Losing public opinion on BDS, activists turn to ‘lawfare’

Pinterest LinkedIn Tumblr

Champions of proposed Senate Bill SB1761, which passed both houses of the Illinois General Assembly May 18th, say it’s designed to fight anti-Semitic activism and protects Israel from the existential threat posed by the Boycott, Divestment, & Sanctions movement (BDS). Opponents of the bill say it places the economic welfare of Israel before U.S. interests, tacitly endorses the full annexation of the West Bank into Israel, and violates our country’s First Amendment rights. The bill’s opponents are right.

But a potential threat of this legislation, edging closer to the criminalization of advocating for Palestinian rights and against occupation, threatens our core First Amendment rights and has been relatively absent from the discourse surrounding this bill. While the BDS movement is winning in the court of public opinion, powerful supporters of Israel are using “lawfare” to win through the court system. Celebrated scholar Steven Salaita, a recent high-profile victim of free speech suppression in the U.S., tweeted about this very phenomenon the day SB1761 passed both houses:

And that’s not just here in the United States. Israeli lawmakers sought to criminalize public support of boycotts against Israel back in 2010 through their “Law for Prevention of Damage to the State of Israel through Boycott.”

When I spoke with a staffer for Illinois State Rep. Sara Feigenholtz, one of the bill’s primary sponsors, inquiring if SB1761 was modeled after the 1977 amendments to the Export Administration Act (regarding the Arab League boycott of Israel), I was informed “These ‘antiboycott’ laws are the 1977 amendments to the Export Administration Act (EAA) and the Ribicoff Amendment to the 1976 Tax Reform Act (TRA). I hope this helps.SB1761 falls in line with these federal laws”

Referencing EAA is another indication of the move toward weakening our First Amendment rights, as that amendment was meant to criminalize people who adhered to the Arab League’s boycott of Israel. Melissa Redmiles writes of the 70’s legislation in International Boycott Reports, 2003 and 2004 (pdf), from the website:

“Those U.S persons who agree to participate in such boycotts are subject to criminal and civil penalties.”

SB1761 seems to be the latest manifestation of a trend toward enacting a kind of trickle-down suppression. From the Center For Constitutional Rights website for Palestine Solidarity Legal Support:

“These bills must be opposed in order to protect the right to engage in boycotts that reflect collective action to address a human rights issue, which the US Supreme Court has declared is protected speech… These bills would make it state policy to discourage support of human rights boycotts against Israel… and have the potential to stifle expressions of political beliefs…”

In short, state sponsored suppression through “lawfare.”

SB1761 requires all five public retirement benefits systems of the Illinois Pension Code to divest “all direct holdings” from any company which engages in boycotting Israel. This is designed to financially punish companies which participate in BDS; presumably European companies. But it will also burden an already severely crippled,“worst in nation”, Illinois pension system.

Illinois Governor Bruce Rauner was quoted by Jewish United Fund News (JUF) earlier this month as saying,

“I made a pledge that Illinois would become the first state in America to divest its public pension funds from any company in the world that boycotts Israel.”

Rauner includes U.S. companies in his threat of divestment when he says “any company in the world.”

Relatedly from SB1761 itself:

“It is not the intent [of this bill]… to cause divestiture from any company based in the United States of America.”

Not intended? This soft language clearly leaves the door open to require Illinois public retirement systems’ divestiture from U.S. companies that participate in BDS. So, while politicians endorsing this bill can point to this statement of “intent” as some kind of safeguard for American companies, this same sentence simultaneously functions as a veiled threat to those companies.

JUF News also reported that SB1761 was “Conceived by Governor Bruce Rauner [and] strategized in cooperation with JUF.” At an Israeli Independence Day event, Gov. Rauner was quoted saying the bill was “…staying strong and standing up to anti-Semitism”, essentially implicating all organizations and individuals who support or participate in BDS (the main target of the bill) and/or divestment as anti-Semitic: The Presbyterian Church (U.S.A.), United Methodist Church, Church of England, The Color Purple author Alice Walker, Jewish Voice for Peace, Pulitzer Prize winner Tony Kushner, best-selling author Naomi Klein (The Shock Doctrine), Students for Justice in Palestine, Academy Award winner Julianne Moore, University of Toronto Graduate Students’ Union, Canadian Union of Public Employees, etc. and this list goes on and on and on. Would this list of organizations/artists then also be blacklisted by Illinois, or potentially criminalized? Gov. Rauner’s absurd accusatory implication is an outgrowth of a decades-long Israeli hasbara campaign which seeks to conflate criticism of Israel/Zionism with anti-Semitism. They want the world to see criticisms of Israeli governmental policy as attacks on Jewish people through the personification of a country. It’s a self-serving version of “corporate personhood,” but with the Jewish State: Israel Personhood.

SB1761 characterizes the motivations of the BDS movement as “intending to penalize… Israel.” Similarly, JUF News this month quoted JUF President Steven B. Nasatir saying, “At the core of the BDS movement is a quest to delegitimize Israel as a Jewish state.” That’s like stating that the intent of the Civil Rights Montgomery bus boycott was to “penalize white people.” The real intent of that boycott was to gain equal rights for black Americans. Likewise, the true motivation of the BDS movement isn’t to “penalize” Israelis. It’s to liberate Palestinians. This is an essential distinction. This misreading (willful or otherwise) of the true intent of the BDS movement is a symptom of an overall mindset that reflexively frames the Palestine issue from a Jewish State/Israeli-centric perspective. From this perspective, instead of “equal rights for all in Israel/Palestine,” we get, “penalize Israel.” Extreme pro-Israel folks actually translate “equal rights for all in Israel/Palestine” into “annihilate the Jews.”

But maybe the most alarming aspect of SB1761 is its substitution of the phrase “territories controlled by” for the more accurate “occupied territories.” This manipulative language aids, conceptually and otherwise, in the full annexation of the West Bank into Israel. Israel’s occupation is internationally recognized as illegal. Israel’s “controlling,” maybe not so much. It’s a linguistic cover-up that facilitates and serves the occupation. It’s of a piece with decades of not so subtle rhetoric designed to bury Israeli crimes and U.S. complicity in them. It’s been a steady process of “creeping annexation” in the hope that with the passage of time, countless wrongs will simply be folded in with the rest of the “facts on the ground.” Referring to military occupation as simply a method of “control” is as insulting as referring to the history of slavery in America as black people having been merely “controlled” instead of enslaved.

Those who feel that the annexation of the West Bank into Israel is simply an unfortunate, inevitable byproduct borne out of spontaneously undirected “facts of the ground” are wrong. It is by design. From the National Lawyers Guild (NLG):

“Israeli Government statements make it clear that the Government views the settlements as creating the basis for eventual annexation of the West Bank… into Israel.”

This NLG observation was made nearly 40 years ago in its 1977 Middle East Delegation report Treatment of Palestinians in Israeli-Occupied West Bank and Gaza. The 1977 NLG Report goes on:

“Israeli promotion of settlements in the West Bank… constitutes a violation of Article 49(6) of the fourth Geneva Convention… Israeli policy is designed to ‘create facts’ to render impossible any solution other than incorporation and annexation of the West Bank… Military occupation is not a value-free act; one does not try to determine whether an occupation is ‘good’ or ‘bad.’ By their very nature, occupations are repressive[.]”

SB1761 would aid that repression. Is it now the business of the Illinois legislature to codify into law the repression, and dispossession, of the Palestinian people?

Thanks to Samantha Brotman 


Most Voted
Newest Oldest
Inline Feedbacks
View all comments

Is it now the business of the Illinois legislature to codify into law the repression, and dispossession, of the Palestinian people?

The Illinois legislature told us that it is indeed their business. So I told the Illinois Chamber of Commerce where I wouldn’t be doing my business.

“This manipulative language aids, conceptually and otherwise, in the full annexation of the West Bank into Israel.”

Today, BBC World Service did a piece on Orthodox Jews. The reporter visited a business on a West Bank settlement which was presented as being in Israel (“Alon Shevut, Israel”). The reporter did not correct that statement.

“In response to losing the public debate, many Zionist activists now seek to design laws to criminalize even tepid criticism of Israel.” — Steven Salaita

Well, won’t that make for interesting times — when the US Injustice system begins prosecuting activist American Jews for criticizing Israel killing of innocent Palestinians, especially children.

The world looks on as an Israeli billion dollar budget influences and designs US state laws. We wonder when the US government will take back it’s own country or whether it will continue to be Israel’s twisted round their little finger, lackey. It must be very humiliating for a nation to watch it’s supposed government be led by the nose to serve a despotic regime answering to no-one. So much for the United States of… Read more »

How is this suppose to work? If a company or financial institution decides to divest for purely economic reasons (it’s just not paying) how can you penalize them? Will there be some panel that will sit in judgement and decide if your reasons are valid?

This ain’t gonna fly.