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Israel: Supreme Court Approves Deportation of Human Rights Watch Representative for BDS Support

(Dec. 5, 2019) On November 5, 2019, Israel’s Supreme Court rejected an appeal against an administrative court judgment approving the minister of interior’s decision not to renew the employment visa of the second appellant, Omar Shakir. The majority opinion was written by Justice Neal Hendel, with justices Noam Solberg and Yael Willner concurring. (AdminA 2966/19 Human Rights Watch & Omar Shakir v. Minister of Interior) (in Hebrew, all translations by author).)

Appellants’ Arguments

The claims of the appellants—the international human rights organization Human Rights Watch (HRW) and Shakir—centered on the “constitutionality and the interpretation” of the Entry into Israel (Amendment No. 28) Law, 5777-2017, which limits entry of persons who are engaged in boycott activities against the State of Israel. (Entry into Israel (Amendment No. 28) Law, 5777-2017 (Amendment Law); AdminA 2966/19 para. 3.)

They contended that “the denial of entry into Israel on the basis of a political position ‘violates the core essence of freedom of political expression, undermines the principle of equality – and threatens the core character of the democratic state’” in a disproportional way, thereby violating the basic rights of foreigners whose entry is denied and of Israelis and residents of areas under Israeli control who are interested in interaction with such foreigners. (AdminA 2966/19 para. 3.)

The appellants further argued that

Shakir’s actions – as a private person, and more so as an organization employee – do not constitute a boycott of Israel, because they were designed to protect human rights, and are directed at those involved in harmful activities. In this sense, it is, in their opinion, a common and legitimate practice of [human] rights organizations, which corresponds to the expansion of the application of international law on business corporations. (Para. 3.)

The appellants emphasized that although HRW focused on incorporating rules governing corporate liability into the field of human rights, it did not call for a boycott and was not a member of the Boycott, Divestment, Sanctions (BDS) movement. (Para 7.) As the boycott activities were not directed “only because of affiliation to the State of Israel,” HRW argued, they could not be defined as a boycott. (AdminA 2966/19 paras 3 & 7.)

The appellants argued that the Minister’s decision was inconsistent with relevant tests issued by the Population and Immigration Authority on July 24, 2017, for preventing entry into Israel of boycott activists. The appellants contended that according to these tests, entry of organizations’ activists into Israel should be examined in the light of their organizations’ activities. (Para. 3.) Because a significant part of the boycott activities attributed to Shakir involved the use of HRW’s Twitter account on the organization’s behalf, they alleged, these activities did not fall under the definition of a boycott. Considering that the State of Israel had not classified HRW as a boycott organization, they argued, these publications could not be viewed as constituting a call for a boycott. Additionally, some statements that Shakir had made in a personal capacity and were cited by the administrative court constituted merely an analysis of the BDS agenda and not a call for a boycott; and some were made prior to his entry into Israel in early 2017 and therefore did not constitute boycott activity that was “consistent and ongoing,” within the criteria established for “independent” boycott activists. (Para. 3.)

The respondents included the minister of interior along with several Israeli nonprofit organizations. They submitted detailed arguments, referred to in the decision of the Supreme Court.

Applicable Law

The authority of the interior minister to deny entry to boycott activists is based on section 2(d)–(e) of the Entry into Israel Law, 5712-1952, which was added by the Amendment Law. Under this section, a person who is not an Israeli citizen or a permanent resident must be denied entry into Israel if that person or an organization or a body on behalf of which that person acts has intentionally and publicly published a call to or a commitment to “boycott the State of Israel.”  The minister is authorized to deviate from the prohibition only under special conditions, which must be given in writing. (Amendment Law; AdminA 2966/19 para. 9.)

The Amendment Law defines “boycott of the State of Israel” in accordance with the definition provided under the Law for the Prevention of Harm to the State of Israel by Boycott, 5771-2011. Accordingly, a boycott of the State of Israel applies to the

[d]eliberate avoidance of economic, cultural or academic contact with a person or another party, only because of their affiliation with the State of Israel, one of its institutions or an area under its control, which is liable to harm [the State] economically, culturally or academically. (Law for the Prevention of Harm to the State of Israel by Boycott § 1.)

Supreme Court Decision

Addressing the constitutional challenges raised against the Amendment Law, Justice Hendel determined that these would better be made directly to the Supreme Court sitting as a High Court of Justice (HCJ)—a procedure that would require adding the Knesset (parliament) as a respondent—rather than indirectly during the appeal stage. A special petition centering on the constitutionality of the amendment was already pending before the HCJ in another case. (AdminA 2966/19 paras. 10–14 (note justices Solberg’s and Willner’s reservations regarding the legal standing of a foreigner claiming harm to the rights of Israeli citizens).)

Hendel determined that objectives of the two categories (individual as well as organizational activities) addressed in the Amendment Law were designed to accomplish the same goals—namely,

preservation of the sovereignty and security of the State of Israel, side by side with a concrete objection to “encouraging the just struggle conducted by the State of Israel against the boycott movement – on the basis of the doctrine of defensive democracy and the right of the State to defend and protect its citizens from discrimination.” … Therefore both are subject to the principle determination in the Alqasam case, according to which the arrangement determined in the … framework of Amendment No. 28 carries “a preventive and nonpunitive character.” (Para. 15.)

The Amendment Law, thus, did not apply to persons who ceased to engage in boycott activities. In Hendel’s opinion, consideration should be given to the nature of the activity itself. Therefore a distinction must be made between “an organization that dedicates itself to BDS activity [and] … one that engages in [such activity] one time in a random fashion.” (Para 16.) An additional distinction also should be made with regard to a prominent activist who disseminates the boycott agenda publicly, as compared with a private person acting within the premises of his family, Hendel added. (Para. 15.)

In Hendel’s opinion, the language of the definition of the term “boycott of the State of Israel” suggested that it contained only a boycott motivated by the link of the boycotted body to the State of Israel, its institutions, or an area under its control. In contrast, participation in a boycott against a particular body because of its flawed conduct, which is not necessarily related to its Israeli identity, did not fall within the scope of the Amendment Law, and did not constitute a ground for limiting entry into Israel. Referencing a previous Supreme Court decision, Hendel further concluded that “a boycott based on opposition to a general policy of the government of Israel, regarding an area under its control, comes under the boycott law – because it reflects negation of the legitimacy of the State regarding an activity, and does not derive from a specific action of the boycotted body.” (Para 18.)

Application to the Current Case

The minister’s decision was limited to Shakir’s employment visa and did not apply to HRW, which was not characterized by the State as a boycott organization and could therefore request employment of a different representative who was “not involved up to his neck in BDS activity.” (Para. 19.)

According to Hendel, the difference in treatment afforded to HRW and Shakir derived from the fact that HRW’s engagement in the Israeli-Palestinian arena constituted only a single component of the organization’s global activity, which did not justify classifying it as a boycott organization. The difference in treatment is also based on the personal record Shakir accumulated as an individual in boycott activities up to joining HRW. (Para 19.) The totality of Shakir’s actions, Hendel concluded, brought him personally within the application of section 2(d), resulting in the denial of his application. (Para. 20.)

This conclusion is based on the lower court’s finding that Shakir had engaged in “active, systematic and lengthy activity to advance boycotts against the State of Israel and bodies affiliated with it, or an area under its control.” Shakir was found to have repeatedly called, in various settings, for promoting the BDS movement, describing it as “an effective and moral way to change the balance of power between Israel and the Palestinians, and to promote a just solution to the conflict.” (Para. 18.) In 2015 Shakir signed a petition containing, among other things, a pledge “to engage with the Palestinian struggle and to do so honoring the BDS call.” In 2016 he participated in various panels in which he praised the boycott movement and discussed the benefits of the BDS strategy, and in 2017, after joining HRW, he published an update on a report calling for general withdrawal from Israeli banks. (Para. 18.)

Hendel further rejected the argument that Shakir’s activity was motivated by protection of human rights and therefore did not derive from affiliation to the State of Israel, its institutions, or an area under its control. He held that

a call for a boycott of Israel may come within the scope of section 2(d) of the Entry Law, even if it relies on arguments of protection of human rights, or the provisions of international law. In fact, it appears that the possibility of covering the [indecent] call for boycotts by the rhetoric of human rights would empty … [the Amendment Law] of its objective goal – a fight against the boycott movement [BDS]. These objectives indicate, therefore, that the phrase “only because of his affiliation with the State of Israel […] or an area under its control, is not limited to a boycott based on “political” opposition to this control – and may include boycotts that are based on identifying Israeli control of the area as a violation of international Law. …

The test is a substantive test, and the words covering for the delegitimation campaign will not provide immunity to their speaker. (Paras. 21–22.)

As the minister’s decision was limited to Shakir and did not extend to HRW in general or to any other similar organizations, Hendel found the decision to be reasonable, proportional, and within the authority of the minister under law. (Paras. 23–24.)

HRW’s Reaction

In commenting on the decision, HRW expressed concern about the “wider chilling effect” on human rights groups’ activities and the “increasing risk to their ability to continue operating in Israel and the Occupied Palestinian Territories.” HRW reiterated its claim that

[n]either Human Rights Watch nor Shakir as its representative has ever called for a boycott of Israel. As part of its global campaign to ensure that businesses uphold their human rights responsibilities to avoid contributing to abuses, Human Rights Watch has urged companies to stop working in or with settlements in the West Bank, which are illegal under international humanitarian law. The organization has never called for a consumer boycott of those companies.

HRW stated that “given the ruling’s far-ranging implications for freedom of expression and for the ability of other advocacy organizations to work in Israel,” it might “seek a hearing before an expanded panel of Supreme Court judges.” In its decision, the Supreme Court indicated that the constitutionality of the Amendment Law was to be addressed in another pending case. In addition to issues involving legal standing, as indicated by Justices Solberg and Willner, a request for a special hearing before an expanded panel is unlikely to be approved before the constitutionality of the Amendment Law is first reviewed by the Supreme Court in a panel of three justices.