State Department backs away from anti-BDS law’s language

Legislation’s ‘conflation’ of Israel, Israeli-controlled territories ‘runs counter to longstanding US policy,’ says spokesman, indicating measure will not apply to settlements

Rebecca Shimoni Stoil is the Times of Israel's Washington correspondent.

Illustrative photo of signs calling for the boycott of Israel at an anti-Israel protest in San Francisco, April 2011 (CC BY-dignidadrebelde, Flickr)
Illustrative photo of signs calling for the boycott of Israel at an anti-Israel protest in San Francisco, April 2011 (CC BY-dignidadrebelde, Flickr)

WASHINGTON – The US State Department backed away Tuesday from controversial language included in the anti-BDS (boycott, divestment and sanctions) legislation signed into law by President Barack Obama a day earlier, indicating official discomfort with a clause that critics say intentionally blurs the lines between Israel and the West Bank.

“By conflating Israel and “Israeli-controlled territories,” a provision of the Trade Promotion Authority legislation runs counter to longstanding US policy towards the occupied territories, including with regard to settlement activity,” State Department Spokesman John Kirby wrote in a statement issued Tuesday afternoon. “Every US administration since 1967 – Democrat and Republican alike – has opposed Israeli settlement activity beyond the 1967 lines. This administration is no different. The US government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them.”

Kirby’s comments referred to the part of the Trade Promotion Authority law which sponsors said were designed to discourage European governments from participating in BDS activities by leveraging the incentive of free trade with the US.

The provisions require US trade negotiators to make rejection of BDS a principal trade objective in Transatlantic Trade and Investment Partnership negotiations with the European Union, instructing them to discourage “politically motivated actions to boycott, divest from or sanction Israel and to seek the elimination of politically motivated non-tariff barriers on Israeli goods, services, or other commerce imposed on the State of Israel.”

The anti-BDS legislation was attached as a rider to the Trade Promotion Authority, a bill for which the administration fought long and hard. The broader legislation was necessary to authorize the president to conduct key trade deals with Pacific states and work toward a trade deal with the European Union.

But left-wing groups, including Americans for Peace Now and J Street, complained throughout the legislative process that the amendments conflate boycott of Israel and boycott of products of settlements. Chief among the complaints was a clause that defines “boycott, divestment from, and sanctions against Israel” as meaning “actions by states, non-member states of the United Nations, international organizations, or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.”

Americans for Peace Now argued that the terminology sought to intentionally blur the lines between internationally recognized Israeli territory and non-recognized territory, primarily in the West Bank. US policy – and diplomatic practice – has traditionally differentiated between the two – a bone of contention between Jerusalem and Washington that manifests itself in the continued location of the US embassy in Tel Aviv and the longstanding refusal to denote Jerusalem as part of Israel in US-issued passports.

In a statement issued following the legislation’s initial passage in April, J Street wrote that the bill, sponsored by Representatives Juan Vargas and Peter Roskam “perpetuates and validates one of the BDS movement’s most harmful fallacies: that Israel and the territory it occupies in the West Bank should be treated as one and the same.”

J Street described the bill as “not simply unhelpful to the effort to combat Global BDS, but contrary to longstanding US policy opposing settlement of the territory occupied by Israel in the 1967 Six Day War.”

But in an article in the Washington Post, Northwestern University Law Professor Eugene Kontorovich, argued that the clause “is in keeping with existing US policy, as articulated in several laws including the 1979 amendments to the Export Administration Act.”

“Given the White House’s persistent refusal to recognize Israeli sovereignty inside the 1949 Armistice Lines (the Green Line),” he argued, “such language is necessary for Congress to ensure the laws apply even to western Jerusalem.”

For years, the US has asserted that Israel’s actions in the West Bank, particularly the construction of settlements across the 1967 lines is detrimental to Washington’s stated policy of supporting a two-state plan.

“Administrations of both parties have long recognized that settlement activity and efforts to change facts on the ground undermine the goal of a two-state solution to the conflict and only make it harder to negotiate a sustainable and equitable peace deal in good faith,” Kirby admonished in his Tuesday comments. “As we advance our trade agenda, we will continue to strengthen our economic ties with partners globally, including Israel. We will also continue to uphold policies integral to preserving the prospect of a two-state solution to the Israeli-Palestinian conflict.”

At the same time, the State Department spokesperson emphasized that the State Department’s concerns with the law did not have implications for its stance in opposition to the BDS movement.

“The United States has worked in the three decades since signing the US-Israel Free Trade Agreement – our first such agreement with any country – to grow trade and investment ties exponentially with Israel,” Kirby continued. “The United States government has also strongly opposed boycotts, divestment campaigns, and sanctions targeting the State of Israel, and will continue to do so.”

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