This is the second in a two-part report on how Israel and its friends are battling the boycott. The first part was published yesterday and can be read here.
While lawfare attacks on BDS by private individuals or groups (albeit sometimes with ties to the Israeli state) have had mixed results, in recent years there has also been a concerted effort to see legal restrictions on the boycott campaign introduced, or enforced, at state-level.
In December 2009, Israel’s Ministry of Foreign Affairs (MFA) convened the third conference of the Global Forum for Combating Antisemitism (GFCA), a gathering that has served an important role in focusing efforts on fighting BDS and Palestine solidarity activism more widely. One of the 2009 conference’s working groups was tasked with proposing “imaginative, effective and successful solutions to counter [BDS].” One suggestion was “to have in place legislative prohibitions vs. BDS which can then be applied in different communities, acknowledging the different legal traditions.”
Four years later, at the 2013 GFCA, an ‘action plan’ produced by the conference’s ‘BDS and Delegitimization Task Force’ included: “Identify laws that can be used in different countries or states to fight discriminatory practices such as BDS. French law is a model that should be strengthened and replicated where possible.” At the 2015 conference, the BDS-focused working group – under the title ‘Lawfare’ – stated: “Pursue legislation at the local, state and federal level to constrain BDS” and
“France has existing laws that should be replicated where possible elsewhere in Europe.”
Last month, MFA spokesperson Emmanuel Nahshon openly admitted that the Israeli government had “stepped up our efforts directly and indirectly, dealing with friends of Israel in a variety of countries in which we have the BDS movement, fighting it with legal instruments.” A recent article in Israeli newspaper Yedioth Ahronoth noted how the MFA, “in cooperation with Jewish and pro-Israeli organisations”, convinced “several American states to pass legislation against the boycott of Israel.”
Indeed, 22 state legislatures are considering anti-BDS bills, “some of which explicitly protect businesses operating in the settlements, while others extend protections only to Israel proper.” Illinois, South Carolina and Florida have all “enacted laws in the past year that include protections for settlements.” Meanwhile, the Trade Facilitation and Trade Enforcement Act recently signed into law by President Obama, includes an anti-BDS clause.
The Yedioth article noted that “an additional specialisation of Israeli embassies is the use of existing legislation against boycott.” Thus the embassies “were requested to check how it’s possible to use local law to curtail boycott initiatives.” In France, for example, a 2003 law originally intended as a rebuff to electoral gains by the far-right is now used to prosecute BDS campaigners on the grounds of ‘national’ discrimination, part of a wider attack on Palestine solidarity activism in France.
This French law, however, is hard to reproduce or replicate, where no such similar legal provision exists. Which brings us to Britain, where the BDS campaign has made significant headway in trade unions, student unions, NGOs, and even political parties, much to the frustration and anger of the Israeli government, its London embassy, and British supporters of Israel.
In the summer of 2014, Israel launched an unprecedentedly savage attack on the Gaza Strip, killing more than 2,200 Palestinians – including some 540 children – and injuring more than 11,000 more. The 50-day offensive prompted an outpouring of anger and opposition in Britain, shown by demonstrations, calls for an arms embargo, and, tellingly, concern amongst those traditionally supportive of Israel and its actions. Robert Festenstein, who co-runs lawfare group Jewish Human Rights Watch (see yesterday’s article), identified the summer of 2014 as when things “changed.”
One phenomenon that excised groups like the Board of Deputies of British Jews was gestures of solidarity by local councils, with some flying Palestinian flags in support of the people of Gaza. The Board claimed that such actions damage “community cohesion”, and have “the potential to intimidate and divide our communities.” Such rhetoric was also heard when pro-Israel groups lobbied the University of Southampton to cancel a conference on Israel and international law – and it has emerged, once again, in the context of the government’s intimidation of local authorities.
The Community Security Trust (CST), a UK charity which records and combats anti-Semitic incidents, is often cited in the British media as the authoritative source for monitoring anti-Semitism. On August 5, 2014, senior CST official Mark Gardner said that while the Jewish community would “get through” a spike in anti-Semitic incidents, “the boycott stuff is really, really serious.” Answering a question on the National Union of Students’ recent endorsement of BDS, Gardner said:
Israel has, I think, come right up to that red line, to that tipping point, where it becomes in danger of really seriously being the new South Africa, the new South Africa that everybody should boycott, that Israel is equivalent to apartheid South Africa, and that therefore, if you support Israel well you’re just like the Afrikaners of old.
On October 3, 2015, a Conservative Party press release announced the government’s intention to introduce “new rules to stop politically-motivated boycott and divestment campaigns by town halls against UK defence companies and against Israel.” The plan of action was said to include changes to pension legislation, and new procurement policy guidance for local authorities. Boycotts by local authorities were described as “threaten[ing] to inflame tensions in local communities, undermining integration and fuelling broader anti-Semitism.”
Four months later, the government finally published the new procurement guidance note. But contrary to some reports, there was no new ‘ban’ on boycotts. As Baroness Williams, Parliamentary Under Secretary of State at the Department for Communities and Local Government (DCLG), told peers on February 24, the guidance merely reminded public authorities “of existing policy that has been in place for many years under successive Governments.” The Parliamentary Secretary for the Cabinet Office made a similar affirmation the next day.
Responding to the publication of the procurement note, the Palestinian BDS National Committee (BNC) said that “the new documents amount to an attempt to intimidate councils and universities but do not appear to introduce new legal obligations on public bodies.” In other words, “it remains perfectly legal for councils and universities to take ethical stances that reflect the views of their communities and exclude companies that violate human rights or commit other forms of gross misconduct from tender exercises.”
Labour MP Richard Burden, noting the government’s line that the guidance “simply repeats existing rules regarding discrimination on the grounds of nationality against other [World Trade Organisation] members”, wondered why then the government had “made such a song and dance about it on the international stage?” The “danger”, Burden pointed out, echoing the Palestinian BNC’s analysis, is that “with so much uncertainty…Councils and other public sector institutions could be deterred from taking ethical investment and procurement decisions in general.”
Concern of a “chilling effect” was also expressed by Amnesty International, who pointed out that an EU public procurement directive “expressly requires member states to take into account the widest possible range of social and environmental considerations when buying goods and services for the public sector.” Indeed, the British government itself pointed out in May 2012, responding to a question about settlements, that the Public Contracts Regulations 2006 allows for a company that has “committed an act of grave professional misconduct” to be excluded from a tender exercise.
Contrast the Cabinet Office-issued procurement guidance with the Scottish procurement policy note published in August 2014, which states that “exploitation of assets in illegal settlements by a company (irrespective of where that company is registered) is likely to be regarded as constituting ‘grave professional misconduct’ for the purposes of procurement law and where evidence of this exists, a purchaser may be able to exclude the company from a public tendering exercise.”
The Foreign and Commonwealth Office, meanwhile, warns of “clear risks related to economic and financial activities in the settlements.” The guidance continues: “Financial transactions, investments, purchases, procurements as well as other economic activities…in Israeli settlements or benefiting Israeli settlements, entail legal and economic risks.” EU citizens and businesses, the FCO adds, “should also be aware of the potential reputational implications of getting involved in economic and financial activities in settlements, as well as possible abuses of the rights of individuals.”
In other words, there is no reason why BDS activists cannot continue to urge their councillors and local authorities to exclude companies complicit in violations of international law. A good example of such a past campaign is ‘Dump Veolia’, for which legal advice was sought and published.
In addition to the guidance note regarding procurement, the Conservatives also intend to amend legislation regarding local authorities’ pension fund regulations. This required a public consultation period which closed on February 19, with over 26,000 people responding by “rejecting plans to block local councils from deciding how to invest their members’ pension funds.” Commenting on this expression of “massive public outrage”, War on Want’s Ryvka Barnard described government plans as “very serious threat and completely anti-democratic.”
According to the chair of the Local Authority Pension Fund Forum, representing public pension funds with combined assets of £160bn: “We are legally entitled to look at a whole range of reasons why we should or should not invest in a company. If there were international boycotts [of a company], its financial performance might fall.” The Financial Times has reported how “senior pension officials and local councillors fear the new rules would block them from pulling money out of companies on legitimate ethical grounds around issues such as human rights, the arms trade or fossil fuels.”
Pressed in the House of Lords last month, the DCLG’s Baroness Williams acknowledged that “local authorities will have all sorts of things to consider when making their pension investments”, citing “an obligation to public health”, as well as “an obligation to help people cut down on excessive alcohol consumption, take more exercise, use less petrol and perhaps walk their children to school.” In a recent response to a petition, the government said that the “statutory guidance to local authorities…will be published in the coming weeks.”
The story of these recent attacks on BDS in Britain is a story of converging or overlapping interests: of the Israeli government, its friends and supporters, and the Conservative government. The Tories, for their part, have embarked on a much wider attack on democracy, including redrawing constituency boundaries, reducing funding for opposition parties, and a large-scale attack on trade unions. Undermining the independence of local authorities – and sticking one in the eye of Labour-controlled councils in particular – is part of the picture.
Israel lobby groups, meanwhile, have found a receptive audience in the current Conservative government. Cabinet Minister Matthew Hancock went out of his way “to pay tribute to the Board of Deputies, the Community Security Trust, Jewish Human Rights Watch, and of course the JC [Jewish Chronicle] itself, which has done so much to keep this issue [of boycotts] on the agenda.” Jewish Human Rights Watch were singled out for praise in December by Michael Gove.
The battle against BDS in Britain, and the use of state-level intimidation and lawfare, can also be seen as a way in which Israel is exporting a framework for dealing with dissent and anti-apartheid activism. The impact in Britain, however, is broader, affecting campaigns against fossil fuels, the arms trade, and indeed any other unethical business practice. The Tory government has pursued its own crackdown on civil liberties through the ‘counter-extremism’ Prevent strategy.
These are genuine obstacles for BDS campaigners in Britain, but they do not solve the biggest problems facing pro-Israel organisations: the ongoing repression of the Palestinians, and their lack of a grassroots, mass movement. Despite the best efforts of the likes of the Board of Deputies and BICOM, pro-Israel advocates have been unable to expand their base beyond the addition of some right-wing Christian Zionists.
BDS activists, by contrast, are likely to find common cause with others concerned about the Conservatives’ attempts to both undermine local democracy and intimidate councils into forsaking ethical procurement and investment policies. Like other efforts to undermine Palestine solidarity campaigning, the recent lawfare attacks may well have the opposite effect to what was intended.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.