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The Sly Effort to Criminalize the BDS Movement in the U.S.

Boycott support would dry up if Israel embraced a two-state solution

What would you do if you were Palestinian? In 1998, Ehud Barak, then in the running to become Israel’s next prime minister, said that if he were a young Palestinian he “would have entered one of the terrorist organizations and fought from there”—a statement that became a flashpoint in the campaign (which Barak went on to to win). Of course the moral problems with killing innocents are obvious, which is one reason terrorism is seldom effective as a political tactic. Yet the fact that Barak’s candor didn’t sink his political career suggests an underlying Israeli understanding of why Palestinians fight to retain their land.

But if you don’t want to kill random Israelis, what avenues of struggle for Palestinian independence are available? In the occupied West Bank, peaceful protests against Israeli land seizures typically are met with tear gas, skunk spray, rubber bullets, and arrests. The United States generally shields Israel from UN criticism.

That leaves the most recent peaceful Palestinian-led tactic—BDS, or the Boycott Divestment and Sanctions movement, which was initiated twelve years ago. It seeks to build an international boycott of Israel, its private and public emissaries, and its products. BDS is modeled on the campaign against apartheid South Africa, which succeeded in isolating the Pretoria government until it was forced to accede to most of the ANC’s negotiating demands. And, while BDS  hasn’t been successful in harming Israel’s economy—which is booming and hardly paused in the 2008 recession—it has made a splash on American and European campuses, and has become a focal point for criticism of Israel. BDS worries Israelis, and some of their American supporters, because despite its flaws it seems to be growing.

The most salient criticism of BDS comes from figures who are themselves critical of Israel. Norman Finkelstein, who has few peers among American scholars in documenting the crimes Israel has inflicted on Palestinians, is one forceful opponent. He notes that BDS seeks not merely the end of Israeli occupation but the unimpeded return of Palestinian refugees and their descendants to Israel; not a negotiated return or compensation, not a sovereign Palestinian state on the West Bank, but rather promotion of the “rights” of return of all refugees. This is an indirect but quite clear way of saying that Israel has no right to preserve itself as a Jewish-majority state or to control its borders. No Israeli politician is likely to agree to this, (regardless of how popular open borders have become among American liberals) and Israelis rightly see such a demand as a blueprint for the end of Israel. In this sense BDS marks a step backward from the huge concession made by the PLO under Yasser Arafat: Palestinian recognition of Israel in return for a Palestinian sovereign state.

Unfortunately that grand bargain, the implicit basis for the Oslo peace negotiations of the early 1990s and the famous Arafat-Rabin handshake on the White House lawn, was never fulfilled. Since the handshake, Israel has moved half a million settlers into the West Bank occupied territory, making a two state solution difficult to implement, to say the least.

This capsule history explains why BDS arose and why it is gaining ground in both America and Europe. It explains also why this boycott strategy won’t be the basis for a realistic diplomatic solution.

But in the meantime BDS’s advances worry Israel and its most uncritical U.S. supporters. Benjamin Netanyahu has called the movement an “existential threat.” Early this year AIPAC (America’s main pro-Israel lobby) has actually helped draft a bill (S. 720), The Israel Anti-Boycott Act, which mandates civil and criminal penalties for participating in an anti-Israel boycott. The ACLU, which usually steers clear of any implicit criticism of Israel or its lobby, has denounced the legislation, saying its impact “would be antithetical to free speech protections enshrined in the First Amendment.” There is a complex legal debate about how damaging this legislation would be to the basic rights of American citizens basic rights.  

Some supporters of the legislation claim it is little more than an elaboration of longstanding American efforts to counter the longstanding economic boycott of Israel by Arab countries. But the authoritarian spirit in which anti-BDS laws are likely to be enforced can be seen in the campaign of a Long Island assemblymen to prevent Roger Waters (the rock musician who is a BDS supporter) from performing at Long Island Coliseum.

Given the relative hardiness of the free speech culture in the United States, it is not surprising that the anti-BDS crowd has sought to advance its legislation under the radar. In writing about the bill last week, New York magazine columnist Andrew Sullivan noted the remarkable stealth in which it gained bipartisan sponsorship in the Senate:

Look: I’m not in favor of boycotting Israel when we don’t boycott, say, Saudi Arabia. But seriously: making it illegal? Every now and again, you just have to sit back and admire the extraordinary skills of the Greater Israel lobby. You’ve never heard of this bill, and I hadn’t either. But that is partly the point. AIPAC doesn’t want the attention — writers who notice this attempted assault on a free society will be tarred as anti-Semites (go ahead, it wouldn’t be the first time) and politicians who resist it will see their careers suddenly stalled. I doubt a single sponsor of this bill will go on the record to oppose it (so far, none has). That’s how complete the grip of AIPAC is. And pointing out this special interest’s distortion of democracy is not the equivalent of bigotry. It’s simply a defense of our democratic way of life.

Arguing that the criminalization of political activity is the hallmark of authoritarianism, Sullivan asked his readers to imagine the liberal outrage if Trump had proposed it.

Happily, the flight towards turning this profoundly illiberal measure into law is encountering at least some resistance. New York Senator Kirsten Gillibrand, sometimes touted as a future presidential contender, had been one of S720’s first co-sponsors. But, when confronted about her stance at a town hall meeting, she agreed to reconsider her sponsorship. Last week she announced she couldn’t support the legislation in its current form—a rare instance of a prominent politician allowing some daylight between herself position and AIPAC on a major issue.

Even those who oppose BDS as a political tactic should consider it shameful that U.S. senators automatically sign on to AIPAC-drafted legislation, often without even being aware of what is in it. Maryland Senator Benjamin Cardin, another of S720’s cosponsors, apparently was unaware the bill he was cosponsoring called for criminal penalties on those targeted.

BDS advocacy on American campuses obviously isn’t going to destroy Israel. But if Israel is truly worried losing ground in Western public opinion, it has a perfectly good option available: resurrect the Oslo consensus, which remains the existing international consensus on Israel and Palestine. Every American president since the Israeli occupation and before Donald Trump has opposed the building of Israeli settlements on the West Bank. The idea has been that Israel should stop its settlement enterprise; offer the Palestinians a viable, contiguous state in the West Bank and Gaza (with some equitable land-swaps if and where necessary and appropriate); offer fair compensation to the millions of Palestinians Israel has displaced; demand in return recognition of Israel’s legitimate place in the region by the Palestinians and the wider Arab world. BDS may well be conceived and supported by some who don’t want Israel to exist at all. But support for it would dry up overnight if the occupation ended and Palestinians had their own sovereign state.

Scott McConnell is a founding editor of The American Conservative.