Center for International Law in the Middle East Antonin Scalia Law School ● George Mason University 3301 Fairfax Drive ● Hazel Hall Room 433J ● Arlington Virginia The Anti-Semitic Nature of Boycotts Singling Out Israel Written testimony of Prof Eugene Kontorovich before the House Committee on Homeland Security and the Subcommittee on Intelligence Terrorism Hearing on “Confronting the Rise in Anti-Semitic Domestic Terrorism” January 15 2020 Chairman Rose Ranking Member Walker and honorable members of the subcommittee thank you for inviting me here today to discuss the unhappy topic of anti-Semitism in America My comments will focus on practices and campaigns that legitimize anti-Semitism In particular I will focus on the anti-Semitic nature of boycotts against individuals and entities because of their connection to Israel an effort that styles itself as the “Boycott Divestment and Sanctions” Movement or BDS In the context of the jurisdiction of this subcommittee it is important to note that such discriminatory boycotts do not in themselves call for violence though some of the main organizations involved have ties to groups that do Yet BDS promotes inherently antiSemitic ideas such as the singularly evil and pariah status of Jews Furthermore BDS is particularly dangerous given that like some of the history’s most virulent antiSemitic ideologies it seeks to normalize anti-Semitism as an acceptable “attitude” in polite society Any policy approach to anti-Semitic violence must be informed by an understanding of the ideologies that give anti-Semitism a patina of legitimacy The campaign to “boycott Israel” in reality seeks to legitimize discriminatory refusals to deal with people or companies simply because of their connection to the Jewish State This is a legitimization of bigotry just as boycotts of people because of their race sexual orientation or national origin would be discriminatory Today it is no secret that BDS is anti-Semitic This has been the conclusion of the German1 and Canadian parliaments2 as well as courts in Spain3 and France 4 Moreover it is the conclusion of more than two dozen states that have passed laws the treat such boycotts the same way most states and the federal government treat LGBT boycotts 5 as a form of discrimination that entails consequences for the ability of companies engaged in such conduct to contract with the state or federal government 6 It makes no difference that these calls to boycott are aimed at Israel rather than at Jews per se Israel is the largest Jewish community in the world and is home to the plurality—and soon the majority—of the world’s Jews Refusals to deal that target Israel alone and not any other country offer a clear proxy for engaging in anti-Semitism under the cloak of political legitimacy Partial boycotts are boycotts Furthermore discrimination need not be 100% congruent with the targeted class to be discrimination Anti-discrimination laws make it clear that the use of proxies for race sexual orientation and so forth can be discriminatory 7 Those who support anti-Semitic economic discrimination sometimes claim that they are engaged in “boycotting” for political reasons rather than “discrimination” for meanspirited reasons But there is no magic distinction between these words 8 boycotts can be Katrin Bennhold German Parliament Deems B D S Movement Anti-Semitic New York Times May 17 2019 https www nytimes com 2019 05 17 world europe germany-bds-antisemitic html 2 JTA Canada’s Parliament Rejects BDS Movement Times of Israel Feb 23 2016 https www timesofisrael com canadas-parliament-rejects-bds-movement 3 Lidar Grave-Lazi Major Victory Against BDS as Spanish Court Bans Citywide Israel Boycott Jerusalem Post June 2 2016 https www jpost com Diaspora Major-victory-against-BDS-asSpanish-court-bans-citywide-Israel-boycott-455752 4 JTA France Court Upholds ‘BDS Is Discrimination’ Ruling The Forward October 23 2015 5 Eugene Kontorovich For the ACLU Antipathy to Israel Trumps Antidiscrimination Wall Street Journal Feb 11 2019 https www wsj com articles for-the-aclu-antipathy-to-israeltrumps-antidiscrimination-11549928620 6 See e g Remarks by President Obama at Signing of Executive Order on LGBT Workplace Discrimination referring to Exec Order No 13672 41 C F R 60 July 21 2014 https obamawhitehouse archives gov the-press-office 2014 07 21 remarks-president-signingexecutive-order-lgbt-workplace-discrimination 7 “Proxy discrimination is a form of facial discrimination ” Pac Shores Properties LLC v City of Newport Beach 730 F 3d 1142 1160 n 23 9th Cir 2013 citing McWright v Alexander 982 F 2d 222 228 7th Cir 1992 gray hair as proxy for age Proxy discrimination occurs when a policy “treats individuals differently on the basis of seemingly neutral criteria that are so closely associated with the disfavored group that discrimination on the basis of such criteria is constructively facial discrimination against the disfavored group ” Id Israel’s association with Jewishness is undoubtedly close enough to make it a proxy 8 Eugene Kontorovich For the ACLU Antipathy to Israel Trumps Antidiscrimination Wall Street Journal A17 Feb 12 2019 1 a form of discrimination 9 Indeed most discrimination is driven by some political or ideological hostility to the target group Yet refusal to deal on the basis of sexual orientation or other grounds does not escape the label of discrimination if it is simply dubbed a boycott and accompanied by an explanation of how it is justified by the target group’s conduct or favored policies 10 More generally it is an illusion that anti-Semitism only manifests itself as pure unreasoned Jew-hatred The most effective anti-Semites have always sought to justify their bigotry by what the Jews do The Jews were hated for inventing monotheism Then they were hated for giving the world Jesus and later hated for not accepting Jesus They were hated for promoting capitalism and also for promoting communism In every age the oldest hatred clothes itself in the justifications that appeal to contemporary values and public policy considerations Today it is no accident that antiSemitism tries to don the mantle of human rights Supporters of Israel boycotts point to Americans’ “proud history of participating in boycotts to advocate for human rights abroad ”11 referring in part to the 1980s boycott of Apartheid South Africa So are boycotts good or bad A combination of several contextual factors helps to identify when refusals to deal on a group basis constitute invidious discrimination The first factor is history Boycotts of Jewish businesses have been a staple of antiSemitic campaigns most notoriously under Nazi Germany Such boycotts are no one’s “proud history ” Boycotts of Israel promoted by Arab states date back to the country’s founding in 1948 when said boycotts were used to starve and isolate the fledgling Jewish state from its inception long before it retook the West Bank from Jordan in 1967 12 The same practices are now being retrofitted with new and spurious reasons The second factor is focus The invocation of ostensible international law norms to demonize and isolate just one country – which happens to have the plurality of the world’s Jews but just 0 1% of the world’s population – is a sure sign of discrimination Human rights are a powerful argument because they apply to all humans and likewise international law arguments are potent because they apply internationally That is precisely why the working definition of anti-Semitism adopted by the International Holocaust Remembrance Association IHRA lists as a “contemporary example” of antiSemitism the “applying of double standards” to Israel 13 This definition has been Economic Discrimination Black's Law Dictionary 8th ed 2004 “Any form of discrimination within the field of commerce such as boycotting a particular product or pricefixing ” 10 Brief for Appellants Amawi v Paxton Pluecker v Board of Regents of the University of Houston System 2019 No 19-50384 2019 WL 4390995 at 25-26 11 H R Res 496 116th Cong 2019 12 Impact of the Boycott Divestment Sanctions Movement Hearing Before the Subcomm on National Sec of the H Comm On Oversight and Govt Reform 114th Cong 2-6 2015 written testimony of Prof Eugene Kontorovich Northwestern Univ School of Law 13 International Holocaust Remembrance Alliance Working Definition of Antisemitism June 27 2016 https www holocaustremembrance com stories working-definition-antisemitism 9 formally adopted by many democracies around the world It is used by the United States14 and has most recently been incorporated into President Trump’s Executive Order on Combatting Anti-Semitism 15 Calls for boycotting Israel almost always apply a unique standard to the Jewish State Those who say they favor a boycott of the Jewish State because of “occupation” or “settlements” are at best silent about similar issues across the world when they do not involve Jews 16 But the singling out of Israel is often even more blatant than IHRA’s “double standards ” Some of the most prominent supporters of such boycotts are themselves involved with groups active in occupied territories not just ignoring but actively contradicting the principles they advance in justifying a Jew-focused boycott For example as I reveal in an article in today’s Wall Street Journal one of the most energetic campaigners for boycotting companies with any ties to Israel in the Golan Heights or West Bank is Human Rights Watch Yet the director of its Middle East and African division herself publicly advocates for groups that support Armenian settlements in occupied Azerbaijani territory To take another example the European Council on Foreign Policy one of the main forces behind the European Union’s imposition of discriminatory labels and other restrictions on Israeli products is itself funded by companies doing business in occupied Western Sahara and other occupied territories 17 These prominent actors’ calls for boycotting Israeli businesses are not about international law – they are about creating a unique aura of illegitimacy of “untouchableness ” around the Jewish State The third factor in identifying discriminatory boycotts is the people behind it Leading pro-boycott groups have numerous documented links to terror organizations 18 This U S State Department Office of International Religious Freedom Defining Anti-Semitism May 26 2016 https www state gov defining-anti-semitism 15 Exec Order No 13 899 84 Fed Reg 68 779 Dec 11 2019 16 This shows the inaptness of analogies to the boycott of apartheid South Africa Apartheid was a unique policy of Pretoria as indicated by its Afrikaans name the policy covered 100% of states with official apartheid policies I discuss this precise concept in my piece in Issue 15 of The Tower titled The Apartheid Libel A Legal Refutation published in June of 2014 http www thetower org article the-apartheid-libel-a-legal-refutation 17 Lahav Harkov EU think tank advocating for West Bank boycotts funding by occupied territories worldwide Jerusalem Post Dec 10 2019 https www jpost com Middle-East EUthink-tank-advocating-for-West-Bank-boycotts-funded-by-occupied-territories-worldwide-610404 18 Examining Current Terrorist Financing Trends and the Threat to the Homeland Hearing Before H Homeland Sec Comm and Counterterrorism and Intelligence Subcomm 114th Cong 2016 written testimony of Jonathan Schanzer Vice President for Research at the Foundation for Defense of Democracies Armin Rosen and Leil Lebovitz BDS Umbrella Group Linked to Palestinian Terrorist Organizations Tablet Magazine June 1 2018 https www tabletmag com scroll 263409 bds-umbrella-group-linked-to-palestinian-terroristorganizations Israeli Ministry of Strategic Affairs 4IL BDS Loses Its Crowdfunding Account Over Ties to Terror Organizations Apr 9 2019 https 4il org il 1256 14 overlap is not coincidental Founders and leaders of the boycott movement have openly called for the end to Israel as a Jewish state 19 When all these three factors coincide the anti-Semitism becomes undeniable Mr Chairman thank you for giving me an opportunity to address these issues and I welcome your questions See sources cited in 2018 WL 6011426 at 4-6 Brief for Defendants-Appellants Jordahl v Arizona 2018 No 18-16896 2018 WL 6011426 at 4-6 19