Activists need a solid legal strategy to resist states succumbing to Israel pressure and imposing BDS bans.
Washington, DC – In the United States, far away from Israel, there is a related storm a-brewing.
In recent months, state legislatures have been passing bills that target supporters of the Boycott, Divestment and Sanctions movement (BDS) that seeks to pressure Israel into ending its occupation of Palestinian and Arab territories, and to grant its own Palestinian citizens full rights.
At least 26 such bills have been introduced nationwide in 2017, according to Palestine Legal, a group that provides legal advice to US-based pro-Palestine civil rights activists.
The bills would financially punish organisations and companies that boycott Israel, for example by limiting their possibilities to get public contracts.
“We’re seeing an increase in efforts to stifle Palestine advocacy work,” said Rahul Saksena, staff lawyer at Palestine Legal. “One of the more recent trends is a shift towards state lawmakers to introduce and pass bills that aim to suppress or punish activism.”
Over the years, as hopes for a solution to the Palestinian-Israeli conflict diminished, support for BDS rose among artists, companies, even churches. Israel has slammed those who boycott or divest from it as anti-Semites, and said that the real aims of the BDS movement are to undermine its right to exist.
BDS supporters here are pushing back. Using legal means and grassroots activism, they are educating politicians about the movement, and challenging anti-BDS bills by invoking First Amendment rights.
“We are focusing on fighting these new bills, to tell the public and lawmakers that BDS is a constitutionally-protected right,” Saksena said. “It’s important for lawmakers to know that, especially in this climate in the Trump era, where our right to dissent is increasingly necessary and valuable.”
Since Donald Trump was elected president, a growing number of anti-protest bills have surfaced.
Politicians in states such as Tennessee and Virginia have either voted on or introduced legislation that could curb protesters’ abilities by, for example, raising the stakes for blocking highways or banning the use of masks during demonstrations.
“It’s true we’ve seen a rise in [anti-BDS] bills even before the new administration,” said Naomi Dann, media programme manager at Jewish Voice for Peace, an anti-occupation activism group. “But I think there’s another rise again that goes hand in hand with the way state legislators – under the Trump administration – have tried to pass laws that criminalise protesting.”
Some social justice groups believe that Trump’s administration, which welcomed Israeli Prime Minister Benjamin Netanyahu to the White House in its first month, and appointed a fervently pro-Israel ambassador to Tel Aviv, has given state legislators added impetus to showcase their support for Israel.
But the groups say that this political climate has only emboldened them.
“In some ways [these anti-BDS bills] have had the opposite effect, in the sense that local coalitions have sprung up in many states to try and fight them,” Dann said. “And it’s resulted in BDS activists having better relationships with local legislators, and with each other.
“Most recently there was a vote on a bill in North Carolina that moved through the House. About quarter of legislators voted against it. It’s not as high as we hoped it would be but it shows there are increasingly more lawmakers willing to speak up against these bills, particularly on the grounds of free speech.”
In early March, the New York Senate fast-tracked and passed three anti-boycott bills. Unlike the heavily Republican-sponsored bills targeting protesters in general, these pieces of legislation were widely supported by Democrats. Each of these bills targeting BDS had been introduced in different versions and rejected in the past, but this time passed without debate or public input.
One of the bills stipulates that the state would cease to invest in or contract with companies and organisations that support boycotts for Palestinian rights – a prohibition already in effect through a highly criticised executive order signed last year by Democratic governor Andrew Cuomo.
Other states have since followed suit. The Minnesota state legislature is currently considering two similar bills that would deny state benefits, including contracts, to those who boycott or divest from Israel. In Maryland, legislators introduced a bill that, like its Minnesota counterpart, would prohibit companies or individuals from contracting with the state should they support BDS.
Free speech debate
These tactics are not new, but part of “a decades-long attempt by pro-Israel advocacy groups to stifle pro-Palestinian speech in the US,” said Nathan Thrall, a Jerusalem-based senior analyst at the International Crisis Group.
“When, in the 1970s, [founding] PLO member Shafiq al-Hout was scheduled to speak at several US universities, pro-Israel groups not only called – ironically – to boycott the events, but to cancel them. They also lobbied the state department to revoke al-Hout’s visa and deport him,” Thrall said.
Supporters believe their push-back against these bills, coupled with the backlash against Trump’s proposal to temporarily ban entry into the US of travellers from six Muslim-majority countries, has shifted the discourse on Palestine into the larger debate on free speech and the fundamentals of democracy in the US.
“It is actually helping us expand our support because the issues are now part of a broader debate rather than a debate on the Israeli-Palestinian conflict. It is now part of the discourse on the values that run American society,” said Hatem Bazian, director of the Islamophobia Research and Documentation Project at the University of California, Berkeley.
“The political discourse in the US, amidst the rising tide of right-wing policy, has created a greater opening for more assertive engagement on Palestine and the coalescing of Palestinian issues in the general discourse.”
Since its inception, the BDS movement has grown in support and power, and with it an increase in pressure on artists, writers and academics to end their collaboration with Israel. Initially, Israel and the movement’s critics trivialised BDS, pointing to its low economic impact.
But in recent years, BDS initiatives have been undertaken by dozens of local councils in Europe and Australia, and by several US churches and Quaker bodies. Artists, notable scientists and public figures have heeded the campaign’s call to boycott Israel, while some academic institutions in Europe and North America voiced support for the movement.
BDS says its campaigns have led to soft-drink company SodaStream closing its factory in an illegal West Bank settlement, French telecom Orange leaving the Israeli market, and the Bill Gates Foundation cutting ties with G4S, a company that provides security services to Israeli checkpoints and prisons.
Since then, Israeli government officials have become more vocal about their disgruntlement with BDS initiatives, and earmarked millions of dollars to fight them. Last month, authorities arrested Omar Bargouthi, cofounder of the BDS movement, on alleged tax evasion. The BDS National Committee said his detention was an intimidation tactic to silence and intimidate him.
Recently, Israel passed a bill denying entry to foreigners who support boycotting it or its West Bank settlements. Its Public Security Minister Gilad Erdan – who is in charge of government efforts to combat BDS – announced plans for a database of Israelis who support the movement.
With anti-BDS efforts on the rise, analysts believe that these measures have the potential to backfire.
“At present BDS is a fairly marginal movement, embraced by only a fraction of even those people who care deeply about Israel-Palestine,” Thrall said.
“But it has the potential, thanks in significant part to anti-BDS legislation, to become something much larger: a leading cause for advocates of free speech. The risk for pro-Israel groups is that their legislative victories wind up paving the path to a popular defeat.”