As official Israel nears the weekly pause marking the Jewish Sabbath, it seems likely that Lara Alqasem, a 22-year old American woman, will spend her 11th night in detention at Ben Gurion International Airport.
Upon arrival in Israel, Alqasem presented her student visa which had been approved at the Israeli consulate in Miami. A keen student of the Middle East with paternal Palestinian grandparents, she had studied Hebrew intensively in her final year of college at the University of Florida. She planned to study human rights at the Hebrew University of Jerusalem this academic year.
But for nearly four years, Alqasem was also the President of the University of Florida chapter of Students for Justice in Palestine. SJP activists are known primarily for supporting the BDS movement, which advocates boycotts, divestment, and sanctions targeting Israeli-made products or companies, usually those which operate in the West Bank. However, the BDS movement goes much further: broadly presenting Israel as a fundamentally violent, militaristic nation enforcing a brutal apartheid regime and denying Arab Israelis and Palestinians in the territories a modicum of civil and human rights. Don’t take my word for it. Read the BDS website.
Alqasem’s case has put a new spotlight on the BDS movement. Some have dismissed its members as earnest, searching college students. Others have waved off the movement as having only managed a boycott against a particular brand of hummus. The reality is less innocuous.
There have been ebbs and flows in the perceived impact of BDS upon Israel over the years. It has proven challenging for industry to shun Israeli innovation prowess, but far less so the Israeli athletes, academics, and artists who have been much more isolated as a result of BDS’s initiatives. The movement, championed in the arts by superstars like former Pink Floyd frontman Roger Waters, organizes international campaigns pressuring musicians intending to play in Israel to reconsider. Anywhere in Israel. Not just in the West Bank or Golan Heights.
That’s the bad news.
The better news is that Prime Minister Netanyahu has been rather boastful in the last year or so regarding the fact that Israeli diplomatic and commercial isolation is diminishing considerably, citing that trend as proof positive that BDS is failing.
Progress aside, the intensity of BDS intimidation is far more pronounced in Europe than the United States. Even friendly, tolerant Canada, my other home country, hosts a frighteningly robust BDS community.
My compatriots are often present at clashes against the IDF and other Israeli authorities in the West Bank. In fact, a Canadian university student, who I know personally, spent the summer in the West Bank and was detained by the IDF for participating in a particularly unruly demonstration and preventing the military from doing its work. She was held for several hours and released, free to remain in Israel for the summer. Whether she is allowed to return in the future is another matter.
Such incidents are not uncommon and are a source of domestic political tension in Israel. In response to the perception among Israelis that this campaign of harassment could not go unaddressed, the government passed a law in March 2017 that is being relied upon as the legal basis for denying Alqasem entry to Israel.
In fact, the law is redundant. It is more of a political statement than a legal necessity. Under international law, all countries retain the sovereign right to refuse entry to any non-national for any reason. Clearly, though, liberal western democracies aspire to apply this discretion more thoughtfully.
The Israeli law in which Alqasem is caught up states that support for BDS may be sufficient grounds to be denied entry to Israel. In response to legitimate concerns regarding the poorly defined and overly broad scope of the legislation, a policy direction was issued by the government in July 2017, specifying that the law applies only to people who promote boycotts targeting Israel “actively and continuously.” After all, as a Strategic Affairs Ministry official told Haaretz, “Our intention is not to shut people up.”
This is the legal test: Was Alqasem engaged in active and continuous BDS activity? This is where things get murky and messy. And democracies, particularly well-functioning ones, get very messy, indeed.
In her appeal hearing on Thursday morning at Tel Aviv District Court, Israeli state counsel argued that Alqasem remains an active member of BDS, proffering oral comment regarding her Facebook acceptance to two BDS events in 2018.
In response, Alqasem’s lawyer snapped: “Is this a joke?”
In law, facts matter. They provide the court with the objective information needed to determine whether the law applies and to what extent.
Judges are also entitled to strike down laws on the basis that they are improperly drafted, particularly where they are found to breach fundamental constitutional principles. In parliamentary democracies, like Israel, a strong and independent judiciary is the ultimate litmus of the health of the nation.
This law is new and highly politicized. It may also be poorly drafted. According to the MK who shepherded it through the Knesset, the legislative intent was to deal with individuals holding significant positions in BDS organizations. Do the facts of the Alqasem case align with the legislative intent?
This law has not yet been judicially considered, making this case a particularly tough initiation for the newly appointed judge assigned to hear it. The paucity of judicial rulings in his name also makes it challenging for those trying to speculate on the outcome.
I choose to place my confidence in the integrity of the independent judiciary in Israel, which, more than media coverage and political science theory, is the foundation of a robust liberal democracy.
All democracies stumble and err. They pass poorly drafted laws that courts must then interpret and, sometimes, strike down.
It is unfortunate that Lara Alqasem is a pawn in this particular maelstrom, but the judicial system will, I hope and expect, acquit itself.
