The Deportation of Omar Shakir: The Israeli Supreme Court and the BDS Movement - Lawfare - 0 views
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shared by Ed Webb on 30 Nov 19
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Two judgments handed down just days apart—one by the Israeli Supreme Court and the other by the European Court of Justice—highlight a growing jurisprudential divide between Israeli and international courts on the status of Israeli settlements in the West Bank
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On Nov. 12, the European Court of Justice ruled that Israeli food products from the West Bank and Golan Heights must be explicitly labeled as coming from “Israeli settlements,” rather than from Israel itself. The ruling, which cited European Union regulations designed to allow consumers to make informed choices about their food purchases, held that since international humanitarian law limits Israeli jurisdiction in these territories to that of an “occupying power,” it would be misleading to represent such products as being “from Israel.”
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stakes of the long-anticipated Israeli Supreme Court judgment in Human Rights Watch v. Interior Minister, handed down just a week earlier. In its judgment, the court upheld a government decision to expel Human Rights Watch’s (HRW’s) Israel and Palestine director, Omar Shakir, from the country, based on a law barring entry by foreigners who promote boycotts of Israel or its West Bank settlements. The case marked the first time the court was called upon to rule on the law’s application to boycott-related activities directed primarily at the settlements, rather than at Israel itself.
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In 2015, in Avneri v. The Knesset, a divided court upheld most of the 2011 law, striking down a provision providing for punitive damages in civil tort cases and construing the law narrowly in order to limit liability to instances where there is a proven causal link to concrete damage. (For more on Avneri, see here and here.) Most significantly for our purposes, a majority of justices in Avneri upheld the law’s contentious provision (which applies equally to the 2017 amendment), equating settlement boycotts to boycotts against Israel as a whole.
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A boycott directed at an individual company due to its specific behavior, by contrast (for example, because it engaged in discrimination or in some other problematic activity), would not risk running afoul of the law.
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If actively promoting HRW’s stance on settlements is enough to demonstrate ongoing promotion of boycotts, any new employee could face similar consequences. Israeli employees of HRW, too, could face civil or administrative ramifications simply for implementing HRW’s stated policy of calling on businesses “to stop operating in Israeli settlements in the occupied West Bank as part of their duty to avoid complicity in human rights abuses.”
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Several amici from both sides of the political spectrum, including NGO Monitor, Shurat HaDin and Amnesty International, submitted briefs to the court. A group of former foreign service officials also joined the proceedings as amici, arguing that removing Shakir would cause substantial and lasting damage to Israel’s image as an open and democratic society.
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The appellants, for their part, challenged the constitutionality of the 2017 amendment, arguing that even though foreigners don’t have a right to enter the country, they should not be denied a visa or fear deportation for expressing unpopular views. Mainly, they claimed, the law violates the free speech and equality rights of Israelis (and Palestinians), whose ability to engage freely with foreigners the government doesn’t agree with is limited by the law. They also argued that Shakir’s activities—particularly those undertaken on behalf of HRW—shouldn’t be considered boycott activities, since they were motivated by a desire to combat specific human rights violations and to encourage private corporations to respect their human rights obligations under international law
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While once again acknowledging that the law doesn’t apply to boycotts targeting specific behaviors, the court stated: An individual who negates the very legitimacy of the State of Israel or its control of the Area, and seeks to undermine it through a boycott, is [included in the law], even if he disguises his position with the rhetoric of human rights or international law. The test is a substantive one, and the words the de-legitimization campaign wraps itself in do not grant it immunity.
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Back in 2016, when HRW first requested a foreign expert visa for Shakir, an American citizen, the Foreign Ministry objected on the grounds that HRW itself was biased against Israel, “falsely waving the flag of human rights” in the service of “Palestinian propaganda.” Shortly thereafter, the ministry withdrew its objection, citing political and diplomatic considerations, and the Interior Ministry granted Shakir his visa. An administrative petition by the right-leaning organization Shurat HaDin, among others, led to an additional reversal, and the visa was revoked. The new decision was based on a memorandum issued by the Strategic Affairs Ministry (charged in Israel with heading up the fight against BDS), which argued that the problem was Shakir himself—who had called in the past for boycotts of Israel and the settlements—rather than HRW
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In Human Rights Watch, the court clarified that what is at stake is also, potentially, the “delegitimization of Israel and of its policy” (emphasis added).
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the boycott laws, coupled with the court’s continued acquiescence to the law’s conflation of Israel with Israeli settlements, threaten to impair the ability of citizens and noncitizens alike to engage in free discourse on one of the most difficult issues facing the country. They risk undermining the ability of human rights groups to defend human rights and promote respect for international law when their positions and interpretations of the law do not align with those of the Israeli government. They also threaten to further erode the all-important distinction in a democracy between delegitimization of the country itself and criticism of government policy
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a growing disconnect between the discourse on settlements in Israel (and now, perhaps, the United States) and abroad