VIII: Combatting BDS – Lawfare

by

Howard Adelman

In addition to individual exposés and very few economic measures, one of the most active frontiers for combatting BDS has been the use of lawfare. Lawfare is the use of legislative bodies (local municipal councils, as well as provinces and states in federal systems of government), as well as courts of law, to either promote an anti-Israeli and anti-Zionist position or to counter-attack and use these legal bodies to close off this option of harassment for BDS promoters. Lawfare is diplomatic warfare by other means.

Though initially authorized as a strategic method in 2005, the methodology really began to take off in 2009 and 2010 with cases against the Dutch company, Riwal, for supplying cranes and aerial platforms for settlement construction, and targeting individuals such as Ami Ayalon also in the Netherlands, Ehud Barak in the UK and, even earlier, Moshe Ya’alon in New Zealand. In late 2006, Ya’alon was in New Zealand to raise funds for the Jewish National Fund, Judge Avinash Deobhakta in Aukland issued a warrant for his arrest for alleged war crimes for his role in the 2002 assassination of Salah Shehade, a Hamas commander. New Zealand’s Attorney-General, Michael Cullen, stayed the proceedings on the basis that there was insufficient evidence to prosecute. The warrant was cancelled.

The first actual court case was probably in Quebec, Canada in 2008 when Al-Haq went before the Superior Court in Quebec on behalf of Palestinians in the village of Bil’in insisting that Green Park International and Green Mount International, owned by New York real estate developer, Shaya Boymelgreen, were two Quebec-based companies allegedly engaged in illegal activities in constructing and marketing residential units in Modi’in Illit in the West bank along the old Green Line. (For a full and very objective analysis of the case, cf. Anne Herzberg (2010) NGO “Lawfare”: Exploitation of Courts in the Arab-Israeli Conflict, 68-72.)

Click to access lawfare-monograph.pdf

This is part of the larger fight against settlements in the West Bank allegedly illegal under the Fourth Geneva Convention because the population of an occupying power is being transferred into Palestinian Territory. Israel argues that the territory is disputed and that the land has never been recognized as owned and controlled by an independent state of Palestine as part of the more general BDS campaign. The issue here is not who is legally correct, but the use of courts and legislatures to fight such battles. On behalf of local Palestinians, the case sought both a cessation order as well as claims for reparations and punitive damages of CAN$2 million. Canada was chosen to launch the suit rather than the U.S. because in 2000, Canada was the first country to incorporate The Hague’s International Criminal Court occupation statute, the so-called Rome Statute, into Canadian law. Widespread sympathies for the Palestinian cause in Quebec added to reasons favouring the use of this Canadian jurisdiction.

Al-Haq, that fronted the legal battle, openly admitted that it was part of a large public relations campaign in support of BDS in an effort to associate Israel with war crimes. While there was an effort to raise funds to finance the case, sometimes offering receipts for tax deductible purposes, the Canadian Revenue Agency determined such funds were not for a “charitable” purpose.

On 18 September 2009, Judge Louis-Paul Cullen of the Superior Court issued a decision dismissing the lawsuit and awarding the defendants partial costs. The decision was withering, not only about substance, but about the methods used. The judge accused the legal team of inconsistencies and totally unnecessary repetition. As for the case itself, on the issue of whether the plaintiff could argue the case because the municipality held title to the land in question, the court granted that Yassin, the Head of the Village Council, had standing to bring the suit, but that municipal jurisdiction did not confer ownership or even usage rights or even a sufficient interest to launch the action.

As for where the case should be tried, the court noted that the relevant evidence as well as witnesses were located in Israel and the West Bank, that Israeli courts would be more familiar with the issues and the relevant law, and, in any case, to enforce any judgment reliance would have to placed on the Israeli courts. Further, the plaintiffs were totally unable to prove that Israeli courts were unwilling to try the case and, in fact, had themselves introduced evidence that contradicted that claim. Further, cases put forth to support the legal position of the plaintiff did not in fact do so. Evidence had not been offered to support the claim that the land had been “confiscated.”

The plaintiffs had even failed to heed a fundamental tenet of natural justice by not including those whose homes were allegedly demolished as part of the claim. The plaintiffs bypassed sovereign immunity laws in omitting Israel as a party in the suit, and, finally, were accused of “inappropriate forum shopping.” The court determined that Quebec had been chosen as a forum to avoid proving the case and misusing the courts for effectively propaganda purposes. The appeal was also unsuccessful. On 11 August 2010, the Court of Appeal issued a decision affirming the lower court’s dismissal of the case. But you would never know this result from consulting any of the BDS web sites.

In the counter-attacks, the legislative and executive branches of governments have been chosen rather than courts or local municipal councils. As examples of the latter in support of BDS, Socialist mayor Sylvine Thomassin of the municipality of Bondy just outside Paris, France, got her council to support a resolution boycotting goods from Judea and Samaria. The larger city of Leicester in the UK went further and decided to boycott all Israeli products. The small town of Kinvara in Ireland went even further and informed its shops, pharmacies and restaurants that they could not stock or use Israeli products even though no municipality in any Western jurisdiction enjoys such powers.

In contrast, when New Jersey last month passed anti-boycott legislation, it did so on a matter fully within its jurisdiction, the investment of state pension and annuity funds ($71 billion) in corporations that comply with the boycott. It did not rule that companies could not boycott, only that such companies would not be the recipient of state investment funds. The bill was passed by a vote in the state’s General Assembly of 69-3 with 2 abstentions. It is unlikely the vote would have any substantive effect since it is doubtful if any funds that are invested are in companies that have joined the boycott.

Similar legislation has been passed by Arizona, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Rhode Island, South Carolina and Tennessee. California is in the process of voting on the California Combating BDS Act of 2016, AB 2844. (https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB2844) That bill goes further, and is akin to the legislation in Rhode Island for, if passed, it forces the state in most cases to stop doing business with companies that participate in a boycott against Israel, California’s 18th-largest export partner. Governor Cuomo of New York issued an executive order to the same effect.

The Rhode Island legislation states: “A public entity shall not enter into a contract with a business to acquire or dispose of supplies, services, information technology, or construction unless the contract includes a representation that the business is not currently engaged in, and an agreement that the business will not during the duration of in the boycott of any person, firm or entity based in or doing business with a jurisdiction with whom the state can enjoy open trade, and/or the boycott of any public agencies, entities or instrumentalities of the jurisdiction with whom the state can enjoy open trade.”

Proponents of BDS, that started the use of lawfare, now claim, in the height of hypocrisy and irrelevance, that “these politically motivated anti-boycott policies constitute an unconstitutional attack on the freedom of speech.” The New York State Assembly passed a resolution that read: “That this Legislative Body is concerned that the international Boycott, Divestment, and Sanctions movement and its agenda are damaging to the causes of peace, justice, equality, democracy, and human rights for all peoples in the Middle East.” Though Tennessee’s resolution was non-binding, it went furthest in equating the BDS movement with anti-Semitism, depicting the BDS movement as “one of the main vehicles for spreading anti-Semitism and advocating the elimination of the Jewish state.”

Now it is clear that everyone has a right to boycott and invest funds wherever they so choose. But such decisions have consequences. Since they are only pinpricks and this lawfare and boycotting is largely a means to keep the issue on the front pages, in this case it has stimulated an enormous reaction that has led to effectively emasculating BDS efforts in the U.S. and branding the movement as anti-Israeli and possibly anti-Semitic. Boycotts helped in the fight against racial segregation in the U.S. South, the battle for farm workers in California with the grape boycott and against apartheid in South Africa. Boycotts and divestment strategies are currently being advanced against companies perceived to be guilty of despoiling the planet. But the target must be apt, the means related to the cause must be well-established and the program must be advanced with care and consideration.

When it is advanced as part of an ideological program, it should be no surprise that it stimulates a powerful backlash. The whole effort to equate Israeli policies, whatever one thinks of those policies, and Zionism in general with racism and apartheid has resulted in the proponents of BDS being labeled, properly, as anti-Zionists, and for many, that anti-Zionism is equated with anti-Semitism. This is hardly the best position from which to advance the Palestinian cause. But that may simply be because there is less concern with advancing peace between Jewish Israelis and Palestinians than in denying Israel legitimacy.

One of the results may even be legitimizing the expansion of Israeli settlements in the West Bank and ending the prospect of a Palestinian state in the foreseeable future. For as one investigates the proponents of the BDS movement, one learns that their agenda is not simply to press Israel to trade land for the settlements as part of the negotiations and to abandon the occupation of the West Bank, to witness the emergence of a Palestinian state on the West Bank that will live in peace beside a majority-Jewish state, but to undercut that state altogether and deny its legitimacy. Clearly, not all followers or even proponents of BDS want this. But any in-depth investigation reveals that this is precisely the agenda of the founders and controllers of the BDS movement. So why would moderates want to associate with a movement that calls for the liberation of “Arab lands,” that labels Israel itself as an imperial colonizing state, and that considers the founding of the state of Israel to be the original sin if not the prior migration of Jews to the Mandate of Palestine.

As I have stated previously, the worst and most counter-productive efforts target the boycott of Israeli academics and academic institutions for the effort to promote the economic boycott through lawfare has had such counter-productive results and lawfare is now being used to squash the agenda of BDS. The Judicial Board of the Students’ Society at McGill University (SSMU) unanimously declared the repeated BDS motions at the university to be unconstitutional and in breach of the equity policies of McGill University. The Judicial Board considered the promotion of BDS initiatives, not on the basis of merit, but on the basis of legality by reference to the interpretation of the Constitution, internal regulations and SSMU policies. The ruling of the Judicial Board was as devastating to BDS claims as the findings of Judge Louis-Paul Cullen of the Superior Court of Quebec in the Bil’in Case. Reading the full Judicial statement that can be found on the McGill Student Society site is well worth the effort. (ssmu.mcgill.ca)

With the help of Alex Zisman