By Ellen Wexler
On March 6, arriving on the heels of Donald Trump’s second travel ban, Israeli lawmakers passed a travel ban of their own.
The new law focuses on supporters of the Boycott, Divestment and Sanctions (BDS) movement, barring travelers who “knowingly issued a public call to boycott the state of Israel or pledged to take part in such a boycott.” It applies to boycotts of Israel as a whole, as well as boycotts of Israeli institutions and Israeli settlements. But beyond that, the ban’s scope—and its limits—are unclear.
We spoke to Barak Medina, a law professor at Jerusalem’s Hebrew University, about why the law was passed, who it targets and what it changes.
What kind of action does the ban cover? What are the parameters?
The law is actually an extension of an existing law. There is an existing law in Israel that says that a person who calls for boycott in Israel—or an area under Israeli control, which means the occupied territories—is subject to all kinds of possible sanctions.
Under the new law, we are talking about denial of entry to Israel, so it’s actually quite general. It focuses on people who are personally involved in boycotting Israel or the occupied territories. It’s hard to tell how it will be enforced, but in general it’s quite broad. So you don’t have to be the leader of a movement that calls for boycotting. It is sufficient that the person signed a petition calling for boycotting.
In effect, what do you think the ban will change?
On the one hand, it might be only a symbolic law. Up until now, authorities had unlimited discretion to deny people entry to Israel. In principle, the relevant authorities could prevent entry to people who support boycotting Israel. The only change now is that the law explicitly says that such a person would not get a visa unless the authorities decided to give him a visa. So it’s just a change of the baseline. It’s not really a substantial change.
On the other hand, it might be the case that they will take it seriously. We don’t really know yet. Since it was only enacted only a few days ago, we still don’t know how it will be enforced. I don’t believe that it will change dramatically the practice on the ground.
How do you think the ban will be enforced?
I think they might target leaders of the boycott movement, but not people who merely signed a petition or expressed their position that the settlements should be boycotted. It’s very difficult to assume the officer will Google everyone and investigate whether he or she is involved in boycotting Israel. I assume they have a list of the leaders of these movements. For all other tens of thousands of people who might be involved in this in one way or another, it’s hard to see how they actually implement and enforce this kind of provision. Again, they have the discretion to award a visa to someone who was involved in boycotting.
But even if it will not be enforced, there could be a chilling effect. People might prefer not to risk it, to take this long flight to Israel and then figure out in the airport that they are denied entry. So it might be the case that it will be effective without people trying to challenge it.
Even if the ban is largely symbolic, what will it mean to officially codify it?
I think the main lesson that we can take from this is the politicians in Israel are starting to feel the heat. They are concerned about the boycotts. There is a debate in Israel about how we should treat BDS. It seems that this additional law reflects the concern within the Israeli government and the majority of the Knesset that this risk of boycott, of Israel being targeted and things like that is the real threat, we should try to do whatever we can to fight back.
But it seems to me like a hysteric move. It’s far too broad and it’s very hard to justify. I know the universities are fighting, that there is a concern about academic freedom, that intellectuals would not be able to come. There is a concern about family unification, because there might be cases in which a person whose spouse and children live in Israel and this person does not have Israeli citizenship and this person might be prevented from entering Israel because of his or her political opinions. You can imagine all kinds of scenarios of the harm that this kind of provision might cause.
The ban targets those who support boycotts of the settlements, as well as those who support boycotts of Israel as a whole. Why is this controversial?
There is this general notion that calling to boycott Israel, the country, is sometimes hard to justify. It is close to anti-Semitism; it is something that the country may legitimately prohibit. Whereas calling to ban specific opinions, or specific positions on the settlements, feels much harder to justify. And therefore there is this tension within Israel between the legitimacy of fighting against those who call to boycott Israel in general and those who call to boycott only the settlements. Even within Israel, calling to boycott the settlements is a political statement. The concern is that the ban is biased toward one political opinion.
So would Israel accept, for instance, someone who is a Holocaust denier?
There is no explicit provision about Holocaust denial or anything like that, or anti-Semitism in general. There is this general discretion of the authorities not to let someone in, without the need to give reason. What we have now is just an excuse to say: You should not give a visa to persons who hold these kinds of views. And it’s hard to justify targeting just this specific view. The general notion is that the risk to Israel that Holocaust deniers cause is much slower because it’s not that popular a view—I assume this is the difference. But it’s hard to justify the distinction.
How will this affect Palestinians living in Israel as temporary residents?
This law does not affect the Palestinians who live in Israel because they are Israeli citizens. As for Palestinians who live in the occupied territories, they are allowed to enter Israel based on specific provisions, and in theory the Palestinians who live in territories who call for boycott are subject to this law. But again, it’s hard to believe there will be an effect. I think it is mostly directed at people who live abroad. It will affect Palestinians who live abroad who have a family in Israel, but who are not Israeli citizens.
The ban was announced on the same day as Trump’s revised travel ban. How would you compare the two acts?
Israel’s ban is not as bad as Trump’s travel ban. Under Trump’s ban, you prevent someone from entering just because of their ethnicity, nationality or religious affiliation, regardless of their activities or views. Whereas here we are talking about your own choices: You can choose what to state.
In Israel’s case, it’s still a bad law. We believe in freedom of expression, and the Israeli people have the right to hear different views. When we prevent people who would like to argue with us, who would like to raise controversial positions, and we don’t want to let them in—we don’t want to hear them, in a way—it harms our own interest in a free, open public discourse. It is not justifiable. But I still don’t think it is as bad as the Trump travel ban.
Some critics have argued that the ban is a step away from liberal democracy. Do you agree?
I think it’s a bit too far to argue that. All liberal democracies have some limits on awarding visas. A state may legitimately prevent certain individuals from entering it based on their own record. I’m not sure what would be the position of other liberal democracies about people calling to boycott those countries. I don’t know whether the United States would let people in if they call to boycott any relations—economic, academic and so forth—with the United States. I agree that making this a law, targeting this specific notion in the law, is wrong. But I think it’s somewhat exaggerating to suggest that, just because of this provision which has not been enforced yet—and I don’t believe it will be generally enforced—that Israel is not a liberal democracy anymore.
Will Israel’s ban be challenged?
All kinds of NGOs and human rights organizations are already preparing their petitions. I think that the court will decide at first that we should wait and see what the actual policy is that is implemented. But once there is some kind of a policy, and assuming that this policy will have substantial effects, I would guess that the court would intervene. I would guess that the courts would read into this law some kind of a requirement of risk—that the action or expression of an individual must actually pose a real risk on state interests, and only then can this person be denied entry.
Unlike other recent legislation by the Knesset that was very controversial and subject to debate, both within the parliament and in the press and so forth, this provision went under the radar. There was no real discussion about this, and it’s hard to tell why. And only now, mainly because of the harsh reaction in the United States, is there this mobilization of human rights organizations within Israel. So it might be the case that the law will be changed, but it’s hard to believe. It will be the task of the court now—because we’re too late.
This interview has been edited for length and clarity.