The long arm of the law
Behind the scenes as New Jersey implements anti-BDS legislation
On the eighth day of Chanukah last year, at a menorah lighting ceremony in his office in Trenton, then-Governor Chris Christie attacked the anti-Israel Boycott, Divestment, and Sanctions movement.
“This is an absolute fraud and another way to perpetuate anti-Semitism,” he said.
Mr. Christie boasted that New Jersey’s anti-BDS law, which he signed in August 2016, is “the strictest such law in the country.”
And he announced that “in the last two weeks” the law had borne fruit. The state treasurer divested the state investment fund from the Copenhagen-based Danske Bank “because we believe they’re participating in the BDS movement.”
“We want folks to know we don’t put up with that,” Mr. Christie said.
The decision to divest from Danske Bank — the first made under the state’s anti-BDS law — followed a lobbying campaign by the New Jersey State Association of Jewish Federations. The campaign includes letters from Jacob Toporek, the association’s executive director, to the director of the state division of investment, which is in the state’s treasury department. It also included Mr. Toporek’s appearance before the State Investment Council.
Only one thing cast a shadow on the Chanukah-style victory against a delegitimator of Israel: Danske Bank doesn’t actually boycott Israel.
“Danske Bank does not boycott Israel or Israeli companies as such, and we do not take part in the so-called BDS-campaign targeting Israel,” Kenni Leth, the bank’s press officer, wrote in an email. “In fact, Danske Bank is doing business with a number of Israeli banks and businesses and has done so for several years.”
Under New Jersey law, however, that doesn’t appear to matter. That detail in the law’s wording is part of what makes it the strictest in the nation, at least regarding state investment decisions. (In some states, anti-BDS laws reach beyond state investment decisions. In Kansas, a law requires that all state contractors assert that they do not personally boycott Israel or Israel-controlled territories — a reference to West Bank settlements. That law was blocked on First Amendment grounds last month, after the state’s Department of Education refused to hire a teacher who subscribed to the Mennonite Church call to avoid “the purchase of products associated with acts of violence or policies of military occupation, including items produced in settlements.”)
Danske Bank does have a list of companies that it will not invest in. The list is based on its social responsibility investing policy, with the actual research outsourced to ISS-Ethix, a division of Institutional Share Services. (Ironically, ISS-Ethix also researches the anti-BDS divestment list for New Jersey and other states.)
There are two Israeli companies among the 25 in which Danske Bank will not invest.
Others on the list include such well-known American military contractors as General Dynamics and Lockheed Martin Corp. Both companies are on the list because they are “involved in production of nuclear weapons.” Lockheed Martin also is cited for being “involved in production of anti-personnel mines and cluster munitions, which is prohibited under international conventions.”
Opponents of cluster bombs argue that their use leads to unexploded ordnance, which then kills civilians after the conflict ends. One hundred and two countries, including Denmark, but not the United States or Israel, have signed a convention outlawing those weapons. The Israeli firm Aryt Industries also appears on the Danske Bank blacklist for its involvement in those weapons.
Does Danske Bank’s policy of divesting from Aryt constitute participation with the global BDS movement, which calls for divestment from all Israeli companies?
New Jersey’s law bans state investment in “any company that boycotts the goods, products, or businesses of Israel, boycotts those doing business with Israel, or boycotts companies operating in Israel or Israeli-controlled territory.”
That sentence does not look at a company’s motives.
Mr. Toporek made that point in a July letter to Chris McDonough, director of the investment division of New Jersey’s treasury. The letter challenged McDonough’s decision not to divest from Danske Bank. McDonough had argued, in part, that in not divesting from Danske Bank, New Jersey was following the leads of Florida and Illinois, which had ruled that the bank did not boycott Israel.
Mr. Toporek argued that those state policies did not apply to New Jersey, because they banned only boycotts that were politically motivated or discriminatory.
“New Jersey’s law, on the other hand, is without any qualification,” he wrote.
Eventually, Mr. McDonough passed the question on to the state attorney general. Mr. Toporek doesn’t know what the attorney general said, but he believes that he validated his interpretation of the law and thereby led to Mr. McDonough’s decision, which was heralded by Governor Christie.
But while Danske Bank could have been booted from New Jersey’s portfolio for its beef with Aryt, that decision alone is probably not what brought the bank under the state’s scrutiny.
Credit for that likely is due to the second Israeli company on Danske Bank’s list of excluded companies. That is Elbit. Danske says on its website that Elbit was excluded because it is “involved in supplying electronic equipment in conflict with human rights norms.” Elbit, however, has been a focus of BDS activists since at least 2009, when the Norwegian State Pension Fund sold its shares in the Israeli company. The BDS activists targeted Elbit for its involvement in the construction of Israel’s west bank separation wall.
“We do not wish to fund companies that so directly contribute to violations of international humanitarian law,” Norway’s Minister of Finance Kristin Halvorsen explained.
In 2010, Danske Bank followed suit and divested from Elbit.
In a statement on its website, dated 2013 but since removed — but preserved by the internet archive — Danske Bank explained that “the occupied Palestinian territories” was one of the places where it monitored investments.
“The Israeli settlements in the occupied Palestinian territories have been criticised by the UN, the EU and the Nordic governments,” the webpage said. “According to standard international law, the settlements are considered illegal and hindrance to achieving peace.
“Companies’ activities related to these settlements are therefore controversial and in some cases represent a violation of international conventions and guidelines. Whether there is a violation depends on an evaluation of the individual companies’ actual activities.”
Danske Bank first was brought to New Jersey’s attention by the Israeli-American Coalition For Action, the advocacy arm of the Israeli American Council. The IAC is an organization for Israeli Americans whose budget has grown to a quarter of Anti-Defamation League’s in 10 years, with major help from Republican billionaire Sheldon Adelson. Mr. Adelson has positioned the IAC as a to-the-right-of-AIPAC pro-Israel organization.
After its initial presentation to the state, IAC reached out to Mr. Toporek’s organization to follow up.
In the end, the IAC heralded the New Jersey divestment decision as “a major victory” for its “new and unique initiative, working closely with state and local governments to ensure that anti-BDS legislation is implemented efficiently and effectively once it is signed into law.”
For his part, Mr. Toporek said the anti-boycott legislation was important for New Jersey.
“It’s basically an anti-discrimination piece of legislation,” he said. “It’s good for the state because it allows free trading relationships that are in the best interest of New Jersey.”
comments