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Warning Ben & Jerry’s of ‘Legal Consequences’ Over West Bank Ban, Israel Looks to US State Anti-BDS Laws

avatar by Sharon Wrobel

Tubs of Ben & Jerry’s ice-creams are seen as a labourer works at their factory in Be’er Tuvia, Israel July 20, 2021. REUTERS/Ronen Zvulun

Israeli Prime Minister Naftali Bennett warned Unilever CEO Alan Jope that Ben & Jerry’s decision stop sales to “occupied” territories, including Jewish West Bank settlements and areas of east Jerusalem, will have “severe consequences, legal and otherwise.”

Bennett spoke on Tuesday with Jope of Unilever, which owns Ben & Jerry’s, and emphasized the gravity of the decision, casting it as an “anti-Israel step.” He added that Israel would take aggressive action against any boycott directed against its citizens.

On Monday, Ben & Jerry’s announced that the US ice-cream maker will not renew its license agreement with its current Israeli partner but will seek to continue to sell products in the country under a different arrangement, outside the West Bank. “We believe it is inconsistent with our values for Ben & Jerry’s ice cream to be sold in the Occupied Palestinian Territory (OPT),” the company stated.

Several Israeli officials pointed to a range of American laws explicitly aimed at countering the Boycott, Divestment, and Sanctions (BDS) movement.

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“Over 30 states in the United States have passed anti-BDS legislation in recent years. I plan on asking each of them to enforce these laws against Ben & Jerry’s. They will not treat the State of Israel like this without a response,” Israel Foreign Minister Yair Lapid said Monday.

Israeli Ambassador to the US Gilad Erdan sent a letter to 35 governors of states that have such legislation, urging them to act against the ice cream company’s decision, which he said advanced “the de-legitimization of the Jewish state.”

“We will make clear to Ben & Jerry’s that its antisemitic decision will have consequences,” Erdan said.

Richard Goldberg — a former chief of staff to the Illinois Governor Bruce Rauner who authored the first-ever state anti-BDS law, passed in 2015 — argued that a dozen US states will need to divest their pension funds from Unilever over the move.

“Ben and Jerry’s and its parent company, Unilever, are now engaged in a boycott of Israel as defined by states across America. State anti-BDS laws defined boycott Israel to include any actions that are politically motivated and are intended to limit commercial relations with companies based in the State of Israel or in territories controlled by the State of Israel,” said Goldberg, now a senior advisor at the think tank Foundation for Defense of Democracies.

“While this announcement came from Ben and Jerry’s, state laws require the state to hold parent companies responsible for boycotts of Israel,” he asserted. He added that Unilever shares — which on Tuesday closed about a percent down — would be at risk, as pension fund managers could advise against holding positions in the company on the basis of potential legal consequences.

Goldberg also argued that a further 20 states could blacklist Unilever, whose American headquarters are in New Jersey, from government procurement.

US anti-BDS laws range in their specific provisions, and have been the subject of broad debate and litigation. In May, a US federal judge ruled that Georgia’s anti-BDS law violated the First Amendment and the due process clause of the Fourteenth Amendment. The court rejected efforts to dismiss a lawsuit from Abby Martin, a pro-Palestinian activist and journalist who supports the BDS movement. Martin had filed a lawsuit after Georgia Southern University (GSU) canceled her arrangement to speak at one of their conferences, because she allegedly refused to sign a contract which would have not allowed her to promote the boycott movement against Israel.

“It’s important to distinguish constitutionally sound anti-BDS laws — particularly those that require divestment of public pension funds — from certain misguided procurement laws that originally failed to distinguish between corporations and individuals,” Goldberg told The Algemeiner.

“It’s unconstitutional to interfere with an individual’s right to free speech, but it’s not unconstitutional for a state to decide how to spend or invest its money — which is why you haven’t seen any successful legal challenge to the pension divestment laws or to revised procurement laws that exempt sole proprietors and public employees,” he said.

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