Rethinking the Entry into Israel Law

By Michal Hatuel-Radoshitzky, Amir Prager, and Shahar Eilam

*courtesy of INSS

The amendment to the ‘Entry into Israel Law’ enacted in March 2017 prohibits issuing an entry visa or residency permit to foreigners actively involved in promoting the boycott of Israel. The amended legislation was intended to equip the State of Israel with an effective tool for fighting the BDS movement, and after it was passed, Israel’s Population and Immigration Authority issued criteria for its enforcement. The ‘Lara Alqasem affair’ offers a test case for assessing the cost benefit ratio of the amended legislation and provides a window to assess the overall policy and potential constructive adjustments to the law and its implementation.

The benefits of the amendment to the ‘Entry into Israel Law’ appear to be largely local tactical benefits, whereas the potential damage is more significant and extensive. As the amendment falls short of aiding the struggle against the delegitimization of Israel, and arguably might even intensify it, measures should be taken to prevent further damage resulting from additional legislative measures or the flawed use of existing tools. The amendment to the ‘Entry into Israel Law’ enacted in March 2017 prohibits issuing an entry visa or residency permit to foreigners actively involved in promoting the boycott of Israel.

The amended legislation was intended to equip the State of Israel with an effective tool for fighting the BDS movement, and after it was passed, Israel’s Population and Immigration Authority issued criteria for its enforcement. Thus far, the BDS movement has failed in most of its efforts to harm Israel through the promotion of boycotts, divestment, and sanctions. However, the primary provocation posed by the movement is its challenge to the legitimacy of Israel’s existence as the nation state of the Jewish people and its negative impact on Israel’s international standing. More than a year and a half after the amendment was put into effect, the ‘Lara Alqasem’ affair offers a test case for assessing the cost-benefit ratio of the amended legislation and provides a window to assess the overall policy and potential constructive adjustments to the law and its implementation. The case of Lara Alqasem in August 2018, US citizen Lara Alqasem, who had registered at the Hebrew University of Jerusalem, was issued an entry visa to Israel and a student residency permit for a period of one year. However, upon arriving at Ben-Gurion Airport in October, the Ministry of Interior, based on the recommendation of the Ministry of Strategic Affairs, denied Alqasem entry on the grounds that she had held leadership positions within the Students for Justice in Palestine (SJP) organization, where she had worked to promote boycotts of Israel. Two weeks later, however, after Alqasem’s appeal to enter was refused twice, the Supreme Court ruled in Alqasem’s favor and stipulated that denying her entry does not serve the purpose of the law and does not meet the criteria defined by the law. The Court explained that despite the importance to the struggle against BDS, there is no evidence in the case at hand of activity by Alqasem to promote boycotts against Israel since she had left SJP in April of 2017. Also deemed important were her declaration that she is no longer active in promoting the boycott of Israel and her commitment to refrain from doing so during her stay in the country. Her very enrollment in the Hebrew University strengthened this legal position.

Innocent Student or Boycott Activist

The legal proceedings sparked an Israeli public debate on whether Alqasem was an innocent student or a boycott activist who had managed to manipulate the Israeli legal system. Also debated was the issue of “national honor,” as reflected in the state’s sovereign right to deny entry to particular individuals. Coverage of the affair quickly focused on familiar friction between the political system and the legal system in Israel. The affair also received extensive coverage outside of Israel, with an emphasis on Israel’s flawed conduct vis-à-vis BDS supporters. Jerry Silverman, President of the Jewish Federations of North America, maintained that Israel was adding fuel to the fire of delegitimization, and attorney Alan Dershowitz, who is known to defend Israel in international forums, said that “Israel should have never detained” Alqasem.

The Significance of the Legislative Amendment

The amendment and the criteria for its enforcement, which define Israel’s authority to prevent the entry or residency of boycott activists, are intended to withstand a judicial challenge. Since the amendment was passed, only a few activists have been denied entry into the country, rendering the law’s direct impact on keeping BDS activists outside of Israel minimal. The amendment is likely to have a deterring effect on activists, and presumably some have chosen or will choose to not try to enter Israel. Still, it is difficult to assess the overall impact of the law and its role in curtailing the efforts of those seeking to boycott Israel, as the actions of the delegitimization organizations around the world – though fueled by events occurring in Israel – are not dependent on the physical presence of activists in the country or in the Palestinian territories. It can also be argued that the legislative amendment prevents foreign activists from taking part in violent demonstrations and disorderly conduct in Israel or the territories, although such actions are not unique to boycott activists, and other tools exist to deal with them.

Rhetoric vs Resilience

In the global campaign against the legitimacy, image, and international standing of the State of Israel, both pro-Israel and anti-Israel activists strive to influence the consciousness and perceptions of large audiences, with an emphasis on liberal target groups in the West. In this campaign, Israel’s most significant asset is the fact that it is a democratic state that champions individual rights and freedom of expression. However, the amendment of the ‘Entry into Israel Law’ is one in a series of recent legislative measures and government decisions perceived by progressive audiences around the Western world as anti-democratic and anti-liberal, and in turn, arouses antagonism toward Israel. In such a battle over hearts and minds, the polarized public debate within Israel regarding the law, as manifested in the Lara Alqasem case, is more likely to have showcased examples of extreme rhetoric voiced within Israeli society, than it is to have communicated the strength and resilience of Israel’s democracy.

Furthermore, the 2017 legislative amendment triggered controversy among Jews in the United States, who are at the forefront of the struggle against delegitimization and the BDS movement, even though many of them oppose Israeli policy in the territories. Opponents of the 2017 amendment included first tier Jewish organizations, including the Anti-Defamation League (ADL) and the American Jewish Committee (AJC). Such controversy could affect this important constituency’s overall relationship with Israel and its willingness to defend the state over different platforms. This concern has likely grown since the amendment was enacted, marked by some problematic security encounters of individuals attempting to enter Israel – even if these are unrelated to the amendment. A case in point, which made major headlines, is the interrogation at Ben-Gurion Airport of well-known Jewish American journalist Peter Beinart, a strong opponent of current Israeli government policy. Beyond the concern among supporters of Israel who oppose current government policy that they will not be able to enter Israel, in the cognitive battle for image and awareness, Israel is perceived as a state that is motivated by fear of the media and civil political organization. This image strengthens the perception that Israel has something to hide, and thereby bolsters the narrative that BDS activists seek to promote in the international arena.

Impact on Conferences

Another downfall is the law’s impact on Israel’s academic institutions, which raised concerns that it would prevent scientific conferences from being held in Israel on the grounds that not all potential participants would be eligible to enter the country. In line with this logic, the Hebrew University denounced the state’s decision to deny Alqasem’s entry into Israel, arguing that it would significantly damage Israeli efforts to establish cooperative academic efforts around the world. A similar message was voiced by the international Association for Israel Studies (AIS), whose members are a counterweight to the hostile narrative on Israel on international campuses.

Finally, the original ‘Entry into Israel Law’ provided the Minister of Interior with extensive powers to prevent entry into Israel, including supporters of the boycott, even without the amendment in question. Although the amendment is likely to bolster the state’s ability to withstand judicial review, it narrows the Minister’s discretion on this issue, and it draws unnecessary and damaging public attention to a controversial subject.

Recommendations

The benefits of the amendment to the ‘Entry into Israel Law’ thus appear to be largely local tactical benefits, whereas the potential damage is more significant and extensive. As the amendment falls short of aiding the struggle against the delegitimization of Israel, and arguably might even intensify it, measures should be taken to prevent further damage resulting from additional legislative measures or the flawed use of existing tools. First, legislation is a showcase of the Israeli democracy. Therefore, in processes of legislation, including in domestic areas, it is imperative to examine possible implications for the international status of Israel and for Israel’s relations with Diaspora Jewry on the frontlines of the struggle against Israel’s delegitimization.

Second, legislation should be accompanied by written opinions of relevant professionals prior to its completion, and by subsequent supervision to determine whether the law and its implementation suit the purpose for which the law was enacted.

Third, as seen from the Alqasem affair, it is necessary to improve the coordination between all involved parties: the Ministry of Foreign Affairs and the consulates, which issue residency permits to foreigners in Israel; academic institutions, which accept foreign students into study programs; the Population and Immigration Authority, which is responsible for the entry gates of Israel; the Ministry of Strategic Affairs, which formulates recommendations regarding boycott activists; and various security bodies.

And fourth, amendment or annulment of the March 2017 legislative amendment should be considered. In any event, Israel would be wise to limit the invocation of this legislation, and to deny entry and residency in Israel only in extreme cases that fully meet the requirements and criteria of the law.

Such measures should only be taken after considering the potential broad implications for Israel’s international status and relations with its friends and supporters around the world.

INSS Insight No. 1105, November 13, 2018