The BDS Movement: That Which We Call a Foreign Boycott, by Any Other Name, Is Still Illegal
128 Pages Posted: 28 Nov 2014 Last revised: 20 Aug 2017
Date Written: January 7, 2015
In recent years a movement advocating a program of boycotts, divestitures and sanctions against Israel has developed an increasingly visible position on the world stage. This movement, known as the BDS Movement, originated in the Arab League's boycott of Israel and has grown into a multi-faceted entity. On the one hand, it continues the Arab League's boycott of Israel; on the other hand, it is aligned with radical Islamist groups, including Hamas, and coordinates with such groups as part of an international campaign to attack Israel militarily and commercially.
The BDS Movement has begun to attract supporters in the United States, consisting of individuals, unions and business organizations. These supporters have been led to believe that their support of the BDS Movement is within the bounds of United States' law.
This paper explores specific United States' laws, including the Export Administration Act's anti-boycott provisions, anti-trust laws, racketeering laws and anti-terrorism statutes, to show that there are a number of federal laws that apply to, and prohibit participation in, the BDS Movement's activities.
This paper concludes that American individuals and organizations that participate in or support the BDS Movement may be subject to both government prosecution and private party litigation, exposing participants to monetary and criminal penalties. To the extent individuals or business organizations have experienced financial harm from the BDS Movement's activities, such damages may be compensable under applicable United States' laws.
Furthermore, this paper argues that because the federal government's role in regulating foreign affairs and commerce is undermined by the BDS Movement's operations in the United States, and United States' policy towards foreign relations is at odds with the BDS Movement's objectives, the United States Department of Justice is warranted in commencing prosecution against the BDS Movement and its supporters under, inter alia, the Export Administration Act, anti-terrorism laws and RICO.
This paper has been published in the Roger Williams University Law Review. The published version of this paper contains updates and revisions not included in the SSRN version, which was an earlier draft of the paper.
The portion of this paper demonstrating that First Amendment protections are not applicable to BDS Movement boycotts has been expanded and developed into a separate paper, "The Inapplicabiilty of First Amendment Protections to BDS Movement Boycotts", available at http://ssrn.com/abstract=2676307. That paper was published by the Cardozo Law Review de novo.
Keywords: BDS, RICO, Export Administration Act, Anti-trust, Israel, Boycott, Palestine, Hamas, Material Support, terrorism
JEL Classification: K00, K10, K14, K19, K21, K30, K33, K42
Suggested Citation: Suggested Citation