The anti-boycott law, which the Israeli Knesset passed this week, has sparked a storm of controversy both inside Israel and within Jewish communities abroad.
The legislation effectively criminalizes Israelis who answer the Palestinian civil society call to join the BDS movement -- boycott, divestment, and sanctions -- intended to bring Israel in line with international law and to pressure the state into recognizing full human and civil rights for Palestinians. While many Israelis are uncomfortable with the BDS movement -- mistakenly seeing it as an attack on the state itself -- there are numerous Israeli peace groups and individual activists who have taken part in a targeted boycott of settlement products for years, refusing to buy anything that is manufactured over the Green Line. There are also a small number of Israelis who support the broader BDS movement.
Under the new law, both groups will be vulnerable to lawsuits. The complainant will not have to prove that his or her business was harmed by the boycott in order to sue someone. The law is retroactive and, if one is found guilty of participating in the boycott, he or she will be subject to steep fines.
The law was authored by Knesset Member Ze'ev Elkin, a member of Prime Minister Benjamin Netanyahu's hard-line Likud party.
The legislation was widely decried as undemocratic and a strike against free speech. Some went as far as to say that the new law delegitimizes Israel.
Criticism was not limited to the left-wing alone. The increasingly right-leaning Jerusalem Post penned an editorial against the legislation. It even sparked a bit of controversy inside of Likud, with a couple of party members likening the legislation to "third world laws."
But the criticism from both the left and right is problematic -- for the most part, it neglects the serious problems that were plaguing "Israeli democracy" long before the anti-boycott law was approved.
An editorial penned by the New York City-based Jewish Daily Forward offers an example. After criticizing the recent legislation, the author(s) go on to add, "It may be that when the Israeli Supreme Court hears the inevitable legal challenge to the anti-boycott law, it will rule it unconstitutional and prove, again, that a democratic system of checks and balances exist in the Israel polity."
In reality, the Israeli Supreme Court has been impotent for years -- with the state consistently ignoring rulings that are not to its liking.
Take, for example:
In 2006, the Israeli Supreme Court struck down the binding arrangement, a policy that applies to migrant workers. Rather than respecting this decision, the Knesset recently passed legislation that is so severe human rights groups are calling it the "Slavery Law."
In 2007, the Israeli Supreme Court ruled that the position of the separation barrier in the West Bank Palestinian village of Bilin served no security purpose and ordered the state to move the fence. It took the state over four years to comply and, still, the villagers remain separated from some of their land.
During Operation Cast Lead, Israel blocked media from entering Gaza. Although the Supreme Court lifted the ban, press was not admitted to the Gaza Strip.
More recently, the state has overturned the policy that made migrant workers who had children in Israel lose their legal status, calling it a violation of Israel's own labor laws. Despite the fact that the mechanism that made these women and children illegal has been struck down, the state is continuing to deport them.
Human rights organizations contest the state's non-compliance on a regular basis. Former Deputy Attorney General Yehudit Karp has twice sent letters to the current Attorney General, Yehuda Weinstein, in hopes of getting the state to comply with such rulings.
It's also important to bear in mind that the anti-boycott law is but one in a slew of legislation that some critics are calling "proto-fascist," currently making its way through the Knesset.
Of course, I would question the strength of any "democracy" that kept Palestinian citizens of Israel under martial law from 1949-1966. (And it goes without saying that the occupation, which began a year after martial law ended, is decidedly undemocratic).
Perhaps it is high time that we all start using Dr. Oren Yiftachel's term for Israel -- ethnocracy, a regime that "facilitates the expansion, ethnicization, and control of a dominant ethnic nation... over contested territory and polity."
The anti-boycott law offers a reflection of this term. As Mairav Zonszein of the independent, bloggers' collective +972 Magazine points out, "The boycott law makes no distinction between Israel and the Occupied Territories and thus is in effect a legalization and normalization of the occupation, the total erasure of the Green Line and the moratorium on the two-state solution."
She continues, "Instead of crying out about the violations of freedom of speech and the antidemocratic nature of the law, concerned entities, and first and foremost the US government, should be explicitly pointing out the message such a law clearly sends to the world about Israel's intentions vis-a-vis the two-state solution: primarily that it has none."
Indeed, the new legislation seems a desperate attempt to legitimize (and, by extension, better facilitate the expansion of) illegal settlements.
But the anti-boycott law also suggests that the term ethnocracy is no longer enough. For it is no longer enough to belong to the dominant ethnic nation, that of the Jewish people -- one must be Jewish and march lockstep with the hawks. Israel, it seems, is on the road to becoming an ethnocratic ideocracy.
No matter what name we use, the alarm sounding through Israeli society and the Jewish Diaspora should have been rung long ago -- the anti-boycott law is a symptom of a failed democracy, not a cause.