The United Nations Human Rights Council released a controversial database of 112 businesses engaged in activities associated with Israeli settlements on February 12. Although the settlements themselves have repeatedly been found to violate international law, many doubted the database would ever be released, and it has been subject to broad criticism. Israel, the United States, and others, consider the new U.N. report to be further evidence of the Council’s bias against Israel, targeting the state for criticism not endured by other countries with equally bad (or worse) policies and practices. There are also concerns that the creation of the database amounts to “blacklisting” named businesses, including some businesses, such as Israeli banks, who are legally required to support the settlements even if they might choose a different approach if given the chance. Supporters of Palestine, on the other hand, feel that the list is too limited as it names only businesses engaged in 10 specific types of business activities and thus does not list all businesses that operate in or benefit from the settlements, or that harm Palestinian rights more generally.
In this post I suggest that these controversies — and how the U.N. Office of the High Commissioner for Human Rights (OHCHR) has responded to them — point not solely to the database’s limitations, but also highlight its significance. While the report itself is an encouraging development for human rights regulations of business, I also identify one significant limitation of the report: that it does not analyze or explain the targeted businesses’ responsibilities to provide remedies to Palestinians harmed by their operations.
The Database
The database itself focuses solely on 10 enumerated types of business activities, first identified in a 2013 report by an independent fact-finding mission as posing particular threats to the human rights of Palestinians. The 10 types of business activities listed in the report can be grouped broadly into five categories: (1) supplying equipment or materials that facilitate the construction, maintenance, or expansion of the settlements or the destruction of Palestinian homes, property, and farms; (2) supplying surveillance and identification equipment for the settlements, settlement businesses, and checkpoints, including at the controversial border wall that annexes part of Palestine; (3) financially supporting the settlements, their development, expansion or maintenance, including through re-investments; (4) using or polluting natural resources, in particular land and water, or dumping waste into Palestinian villages; (5) capturing Palestinian financial and economic markets in a manner that harms Palestinians.
The U.N. Human Rights Council identified 112 businesses engaged in at least one of these activities in its report.
The database targets Israel, but it also establishes a model that can be used elsewhere. While it focuses on a narrow list of business activities, the number of businesses implicated and the breadth of their industries points to the need for all businesses to undertake comprehensive human rights due diligence reviews to ensure they respect human rights in all occupied territories. Under the U.N. Guiding Principles on Business and Human Rights (UNGPs), currently the most authoritative statement of international law as it applies to businesses’ responsibilities for human rights, all businesses are to adopt policies and practices to ensure they do not negatively affect human rights, and are to pay particular attention to their impacts on conflict-affected areas. By listing businesses whose activities raise particular concerns, but not attempting to provide a comprehensive list of all businesses that pose a risk to human rights, the database highlights the need for all businesses to conduct, in an ongoing manner, comprehensive human rights due diligence in the occupied Palestinian territories and other conflict-affected areas.
Responding to Accusations of Bias through Due Process
The Israeli settlements are illegal under international law, and businesses operating in the settlements can cause or contribute to serious human rights violations and harms. The obligation of Israel to cease settlement activities, and the responsibility of businesses to mitigate and remediate their own impacts on Palestinian human rights, are legal issues. The U.N. Human Rights Council’s request for the report, however, was the result of political deliberations and carries with it the self-interests and conveniences that contaminate most legislative acts, not just at the U.N., but in regional, domestic, and local spheres as well.
As the international community has come to understand the full extent of the settlements’ impacts on human rights, it has become easy to focus on the harms associated with the occupation of Palestine to the exclusion of other occupied and non-self-governing territories. For example, the growing recognition of the damage caused by Israeli settlements to Palestinian rights has not been accompanied by similar concerns or understanding about how Morocco’s presence in Western Sahara is affecting the Saharawi people. This is not to suggest that the situation in Palestine receives too much attention — I do not believe it does — but that the politicization of this particular occupation serves the interests of certain States, groups, and individuals (both anti- and pro-Israel), who use the perceived politicization of legal issues for their own benefit, garnering support for and deflecting criticism from their own activities.
There are three ways to respond to such acts of opportunism. The first two are dangerous choices: ignoring the reality of this politicization, which does nothing to counteract it and only encourages those who benefit from it; or leaning into the politicization, allowing the allegations of bias that come with such politicization to serve as cover for any new criticisms. The third choice is the one OHCHR made with this report: apply the law as justly and fairly as possible, and in doing so, use the situation in Palestine as an opportunity to create models that can be applied elsewhere to protect and promote human rights. As such, the report draws a firm line between the political impetus of the report and the final OHCHR document.
OHCHR adopted clear and transparent criteria, which were used to develop an initial list of 307 potential business enterprises. OHCHR then did a further screening, narrowing the list to 192 businesses. These businesses were given an opportunity to respond, and several did in a manner that led to their removal from the database. Given delays in releasing the list, OHCHR re-screened all the businesses to ensure each was still engaged in the identified activity at the time of the report’s release.
It appears that OHCHR undertook significant efforts to ensure that all businesses were afforded due process and were included in the list only based on clear evidence of their involvement in listed activities. As a result, OHCHR determined that it could not list any businesses on the basis of their alleged involvement in three of the ten categories of business activities; they found there was simply not enough evidence.
The Importance of a Limited Focus
Supporters of Palestine, on the other hand, may be frustrated that the report’s focus and process led to a limited list of particularly problematic business practices, and contains some noteworthy absences. For example, neither Heidelberg Cement — nor its local subsidiary, Hanson Israel — appear on the list despite the fact the companies have long operated the Nahal Raba quarry in the occupied West Bank. The quarry was addressed in a report I co-authored last year for the Essex Business and Human Rights Project, Norwegian People’s Aid and Fagforbundet, and was the focus of a new report this month by the NGOs Al-Haq and the Centre for Research on Multinational Corporations (SOMO). The companies will invariably consider their omission a victory for their long-standing contention that the quarry does not violate international law (a conclusion I disagree with for reasons beyond the scope of this post).
Complaints about the limited focus of the report are, however, misplaced.
The limitations in the database make it clear that it is not intended to be, and should not be, used as a substitute for appropriate human rights due diligence. All businesses have a responsibility to respect human rights in all operations. They should have policies and practices in place to ensure their activities, including through their supply chains, do not undermine the rights of Palestinians in the occupied territories. The database identifies certain activities that deserve heightened attention and demonstrates the wide range of businesses that are implicated in the human rights abuses that Palestinians endure. The limited scope, however, means that businesses cannot rely solely on the list to determine their risks and responsibilities in the occupied territories. The report clarifies the need for broad and comprehensive human rights due diligence by all businesses.
Potential Next Steps: Divestment, Remediation and/or Litigation
Some businesses — notably Sodastream, which eventually moved its factory — have defended their presence in occupied territory as providing economic opportunities to Palestinians alongside Jewish Israelis. When businesses need to leave a territory, the UNGPs indicate that they should assess and mitigate the harms caused by this move. Businesses cannot justify staying in the occupied territories because of the negative consequences of leaving, but they do need to plan their divestment with a view to mitigating the harms on Palestinian and Israeli workers.
Those who wish to take their business and human rights responsibilities seriously should consult with local NGOs to ensure a quick divestment that minimizes the harms to Israeli and Palestinian workers.
Neither the report nor the U.N. Human Rights Council’s resolution indicates any consequences for businesses appearing on the list. This is a significant omission. Businesses should be prepared for transnational civil and criminal complaints in response to the database, and may wish to proactively address their responsibility to remediate the harms they caused or contributed to. The responsibility to remediate is explicit in the UNGPs and operates independently of any state’s willingness or ability to hold businesses accountable.
Further clarification and analysis on the responsibilities of the identified businesses is still needed, particularly with regard to remediation. Hopefully, NGOs and businesses themselves will ensure the work of remediation happens soon.