On June 5, Governor Andrew Cuomo issued a first-in-the-nation executive order that requires all state agencies under his jurisdiction to cease their dealings with companies and institutions that back the Boycott, Divestment and Sanctions (BDS) movement against Israel.
Flanked by pro-Israel politicians and activists — and not a single Palestinian — Cuomo signed the order at Manhattan’s Harvard Club before marching down Fifth Avenue in the Israel Day Parade.
Cuomo’s order tasks one of his commissioners with assembling a list of institutions that support a boycott, both directly and through a parent or subsidiary. This public list will be available online, and although affected companies will have 90 days to appeal, the order shifts the burden of proof onto the accused.
The list will also discourage allies and future allies from supporting the call for BDS—or less perceptibly, deter intergroup solidarity among Palestine activists and other human rights organizations.
Activists worry that human rights groups who would ordinarily support Palestinian rights—and therefore BDS—will keep a distance for fear of jeopardizing their own successes. It is conceivable that under Cuomo’s order, an already financially strained organization focused on domestic issues would shy away from Palestine solidarity groups, in order to avoid what may be a costly and lengthy legal battle.
Legal experts have called the mandatory blacklist “McCarthyite” and activists fear that the vague language of the order will have far-reaching implications for the ability of human rights groups to operate.
The order comes after two separate anti-BDS bills failed to pass the state legislature this year. Cuomo circumvented the legal process with the order, calling BDS a “hateful, intolerant campaign,” at the signing.
“It’s very simple: If you boycott against Israel, New York will boycott you,” Cuomo said when announcing the order.
Twenty-one states have taken up anti-BDS legislation, although New York’s is the most far-reaching. New York Senator Chuck Schumer has vowed to model national anti-BDS legislation after Cuomo’s order. Congress already authorizes $3.1 billion per year in military and economic assistance to Israel, by far the most foreign aid any country receives from the United States.
The order has galvanized BDS supporters and free speech advocates more broadly, inspiring a quickly organized yet well-attended demonstration outside Cuomo’s midtown Manhattan office on June 9 and subsequent rally at the State Capitol in Albany on June 15. During the Albany rally, a coalition of groups delivered a petition with 13,000 signatures to Cuomo’s office in the State Capitol.
Primary among activists’ complaints has been Cuomo’s “selective solidarity” when it comes to the use of boycotts. The governor issued a ban — or boycott — on all non-essential state travel to North Carolina in response to that state’s discriminatory laws against transgender individuals, but has banned New Yorkers from utilizing the same collective power against Israel.
Legal experts doubt the order will survive scrutiny in the courts, as there are multiple Supreme Court cases solidifying boycott as protected First Amendment speech.
Kathy Manley, vice president of the Capitol Region chapter of the New York Civil Liberties Union cited the landmark civil rights case NAACP v. Claiborne Hardware Co in which the Supreme Court ruled the local NAACP chapter’s boycott of white merchants in Claiborne County, Miss., as a means to pressure politicians into adopting racial justice measures was a “political form of expression” and thus protected under the First Amendment.
“There’s a long history of boycotts being part of social movements and this is an attack on that tradition,” Manley added.
Under the belief Cuomo has been working closely with the pro-Israel lobby — or even the Israeli foreign ministry, as some Israeli media have reported — on June 21 the Center for Constitutional Rights, Palestine Legal, and Jewish Voice for Peace filed a Freedom of Information Law (FOIL) request seeking to “understand the origins of Cuomo’s order and who may be behind it.”
“This FOIL seeks to expose the forces behind this executive order so that the public can understand the extent to which Cuomo is subverting our constitutional rights in order to shield Israel from accountability,” wrote Palestine Legal Executive Director Dima Khalidi in a statement.
An International Movement
BDS is an international movement that calls for boycotting and divesting from Israel until it complies with international law. Its three principles are: ending the nearly five-decade long military occupation of Palestinian lands in the West Bank and the Gaza Strip, recognizing the rights and full equality of Palestinian citizens of Israel and granting the right of return to more than five million displaced Palestinian refugees, as inscribed in U.N. Resolution 194.
Inspired by the South African anti-apartheid movement, in 2005 Palestinian civil society issued the call for BDS to achieve their demands through nonviolent means. It is headed by the Palestinian BDS National Committee (BNC).
The effectiveness of BDS is contested among activists, scholars and human rights groups, with proponents pointing to companies like Soda Stream — forced to close its factory in the illegal West Bank settlement of Maale Adumim — or the European transportation infrastructure company Veolia, which sold off much of its business in Israel under international boycott pressure.
Hani Ghazi of Adalah-NY, the New York Campaign for the Boycott of Israel noted that the recent attempts to outlaw BDS reveal the movement’s effectiveness and politicians’ fears of the powerful pro-Israel lobby.
“Over the past couple of weeks, we have noticed a pushback on a governmental and a political level against BDS and that just shows that it is effective,” Ghazi told The Indypendent at the June 9 rally outside Cuomo’s office.
BDS proponents are currently pursuing an array of initiatives including Adalah-NY’s call on cultural workers to support the cultural boycott; Jewish Voice for Peace’s campaign to stop Hewlett Packard from providing its technologies to military checkpoints and settlements in the occupied West Bank; CODEPINK’s call on Airbnb to stop listing rental properties in the occupied West Bank; and various Students for Justice in Palestine groups efforts to combat the powerful pro-Israel narrative on U.S. college campuses.
At the same time Palestine solidarity groups face constant threats of defunding and intimidation on college campuses and academics who openly sympathize with the Palestinians face severe consequences.
The University of Illinois withdrew its offer of employment to American scholar and professor Steven Salaita over tweets critical of Israel’s 2014 assault on Gaza, which left 2,200 Palestinians dead, more than half of them civilians.
In 2007, DePaul University denied political scientist and professor Norman Finkelstein tenure over his views on the Israeli occupation of Palestine.
Noting the reach of pro-Israel groups in college administrations, Finkelstein told The Indypendent that the reason for his denial of tenure was due mostly to “the university’s fear of a powerful Jewish community in Chicago.”
But according to Finkelstein, the Israel lobby is on the defensive. “Having lost a battle for public opinion,” he told The Indypendent, “the only other option if you want to prevail is to use strong-arm tactics.”
Finkelstein cautioned that Israel’s anti-BDS narrative a part of the state’s “siege mentality,” adding that “when you play the victim you enjoy some kind of immunity from criticism.”
“BDS is being used and exploited by Israel’s supporters to try to delegitimize the significant change in public opinion up to and including young American Jews and also to try to reverse the tendency that has been at play over the past couple of decades—mainly, increasingly not only sharp criticism of Israel, but increasingly credible criticism of Israel,” the scholar noted.
While Finkelstein is critical of BDS’ effectiveness, he supports the right of BDS activists to express their politics through boycott.
However, BDS victories have been “wildly exaggerated” Finkelstein cautioned. “Although I deeply respect them, they’re very minimal.”
According to Finkelstein, the problem stems from the lack of an organized resistance movement on the ground in Palestine, and therefore a lack of response to the BDS movement in the rest of the world.
He used the common comparison of BDS to the boycott of apartheid South Africa, claiming that the movements diverge in their ability to respond to boycott gains on the ground.
“Each time there was a qualitative uptick of the resistance movement in South Africa, there was an uptick in the anti-apartheid sanctions campaign. The two perfectly correlated.” But Finkelstein noted, “so long as nothing is happening in the Occupied Palestinian territories…the Palestine Solidarity movement abroad inevitably is going to be a sideshow.”
In her emailed statement to The Indypendent, Riham Barghouti a founding member of the Palestinian Campaign for the Palestinian Campaign for the Academic and Cultural Boycott of Israel, conceded that indeed “there is a lack of vision and collective strategy among the Palestinian people,” but added that “there is clarity and agreement regarding the three demands of the BDS movement.”
Where Finkelstein’s argument criticizes the lack of an organized on-the-ground movement to build on any BDS gains, Barghouti notes that the BDS movement is the organized response.
“Rather than wait until the Palestinian leadership has created a clear national agenda for us to begin organizing” Barghouti added, “the BDS movement is providing a strong signifier for our liberation movement, of the perimeters for our political struggle, the strength of the commitment of those standing in solidarity and a way forward through action.”