Avnery v. the State of Israel

This week I won a dubious distinction: a groundbreaking Supreme Court judgment has been named after me.

It is an honor I would have gladly dispensed with.

My name appeared at the head of a list of applicants, associations and individuals, which asked the court to cancel a law enacted by the Knesset.

Israel has no written constitution. This unusual situation arose right from the beginning of the state because David Ben-Gurion, a fierce secularist, could not achieve a compromise with the orthodox parties, which insisted that the Torah already is a constitution.

So, instead of a constitution, we have a number of Basic Laws which cover only a part of the ground, and a mass of Supreme Court precedents. This court slowly arrogated to itself the right to abolish Laws enacted by the Knesset which contradict the nonexistent constitution.

Starting from the last Knesset, extreme right-wing Likud Members have been competing with each other in their efforts to castrate the Supreme Court one way or another. Some would stuff the court with right-wing judges, others would radically limit its jurisdiction.

Things came to a head when a group of far-right Likud members launched a veritable avalanche of bills which were clearly unconstitutional. One of them, and the most dangerous one, was a law that forbade people to call for a boycott of the State of Israel and, in a sinister way, added the words "and of territories held by it."

This revealed the real aim of the operation. Some years before, our Gush Shalom peace organization had called on the public to boycott the products of the settlements in the occupied territories. We also published on our website a list of these products. Several other peace organizations joined the campaign.

Simultaneously, we tried to convince the European Union to do something similar. Israel's agreement with the EU, which exempts Israeli wares from customs, does not include the settlements. But the EU was used to closing its eyes. It took us a lot of time and effort to open them again. In recent years, the EU has excluded these goods. They have demanded that on all merchandise "made in Israel," the actual place of origin be stated. This week, 16 European foreign ministers called upon the EU foreign affairs chief to demand that all products from the settlements be clearly marked.

The law passed by the Knesset not only has criminal aspects, but also civil ones. Persons calling for a boycott could not only be sent to prison. They could also be ordered to pay huge damages without the plaintiff having to prove that any actual damage had been caused to him or her by the call.

Also, associations which receive government subsidies or other governmental assistance under existing laws would be deprived of them from then on, making their work for peace and social justice even more difficult.

Within minutes after the enactment of this law, Gush Shalom and I personally submitted our applications to the Supreme Court. They had been prepared well in advance by advocate Gaby Lasky, a talented young lawyer and dedicated peace activist. My name was the first in the list of petitioners, and so the case is called: "Avnery v. the State of Israel."

The case laid out by Lasky was logical and sound. The right of free speech is not guaranteed in Israel by any specific law, but is derived from several Basic Laws. A boycott is a legitimate democratic action. Any individual can decide to buy or not to buy something. Indeed, Israel is full of boycotts. Shops selling non-kosher food, for example, are routinely boycotted by the religious, and posters calling for such boycotts of a specific shop are widely distributed in religious neighborhoods.

The new law does not prohibit boycotts in general. It singles out political boycotts of a certain kind. Yet political boycotts are commonplace in any democracy. They are part of the exercise of freedom of speech.

Indeed, the most famous modern boycott was launched by the Jewish community in the United States in 1933, after the Nazis came to power in Germany. In response, the Nazis called for a boycott of all Jewish enterprises in Germany. I remember the date, April 1, because my father did not allow me to go to school on that day (I was 9 years old and the only Jew in my school.)