Airbnb has recently found itself enmeshed in the Israeli-Palestinian conflict, facing litigation in U.S. and Israeli courts, public criticism from activists across the political spectrum, and, ironically, boycotts by governments intending to deter boycotts of Israel. With millions of rentals worldwide, Airbnb has extended its business into disputed and occupied territories. Last November, it announced that it planned to remove some listings in such territories. But under the terms of two recent court settlements, Airbnb will continue to offer rentals in Israeli settlements in occupied Palestinian territories. That reversal reflects a tortured compromise that raises potentially novel questions within the humanitarian and human rights communities.

This article considers the context in which Airbnb first decided it should cease operating in Israeli settlements in the West Bank, the pressures on the company to reverse course, and where Airbnb’s policy ultimately landed.

Pressure on Airbnb to Delist West Bank Settlement Properties 

In November 2018, Airbnb announced a new “framework for evaluating how [the company] should treat listings in occupied territories,” which it said would require removing rental properties in Israeli-controlled settlements in the West Bank. Airbnb said listings in East Jerusalem and the Golan Heights would not be affected by its new policy, though it did not explain its analysis for those areas. The company noted it had previously delisted properties in another contested region, Crimea, in accordance with international sanctions. Since then, Airbnb has said it also would consider applying its new framework to rentals in other disputed regions such as Western Sahara, and that it had done so for South Ossetia and Abkhazia. (Airbnb also faced criticism for preserving listings in Nagorno-Karabakh, Northern Cyprus, Tibet, and more.)

Airbnb’s decision to delist Israeli West Bank settlement properties had followed years of analysis and activism by international organizations related to the impact of business on human rights. The United Nations Special Rapporteur on human rights in the occupied Palestinian territories has long criticized businesses operating in and profiting from Israeli settlements, and the U.N. Human Rights Council recently produced a database of companies that “have, directly and indirectly, enabled, facilitated and profited from the construction and growth of the settlements.” The Council’s report noted that “violations of human rights associated with the settlements are pervasive and devastating, reaching every facet of Palestinian life.” Human Rights Watch (HRW), which takes no position on the boycott, divestment, and sanctions (BDS) movement, has conducted research that concludes that businesses cannot operate in West Bank settlements without contributing to human rights violations.

HRW was joined by Investor Alliance for Human Rights, Kerem Navot, and other groups in encouraging companies like Airbnb to withdraw from the settlements. A group of organizations called the Stolen Homes Coalition also campaigned for Airbnb to remove settlement properties from its platform. A crowdsourced petition gathered over 193,000 signatures demanding that Airbnb delist settlement properties, and the company faced protests at its Ireland headquarters and in other cities.

On the day before HRW released an exposé last November entitled Bed and Breakfast on Stolen Land, which criticized Airbnb and its competitor for listing properties in the Israeli settlements, Airbnb announced its new disputed territories policy and its consequent decision to remove approximately 200 listings in West Bank settlements. Airbnb did not endorse the findings of HRW or other groups, although it said it had consulted “various experts” in developing its new framework and assessing settlement listings. The company emphasized that it was “not boycotting Israel” and would continue to operate in the country.

“Airbnb does not support the BDS movement, any boycott of Israel, or any boycott of Israeli companies,” the company said in the statement.

HRW published its report anyway, saying the settlements were “unlawful under international humanitarian law.” But it also praised Airbnb’s decision as “a positive step that other global tourism companies should follow.” In part due to his work in this effort, HRW Director for Israel and Palestine, Omar Shakir, has been ordered to depart Israel under a law barring foreigners who have advocated for boycotting Israel from entering the country. The Israeli court where Mr. Shakir and HRW challenged the decision to revoke his visa ruled that “Israel’s anti-boycott law does not distinguish between boycotts directed at Israel and those directed at only West Bank settlements.” according to HRW. Mr. Shakir’s deportation case was scheduled to be decided on July 25, but Israel’s Supreme Court announced the day before that it would delay the hearing until September to give the Israeli government time to address filings by Amnesty International and former Israeli envoys in support of Mr. Shakir’s appeal.

The activists and legal scholars who had advocated for Airbnb to stop doing business in the territories applauded its decision to remove the listings, with HRW hailing it as a “stand against discrimination, displacement, and land theft.”

But what Airbnb seemed to see as an expression of neutrality in an infamously intractable conflict was received by others – from Jerusalem to San Francisco – as a gross injustice. While it is difficult to know how various factors swayed decisionmakers at Airbnb, it’s worth noting the ways in which pro-settlement activists mobilized to motivate Airbnb’s April 9 reversal.

Pressures on Airbnb to Reverse its Delisting Decision

The Israeli government responded firmly in the days following Airbnb’s November 2018 announcement. Strategic Affairs Minister Gilad Erdan decried the decision as “discriminatory and racist,” called on supporters of Israel to boycott Airbnb, and threatened Israeli government retaliation against the company. He called for U.S. states with anti-BDS laws to enforce them against Airbnb. Tourism Minister Yariv Levin echoed those comments, saying “We are going to restrict the ability of Airbnb to work here. If you have a policy of discrimination against Israelis, you cannot earn money here in Israel. We’ll probably put a very high tax here in Israel on the activity of Airbnb.” Justice Minister Ayelet Shaked looked to bring charges against Airbnb.

Despite the pains Airbnb took to distance itself from the BDS movement in its November statement and to note that “major US-based multinational hotel chains also do not offer accommodations in these areas,” Erdan said that, for Israel, “there is no distinction between [boycotting] this part or that part of the State of Israel.”

Anti-BDS laws in 17 U.S. states explicitly incorporate boycotts of the occupied territories in the definition of BDS activities. Some anti-BDS laws are being challenged under the First Amendment as interpreted by NAACP v. Claiborne Hardware, in which the Supreme Court located boycotts among the peaceful political activities “resting on the highest rung of the hierarchy of First Amendment values.” But a number of states have moved to implement anti-BDS laws, including Texas, whose comptroller’s office in March “blacklisted” Airbnb for state contracts and investment. A federal judge for the Western District of Texas has since ordered an injunction prohibiting enforcement of the Texas law.

Among other efforts to impose public relations consequences on Airbnb for its policy on listings in West Bank settlements, Vice President Mike Pence criticized the company’s decision, and the Orthodox Rabbi Shmuley Boteach’s World Values Network took out a full-page ad in the Washington Post reading “Airbnb says ‘Belong Anywhere’ . . . unless you’re a Jew.”

Beyond public criticism, the company faced a series of legal challenges in Israeli and American courts. The owner of an Airbnb-listed property in the Kida outpost deep in the West Bank filed a class action in the District Court of Jerusalem, which the plaintiff’s counsel expected some 200 other settlement property owners would join. The company was also sued in California and in Delaware, where Palestinians intervened to challenge Israeli settlers in a U.S. court for the first time.

In December 2018, Airbnb senior staff met with Tourism Minister Yariv Levin in Jerusalem. Airbnb then said it would suspend implementation of its new policy pending further discussions with the Israeli government.

Airbnb’s Unusual Compromise

Airbnb settled the two federal suits in California and Delaware on April 8, announcing the following day that it would not delist properties in Israeli settlements in the West Bank. Instead, Airbnb will retain those 200 listings but donate any profits from those as well as any other listings in the West Bank to humanitarian organizations serving unspecified areas around the globe. Airbnb did not explain its decision to include Palestinian-owned listings in the West Bank in its reformulated policy.

If Airbnb’s decision to withdraw from the settlements was intended to indicate neutrality on the question of those properties, its decision to preserve settlement listings while donating all West Bank profits seems to reflect an understanding that the entire area from the Green Line to the Jordan River is in dispute.

With this, Airbnb was able to stem the tide of negative publicity and settle several outstanding lawsuits ahead of its initial public offering, which is expected as early as this year. But though this outcome may have been a win for Airbnb, its reversal is a loss for an important and nuanced argument. Airbnb’s decision indicates that, despite legal justifications that exist for businesses to decline to support the settlements, there is little, if any, space for companies and individuals to be friends of Israel without accepting – and advancing – its settlement enterprise.

Airbnb’s Occupation-Donation Policy

Airbnb’s decision to donate these profits also raises questions, especially for organizations that might be offered some of those proceeds. According to Airbnb’s own analysis in November, when it first announced its decision to remove properties in the West Bank, those listings are “at the core of the dispute between Israelis and Palestinians.”

To be sure, other companies have policies and practices of making donations to offset, for example, environmental impacts or to compensate for perceived or actual harm. Airbnb itself answered unease in New York City about its effect on the availability of affordable housing and its contribution to the homelessness crisis with a $10 million offer to a group of local nonprofits working to ameliorate those problems.

But organizations considering accepting donations from Airbnb likely now will have to consider the company’s own November conclusions in determining whether the funding meets the standards set in their due diligence or gift-acceptance policies. The World Health Organization, for example, categorically rejects donations from businesses in the weapons and tobacco industries and applies heightened scrutiny to potential donors operating in industries associated with negative health impacts. Likewise, the humanitarian aid organization Doctors Without Borders (MSF) refuses donations from companies whose activities conflict with the goals of its humanitarian work or might limit the efficacy of humanitarian aid interventions. In recent years, organizations and institutions have cited moral grounds in rejecting donations from, for example, the Sackler family, connected to the opioid drug manufacturer Purdue Pharma, and the Daughters of the Confederacy.

Airbnb’s new policy to donate profits from an ongoing business practice it has deemed problematic may be unprecedented in the long history of corporate donations in the United States. Preliminary research, including consultation with more than a dozen practitioners and academics specializing in business ethics, corporate social responsibility, and business and human rights, has found no comparable case in which a company deemed a practice harmful, but chose to maintain it while donating the proceeds on a continuing basis. Unlike donations or compensation paid to make up for past wrongdoing, such a policy seems to acknowledge persistent present and future harm.

Adding to the potential complexity, Airbnb has not indicated it will distinguish the proceeds from occupied territories from other revenue to be donated. If it does not commit to such a distinction, potential recipients will have to consider whether all of Airbnb’s prospective contributions are tainted.

Airbnb’s decision to review its operations in disputed territories is praiseworthy. But its original conclusion hews far closer to international human rights norms than the tortured compromise it has since offered.

(Note: As a student attorney in the Stanford Human Rights and Conflict Resolution Clinic, Amanda McCaffrey is working on projects in coordination with the Center for Constitutional Rights, which represents intervenors in one of the two cases settled in April. The Palestinian intervenors moved to continue their claims under international and domestic law despite the settlement. The views expressed here are the author’s own and not those of the Clinic or Stanford University.)

IMAGE: Nati Rom, the founder of Israel’s Lev Haolam organization, which is active against the Palestinian-led boycott movement, walks next to an Airbnb apartment located in the Esh Kodesh outpost near the Jewish settlement of Shilo in the occupied West Bank on Nov. 20, 2018. (Photo by MENAHEM KAHANA/AFP/Getty Images)