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"Is there a justification for violating the Freedom of Expression?” Justices asked the state during the debate on the Boycott Law.

Feb. 16 an intensive debate developed at the Supreme Court in Jerusalem, when a special panel of nine judges convened to deliberate a series of appeals against the "Boycott Law". State officials tried to present arguments making distinction between the boycott of settlement products and such consumer boycotts as the cottage cheese boycott which launched the mass 2011 Israeli social protest. The appellants’ attorneys argued that all the varieties of boycott campaigns are a legitimate form of protest action in a democracy.

"I heard it said here that the settlers are legitimate because they had got government authorization to settle in Occupied Territory and work there. But the government also authorized large corporations to determine prices as they wish - which does not stop people from boycotting these corporations in order to get them to lower their prices" said Adv. Gabi Lasky, who represented Gush Shalom.

Adv. Adi Barkai added: "Quite true, the aim of boycotting the settlements is to cause them economic damage. This, in order to make them stop an activity – the settlement activity – which boycotters consider to be a serious threat to our very future here in Israel. Pressuring the settlers by causing them damage is legitimate, as legitimate as it is legitimate for workers to strike. By its very essence, a strike is aimed at causing economic damage to the employer in order to force an improvement of the employees’ wages or working conditions – and it is the employees’ right to do that."

Another issue which came up at the court was a comparison between the boycott of settlement products and a racist boycott of the members of specific ethnic groups. Adv. Hassan Jabarin of Adalah rejected outright any such comparison. "Of course a racist boycott, whether of Jews or of Arabs, is intrinsically wrong. The boycott of settlements is a fundamentally different thing. It is directed against a political act, the act of settling in Occupied Territory. It is a legitimate boycott against an act which the boycotters consider illegitimate”. For example, Adv. Jabarin noted that some Palestinian companies opened factories in settlement industrial parks, which caused them to be included in settlement boycott proclaimed by the Palestinian Authority. “These are Palestinian-owned establishments employing Palestinian workers, but that is not the most important factor. What is crucial is that these factories have made themselves part of the settlement project, which is designed to perpetuate the occupation. "

The Judges addressed many questions to the State representative, Att. Genesin, inquiring if the Attorney General admits that the "Boycott Law" violates the Freedom of Expression. Under Israeli constitutional principles, such a violation would not automatically invalidate the law. However, the state would have to show that this violation of a fundamental right is “for a worthy cause” and that the benefit to be derived from it is proportionate to the injury. Attorney Genesin avoided a clear answer. For his part, the representative of the Knesset’s own legal advisor acknowledged that in the Knesset deliberations before the Boycott Law was finally enacted, the advisor considered the law to raise “serious constitutional problems” due to the fact that it penalizes not only the boycott of Israel as such but also a boycott of the settlements.

During the Supreme Court hearing it was revealed that though two and half years have passed since the law was enacted, the Minister of Finance so far failed to publish regulations necessary for the implementation of some of its provisions . "Does this mean that the government regards this law as a dead letter which is not intended for implementation? And if so, would it not be better to abolish it altogether?" wondered several of the appellants’ attorneys.

The state representative also stated that so far no damage suits had been filed under the Boycott Law, and therefore the appeals were" not ripe ". Rather, one should wait for suits to be submitted and see what rulings will be made by lower courts before the Supreme Court takes a stand. “It is not possible to wait, because the law already caused and continues to cause substantial damage to the Freedom of Expression” reacted Adv. Gaby Lasky. “Before this law was enacted my client, Gush Shalom, used to publish, distribute and regular update its list of settlement products. This was done as a public service for those not ready to purchase and consume settlement products, and who wanted to know the origin of what was being offered for sale. It was a significant part of the activities of Gush Shalom. Nowadays, ever threatened with this law, Gush Shalom was forced to cease the publication and distribution of this list, being considerably hampered in its political activity and unable to take action which its members consider important." The state representative remarked that last Friday Gush Shalom had published an ad in Haaretz, referring to the legitimacy of boycotting settlements – to which a judge responded: “We don’t make rulings on the basis of what is published in newspapers. If you consider this relevant, present it to us as evidence”.

Towards the appellants’ representatives, the judges again and again demanded to know whether they were opposed to the Boycott Law in its entirety or just to its ban on the boycott of the settlements. In fact, that prohibition is set out through just seven words in the text of the Boycott Law. The law defines a new sort of tort: "The boycotting of a person or institution" because of "ties with the State of Israel or with an area ruled by it" - that is, with the territories occupied in 1967 which are ruled by Israel but are not part of it. Repeatedly, the judges asked whether the appellants would be satisfied with deletion of these words, or would they insist on invalidation of the entire law. Most of the attorneys replied that they were opposed to this law in general, but especially to the part dealing with the settlements. "If you take a blue pencil and erase the words 'an area ruled by it’, it would not solve the whole problem. Some people might still want to boycott a person or institution because of ties with Israel, because these are ties with an Israel which keeps these territories under its rule" said the representative of the ACRI (Israeli Civil Rights Association).

The judges continued to subject appellants’ attorneys to hard questions and put to them various hypothetical cases: "What if Israel leaves the Territories and this law remains in force, would you still demand that it be invalidated?” and "Had such a law been enacted in 1966, when Israel did not yet rule these territories, and been directed against an Israeli citizen who would have supported the Arab boycott against Israel, would you have then considered it unconstitutional and violating the Freedom of Expression? ". To this Adv. Osama Saadi, represents Ta’al Party and its head MK Ahmad Tibi : "The fact is that in the fifties and sixties there was an Arab boycott of Israel, and Israel got by without having such a law. Why should such a law be needed today when, rather than an Arab boycott, there is an Arab Peace Initiative and a willingness of the Arab states to make peace with Israel? ".

Throughout  the deliberations MK Ahmed Tibi and former Knesset Member Uri Avnery sat together in the front row, and at their side Deputy Foreign Minister Ze'ev Elkin, who was among initiators of the Boycott Law . At the end of a long session, the nine justices left the hall without as yet rendering a ruling.
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