The recent Pew Poll reporting a decline in Democratic support for Israel sparked much hand wringing, debate and critical analysis. Some dissected the poll’s weaknesses. Others examined the partisan issues in play. Still others focused, correctly, on American progressives’ substantive objections to the policies of the Israeli government and the values they embody.

But too many are still unwilling to talk about the key related factor causing the estrangement of Democrats, and American progressives in general, from Israel: the gradual redefinition of “pro-Israel” to mean support for extremist, anti-democratic policies not just in Israel, but in the United States as well.

This trend, which pre-dates President Trump, sees the growing use of “pro-Israel” advocacy as a weapon to undermine fundamental American values and rights protected in our own Constitution, and bafflingly, sees such efforts supported and defended by leaders who otherwise claim the mantle of champions of progressive values.

The clearest example of this trend is ongoing and energetic efforts to quash free speech in America, in the name of defending Israel. These efforts have come in the form of bipartisan legislation at the federal and state level, designed to curb and even criminalize criticism and activism targeting Israel and its policies, or to define such speech as “anti-Semitism.”

Such legislation has already been adopted in more than 20 states (in 3 states by Executive Order). The American Civil Liberties Union (ACLU), the Center for Constitutional Rights, and National Coalition Against Censorship, and others have challenged such efforts as unconstitutional (the ACLU has cases pending against the laws, so far, in Kansas and Arizona; in the Kansas case, a federal judge this week sided with the ACLU in issuing a preliminary injunction blocking enforcement of the law).

Yet AIPAC, the Anti-Defamation League, and most Jewish community organizations remain fully on-board in supporting and promoting such legislation, along with many progressive politicians.

Indeed, despite the court challenges and opposition from free speech watchdogs, the legislative campaign shows no signs of abating. Since January 1, new anti-free speech legislation has been introduced already in at least 6 states.

Moreover, recent weeks saw the opening of a new front in this battle, one that puts these illiberal forms of defending Israel directly at odds with broadly defined human rights values

On January 11, 2018, the New Orleans City Council adopted a resolution calling for a review the city’s investments and contracts. The goal of this review was to bring the city in line with its values, laid out in the resolution: New Orleans “has social and ethical obligations to take steps to avoid contracting with or investing in corporations whose practices consistently violate human rights, civil rights or labor rights, or corporations whose practices egregiously contract efforts to create a prosperous, educated, healthy and equitable society.”

It was no secret that activists concerned with Palestinian rights, including those advocating for boycotts, divestment, and sanctions (BDS) against Israel, supported or even drafted the New Orleans resolution. And because of that, and despite the fact that the resolution in no way singled out or even mentioned Israel, the resolution was swiftly denounced as a “stealth” attack on Israel. Groups like the Anti-Defamation League pressured the Council to rescind it, and prominent New Orleans Rabbi Ed Cohn alleged that the resolution “cleverly masqueraded as a high-minded civic statement designed to prevent human rights abuses…It sounded so good. It took no time, however, to see the deception.”

This reaction highlights a painful truth: any call for the defense of human rights, if applied universally, will today inevitably raise questions about Israel, and especially the policies associated with Israel’s 50-year long occupation of the West Bank, East Jerusalem, Gaza, and the settlement enterprise that they support. The only way to insulate Israel from such questions is to either kill such calls outright, or to explicitly exempt Israel from the same rules and standards that apply to the rest of the world.

American defenders of Israel have often condemned critics, and especially BDS advocates, for unfairly singling out Israel for special scrutiny or holding it to a higher standard than other countries. Ironically, many of these same defenders of Israel condemned the New Orleans resolution for doing precisely the opposite. They are arguing, in effect, that when talking about human rights, it is unfair to subject Israel to the same scrutiny as the rest of the world; they are suggesting that failing to hold Israel to a different, lower standard than the rest of the world when it comes to human rights is a new form of anti-Israel, anti-Semitic behavior.

On January 25th, the New Orleans City Council gave in to pressure and rescinded its human rights resolution. In so doing, it acquiesced to a definition of “pro-Israel” that demands the sacrifice of respect for universal values, the rejection of global standards of human rights, and the delegitimization of international law.

With U.S. values and rights hanging in the balance, self-described progressive politicians and groups like the ADL are betraying their own values and principles when they embrace illiberalism-in-defense-of-Israel, leaving them standing with the likes of Christians United for Israel, the Zionist Organization of America, the Republican Jewish Coalition, and hardline Israelis, and standing against the ACLU, MoveOn.org, and CREDO, not to mention J Street, Americans for Peace Now, IfNotNow and, of course, Jewish Voice for Peace. In so doing, they are contributing to the diminution of support for Israel among Americans who are repulsed by the notion that support for Israel demands the sacrifice of the values and rights that are at the core of what it means to be a progressive.

Read the article on The Forward‘s website.

FMEP’s President Lara Friedman joined Churches for Middle East Peace for a webinar explaining the “Israel Anti-Boycott Act,” a piece of legislation moving in the Senate (S 720) and the House of Representatives (HR 1697).

In a recent op-ed, “The Israel Anti-Boycott Act is an Act of Political Persecution” Lara explained how the bill, if passed, would impact her. She writes, “a plain-English reading of the law makes clear that the impact is far wider, seeking to silence, deter, and punish U.S. persons, like me, for exercising the basic right to free political speech in calling for and supporting policies that challenge settlements and occupation.”

You can watch the webinar below, and click here for additional resources.

There’s been a lot of debate over the Israel Anti-Boycott Act. The ACLU—the standard-bearer of all matters related to civil rights and liberties—says unequivocally that the bill violates the First Amendment right to free speech. Others, including some progressives who one would normally expect to defer to the ACLU’s judgment, insist it does not. All of these arguments deal with the hypothetical. To understand the potential impact of the bill, it is illustrative to move from the hypothetical to the actual. I offer myself as a case study.

As a liberal Zionist, I fiercely defend Israel’s right to exist, its right to security, and its legitimacy as a member of the community of nations. I also fiercely care about what kind of state Israel exists as and the values it embodies. I want to see Israel flourish as a liberal democracy that fully implements the rule of law, adheres to international norms, and respects the civil and human rights of all peoples living under its authority.

For all of these reasons, I vehemently oppose Israel’s now 50-year occupation of the West Bank, Gaza, and East Jerusalem, and the odious policies that undergird it. And for all of these reasons, for decades I have advocated in favor of actions—by individuals, businesses, governments, and international bodies—that support Israel by challenging Israel’s ever-expanding settlement enterprise and ever-deepening occupation.

As for activism targeting Israel, I do not personally advocate boycotts, divestment, and sanctions (BDS) against Israel itself, but I defend the right of others to do so. Regardless of why people advocate BDS—and I know from personal experience that it is a convenient lie to suggest that only those who are motivated by hatred of Israel or anti-Semitism engage in BDS—it is a fallacy to suggest that BDS is ipso facto an illegitimate form of protest. Boycotts are protected political speech and are used by Americans—and Israelis—every day to express their beliefs on a wide range of issues. That said, I personally advocate focusing activism on settlements and on the occupation. It is in many ways an arbitrary, manufactured distinction—the government of Israel is inarguably responsible for settlements and for the occupation policies to which I object. But I believe that as a tactic focusing activism this way is far more effective than BDS, making clear that the objective is to change Israeli policies, rather than, as some critics suggest with respect to the global BDS Movement, to undermine Israel’s existence.

In practice, this means that for years I have been a prominent voice both arguing against BDS targeting Israel, and calling for boycotts of settlements products, for truthful labeling of products manufactured in settlements, and for boycott and divestment actions targeting the occupation. I have articulated these views in numerous articles, analyses, and reports. I have spoken on university campuses and in synagogues, and lobbied Congress. I even testified at a special session of the United Nations Security Council.

I have also long urged groups like the UN and EU to promote respect for international law, according to which all settlements are illegal. When the UN and EU have adopted resolutions or decisions reminding nations and companies of the legal obligation to differentiate between sovereign Israel and the occupied territories, and to refrain from activities that support settlements, I have enthusiastically welcomed, endorsed, and echoed these positions—not at the behest of either body, but because these actions align with my own deeply held political views and, indeed, are what I have been calling on these bodies to do all along.

Read the rest of the article on Lobelog.

Rebecca Vilkomerson has been a member of Jewish Voice for Peace since 2001 and the group’s Executive Director since 2009. She lived with her family in Israel from 2006-2009. In 2010 she was named one of the 50 most influential Jewish American leaders by the Forward, and was named one of “14 Women to Watch” in 2014.

 

FMEP: Jewish Voice for Peace (JVP) has, in some ways, been a lightning rod for the global movement for Boycotts, Divestment and Sanctions of Israel (BDS). Many people can’t reconcile the idea of a Jewish organization advocating a boycott of Israel. Obviously, this is especially true for those who see BDS as unfairly anti-Israel, even anti-Semitic. As the Executive Director of JVP, how do you respond to those charges? And, perhaps a parallel question, what would you say are the major differences between the public perception of the BDS movement and its reality?

Rebecca Vilkomerson: From a personal perspective, I don’t think that endorsing BDS is anti-Israel in the least.  The demands of BDS are about transformation. Just as ending apartheid in South Africa did not destroy it, addressing the three demands of the BDS movement would change Israel fundamentally–ideally in ways that would bring equality and freedom for all people in the region, something I would hope would be of interest to most people.

I do want to de-couple the concepts of “anti-Israel” and “anti-Semitic.” As JVP’s statement on anti-Semitism says, in part, “Definitions of anti-Semitism that treat criticism of Israel or of Zionism as inherently anti-Semitic are inaccurate and harmful. The majority of Jews are not Israeli, and not all citizens of Israel are Jewish. Israel is a state; Zionism is a political ideology; Judaism and Jewish identity encompass a diversity of religious and secular expressions and a robust, varied set of traditions, cultures, and lived experiences.”

And that being said, I want to make a case for the legitimacy of “anti-Israel” as a category.  It’s often used as an accusation, as a way to end discussion and almost always linked to or tainted by anti-Semitism.  But Palestinians, whether in Israel or under Occupation or in diaspora, have experienced unbearable loss–of home, property, rights and life–at the hands of Israel. They may be deeply angry or hate the state of Israel based on their direct experiences with violence at its hands.  To demand that they fight for their rights while loving or caring for Israel as a Jewish state, defined by their exclusion or subordination, is not just absurd but cruel. For those of us doing this work in part because we want to see Israel become a better place, it is incumbent upon us to understand and defend those who are struggling simply for the sake of their basic rights with no love lost for the state that oppresses them.

Palestinians, whether in Israel or under Occupation or in diaspora, have experienced unbearable loss–of home, property, rights and life–at the hands of Israel. They may be deeply angry or hate the state of Israel based on their direct experiences with violence at its hands.  To demand that they fight for their rights while loving or caring for Israel as a Jewish state, defined by their exclusion or subordination, is not just absurd but cruel.

In terms of the second half of the question, I think there are numerous misconceptions about BDS.  The reality is that the three core demands of BDS are actually a quite moderate call for basic internationally recognized rights: full equality for all, the end of occupation and the Palestinian right of return. While Jewish communities often react strongly in particular to this last demand, it is enshrined in the Universal Declaration of Human Rights. In fact, my own children have the right to a German passport under the same principle.

BDS does not require a one state solution; in fact, many Palestinian groups that endorsed the BDS call actually endorse two states.

The BDS movement is a Palestinian-led movement originating from a call by a broad coalition of civil society institutions. Its global network of supporters is inclusive, multi-ethnic, multi-racial, and multi-faith, including many Jews from around the world among the individual and organizational supporters. I have always found that the Boycott National Committee, the leadership body of the BDS movement, conducts itself with the highest ethical and anti-racist standards, contrary to common accusations in Jewish communities.

Finally, I think it is important to remember that BDS is a set of tactics and demands, not an end unto itself. I recommend that those who have questions go to the BDS website and look around.  I am always astonished by how many people have criticisms who haven’t gone to the primary source.

FMEP:  In 2010, the Jewish weekly newspaper, The Forward, listed you as one of the 50 “most influential Jewish leaders.” In 2013, the Anti-Defamation League listed JVP as one of the top 10 “anti-Israel groups” in the country. That seems like a really good illustration of the sharp divisions among American Jews that you and JVP more broadly provoke. How do you see your relationship to the Jewish community, including, but not limited to, the major Jewish institutions?

RV: Years ago, when JVP was much smaller, we made some effort to get a “place at the table” at some local Jewish Federations, Jewish Community Relations Councils, Hillels, etc., with the assumption that we belonged in any umbrella group of the Jewish community. Our hope was to challenge the bigger institutions’ positions on Israel/Palestine from the inside, especially once they knew that significant numbers of their community shared our position.  However, we were never successful, and in recent years, specific guidelines have been put in place in many of these institutions to exclude JVP or others who share our views.

More recently, as we’ve continued to grow and the red lines that prevent honest debate about Israel/Palestine and Boycott, Divestment and Sanctions (BDS) have hardened in establishment Jewish institutions, we have evolved a somewhat different approach.  JVP is a vibrant Jewish community to which people can connect through chapters in their hometowns, or as Rabbis, academics, students, labor activists, or health workers.  Our members are showing up together to support other justice struggles like the Movement for Black Lives and the fight against the Dakota Pipeline because they see JVP as their political home. This year, for the first time we are livestreaming High Holiday services from four synagogues and chavurot (communally organized Jewish practice communities) from around the country for members who don’t have access to spiritual spaces where they can bring their full political selves to Jewish practice.

In other words, we are creating our own alternative Jewish institution that doesn’t need approval from or inclusion in the self-identified “major” Jewish institutions. We are creating a new model for Jewish communal life, one that welcomes and centers the multiplicities of Jewish experiences and histories and does not insist on a separation between justice for Palestinians and Jewish identity.  It feels good that other organizations like IfNotNow, Open Hillel and the Center for Jewish Non-Violence are also emerging.  We may not share the exact same approach or focus, but we have enough in common that it feels like a new universe of Jewish space is opening.

Ultimately I really believe that it is to the detriment of the mainstream Jewish communities that they are excluding a vibrant, engaged, and growing segment of the Jewish community in the U.S.

FMEP: With many thousands of members and more than 60 chapters across the country, JVP has certainly magnified its impact from its humble beginnings twenty years ago. But you face the same question all of us working on this issue face: in that time, the Israeli occupation has only tightened, US policy has become even more entrenched, and Palestinian despair has grown. Given that troubling reality, what is the path to success that you see, in both the short and long term?

Also, more than any President before him, Barack Obama came into office with the announced intention of finally ending the Israeli occupation and reaching a negotiated peace between Israel and the Palestinians. Eight years later, Obama will leave office with the situation considerably worse than when he came in, and it seems clear that the next administration, whether Clinton or Trump, is going to be much less concerned about the occupation than Obama. What do you expect going into the next administration, and how do you think it will affect JVP’s efforts?

RV: Your framing is really important and a reminder to all of us of how we have to ground our work in a feeling of urgency given the realities on the ground. But that feeling of urgency also has to be tempered with the reality of what we’re up against–the biggest U.S. aid package to Israel ever just being approved is one reminder.  I’ve combined my answers to your last two questions because I think that JVP is playing a longer game than just the next administration.

We see the U.S. as the linchpin that allows Israel to continue its destructive policies, through the military, economic and diplomatic aid and cover the U.S. offers.  And we (and by “we” here I mean JVP and all the other groups doing this work) know we need to build a seriously strong grassroots movement, as other movements have done at other moments in our history, in order to bring about a profound change in the U.S. approach to Israel.  That is the only power that can go up against the Israel lobby, which includes Christian Zionist organizations, Jewish organizations like AIPAC, and the US arms industry which profits directly from military aid packages to Israel.

Public opinion is demonstrably changing. To offer just one example, 49% of Democrats now support economic sanctions on Israel over settlement construction, according to a Brookings Institution poll from last year. It is clear that the bipartisan consensus around Israel is crumbling, and a new coalition of women, young people, and people of color are emerging that see Palestinians and Israelis as peoples that deserve equal rights and freedom and are willing to take action in support of that belief.  Palestinian rights are becoming an integral part of the progressive agenda, like racial, economic and climate justice.  So while I don’t have immediate hopes (and do have a lot of fears) for the next administration, I also have a lot of optimism about where this movement is going to take us in the long term.

 

The recent decision by the European Union to label products from Israeli settlements in the occupied West Bank has elicited loud cries of protest from Israel and from the Netanyahu government’s supporters in Washington. Critics have claimed that Israel is being treated unfairly, that the EU is trying to pressure Israel into concessions outside of the framework of bilateral negotiations, and that these measures are a part of the Boycott, Divestment and Sanctions movement whose real aim, critics claim, is to de-legitimize Israel.

In fact, the EU measures simply represent an effort to more faithfully implement a longstanding policy, backed by a strong international consensus, of differentiating between the State of Israel within the pre-1967 line, often referred to as the Green Line, and Israeli settlements built in the territories occupied in the 1967 war.

The effort to oppose this differentiation is often based on partial or misleading information, which we address below. It is important to recognize, however, that the unimpeded growth of settlements will eventually foreclose the option of a two-state solution, if it hasn’t already done so, as it will eliminate any possibility of contiguous and economically viable Palestinian state. It is therefore imperative that anyone hoping for a peaceful future for Israelis and Palestinians understand the facts about the settlements, EU labeling and the goal of differentiation.

• Is labeling an attempt to pressure Israel into concessions?

No, it is an attempt to clarify the view of the EU, one shared by the United States, that the settlements are not part of Israel. The labeling decision applies to limited categories of products, mostly agricultural, from the settlements. Israel’s finance ministry said that the labeling decision would impact some $50M per year, which is less than 1% of Israel’s trade with the EU in 2014, a total of $14 billion. It is meant to signal European concern about the lack of a diplomatic process, to be sure. It is a signal that the EU wants to see movement toward a resolution of this conflict resume, but in the absence of that movement, unilateral Israeli steps like settlement building will not be legitimated.

• Is labeling part of an effort by the EU to diminish its trade ties with Israel?

No. The EU extends extremely favorable trade arrangements with Israel, and it has publicly reaffirmed both its support for those arrangements and its opposition to any sort of boycott of Israeli products. Indeed, they have stressed that even when it comes to settlement products, no boycott is being considered by the EU.

• Why is the EU doing this, even though all parties agree there will be territorial changes from the 1967 line in any final agreement?

Along with the overwhelming majority of the international community, the EU views Israeli settlements beyond the Green Line as illegal under international law. Along with the U.S., the EU recognizes that there will likely be an exchange of territories when a two-state solution is agreed upon. Until such agreements are finalized, however, all land captured in 1967 is legally considered occupied territory.

• Is this just a technical decision by the EU to comply with long-standing policy?

Partly. It has long been EU policy that products from Israeli settlements are to be excluded from the very favorable trade deals Israel enjoys with the EU. Until now, however, the EU has not enforced the labeling laws, on the assumption that they would soon become moot in the wake of a peace deal between Israel and the Palestinians. The decision to enforce these measures demonstrates the recognition by the EU that Israel will not soon end its occupation, and is an effort to keep the two-state solution viable.

• Isn’t the EU singling out Israel here? Aren’t there nearly 200 other territorial disputes in the world? Why does the EU treat this one differently from, say, Western Sahara?

The idea of “200 other territorial disputes” has become a popular talking point, but it has little connection to the question at hand. With only a few exceptions, those territorial disputes do not involve the issues of settlements or even occupation. In the case, for example, of Crimea, the EU has banned trade and imports from that territory due to Russia’s intervention there. Multiple U.S. administrations have made clear that resolving the Israel-Palestinian conflict is a core national security interest; the EU measures are fully consistent with that view. Such foreign policy concerns are also explicitly spelled out in the EU’s trade agreement with Israel. The case of Western Sahara is the only truly comparable one to the West Bank, but the EU does not have the same policy in both places, thus labeling requirements are different. While the EU supports a peace process in Western Sahara, it does not recognize the territory as occupied. However, a European court recently ruled that the EU’s 2012 trade deal with Morocco was invalid due to the issue of Western Sahara. As the court’s decision implies, the discrepancy between these policies does not indicate that the policy regarding the West Bank is wrong or discriminatory, but rather that the policy regarding Western Sahara is inconsistent with broader EU policies. The argument this strengthens is not that labeling products from Israeli settlements is wrong, but that the same rule should apply in Western Sahara.

• Why shouldn’t the United States fight the EU on labeling?

As the Obama administration said in response to the EU decision, labeling products from settlements as what they are does not constitute a boycott on Israel. Further, as Secretary of State John Kerry recently pointed out, the process of transitioning Israeli rule over Palestinians to the Palestinians themselves is currently being reversed by Israeli settlement policy. Anyone who supports the two-state solution should welcome efforts to differentiate between Israel and the occupied territories.  Efforts to blur that distinction threaten to enmesh Israelis and Palestinians in a perpetual conflict.

• What is the US stance on settlement products?

The United States’ trade agreements with Israel were expanded in 1996 to include the West Bank and Gaza Strip. This was a part of a larger process of creating a “Qualifying Industrial Zone” to encourage economic cooperation between Israel, the Palestinians, Egypt and Jordan. Nonetheless, products made in the West Bank are required to be labeled as such, though they are not required to be specifically labeled as being from Israeli settlements. Despite this, when Congress passed legislation which applied in a uniform fashion to both Israel and “territories controlled by Israel,” the Obama Administration was quick to declare that, “…by conflating Israel and ‘Israeli-controlled territories,’ a provision of the Trade Promotion Authority legislation runs counter to longstanding U.S. policy towards the occupied territories, including with regard to settlement activity.”

• Won’t this labeling decision amount to a de facto boycott of Israel, and encourage more such boycotts?

No, these measures are not connected the Boycott, Divestment, and Sanctions (BDS) movement. The EU has stated clearly that they are opposed to all boycotts against Israel. One EU official told the Huffington Post, “It is essential to remind that the EU is strictly against any kind of boycott of Israeli products. Accordingly, we consider that a transparent labeling scheme is the best way to avoid that. In the absence of such a scheme, some European consumers and operators intending not to buy products from the settlements might be tempted not to buy Israeli products at all.”

 

In the ten years since it commenced, the global Boycott, Divestment and Sanctions movement (BDS) has slowly but steadily risen in visibility. Today, both the Israeli government and some in the U.S. are presenting it as an existential threat to Israel. Therefore, it is important to determine exactly what we’re talking about when we discuss BDS and it is equally important that we take a critical look at what its real impact is.

What is BDS?

The movement began in July 2005 with a joint call from a wide array of Palestinian civil society organizations, with three main demands: An end to the occupation that began in 1967; equal rights for Palestinians citizens within Israel; and protecting and promoting the rights of Palestinian refugees to return to their homes in what is today Israel. The call was issued during the second intifada in part to present a non-violent alternative to what was perceived as the failure of armed struggle to achieve these goals.

The term “BDS” is widely understood to refer to the network of grassroots activists who are part of a global movement responding to this call to encourage boycotts of, divestment from, and ultimately international sanctions against Israel to achieve these goals. Groups and individuals involved in this network hold a variety of views on ultimate solutions to the conflict, but it is fair to say that the most visible leaders of the BDS movement generally support a vision of a single, secular and democratic state in Israel and the Occupied Territories.

This movement – its goals and its activism – is distinct from the many peace activists in Israel, Palestine, the United States and elsewhere, who confine their efforts to calls for boycotts of settlement products and divestment from businesses profiting from the 48-year old occupation of the West Bank, Gaza and East Jerusalem. Those groups take great pains to confine their efforts to Israel’s settlements and its occupation, while avoiding any such actions against Israel within its internationally recognized boundaries.

Crucially, the BDS movement is also distinct from recent actions by the European Union and the governments of many member states to distinguish between Israel within the pre-1967 lines – known as the Green Line – and the occupied territories. A July 2015 report by the European Council on Foreign Relations emphasizes that these actions and policies do not represent a policy shift by the European Union, but simply more faithful adherence to the EU’s existing laws.

Blurring the Green Line: Netanyahu, Congress and BDS working together

The key distinction is between Israel within the Green Line, and the occupied territories. Israel is understandably concerned about the potential consequences of Europe, its largest trading partner, more energetically enforcing their laws that make this distinction. For years, the EU has looked the other way on these regulations in the hope that the occupation would soon end and that the differentiation between Israel and the settlements would become moot.

More recently, as the peace process has stalled, the EU has renewed an effort to begin enforcing their existing laws more aggressively. The labeling of products imported from the settlements, rather than from Israel, is only the first step in this process. These laws are fully consistent with long-standing American policy that similarly does not recognize the legitimacy of Israeli settlements, unless and until their status is redefined in negotiations.

In Washington, the issue of BDS tends to be exaggerated, inflating the threat Israel faces apparently in order to produce legislation that would fundamentally alter the character of US foreign policy. For example, with the ostensible intention of protecting Israel from BDS, a provision was added to the recently passed Trade Promotion Authority bill (the so-called “fast track legislation) that requires the U.S. Trade Representative to discourage European Union countries from boycotting “Israel or persons doing business in Israel or Israeli-controlled territories” as part of free-trade negotiations between the U.S. and the EU.

The amendment treats Israel and the occupied territories as one unit, erasing the Green Line. Israel extends its law over its settlements, and many Israelis, including Prime Minister Benjamin Netanyahu, regard the settlements as Israeli neighborhoods. However, neither the United States nor any other country has ever accepted this, and has always differentiated between the settlements and Israel proper. Blurring this important distinction could set a dangerous precedent for treating Israeli settlements beyond the 1967 lines no differently from the internationally recognized State of Israel. At the very least, it would create confusion amongst the United States’ allies as to what US policy regarding the occupied territories and their ultimate disposition really is.

It is important to recall that U.S. law already protects Israel against boycotts initiated by foreign governments. The Export Administration Act of 1979 and the Ribicoff Amendment to the Tax Reform Act of 1976 were enacted to protect Israel from the Arab League’s boycott against the State of Israel. The amendment to the fast-track bill adds nothing in this regard. Rather, it serves only one purpose: protecting settlements from pressure. This motivated the quiet lobbying the American-Israel Public Affairs Committee (AIPAC) did to push this amendment.

Ironically, this very conflation is precisely what the most radical elements in the BDS movement strive to achieve. Those who believe that the only solution to the conflict is the end of Israel as a Jewish state and the creation of a single state in its place reject any distinction between, for example, the settlement of Ariel in the occupied territories and the city of Tel Aviv.  Similarly, those who support a messianic vision of “Greater Israel,” which requires permanent Israeli control of the occupied territories, reject any distinction between Haifa and the settlements inside Hebron.  For those who support a two-state solution that includes a secure, democratic and Jewish state of Israel living side by side with a secure, viable and independent Palestinian state, this conflation is extremely problematic.

What is the real impact of the global BDS movement?

There is no evidence that the European Union’s policies and actions regarding settlements are based on the actions of the BDS movement. On the contrary, it is the collapse of the peace process, the deepening of Israel’s occupation and the possible foreclosure of the two-state solution that have motivated these European moves.

In a letter to European Union Foreign Minister Federica Mogherini in April, sixteen European Foreign Ministers urged the labelling of products originating in the settlements, writing that: “European consumers must indeed have confidence in knowing the origin of goods they are purchasing. Green Line Israel and Palestinian producers will benefit from this.” Far from being motivated by the BDS movement, the ministers made it clear that it was the stalled peace process that provided the impetus for their recommendation. The goal was, in their words, “the preservation of the two-state solution.”

Likewise in the United States, the most prominent examples of concrete boycott- and divestment-related activism in the Israeli-Palestinian arena have focused unambiguously not on Israel but on the settlements and the occupation. These developments are the product of frustration with the failure of diplomacy to bring an end to the occupation, and a desire to preserve the possibility of a two-state solution.

As in Europe, the actions involved are distinct from the efforts and goals of the BDS movement. For example, the Presbyterian Church (USA) heard a great deal from the BDS movement over the years in which it debated the decision it eventually adopted in 2014 to divest from companies it believed were profiting from Israel’s occupation. Yet the Church made it clear in its decision that it was not acting in concert with the BDS movement, but from its own principles – and it focused its activism not on Israel, but explicitly on the occupied territories.

After the vote to divest, PC (USA) issued a statement saying, “[O]ur action to selectively divest was not in support of the global BDS movement. Instead it is one of many examples of our commitment to ethical investing. We are pressed and challenged to follow our faith values and commitments in all times and in all areas of our lives. The occupation must end. All peoples in Israel and Palestine should live in security, freedom, and peace. This action is but one aspect of our commitment to work to this end.”

PC (USA) went on to explicitly reiterate its support for the existence of the State of Israel and for the two-state solution, clarifying that, “This action on divestment is not to be construed or represented by any organization of the PC (USA) as divestment from the State of Israel, or an alignment with or endorsement of the global BDS (Boycott, Divest and Sanctions) movement.”

As of today, the BDS movement, in and of itself, is not a threat to Israel, either economically or in terms of security. The main impact of the BDS movement has been in generating an often-divisive debate, on American campuses, among academics faced with campaigns for academic boycotts and in getting a handful of celebrities to cancel or publicly declare their intent not to perform in Israel.

A very unfortunate response to the BDS movement has been the refusal, in many instances, to allow BDS activists to speak their piece in open debate. This attempt at ostracization, however, has backfired. It has provided the basis for the BDS movement to promote itself on free speech grounds, an argument which wins much more widespread sympathy than one that proposes economic action against Israel.

Moreover, the focus on the BDS movement too often ignores the main reason for its continued growth: the failure to end Israel’s occupation that began in 1967 and achieve Palestinian national liberation and sovereignty. The surest way to take the wind out of the BDS sails would be to work diligently to achieve those goals, and act against efforts that prevent them. An independent, sovereign and viable Palestine sharing peace, trade and security with Israel removes the impetus for both BDS and the often overly aggressive tactics being employed against it.

 

Statement by Matthew Duss

President, Foundation for Middle East Peace, Washington, D.C.

Presented to Subcommittee on National Security, Committee on Oversight and Government Reform

“Impact of the Boycott, Divestment, and Sanctions Movement”

Mr. Chairman, Members of the Oversight Committee, thank you for inviting me to testify today on this important and timely issue.

In the ten years since it commenced, the global Boycott, Divestment and Sanctions movement, or BDS as it is called, has slowly but steadily risen in visibility. I’d like to focus today on the role that the BDS movement has been playing recently in the U.S, particularly with regard to recent Congressional action.

In order to do that, I first want to take a moment to identify just what we’re talking about when we refer to BDS. The movement began in July 2005 with a joint call from a number of Palestinian civil society organizations, with three main demands: An end to the occupation that began in 1967; equal rights for Palestinians citizens within Israel; and protecting and promoting the rights of Palestinian refugees to return to their homes in what is today Israel. The term “BDS” is widely understood to refer to the network of grassroots activists who are part of a global movement to encourage boycotts, divestment from, and ultimately international sanctions against Israel to achieve these goals.

This movement – its goals and its activism – is distinct from the many peace activists in Israel, Palestine, the United States and elsewhere, who, in their effort to preserve the possibility of a two-state solution to the Israeli-Palestinian conflict, call for boycotts of settlement products and divestment from businesses profiting from the 48-year old occupation of the West Bank, Gaza and East Jerusalem.

Crucially, this movement is also distinct from actions and policies of the European Union and the governments of some member states that distinguish between Israel within the pre-1967 lines – known as the Green Line – and the occupied territories. A recent report by the European Council on Foreign Relations emphasizes that these actions and policies do not represent a policy shift by the European Union, but simply more faithful adherence to the EU’s existing laws.

The report states, in part, “The EU has never recognized the legality of Israeli settlements in the occupied territories (including those in East Jerusalem and the Syrian Golan Heights that have been formally annexed by Israel) and consequently does not consider agreements signed with Israel to also apply to Israeli settlement-based entities.” The report also cites a February 2010 ruling from the European Court of Justice (ECJ) stating that agreements reached with Israel must be interpreted in light of the EU’s agreements with the Palestinians, which stipulate that only Palestinian authorities can issue origin certificates for goods from the West Bank, including from Israeli settlements. As a result, the report states, “The European Commission and the EEAS have gradually been compelled to take greater care in ensuring the EU’s correct adherence to European law in its bilateral relations with Israel.”

The key distinction here is between Israel within the Green Line, and the occupied territories. Israel is understandably concerned about the potential consequences of Europe, its largest trading partner, more energetically enforcing these laws. The EU has, for years, looked the other way on these regulations in the hope that the occupation would soon end and that the differentiation between Israel and the settlements would become moot. As the ECFR report states, “[D]ue to the fact that as cooperation with Israel expanded in the 1990s, the EU treated Israel’s occupation as temporary in the belief that the imminent success of the Oslo peace process would make added clarifications a moot point. The EU therefore avoided implementing a legal regime of differentiation (between Israel and the occupied territories) during this period.”

But in recent years, as the peace process has stalled, most recently with the collapse of Secretary of State Kerry’s effort in April of last year, the EU has renewed an effort to begin more aggressively enforcing their existing laws. It is important here to point out that these laws are fully consistent with long-standing American policy that similarly does not recognize the legitimacy of Israeli settlements, unless and until their status is redefined in negotiations.

This is where we come to the recent action by Congress and the response from the State Department. With the stated intention of protecting Israel from BDS, a provision was recently added to the Trade Promotion Authority bill– a provision that implied a significant shift in the policy of the United States since 1967. The provision requires the U.S. Trade Representative to discourage European Union countries from boycotting “Israel or persons doing business in Israel or Israeli-controlled territories” (emphasis added) as part of free-trade negotiations between the U.S. and the EU. In doing so, the amendment conflates Israel and the occupied territories. By blurring this important distinction, a dangerous precedent could be set for treating Israeli settlements beyond the 1967 lines no differently from the internationally recognized State of Israel. At the very least, it would create confusion amongst our allies with regard to U.S. policy regarding the occupied territories and their ultimate disposition.

In addition, conflating Israel and the settlements for the purposes of U.S. trade negotiations represents a clear threat to the two-state solution itself, undermining the our country’s ability to effectively broker a peace agreement between the Palestinians and Israelis.

This is why it was important and appropriate for the State Department to offer a clarification as it did upon passage of the trade bill. State Department spokesman John Kirby noted that, “The United States government has … strongly opposed boycotts, divestment campaigns, and sanctions targeting the State of Israel, and will continue to do so. However, by conflating Israel and ‘Israeli-controlled territories,’ (this) provision of the Trade Promotion Authority legislation runs counter to longstanding U.S. policy towards the occupied territories, including with regard to settlement activity.” Mr. Kirby went on to state that, “The U.S. government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them.”

It is important to recall that U.S. law already protects Israel against boycotts initiated by foreign governments. The Export Administration Act of 1979 and the Ribicoff Amendment to the Tax Reform Act of 1976 were enacted to protect Israel from the Arab League’s boycott against the State of Israel. The amendment to the fast-track bill adds nothing in this regard. Rather, it serves only one purpose: protecting settlements from pressure.

Ironically, this very conflation is precisely what the most radical elements in the BDS movement strive to achieve. Those who believe that the only solution to the conflict is the end of Israel as a Jewish state and the creation of a single state in its place reject any distinction between, for example, the settlement of Ariel in the occupied territories and the city of Tel Aviv. Similarly, those who support a messianic vision of “Greater Israel,” which requires permanent Israeli control of the occupied territories, reject any distinction between Haifa and the settlements inside Hebron. For those who support a two-state solution that includes a secure, democratic and Jewish state of Israel living side by side with a secure and independent Palestinian state, this conflation is extremely problematic.

There is another conflation here that is also of concern. When questions arise about the possible impact of BDS, there is often no distinction made between the effects of the BDS movement and the actions taken by European or other trading partners of Israel. This ends up overstating the impact of the BDS movement, both for its supporters and detractors.

There is no evidence that the European Union’s policies and actions with regard to settlements are based on the actions of the BDS movement. On the contrary, it is the collapse of the peace process, the deepening of Israel’s occupation and the possible foreclosure of the two-state solution that have motivated these European moves. In a letter to European Union Foreign Minister Federica Mogherini in April, sixteen European Foreign Ministers urged the labelling of products originating in the settlements, writing that: “European consumers must indeed have confidence in knowing the origin of goods they are purchasing. Green Line Israel and Palestinian producers will benefit from this.” Far from being motivated by the BDS movement, the ministers made it clear that it was the stalled peace process that provided the impetus for their recommendation. The goal was, in their words, “the preservation of the two-state solution.”

Likewise in the United States, the most prominent examples of concrete boycott- and divestment-related activism in the Israeli-Palestinian arena have fact been focused unambiguously not on Israel but on the settlements and the occupation. These developments are the product of frustration with the failure of diplomacy to bring an end to the occupation, and a desire to preserve the possibility of a two-state solution. As in Europe, the actions involved are distinct from the efforts and goals of the BDS movement. For example, the Presbyterian Church (USA) heard a great deal from the BDS movement over the years in which it debated the decision it eventually adopted in 2014 to divest from companies it believed were profiting from Israel’s occupation. Yet the Church made it clear in its decision that it was not acting in concert with the BDS movement, but from its own principles – and it focused its activism not on Israel, but explicitly on the occupied territories.

In a statement made after the vote to divest, PC (USA) issued a statement saying, “[O]ur action to selectively divest was not in support of the global BDS movement. Instead it is one of many examples of our commitment to ethical investing. We are pressed and challenged to follow our faith values and commitments in all times and in all areas of our lives. The occupation must end. All peoples in Israel and Palestine should live in security, freedom, and peace. This action is but one aspect of our commitment to work to this end.”

PC (USA) went on to explicitly reiterate its support for the existence of the State of Israel and for the two-state solution, clarifying that, “This action on divestment is not to be construed or represented by any organization of the PC (USA) as divestment from the State of Israel, or an alignment with or endorsement of the global BDS (Boycott, Divest and Sanctions) movement.”

As of today, the BDS movement, in and of itself, is not a threat to Israel, either economically or in terms of security. The main impact of the BDS movement has been in generating an oftendivisive debate, on American campuses, among academics faced with campaigns for academic boycotts and in getting a handful of musicians to cancel or publicly declare their intent not to perform in Israel.

To the extent that one sees BDS actions as part of an effort to “de-legitimize” Israel, they should certainly be addressed, but not through legislation. Israel has the protection it needs and deserves under existing U.S. law. The arguments raised by the BDS movement in academic and other civil society institutions should be addressed, in the American tradition, with thoughtful, considered and ethical counter-arguments.

I would also suggest that it is a mistake to focus on the BDS movement while ignoring the main reason for its continued growth, which is the failure to end the occupation that began in 1967 and achieve Palestinian national liberation and sovereignty. If one is genuinely concerned about the impact of the BDS movement, the surest way to take the wind out of its sails would be to work diligently to achieve those goals, and act against efforts which prevent them.

Moreover, it would be hugely counterproductive to give BDS an unearned win by cooperating in any way with the conflation of Israel and the occupied Palestinian territories. We must recognize legitimate actions, whether we agree with them or not, by European governments as well as civil society actors that draw a distinction between the settlements and the State of Israel. We can and must support Israel in defending herself against actions that genuinely threaten its security and legitimacy. This has been a consistent American position since Israel’s birth.

Another position in which America has been consistent has been in opposing the creation of Israeli settlements beyond the Green Line, which have been deemed illegitimate and an obstacle to peace by every U.S. president since 1967. Efforts to blur that distinction are just as dangerous to Israel’s existence as a Jewish and democratic state as attacks on Israel’s legitimacy itself. It is entirely consistent with longstanding U.S. policy, and indeed necessary to preserve the ultimate goal of a two-state solution, to continue to preserve that distinction in U.S. policy and law.

I thank you, Committee members, for your time and attention.

When President Barack Obama signed the Trade Promotion Authority (TPA) bill last week, a precedent was set. The bill included a provision that “…requires the U.S. Trade Representative to discourage European Union countries from boycotting ‘Israel or persons doing business in Israel or Israeli-controlled territories’ during free-trade negotiations between the U.S. and the EU.”

In effect, this amendment treated Israeli settlements, for the first time in American history, as being part of Israel and therefore deserving the same protection. It was a small step; there is no enforcement mechanism in the bill.

However, it cracked the dam and opened the potential for a flood. This small amendment was a first step in reversing long-standing American opposition to the settlements, and its support for the two-state solution. Read more at Talking Points Memo

 

Yair Lapid, Israel’s former Finance Minister, told a hawkish “pro-Israel” gathering in New York that the leaders of the Boycott, Divestment and Sanction movement (BDS) are anti-Semites and their followers are “bleeding heart, so-called intellectuals.” Lapid went on to say that European citizens and American students “…are cheering for the people and values that brought 9/11 to this country. You are supporting people that kill gays and suppress women.”

Mutual Demonization

Lapid is far from alone in elevating the movement to a threat on par with Israeli descriptions of Iran. Whether it was Israeli Prime Minister Benjamin Netanyahu placing a high-ranking Likud Member of the Knesset in charge of battling BDS or grandstanding on the issue by prominent members of Congress, the “threat” of BDS has never seemed greater.

The hyperbole around the issue has never been greater either. All of it is transparently overblown to anyone who actually knows the various players in this game. The BDS movement is not made up, as Netanyahu’s Minister of Justice Ayelet Shaked stated, of radical Islamists, anti-Semites and naïve fellow travelers.

I have known many BDS leaders for many years, as I have also known many of my fellow two-state supporters. I understand their motivations. I disagree often with BDS leaders, but I have never known most of them to wish for violence of any kind, express support for al-Qaeda or ISIL, or express animosity towards Jews as Jews. Many of these folks are, indeed, anti-Zionists, and support a single democratic state in all of what they call “historic Palestine.” I disagree with them on that point, but my disagreement does not mean they hate me, or I them.

That doesn’t mean there are no anti-Semites in the BDS movement. Any pro-Palestinian movement is naturally going to attract those who wish to hide their anti-Semitic agenda under a more acceptable cloak. This small minority within their ranks does not define them.

Unintended Consequences

Israelis, and too many of its supporters, continue to bury their head in the sand about Israel’s diminishing standing in the world. The blame is on Palestinian public relations, the reach of the BDS movement, global anti-Semitism, or their own failure to adequately explain their position to the world. The one thing it never is, according to the Netanyahu government and too many “pro-Israel” groups around the world is Israeli policy.

Part of avoiding the policy debate is presenting Israel as a country constantly facing imminent destruction. While Israel faces very real threats to its citizens, it has not faced an existential threat in a very long time. Iran has never been that, as many Israeli security experts have confirmed. If a deal limiting its nuclear program is finalized, the world is unlikely to buy Israeli complaints that Iran could ever “wipe Israel off the map.” So, BDS is being primed for the role of menacing villain.

For their part, the BDS movement seems to be feeding eagerly on Israeli public relations. Despite having had no discernible impact on Israel’s economy or its determination to maintain its occupation, they are trumpeting their success.

One can understand this, of course. Bibi needs the perception of an existential threat to bolster his politics of fear, while the BDS movement, a grassroots movement with little financial backing, needs to demonstrate its own effectiveness. These tactics, however, are damaging hopes of progress toward a resolution of this vexing conflict.

By avoiding moves to end its 48-year old occupation and exaggerating the BDS threat, Israel is actually proving that only substantive pressure will convince it to end the occupation. This is a point on which the BDS movement and I agree; I have argued for decades that the biggest obstacle to ending the occupation is that Israel, in this regard a country like any other, is expected to take what it perceives as a huge risk without any pressure. The occupation’s costs are largely covered by the European Union, United States and some Arab states, and despite the terrorist attacks Israel still occasionally endures, almost exclusively in the form of sporadic rocket fire from Gaza, the Palestinians have few means to pressure Israel. This is the logic behind the PLO’s international campaign, which must be understood as distinct from BDS.

Israel is running other risks as well. By conflating so many actors and actions with BDS tactics and movements, it risks galvanizing a much harsher opposition than it has seen in the past. Domestically, this false image of BDS is already being used to push the right wing’s assault on democracy even further, while reinforcing the Israeli sense that the “whole world is against us.”

The Effect of BDS

The fact is that any effect BDS has had on Israel’s economy is imperceptible. The economic issues Israel faces have no connection to any drop in exports or loss of investment. That does not mean it never will, but it does mean that the hysteria about BDS is way out of proportion with its impact to date. So, we are left with the most right-wing government in Israeli history governing a country whose citizens, even the majority that still supports a two-state solution, believe that ending the occupation carries major security risks. That is a country that will not change its policies absent significant pressure.

If we accept that self-evident fact, we confront the fact that many people and groups who do not wish to be associated with the BDS movement, its leadership and some of its specific goals have for years avoided any sort of organized economic action against Israel’s occupation. While one can hardly blame the BDS movement for this (in no way have they acted to prevent more moderate groups from taking actions aimed strictly at the occupation), it is an unintended consequence of their activities.

Netanyahu has taken full advantage of the political void this opens up. When the European Union wants to enforce existing laws that distinguish between products made in Israel and those from the settlements, it is considered a “sanction” against Israel; i.e. the “S” in BDS. As a result, liberal Zionist, centrist and many progressive groups avoid any hint of economic action against the occupation.

Groups like Americans for Peace Now (APN), one of the very few who are standing up to call for boycotting settlement products, are not getting the support they need. Yet the few instances of divestment or refusal to do business in the West Bank (most of which were not attributed to the BDS movement by the organizations that took such actions, some of whom even explicitly stated that they were not acting as part of that movement) have all been firmly rooted in opposition to the occupation. They have not been connected to the other conditions of the BDS movement’s call to action, regarding Palestinian citizens of Israel and the right of return of Palestinian refugees.

The Need for Economic Action

It is unfair, however, to expect the BDS movement to abandon its tactics because they are being used to scare more moderate peace groups away from action. Instead, it is the responsibility of moderates, two-state solution supporters and those who support Israel but loathe the occupation to stand up for our beliefs. Let the BDS movement do what it is doing. If you are really worried that BDS will “de-legitimize” Israel with rhetoric, then counter it with a principled, pro-Israel stand for Palestinian rights and statehood and an end to the occupation.

The distinction that Netanyahu and his cohorts in AIPAC and in Congress are trying to blur must be sharpened instead. The settlements are not Israel. They are an immoral and illegal enterprise that should not be supported — through tax dollars, investment or purchases. From such a position, classifying corporations that are profiting from the occupation, especially American ones as “socially irresponsible” can be supported on a pro-Israel basis. From that position, groups can stand up for Israel and support Israelis who are working to end the occupation, and combat the discrimination against Arabs that has become so bitter in recent years.

That is also a pro-Israel position from which Americans can demand that our government name the settlements the illegal enterprise they are, and treat them accordingly. It is a position from which one can promote a secure Israel within the Green Line that can, at long last, find some peace in that tumultuous region. It just has to stop denying millions of Palestinians their basic rights and any hope for the future. That, not Netanyahu’s demagoguery, is truly pro-Israel.

In the wake of the collapse of the last round of Israeli-Palestinian talks last April, it’s become widely accepted that the continuing growth of Israeli settlements is a key obstacle to an agreement. This has created difficulties for those inclined to support the Israeli government’s ability to do whatever it wants. One way to make it easier to defend the settlements and the occupation that sustains them is to obscure the difference between them and Israel proper. As I wrote last month, a method that lobbyists like the American-Israel Public Affairs Committee (AIPAC) have been employing lately to accomplish that is to target the Boycott, Divestment, and Sanctions movement (BDS).

Several recent pieces of legislation demonstrate how this is accomplished. In Illinois, a bill prohibiting Illinois from contracting with businesses that are boycotting Israel passed unanimously in both the State Legislature and Senate. The language of the bill specifically includes “territories controlled by the State of Israel” – that is, territories occupied by Israel after the 1967 war, which no country in the world, including the U.S., recognizes as part of Israel.

In Congress, amendments to the bills that would give the President the power to negotiate the Trans-Pacific Partnership trade deal without public scrutiny (called “fast track”) require the President to make combatting any boycotts of Israel a principle trade objective and would require the President to report to Congress on any businesses that are participating in such boycotts. These amendments also specifically include “territories controlled by Israel.”

In both cases, the legislation does little if anything to protect Israel’s legitimacy. Rather, they extend existing American protection to Israel’s settlements, treating them as if they were a part of Israel for the first time in American history.

It is important to recall that US law already protects Israel against boycotts started by foreign governments. The Export Administration Act of 1979 and the Ribicoff Amendment to the Tax Reform Act of 1976 were enacted to protect Israel from the Arab League boycott against it. The Illinois law extends this protection in a small way, to encompass any boycotts against Israel, whether initiated by governments or civil society. The amendments in Congress, by contrast, change nothing with regard to boycotts of the internationally recognized State of Israel.

The real effect of those amendments and the major effect of the Illinois law as well, actually has nothing to do with any boycotts of Israel, whether by Arab states or activists. The upshot of all of these measures is that, for the first time, the United States is treating the settlements as if they were part of Israel. At no time has the United States ever implied any recognition of Israeli sovereignty over any territory it occupied in 1967. Even Israel’s annexations of the Golan Heights and East Jerusalem have never been recognized by the United States.

Promulgating bills purported to be opposing BDS is a clever way to disguise what is, in reality, an effort to affect a major shift in American policy toward the settlements. Admittedly, it is a slower way to change that policy, and one must point out that the Illinois law clearly does have some, albeit small, influence on potential BDS activities. There can be no doubt, however, that when the dust settles and politicians look back on what they did here, the one and perhaps only effect that will stand out will be setting a precedent for treating the settlements as a part of Israel.

Here, it is instructive to examine a post by Eugene Kontorovich at the Volokh Conspiracy celebrating these new laws. Kontorovich, who is one of a microscopic number of international law experts who defend the legality of Israel’s settlement program, wastes no time in capitalizing on the dual nature of the bills. He immediately blurs the very crucial distinction between European economic actions directed entirely at Israel’s settlements, and some civil society BDS actions that take aim at Israel more generally.

Kontorovich derides European concerns about the economic and legal risks of doing business with the settlements, calling them legally groundless. He does not expand on this point; perhaps a sign that he knows it is easily assailable. In fact, there are serious issues for firms that are considering doing business with or in the settlements.

The overwhelming opinion of both international law scholars is that Israel’s settlements are illegal and violate the Fourth Geneva Convention, which forbids an occupying power from transferring its own citizens into occupied territory. As a result, the European Union and a number of European countries have passed laws that exclude settlement products from favorable import laws that Israel is entitled to as an associate of the EU or has worked out in trade agreements.

Europe has never really enforced those laws, but this could be changing, and that is what has Kontorovich and his ilk concerned. A recent trade deal between the EU and Israel became controversial due to provisions that barred any dealings with the settlements. The EU is also considering enforcing its laws about labelling products that come from the settlements, and thus distinguishing between them and Israeli products.

Crucially, Kontorovich describes these measures, and European warnings to businesses about them, as actions and warnings against “Israeli companies,” and this is again part of the agenda of blurring the distinction between Israel and the settlements. Kontorovich then moves into a general attack on the global BDS movement.

By melding his arguments against European measures and those of the BDS movement, Kontorovich lumps all economic action together, without distinguishing between actions directed at Israel and those directed at the occupation. This can hardly be seen as accidental; virtually every major move by businesses, governments, churches or any other entity that could have even the slightest economic effect on Israel has been scrupulously directed solely at Israel’s settlements and its ongoing occupation. That holds whether those actions have included any involvement of the global BDS movement or not.

Indeed, Kontorovich hardly stands alone in this. Boycotts or divestment proposals directed solely at the settlements and the occupation are routinely called “anti-Israel” and described, wholly inaccurately, as being directed against Israel.

Kontorovich also employs the disingenuous comparison of the BDS movement’s actions to the Arab League boycott of Israel. A group of governments, however, took that action, and as such, it is appropriate for another government to act to counter it. Economic movements from civil society, by contrast, are one of the few non-violent paths that groups of citizens have to affect policy. It is well established as protected speech under the United States Constitution and cannot be compared to the actions of foreign governments. Kontorovich surely knows this, but chooses, unsurprisingly, not to address it.

That protection of civil society boycott must hold, whether or not the boycott is popular. The global BDS movement is certainly a flashpoint, and clearly, parts of it are distinctly anti-Zionist, often to an extreme, and reject the very concept of a two-state solution. While such attitudes are not universal in that movement, it is certainly fair to say that for many in the pro-Israel community, those views characterize the movement as a whole.

That, however, should not mean that our government should act against a boycott movement. Kontorovich is essentially correct in one of his statements: “the message of the BDS movement…is fundamentally rejected by the vast majority of Americans.” If that is the case, however, that argues AGAINST such legislation, not for it. To legislate against a well-established aspect of free speech should require an extraordinary threat. Yet Israel’s popularity in the United States certainly guarantees, at least for the immediate future, that Israeli products and services will continue to sell in the American market.

It is worth asking, however, how much impact it would have if, someday, the United States also chose to differentiate between settlement products and actual Israeli ones. Aside from the friendly trade deals that settlement products would not qualify for, might people be less inclined to buy products from settlements, which are much less popular than Israel, if they could tell the difference between them and Israeli ones?

Perhaps that is what really concerns Kontorovich, as well as AIPAC, which has been pushing this legislation. The BDS movement has had very little impact, to date, on Israel’s economy. Just to cite one example, one of the biggest victories they were involved in, the decision by the Presbyterian Church, USA (PCUSA) to divest from several companies they viewed as helping to support the occupation, exclusively targeted settlements. Moreover, PCUSA specifically stated that this was done based on its own initiative, and not as a part of the BDS movement.

Kontorovich’s arguments, and AIPAC’s legislation, raise a very fundamental question about restricting free speech. Is the United States willing to restrict free speech, albeit speech that is not very popular, when that speech is directed at another, allied country when the speech has clearly posed no material threat to that country? Is our standard for dangerous speech that low?

It also raises a key question related to American policy in the Israel-Palestine conflict. That question is whether the United States regards the settlements as part of Israel. Do we, in fact, agree with the most radical anti-Zionists and the most radical settlers, both of whom make no distinction between the settlements and the actual state of Israel?

More to the point, are we willing to stigmatize, penalize and perhaps someday even outlaw initiatives by many civil society groups, including many that are profoundly pro-Israel, that seek to end Israel’s occupation, reverse the settlement program and finally reach a two-state agreement?

Ultimately, Kontorovich and AIPAC are working with their arguments and legislation against those things. By hiding protection of settlements in language that seems to be defending Israel, they are moving that agenda forward. It’s important that this disingenuousness is exposed and people understand what they are really being asked to support.