Monday, March 21, 2011

How the Proposed Anti-Boycott Law is Virtually Unenforceable

I got around to reading the latest version of the proposed law purporting to make Israelis who call for a boycott on Israel liable to civil suits. When the bill first was proposed, I wrote a post called, "Don't Buy Golan Wines – And Sue Me." Now that it is Purim afternoon in Jerusalem, when many Jews are so drunk that they don't know the difference between blessing Mordecai and cursing Zev Elkin (the M.K. who proposed the bill), it's time to look at the clauses of the law that deal with the strictures on individuals. Here is the latest version:

In this law, "boycotting the state of Israel" is defined as intentionally refraining from economic, cultural, or academic ties with a person, or other party, only because of his connection to the State of Israel, one of its institutions, or territory under its control, whose intention is to harm economically, culturally, or academically.

One who knowingly publishes a public appeal to boycott the State of Israel, and according to the content of the appeal, and the circumstances in which it is published, there is a reasonable possibility that the appeal will lead to the aforementioned boycott, and the person who publishes it is aware of the this possibility, commits a civil injustice and the directives of the criminal law [new formulation] will apply to him.

And what are the directives? The violator will be liable to a suit for damages (including punitive damages) from the individuals and bodies affected.

Now at first glance, this sounds scary. Even if I sign a petition calling for a boycott, something can happen to me.

In fact, the law is riddled with holes so wide that an Israeli who publicly supports the international BDS movement could drive a Caterpillar bulldozer through it.

For example, say I call for a boycott of Golan wines on my blog. Or I start a petition on the web. Not only does there have to be a probability that my call will be answered in such numbers that it will have an affect on Golan wines, the companies affected will have to show that specific clients who would otherwise have bought Golan wines have now decided not to buy aforementioned wines because of my public appeal. How else can a court decide whether such an effect is likely or reasonable. Oy, if I only had such power!

Another example: An Israeli BDS group appeals to Elvis Costello to cancel a concert here. Say that the organizer of the concert decides to sue the group (hardly likely; think of the implications for business). What would a court do if Costello says that his cancellation was not a direct result of the appeal to boycott. How long would the trial drag on?

Another example: Artists publish an advert saying that they will not appear in the Occupied Territories. Such an example would not be covered by this law, which penalizes the parties that call for a boycott, not the boycotters.

Another example:A university professor in Israel, or a group of professors, calls for an academic boycott of Israeli universities. This has happened in the past and will happen in the future. Does anybody think that the universities will sue their faculty for damages? And how will they be able to prove it? Indeed, how they will be able to prove that the appeal has a reasonable chance of succeeding?

In short, the topsy-turvy (English for nahafokh hu) beauty of the law is that it will be virtually impossible to enforce, and yet its very presence will cause real damage to Israel's image.

Is Zev Elkin employed by the Global BDS movement?


pabelmont said...

An Israeli (or other person falling under Israeli JN, perhaps a Palestinian in OPT) who declines to purchase Israeli-Golan wine BECAUSE it is from OST with intent to harm the vintner economically is boycotting and subject to the law.

An Israeli court might have to prove the "intent" and the "because" and the "declines", but is such a small number of impossible proofs beyond an ideologically energized "court", perhaps a "military court"?

shmuel said...

Pabelmont: The rules of evidence in Military Courts are exactly the same as an Israeli regular court, so the act of proving the various elements would be the same.

However since the law is to be a Knesset enacted law there is no jurisdiction in a military court.

It's a shame that you use the subject of BDS to redirect and have an unjustified bash at the military courts which are not in any way "ideologically energised" but rather enforce the law.

The proposed law is a sham and I agree with Jerry here.

fiddler0 said...

Pabelmont, I understand the bill criminalises *calling for* boycott, not boycotting itself. So you could legally chose not to buy anything at all, you just can't tell anyone about it...

"Ridiculous, counterproductive and stupid" - would the Israeli P.J. Crowleys please stand up?