The State Department has sharpened its opposition to Israel’s presence in the West Bank in response to a trade bill signed into law by the White House one day earlier.
A part of the new law – known as the anti-BDS provision – requires American negotiators 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 provision applies to “Israeli-controlled territories” as well. According to critics of the law, the language refers specifically to the West Bank and grants legitimacy to Israel’s control of the territory, prompting the State Department to clarify its policy of opposition to Israeli settlements in 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,” the statement reads.
“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,” it continues.
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The legislation appeared to be a major victory for the fight against BDS, especially boycotts from large European companies, the main threat of meaningful boycotts against Israel.
The State Department statement, however, opens the door to the possibility that the US will not apply the new law to areas over the Green Line. In doing is, it runs the risk of legitimizing boycotts that focus on the West Bank.
People who support boycotts tend to fall into one of two categories. There are those want a two-state solution and believe that a targeted boycott of the West Bank will pressure the government to change policies. There are also those who wish to see Israel replaced with a Palestinian state who support an all-out boycott of Israel. The main BDS leadership falls mainly in the second category.
But both groups have been co-opted by the BDS movement and both help advance the goals of the BDS leaders seeking Israel’s destruction. By implying that boycotts of the West Bank should not fall under the anti-BDS legislation, the State Department statement may lead to more boycotts of the West Bank and a stronger BDS movement.
As Northwestern University Law Professor Eugene Kontorovich wrote in the Washington Post, application of the law depends on the agreement of the President.
The trade negotiation provision is, to be sure, almost impossible to enforce in the face of presidential recalcitrance. While it establishes “negotiating objectives,” ultimately the President conducts the negotiations. Nonetheless, while the provision does not constrain the ultimate parameters of a trade deal, it does require the U.S. Trade Representative to make this an issue.
While the statement may not be a shift in policy from the State Department, it sharpens the distinction between Israel and the West Bank. The State Department, afraid that the new law would legitimize settlements, went out of its way to assert its stance that they lack legitimacy.
The statement, however, does not change the language of the law, which extends the same anti-BDS protection to Israeli-controlled territories as the rest of Israel. It remains to be seen if the State Department or the White House will find a legal way bypass the provision.
