Israel: new anti-boycott law violates freedom of expression

ARTICLE 19 expresses its serious concerns regarding the new Israeli "Anti-Boycott Law," which was adopted and came into force on 11 July 2011. The new law seriously hampers the fundamental human rights of freedom of expression and freedom of association in Israel. ARTICLE 19 calls on the Government of Israel to uphold and protect these rights by repealing the Law.

Prohibition of calls for boycott is not allowed under Article 19 (3) of the ICCPR

The Anti-Boycott Law, the Law for Prevention of Damage to the State of Israel through Boycott, was adopted by the Israeli Knesset (Parliament) by a majority of 47 to 38 votes. The law prohibits "public call[s] for a boycott against the State of Israel," within the contested Israeli settlements in the West Bank as well as within Israel itself.

The law imposes civil damages on any person who calls for a boycott against the State of Israel defined as "deliberately avoiding economic, cultural or academic ties with another person or another factor only because of his ties with the State of Israel, one of its institutions or an area under its control, in such a way that may cause economic, cultural or academic damage." It applies to any person who publishes a public call for a boycott where there is a reasonable probability that a boycott will result. The person may be found liable for damages even if the subject of the boycott did not suffer any actual harm. Israeli civil society organisations, as well as academic, cultural and scientific institutions which receive any state support, risk losing tax exemptions and other legal rights and benefits, if they call for a boycott or commit to take part in a boycott.

ARTICLE 19 is concerned that the Anti-Boycott Law severely hampers both freedom of expression and freedom of association within Israel and will have a chilling effect on exercise of these rights. Under international law, including the International Covenant on Civil and Political Rights (ICCPR), which Israel has signed and ratified, limitations on freedom of expression must meet a strict three-part test to be legal. This includes the requirement that the restriction must pursue one of exclusive legitimate aims and be necessary to secure one of those aims.

ARTICLE 19 finds the restrictions on freedom of expression imposed in the Anti-Boycott Law fall short of this test for the following reasons:

• The prohibition of calls for boycott does not serve any legitimate aim allowed under Article 19 (3) of the ICCPR. The definition of boycott clearly indicates that it seeks to prevent action that "may cause economic, cultural or academic damage."  These aims are not recognized as permissible by the ICCPR. Even if the Israeli Government argues that the Law was adopted to protect national security or public order, the wording of the Law indicates otherwise.  Moreover, there is considerable evidence that the aim is to prevent criticism of Israeli occupation policies. ARTICLE 19 also notes that under international standards, laws which limit freedom of expression must serve a legitimate aim both in purpose and in effect. It is not sufficient if the provision has an incidental effect on national security or public order; if the purpose of enacting it was to serve another aim. Hence, an attempt to shield the state from criticism can never justify limitations on free speech.

• Even if the Anti-Boycott Law pursued a legitimate aim (i.g. if the economic, cultural and academic ties fall under the national security or public order), the Law fails to meet the requirement of necessity.  Under international law, this obligation imposes several quality constraints on laws that abridge freedom of expression. This includes the recognition that if there exists an alternative measure which would accomplish the same goal in a manner which is less intrusive to the right to free expression, the chosen measure is not in fact necessary. Second, the measure must impair the right as little as possible and, in particular, not restrict speech in a broad and untargeted way. Finally, the impact of restrictions must be proportionate, meaning that the harm to freedom of expression caused by a measure must not outweigh the benefits to the societal interest it is protecting. A democratic society depends on the free flow of information and ideas; it is only when the overall public interest is served by limiting that flow that such a limitation can be justified. ARTICLE 19 finds the provisions of the Anti-Boycott law in violation of a number of these basic and critical requirements. There exist myriad ways that the Israeli Government can prevent disruption of economic and cultural exchange, including support and grants for cooperation with local entities, awareness campaigns and other means. The Anti-Boycott Law also impairs freedom of expression in an extremely broad fashion. The measure is also greatly disproportionate. ARTICLE 19 observes that differing opinions are a crucial part of a healthy robust democracy and that the Israeli Government should not attempt to end political struggle through silencing a non-violent avenue of political protest. The ability to peacefully protest against controversial government policies is a critical component of both a democratic society and the fundamental international human right to free expression.

Along with ARTICLE 19 and many other international human rights non-governmental organisations (NGOs), there has been a substantial outcry against the new anti-boycott law from Israeli citizens and civil organisations. The Israeli-based Gush Shalom peace group has already petitioned Israel's Supreme Court to overturn the law, claiming it violates basic democratic principles and the right to freedom of expression.  A second petition is currently being prepared by two leading Israeli human rights organisations, on behalf of other human rights groups as well as organisations most liable to be affected directly by the law.

Thirty two Israeli law professors have signed a petition declaring that any Israeli law essentially banning politically motivated boycotts is unconstitutional. Israel's Attorney General, Yehuda Weinstein, has stated that he believes the anti-boycott law to be borderline illegal. Even the Israeli Knesset's own legal counsel has expressed severe reservations about the new law. According to available information, criticism of the anti-boycott law was a popular topic for Israeli Facebook users over the weekend. Over 4000 Facebook users have already announced their intentions to attend a planned 30 July rally in Tel Aviv protesting the new law. Most Israeli newspapers have come down clearly against the law, and a Member of Knesset from the Israeli opposition party Kadima (which initially participated in the drafting of the bill, but later withdrew its support) has tabled a proposal to revoke it. 

ARTICLE 19 calls on the Israeli Government to uphold and protect the right to freedom of expression in Israel by repealing the Anti-Boycott Law and upholding the rights of individuals and organisations who wish to peacefully denounce the government's policies. 

Furthermore, ARTICLE 19 calls on governments around the world, in particular the United States and the European Union to condemn the law, advocate for its repeal and support Israeli civil society organisations in their peaceful actions to prevent encroachments on their rights of free expression and free association.