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April 20, 2015 6:11 pm

Analysis: New Israel Fund Critics See BDS Lawsuits in Wake of Israeli Supreme Court Ruling

avatar by Edwin Black

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The BDS movement. Photo: Wiki Commons.

Lawsuits may soon be coming.

A stunning new Israeli Supreme Court decision has upheld most of a 2011 Israeli law enabling civil recovery actions against those that proliferate Boycott, Divestment, and Sanctions (BDS) against Israeli individuals, companies, and institutions. Most of the Law Preventing Harm to the State of Israel by Means of Boycott was sustained in a recent ruling — the court’s strongly-worded majority opinion, seven concurring opinions, and dissent covered 233-pages in total.

The newly enabled addition to Israel Civil Tort Law 62A covers the total Israeli domain, that is, the Jewish State delineated in 1948 and all territory under Israeli control, including the West Bank. As such, those suffering losses by BDS activity can sue for actual damages. Punitive damages are disallowed under the ruling. Critics are predicting litigation against the New Israel Fund (NIF) and its NGO grantees that promote BDS.

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For its part, the NIF and its grantees that fought hard against law during the run-up to the Supreme Court decision have almost universally condemned the decision as an attack against freedom of expression and democracy.

By way of background, the NIF was pivotal in the early establishment of the international anti-Israel boycott through its funding of the Coalition of Women for Peace and other activities. After widespread criticism, the NIF stopped funding the Coalition of Women for Peace. However, many key NIF grantees, such as Partners for Progressive Israel (PPI), remain vibrantly involved in the BDS movement.

For example, a February 2015 PPI policy statement published on its website, accessed April 20, 2015, states: “PPI supports a selective, targeted boycott of Israel’s occupation of the West Bank, not at Israel as a wholeThe conception of a selective boycott first adopted by PPI called for a boycott of goods produced by the settlements.” However, several PPI web pages devoted to boycotting settlement products were found blanked out when accessed after the Supreme Court ruling. These include such pages as one entitled “boycott-settlement-products.”

The NIF policy statement accessed April 20, 2015 asserts: “NIF will not fund global BDS activities against Israel nor support organizations that have global BDS program. However, NIF opposes the occupation and subsequent settlement activities. NIF will thus not exclude support for organizations that discourage the purchase of goods or use of services from settlements.”

The much-criticized civilian settlements exist on disputed former Turkish colonial land unambiguously set aside for Jewish and Arab national self-determination under international law after World War I, and re-affirmed after World War II with the establishment of the United Nations. Due to endless Arab-Israeli wars since non-binding UN Resolution 181 initiated a bi-national partition of the land into two states, the lines between the parties have never been mutually agreed upon or delineated. Israel claims the land under international law, while the international community mainly rejects the claim. Nonetheless, the settlement lands are now covered by the recent Israeli Supreme Court ruling. Moreover, many BDS activities target all of Israel, including Israeli universities in Tel Aviv and Haifa, the national shipping line Zim, as well as such products as Ahava cosmetics and Sodastream.

The Supreme Court justices were unusually vocal in their support for the anti-BDS law. Justice Hanan Melcer declared, “Calling for boycott and participating in it, therefore, can sometimes be considered ‘political terror.'” Justice Yitzchak Amit denied the law was a violation of freedom of expression while excoriating the academic boycott, pointing out, “The cultural-academic boycott of Israel is intended to paralyze and silence political expression, to make one opinion and one ‘truth.'”

Certainly, the Israeli law now resembles ordinary tort law in England and the United States wherein some speech has legal consequences, including defamation, infringement, and business interference.

With the new legal ruling, BDS critics predict litigation to recover damages from the NIF and its grantees engaged in the BDS movement. After the ruling, Ronn Torossian, an entrepreneur who has written about the NIF, confirmed: “Immediately following the legal decision, a high profile uber-wealthy donor advised me of his intent to fund anyone who sought to sue the New Israel Fund for aiding and abetting boycotts of Israel. The NIF boycotts hurt both Israel and Palestinian Arabs and is simply racist at its core. It’s anti-Democratic and wrong.”

The mood may have been cemented a month before the Israeli ruling, when prominent New York civil rights litigator Robert J. Tolchin, who in 2012 helped a Florida family secure a $323 million judgment from Iran and Syria arising from terrorism, sent a strongly worded notice to the NIF. Filled with citations from U.S. law, the letter declared itself “a warning that the New Israel Fund should under no circumstances support, publicly or privately, any boycott or similar effort against the Israeli government or the nation’s organizations, academic institutions, corporations or other entities.”

Richard Allen of JCC Watch, stated, “I certainly hope a lawsuit happens. New Israel Fund and its donors have been financing the BDS against Israel and it has been very effective. Now, they have even carved out a space for Jewish organizations to find this acceptable. But it is assisted suicide.”

Several other legal experts were skeptical that any suits initiated in Israel would ultimately prevail.

Prominent civil rights attorney, Alyza Lewin, president of the American Association of Jewish Lawyers and Jurists, commented, “An overwhelming majority of the Israeli Supreme Court relied on American constitutional principles that give wide protection to free speech to uphold an Israeli law that wisely protects the Israeli economy against calls for destructive commercial boycotts.”

Three attempts by this reporter to secure comment from New Israel Fund communications director Naomi Paiss and/or her staff were unsuccessful. But in the past, the NIF has stated its activities are aimed at achieving a more democratic state.

Edwin Black is the New York Times bestselling author of IBM and the Holocaust, and his recent book on NGOs Financing the Flames.

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  • Gastwirt

    West Bank???

    Seriously!?! That is Judea and Samaria. Using a he term W…k legitimizes the illegal Jordanian conquest and occupation of J&S.

  • steven L

    It is clear that something strange happened to the supreme court.
    The reform movement believes that IT represents THE Jewish people and not Israel. Their insistence to “infiltrate” Israel has one purpose, to advance the “liberal left”!
    The British Academia of Sciences slap the BDS and all their supporters in their UGLY faces.

  • Yale

    Maybe this will initiate a wave of lawsuits, both for damages arising from BDS activity and defamation for all the incitement.

  • Mike P.

    I wonder if all those who lost their jobs at Soda Stream, including Arabs, due to their relocation, will have the right to sue New Israel Fund.

    It would be so funny if the New Israel Fund (and its backers personally???) is actually bankrupted by Palestinians!

    Of course, Jews that are forced to commute a longer distance to their Soda Stream job may also have a claim, like the expected cost of commuting for the next 20 years, which could easily be $60,000 per worker for gas, $60,000 per worker for car depreciation and wear-and-tear, and $100,000 per worker for the extra hour round-trip per day on the road (for the next 20 years).

    The damages, just for Soda Stream employees alone, would bankrupt the New Israel Fund really fast!

  • Richard R Silverman

    Just to be clear, and not intending self Jew hating, I find it totally unacceptable that Reform Rabbis in Seattle are proud members of J-Street and the New Israel Fund. Stating they “totally support Israel” and being “proud members” of these anti-Israel organizations is logically illogical which is totally hysterical.

  • Please help the Zionist Organization of America (ZOA) fight against anti-Israel boycotts and boycotters by voting today for the ZOA slate in the World Zionist Congress elections. The voting link is at VoteZOA.org

    Groups that promote and/or fund anti-Israel anti-Jewish boycotts, divestment and/or sanctions (BDS) are running on the so-called mis-named “Hatikvah” slate in the World Zionist Congress elections. These BDS-promoting groups include Partners for Progressive Israel, Americans for Peace Now, New Israel Fund (NIF), J Street, Ameinu (through its The Third Narrative subsidiary) and Open Hillel (which demands that Hillel should be “open” to hosting anti-Israel anti-Jewish BDS events)

    The ZOA brought a case to disqualify these BDS groups from the World Zionist Congress election. We are awaiting a decision from the Zionist Supreme Court, and hope that the Zionist Supreme Court will follow the excellent example of the Israeli Supreme Court. The election ends on April 30, 2015, so please go to the link at VoteZOA.org to vote for the Zionist Organization of America/ZOA: Defend Jews & Israeli Rights slate today.

    Please contact liz@zoa.org for more information or if you need help voting. Thank you.

    • Richard R Silverman

      Thanks, I voted ZOA.

  • Jack HOLAN

    Now that they may be finished with their self importance and exacting financial retribution from honest companies providing hundreds of jobs for one breadwinner trying to put food on the table for 10; they will see how it is to hemorrhage hard-earned money.

  • Lynne T

    Considering the defamation that BDS relies on to win supporters, why shouldn’t its proponents be subject to claims for damages by persons and businesses that suffer calulable losses.

  • It’s important that the Israeli Law is the same as English and American Law. The unwritten Israeli Constitution is modelled on Britain, with a neutral head of state who appoints a prime minister based on parliamentary elections, a national religion headed by two archbishops/chief rabbis, an independent judiciary. British Law is recognised world-wide and American Law is probably second most widely recognised, itself with English common law roots. Israel has no agreed borders which makes certain areas disputed land. Jordan invaded and occupied the West Bank and E£ast Jerusalem in 1948 but only two countries recognised Jordan’s claim.

  • Mike P.

    Does the new ruling also hold liable those who aid and abet the New Israel Fund, by donating to it?

    Would the plaintiffs be able to collect against NIF donors only if they land in Israel, or would a US court enforce judgments in Israeli courts against NIF donors for aiding and abetting?

    Would the liability of aiding and abetting be joint and several, such that donors with the deepest pockets may end up having to pay for 100% of ALL damage caused by ALL boycotts against ALL Jewish settlements?

  • montlasky

    Striking a blow for freedom of expression through trade and industry is exceptional and is great news for all free trade thinkers who reaise that BDS and it’s ilk are promting hate through free trade let alone the political connotation of hate or hate’s sake.

  • Max Cohen

    These BDS academics must have sprouted over-night from pods landing on Earth from outer space. They believe Israel, unlike any other nation victorious in a war of self-defense against attackers bent upon its destruction, is obligated to return lands won at the cost of life and limb. Whence comes the moral code of these inhuman pod creatures?

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