Why Anti-Boycott Laws Are Democratic


A recent wave of alleged “anti-democratic” bills is dominating much of the political debate in Israel and recently triggered U.S. Secretary of State Hillary Clinton to express her concern about the state of the Israeli democracy. This recent “anti-democratic” wave, including bills such as the donation bill (aimed to limit donation to certain political NGOs (non-governmental organizations) and the anti-boycott law, unleashed severe criticism.

While it is certainly important to protect Israeli democracy, the “anti-democratic” nature of these moves deserves a deeper look.

Take the anti-boycott law that made publicly calling for an economic, cultural or academic boycott of the State of Israel or any of its territories a civil offense.

This law raised deep concern throughout public opinion about restrictions on freedom of speech and the protection of Israel’s democratic nature. Newspaper articles and editorials alarmingly declared that Israeli democracy had been “seriously tarnished by a new law intended to stifle outspoken critics of its occupation of the West Bank,” (The New York Times) and that this law was a “huge step toward fascism” (Ynetnews).

Fascism, really?

As uncomfortable as it may be to admit it, in a democracy, freedom of speech, just like any other fundamental freedom, should not be unlimited. A democracy is all about balancing between rights. Thus, no right should prevail, in an absolute way, on other fundamental principles. Restrictions on freedom of speech can be justified for various reasons (for example, to prevent hatred, discrimination and racism) and, by principle, are not anti-democratic.

Similar legislation exists in other Western democracies including France, Germany and the United States. Ironically, the United States and France both passed anti-boycott laws in the 1970s to counteract the Arab League’s boycott of Israel. These laws were based on several grounds: economic arguments (freedom of trade and freedom of competition), moral considerations (the fight against discrimination) and the governments’ desire to control boycotts carried out within their borders.

No opponents of this law would dare accuse these countries of not being democratic.

The European Court of Human Rights (ECHR) dealt with this issue in Willem v. France (2009). The ECHR examined a complaint filed by a French mayor, Mr. Willem, claiming the Cour de Cassation (French Supreme Court) had violated his right of freedom of expression by condemning him for having called his colleagues to boycott Israeli products in the municipality. Willem argued his call to boycott Israeli goods was part of a political debate concerning the Israeli-Palestinian conflict.

The ECHR stated the mayor was not convicted for his political opinions, but for inciting to the commission of a discriminatory act. The court therefore rejected his claim, reasoning that the restriction on freedom of expression by French law was proportionate. Therefore, according to the ECHR, there is a clear difference between legitimate expression of opinions and illegitimate actions.

Obviously, no opponents of this law would dare accuse the ECHR of undermining or trampling democratic values.

Finally, it is essential here to keep in mind that the boycott movement has little to do with the settlements. Most Israelis participating in this boycott have no idea what it is, its origins and its goals. While they think they are actively showing their disagreement with the policy of their government on a specific issue, they are actually participating in a massive, well-orchestrated, international campaign of delegitimization aimed at demonizing and isolating the State of Israel, ultimately undermining Israel’s right to exist as a Jewish state.

The Arab boycott movement began in the 1920s, long before Israel existed, by targeting Zionist institutions and Jewish businesses in the British Mandate of Palestine; the Arab League officially adopted the boycott in 1951 and the general call to boycott Israel was formally launched in 2005 by the Boycott, Divestment and Sanctions (BDS) movement.

Ever since, BDS activists single out Israel and brand it as an apartheid state. As they toil hard to impose a global boycott of Israel, they consider the partial boycott (i.e. boycott targeting “only” the settlements goods) as a blessed tactic as well, serving the same ultimate goal of delegitimization.

The fact Israel needs such a law to protect itself is a sad statement. This wave of laws, despite making people uncomfortable, had the merit of making them face the reality: there is a profound moral problem, as a Jew, to help and support those aiming to destroy you. The Knesset passing this anti-boycott law only reflects the failure of the Israeli society to solve this moral issue by itself.

The real question is not whether this law is democratic or not, or whether it is an efficient and appropriate tool to fight against the boycott phenomenon — which deserves a profound discussion on its own — but, first and foremost, how we arrived to the point where the Israeli government needed to promote such a law.

Lisa Levy is an attorney and a member of the World Jewish Diplomatic Corps (WJDC).