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Anti-BDS Laws, Unveiled

Updated: Sep 17, 2018

Opinion Editorial by Gabrielle Burack

The Boycott, Divestment, and Sanctions (BDS) movement is a movement that that aims to target Israel and damage it economically. The reason behind this is to delegitimize Israel. According to the BDS website, BDS is a Palestinian led movement for “freedom, justice, and equality,” and that “Palestinians are entitled to the same rights as the rest of humanity.” Although the BDS movement claims to seek fair treatment of Palestinians in a non-violent manner, the underlying meaning of the movement is purely anti-Semitic and anti-Israel. Those who follow the BDS movement deny Israel’s right to exist, and seek to undermine Israel’s actual existence. Outside nations and international institutions, such as European countries and the United Nations Human Rights Council (UNHRC), continuously threaten Israel with economic penalties if it “does not make unilateral political concessions outside the context of direct Israeli-Palestinian negotiations” (Israel Anti-Boycott Act of 2018). Additionally, the BDS movement will remove the Palestinian incentive for obtaining peace with Israel because the damage that BDS can cause will encourage terrorist acts and forgo any expectations of compromise.

The Anti-Defamation League (ADL), creates a yearly Anti-Semitism Audit Report by reviewing reported Anti-Semitism crimes. In their 2017 Audit Report, they reported a 60% increase in anti-Semitism in the United States within this past year. This is the largest increase in years. Naturally, Congress will want to try to curb this rise in anti-Semitism by passing anti-BDS legislation. Not only for the anti-Semitic underlining of the BDS movement, but also to maintain their only Democratic ally in the Middle East. The U.S. and Israel cooperate greatly on technology and defense, so if the U.S. somehow decides to isolate themselves from Israel, they would be at a great technological disadvantage.

In the beginning of March, right before the American Israel Public Affairs Committee’s (AIPAC) annual conference, Senators Ben Cardin (D-MD) and Rob Portman (R-OH), revised S. 720, or the Israel Anti-Boycott Act (IABA). IABA is a reaction to the United Nations Human Rights Council’s call to punish Israel’s political policies. The UNHCR’s meetings constantly criticize Israel with their recurring agenda “Item 7,” where they call for BDS against Israel is designed to assault Israel’s legitimacy and to isolate Israel internationally. UNHRC declared to prepare a database, or blacklist, of companies operating in territories that came under Israeli control during the Six Day War. According to AIPAC, “both Israelis and Palestinians would suffer if American companies refrain from doing business in these areas.” They continue to argue that this type of boycott “could have unintended consequences of more broadly discouraging trade with Israel and the Palestinians by companies seeking to avoid legal danger or controversy” (AIPAC Legislative Agenda: Oppose Boycotts of Israel). Of course, such economic damage to Israel encourages the idea that Israeli presence outside of pre-1967 borders is illegitimate and could also discourage any desire for Palestinians to come back to the negotiating table for direct talks.

What does the Israel Anti-Boycott Act do? First, it allows Congress to take a stand against unauthorized boycotts of Israel and other American allies. Second, it “discourages international governmental organizations from blacklisting American companies conducting legal activities in any friendly country” (The Israel Anti-Boycott Act of 2018). And third, the bill focuses specifically on commercial conduct.

The new version of the Israel Anti-Boycott Act does not punish individuals or companies for deciding not to engage with businesses in or within Israel or Israeli controlled territories. Citizens will still be allowed to participate in a personal boycott of Israel on their own accord, which will protect free speech. In Section 5(1) of the Act, it is stated that “nothing should be construed to diminish or infringe upon any First Amendment Rights.” Additionally, the law does not restrict political dismay with the Israeli government. The IABA added a new specification of a “covered person,” where the law makes it clear that a person will not be penalized if they are participating in a boycott outside of an official commercial capacity. The final addition to the Act is that people will no longer be imprisoned for participating in a boycott of Israel. This will further ensure that citizens of America will not have to fear their First Amendment Rights being taken away.

At the state level, there have also been steps taken to stop boycotts against Israel within companies. In Kansas, House Bill 2409 restricts companies from participating in boycotts “in a manner that discriminates on the basis of nationality, national origin or religion, and that is not based on a valid business reason” (HB 2409). The Bill also specifies that the state of Kansas “will not take part in a contract with an individual or company to acquire or dispose of services, supplies, information technology or construction, unless such individual or company submits a written certification that such individual or company is not currently engaged in a boycott of Israel.” Additionally, someone can submit a waiver to the State Secretary to approve a contract if they think that compliance of not participating in a boycott is not practical.

The law was challenged in Esther Koontz v. Randall D. Watson, where Koontz challenged her right to participate in a boycott of Israel. Koontz decided to participate in a boycott of Israel after her church called on its members to do so in protest against the Israeli government’s settlements, but she was also selected to participate in the Kansas State Department of Education’s Math and Science Partnership program. In order to participate, the plaintiff had to sign a contract stating that she was not participating in a boycott of Israel, which she refused to do, and so resulted in her being unable to participate in the program despite her qualifications. Koontz also did not apply for a waiver that could have allowed for her to participate in the program. In terms of ripeness of this case, the law “disqualifies plaintiff from eligibility for reaping the benefits of a contract with the State of Kansas that she otherwise would have received” (Esther Koontz v. Randall D. Watson). It was also determined that the law imposed a hardship on the plaintiff due to denying her the position that she was originally offered. In the end, the case determined that Koontz had a right to participate in a boycott of Israel due to religious purposes and her First Amendment Rights.

Although the Kansas Law and the IABA are very similar, IABA does not condition any government contract on one’s views about Israel, it solely applies to instances in which a person based in the U.S. assists a foreign government or international governmental organization’s efforts to collect information for the purposes of furthering an unsanctioned foreign boycott, or to further such a boycott. Another difference is that the IABA does not apply to individual expression of political views about Israel and it does not punish individuals or companies for electing to not do business in or with Israel or its’ territories.

The effectiveness of such laws is questionable, but it is understandable why Congress would want to prevent BDS, as it is a direct attack on one of America’s greatest allies, and can even be considered a direct act of hate and anti-Semitism.

Although some may say that BDS is a form of peaceful protest, BDS does not target other countries in the Middle East that have major human rights violations, and only targets Israel, which is an act of anti-Semitism. Citizens of America should not fear that their free speech will be infringed if such laws are passed, as they clearly specify that individuals will not be punished, but they should take these laws as a sign to know that direct or indirect acts of anti-Semitism will not be tolerated.

#AntiBDS #BDSunveiled #Antisemitism

Gabrielle Burack

Gabrielle is from Boxborough, MA and a Senior at American University pursuing a bachelor’s degree in International Studies. She recently returned from studying abroad in Brussels, Belgium where she studied European Union government. Gabrielle is currently a legislative assistant at the Anti-Defamation League. She previously interned at the Office of Senator Elizabeth Warren, the Jewish Federations of North America, and the Organization for Refuge, Asylum, and Migration in Tel Aviv. Her passions lie in Israeli foreign policy, peace negotiations, human rights, and conflict resolution.

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