Lawsuits may soon be coming.
A stunning new Israeli Supreme Court decision has upheld most of a 2011 Israeli law enabling civil recovery actions against those that proliferate Boycott, Divestment and Sanctions (BDS) against Israeli individuals, companies and institutions. Most of the Law Preventing Harm to the State of Israel by Means of Boycott was sustained in a recent ruling — the court’s strongly worded majority opinion, seven concurring opinions and dissent covered 233 pages. The newly enabled addition to Israel Civil Tort Law 62A covers the total Israeli domain — that is, the Jewish state delineated in 1948 and all territory under Israeli control, including the West Bank. As such, those suffering losses by BDS activity can sue for actual damages. Punitive damages are disallowed under the ruling. Critics are predicting litigation against the New Israel Fund (NIF) and its nongovernmental organization (NGO) grantees that promote BDS.
{mosads}For its part, the NIF and its grantees that fought hard against law during the run-up to the Supreme Court decision have almost universally condemned the decision as an attack against freedom of expression and democracy.
By way of background, the NIF was pivotal in the early establishment of the international anti-Israel boycott through its funding of the Coalition of Women for Peace and other activities. After widespread criticism, the NIF stopped funding the Coalition of Women for Peace. However, many key NIF grantees, such as Partners for Progressive Israel (PPI), remain vibrantly involved in the BDS movement.
For example, a February 2015 PPI policy statement published on its website, accessed April 20, 2015, states: “PPI supports a selective, targeted boycott of Israel’s occupation of the West Bank, not at Israel as a whole. The conception of a selective boycott first adopted by PPI called for a boycott of goods produced by the settlements.” However, several PPI Web pages devoted to boycotting settlement products were no longer available when accessed after the Supreme Court ruling. These include such pages as one entitled “boycott-settlement-products.”
The NIF policy statement accessed April 20, 2015 asserts: “NIF will not fund global BDS activities against Israel nor support organizations that have global BDS program. However, NIF opposes the occupation and subsequent settlement activities. NIF will thus not exclude support for organizations that discourage the purchase of goods or use of services from settlements.”
The much-criticized civilian settlements exist on disputed former Turkish colonial land unambiguously set aside for Jewish and Arab national self-determination under international law after World War I, and reaffirmed after World War II with the establishment of the United Nations. Due to endless Arab-Israeli wars since nonbinding U.N. Resolution 181 initiated a binational partition of the land into two states, the lines between the parties have never been mutually agreed upon or delineated. Israel claims the land under international law, while the international community mainly rejects the claim. Nonetheless, the settlement lands are now covered by the recent Israeli Supreme Court ruling. Moreover, many BDS activities target all of Israel, including Israeli universities in Tel Aviv and Haifa, the national shipping line Zim, as well as such products as Ahava cosmetics and Sodastream.
The Supreme Court justices were unusually vocal in their support for the anti-BDS law. Justice Hanan Melcer declared, “Calling for boycott and participating in it, therefore, can sometimes be considered ‘political terror.'” Justice Yitzchak Amit denied the law was a violation of freedom of expression while excoriating the academic boycott, pointing out, “The cultural-academic boycott of Israel is intended to paralyze and silence political expression, to make one opinion and one ‘truth.'”
Certainly, the Israeli law now resembles ordinary tort law in England and the United States, wherein some speech has legal consequences, including defamation, infringement and business interference.
With the new legal ruling, BDS critics predict litigation to recover damages from the NIF and its grantees engaged in the BDS movement. After the ruling, Ronn Torossian, an entrepreneur who has written about the NIF, confirmed: “Immediately following the legal decision, a high profile uber-wealthy donor advised me of his intent to fund anyone who sought to sue the New Israel Fund for aiding and abetting boycotts of Israel. The NIF boycotts hurt both Israel and Palestinian Arabs and is simply racist at its core. It’s anti-[d]emocratic and wrong.”
The mood may have been cemented a month before the Israeli ruling, when prominent New York civil rights litigator Robert Tolchin, who in 2012 helped a Florida family secure a $323 million judgment from Iran and Syria arising from terrorism, sent a strongly worded notice to the NIF. Filled with citations from U.S. law, the letter declared itself “a warning that the New Israel Fund should under no circumstances support, publicly or privately, any boycott or similar effort against the Israeli government or the nation’s organizations, academic institutions, corporations or other entities.”
Richard Allen of JCC Watch stated: “I certainly hope a lawsuit happens. New Israel Fund and its donors have been financing the BDS against Israel and it has been very effective. Now, they have even carved out a space for Jewish organizations to find this acceptable. But it is assisted suicide.”
Several other legal experts were skeptical that any suits initiated in Israel would ultimately prevail.
Prominent civil rights attorney, Alyza Lewin, president of the American Association of Jewish Lawyers and Jurists, commented: “An overwhelming majority of the Israeli Supreme Court relied on American constitutional principles that give wide protection to free speech to uphold an Israeli law that wisely protects the Israeli economy against calls for destructive commercial boycotts.”
Three attempts by this reporter to secure comment from New Israel Fund communications director Naomi Paiss and/or her staff were unsuccessful. But in the past, the NIF has stated its activities are aimed at achieving a more democratic state.
Black is the New York Times best-selling author of IBM and the Holocaust, and his recent book on NGOs, Financing the Flames.