"Anti-Boycott Law" - Prevention of Damage to the State of Israel through Boycott

The “anti-boycott” law creates a new civil wrong, or ‘tort’, based on the boycott of the State of Israel or any area under Israeli control. It states that anyone who calls for an economic, cultural, or academic boycott of Israel, or the Israeli settlements in the OPT (which are illegal under Article 49 of the Fourth Geneva Convention), is committing a tort and is therefore subject to civil liability – penalties include monetary compensation.^[1]

The law also provides for the revocation of tax exemptions and other legal rights and benefits from Israeli associations, as well as academic, cultural and scientific institutions, which receive public funding, if they call for or engage in boycott.  It therefore ‘punishes’ diverse public institutions and bodies by absolutely revoking their eligibility for funding that they are entitled to by law. It also denies budgetary and economic benefits to parties that promote a boycott and causes them financial harm by excluding them from bids for public tenders and by revoking the tax-exempt status of organizations for donations they receive.

The law seeks to suppress a legitimate form of dissent – boycotts – a recognized form of expression protected under international law. Specifically, the law targets boycotts against the State of Israel or institutions with ties to the state, and was enacted in response to 'boycott, divestment, and sanctions' (BDS) campaigns. This restriction hinders Palestinians from engaging in peaceful resistance against their oppressor and individuals seeking to boycott Israel or entities complicit in its occupation and human rights violations.

Main provisions:

Section 1

●      Under this law, “a boycott against the State of Israel” means – deliberately avoiding economic, cultural or academic ties with another person or another factor only because of his ties with the State of Israel, one of its institutions or an area under its control, in such a way that may cause economic, cultural or academic damage.

Section 2

●      A. Knowingly publishing a public call for a boycott against the State of Israel will be considered a civil wrong to which the civil tort law [new version] applies, if according to the content and circumstances of the publication there is reasonable probability that the call will bring about a boycott and he who published the call was aware of this possibility.

●      B. In regards to clause 62 [A] of the civil tort law [new version], he who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be viewed as someone who operated with sufficient justification.

Context:

This law’s passage comes in the wake of increased calls internationally and in the areas that Israel controls to participate in campaigns of ‘boycott, divest, and sanctions’ (BDS) against Israel, and individuals and institutions that are complicit in Israel’s occupation and human rights violations. Israel has consistently made clear that it views this form of legitimate and non-violent dissent as unacceptable and illegal, without providing evidence.

In a Knesset committee discussion, the initiator of the law, MK Ze'ev Elkin stated the following: “In the past, we couldn’t have imagined that there would be those among us who would lead campaigns to boycott the State of Israel; today, unfortunately, this is an expanding phenomenon... The time has come to put an end to it, and this law comes to protect the State of Israel...”^[2] This statement makes clear that the law was passed for political purposes, to “protect” Israel and any Israeli entity from people’s legitimate right to partake in freedom of political speech through boycott.

According to the explanation attached to the bill: “The objective of this law is to prevent damages caused by the phenomenon of boycotts that are imposed against various entities due to their ties to the State of Israel. The boycotts may directly harm the business, cultural or academic activities of the boycott's target and cause significant damages both economically and to its reputation and good name.”

Boycotts have played a significant role in opposing oppressive regimes, discriminatory policies, and social injustices, and they are widely recognized as a legitimate form of resistance and political pressure. The international boycott of South African Apartheid, in particular, played a major role in ending the apartheid regime and demonstrated the power of this tool in imposing economic costs on those responsible for human rights violations. In the case of South Africa, the anti-apartheid movement received support from the United Nations General Assembly, which, in 1962, called for economic measures, including the boycott of South African goods.^[3]

Why is it discriminatory? 

By virtue of this law, individuals and associations are rendered unable to exercise their freedom of expression and engage in lawful means of opposition to repressive policies and practices. These limitations on freedom of expression disproportionately impact Palestinians, as the intended beneficiaries of such boycotts, and people who support Palestinian rights who participate in boycotts.

The serious sanctions imposed by the Anti-Boycott Law on political expression create a ‘chilling effect’, deterring those who wish to peacefully express a political stance against the Israeli government’s policies.

A call for boycott falls under the freedom of expression as protected under international law. Article 19 of the UDHR states that "everyone has the right to freedom of thought, conscience and expression," while Article 19 of the ICCPR elaborates on this right, specifying that it includes the “freedom to seek, receive and impart information and ideas of all kinds”. Several international bodies have further affirmed that this legislation violates the freedom of expression and association. In 2014, the Human Rights Committee considered Israel's anti-boycott law to fall within the scope of Article 19 (freedom of opinion and expression) and Article 22 (freedom of association) of the International Covenant on Civil and Political Rights (ICCPR). The committee expressed its concern over the passage of the law. Additionally, the Special Rapporteur on Freedom of Expression noted that the law violates the freedom of expression. Importantly, the European Court of Human Rights additionally ruled in 2020 that calling for a boycott of goods from Israel is protected by the right to freedom of expression.^[4]

The law also has particular and absurd consequences for Palestinian permanent residents of East Jerusalem: A call for a boycott by residents of East Jerusalem against Israel’s settlement enterprise would give settlers the right to demand compensation from victims of the occupation themselves.^[5] Under its provisions, therefore, Palestinians in East Jerusalem who live under occupation are denied a major lawful and peaceful means of resistance against the very people occupying their land.

It is clear that the purpose of the Anti-Boycott Law is to suppress the political speech of the BDS movement and proponents of the boycott of Israel, because the law only prohibits the use of political boycotts that are opposed to the State of Israel and its policies. The law does not prohibit the use of boycott as a tool for political expression in any other context, a fact that makes clear the discriminatory intent behind the law, as well as its discriminatory effect: to suppress any and all criticism of the State of Israel’s oppression of Palestinians. This distinction violates the right to equality and constitutes illegal discrimination of the right to legitimate political expression of Palestinians and their defenders.

Legal challenges to law:

●      HCJ 2072/12, The Coalition of Women for Peace, et al v. The Minister of Finance, et al:  Petition (excerpts) in English; Petition in Hebrew; State Response (Excerpts in English). Israeli Supreme Court: Judgment affirming the constitutionality of the law was delivered on 15 April 2015.

●      In March 2012, Adalah and ACRI submitted a petition to the Israeli Supreme Court, on behalf of leading human rights organizations and Israeli and Palestinian groups affected by the law, demanding its cancellation. In December 2012, the Supreme Court issued an order nisi against the law and ordered the state to explain why it should not be invalidated.

●      In April 2015, the Supreme Court upheld the constitutionality of the law, but struck down one key provision, Section 2(C), which had allowed for parties accusing individuals/associations of committing the violation of a boycott of the State of Israel to seek a civil remedy and pay compensation to the accusing party, even if there was no actual damage done. See English Summary of decision issued by the Supreme Court.

International criticism:

●      Human Rights Watch, Israel: Anti-Boycott Bill Stifles Expression | Human Rights Watch:

○      "Whatever one thinks about boycotts, a law that punishes peaceful advocacy in opposition to government policies is a baldfaced attempt to muzzle public debate…This law attacks Israeli civil society and will turn back the clock on freedom of expression and association." 

●      Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue:

○      “[T]he Special Rapporteur is of the view that the law violates the right to freedom of opinion and expression, as calling for or participating in a peaceful boycott is a legitimate form of expression which is internationally recognized. Moreover, given that lawsuits can be brought against individuals without any proof of damages, it creates further incentives for self-censorship, including on the Internet, to avoid litigation. The Special Rapporteur is concerned by reports that, since the adoption of the law, the ability of individuals to freely discuss boycott-related issues via social media platforms has diminished significantly.”

●      Amnesty International, Israel anti-boycott law an attack on freedom of expression

○      “Despite proponents’ claims to the contrary, this law is a blatant attempt to stifle peaceful dissent and campaigning by attacking the right to freedom of expression, which all governments must uphold…The broad definition of boycott could apply to anyone seeking to use this non-violent means of dissent to criticize any individual or institution involved in human rights violations or violations of international law in Israel or the Occupied Palestinian Territories.”

●      Concluding Observations of the Human Rights Committee in its fourth periodic report on Israel (2014)

○      “The Committee is concerned at the chilling effect that the Boycott Law (5771-2011), which provides that a call for economic, cultural, or academic boycott of people or institutions in the State party or the OPT for political reasons is a civil offence…”

●      Joint statement by coalition of human rights organizations –  Euro-Mediterranean Human Rights Network (EMHRN), Front Line, the Observatory for the Protection of Human Rights Defenders - a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH) - and the Quaker Council for European Affairs, Anti-boycott law violates human rights and further undermines Israeli democracy EU must unequivocally condemn the law

○      This “attempt to prohibit [boycott] severely restricts freedom of expression as it targets non-violent public expressions of opposition to Israeli occupation policies…This new law constitutes an unacceptable attempt to silence and severely restrict the activities of civil society organisations in Israel. It is part of an ongoing campaign that seeks to delegitimise the activities of Israel’s civil society organisations, in particular those defending the basic human rights of Palestinians in the OPT and denouncing the occupation and its consequences.”

●      In its 2023 report, the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel noted that “Israeli authorities have passed laws to reduce and restrict civil society activities. These include amendment No. 40 to the Budgets Foundations Law 2011, the 2011 anti-boycott law, the 2016 amendment to the Law of Associations, the 2016 Counter-Terrorism Law and amendment No. 28 of March 2017 to the law on entry into Israel.”