At Wednesday’s hearing, HRW’s attorney, Michael Sfard, argued that the Entry into Israel law must be interpreted narrowly to distinguish between focused human rights advocacy and broader BDS statements.  The Entry into Israel law prevents the entry of persons who make blanket calls for BDS based solely on an entity’s relationship to Israel; whereas HRW and Mr. Shakir only advocate for action to end documented human rights violations.  That advocacy is in the same vein as HRW’s activity around the globe, including in the United States and Canada.  That is, the action of HRW and Mr. Shakir’s advocate is concerned only with preventing the furtherance of specific human rights violations, regardless of where or who is committing them.

Mr. Sfard also argued against the government’s assertion that HRW was free to hire any other foreign human rights expert to work in Israel, just not Mr. Shakir.  Mr. Sfard pointed out that any other person in Mr. Shakir’s position would take the same stance and call for the same action because the focus of that action targets specific activity that amounts to a human rights violation.  The government’s extremely broad interpretation of what activities are captured by Amendment No. 28 would prevent not only HRW, but all other human rights organizations from making policy and action recommendations aimed at ending human rights violations committed by private companies in settlements.  Because of the overly broad nature of that interpretation, Amendment No. 28 is unconstitutional.  Mr. Sfard further argued that, even if that amendment is constitutional, it must be interpreted as narrowly as possible to avoid blocking NGOs from advocating for changes to Israeli policy.

Moreover, the Entry into Israel Law only prevents entry of persons making “active, continuous, and consistent” calls for BDS.[3] Much of the information relied upon by the government to justify its decision concerns political activities Mr. Shakir took part in years ago when he was a student at Stanford University. However, in the last two years as HRW’s representative, the only advocacy undertaken by Mr. Shakir has been calling on companies involved in specific violations to respect human rights. Indeed, much of both the government’s written response and the hearing itself focused on Mr. Shakir’s social media posts promoting HRW’s research and advocacy on those violations, making clear that the target is HRW itself. HRW argued that any HRW employee would promote the organization’s work.  The government’s attorney was asked whether they would deport other HRW employees who did the same; he responded that every case would be evaluated on the merits.

Mr. Sfard argued that the government has thus overstepped its authority under the Entry into Israel Law by attempting to remove Mr. Shakir while admitting that he is not actively or continuously promoting a boycott of Israel.  Mr. Sfard also pressed the court to reject the government’s argument that simply “liking” a post on Facebook or “re-tweeting” a post on Twitter qualifies as active support of the content of the original post.  Rather, Mr. Sfard argued that simply sharing another’s original content does not amount to an endorsement of that content, and that interpreting it as such would be to ignore the realities of how information is shared in the digital age.  Indeed, such an interpretation would infringe upon Mr. Shakir’s freedom of expression, which is guaranteed by Israel’s Basic Law.

This case is an example of Israel attempting to dictate the personnel decisions of NGOs operating in the OPT.  Israel prevents certain foreign nationals from entering the country as a means of attempting to control the direction and work of NGOs.  Both Mr. Shakir and HRW have a remarkable track record of identifying human rights and international law violations and effecting real change to prevent the furtherance of those violations.  Israel is attempting to silence such actors by preventing them access to the facts on the ground.  However, in this case, even the Israeli Minister of Foreign Affairs recommended that Mr. Shakir be allowed to remain in the country on HRW’s work visa that has already been granted.  That opinion has been sealed and the government claims it is “privileged information.”  Mr. Shakir’s legal team has not been allowed to see that opinion.  Mr. Sfard urged the judge to review the Minister of Foreign Affairs recommendation that Mr. Shakir’s visa should not be revoked and to consider that recommendation in her decision.  Additionally, Mr. Sfard asked the judge to unseal the opinion so that he and the rest of Mr. Shakir’s legal team could review it.  Mr. Sfard asked the judge to allow Mr. Shakir to stay in the country until the litigation process for this case is completed.  Decisions are typically expected within 30 days of the hearing.  Although the district court begins its six-week recess on 19 July, a decision could come during that time.

[1] Shurat HaDin is a private law firm whose mission statement is “defending Israel, its leaders, and soldiers against claims of war crimes, and by battling lawfare, BDS and other efforts to delegitimize the Jewish State, Shurat HaDin is using court systems around the world to go on the legal offensive against Israel’s enemies.”

[2] For a summary of the initial proceedings, HRW’s challenge, and the government’s written response to that challenge, see Al-Haq, “Al-Haq Calls on the Israel Minister of the Interior to Reinstate the Work Visa of Esteemed Director of Human Rights Watch Mr. Omar Shakir, respect the right to freedom of expression, and the work of respected International Human Rights Organisations,” 27 June 2018 (9:55 AM), available at: http://www.alhaq.org/advocacy/topics/human-rights-defenders/1276-al-haq-calls-on-the-israel-minister-of-the-interior-to-reinstate-the-work-visa-of-esteemed-director-of-human-rights-watch-mr-omar-shakir-respect-the-right-to-freedom-of-expression-and-the-work-of-respected-international-human-rights-organisations.