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OpEdNews Op Eds    H3'ed 4/17/15

Avnery v. the State of Israel

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Later, all progressive countries joined in a boycott of the racist regime in South Africa. That boycott played a large (though not decisive) role in bringing it down.

A law cannot generally compel a person to buy a normal commodity, nor can it generally forbid them to buy it. Even the framers of this new Israeli law understood this. Therefore, their law does not punish anybody for buying or not buying. It punishes those who call on others to abstain from buying.

Thus the law is clearly an attack on the freedom of speech and on non-violent democratic action. In short, it is a basically flawed anti-democratic law.

The court which judged our case consisted of nine judges, almost the entire Supreme Court. Such a composition is very rare, and only summoned when a fateful decision has to be made.

The court was headed by its president, Judge Asher Gronis. That in itself was significant, since Gronis already left the court and went into compulsory retirement in January, when he reached the age of 70. When the seat became vacant, Gronis was already too old to become the court president. Under the then existing Israeli law, a Supreme Court judge cannot become the court's president when the time for his final retirement is too close. But the Likud was so eager to have him that a special enabling law was passed to allow him to become the president.

Moreover, a judge who has been on a case but did not finish his judgment in time before retiring, is given an extra three months to finish the job. It seems that even Gronis, the Likud's protege, had qualms about this specific decision. He signed it literally at the very last moment -- at 17.30 hours of the last day, just before Israel went into mourning at the start of Holocaust Day.

His signature was decisive. The court was split -- 4 to 4 -- between those who wanted to annul the law and those who wanted to uphold it. Gronis joined the pro-law section and the law was approved. It is now the Law of the Land.

One section of the original law was, unanimously, stricken from the text. The original text said that any person -- i.e., settler -- who claims that they have been harmed by the boycott, can claim unlimited indemnities from anyone who has called for this boycott, without having to prove that they were actually hurt. From now on, a claimant has to prove the damage.

At the public hearing of our case, we were asked by the judges if we would be satisfied if they strike out the words "territories held by Israel," thus leaving the boycott of the settlements intact. We answered that in principle we insist on annulling the entire law, but would welcome the striking out of these words. But in the final judgment, even this was not done.

This, by the way, creates an absurd situation. If a professor in Ariel University, deep in the occupied territories, claims that I have called to boycott him, he can sue me. Then my lawyer will try to prove that my call went quite unheeded and therefore caused no damage, while the professor will have to prove that my voice was so influential that multitudes were induced to boycott him.

Years ago, when I was still Editor-in-Chief of Haolam Hazeh, the news-magazine, I decided to choose Aharon Barak as our Man of the Year.

When I interviewed him, he told me how his life was saved during the Holocaust. He was a child in the Kovno ghetto, when a Lithuanian farmer decided to smuggle him out. This simple man risked his own life and the lives of his family when he hid him under a load of potatoes to save his life.

In Israel, Barak rose to eminence as a jurist, and eventually became the president of the Supreme Court. He led a revolution called "Juristic Activism," asserting, among other things, that the Supreme Court is entitled to strike out any law that negates the (unwritten) Israeli constitution.

It is impossible to overrate the importance of this doctrine. Barak did for Israeli democracy perhaps more than any other person. His immediate successors -- two women -- abided by this rule. That's why the Likud was so eager to put Gronis in his place. Gronis' doctrine can be called "Juristic Passivism."

During my interview with him, Barak told me: "Look, the Supreme Court has no legions to enforce its decisions. It is entirely dependent on the attitude of the people. It can go no further than the people are ready to accept!"

I constantly remember this injunction. Therefore I was not too surprised by the judgment of the Supreme Court in the boycott case.

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Uri Avnery is a longtime Israeli peace activist. Since 1948 has advocated the setting up of a Palestinian state alongside Israel. In 1974, Uri Avnery was the first Israeli to establish contact with PLO leadership. In 1982 he was the first Israeli ever to meet Yassir Arafat, after crossing the lines in besieged Beirut. He served three terms in the (more...)
 

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