Complaint filed against Israel boycott call by Sydney University professor

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Israeli civil rights group, Shurat HaDin, has filed a class action complaint under the Racial Discrimination Act 1975 with the Australian Human Rights Commission over a Sydney professor’s participation and public support of  boycotts of Israel including an academic boycott of  Israeli universities.

Akiva Hamilton

Recently, faculty and students at Sydney University called for the severing of links with Israeli institutions, actions that would be deemed racist and in violation of Australian Federal anti-discrimination laws.

The complaint filed by Shurat HaDin’s Australian solicitor Alexander Hamilton is the first time that a Racial Discrimination Act action has been launched in Australia against those promoting boycotts, sanctions and divestment (BDS) against the Jewish State. It is the first time that Australia’s anti-racism laws have been utilized against those seeking to harm Israeli academics or businesses because of their national origin.     

In its letter sent to the Australian commission, Shurat HaDin pointed out that the Federal Racial Discrimination Act of 1975 made it unlawful for anyone “to do any act involving a distinction, exclusion…or preference based on race…or national or ethnic origin which has the purpose…of nullifying or impairing…fundamental freedom in the…economic, social, cultural or any other field of public life.”

The Shurat HaDin complaint also noted that any boycott of Israeli “settlement products,” such as SodaStream and Ahava, harms Palestinian economic interests due to the fact the factories employ many Palestinian workers and provide an important source of income for local families and villages.

This past semester, the university’s student body endorsed Associate Professor Jake Lynch’s academic boycott of Israel. Lynch had publicly announced his refusal to work with Dan Avnon, an Israeli professor from the prestigious Hebrew University in Jerusalem, which promotes Israeli-Arab coexistence, and also called for a boycott of Technion University in Haifa.

Last month, Lynch refused to heed the Tel Aviv-based rights group’s warning that he must cease participation in unlawful, and racist, boycott activity. Although widely condemned by mainstream politicians and community figures, Lynch has also been publically supported by notorious Holocaust denier Fredrick Toben.

The BDS movement has been recognized as antisemitic by leading authorities such as the Anti-Defamation League in the United States, and in a report recently released by the Simon Wiesenthal Center.

Associate Professor Jake Lynch

According to solicitor Andrew Hamilton: “The BDS movement is racist by its own definition because it seeks to discriminate and impose adverse preference based on Israeli national origin and Jewish racial and ethnic origin of people and organisations. It does nothing to help Palestinians and indeed harms them. It is merely an excuse for the vilest public anti-semitic campaign the western world has seen since the Holocaust.”

According to Shurat Hadin director Nitsana Darshan-Leitner: “Lynch and his ilk seek to boycott Israeli and Jewish national products, whether its goods, services, performers or professors. By singling out Israel and no other country the BDS extremists expose the antisemitism that motivates them. We are hopeful that this historic proceeding against the BDS movement will serve as a model for battling it in other jurisdictions worldwide.”

The complaint itself:

Director, Investigation and Conciliation Service Australian Human Rights Commission
GPO Box 5218
Sydney NSW 2000

Re: Representative Complaint under Racial Discrimination Act 1975

Dear Sir,

Shurat HaDin—The Israel Law Center, an organisation dedicated to enforcing basic human rights through the legal system, represents victims of terrorism and other illegal anti-semitic activity in courtrooms around the world. Shurat HaDin was founded on the model of the Alabama based Southern Poverty Law Center – a non-profit legal center that over the last four decades has successfully confronted and shut down racist groups (such as the Ku Klux Klan) across America.

A. The Complaint

The Israel Law Center and I, Andrew Hamilton, Solicitor, wish to lodge a representative complaint against Associate Professor Jake Lynch, for various activities (described in detail below) which are unlawful under the Racial Discrimination Act 1975 (Cth).
The contact details for Associate Professor Jake Lynch are: Director, Centre for Peace & Conflict Studies, 
Mackie Building K01, 
University of Sydney, NSW 2006
By email: [email protected]

The conduct complained about is Prof. Lynch’s participation in and public support of the global movement for boycotts, divestment and sanctions against Israel and Israeli related business, academic and cultural persons and organisations (BDS movement or BDSM).

In particular, Prof. Lynch supports racist anti-semitic BDSM activity at Sydney University. Recently, the university’s student body endorsed Associate Professor Jake Lynch’s academic boycott of Israel. Lynch had publicly announced his refusal to work with Dan Avnon, an Israeli professor from the prestigious Hebrew University in Jerusalem, which promotes Israeli-Arab coexistence, and also called for a boycott of Technion University in Haifa.

See: http://www.bdsmovement.net/2013/ sydney-university-student-representative-council-passes-bds-motion-10961
31 July 2013

Prof. Lynch has a long history of support of racist BDSM activity going back at least until 2010.

B. The Complainants

This complaint is lodged as a representative complaint under s46P of the Australian Human Rights Commission Act 1986. The class of persons complaining against Prof. Lynch is defined as follows:

.    a)  all Israel linked businesses with activity in Australia which have been or may be targeted by 
BDSM organised or inspired protests and boycott activity;
.    b)  all Australian citizens based in Israel who suffer from the activities of the BDSM in relation to 
cultural boycotts of Israel (attempts to prevent overseas cultural groups visiting Israel);
.    c)  Israeli academics visiting or seeking to visit Australia who have been targeted by BDSM protests 
and boycotts;
.    d)  members of the Australian Jewish Community who have been subject to the racist activity of the 
BDSM including at Australian Universities and in their dealings with the Israel linked businesses referred to in paragraph a) above.

I, Andrew Hamilton am a dual Israeli / Australian citizen and a member of the class described above, particularly paragraphs a), b) and d). I am an appropriate person to represent the above class of complainants in this complaint.
Shurat HaDin is an Israeli not-for-profit organisation dedicated to enforcing basic human rights through the legal system. It is an appropriate person to represent all Israeli members of the class specified above.

C. BDSM activity subject of the complaint

The BDSM conducts campaigns of boycotts, divestment and sanctions against Israel linked persons and organisations in the business, cultural and academic sectors.
Details can be found at: http://www.bdsmovement.net and many other related websites.
The Israeli companies heavily targeted by the BDS movement which have activities in Australia include Max Brenner2, Ahava3, Sodastream4, Seacret5, Sabra Humous6; Eden Springs7.

All BDSM activity related to Australia (which Prof. Lynch has very actively supported and facilitated) is the subject to this complaint. A detailed list of the activity of the BDSM in Australia which is the subject of this complaint is set out in the table at Attachment 2.
A detailed list of Prof. Lynch’s involvement in advocating for, supporting and facilitating BDSM activity is set out as Attachment 3.
The activity of Prof. Lynch in relation to BDSM at Sydney University is a particular subject of the complaint. This includes Lynch’s publicly refusal to work with Professor Dan Avnon, from Hebrew University in Jerusalem and public call for a boycott of Technion University in Haifa.

D. Legal Basis of Complaint: BDSM activity is unlawful Racial Discrimination

We are complaining to the Australian Human Rights Commission because BDSM activity is unlawful under the Racial Discrimination Act 1975 (Cth) which provides (section 9):

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

The BDSM, by its very definition, seeks to make distinctions between, impose restrictions on and imposes an adverse preferences based on the Israeli national origin of goods, services, persons and organisations. It also in effect makes a distinction between, imposes restrictions on and imposes adverse preference based Jewish racial and ethnic origin and the Israeli ethnic origin.

Participants in the BDSM do these BDSM related acts with the clear purpose and actual effect (where their BDSM actions are successful) of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the human rights and/or fundamental freedoms in the political, economic, social, cultural fields of those persons and organisations whom they seek to boycott, divest from and sanction.

Racist BDSM activities consisting merely of speech, including advertising for and inciting unlawful BDSM activity, are expressly prohibited under sections 16 & 17 of the Racial Discrimination Act. Prof. Lynch is particularly guilty of advertising and inciting unlawful BDSM activity through his active involvement in training BDSM activists, speaking at and organising BDSM events. There is no general constitutional protection of free speech in Australia and BDSM racist hate speech is not legitimate free speech in any case.

BDSM activities are unlawful even if the ostensible reason for the BDSM acts are supposed support of the Palestinian cause. Section 18 of the Racial Discrimination Act provides that:

If:
(whether or not it is the dominant reason or a substantial reason for doing the act);

(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.

1. The BDSM engages in racist hate speech

A call for an economic, cultural or academic boycott of Israel or Israeli organisations is one of the worst forms of harmful speech because it is a deliberate and malicious attempt to harm Israeli Jews.

It is clear that economic, cultural and academic boycotts are harmful to their targets and Jews have suffered particularly from such boycotts as a result of antisemitism throughout history. Such boycotts were some of the first laws passed against Jews by the German Nazi regime prior to the Holocaust.
Moreover, the persons calling for such boycotts are well aware and indeed intend to harm Jewish and Israeli persons and organisations. They are aware that their actions in targeting of privately held Jewish businesses, cultural organisations or academics have had no effect on Israeli government policies (which are determined by democratic elections) but instead turn their frustration at this towards redoubling their efforts to harm Jews.

2. The BDSM is hypocritical and does not assist the Palestinian cause

The BDSM is hypocritical and not really directed at legitimate support of the Palestinian cause at all.
Thus even the ostensible, potentially lawful reason for the BDSM is false.

Analysis of the actual actions and activities of the BDSM shows this clearly.

The BDSM uses the internet and modern communications methods to regularly target vulnerable Jewish or Israeli owned businesses with no political influence while continuing to make extensive use of the Israeli developed technology products embodied in all today’s computers, smartphones, tablets and the global internet.

Israeli companies heavily targeted by the BDSM include Max Brenner (cafes and chocolate), Ahava (beauty products), Sodastream (soft drink machines), Seacret (beauty products), Sabra Humous and Eden Springs (bottled water).

Clearly none of these companies have any significant political activities or influence that can justify a call to boycott them being characterised as political activity or support for Palestinians as BDSM activists assert. Indeed the actual activities of the BDSM protesters calling for and actively boycotting Israeli businesses are often laden with overt antisemitism.

These consumer economic boycotts are also extremely selective and hypocritical in targeting relatively small, vulnerable, low tech Israeli companies whose contribution to Israel’s exports is very small while not only ignoring, but actively using the high tech products developed and / or produced in Israel by Intel, Facebook, Google, Apple, Microsoft, Cisco, Sandisk, Hewlett Packard and many other Israeli companies that are essential to the modern high-tech lifestyle.

Given the huge dominance of high tech in Israel’s exports, calls to boycott Israeli low tech delivered by means of Israeli high tech can never be effective on a macro scale in damaging the Israeli economy and thus influencing government policy. Such calls can only serve to hurt vulnerable Israeli companies with no real political influence.

Cultural boycotts of Israel, organised by the BDSM, have consisted of attempts to deprive the Israeli public, including Australians based in Israel, of overseas performers who were planning to tour Israel by harassing performers who have announced concert dates9 and Israeli cultural groups which tour other countries.10 It is difficult to see how depriving Israeli fans of a particular non- Israeli singer of the ability to hear that singer in concert in Israel has any real political impact or message other than antisemitism. There is no evidence that such boycotts cause the victims to adopt the political messages of their persecutors and indeed one would expect the opposite to be the case.

Academic boycotts attempt to sever ties between Israeli universities (who are often leaders in their field) and local universities or prevent Israeli academics from lecturing. Not only does this damage the local institution as much, if not more than the Israeli one, but it delivers no political message other than antisemitism. Often the academics and institutions boycotted have the most left leaning “pro-Palestinian” outlook of any in Israeli society. Boycotting the Israeli’s most aligned with the BDSM’s supposed support of the Palestinian cause simply sends the anti-semitic message that all Israeli Jews are to be attacked, no matter what their political position.

Moreover, boycotts of “settlement products” harm Palestinian economic interests. The Israeli factories located in areas which the BDSM falsely considers occupied (and which was actually allocated for Jewish settlement under the binding international treaty – The Palestine Mandate 1922) employ many Palestinian workers and provide an important source of income for local Palestinian families and villages. Attempts to boycott these businesses even if “successful” in the eyes of the BDSM, will merely cause those businesses to close the factories employing Palestinians and move them to areas where they will employ only Israeli citizens or perhaps to cheaper employment markets in Asia. How exactly does replacing a Palestinian worker with an Israeli, Chinese or Indian one advance the Palestinian cause?
Thus any suggestion that a calls for economic, cultural and academic boycotts of Israeli organisations is legitimate political expression is exposed as patently false. It is instead a call for collective punishment of convenient and vulnerable Israeli targets who have nothing to do with the political issues which the persons calling for the boycott ostensibly support.

3. BDSM activity is disguised antisemitism

The real reason for all BDSM activity is disguised antisemitism.
Indeed the targeting of people or organisations for harm simply because they are Jewish is the classic definition of antisemitism.

Calling for boycotts of Israel and Israeli organisations, as practiced by the BDSM have recently been found to be anti-semitic by two of the most well respected international organisations expert in antisemitism, the Anti-Defamation League (ADL) and the Simon Wiesenthal Center.
Abe Foxman, National Director of the United States ADL has published full page advertisements in US newspapers stating that “The BDS movement at its very core is anti-semitic.”11 These statements by the ADL demonstrate that calls for boycotts of Israel are not legitimate speech even in the United States, let alone countries with greater protections against harmful speech such as Australia.

The Simon Wiesenthal Center has recently published a 40 page report under the title “Boycott Divestment Sanctions (BDS) Against Israel: An Anti-Semitic, Anti-Peace Poison Pill”.12 The report states that the BDSM “presents itself as a pro-peace initiative but in reality is a thinly-veiled, anti- Israel, antisemitic ‘poison pill,’ whose goal is the demonization, delegitimization, and ultimate demise of the Jewish State.” The report demonstrates how calls to boycott organisations solely because of their connection to Israel matches Natan Sharansky’s “three Ds” test for when legitimate criticism crosses the line into antisemitism.

We also note that Prof. Lynch’s BDSM activity has been publicly supported by the notorious anti- semite and Holocaust denier Fredrick Toben, who is well known to the the Australian Human Rights Commission. A copy of Fredrick Toben’s open letter is attached to this complaint.

4. Other countries have recognised that BDSM activity breaches racial discrimination laws.

A number of European countries have successfully taken action against the BDSM on the basis of breach of racial discrimination laws and these laws application against racist BDSM activity has been upheld by the European Court of Justice.

A detailed summary of these cases is attached to the complaint as Attachment 4.

E. History of Complaint and Outcome Sought
The Israel Law Center has written to Prof. Lynch notifying him that his BDSM activity is unlawful racial discrimination and requesting that he cease this activity.
 He has refused in writing.
The correspondence between the Israel Law Center and Prof. Lynch is attached.

1 See Attachment 1 – Email from Jake Lynch dated 2 June 2010 calling for BDSM action.
2 See http://mondoweiss.net/2011/07/500-protesters-join-boycott-demo-at-max-brenner-store-in-
australia.html

3 See http://londonbds.org/tag/ahava/ & http://www.bdsmovement.net/2012/vita-drops-ahava-8745

4 See http://www.bdsmovement.net/tag/sodastream

5 See http://adelaide.apartheidweek.org/en/node/349 & http://palestinevideo.blogspot.co.il/2010/11/seacrets- dirty-secret-bds-action.html

6 See http://www.bdsmovement.net/tag/sabra & http://www.bdsmovement.net/2012/five-ways-to-effectively- support-gaza-through-boycotts-divestment-and-sanctions-10051

7 See http://www.bdsmovement.net/tag/eden-springs & http://www.bdsmovement.net/2012/five-ways-to- effectively-support-gaza-through-boycotts-divestment-and-sanctions-10051

8 See http://www.theaustralian.com.au/national-affairs/anti-israel-protest-win-inflames-jewish-hatred/story- fn59niix-1226455323454
9 See http://zazafl.wordpress.com/2012/01/01/2011-successes-of-the-cultural-boycott-of-apartheid-israel- bds/ & http://www.haaretz.com/blogs/routine-emergencies/will-alicia-keys-resist-bds-pressure-and-play-tel- aviv-israeli-fans-hope-so.premium-1.507375
10 See http://www.telegraph.co.uk/culture/music/proms/8737692/A-Proms-protest-with-a-whiff-of-Weimar- about-it.html
11 http://www.adl.org/assets/pdf/press-center/NYT-Ad.pdf
12 Boycott Divestment Sanctions (BDS) Against Israel: An Anti-Semitic, Anti-Peace Poison Pill, Dr Harold Brackman, Simon Wiesenthal Center, March 2013. http://www.wiesenthal.com/atf/cf/{54d385e6- f1b9-4e9f-8e94-890c3e6dd277}/REPORT_313.PDF

The Israel Law Center has not pursued this matter with any other agency.

The Israel Law Center wishes to have the BDSM related activity of Prof. Lynch declared to be unlawful under the Racial Discrimination Act and for Prof. Lynch to cease such activity.
Yours sincerely,

Andrew Hamilton
Solicitor,

Shurat HaDin – Israel Law Center is an organization dedicated to enforcing basic human rights through the legal system and represents victims of terrorism in courtrooms around the world. The group was founded on the model of the Alabama-based Southern Poverty Law Center – a non-profit legal center that over the last four decades has successfully confronted racist groups across the United States.