Israel and friends battle the boycott in Britain

On February 17, British Cabinet Minister Matthew Hancock stood alongside Israeli Prime Minister Benjamin Netanyahu in Jerusalem, and announced the publication of “new guidance” for local authorities concerning procurement. The move was trailed – and presented by the government – as designed to ‘ban’ boycotts of Israeli goods and services by councils.

But did the procurement guidance really criminalise boycotts – and what about additional, pending moves by the British government to restrict how local authorities choose to invest pension funds? What is really going on behind this attack on local democracy, in the name of shielding the Israeli state, its institutions, and complicit corporations from a growing global boycott campaign?

First, let us take a step back and consider some context. In 2005, some 170 Palestinian groups – trade unions, students, political associations, NGOs, and others – published a call for an international campaign of Boycott, Divestment and Sanctions (BDS) against Israel. Over the years, the BDS campaign has attracted growing support, boosted by Israeli attacks on the Gaza Strip, right-wing Israeli governments, the absence of even a superficial peace process, and, the activism of Palestinians in the diaspora and their growing number of allies in civil society.

While initially seeing the BDS campaign as an irrelevant nuisance – a view still clung to by some – the Israeli authorities soon realised the dangers faced by this growing form of activism. BDS is about accountability, a direct challenge to decades of impunity. It is changing the narrative in the West, whose governments Israel relies on for protection that is, ultimately, vulnerable to public pressure. Finally, it has also got results; performers have refused to go to Tel Aviv, mainline churches and pension funds have divested, and even companies have withdrawn.

Israel’s anxiety has thus only intensified over the years. Already in 2007, an Israeli Ministry of Foreign Affairs (MFA)-convenedconference discussed “academic and economic boycotts: pre-emptive strategies.” In 2011, Israel passed a domestic anti-boycott law, described as “the silencing and the restriction of legitimate protest to criticise and act to change Israeli policy.” Britain’s then-Foreign Minister William Hague criticised the law on the grounds that it “infringes on the legitimate freedom of expression.” The law has since been upheld almost in its entirety by the Supreme Court.

In recent years, anti-BDS initiatives and conferences, whether organised by the Israeli government itself or private advocacy groups and institutes, have come thick and fast; just this year alone, Israeli ministers have convened Knesset meetings on how best to spend the year’s NIS 100 million, anti-BDS budget, and boasted of their plans to target Palestine solidarity activists and BDS campaigners using cyber technology. This week, the Anti-Defamation League said they will partner with Israeli think-tank the Reut Institute to produce a new study of, and suggestions for how to fight, BDS.

Another key tool in Israel’s fight against BDS is ‘lawfare’. Lawfare, the use of lawsuits, the threat of legal action or even legislation, to suppress Palestinian solidarity activism is nothing new. Shurat HaDin, for example, an organisation with links to the Israeli government and its security services, has sued Jimmy Carter, threatened Oxfam, and pursued unsuccessful legal actionagainst an Australian academic who supports the call for a boycott of Israeli universities. Last June, the group held a seminar in Jerusalem on how “to train lawyers from abroad to litigate BDS.”

Until the last year, lawfare efforts in the UK have largely consisted of the activities of UK Lawyers for Israel, and an ill-fated attempt to take the University and College Union to an employment tribunal. But in 2015, a new kid on the block emerged – Jewish Human Rights Watch (JHRW). The group’s website does not say much about who they are; it simply states that JHRW was “established to combat and record the anti-Jewish boycott movement’s action, the rise of anti-Semitism and to respond accordingly.” The Twitter account dates its origins to February 2015.

JHRW is the trading name of a company called Jewish Rights Watch, incorporated on December 17, 2014 – four months after a devastating Israeli attack on Gaza that prompted a surge in Palestine solidarity activism. There are four listed officers: Jonathan Neumann, Robert Henry Festenstein, Joseph Rosenfield, and Manny Weiss. Weiss, who according to a report in The Jewish Chronicle actually “started” JHRW, is a commodities trading advisor with a variety of business interests. In 2011, one of Weiss’ companies donated £5,000 to Michael Gove.

Festenstein, according to his Law Society entry, is Sole Practitioner at the Manchester-based insolvency specialists RHF Solicitors, who have also acted as JHRW’s solicitors. He blogs at The Times of Israel and, at least as recently as August 2015,was listed as a ‘Committee Member’ on the website of North West Friends of Israel, a group established in 2014 (he now no longer appears on the site). Neumann, meanwhile, is a writer who has published a number of articles for US-based Commentary Magazine, and has also apparently done work with The Forum for Jewish Leadership.

JHRW activities have varied. Their first public action was to hold a tiny protest outside the offices of anti-poverty charity War on Want. Targets have included a London pub that hosted a Palestine musical fundraiser; the letter from RHF Solicitors threatened to report the owners to the Counter Terrorism Command at the Metropolitan Police Service. Last October, JHRW responded to the publication of a full-page ad in The Guardian supporting an academic boycott of Israel with their own, full-page ad a few days later. Clearly, there are funds available at short notice.

The bulk of JHRW’s activity, however, has been focused on seeking judicial reviews against local councils who have passed motions in support of Palestinian rights. The most high-profile of these cases has been that of Leicester City Council, who in November 2014 passed a motion that recognised “the right of the State of Israel to exist in peace”, and condemned the occupation of the West Bank and Israeli settlements. The council also resolved “insofar as legal considerations allow, to boycott any produce originating from illegal Israeli settlements in the West Bank.”

In August 2015, nine months later, JHRW lodged a claim for judicial review at the High Court, in which they requested, inter alia, a declaration that the policy to boycott produce originating from Israel’s West Bank settlements is unlawful, a “quashing order in respect of the policy”, and costs. Speaking to the press, JHRW’s Jonathan Neumann claimed that the council’s motion amounted “to a get-of-out-town order to Leicester Jews.” In November 2015, the High Court granted permission for judicial review, and the case is ongoing, as a date has not yet been set for the case to be heard.

JHRW has also sought judicial review of a motion passed by Swansea City Council back in June 2010. The motion noted the illegality of Israeli settlements under international law, and the role of French company Veolia in transportation infrastructure connecting such settlements (Veolia, under pressure, subsequently withdrew from Israel entirely). The motion stated that the council would not sign “any new contracts or renewal of any existing contracts with Veolia or any other company in breach of international law, so long as to do so would not be in breach of any relevant legislation.”

The judicial review claim was lodged at the High Court on October 2, 2015, and two months later, JHRW announced thatSwansea had performed a “U-turn” in response to their legal claims, but did not give any details. When asked for further information, a council spokesperson told me on December 8 that “Swansea Council has never boycotted Israel or Israeli goods. As far as the Council is aware proceedings are ongoing and it would not be appropriate to comment further at this time.”

In January, JHRW boasted that they had “made history”, and that Swansea Council had “offered to rescind its BDS motion.” This press release has since been removed from its website. Oddly, a letter from Swansea’s legal department was posted on Twitter by Adam Milstein, chair of the Israeli American Council and recent coordinator of an anti-BDS meet in Tel Aviv attended by Israeli minister Gilad Erdan. Milstein claimed in his tweet that Swansea was “the first council in Europe or UK, to completely stop boycott of Israeli products” – which Swansea had never done in the first place.

Interestingly, the letter – whose two pages can be viewed here and here – outlines the weaknesses of JHRW’s claim, but says the council did not want to spend further money on the matter. In early February, however, Swansea Council leader Rob Stewart “rubbished claims” that the 2010 motion had been abandoned, and said recent statements by JHRW “misrepresent entirely the motion passed by council in 2010 and the situation now.”

Stewart added that “Jewish Human Rights Watch has recently instigated a potentially costly legal process in order to try and get the council to rescind a motion from 2010 which it disagrees with. That is an attack on democracy. The council is a democratic organisation and as democratically elected politicians we believe in free speech and freedom of expression. The motion was correctly submitted, debated and voted upon – that is how democracy works.”

The councillor also pointed out that the council motion had no bearing on the council procurement policy, continuing: “The Council had no option other than to respond to these untrue and unfair claims but will not be able to make any further comment due to on-going legal proceedings.” On February 16, a council spokesperson reiterated that there never had been a boycott of Israeli goods.

In a third and final case, JHRW also lodged a claim for judicial review at the High Court concerning a motion passed by Gwynedd Council (the papers were filed on the same day as for Swansea, on October 2, 2015). The motion in question, adopted a year previously, saw councillors condemn Israel’s attack on Gaza, call for “a trade embargo with Israel”, and underline the council’s “decision to stop investing in Israel or in that country’s establishments.” A Gwynedd Council spokesperson told me on December 8 that there were “ongoing legal proceedings which the Council is defending.”

While lawfare attacks on BDS by private individuals or groups (albeit sometimes with ties to the Israeli state) have had mixed results, in recent years there has also been a concerted effort to see legal restrictions on the boycott campaign introduced, or enforced, at state-level.

In December 2009, Israel’s Ministry of Foreign Affairs (MFA) convened the third conference of the Global Forum for Combating Antisemitism (GFCA), a gathering that has served an important role in focusing efforts on fighting BDS and Palestine solidarity activism more widely. One of the 2009 conference’s working groups was tasked with proposing “imaginative, effective and successful solutions to counter [BDS].” One suggestion was “to have in place legislative prohibitions vs. BDS which can then be applied in different communities, acknowledging the different legal traditions.”

Four years later, at the 2013 GFCA, an ‘action plan’ produced by the conference’s ‘BDS and Delegitimization Task Force’ included: “Identify laws that can be used in different countries or states to fight discriminatory practices such as BDS. French law is a model that should be strengthened and replicated where possible.” At the 2015 conference, the BDS-focused working group – under the title ‘Lawfare’ – stated: “Pursue legislation at the local, state and federal level to constrain BDS” and

“France has existing laws that should be replicated where possible elsewhere in Europe.”

Last month, MFA spokesperson Emmanuel Nahshon openly admitted that the Israeli government had “stepped up our efforts directly and indirectly, dealing with friends of Israel in a variety of countries in which we have the BDS movement, fighting it with legal instruments.” A recent article in Israeli newspaper Yedioth Ahronoth noted how the MFA, “in cooperation with Jewish and pro-Israeli organisations”, convinced “several American states to pass legislation against the boycott of Israel.”

Indeed, 22 state legislatures are considering anti-BDS bills, “some of which explicitly protect businesses operating in the settlements, while others extend protections only to Israel proper.” Illinois, South Carolina and Florida have all “enacted laws in the past year that include protections for settlements.” Meanwhile, the Trade Facilitation and Trade Enforcement Act recently signed into law by President Obama, includes an anti-BDS clause.

The Yedioth article noted that “an additional specialisation of Israeli embassies is the use of existing legislation against boycott.” Thus the embassies “were requested to check how it’s possible to use local law to curtail boycott initiatives.” In France, for example, a 2003 law originally intended as a rebuff to electoral gains by the far-right is now used to prosecute BDS campaigners on the grounds of ‘national’ discrimination, part of a wider attack on Palestine solidarity activism in France.

This French law, however, is hard to reproduce or replicate, where no such similar legal provision exists. Which brings us to Britain, where the BDS campaign has made significant headway in trade unions, student unions, NGOs, and even political parties, much to the frustration and anger of the Israeli government, its London embassy, and British supporters of Israel.

In the summer of 2014, Israel launched an unprecedentedly savage attack on the Gaza Strip, killing more than 2,200 Palestinians – including some 540 children – and injuring more than 11,000 more. The 50-day offensive prompted an outpouring of anger and opposition in Britain, shown by demonstrations, calls for an arms embargo, and, tellingly, concernamongst those traditionally supportive of Israel and its actions. Robert Festenstein, who co-runs lawfare group Jewish Human Rights Watch (see yesterday’s article), identified the summer of 2014 as when things “changed.”

One phenomenon that excised groups like the Board of Deputies of British Jews was gestures of solidarity by local councils, with some flying Palestinian flags in support of the people of Gaza. The Board claimed that such actions damage “community cohesion”, and have “the potential to intimidate and divide our communities.” Such rhetoric was also heard when pro-Israel groups lobbied the University of Southampton to cancel a conference on Israel and international law – and it has emerged, once again, in the context of the government’s intimidation of local authorities.

The Community Security Trust (CST), a UK charity which records and combats anti-Semitic incidents, is often cited in the British media as the authoritative source for monitoring anti-Semitism. On August 5, 2014, senior CST official Mark Gardner said that while the Jewish community would “get through” a spike in anti-Semitic incidents, “the boycott stuff is really, really serious.” Answering a question on the National Union of Students’ recent endorsement of BDS, Gardner said:

Israel has, I think, come right up to that red line, to that tipping point, where it becomes in danger of really seriously being the new South Africa, the new South Africa that everybody should boycott, that Israel is equivalent to apartheid South Africa, and that therefore, if you support Israel well you’re just like the Afrikaners of old.

On October 3, 2015, a Conservative Party press release announced the government’s intention to introduce “new rules to stop politically-motivated boycott and divestment campaigns by town halls against UK defence companies and against Israel.” The plan of action was said to include changes to pension legislation, and new procurement policy guidance for local authorities. Boycotts by local authorities were described as “threaten[ing] to inflame tensions in local communities, undermining integration and fuelling broader anti-Semitism.”

Four months later, the government finally published the new procurement guidance note. But contrary to some reports, there was no new ‘ban’ on boycotts. As Baroness Williams, Parliamentary Under Secretary of State at the Department for Communities and Local Government (DCLG), told peers on February 24, the guidance merely reminded public authorities “of existing policy that has been in place for many years under successive Governments.” The Parliamentary Secretary for the Cabinet Office made a similar affirmation the next day.

Responding to the publication of the procurement note, the Palestinian BDS National Committee (BNC) said that “the new documents amount to an attempt to intimidate councils and universities but do not appear to introduce new legal obligations on public bodies.” In other words, “it remains perfectly legal for councils and universities to take ethical stances that reflect the views of their communities and exclude companies that violate human rights or commit other forms of gross misconduct from tender exercises.”

Labour MP Richard Burden, noting the government’s line that the guidance “simply repeats existing rules regarding discrimination on the grounds of nationality against other [World Trade Organisation] members”, wondered why then the government had “made such a song and dance about it on the international stage?” The “danger”, Burden pointed out, echoing the Palestinian BNC’s analysis, is that “with so much uncertainty…Councils and other public sector institutions could be deterred from taking ethical investment and procurement decisions in general.”

Concern of a “chilling effect” was also expressed by Amnesty International, who pointed out that an EU public procurement directive “expressly requires member states to take into account the widest possible range of social and environmental considerations when buying goods and services for the public sector.” Indeed, the British government itself pointed out in May 2012, responding to a question about settlements, that the Public Contracts Regulations 2006 allows for a company that has “committed an act of grave professional misconduct” to be excluded from a tender exercise.

Contrast the Cabinet Office-issued procurement guidance with the Scottish procurement policy note published in August 2014, which states that “exploitation of assets in illegal settlements by a company (irrespective of where that company is registered) is likely to be regarded as constituting ‘grave professional misconduct’ for the purposes of procurement law and where evidence of this exists, a purchaser may be able to exclude the company from a public tendering exercise.”

The Foreign and Commonwealth Office, meanwhile, warns of “clear risks related to economic and financial activities in the settlements.” The guidance continues: “Financial transactions, investments, purchases, procurements as well as other economic activities…in Israeli settlements or benefiting Israeli settlements, entail legal and economic risks.” EU citizens and businesses, the FCO adds, “should also be aware of the potential reputational implications of getting involved in economic and financial activities in settlements, as well as possible abuses of the rights of individuals.”

In other words, there is no reason why BDS activists cannot continue to urge their councillors and local authorities to exclude companies complicit in violations of international law. A good example of such a past campaign is ‘Dump Veolia’, for which legal advice was sought and published.

In addition to the guidance note regarding procurement, the Conservatives also intend to amend legislation regarding local authorities’ pension fund regulations. This required a public consultation period which closed on February 19, with over 26,000 people responding by “rejecting plans to block local councils from deciding how to invest their members’ pension funds.” Commenting on this expression of “massive public outrage”, War on Want’s Ryvka Barnard described government plans as “very serious threat and completely anti-democratic.”

According to the chair of the Local Authority Pension Fund Forum, representing public pension funds with combined assets of £160bn: “We are legally entitled to look at a whole range of reasons why we should or should not invest in a company. If there were international boycotts [of a company], its financial performance might fall.” The Financial Times has reported how “senior pension officials and local councillors fear the new rules would block them from pulling money out of companies on legitimate ethical grounds around issues such as human rights, the arms trade or fossil fuels.”

Pressed in the House of Lords last month, the DCLG’s Baroness Williams acknowledgedthat “local authorities will have all sorts of things to consider when making their pension investments”, citing “an obligation to public health”, as well as “an obligation to help people cut down on excessive alcohol consumption, take more exercise, use less petrol and perhaps walk their children to school.” In a recent response to a petition, the government said that the “statutory guidance to local authorities…will be published in the coming weeks.”

The story of these recent attacks on BDS in Britain is a story of converging or overlapping interests: of the Israeli government, its friends and supporters, and the Conservative government. The Tories, for their part, have embarked on a much wider attack on democracy, including redrawing constituency boundaries, reducing funding for opposition parties, and a large-scale attack on trade unions. Undermining the independence of local authorities – and sticking one in the eye of Labour-controlled councils in particular – is part of the picture.

Israel lobby groups, meanwhile, have found a receptive audience in the current Conservative government. Cabinet Minister Matthew Hancock went out of his way “to pay tribute to the Board of Deputies, the Community Security Trust, Jewish Human Rights Watch, and of course the JC [Jewish Chronicle] itself, which has done so much to keep this issue [of boycotts] on the agenda.” Jewish Human Rights Watch were singled out for praisein December by Michael Gove.

The battle against BDS in Britain, and the use of state-level intimidation and lawfare, can also be seen as a way in which Israel is exporting a framework for dealing with dissent and anti-apartheid activism. The impact in Britain, however, is broader, affecting campaigns against fossil fuels, the arms trade, and indeed any other unethical business practice. The Tory government has pursued its own crackdown on civil liberties through the ‘counter-extremism’ Prevent strategy.

These are genuine obstacles for BDS campaigners in Britain, but they do not solve the biggest problems facing pro-Israel organisations: the ongoing repression of the Palestinians, and their lack of a grassroots, mass movement. Despite the best efforts of the likes of the Board of Deputies and BICOM, pro-Israel advocates have been unable to expand their base beyond the addition of some right-wing Christian Zionists.

BDS activists, by contrast, are likely to find common cause with others concerned about the Conservatives’ attempts to both undermine local democracy and intimidate councils into forsaking ethical procurement and investment policies. Like other efforts to undermine Palestine solidarity campaigning, the recent lawfare attacks may well have the opposite effect to what was intended.

Published first by Middle East Monitor as a two-part report (here and here).