the City. It argued that the resolution only prevents the expression of opinions either in favor or against BDS and that it therefore did not violate Ried's right to express a particular opinion about BDS.[18]

Ruhrtriennale festival

In September 2018, the parliament of North Rhine-Westphalia, Germany's most populous state, adopted a resolution barring public institutions from hosting and supporting BDS groups and condemning "the antisemitic and anti-Israel BDS campaign." The anti-BDS resolution was sparked by the Ruhrtriennale's director Stefanie Carp's decision to invite the pro-BDS band Young Fathers to perform at the festival.[19] In April 2020, Carp came under fire again for having invited Cameroonian philosopher Achille Mbembe to the festival because he wrote a foreword in 2015 to the book Apartheid Israel: The Politics of an Analogy.[20]

German-Palestinian Women's Association v. Bonn

Bonn holds an annual festival called the Culture and Encounter Festival. A group connected to the BDS movement, the German-Palestinian Women's Association, wanted to participate in the 2019 edition of the festival as it had done many years in the past. However, on May 14, 2019 the City Council of Bonn had adopted a motion named No place for the antisemitic BDS movement in Bonn calling upon all municipal institutions to deny facilities to BDS groups and groups pursuing BDS goals. Based on that motion, the City of Bonn decided to exclude the women's group.[21][22]

The Women's association filed an interim mesaure on the City's ban on its participation. The Administrative Court of Cologne instructed the City of Bonn to admit Women's Association to the festival. In its verdict it held that the City's ban violated article 3(1), "All persons shall be equal before the law." and article 5(1), "Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources." of the German Basic Law.[21]

The Court stated that:

The motions of the Bonn City Council, as well as the motions of the parliament of North-Rhine Westphalia (20 September 2018) and the German Bundestag (17 May 2019), do not constitute legislative acts, but are political resolutions or expressions of political will. These motions alone cannot justify, from any legal perspective, the restriction of an existing legal right.

It instructed the City to let the Women's association participate.[21]

United Kingdom

In February 2016, the British government, in response to several city councils having passed motions to boycott goods from Israel settlements, issued a procurement policy forbidding public authorities from boycotts on ethical grounds. The policy was passed without any parliamentary debate. The government argued that

Public procurement should never be used as a tool to boycott tenders from suppliers based in other countries, except where formal legal sanctions, embargoes and restrictions have been put in place by the UK Government

and that such boycotts could harm "community cohesion" and Britain's "economic and international security." It further warned public authorities that they could face stiff penalties for continuing boycotts on ethical grounds.[23]

In 2017, the Palestine Solidarity Campaign launched court action against the law with the support of the Quakers, the Campaign Against Arms Trade, and War on Want. After winning its case in the High Court, it then lost in the Court of Appeal, before finally winning in the Supreme Court in April 2020. The Campaign's legal challenge was based on the principle that the government did not have the power to ban "ethical pensions divestment". The Supreme Court's decision allowed Local Government Pension Scheme funds to divest from or boycott companies involved in Israel's illegal settlement programmes and siege of the Gaza Strip.[24]

In December 2019, Eric Pickles, special envoy for post-Holocaust issues, announced that Prime Minister Boris Johnson would attempt to pass a law banning local councils from supporting BDS.[25]

Parliamentary condemnations

A handful of local and national parliaments have passed symbolic resolutions condemning BDS. Most of these condemnations have alleged that BDS is anti-Semitic.

Austria

On February 27, 2020, the Austrian National Council, the lower house of the Austrian Parliament unanimously adopted a non-binding resolution condemning all forms of anti-Semitism including "Israel-related anti-Semitism." It strongly condemned the BDS movement and urged the government not to provide aid to groups that express anti-Semitic views or "question Israel's right of existence." [26][27]

Israel's Foreign Minister Israel Katz welcomed the resolution and asked other countries to adopt similar resolutions.[28] As did the Transatlantic Friends of Israel group, an off-shot of the Jewish advocacy group the American Jewish Committee.[29]

BDS slammed the "anti-Palestinian" resolution in a statement, claiming that it "contains outright lies, contradicts Austrian and international law, and undermines the important fight against real anti-Jewish racism." It further called for the "people of conscience in Austria" to defend the freedom of expression, including the right to boycott. Weeks before the vote, over 200 Palestinian organizations signed an open letter to Austrian parliament members urging them to reject the resolution.[30]

Canada
Legislative Assembly of Ontario

In February 2016, the Parliament of Canada passed a resolution in 229-51 vote condemning the BDS movement that read:[31]

Given Canada and Israel share a long history of friendship as well as economic and diplomatic relations, the House rejected the Boycott, Divestment and Sanctions (BDS) movement, which promotes the demonization and delegitimization of the State of Israel, and called upon the government to condemn any and all attempts by Canadian organizations, groups or individuals to promote the BDS movement, both here at home and abroad.

The motion was supported by the Liberals and the Conservatives and opposed by the New Democratic Party and Bloc Québécois.[32] It was welcomed by Jewish groups but decried by the National Council on Canada-Arab Relations which said that it went against the freedom of speech.[33]

On December 1, 2016, a non-binding motion was passed in the Legislative Assembly of Ontario with 49 ayes and 5 nays that "calls on the legislature to stand against any movement that promotes hate, prejudice and racism" and "reject the 'differential treatment' of Israel by the BDS movement". The motion was supported by the two largest parties, the governing centrist Ontario Liberal Party and the opposition centre-right Progressive Conservative Party of Ontario, with only the social democratic Ontario New Democratic Party opposed.[34] The motion was sponsored by Conservative legislator Gila Martow who rhethorically asked "We would not be here supporting the Ku Klux Klan on our campuses so why are we allowing [the] BDS movement and other anti-Jewish and anti-Israel organizations to have demonstrations and use our campuses, which are taxpayer-funded?" The lawmakers that opposed the resolution argued that it silenced dissent.[35]

The Centre for Israel and Jewish Affairs applauded the motion while Canadians for Justice and Peace in the Middle East denounced it, saying that it targets people for their political views.[34]

Czech Republic

On 22 October 2019, the Chamber of Deputies passed a resolution "condemn[ing] all activities and statements by groups calling for a boycott of the State of Israel, its goods, services or citizens." The resolution also called for the government to not offer financial support to groups that promote a boycott of Israel. The resolution was introduced by Jan Bartošek, leader of the chamber's Christian Democrats caucus.[36] Israel's ambassador to Prague expressed appreciation for the chamber's "unequivocal condemnation of anti-Semitism and steadfast support of Israel," while Israeli foreign minister Israel Katz tweeted his own thanks, calling "on more Parliaments to follow suit."[37]

Germany

In May 2019, the German Bundestag passed a symbolic[38] non-binding resolution named Resisting the BDS Movement with Determination – Combating Antisemitism declaring BDS antisemitic and stating that it was "reminiscent of the most terrible chapter in German history".[39] The lower house voted down a competing motion from the far-right Alternative for Germany party that called for BDS to be banned entirely. The Left Party refused to support the motion but said they also rejected BDS.[40]

In response to the declaration, a group of 60 Israeli academics responded with a letter that criticized the motion and said it was part of a larger effort to delegitimize supporters of Palestine.[41] Another similar letter was sent to the German government in June and signed by 240 Israeli and Jewish academics. The signatories stated that BDS is not an anti-Semitic organization and that boycotts are a legitimate and non-violent tool of resistance. Matan Peleg, CEO of the Zionist Im Tirtzu, slammed the letter, calling it "hypocrisy and ungratefulness, in which these professors earn their living at the expense of the Israeli taxpayer yet at the same time work to boycott and slander them."[42]

In January 2020, five United Nations special rapporteurs published a letter they had sent to the German government expressing their opposition to the anti-BDS law. They made their letter public as they had not received any response from the German authorities.The rapporteurs wrote that the law "unduly interferes with the right of people in Germany to engage in political speech, namely, to express support for the BDS movement". They further contended that criticising the government of Israel is not antisemitic. The letter was signed by David Kaye, Clement Nyaletsossi Voule, Michael Forst, Michael Lynk, and Ahmed Shaheed.[43]

United States

Indiana

In May 2015, the Upper house of the Indiana Legislature, the Indiana Senate, passed resolution SR 74, "expressing opposition to the anti-Jewish and anti-Israel Boycott, Divestment and Sanctions campaign."[44] The resolution had previously unanimously passed the Indiana House of Representatives as House Resolution 59.[45]

Florida

On April 11, 2014, the Upper house of the Florida Legislature, the Florida Senate, passed resolution SR 894 denouncing academic boycotts of Israel as "biased and hypocritical."[46]

Tennessee

On 9 April 2015, the Tennessee General Assembly passed a resolution formally condemning BDS. The resolution passed the upper house by a vote of 30-0 and the lower house by a vote of 93-1. The resolution, the first of its kind to be passed by a state government, declared that BDS is "one of the main vehicles for spreading anti-Semitism and advocating the elimination of the Jewish state" and "undermine[s] the Jewish people's right to self-determination, which they are fulfilling in the State of Israel." The bill was introduced by State Senator Dolores Gresham and co-sponsored with State Representative Sheila Butt. In an interview, Gresham stated that the resolution is proof that the state legislature "chooses to preserve its values by publicly condemning this blatantly anti-Semitic, anti-Israel bigotry, and send a clear message that Tennessee condemns such views."[47][48] In December 2015, Florida became the fifth state to adopt the Tennessee resolution against BDS.[49][50]

See also

Laws and resolutions

Austria

Tennessee

Florida

Indiana

References
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  2. Cuffman, Timothy (May 29, 2018). "The State Power to Boycott a Boycott: The Thorny Constitutionality of State Anti-BDS Laws". Columbia Journal of Transnational Law. doi:10.2139/ssrn.3186369. Retrieved Aug 14, 2020. Though the specific provisions of anti-BDS laws vary widely, they have taken two primary forms: (1) contract-focused laws that condition the receipt of government contracts on an entity certifying that it is not boycotting and will not boycott Israel; and (2) investment-focused laws that mandate public investment funds to divest from entities involved in boycotts of Israel.
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