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. As the Israeli Supreme Court continues to maintain the constitutionality of laws equating boycotts of settlements to boycotts of the country as a whole, the European Court of Justice rules that settlement products must be labeled clearly, so that consumers can make an informed choice on whether to buy them.
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.” The court added that the very fact that a product comes from “a settlement established in breach of the rules of international humanitarian law may be the subject of ethical assessments capable of influencing consumers’ purchasing decisions, particularly since some of those rules constitute fundamental rules of international law.”
The European Court of Justice’s decision to require the labeling of settlement products underscored the potential 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.
The 2017 and 2011 Boycott Laws: Conflating Boycotts of Israel With Boycotts of the Settlements
As Lawfare readers may recall, in March 2017 the Israeli Knesset passed an amendment to the law governing entry to Israel, banning BDS activists from the country (BDS is the movement to boycott, divest from and sanction Israel). The law states that nonpermanent residents must not be granted visas (subject to exceptional circumstances) “if they, or an organization they act for, has knowingly promulgated a public call to boycott” Israel or “an area under its control” (i.e., Jewish settlements in the West Bank). The amendment joined the 2011 “Boycott Law,” which imposed civil tort liability and various administrative sanctions on boycott activists, including allowing the government to deny activists certain subsidies and to bar them from obtaining government contracts. 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. Two dissenting opinions in Avneri (written by Justices Yoram Danziger and Uzi Vogelman and joined by Justice Salim Jubran) blasted this particular provision as an unconstitutional violation of free speech that serves to silence debate on one of the most deeply disputed political questions in Israel. Arguing in defense of the provision, however, majority justice Elyakim Rubinstein pointed out that Israeli administrations from both sides of the political spectrum have taken part in the settlement project and have even offered Israeli citizens incentives to move to the West Bank. Since the Israeli government allows its citizens to lawfully inhabit settlements, Rubinstein argued, it is only right that a law seeking to shield Israelis from the harmful effects of boycotts should protect them as well. At the same time, Rubinstein and the other majority justices took pains to emphasize that the law applies only to those who promote boycotts that target someone merely on the basis of their ties to Israel or to an area under its control. 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.
Human Rights Watch: The Facts of the Case and the Court’s Decision
The facts and background to the Human Rights Watch case, as described by the court, were as follows: 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. The human rights group was not barred from operating in Israel; it merely had to find a different employee.
The case reached the Supreme Court after an initial appeal was rejected by the Jerusalem District Court in September of this year. 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.
The government’s case against Shakir included allegations of activities from as far back as 2006, when Shakir founded a student organization at Stanford University that called for divestment from companies profiting from Israel’s rule in the occupied territories. The government also pointed to more recent activities predating his employment by HRW, including lectures he gave that praised the BDS movement and a petition he signed in 2015, pledging to honor the BDS call and calling to boycott a Muslim-Jewish dialogue initiative promoted by the Israel-based Shalom Hartman Institute. The government argued that Shakir’s boycott activities continued after he joined HRW and came to Israel as its representative. Specifically, the government pointed to efforts by Shakir and HRW to get FIFA, international soccer’s governing body, and the Israeli Football Association to stop holding games in settlements. The government also cited various tweets Shakir sent out promoting HRW reports and positions on the settlements—including a report calling for pressure on Israeli banks to stop doing business in settlements, a call on the UN Human Rights Council to publish its list of businesses operating in settlements, and a report calling on Airbnb and Booking.com to stop listing settlement properties on their websites.
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. They argued that upholding the decision to remove Shakir for such activities would compromise the continued ability of human rights defenders to do their jobs. Finally, they contended that since Israel doesn’t deem HRW a “boycott organization,” it can’t penalize Shakir for activities undertaken under its auspices. The fact that the whole affair began with an attempt to bar HRW itself from the country demonstrates that the government’s real goal is to silence the human rights group’s criticisms of Israeli policy.
Writing for the court, Justice Neal Hendel cited the principles the court laid down in its Alqasem decision from 2018, allowing American student Lara Alqasem to stay in the country despite past involvement in BDS. Most importantly, the court reiterated that the purpose of the 2017 law is preventive rather than punitive. It seeks to protect citizens from the discriminatory effects of boycotts by preventing BDS activists from abusing their time in Israel to promote the delegitimization of the state (Interestingly, Hendel—who also wrote the Alqasem decision—was the only justice in Avneri to hold the 2011 law’s civil tort in its entirety to be an unconstitutional violation of free speech. For more on the Alqasem case, see here.) When a person proves—as Alqasem did—that he or she is no longer involved in BDS, the preventive rationales don’t apply. However, it is the individual who bears the burden of proof, and in Shakir’s case, his activities since entering the country prevent him from meeting this burden.
The court avoided ruling on the constitutional questions, holding that they would best be addressed in a direct challenge to the law submitted directly to the Supreme Court, and noting that a separate constitutional challenge remained pending. (This separate challenge was rejected a few days later, after the petitioners’ lawyer agreed to drop the case at the court’s urging.) Justice Noam Solberg, in a concurring opinion, went a step further—casting doubt on Shakir’s standing to raise constitutional arguments on behalf of the rights of Israeli citizens and residents.
At the same time, the court held that, contrary to the appellant’s protestations, Shakir’s activities since joining HRW are indeed covered by the 2017 amendment. 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.
Shakir’s extensive boycott-related activities, grounded in “blanket opposition” to Israel’s control of the West Bank, were therefore covered by the law.
In a last-ditch effort to avert Shakir’s removal, HRW and Shakir petitioned the court last week for a rehearing before an extended panel of judges. Given the court’s reluctance to reopen the issues that were decided in Avneri and to hear constitutional arguments against the 2017 amendment, it seems unlikely that this new petition will be successful. Meanwhile, Shakir—whose request to remain in Israel until the new petition is decided was quickly denied by the court—left the country on Nov. 25.
Human Rights Groups in Israel: An Uncertain Future?
The court attempted to mitigate the potential impact of its decision on the future work of human rights groups by drawing a distinction between Shakir and HRW, emphasizing that HRW can always request a visa for someone else who is not “involved up to his neck” in BDS activities. “It could very well be,” the court stated, “that Shakir’s activities as the organization’s representative do not justify classifying Human Rights Watch as a boycott group—whether because … they constitute a negligible portion of HRW’s global endeavors, or because of their content. But when taken together with [Shakir’s] previous personal activities, they suffice in their entirety to demonstrate ‘substantial, consistent and continuous’ involvement by Shakir in promoting boycotts[.]” By grounding its decision in the specific facts of Shakir’s case—his involvement in BDS before ever joining HRW and his refusal to commit (as Alqasem had done) to refrain from promoting boycotts while in the country, the court hoped to sidestep the sticky question of how the 2017 amendment, as applied by the court, would impact the future work of human rights groups.
Ultimately, however, the court’s distinction between Shakir and HRW remains unpersuasive. As noted, the law pursues preventive rather than punitive aims—and past activity is therefore insufficient to warrant deportation. 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.” Indeed, HRW has announced that Shakir will remain its Israel-Palestine director, operating from a neighboring country. “There’s no point in replacing Omar, because our next researcher would have the same problem,” HRW Executive Director Kenneth Roth explained.
In Alqasem, the court noted that the preventive rationales of the 2017 law are aimed at those who “threaten Israeli democracy and seek to subjugate it through the imposition of an aggressive and violent boycott.” 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). Indeed, 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.
And while the judges who handed down the European Court of Justice’s Nov. 12 judgment on settlement product labeling are unlikely to meet the same fate as Shakir the next time they come to Israel, the two decisions—rendered within days of one another—nonetheless demonstrate a growing disconnect between the discourse on settlements in Israel (and now, perhaps, the United States) and abroad.