Actions speak louder than words, and it is time for Unilever to freeze out Ben and Jerry’s before their own profits start to melt

Last week, the Vermont-based ice cream brand Ben & Jerry’s announced that it would be terminating its 30-year business relationship with its Israeli distributor because the Israeli licensee refused to go along with the decision to end the sale of ice cream in the “occupied Palestinian territory.”

The announcement itself was intentionally misleading, because Ben & Jerry’s is well aware that Israeli law actually forbids this kind of action (i.e., the boycott of Israeli citizens, Jewish or Arab, based on their location), and so the Israeli licensee (who, it should be noted, employs ten Palestinian workers in these areas) could not have complied with that request even if he had wanted to.

The decision also did not take place in a vacuum. It came after a years-long pressure campaign by a group of Boycott, Divestment, and Sanctions (BDS) movement activists called Vermonters for Justice in Palestine.

Why is it such a big deal?

The BDS movement operates as a coordinated and sophisticated effort to disrupt the economic and financial stability of the State of Israel, and to directly harm the economic interests of persons conducting business in and with Israel, or with people deemed too closely affiliated with the country. Activists spread dangerous lies about the Jewish state and use the threat of withdrawing financial support in an effort to coerce companies to cease or refuse to engage in business relations with Israel, its nationals, and its residents. In practice, and especially in its accompanying “cultural and academic boycotts,” the BDS movement also targets people who are Jewish or who do business with persons who are Jewish.

A least, that is how the movement’s own supporters have described it. Others might not be so charitable, and would likely point out that BDS has been a significant factor in the recent trend of anti-Semitic incidents, both globally and domestically, and that the unambiguous goal of the international BDS movement is the elimination of the State of Israel.

They might explain that the nonprofit umbrella group for US-based BDS organizations funnels money to terrorist groups that specialize in killing Jews and that call for Jewish genocide (most notably Hamas, Palestinian Islamic Jihad, and the Popular Front for the Liberation of Palestine [PFLP]).

They might highlight the inconvenient fact that more than 30 of the BDS National Committee’s leaders are themselves actual violent terrorists, including, for example, Muhammad Sawalha, a longtime Hamas operative and the former military chief of their operations in Judea and Samaria, and Leila Khaled, a senior PFLP member who hijacked not one but two commercial planes. (After she was released as part of a prisoner exchange for captured civilians, Khaled also went on to plan a terror attack on Jerusalemites in 2011, and continues to coordinate between PFLP command centers in Syria and operatives in Jerusalem, in addition to her BDS work.)

With leaders like that, it is hardly surprising that the anti-Semitism many BDS activists spout often breaks through the “nonviolent” veil, leading to people getting hurt.

An objective observer might also agree with Israeli president Isaac Herzog’s assertion, in his official response to Ben & Jerry’s announcement, that the BDS movement itself constitutes nothing less than a form of “economic terrorism.” That phrase is not mere rhetoric, but an actual term of art: Per the definition given by the Geneva Centre for Security Policy, economic terrorism can entail varied, coordinated, and sophisticated destabilizing actions taken in order to disrupt the economic and financial stability of a state or a society, for ideological or religious motives. In other words, BDS.

It is worth noting that even in today’s highly polarized society, opposition to the BDS movement is not a hyper-partisan issue: both the Republican and Democratic parties have consistently denounced BDS in their platforms. And in 2017, the governors of all fifty states signed on to a statement affirming their opposition to BDS, noting, “The goals of the BDS movement are antithetical to our values and the values of our respective states,” and reiterating that BDS’s “single-minded focus on the Jewish state raises serious questions about its motivations and intentions.”

The targeted push to have Ben & Jerry’s join the boycott intensified vociferously over the last two months, after Israel dared to defend itself from the rocket attacks of the terrorist group Hamas in May. According to the Israeli distributor, that is actually when the company made its internal decision. The fact that the corporate decision-makers eventually caved, while completely unjustifiable, is also not entirely surprising: the current chairwoman of the board is a proud anti-Zionist and loud BDS advocate who has consistently spread slanderous libels about the State of Israel, and who publicly defends acts of outright anti-Semitism. When the announcement finally broke, the official twitter account of the BDS movement proclaimed Ben & Jerry’s decision a win, celebrating the fact that after years of advocacy campaigns aimed at the company, they had finally been successful in getting them to join.

Acquiescence to the demands of such a movement speaks volumes. In this case, the statement it makes is definitionally anti-Semitic.

Why is it anti-Semitic?

In any given situation, when trying to determine if a particular decision, statement, or movement concerning Israel involves anti-Semitism, it is helpful to apply the well-known “3-D test” to the matter. The test (which formed part of the basis for the International Holocaust Remembrance Alliance definition of anti-Semitism used by dozens of countries, including the United States) involves a set of questions designed by the Israeli politician and human rights activist Natan Sharansky as a tool to distinguish between legitimate criticism of Israel on the one hand and hatred of Jews on the other. It works like this:

Classic anti-Semitism has always involved demonizing Jews by accusing them of horrible things (from deicide to blood libels, etc.); delegitimizing the Jewish collective identity (whether that identity was cast in the religious terms of the Middle Ages, the race-based approach of the 19th and 20th centuries, or the national framework of today); and the application of double standards for Jewish people (for instance, the numerous specific laws enacted against Jews throughout the various countries of their exile limiting the industries they could partake in).

Those “3 Ds” — demonization, delegitimization, and double standards — are the three main weapons that anti-Semites have typically used when making their case against Jews. Nowadays, when anti-Semites like to masquerade as “merely” anti-Zionist, the line between acceptable critique of a democratic country and thinly veiled hatred of a people may not always be as apparent — but all you have to do is ask if the proponents of a given position are making use of these three classic tools.

As Sharansky has explained, “If we watch a 3-D movie without 3-D glasses, we see a blurred, partial picture. But when we put on our 3-D glasses, everything becomes clear. And when we use the 3-D test for anti-Semitism, we can easily distinguish between legitimate criticism and anti-Semitism.”

That the BDS movement is anti-Semitic is not really debatable; activists often use classic anti-Semitic tropes to discuss the “collective Jew among the nations” as a proxy for how anti-Semites have historically talked about Jews. These include, but are not limited to: false accusations of Jewish conspiracies; blood libels; portraying Jews (not just Israelis, but caricatures of typically religious Jews) as Satanic, demonic, and evil; denying history to claim that Jews are not indigenous to Israel; denying (only) the Jewish People their right to self-determination, while at the same time calling for the elimination of the world’s only Jewish state; ethnic cleansing of the region; and/or the genocidal extermination of the millions of Jewish people who live there.

Ben & Jerry’s decision to stand with this group, against the Jewish state, is itself an affirmation of the general BDS position. Moreover, by explicitly declaring that selling ice cream in Judea and Samaria is “inconsistent with our values,” and that they “recognize the concerns shared with us by our fans and trusted partners,” Ben & Jerry’s demonizes the Jews who live in those areas by tacitly agreeing with and elevating the false and dangerous BDS narratives propagated by the Vermonters for Justice in Palestine activists who pushed for the boycott to happen.

For example, in their public statements about, and advocacy letters to, Ben & Jerry’s, the group has shamelessly lied about Israeli policies in order to make them sound racist and evil, even stooping so low as to engage in outright blood libel by pretending that Israel targets and murders Palestinian children. The communiqués also consistently refer to the Jews living in Jerusalem as colonialist occupiers, invaders, and criminals who displaced the rightful (Arab) owners of the land.

By “recognizing these concerns,” Ben & Jerry’s announcement delegitimizes the Jewish People’s claim to their ancestral homeland (and the State of Israel’s right to its own capital city) by negating the history of the region and denying the deep Jewish connection to the area — which includes, for example, the Temple Mount.

Finally, in making their statement, Ben & Jerry’s employed a blatant double standard. The company is fine selling ice cream in China, Syria, Iran, and many other human-rights-abusing countries. Only the Jewish state is worthy of their condemnation.

What happens next:

From a legal standpoint, there is a fourth D that is relevant here as well; discrimination law. The decision to align with the BDS movement is not only disgraceful, it is possibly illegal.

Engaging in BDS involves blatant discrimination on the basis of nationality and ethnicity. If you are not sure what this looks like on a practical level, consider Ben & Jerry’s announcement that it will work to “find a different arrangement” to “stay in Israel” that cuts their long-term Israeli licensee out of sales to Judea, Samaria, and Gaza. The company refused to comment when asked if their products would still be sold in Palestinian-owned stores in those areas, and while it is not clear how they intend to continue sales in Israel while boycotting Judea and Samaria (which is illegal under Israeli law), the strong implication is that if a Palestinian licensee did want to sell their ice cream in those regions, Ben and Jerry’s would allow it.

Such discriminatory business practices are deeply offensive to our national morality and contrary to public policy. That is why US anti-boycott regulations under the 1977 Export Administration Act, the Ribicoff Amendment to the 1976 Tax Reform Act, and the Trade Facilitation and Trade Enforcement Act all contain provisions that arguably prohibit such behavior, and violation of these and similar regulations can carry heavy administrative costs as well as potentially criminal penalties in state and federal courts. Already there are complaints being filed with the US Office of Anti-Boycott Compliance, and federal lawsuits are being drafted.

Boycotting Israel in a discriminatory manner also violates the fiduciary duties of loyalty and care that officers owe a corporation and its shareholders. Decision-makers are required to put the best interests of the company before their own, and to consider the impact of their decisions on the company’s bottom line. While the (ir)responsible parties here might have felt that Israel is not a large enough market to make a difference, that view is quite short-sighted. In the US alone, 35 states already have anti-BDS legislation in place that might block those states from doing business with companies that engage in discrimination against Israel.

Losing that much market share by politicizing ice cream, all in the service of a potentially illegal ideological stance, is potentially actionably bad corporate governance. In addition, because Ben & Jerry’s is a wholly owned subsidiary of the multinational conglomerate Unilever, the parent company is also held responsible for its boycott, despite its attempts to publicly distance itself from the decision. In addition to its own potential loss of state contracts, this means that, in many states, state employees’ pension funds might henceforth be barred from investment in Unilever. Officials in New York, Florida, Illinois, and Texas are already looking into removing Unilever from the companies in their pension portfolios.

Some have tried to defend Ben & Jerry’s by saying that the decision is not a full-throated endorsement of BDS, because the company only announced that they would boycott the disputed territories, and not all of Israel proper. Aside from the fact that this alone gives credence to the overarching lie of BDS, it is factually wrong for three additional reasons.

First, from a legal perspective, selective discriminatory foreign boycotts are as unlawful as complete discriminatory foreign boycotts. Second, Ben & Jerry’s independent board has publicly acknowledged that their real intent was and is to boycott all of Israel, and they are furious that Unilever unilaterally watered down the language. In a follow-up statement reacting to the unapproved change in the missive, the board even said that Unilever’s softening of their position on staying in the rest of the Jewish state was a “violation of the spirit and the letter of the acquisition agreement.”

And finally, even as it currently stands, the decision in practice only affects the Israeli licensee, who does not own any stores in those disputed territories. It discriminates against him, an Israeli citizen whose entire operation is in Israel proper, just for doing business with those places.

Unilever legally can and should overrule the Ben & Jerry’s board. As a publicly owned company, if they do allow this decision to stand, they will need to file an embarrassing corporate disclosure addressing the new material risks affecting the company, and warning investors about the potentially significant liability and cost they may need to bear in defending against litigation and enforcement actions responding to their discriminatory anti-boycott violations, on top of the likely loss of business from jurisdictions that already have anti-boycott provisions in place.

Actions speak louder than words, and it is time for Unilever to freeze out Ben and Jerry’s before their own profits start to melt.

Rabbi Dr. Moshe (Mark) Goldfeder is an international lawyer and director of the National Jewish Advocacy Center.

(Originally featured in Mishpacha, Issue 871)