By Marilyn Garson and Fred Albert
Occupation is a legally defined and legally limited status. However, S Michael Lynk, UN Special Rapporteur and legal academic, finds that that occupation of Palestins “has become illegal, given its flagrant violations of the foundational principles of the modern laws of occupation.” In the US, A recent in-depth article in the Harvard Law Review, February 2020, Wielding anti-discrimination law to supress the movement for Palestinian human rights, concludes that, in the US context, BDS is not discriminatory and notes:
The weakness of the discrimination claim is constitutionally significant for anti-BDS litigation. It reveals that, despite states’ assertions to the contrary, the government does not have a compelling antidiscrimination interest that could trump countervailing First Amendment interests. Moreover, the weakness of the discrimination claim matters beyond anti-BDS laws. The past decade has seen antidiscrimination law weaponized to undercut a human rights movement that has opponents at the highest levels of the U.S. government — a trend that threatens other controversial political movements that the government may seek to undermine. Chilling disfavored political movements is precisely what the First Amendment is meant to protect against. While First Amendment protections can and should bow to strong antidiscrimination interests, governments must not adopt baseless discrimination claims in an attempt to override First Amendment protections.
Some members of Alternative Jewish Voices protest the occupation through BDS and some do not. With this post, we open a conversation about our choice. We begin as the UK Supreme Court upholds the right of pension funds to protest by divesting from companies which profit from Israel’s occupation of Palestinian land.
You annex? I boycott. I (Marilyn Garson) did not join the boycott until 2020. Although I considered BDS to be a valid and important Palestinian-led movement, I had several reservations. I wanted to distinguish between Israel and the occupied Palestinian Territories, to protest in a way that embodied the two peoples. BDS is such a broad umbrella, I didn’t agree with every BDS initiative. I still hoped to enlist more of the Jewish community in conversation about change.
Netanyahu and Trump tossed out each of my objections. Trump’s ‘plan’ for a greater Israel hands to Israel the Palestinian lands that Israel has settled in the West Bank, Jordan Valley and all of Jerusalem. The Palestinians had no input into Trump’s plan and of course, they do not agree to hand over their land – their land, which is not Trump’s land to give.
The plan overthrows the very foundation of the law: it is illegal for a state to acquire territory or take foreign civilian property by military force. The UN has resolved 8 times that Israeli settlements on Palestinian land are illegal.
Israel’s Prime Minister Netanyahu and his main political opponent-cum-coalition partner, Benny Gantz have both consistently promised to annex. On February 11, the Jerusalem Post quoted Netanyanu saying that Trump supports Israel’s annexation of “all of” the settlements, “all of them without any exception… without Palestinian consent.” On February 18, Netanyahu added, “Whether they accept it or not, it’s going to happen.”
I take Israel’s leaders at their word. Wrapped in Trump’s fickle embrace, they will draw Israel’s borders in flagrant disregard for international law. They will erase any distinction between Israel’s illegal settlements and Israel itself. Standing next to Donald Trump, Benjamin Netanyahu called the very fact of occupied Jerusalem “a big lie.”
So much for my wish to distinguish between Israel and its occupation. Israel’s leaders have obliterated the distinction and altered my protest. Annexation would have a “cascade of bad human rights consequences” and it must not happen. Only sustained international pressure will curb Israel’s expansionist, ethnic nationalism.
As for the risk of finding fellow-travellers beneath the broad umbrella of BDS, Zionism’s fellow-travellers are equally troubling. They begin with Donald Trump and they include self-named White Zionists, the white supremacists who endorse Israel as their model of white ethnic power. When I get hatemail from white supremacists, it blends Islamophobia with Zionism.
The law of occupation is not in doubt, but states have failed to enforce the law of this occupation. I want to live in a world of laws. I will not let go of the law, so annexation also changes my personal protest. Only numbers, only sustained external pressure will drag Israel back into the moral and legal world that the rest of us have agreed to inhabit. In particular, only external pressure will protect the rights of the most vulnerable, blockaded people of Gaza.
I never thought I would say it, but in February 2020, I did. Israel, you annex? I boycott.
Fred’s Background: In my case I was introduced first-hand to the power of boycotts in my teen years in California via the 5-year long fight by the National Farm Workers Association to get better conditions for grape pickers in California. A boycott of “table grapes” was declared and I can remember not purchasing grapes for years as the dispute dragged on and I can also remember our rabbi strongly supporting the farm workers during this period and often referring to them in his drashot over that time. So, for me, a boycott is a good way to demonstrate solidarity and to let there be some sort of financial cost for choices made by those in power.
Similarly, I avoided buying goods from South Africa during the apartheid era. It did seem using economically based tactics did cause the South African government concern in a way that demonstrations and other measures did not.
So, BDS seems a useful tool to protest against the Occupation in Palestine and the blockade of Gaza. It seems clear that the Israeli government fears BDS more than any number of demonstrations or UN resolutions. There seems to be a lot of misplaced anger against BDS by Jewish groups who don’t seem to understand that the boycott against Israel is tied to the Occupation and not tied to Jews as such. I fully support BDS.
Having chosen to protest through BDS, we agree that:
- The Boycott, Divestment and Sanctions (BDS) movement is a rapidly-growing, Palestinian led movement to protest Israel’s occupation of Palestine, and its denial of Palestinian rights. Its website asks us to use our collective power “to impose broad boycotts and implement divestment initiatives against Israel, similar to those applied to South Africa in the apartheid era.”
A co-founder of BDS calls it:
an inclusive, nonviolent, non-sectarian movement that rejects all forms of racism… It calls for equal rights for all humans, irrespective of identity. It targets Israel and entities that are complicit in its regime of oppression, not on the basis of any real or claimed identity… but on the basis that this regime of oppression denies Palestinians our UN-stipulated rights under international law.
BDS is grounded in international law. It also inherits a history of effective non-violent resistance. Mahatma Gandhi used boycotts to advance human rights in the 1930s, as did Martin Luther King in the 1950s, and Cesar Chavez in the 1960s. Sustained economic pressure helps to achieve change. In this occupation, economic boycott makes sense because, as Human Rights Watch Germany wrote in 2019,
years of our research has shown that it is not possible to do business in the settlements without contributing to or benefitting from human rights abuse and violations of international humanitarian law. The only way companies can meet their obligations under the UN Guiding Principles on Business and Human Rights is to stop operating in settlements.
BDS targets Israel because Israel is responsible for its occupation, as South Africa was responsible for apartheid. When apartheid ended, so did the boycott. In response to those who claim that the end of the occupation is really a code for ending Israel, we note that neither South Africa nor New Zealand’s own decolonizing steps have made anyone disappear. States do not end when they institute more equitable power relations; they are enhanced. BDS is grounded in the international frameworks that will protect the rights of Israelis and Palestinians in any solution.
BDS, like any political expression, can be used by racists. However, boycotts are not by definition racist. It is abhorrent to label anyone anti-Semitic for choosing not to conduct business with the occupation of Palestine.
Racism essentializes and demeans a group of people. BDS explicitly does not target Jews, the Jewish identity or Jewish businesses. If it did, we would be in the front row of those who oppose it. BDS invites Jewish and Israeli participation, and hundreds of thousands of Jews support BDS through membership organizations and campaigns.
BDS targets complicity with, and the profits derived from, Israel’s occupation. Israel is not the Jewish people, and the occupation is not a religious act. It is a project of military force and political power. It is not anti-Jewish to stand up for the equal rights of all human beings.
Some people charge that BDS denies the Jewish right to self-determination. Political rights, including the right to self-determination, are not Jewish rights in particular. No ethnic group has an exclusive claim to political rights or to power. Palestinians have an equal right to self-determination. Here again, it’s important that BDS in grounded in the legal frameworks that resolve conflict and uphold the rights of all people.
So then, why do folks target the individuals who choose not to trade or invest in the occupation? That’s easy: people attack the protestor in order to deflect attention from the object of the protest. As long as we’re calling each other names, we’re not talking about the occupation of Palestinian land and the devaluing of Palestinian lives. We’re not asking what justice might look like, and we’re nowhere near talking about the regional vulnerability to climate change.
In that spirit, here’s our challenge to readers. We ask that you please address the issue, which is the occupation of Palestine. There’s been enough name calling, and it’s time to have the real conversation. If you support the occupation of Palestine, please say so as clearly as we have said that we oppose it. Defend it, and Netanyahu who has been elected five times to implement it, and Donald Trump who gleefully advances it.
We invite you to debate the real questions.
 Omar Barghouti, Two degrees of separation: Israel, its Palestinian victims, and the fraudulent use of antisemitism, in On Antisemitism: Solidarity and the Struggle for Justice, Jewish Voice for Peace (Chicago: Haymarket Books, 2017).