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Can BDS Target The Occupation Without Being Anti-Israel? The Case Of Ireland

Last Wednesday, Ireland’s Senate approved a bill that will make it illegal to purchase products and services from Israeli settlements if it’s signed into law by President Michael Higgins.

The vote was immediately declared a huge success for the boycott, divestment and sanctions movement by the left, and an anti-Semitic travesty by the right.

But the truth is, it is neither. The bill is not anti-Semitic. But it’s a terrible bill nonetheless, one that Ireland’s government should not sign into law.

The bill proposes “to make it an offence for a person to import or sell goods or services originating in an occupied territory or to extract resources from an occupied territory.”

A person found guilty of selling or “extracting” goods or services “produced… by an illegal settler” will face a fine or imprisonment of up to five years.

The bill seems purposely vague about what it considers to be illegally occupied territory. It doesn’t name the Green Line, or any other dividing marker that would allow us to discern which goods would be legal to purchase and which would be illegal.

The bill defines a “relevant occupied territory” as a territory confirmed as occupied by the International Court of Justice or the International Criminal Court, or confirmed as such “in a decision of an international tribunal”, or simply designated as such “for the purposes of this Act in a regulation made by the Minister.” In other words, it’s open-ended.

For legal purposes, this open-endedness is terrifying. Without a clearly determined border, the bill leaves open the possibility of prosecuting people who don’t even know they’ve committed a crime.

Similarly, the bill defines an “illegal settler” as “a member of the civilian population of an occupying power who was or is present within the relevant occupied territory.” In other words, the bill criminalizes commerce with any Jew who has ever stepped foot in the Palestinian Territories.

This language is incredibly problematic. And yet, despite the infelicity of the language, the Irish law departs from the larger BDS movement in a crucial way: Unlike BDS, which seeks a boycott of all of Israel, the Irish bill clearly distinguishes the settlements from Israel proper.

BDS’s critics have long decried the movement as anti-Semitic for delegitimizing the only Jewish state. They worry that proponents of BDS don’t support a two-state solution and thus don’t accept Israel’s right to exist. As proof, they point to the time BDS leader Omar Barghouti said, “If the refugees were to return, you would not have a two-state solution, you’d have a Palestine next to a Palestine.”

In that sense, it’s difficult to see how the bill is a win for BDS; by sectioning off the settlements as illegal, it is by the same token legitimizing Israel proper.

Indeed, the bill is consistent with a two state solution approach to solving the Palestinian-Israeli conflict, in its insistence that the criminality of the region lies in the occupation, rather than in Israel’s existence as a Jewish state. People who believe in Israel as a Jewish and democratic state should see echoes of their own beliefs in the bill’s strategic targeting of the Palestinian Territories, rather than Israel.

For this reason, the bill cannot be said to be anti-Semitic. There is no case to be made that a law calling the occupied territories illegal is anti-Semitic. To call criticism of Israel’s occupation of the Palestinians anti-Semitic is as Lara Friedman wrote in the Forward to demand Israel be held to a lower standard.

Even more importantly, the bill doesn’t even name Israel, which allowed the foreign affairs spokesman for the opposition Fianna Fáil party to tell i24News that the bill isn’t a boycott of Israel, since it also applies to trade from Turkish-occupied Northern Cyprus and Moroccan-occupied Western Sahara.

Still, some don’t see an exoneration in the bill’s elision of Israel by name, but rather, proof of its sinister intent. So thinks Eugene Kontorovich, head of the international law department at the Kohelet Policy Forum, a Jerusalem think tank, and professor at Northwestern University.

“They wrote such a convoluted five step definition as to exclude everything that would not be Israel,” he told me. “Also, they say in their statements that it’s just Israel. When they had their debate in January, it was all they talked about.”

The very absence of the word Israel proves their bad faith, Kontorovich argued, just like the vagueness of the definition of occupied territories does. Though the Green Line is not mentioned in the language of the bill, Kontorovich says that it’s hidden in plain sight. “I get it from vast experience with the EU and the international community’s definition,” he argued. That, coupled with the bill naming the ICJ as its standard bearer, means for Kontorovich that Jerusalem and the Golan Heights will both be considered illegal – which proves again the bad faith of the bill.

“It has nothing to do with Palestinian self-determination,” Kontorovich said. “Anyone who takes a tour of the Golan is liable under this. They didn’t even limit it in a way that it would be about the Palestinians.”

The bill’s intent is clear. “They’re creating a contaminated criminal presence around Jews,” Kontorovich said. “They’re saying it is a crime to simply be an Israeli in the Old City, and that further it is a jailable crime for third-parties to have any commercial contact with them.”

But there’s a damned if you do, damned if you don’t logic to Kontorovich’s argument. If the bill had mentioned Israel by name, it surely would have been anti-Semitic in its singling Israel out; yet by not mentioning Israel, it is somehow also engaging in anti-Israel behavior. So argues Lara Friedman, president of the Foundation for Middle East Peace. “When the folks targeting settlements write it so narrowly to target only settlements, they are told it’s anti-Semitic and anti-Israel,” she told me. “When they frame it broadly, they’re told it’s a trick.”

However they would have written the bill, there would have been objections, Friedman said.

For his part, Kontorovich said he would not have opposed the bill if he felt it was something its authors really believed. “If they actually made it consistent, and did not make all these limitations to make it only apply to Israel, if they had the courage of their convictions to make it a general rule, then I would think it’s a stupid rule, but not one that’s grossly anti-Semitic,” he said.

But Friedman called the objection that the bill unfairly targets Israel a classic case of “Whataboutism.” “It’s a shame for Crimea and Western Sahara but that doesn’t mean you can’t do this,” she said. “If you’re defending Israel’s activity by pointing to non-democratic governments, that doesn’t work for me.”

Kontorovich’s approach seems to stem from a deep-seated suspicion of all forms of international pressure on Israel. When I asked how he would suggest someone who isn’t anti-Semitic but wants Palestinians to have civil rights should go about pursuing such an end, he said, “They should make aliyah and lobby the Israeli government.” And what if they’re not Jewish? He suggested supporting Israel’s annexation of parts of the West Bank with the option of citizenship for the Palestinians there, as well as pressuring the Palestinian governments to extend civil rights to their inhabitants and supporting the end of UNRWA.

This is the fundamental disagreement then. If you are going to find all international attempts to tell Israel that its occupation is illegitimate, an attempt that clearly differentiates Israel from the occupied territories is just as corrupt as one that seeks to delegitimize all of Israel.

I think this is a mistaken approach. It creates enemies out of many people whose values one actually shares, and further stigmatizes legitimate attempts to pursue civil rights for Palestinians through nonviolent means. More importantly, we Diaspora Jews know how important it is to zealously guard the designation that something is “anti-Semitic” for when a proposal or action actually stems from Jew hatred.

And yet, Kontorovich is right that the bill is deeply problematic.

It’s a shocking thing for a government to craft a bill that seeks to imprison individual citizens for “extracting” items from the settlements or one-time settlers. Critics have rightly asked whether a person visiting friends who live in the settlements or even parts of Jerusalem that are considered on the wrong side of the Green Line who bring home gifts will go to jail for doing so; certainly, there’s nothing in the bill to protect them from such a fate. What about a person who was born in a West Bank settlement and left on principle as an adult? As a person who “was present” in the occupied territories, it would be illegal for an Irish person to buy anything from her, even if she now lives in Tel Aviv.

It’s an extreme measure that goes beyond boycotting to actually punishing individuals for failing or refusing to do so.

Friedman disagreed with me about this. “This isn’t about free speech, it’s about law,” she said. “International law, the guiding framework for the European Union, says settlements are illegal. What follows from that legally, if you talk to any international lawyer, is that settlement products are illegal and should be banned.”

If settlements are illegal, their products are illegal, argued Friedman. Just as it’s illegal to sell stolen goods, so too should products from the settlements be illegal to sell.

And yet, to me, it does seem like a violation of a person’s right not only to free speech, which includes spending one’s cash where one wishes, but a person’s freedom of thought – the freedom to consider, say, Otniel a settlement but not some sections of Jerusalem, or Gush Etzion, a huge settlement bloc that no one expects to be part of a future state of Palestine.

That a bill is not anti-Semitic doesn’t make it a good one. And this is not a good bill.

Batya Ungar-Sargon is the opinion editor of the Forward.

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