Bahbah: The Ice Cream War: Israel vs. Ben & Jerry’s
By: Bishara A Bahba / Arab America Featured Columnist
It is incredulous to hear and read about the ongoing war between Israel and Ben & Jerry’s famous Vermont-based ice cream! Israel and many of its diehard supporters have lost their wits over Ben & Jerry’s decision to cease selling its ice cream in the “Occupied Palestinian Territory” – the Israel-occupied West Bank and East Jerusalem.
Ben & Jerry’s wrote in its announcement of July 19th that, “we believe it is inconsistent with our values for Ben & Jerry’s ice cream to be sold in the Occupied Palestinian Territory (OPT).” Sales in Israel proper will continue without interruption.
The reaction to Ben & Jerry’s decision to stop selling ice cream in the Israeli settlements in the West Bank and East Jerusalem can be described as frenetic.
Israel’s President Isaac Herzog, a left-leaning former Labor Party leader, characterized the decision as a “boycott” of Israel and as “a new sort of terrorism, economic terrorism.” A “shameful surrender to antisemitism,” tweeted centrist Foreign Minister Yair Lapid. Israel’s prime minister, Naftali Bennet, characterized Ben & Jerry’s as an “anti-Israel ice cream.” He called for rebranding the ice cream as an “antisemitic ice cream.”
Israel concurrently issued threats against Ben & Jerry’s. Prime Minister Naftali Bennet warned of “severe consequences, including legal, and it [Israel] will take strong action against any boycott directed against its citizens.”
In practical terms, Israel can do little to harm Ben & Jerry’s. Ben & Jerry’s was acquired by the conglomerate Unilever in 2000 and, as part of that acquisition agreement, Unilever agreed to recognize “the right of the brand and its independent Board to take decisions about its social mission.”
From Israel’s perspective, the severe implication of Ben & Jerry’s action is that it fundamentally rejects the presence of Israeli settlements in the West Bank and East Jerusalem or, what it termed as “Palestinian Occupied Territory.” Israel fears that other firms could follow in the path of Ben & Jerry’s. Wall Street has seen an explosive movement over the past decade in the direction of adopting socially responsible or ethical principles as a critical criterion in selecting companies to invest in. In that context, Ben & Jerry’s move to divest from any occupied territories is a plus and not a burden.
It is unambiguously clear that Ben & Jerry’s is not boycotting Israel. It has stated its intention to continue doing business with Israel without any interruption. Israel, however, retaliated by withdrawing its contract to produce ice cream. Of note here is that the founders of Ben & Jerry’s are both American Jews. Accusing them of anti-Semitism is ludicrous.
An Israeli official signaled his hope that the 35 states in the United States that have adopted laws or other measures condemning the boycott, divestment, and sanctions (BDS) movement would crackdown on the ice cream company. BDS is a Palestinian-led Boycott, Divestment, and Sanctions movement which calls upon countries, businesses, and universities to sever ties with Israel until it withdraws from all lands it occupied in 1967.
The anti-BDS laws call for divesting and restricting business with companies or individuals that support any boycott aimed at Israel and its West Bank settlements. However, recognizing Israel’s West Bank settlements as part of Israel is a foreign policy matter that only the federal government can act upon. In this regard, the 35 states have been overstepping their constitutional rights. New Jersey’s law, for example, adopted five years ago, requires that state pension funds divest from pro-boycott businesses. It would be virtually impossible to prove that Ben & Jerry’s is boycotting Israel. Not doing business in Israeli settlements is not against U.S. or Israeli laws.
In 2019, according to an ACLU document written by Brian Hauss, an Arizona federal court blocked the state from enforcing its anti-boycott law. It ruled that the law which requires government contractors to certify that they are not participating in boycotts of Israel or Israeli settlements in the West Bank – violates the First Amendment. Instead of defending the law in the appeals’ court which Arizona and other states would lose, Arizona amended its anti-boycott law “in a transparent attempt to avoid another loss in court.”
The new law significantly limits the anti-boycott certification to only for-profit companies with more than 10 employees and government contracts worth more than $100,000.
The First Amendment to the U.S. Constitution trumps all anti-boycott laws passed by the 35 states. The consensus is that these state laws would not pass the muster of federal courts. The use of boycotts, as a form of protest, is a legal tool protected by the First Amendment. Neither Israel nor its friends can win the ice-cream war! That is a win for Ben & Jerry’s.
Prof. Bishara Bahbah was the editor-in-chief of the Jerusalem-based “Al-Fajr” newspaper between 1983-84. He was a member of the Palestinian delegation to the Peace Talks on Arms Control and Regional Security. He taught at Harvard and was the associate director of Kennedy School’s Institute for Social and Economic Policy in the Middle East.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the position of Arab America.
The reproduction of this article is permissible with proper credit to Arab America and the author.
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