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mishpacha.com

Israel’s new anti-BDS legislation faces a big inaugural test as Israel supporters scramble to reverse the BDS movement’s first significant victory: persuading home-rental giant Airbnb to delist about 200 rentals in Jewish settlements in the West Bank.

Airbnb is being hauled into court by the affected Jewish property owners — and, in a twist, the left-wing NGO that advised Airbnb has also been named as a defendant in the suit.

A few days after the Airbnb announcement, the Ramat Gan–based law firm Yossi Levy and Partners announced that it had filed a class-action lawsuit in Jerusalem District Court on behalf of Maanit Rabinovitch, a resident of Kida in the West Bank and an Airbnb host.

The case hinges on a twofold charge of discrimination: First, that Airbnb’s move resulted in breach of contract with the 200 rentals that will be removed. Second, and more potently, a 2017 amendment to Israel’s law against discrimination in products and services explicitly forbids discrimination based on place of residence. This was enacted to prevent a distinction between places over the Green Line and those within it — clearly aimed at the BDS movement.

A potentially precedent-setting aspect of the case is that not only Airbnb is being sued; a left-wing Israeli NGO called Kerem Navot, which advised Airbnb to delist the West Bank homes, is also named as a defendant. A lawyer from Yossi Levy and Partners spoke off the record about how this works.

“Israeli tort law, based on the English law, says that if you advise someone to commit a misdeed, that makes you liable for their actions,” explained the source. “This is the first time that a BDS organization is being sued for breach of Article 12 of [Israel’s] nondiscrimination law.”

A government source told Mishpacha that the Airbnb announcement came as a surprise to Israeli authorities. But Airbnb’s status as a star of the new digital economy means that it is a significant — if still local — victory for the BDS movement. Airbnb’s move triggered a strong pushback from the Israeli government and Israel supporters in the US.

Strategic Affairs Minister Gilad Erdan, whose ministry is tasked with combating the BDS threat, responded by calling for a boycott of the company: “I call today on all those who support Israel and oppose discriminatory boycotts: They should cease using Airbnb and turn to other services.”

In a statement, Airbnb acknowledged that US law did not obligate it to take this step. Nevertheless, the company wrote, “Israeli settlements in the occupied West Bank are at the core of the dispute between Israelis and Palestinians.”

But Eugene Kontorovich, director of the Kohelet Policy Forum in Jerusalem and a professor of law at George Mason University, called the decision “nakedly anti-Jewish.” He noted that the company’s policy on the West Bank was a one-way street: “Moshe can’t host someone in Beitar through Airbnb because it is disputed territory, but a few hundred meters away, Mahmud can do so in Husan.”

For Airbnb, the West Bank seems to be in a special category of its own. “Airbnb rents in Myanmar and North Cyprus, despite the ongoing Turkish occupation there,” Kontorovich points out. “There is a dispute over the West Bank, so why does their policy only apply to Jews?”

And the class-action suit filed in the Jerusalem District Court makes this point explicitly: “From Airbnb’s point of view it’s possible to rent homes in regions where tens of thousands of people have been expelled from their homes. The only prohibited thing is to be a settler in the State of Israel.”

But to have any hope of forcing the Silicon Valley giant to back down, this suit in Israel is not enough. The Airbnb statement lists 20,000 hosts around Israel, which is small change for a global company operating in 81,000 cities. Given Airbnb’s small exposure to Israel, the only realistic chance to force the company to change direction lies in the United States.

According to Kohelet’s Eugene Kontorovich, this means two things. “A New York citizen who owns property over the Green Line can sue Airbnb in US courts for discrimination. But it also means persuading states to stop doing business with Airbnb, by forbidding state employees from using Airbnb rentals on official travel. And that can be done at the federal level as well.”

A first sign of movement in that direction was a resolution condemning the Airbnb decision passed by the city council of Beverly Hills, California. In a statement, Vice Mayor John Mirisch said that “Airbnb is not welcome in Beverly Hills as long as its policies are based on anti-Jewish double standards.”

Airbnb’s decision has put the BDS movement back in the spotlight. After years during which the Israeli government neglected the issue, leaving Israel advocacy to the nonprofit world, the effort is now headed by a well-funded ministry with a 2018 budget of $72 million.

How successful has the BDS movement been? The sale of Israeli company SodaStream to PepsiCo for $3.2 billion in August this year was seen as a defeat for BDS activists, who had targeted the company for a factory operating over the Green Line in Maaleh Adumim.

Airbnb’s decision to delist only West Bank settlements appears to be carefully calibrated. The West Bank is an international cause célèbre, while taking the same steps vis-à-vis East Jerusalem or the Golan Heights would trigger a far greater backlash than the one they’re already facing. But the fear now is that Airbnb’s high profile will set off a domino effect.

“That is why the pressure needs to come from lots of places,” says Eugene Kontorovich.

Reversing BDS’s victory will require legal pressure on both the Israeli and the American fronts, combined with commercial pressure via a boycott. The immediate response to Airbnb’s decision shows that there are now legal systems in place to fight back against anti-Israel activists and their lawfare tactics.

But the coming months will be the ultimate test of the balance of power in the BDS struggle.

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