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Lawfare, Boycotts and Israel

by BINOY KAMPMARK

The Israeli law centre Shurat HaDin has proven to be rather aggressive in its campaign against the boycott, divestment and sanctions (BDS) movement globally. It has taken Australia as one its focal points, where one academic has particularly piqued their interest. Jake Lynch, director of the Centre for Peace and Conflict Studies at Sydney University is accused of not sponsoring University of Jerusalem academic Dan Avnon. The two have quite a history.

 

That refusal, argue the members of the Tel Aviv-based Shurat HaDin, constitutes an act of racial discrimination and hence a violation of the Racial Discrimination Act 1975 of the Australian Commonwealth. First came a complaint to the Human Rights Commission. Then came a legal suit in the Federal Court of Australia seeking that Lynch apologise and renounce his BDS campaign, arguing that it has led to “adverse distinction, exclusion, restriction and adverse preference based on the Jewish race, descent, national and ethnic origin of goods, services, persons and organizations”.

Law has become a matter of war, a struggle over legal supremacy. Lawfare, that poorly minted term, has become de rigueur, a means of getting to undesirable causes and targets. If war is the continuation of politics through military means, then law is the continuation of grievance by writ, claim and sanction.

Let us look at what Shurat HaDin wish to accomplish with their gritty deployment of legal weapons. Their Twitter profile claims that they are a “civil rights org and worldwide leader in combating terror through lawsuits. We seek to bankrupt terrorism – one lawsuit at a time.” Andrew Hamilton, who works at the centre, argues that the BDS is “racist and discriminatory by attacking private individuals and organizations based on their racial background or ethnic national background of being Israeli and being Jewish” (ABC, 7.30 Report, Oct 30).

How far will Shurat HaDin go? The argument by Lynch and others is that the legal effort is a concerted gagging campaign. This is the quintessence of using law as the blunt weapon of an establishment. A dull, sterile thing, laws are clubs to be picked up when relevant, with courtrooms being the battlegrounds to fight the good fight.

The reverse may also be claimed: that the BDS campaign is a systematic attempt to alter Israeli policy and fundamentally shift the posts within the country by means of targeted practice. Nothing is particularly new in that, other than the old hoary chestnut of what, or whom, it targets.

An argument made by Stuart Rees from the University of Sydney, director of the Sydney Peace Foundation, is that, is that, as Avnon was from the Hebrew University of Jerusalem, he was associated with a campus sitting on occupied land, a university having contracts with the armaments industry, and an institution hosting a military college “in which it trains officer who are part of the occupation and oppression of a people.”

This is evidently an ongoing business. In December last year, Avnon met the barricade in similar fashion when he was seeking sponsorship on a fellowship. Lynch was instrumental there as well, and received a scolding from the dean of the university’s arts and social science faculty, Duncan Ivison. Lynch did “not speak for the faculty on visiting scholars and cannot make decisions about who comes here” (The Australian, Dec 8, 2012).

Few universities can claim to be exempt from having shares in arms companies, or being participants in shadowy armaments deals and foreign regimes. Oxbridge colleges are notorious for cashing their dividends from well performing arms shares. A life of education, and an education that serves the lifeless, are not inconsistent in those sacred halls.

Sadly, what tends to happen in such cases is that boycotts, notably academic ones, have the effect of targeting the very people who might be on the side of the boycotters, certainly in principle. Starve the mind, and the body is bound to avoid following the cause. Hamilton’s point, which should not be sneered at, is that Avnon has been one of the Israel government’s great critics. He has also been an avid participant in creating learning environments for Jews, Christians and Muslims, struggling against poor finances and support.

But to force Lynch to divest himself from participating in the campaign is an extended bridge too far. Nothing would justify his refusal to endorse Avnon if it was anti-Semitic and based on the man’s own ethnic resume. But in the world of ideas, skulls will be cracked. The stronger, more durable ones will win. Avnon’s own point is that he is the victim “of groupthink at its worst. My attitude to peace and conflict is ‘go and meet your enemy.’” Lynch would be foolish to personalise the business.

Shurat HaDin must also be wary. The flipside of lawfare is that the law courts are never too crowded to hear the other side of legal process. What is good for the BDS goose is good for the Shurat HaDin gander. Palestinians have, for example, been filing civil lawsuits against American organizations arguing that they support acts of terrorism on the part of Israeli settlers in the West Bank. In June this year, two U.S. citizens sued under the Anti-Terrorism Act of 1991, allowing American victims of international terrorism to claim damages in US courts (Al Arabiya, Jun 24).

This stands to reason: in 2008, members of the Holy Land Foundation, the largest Muslim charity in the United States, were found culpable for providing material support to Hamas. As Abed Ayoub of the American-Arab Anti-Discrimination Committee (ADC) explained, “We have to use the laws we have here in the United States to our advantage. There are laws out there, for example, that say you deceptively fundraise.”

The Australian legal case on Lynch provides a test case, probably a poor one, but relevant nonetheless. The limits of how free speech can be expressed and duly quashed is a matter relevant to all sides in this debate. The thrills will lie more with the solicitors and the barristers. But there can hardly be any surprise with that.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  He ran for the Australian Senate with Julian Assange for the WikiLeaks Party.  Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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