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Israel’s High Court and its selective protection of human rights

It is a worrying sign when a country, and especially its courts, become selective in their approach to the protection of human rights

Yossi Mekelberg

Published: Updated:

It is a worrying sign when a country, and especially its courts, become selective in their approach to the protection of human rights. Following a four year battle by Israeli human rights organizations and activists, the Israeli High Court of Justice upheld a law that exposes any individual or organization that calls for an economic, cultural or academic boycott against the State of Israel. In December 2012, the High Court froze the legislation, which was enacted in July 2011, that enabled those who oppose the law regarding boycotting to present their objections. The law is draconian in nature authorizing the finance minister, with the agreement of the justice minister, to impose fines, withhold funding or prevent the allocation of public money to anyone calling for a boycott on the State of Israel. Cunningly enough, ‘The State of Israel’ under this bill definition includes territories that Israel controls—in other words the post-1967 occupied territories. The gravity of this decision is not in its passing a judgment on whether boycotts are right or wrong, but in the acquiescence and complicity of the highest judicial authority in the country in silencing debate and curtailing freedom of speech.

Fast fading possibilities

One is entitled to question the merit of boycotts, and with them the call for divestment and sanctions. It is open to debate whether these types of measures could achieve their intended consequences of compelling Israel to become more susceptive to genuine peace negotiations and stop the expansion of Jewish settlements. There is generally an international consensus, with very few exceptions, that unless this happens a two state solution is a fast fading possibility. Some have resorted to the opinion that only sustained pressure on Israel will cause the Israeli government to change its policies. However, there are also powerful enough arguments that blanket BDS measures against Israel may only harden its position and help it to rally its supporters, especially in the United States, to act against the boycotters. For instance, last week the Senate Finance Committee unanimously voted in support of an amendment which strongly discourages Europeans from participating in BDS actions against Israel. This amendment included a veiled threat by Congress of potential economic retaliation by the U.S. should Europeans actively support taking economic measures against Israel. Yet, there is a strong case in favor of pursuing punitive economic measures which would solely target Jewish settlements and the settlers, without hitting all Israelis, as it is suggest that a blanket approach to sanctions would not necessarily empower the peace camp in Israel; it might even weaken it.

Until this recent decision, it would have been inconceivable to imagine that the Israeli legal system, especially in its highest echelons, would be contaminated by nationalistic hysteria

Yossi Mekelberg

The decision by the nine High Court’s judges is a source of grave concern. It reaches well beyond the question of supporting BDS measures as a tool of advancing peace, and instead reflects the continuous erosion of democratic values in Israeli society. This erosion now seems to reach what has been regarded for a very long time as the last bastion of democracy in Israel - the High Court of Justice. The legislature and the judges did not go as far as criminalizing those who advocate boycotts, and the judges also invalidated the clause that would allow plaintiffs to seek remedy in court unless they could prove that they suffered economic losses. However, through their ruling the judges entered into the political fray instead of defending the freedom of speech. Israel is a signatory to both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which hold the right to freedom of opinion and expression as sacrosanct. According to Article 19 of the Universal Declaration of Human Rights, this right includes freedom to hold opinions without interference. No authentic public debate can occur while only one side of the argument is allowed to be expressed in the open and the other is prohibited and pushed underground.

Never-ending conflict

This decision by the High Court of Justice is a further evidence of the impact of the never-ending conflict with the Palestinians on Israeli society, and how the ultra-Right is dictating the security-based agenda. This is an agenda that inevitably gives center stage to anti-democratic elements, who would like to silence dissenting voices. Until this recent decision, it would have been inconceivable to imagine that the Israeli legal system, especially in its highest echelons, would be contaminated by nationalistic hysteria to an extent that freedom of speech is compromised.

I have never concealed my reservations towards certain elements within the BDS movement that seem to confuse, inadvertently or deliberately, the purpose of boycotting as a tool to change obstructive Israeli policies towards peace with a fundamental dislike of Israel. Nevertheless, in the same token weighing the value of targeted measures against aspects of Israeli policies, which thwart a peaceful solution with the Palestinians and facilitate an oppressive occupation, could be regarded as part of a legitimate debate in a democratic society. Israel prides itself on being a true democracy. Hence, the efforts to delegitimize non-violent measures, which attempt to end an illegal occupation, cast doubt on Israel’s commitment to its own democratic character. To make this ruling even worse, the judges accepted the distorted notion presented by law makers that the same rule applies to boycotting Israel proper, within the green line borders of pre 4th of June 1967, as boycotting of the illegal Jewish settlements movement in the occupied territories.

One of the tragic ironies of this legal saga is that legislators from the nationalist camp in Israel have always targeted the High Court of Justice, accusing it of being too liberal at the expense of the country’s security. These Members of Knesset worked for years to undermine the court and its judges. They campaigned to appoint judges who are more conducive to the security and the ‘Greater Israel’ agenda, and advanced legislation that would reduce the courts. They went as far as proposing a bill that would enable the Knesset to re-legislate laws that have been overturned by the High Court of Justice. Basically, they attempted to tear the checks and balances system into pieces, a system which is a pillar of any democracy, leaving the position of the highest court in the land meaningless.

It would probably take one brave determined individual or organization to challenge this law by calling for a boycott on commodities or services originating in the Jewish settlements in the West Bank. It would prove not only the undemocratic nature of the law, but also its futility. Any such court case would damage Israel’s reputation as a country which respects freedom of speech, and would simultaneously attract even greater international attention to the ills of the Israeli occupation. Potentially, it might even encourage BDS activists outside Israel to increase their campaign. This increase in support of taking punitive measures against Israel, for the more level headed critics of Israeli obstructive policies, derives from frustration and desperation regarding the behavior of the Israeli government. Unfortunately we are witnessing how Israeli legislators and judges make a bad situation worse by harming one of the country’s main redeeming qualities, that of vibrant and lively debate on controversial issues.

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Yossi Mekelberg is an Associate Fellow at the Middle East and North Africa Program at the Royal Institute of International Affairs, Chatham House, where he is involved with projects and advisory work on conflict resolution, including Track II negotiations. He is also the Director of the International Relations and Social Sciences Program at Regent’s University in London, where he has taught since 1996. Previously, he was teaching at King’s College London and Tel Aviv University. Mekelberg’s fields of interest are international relations theory, international politics of the Middle East, human rights, and international relations and revolutions. He is a member of the London Committee of Human Rights Watch, serving on the Advocacy and Outreach committee. Mekelberg is a regular contributor to the international media on a wide range of international issues and you can find him on Twitter @YMekelberg.

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