The U.N.’s Anti-Israel Blacklist: Myths & Facts on the "Settlements Database"
Myths & Facts
MYTH 1: The UNHRC members who voted for the resolution and creation of this blacklist were motivated by concerns of human rights and international law.
FACT: Most of the 32 countries who voted for resolution 31/36 are non-democracies with poor records on human rights at home, and who typically vote against human rights mechanisms at the UN, including: Algeria, Bangladesh, Bolivia, Burundi, China, Congo, Côte d’Ivoire, Cuba, Ecuador, El Salvador, Ethiopia, Indonesia, Kyrgyzstan, Maldives, Morocco, Qatar, Russia, Saudi Arabia, United Arab Emirates, Venezuela and Viet Nam. On the contrary, many of those voting for the resolution did so to deflect attention from their own abuses of human rights and international law, including:
Morocco voted for the resolution even as it Illegally occupies Western Sahara since 1974.
Russia voted for the resolution even as it illegally occupies Georgian territories of Abkazia and South Ossetia since 2008 and illlegally annexed Crimea from Ukraine in 2014.
China voted for the resolution even as it deprives Tibetans’ of basic freedoms, including freedom of speech, assembly, movement, and religion and exploits Tibet’s natural resources to benefit China, not Tibet and employs forced labor to produce goods exported to the United States. According to Chinese defector Chen Guangcheng, “many of the trappings of the [Christmas] holiday” are made by Chinese prisoners forced to work 10-15 hours a day who are harshly punished for failing to meet quotas. Workers at toy factories supplying Mattel, McDonalds and Disney regularly work more than double the amount of legally permitted 2 overtime in inhuman conditions. Chinese vocational students as young as 16 are forced to work 12 hour days for months on end in factories producing computer components for global companies such as Hewlett-Packard and Apple in order to receive graduation certificates.
Qatar voted for the resolution even as it subjects 800,000 migrants in the country to build stadiums for the 2022 World Cup to modern slavery under inhumane and life-threatening working conditions. Though Qatar does not publicize information on migrant worker death, hundreds have reportedly died building stadiums for the World Cup. Qatar is ranked 5 out of 167 on the Global Slavery Index 2016.
Saudi Arabia voted for the resolution even as it causes the deaths of thousands of Yemeni civilians in bombing campaign using weapons supplied by the UK, France and the US.
Venezuela voted for the resolution even as it beats, arrests, jails and tortures peaceful protesters, dissidents, and students, and as its policies have caused mass hunger while the military controls food imports and gets rich by selling food on the black market.
MYTH 2: But at least the few democracies who voted for the resolution were motivated by objective concerns about doing business in occupied or disputed territories
FACT: Switzerland has affiliations with at least two companies doing business in occupied Western Sahara.
MYTH 3: All UNHRC members supported the blacklist, which enjoys support from an international consensus.
FACT: Fifteen UNHRC members refused to support the blacklist, including Belgium, France, Germany, Netherlands, United Kingdom. Strong objections included:
• United States: The U.S. was on a mandatory year off of the UNHRC in March 2016 when resolution 31/36 was adopted and, thus, was not eligible to vote. However, it strongly opposed the move at the time, calling it an expression of UN anti-Israel bias and stating that it was beyond the UNHRC's mandate. More recently, Nikki Haley called the database “shameful” and described it as “an ugly creation of the Human Rights Council.” State Department spokeswoman Heather Nauert said, “We have made clear our opposition regarding the creation of a database of businesses operating in Israeli settlements in the occupied territories, and we have not participated and will not participate in its creation or contribute to its content.”
• United Kingdom: UK officials strongly criticized the UNHRC for exceeding its authority in creating the blacklist, and said: “Human rights obligations are directed at states, and not individuals or businesses, who must determine their trading relationships for themselves; as such, we have no 3 plans to set up an equivalent database. Ultimately it is the decision of an individual or company whether to operate in settlements in the Occupied Palestinian Territories. The British Government neither encourages nor offers support to such activity.”
• The European Union opposed the blacklist provision and attempted unsuccessfully to persuade the Palestinians to remove that paragraph in return for EU support of the rest of the resolution. In addition, many countries refused to engage with information requests made by the UN about the blacklist, as confirmed by the High Commissioner in his Jan. 26, 2018 report.
MYTH 4: The blacklist is fully in line with EU policy to deny support to occupations and settlements anywhere in the world.
FACT: The EU has no such policy of denying support to occupations or settlements except for in the case of Israel. Indeed, with Morocco, the EU has a fishing agreement in place for which it pays €40 million annually and receives access to all of Morocco’s fishing waters, including the waters off the coast of Moroccan occupied Western Sahara. Furthermore, the EU’s foreign aid agreement with Morocco contains no condition that the millions in European aid to Morocco will not be used in Western Sahara. Similarly, with Turkey, the EU has placed no restrictions on grants to Turkey for the Horizon 2020 scientific research program to ensure monies would not reach Turkish universities operating in Turkish occupied Northern Cyprus (though such restrictions are in place on grants to Israel for the same scientific research program). In addition, the EU has not advocated for boycotts of the Turkish hydrocarbon company or Turkish universities operating in Northern Cyprus, and the EU provides direct aid of €28 million per year to the Turkish Cypriot community, including grants to students and businesses.
MYTH 5: The blacklist is merely a reporting mechanism, not a sanction. Thus, the UNHRC acted fully within its mandate in creating this database. (The Conversation, Dec. 6, 2017, Paragraph 10; Amnesty International, Nov. 30, 2017, Paragraph 7).
FACT: The goal of the database is to discourage companies from doing business in Israeli settlements, as recommended by Paragraph 117 of the UN Report on Settlements which is expressly referenced in resolution 31/36, and thereby to pressure Israel economically to withdraw from the settlements. As such, it is punitive in nature. Furthermore, at least one senior Palestinian official has expressed hope the blacklist will lead to sanctions. Significantly, under Article 41 of the UN Charter, only the Security Council has the authority to impose sanctions on a UN member state, including “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Thus, the creation of a blacklist designed to pressure Israel economically is beyond the authority of the Human Rights Council.
MYTH 6: All business activity in settlements is illegal.
FACT: As a matter of international law, business activity in “settlements” is not illegal.
• Business activity in settlements is ubiquitous. The home countries of businesses operating in other occupied territories (e.g., Western Sahara and Northern Cyprus, among others) have never tried to stop such commercial operations. Such companies often receive advice from international law experts that business in settlements does not violate international law or human rights. This is consistent with historical practice. For example, France occupied the Saar region of Germany at the end of World War II and used it to divert German coal and steel production to France.
• International treaties permit the occupying power to conduct business in occupied territories. Article 43 of the 1907 Hague Convention obligates the occupying power to “restore and ensure, as far as possible, public order and safety.” This is understood to permit the occupying power to build infrastructure including roads, sanitation, communications and security. The Fourth Geneva Convention authorizes the occupying power to do business in territory it controls and does not permit the occupied population to veto this.
• UN Legal Advisor approves business activity in settlements. In a 2002 memo on Western Sahara, the UN’s legal advisor, Hans Corell, wrote that exploitation of the natural resources of an occupied territory should only be done “for the benefit of the peoples of those [t]erritories, on their behalf or in consultation with their representatives,” but other economic activity in the territory not involving exploitation or physical removal of natural resources could be undertaken without particular approval from, or benefit to, the local population.
• UK Supreme court rules sale of settlement products does not aid international law violations. In 2014, the UK Supreme Court ruled: Selling Israeli Dead Sea products in London does not amount to aiding and abetting the unlawful transfer of Israeli settlers to occupied territory; and labeling the products as coming from the Dead Sea, Israel was not misleading. See Richardson v. Director of Public Prosecutions, 2014.
• French courts rule settlement products and settlement infrastructure not illegal. In 2013 and 2014, French courts ruled: One French court held that “Made in Israel” labeling on products produced by Soda Stream in the West Bank is not misleading and that the products and their manufacture are not illegal. See Tribunal de grande instance, No. 13/06023, 2014. Separately, the Court of Appeals of Versailles dismissed a case against French companies involved in building the Jerusalem light rail, which partially crosses the 1949 Armistice Line. The court held that the Geneva Conventions do not apply to private companies and, thus, do not ban private economic activity in settlements. It confirmed that the occupying power has a duty to administer the territory, including by creating transportation infrastructure. See France-Palestine Solidarite v. Alstom, 11/05331, 2013.
MYTH 7: The blacklist is consistent with the Israeli-Palestinian peace accords and promotes peace.
FACT: The opposite is true. The blacklist promotes violation of the treaties between Israel and the PLO known as the Oslo Accords. The Oslo Accords state that final status issues including borders, Jerusalem, refugees and settlements are to be “negotiated in the permanent status negotiations.” (Article 31, Para. 5). Thus, settlements are to be resolved through negotiations, not by unilateral actions at the UN. By favoring the Palestinian side on an issue that is supposed to be subject to bilateral negotiations, the UN weakens Israel's negotiating position and makes a final compromise more difficult to achieve.
Furthermore, under the Oslo Accords, Israel is responsible for the security of Israelis and Settlements and to protect Israelis against the threat of terrorism. (Articles 12 and 13). Therefore, any attempt by the UN to disrupt provision of, or to deprive Israel of, any type of security-related product or service, as advocated in resolution 31/36, contravenes the Oslo Accords.
MYTH 8: The blacklist respects due process for all companies that may be listed.
FACT: The criteria for inclusion in the blacklist violates due process rules and norms because it is hopelessly vague and over broad and does not provide any meaningful guidance to companies. The resolution asks “to produce a database of all business enterprises involved in the activities detailed in paragraph 96 of the afore-mentioned report [construction, surveillance, security services, utilities, banking, etc.]…” (emphasis added). The activities in paragraph 96 are deemed problematic because they “raise particular human rights violations concerns,” without specifying how or why. The Office of the High Commissioner for Human Rights merely repeats the vague and over broad language of resolution 31/36 and paragraph 96 and has not published any clear guidelines for companies setting the criteria for inclusion in the blacklist. In Part B of his January 2018 report, the High Commissioner highlights the arbitrariness of the criteria when he explains that only companies engaged in the listed activities are included even if other companies not engaged in those activities are involved in human rights violations.
MYTH 9: The blacklist is non-discriminatory.
FACT: The blacklist is overtly discriminatory as it exclusively targets the Jewish State. The creation of a database of companies doing business in Israeli settlements, while ignoring companies that do business in other occupied territories, is a form of selective prosecution against the Jewish State. Furthermore, such discrimination is contrary to the principles of “universality, impartiality, objectivity and non-selectivity” set out in General Assembly Resolution 60/251 which established the Human Rights Council.
MYTH 10: The blacklist is not anti-Israel, it is merely about creating transparency regarding companies and products for the benefit of investors and consumers. (Report of the High Commissioner, Jan. 26, 2018, Paragraph 9; Amnesty International Joint Letter, Nov. 30, 2017, Paragraph 3; Joint Letter from 8 NGOs, Nov. 8, 2017, Paragraphs 4-8).
FACT: There is no similar initiative to create a database of businesses operating in other occupied territories (e.g., Western Sahara occupied by Morocco; Northern Cyprus occupied by Turkey; Nagorno-Karabakh occupied by Armenia; Crimea occupied by Russia or any other occupied territory) or other conflict situations. If corporate transparency were the true motivating factor behind the blacklist, the blacklist would not exclusively target businesses operating in territories occupied by Israel.
MYTH 11: The blacklist is fully consistent with international human rights law.
FACT: By targeting Israel alone and ignoring businesses operating in other occupation and conflict situations, the blacklist promotes religious and national origin discrimination in violation of principles of equality and non-discrimination set forth in the UN Charter, international human rights treaties, and the UNHRC's own founding guidelines. Furthermore, the blacklist is an outgrowth of the anti-Semitic BDS movement, part of the international campaign of delegitimization directed at the Jewish State of Israel, the only democracy in the Middle East. This is a modern iteration of the boycott tactic which has been employed to discriminate against Jews throughout history.
MYTH 12: Under the UN's Guiding Principles on Business and Human Rights, businesses have a responsibility to cease doing business with Israeli settlements. (HRW, Nov. 28, 2017, Paragraphs 6-7).
FACT: The Guiding Principles on Business and Human Rights expressly envision the continued operation of businesses in areas affected by conflict. These Guiding Principles merely call on businesses to conduct due diligence to assess the human rights impact of their activities with the aim of maintaining business operations in conflict areas while ensuring appropriate steps are taken to protect human rights. Significantly, the burden to conduct due diligence is on the company itself, not some outside actor like the UN. As it relates to the laws of occupation, maintaining business in occupied territory is also consistent with (1) international treaties which authorize the occupying power to conduct business in occupied territories, particularly to ensure the "orderly government" of the territory, and (2) recent jurisprudence from France and the UK affirming that principle. The Guiding Principles suggests that a business can "consider" withdrawing from a conflict-area in the limited circumstance where the business has determined it is not able to protect human rights. Even then, the business must examine the "adverse human rights impact" of withdrawing before making a decision. In the case of the settlements, both Israelis and Palestinians may be adversely impacted by withdrawal of business from the area. The Guiding Principles do not mention or promote the creation of any type of blacklist for businesses operating in conflict-affected areas. The fact that businesses have historically operated and continue to operate in occupation contexts throughout the world, without opposition from their home countries and with advice from international law experts, demonstrates that such business activity does not in itself violate international law or human rights.
MYTH 13: The blacklist targets only companies engaged in human rights abuses of Palestinians.
FACT: As set forth in paragraph 17 of resolution 31/36, the criteria for inclusion in the blacklist is extremely broad—any business "involved in the activities detailed in paragraph 96 [of the UN report on settlements]"—and is not tied to actual human rights abuses. Thus, companies that provide essential security services for the protection of all Israelis (not just those in settlements) are on the list. Likewise, companies that provide basic infrastructure and utilities (including, transportation, sewage, electricity, waste removal, etc.) to Israeli settlements are on the list irrespective of how these companies treat or relate to Palestinians. High Commissioner Zeid Hussein himself admitted that human rights is not the driving force behind the blacklist when he said in his January 2018 report that not all companies involved in human rights violations are included on the list.
As Nikki Haley said in June 2017: "Blacklisting companies without even looking at their employment practices or their contributions to local empowerment, but rather based entirely on their location in areas of conflict is contrary to the laws of international trade and to any reasonable definition of human rights."
MYTH 14: The blacklist helps Palestinians.
FACT: The blacklist harms job prospects for West Bank Palestinians. Companies that do business in the settlements provide jobs to thousands of Palestinian employees, enabling them to support their families. These Palestinians will lose their jobs if blacklisted companies withdraw from the settlements.
MYTH 15: The UNHRC blacklist respects and preserves Israel’s inherent right to selfdefense under international law.
FACT: Article 51 of the UN Charter affirms the “inherent right of individual or collective selfdefense” for UN member states subjected to armed attacks. Terrorist attacks against Israel, whether in the form of suicide bombings, knife attacks, vehicular attacks, rocket fire or mortar shelling, all trigger this right to self-defense. Yet, a major aspect of the blacklist targets Israel’s security and self-defense infrastructure, thereby undermining its ability to protect its citizens from attack. Furthermore, by including on the blacklist companies that provide security to Israeli settlements, the UNHRC implicitly legitimizes violence and murder against Israeli civilians beyond the green line—clear violations of international law. Such attacks include the July 21, 2017 attack in which three members of the Salomon family were murdered in their home, the summer 2016 murder of 13-year-old Hallel Yaffa Ariel while she slept, the October 2015 double execution of Eitam and Naama Henkin as their four young children watched in horror, and many other similar attacks.