Capitol Brief / by Mill VP

Capitol Brief takes a look at US legislation and its implications for peace and justices for Israelis and Palestinians. 

Anti-BDS Legislation Gains Traction

The top development, which began in early 2015, is a growing tide of anti-BDS legislation at the state and federal level. “BDS” stands for Boycott, Divestment, and Sanctions; the term is often affiliated with an international campaign seeking to utilize these tactics against Israel. The language employed in new anti-BDS legislation presents some serious problems, and for reasons you might not expect.

Lara Friedman of Americans for Peace now did a highly recommended year-end review documenting the progression of 2015’s unprecedented anti-BDS legislation (here). Friedman’s weekly legislative round-up is a must read.


The US congress developed Anti-BDS legislation in concert with, and partly in response to new European Union policy that requires labeling products made in settlements; iow, products made in settlements cannot be labeled, “made in Israel.”

The EU’s labeling policy passed for two reasons: (1) to comply with existing legislation requiring products to identify their place of origin (2) affirm the 1967 “green line” by distinguishing between Israel proper and the occupied territories. The EU is Israel’s greatest trade partner and has not participated in Boycotts, Divestment, or Sanctions against Israel proper.

In response, the US congress has developed “anti-BDS” legislation to combat politically motivated discrimination against Israel.

While there is a plurality of opinions regarding BDS within MVP and throughout the country, the principal concern is not that Congress opposes BDS and it’s not that Congress opposes the EU’s labeling policy. The principal concern is that this legislation employs language that changes policies critical to the foundation of future negotiations and a Palestinian state.

I’ll illustrate this point by looking at an excerpt from section 909 of the Trade Facilitation and Trade Enforcement Act of 2015:

“requires that no U.S. court recognize or enforce any judgment by a foreign court against a U.S. person doing business in Israel, or any territory controlled by Israel, if the U.S. court determines that the foreign judgment is based, in whole or in part, on a determination by a foreign court that the U.S. person's mere conduct of business operations therein or with Israeli entities constitutes a violation of law.”

This language conflates Israel with Israeli settlements in the occupied Palestinian territories. The implications of this language are vast, but we’ll focus on three important points:  

1.       The European Union has never passed legislation employing the tactics of Boycott, Divestment, or Sanctions against Israel proper. With that in mind, the only impact of this legislation (as part of the Transatlantic Trade and Investment Act) is to protect settlements from labeling (being identified). This protection of settlements provides legitimization to settlements that does not reflect US foreign policy.

2.       This languages suggests (for the purposes of trade policies) that the United States should apply its laws to Israel proper and settlements equally, implying de facto sovereignty in lands across the 1967 boarder in the Occupied Palestinian Territories. This is a reversal of US policy upheld by every US president, Republican and Democrat, since 1967 and conflicts with International Law.

3.       This legislation promotes a false understanding of the 67’ green line: that it is evolving, fluid, unclear, contested.

The green line has been the bases for all negotiations between Israel and the Palestinian Authority and is sine qua non for Palestinian participation in any future negotiations. The green line is not a subject of negotiation; it is essential to have negotiations. New “anti-BDS” legislation mischaracterizes the green line, creates confusion by conflating Israel and its settlements, and impedes efforts to reach a two state solution.

In conclusion, this is bad. It’s very very bad and expanding beyond Washington, DC to take hold at the state level.

The subtlety of the legislation is exploiting the fog of fear and confusion surrounding BDS and serves to support the annexation of Palestinian lands in the West Bank.   

I choose to believe there are supporters of this legislation that do not fully understand, and would not support, its implications. We can only hope to counter these measures by calling our representatives in congress to raise awareness.  

For those interested in learning about the specific resolutions and bills involved, please review and follow Friedman’s legislative round-up here