NGO Monitor - Analysis of the UN's Discriminatory BDS Blacklist

February 13, 2020

Executive Summary
• The UN Human Rights Council and the Office of the High Commissioner for Human Rights have joined the ranks of leading BDS groups by issuing a defamatory blacklist of 112 Israeli and foreign companies, falsely accusing them of committing human rights violations.
• The UN blacklist is antisemitic in intent and effect. By including companies central to the Israeli economy, the blacklist is squarely aimed at damaging the Israeli economy as a whole, rather than the pretextual claim of targeting “settlement activity”.
• The list was based on input from BDS groups, including Human Rights Watch. Many of the groups centrally involved receive significant funding from the EU and European governments.
• The UN has repeatedly claimed that Israel is an occupier and responsible for carrying out economic and social obligations, yet at the same time seeks to punish Israel and companies doing business with Israel for carrying out the very duties specified under the law of occupation.
• There is no international legal prohibition on conducting business activities in conflict zones, occupied territories, or settlements. Such a rule would essentially ban all economic activity in these areas.
• Moreover, much of the activity is entirely consistent with a host of Israeli-Palestinian agreements endorsed, guaranteed, and witnessed by the international community, including the UN. Many of the listed companies provide utility services (water, gas, electricity, phone) to Palestinians and even have contractual agreements directly with the Palestinian Authority.
• Blacklisting companies and accusing them of being complicit in violations based on their adherence to mutually agreed upon and internationally brokered agreements – such as the Oslo Accords – fundamentally undermines the foundations of the international legal order.
• In Jerusalem, the UN advances a discriminatory policy that companies should withdraw their services and goods from Arab neighborhoods of Jerusalem. If enacted, Palestinians would be excluded from receiving basic goods and services in their neighborhoods, while an ethnic/religious test would be created to determine who can engage in business activity.
• Given that 85 of the 112 companies included on the blacklist are also found in the BDS NGO Who Profits’ database, and based on documentation seen by NGO Monitor, it is clear that the UN relied on this and other BDS actors as its sources of information.

Introduction
After multiple delays over legal, due process, and methodological concerns, which do not seem to have been addressed, on February 12, 2020, the UN Office of the High Commissioner for Human Rights (OHCHR) published its “Database of all business enterprises” that it claims contribute to “human rights concerns.” This UN blacklist, ordered by the UN Human Rights Council (HRC), is meant to bolster BDS (boycott, divestment, and sanctions) campaigns, singling out Israel. The unique treatment of Israel in this exercise, as with many other HRC initiatives, violates the International Holocaust Remembrance Alliance (IHRA) Definition of antisemitism.

The database is aimed at economically damaging Israel and companies that are owned by Jews or do business with Jewish Israelis. In keeping with the BDS objective, 94 of the 112 companies in the blacklist are based in Israel; many Arab, European, and Asian companies that meet the criteria were excluded; and in general, large Israeli companies were included in order to maximize the economic harm to Israel’s economy as a whole.

This blacklist operates from the false premises that business in occupied territory is “illegal settlement activity” and is barred by international law. In fact, there is no such prohibition and almost every country engages in and/or facilitates business activities in settlements in situations of occupation throughout the globe. Unsurprisingly, though, the UN is only pursuing such a list regarding Israel.

A major category of listed companies are those providing consumer goods and services (food, telecommunications, transportation, gas, water) to both Palestinians and Israelis. The UN seeks to bar such companies from operating or impose discriminatory business criteria with little regard as to the human rights and economic impacts on the local population and the employees of the companies.

Pro-BDS NGOs, including Human Rights Watch, Amnesty International, and Al-Haq, have been major proponents of the UN BDS blacklist. Over the past few months, these groups, along with UNHRC dictatorships, have been intensively lobbying High Commissioner Michele Bachelet, the former socialist leader of Chile, to publish it.

Lack of Rigorous Methodology in OHCHR Blacklist Report
• The OHCHR provides no evidence whatsoever in its report, nor does it distinguish between differing levels of alleged involvement amongst the companies.
• The information contained in the report is at least six months old, if not several years out of date. According to the report, OHCHR contacted companies “between September 2017 and October 2018.” OHCHR then “re-screened all business enterprises prior to the submission of this report to confirm that the activity for which they were included in the database met the applicable standard of proof, during the relevant temporal period.” This “rescreening” supposedly took place between January 1, 2018 and August 1, 2019. However, some companies that were included on the list told NGO Monitor that they had not received any follow-up contact or notifications from OHCHR about the 2020 publication.
• The UN admits that in cases where the companies contacted did not provide additional information, “OHCHR relied on desk research to assess the information received from Member States and stakeholders” (emphasis added). Given the weak links between some companies and settlement activity, as well as the omission of multiple companies that obviously meet the criteria, the “desk research” was not professional and appears to be politically or ethnically motivated. The existing list suggests heavy reliance on pro-BDS publications from NGOs such as Who Profits and HRW.
• The UN admits that it is relying on highly attenuated and indirect links between companies to blacklist them. While the UN defines “involved” as “substantial and material business activity that had a clear and direct link to one or more of the listed activities, encompassing the following business forms…A business enterprise granting a relevant franchise or license to a franchisee or licensee engaged in a listed activity in the Occupied Palestinian Territory.” It offers no information as to how it defined “substantial” or “material”. It appears that several of the companies are several levels removed from activity alleged in the report’s accusations.
• Reflecting the UN’s sloppy work, multiple companies are included twice on the blacklist. These included Egis (#30 and #100); Hamat Group Ltd. (#105) and Lipski Installation and Sanitation Ltd. (#51), which according Who Profits appear to be the same company; and Amos Hadar Properties and Investments (#5) and Hadar Group (#104), which according to Who Profits appear to be the same company. Additionally, General Mills is included both as a US based company (#103) and as an Israeli company (#40); similarly, the Dutch company Booking.com (#17) and the American company Booking Holdings (#96) for the same alleged violations.

Analysis of the Companies Included in the Blacklist
• 85 out of 112 companies on the UN blacklist are also included in the Who Profits database. Others, such as tourism companies, have been targeted in BDS campaigns by Human Rights Watch and Amnesty International. Many of the companies on the list have rejected the campaigns of HRW and Amnesty on the basis that they are facially discriminatory and violate both international and domestic anti-discrimination laws. OHCHR completely ignored this dimension in the preparation of the blacklist.
• 94 Israeli companies are blacklisted by the UN, along with 6 American companies, 3 British companies, 3 French companies, 3 Dutch companies, 1 Thai company, and 1 company from Luxembourg (some of these companies do overlap). In keeping with the BDS objective, it is clear OHCHR targeted large Israeli companies in order to maximize the economic damage to Israel’s economy as a whole.
• 6 Israeli telecommunications companies are included for “The provision of services and utilities supporting the maintenance and existence of settlements, including transport” and/or for “The use of natural resources, in particular water and land, for business purposes” (emphasis added). This inclusion of such telecommunications companies directly violates Article 36 of the 1993 mutually agreed upon and internationally brokered agreements (aka the Oslo Accords), which emphasize that “the supply of telecommunications services in Area C to the Settlements and military locations, and the activities regarding the supply of such services, shall be under the powers and responsibilities of the Israeli side” (emphasis added).
• 5 of Israeli public transportation companies are included in the blacklist for “The provision of services and utilities supporting the maintenance and existence of settlements, including transport.” This is in direct violation of Annex III of the Israeli-Palestinian Interim Agreement (Article 38) that stipulates that “powers and responsibilities regarding Israeli public transportation to and between Israel and the Settlements and military locations shall be exercised by Israel” and that “Israeli public transportation routes from Israel to and between Settlements and military locations, and/or to other places in Israel, shall be determined by Israel” (emphasis added). In other words, the existence of and parameters of this business activity was explicitly stipulated in mutually agreed upon treaties between Israel and the Palestinians.
• 5 oil and gas companies are included for “The provision of services and utilities supporting the maintenance and existence of settlements, including transport” and “The use of natural resources, in particular water and land, for business purposes” (emphasis added). This is in direct violation of Annex IV of the Economic Protocol of the Gaza-Jericho Agreement which codifies the import of petroleum products and enables the PA to import gasoline from Jordan and/or Egypt if “they meet the average of the standards existing in the European Union countries, or the USA standards.” The PA signs contracts with Israeli companies to meet its oil and gas needs, including companies targeted by the UN blacklist.
• The blacklist includes 9 Israeli banks for “The provision of services and utilities supporting the maintenance and existence of settlements, including transport” and/or for “Banking and financial operations helping to develop, expand or maintain settlements and their activities, including loans for housing and the development of businesses.” Given that the UN includes East Jerusalem in its definition of “settlements,” and at least 5 of the above banks operate branches in East Jerusalem, the UN’s discirmination against banks by demanding that they not provide services in East Jerusalem would make it difficult for Palestinian populations to access such services.
• The Israeli water company Mekorot is included for ”The use of natural resources, in particular water and land, for business purposes” (emphasis added). The inclusion of Israel’s national water company is in direct violation of articles 55-56 of the 4th Geneva Convention, which state that the occupier, to the extent means are available, must “ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.” Such obligations include water. Additionally, Israel’s involvement in the water sector in the West Bank, supplying water to some Palestinian communities and to settlements, is entirely dictated by the 1995 Interim Agreement (Oslo II) and the PA-Israeli Joint Water Committee, which states the exact obligations of both sides. In essence, OHCHR claims providing water to Palestinians is a human rights violation. (See NGO Monitor’s report “Myths vs. Facts: NGOs and the Destructive Water Campaign Against Israel.”)
• 4 tourism companies are included in the blacklist for the alleged violation of “The provision of services and utilities supporting the maintenance and existence of settlements, including transport.” The blacklist is therefore targeting companies, inter alia, that facilitate the promotion of Jewish and Christian heritage and tourism in Jerusalem and the West Bank. In other words, the blacklist seeks to erase Jewish and Christian history from the Holy Land and is therefore antisemitic in both intent and effect. (See NGO Monitor’s reports Amnesty International’s Antisemitic Campaign against Jewish Tourism” and “Human Rights Watch’s Airbnb Campaign: Discrimination and BDS.”)
• 6 companies involved in the food industry are included in the blacklist for “The provision of services and utilities supporting the maintenance and existence of settlements, including transport” and/or “The use of natural resources, in particular water and land, for business purposes.” The inclusion of these food companies is in direct violation of articles 55-56 of the 4th Geneva Convention state that the occupier, to the extent means are available, must “ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.” Such obligations include security services, law enforcement, and the construction and maintenance of infrastructure related to roads, telecommunications, water, and health.
• By including businesses that operate in East Jerusalem, the UN blacklist is discriminatory in two directions. Specifically, the UN advances a discriminatory policy wherein Jerusalem’s Arab and Jewish populations can and should be differentiated from each other, and requires the cessation of what it deems “Israeli” economic activity in East Jerusalem. Moreover, if the companies targeted by the UN withdrew their services and goods from East Jerusalem, the end result would economically damage all of Jerusalem’s population and be discriminatory: Palestinians would be excluded from receiving basic goods and services in their neighborhoods, while an ethnic/religious test would be created to determine who can provide (i.e. that Jews cannot provide) services. It also appears that the UN considers Palestinian-owned businesses in West Jerusalem to be legal, while only Jewish or Israeli-connected businesses in East Jerusalem are considered illegal. The result is therefore religious and national origin discrimination under Israeli domestic and international human rights law.