11 Fall 2021 he Boycott, Divestment, Sanctions (BDS) movement’s placards held aloft outside shopfronts and on demonstrations are a visible reminder of the ongoing campaign against the State of Israel, but the real activity has long moved off the streets and into the wholesale financial markets. In this arena, activists target those who manage money to persuade them to divert capital – measured in the millions of dollars – away from companies linked to the economy of the State of Israel. In July 2021, Ben & Jerry’s announced that it will no longer sell its products in what it termed“the Occupied Palestinian Territory.” Ben & Jerry’s, now the enfant terrible of socially responsible business, occupies the space where the real economy and the financial markets meet. Ice cream might be the end-product, but it is the shares of its ultimate parent, Unilever, that are traded in the financial markets. In this article, I take stock and consider what the road ahead might look like. Introduction Non-financial environmental, social, and corporate governance (ESG) issues are embedded in the psyche of institutional investors like never before. Undoubtedly, such considerations are a badge of highly developed and responsible financial markets. The BDS movement seeks to hang on to the coattails of this phenomenon. Activists frame the Israeli-Palestinian dispute in human rights terms, intending to strike a chord with those applying ESG policies to their investment portfolios. We must see this for what it is. The interests of the BDS movement are privileged over pensioners and other end-investors, whose money is ultimately used to weaponize a political agenda amounting to nothing more than old-fashioned maximalism. BDS activists view ESG policies as affording them the opportunity to pursue this agenda through financial intermediaries, who become nothing more than hapless foot soldiers. Far from protecting the Palestinian population, BDS campaigns are indifferent to the risk of collateral damage. Their campaigns put at risk the livelihoods of Palestinian workers employed by the companies they target.1 “Weaponize,”“foot soldiers,”and“collateral damage” are not terms that should be used lightly. They are terms more commonly associated with military intervention. The irony is that scholars point to nonmilitary measures to defend human rights as generally being more effective than military intervention.2 Yet this self-styled “civil society”movement continues to interpose itself in a way that promotes division, resembling all the bluntness and absence of foresight that often are the hallmarks of military intervention. As a major financial services economy, it is no surprise that much BDS activity in the financial markets has a UK nexus. It is often assumed that the law in England and Wales – unconstrained by comprehensive antiboycott legislation – has created the right conditions for BDS to flourish in the financial markets. Although there is some truth to this, a basic regression analysis reveals that in many cases, the cause is an inadvertent or purposeful misunderstanding of the legal position, or a failure to enforce regulatory standards or pursue available remedies. The remainder of this article takes English Law and BDS: Taking Stock T DanielA. Harris 1. In Judea and Samaria, thousands of Palestinians employed by Israeli businesses receive average salaries far higher than average salaries paid by Palestinian employers. The employment of Palestinians in Israeli businesses in Judea and Samaria also promotes peace and reconciliation. See, for example, Mohammed S. Dajani Daoudi, Ali Qleibo, Khaled AbuToameh, Nabil Basherat, Nadia Aloush, Rami Levy, Daniel Birnbaum, Dan Diker, Danny Tirza and Pinhas Inbari, “Defeating Denormalization: Shared Palestinian and Israeli Perspectives on a New Path to Peace,”JERUSALEM CENTER FOR PUBLIC AFFAIRS, available at http://jcpa.org/pdf/Defeating_Denormalization_Final_22_ january.pdf 2. See, for example, the op-ed: Stefano Recchia,“Afghanistan: What Biden's critics get wrong, and the debt owed Afghan refugees,”THE HILL, Aug. 26, 2021, available at https:// thehi l l .com/opinion/national-security/569530afghanistan-what-bidens-critics-get-wrong-and-thedebt-owed-afghan. Prof. Recchia states, “forcible democracy promotion in deeply divided societies won’t succeed.”
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