Anti-BDS laws
Anti-BDS laws are legislation that retaliate against those that engage in Boycott, Divestment and Sanctions. With regard to the Arab–Israeli conflict, many supporters of the State of Israel have often advocated or implemented anti-BDS laws, which effectively seek to retaliate against people and organizations engaged in boycotts of Israel-affiliated entities. Most organized boycotts of Israel have been led by Palestinians and other Arabs with support from much of the Muslim world. Since the Second Intifada in particular, these efforts have primarily been coordinated at an international level by the Palestinian-led BDS movement, which seeks to mount as much economic pressure on Israel as possible until the Israeli government allows an independent Palestinian state to be established. Anti-BDS laws are designed to make it difficult for anti-Israel people and organizations to participate in boycotts; anti-BDS legal resolutions are symbolic and non-binding parliamentary condemnations, either of boycotts of Israel or of the BDS movement itself. Generally, such condemnations accuse BDS of closeted antisemitism, charging it with pushing a double standard and lobbying for the de-legitimization of Israeli sovereignty, and are often followed by laws targeting boycotts of Israel.
Proponents of anti-BDS laws claim that BDS is a form of antisemitism, and so such laws legislate against hate speech. Opponents claim that Israel's supporters are engaging in lawfare by lobbying for anti-BDS laws that infringe upon the right to free speech, and conflating anti-Zionism and criticism of Israel with antisemitism.
The specific provisions of anti-BDS laws vary widely. Legislation, to any degree, against boycotts of Israel is prevalent in much of the Western world, and especially in the United States, which has been Israel's closest ally on the international stage since the 1960s. Conversely, legislation promoting or enforcing boycotts of Israel is prevalent in much of the Muslim world, with the most prominent example being that of the Arab League boycott of Israel, which was first imposed in 1945 as part of an effort to weaken the Yishuv by targeting the Jewish economy in the British Mandate for Palestine.
Background
has faced longstanding criticism of its conduct in the Palestinian territories it has occupied since 1967. In July 2024, the International Court of Justice declared in an advisory opinion that Israel's occupation was illegal and should be brought to an end as quickly as possible. Existing settlements should be evacuated and reparations paid to Palestinians who had lost land and property. The court also found that Israel was in violation of Article 3 of the International Convention on the Prevention of Racial Discrimination, which imposes a duty on states to "condemn racial segregation and apartheid" and to "prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction".The court further said member states should not recognize Israel's occupation as legal, nor should they render aid or assistance in maintaining it – a ruling that could "force companies and member states to differentiate between Israel and occupied territory when it comes to trade", according to a senior legal adviser of the European Center for Constitutional and Human Rights quoted by the Washington Post.
BDS formation
After the Oslo Accords had failed to bring peace between Israel and Palestine, believing Western leaders were no longer committed in holding Israel accountable for the allegations against human rights, Palestinian human right activists conceived a new peaceful movement to boycott Israel, for example, through refusal to buy any goods from Israel, in particular those made in the Israeli-occupied territories, or divesting funds from Israeli corporations. The Boycott, Divestment and Sanctions movement, "BDS" for short, was formally announced in 2005, with the primary goal of pressuring Israel to withdraw from the occupied territories.The Israeli government and its supporters believe that the BDS movement conforms to the definitions of antisemitism, most notably in applying to Israel a double standard and delegitimizing the state of Israel.
Anti-BDS laws in the United States
As of 2024, 38 states have passed bills and executive orders designed to discourage boycotts of Israel. Many of them have been passed with broad bipartisan support. Most anti-BDS laws have taken one of two forms: contract-focused laws requiring government contractors to promise that they are not boycotting Israel; and investment-focused laws, mandating public investment funds to avoid entities boycotting Israel. Separately, the U.S. Congress has considered anti-boycott legislation in reaction to the BDS movement. The U.S. Senate passed S.1, which contained anti-boycott provisions, on 28 January 2019, by a vote of 74–19. The U.S. House passed a resolution condemning the boycott of Israel on 24 July 2019, by a vote of 398–17. Senators Marco Rubio, Bill Cassidy, Mike Braun, Rick Scott, Bill Hagerty, and Steve Daines reintroduced the Combating BDS Act of 2023. So far, no federal law has been adopted. There has been debate over whether the laws violate the right to free speech and organizations such as the American Civil Liberties Union and the Council on American–Islamic Relations have challenged many of them in court cases.Public opinions on the BDS movement and anti-BDS laws
According to University of Maryland's Critical Issues Poll from October 2019, a majority of Americans oppose anti-BDS laws; 72% opposed laws penalizing people who boycott Israel and 22% supported such laws. The poll also found a strong partisan divide on BDS; among those who had heard of BDS, 76% of Republicans opposed the movement, compared to 52% of Democrats. In a 2019 poll from Data for Progress 35% to 27% opposed anti-BDS laws. Split by party affiliation, 48% of Democrats opposed anti-BDS laws and 15% supported them; 27% of Republicans opposed anti-BDS laws and 44% supported them. 70%-80% believed boycotts were a legitimate protest tactic. According to a 2022 survey by the Pew Research Center, 5% of Americans support BDS and 84% do not know much about it. 17% of Republicans have some familiarity with BDS compared to 15% of Democrats, while 7% of the latter and 2% of Republicans support the movement.Groups that promote anti-BDS laws
Groups that oppose anti-BDS laws
Lobbying
The spread of anti-BDS laws in U.S. states is largely due to the lobbying of the Israel Allies Foundation, an Israeli group that encourages formation of pro-Israel caucuses in foreign parliaments. In 2015, in response to South Carolina's anti-BDS law, IAF announced that it had drafted a model act, combining the anti-BDS bills in South Carolina and Illinois. A model act is a "template bill" that can be enacted in many legislatures with little or no modification. IAF also announced that 18 more states were "committed to introducing" similar legislation in their states.The Copy, Paste, Legislate investigation into the proliferation of model acts in U.S. state politics revealed that, in addition to IAF, AIPAC, the Israel Action Network, and local Jewish Federations were directly involved in lobbying for anti-BDS laws. In three states, Arizona, California, and Nevada, the lobbying efforts were spearheaded by Dillon Hosier, a lobbyist working for Adam Milstein's Israeli-American Council.
Israeli officials congratulated some states after enacting anti-BDS bills. Gilad Erdan of the Ministry of Strategic Affairs, wrote an email to Ohio Governor John Kasich after signing his state's anti-BDS bill into law: "I sincerely appreciate your contribution." In 2016, Israel's ambassador to the UN, Danny Danon, claimed that his government was "advancing legislation in many countries... so that it will simply be illegal to boycott Israel." In February 2020, Israel's Prime Minister Benjamin Netanyahu tweeted about his government's lobbying successes:
Legal analysis
As of 2020, the question of whether American anti-BDS laws are constitutional has not yet been settled in courts. Many analysts believe that sooner or later there will be a legal showdown due to the controversial nature of the laws. The debate about the laws' constitutionality focuses on two central issues:- Whether boycotts of Israel, and boycotts in general, can be considered a form of discrimination on the same level as discrimination based on gender, race, or similar attributes.
- Whether political boycotts are protected speech. If so, laws designed to stop them could violate the First Amendment-protected freedom of speech.
In the following sections, those who claim that anti-BDS laws are constitutional are referred to as "proponents" and those that claim that they are not are referred to as "critics".
Discrimination argument
Proponents argue that boycotts of Israel are a form of discrimination because they target a particular group with the intent of inflicting economic harm on them. Since there is no legal test for deciding whether a consumer boycott is discriminatory, the discrimination argument is based on laws regulating discrimination in other areas, such as employment, disability and housing. In particular, two doctrines in labor law have been referred to: disparate treatment or "discriminatory intent" and disparate impact. These laws were not drafted to regulate political boycotts, which limits their applicability, but they have nevertheless been used to analyze whether boycotts of Israel are discriminatory.Disparate treatment
refers to decision-making based on a person's membership in a protected class. Proponents argue that BDS leaders' calls for Israel to cease to exist as a "Jewish state" are antisemitic. Critics contend that the allegation is conflating anti-Zionism with antisemitism. Opposing Israel as a Jewish state is anti-Zionist but not antisemitic, they argue. Critics also point out that the organization that coordinates BDS, the Palestinian BDS National Committee, officially opposes antisemitism and encourages supporters to select boycott targets based on their complicity in Israel's human rights violations and likelihood of success, rather than on their national origin or religious identity.Proponents note that BDS singles out Israel for boycott while ignoring human rights abuses in other parts of the world. They argue that this focus is driven by animosity towards Jews or Israelis and that it is circumstantial evidence of discriminatory intent. They refer to the Working Definition of Antisemitism which gives "Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation" as an example of antisemitism. The claim, which relies on the but-for test, a legal doctrine for establishing causality in discrimination cases, is that BDS would not have boycotted Israel if not for its Jewish or Israeli identity. Critics counter that the but-for claim is not supported by evidence. They argue that since the majority of companies targeted for boycotts by the BNC are not Israeli companies, but foreign companies targeted for their complicity in the Israeli human rights violations, anti-Jewish or anti-Israeli animosity could not be BDS' motivation.
Critics reason that if political boycotts of countries were illegal discrimination, many current and historical boycotts would also be illegal discrimination. The US sanctions against Iran would be anti-Iranian discrimination and if singling out an entity for boycott is discriminatory, most political movements using boycotts would be discriminatory. The Anti-Apartheid Movement would have had to address the suffering of people in other African countries too, to escape the charge of singling out South Africa. Critics claim that is unreasonable. Following the Russian invasion of Ukraine in 2022, critics of the Israeli government pointed out that several American politicians who supported sanctions against Russia and the boycott of Russia and Belarus had previously campaigned for and passed anti-BDS laws punishing boycotts of Israel.