Omphalos

The Israeli Anti-BDS Travel Ban in (Legal) Context

By Elena Chachko
Thursday, March 9, 2017, 12:57 PM

On Monday, the Israeli Knesset passed an amendment that imposes an entry ban on foreign nationals who have publically called to boycott Israel, or act on behalf of organizations that have done so. This is not the first time Israeli law has imposed sanctions on the basis of speech in the framework of Israel’s anti-BDS (Boycott, Divestment and Sanctions) campaign. Previous legislation in this vein had largely survived judicial review, and there is little reason to expect that the fate of the new amendment would be any different.

The new amendment to the Entry into Israel Law, 1952, sponsored by MKs from the right-wing Jewish Home party and the centrist Kulanu party, passed the Knesset in a 46-28 vote. It drew immediate comparisons to the Trump administration’s revised travel ban executive order, issued on the same day. The amendment provides that a foreign national who has “knowingly issued a public call to boycott the state of Israel”, “pledged to participate in said boycott” or acts on behalf of a group or an organization that have done so shall be denied an entry visa or a residency permit of any kind. The Minister of the Interior may make exceptions in special cases. It is important to note that the Minister already had broad authority to deny or revoke visas under the Entry into Israel Law. The new amendment requires the Minister not to issue visas to boycott promoters.  The amendment does not apply to Israeli citizens and permanent residents, but it might apply to persons currently residing in Israel, including Palestinians, who have yet to be granted permanent residency status.

The amendment incorporates the definition of boycott introduced by its precursor, a 2011 Bill titled “The Prevention of Harm to the State of Israel by Means of Boycott Law” (also known as “the Boycott Law”). Article 1 of the Boycott Law defines boycott as

deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm.

In other words, both the Boycott Law and the new amendment cover calls to boycott not only Israel proper, but also its presence in the West Bank.

The Boycott Law, which applies to Israeli citizens and permanent residents, also provides for various legal and administrative sanctions against boycott supporters.  Article 2 of the Law attributes tortious liability to those who knowingly publish a public call to boycott Israel, if there is a reasonable possibility that the call will lead to a boycott.  Originally, article 2(c) of the Law empowered courts to require those found to have committed this tort “with malice” to pay punitive damages, i.e., damages without proof of harm. The Law did not cap the amount of punitive damages plaintiffs could collect under that provision. Article 3 of the Law authorizes the government to restrict the participation in public tenders of anyone who has called to boycott Israel, or who committed to participate in a boycott. Article 4 allows the government to deny boycott supporters tax exemptions and other government benefits. Decisions according to articles 3 and 4 of the Law are subject to certain implementation and authorization procedures.

In 2015 an extended panel of the Supreme Court of Israel (sitting as the High Court of Justice) upheld most of the Boycott Law. In its 232-page long decision in Avneri v. Knesset the Court held that only article 2(c) concerning punitive damages violated the right to freedom of expression in a manner inconsistent with constitutional requirements. It unanimously dismissed the challenges to articles 3 and 4 of the Law, the provisions allowing the government to deny boycott supporters certain government benefits. However, the Court noted that the constitutionality of these two provisions could be challenged again after their implementation. The remaining “boycott tort” provisions of article 2 of the Law stirred controversy among the justices, with four of the nine justices on the panel dissenting.

Justice Hanan Melcer, who wrote the majority opinion, upheld the remaining provisions of article 2 of the Boycott Law but interpreted them narrowly. He raised the burden of proof for plaintiffs seeking damages under the Law and limited the right to bring suit to those directly injured by boycotts. Justice Melcer reasoned that because calls for boycotts are meant to coerce rather than persuade, they do not deserve the same level of constitutional protection as other forms of political expression. A democratic state, he held, may legitimately defend itself against boycotts directed at its citizens by imposing proportional legal sanctions. He cited examples of measures against boycotts directed at Israel from other jurisdictions, including the U.S. Finally, Justice Melcer emphasized that the Boycott Law only imposes limitations on the act of calling for a boycott, not the underlying criticism against Israel.

The dissenting justices, in three separate opinions, concluded that article 2 of the Law is unconstitutional in its entirety. Justices Danziger and Vogelman distinguished between calls to boycott Israel as such that attempt to undermine its very existence, which the government can legitimately target, and calls to boycott its presence in the West Bank. The latter type of expression, they found, goes to the heart of one of the deepest political controversies in Israel. By limiting such expressions, the government attempts to impose its views on those whose opinion is different. Justice Danziger concluded that in order to remedy the constitutional flaw, the definition of a boycott in article 1 of the Law should be interpreted as applying only to calls to boycott Israel as such. Justice Vogelman invoked the “blue pencil rule”, finding that the words “an area under its control” should be excised from the definition altogether.

Justice Hendel’s dissent emphasized the fact that article 2 empowers private citizens to bring “boycott tort” suits against others, instead of leaving it to the government to act against boycott supporters. He warned that the new tort article 2 creates could become an instrument for widespread politically motivated litigation that would chill political speech. He concluded that article 2 fails to meet the constitutional requirement of proportionality between harm to the freedom of expression and the legitimate interest of the state in defending itself from boycotts.

In light of Avneri, there is little reason to expect that the new amendment would face any significant legal hurdles within Israel, despite its potential chilling effect on legitimate criticism and protest. Considering that the Court largely dismissed a challenge to boycott-related sanctions that can be imposed within Israel against Israeli nationals, it is highly unlikely that it would be more stringent where it comes to sanctions principally directed at foreigners (although, theoretically, the amendment could affect Israelis working with certain international groups and organizations and residents in line for permanent residency status).

Perhaps the more interesting question is whether the amendment actually changes anything in practice. The law now requires the Minister of the Interior not to issue visas and permits to boycott supporters. Until now, the Minister had discretion whether to do so. Will the amendment block more boycott supporters from entering or staying in Israel compared to the number of visa denials before its enactment? Will authorities employ methods they have not used before to identify boycott supporters? If so, will safeguards be put in place to protect the privacy of those seeking visas? The language of the amendment answers none of those questions.

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