Why the UN’s Settlement Database Doesn’t Go Far Enough
Friday, February 28, 2020 at 01:16PM Recently released list will be toothless unless countries take action to punish corporate complicity in Israel’s illegal conduct
Emily Schaefer Omer-Man. 27 February 2020 Haaretz
An Israeli bulldozer demolishes a makeshift structure near the West Bank city of Ramallah. REUTERS
The UN Human Rights Council reconvened this week to discuss world affairs, including its recently released database of businesses involved in Israeli settlements. The database was lauded by Palestinian civil society and the human rights community at large when it was published earlier this month. At the same time, it has been condemned by the governments of Israel and the United States, who had exerted tremendous pressure to suppress its publication. Last Friday, Kahol Lavan’s Yoaz Hendel denounced the list as an “ethical stain” on the United Nations, reminding Israeli voters that not even the leading opposition party will stop the de facto annexation of the West Bank from becoming permanent.
Yet these polarized responses obscure an important reality: The 112 companies listed are merely the tip of the iceberg of corporate complicity in the occupation.
The report issued by the UN High Commissioner for Human Rights comes on the heels of decades of efforts to curb Israeli settlements, whose expansion continues despite patently violating international law and the well-documented cascade of human rights violations they cause.
Similar UN reports were previously released documenting corporate complicity in systematic human rights violations in Myanmar and the Democratic Republic of Congo – all based on the principle that business actors, working alongside governments, must be held accountable nowadays when they violate international law.
The first step to stopping illegal behavior is to identify the perpetrators and their corporate accomplices. Yet, the criteria for inclusion in the database were exceedingly narrow, and as a result many of the most egregious corporate offenders are conspicuously missing.
Consider, for example, the heavy equipment industry. According to the report, the high commissioner determined that her office must read its mandate “restrictively,” such that only companies that supply equipment “for” the demolition of property are listed. This interpretation is divorced from reality, both legally and practically.
Companies in this industry do not generally specify a purpose when selling their equipment. But the question that needs to be asked is not whether a company supplies a bulldozer for demolition, but whether it is aware that its bulldozer is likely to be used in unlawful demolitions of Palestinian property and proceeds with the sale anyway.
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Perhaps this restrictive interpretation explains why corporations like Caterpillar, Volvo and CNH Industrial – whose heavy machinery has been regularly documented in home demolitions and settlement construction – were left off the list.
To be sure, the UN database was never intended to be exhaustive. The Office of the High Commissioner acknowledged in its report that the database “does not cover all business activity related to settlements, and does not extend to wider business activity in the Occupied Palestinian Territory that may raise human rights concerns.”
It also noted having excluded businesses that “communicated with OHCHR that they were no longer involved in the relevant activity,” without clarifying what steps were taken to ensure the accuracy of their claims.
A woman waving the Israeli flag speaking to a soldier in a military jeep in Hebron as a Palestinian woman walks by in the background.Ilan Assayag
These limitations are precisely why lionizing the database is dangerous. If it is misread as a complete accounting of illicit business in the occupied Palestinian territories, the hundreds of other companies contributing to the Israeli settlement industry, the extraction of natural resources and other illegal activities in the territories would be effectively absolved of responsibility. These activities have been extensively documented by, among others, the Israeli and British corporate research centers Who Profits and the EIRIS Foundation. In a statement responding to the UN database last week, Who Profits explained that it “falls short” and is “by no means … comprehensive.” The center highlighted, for example, that “the German conglomerate HeidelbergCement, which has been operating a quarry in the West Bank for over 13 years” in violation of international law, was not listed.
Even if the UN database is regularly updated and its criteria for inclusion expanded, we must be careful not to look to it as a cure for corporate complicity in the settlements. The database is merely a list – at most, a warning to the companies included in it, by a body admittedly lacking the authority to make legal determinations about their activities. It will remain a watchdog whose bark is worse than its bite unless action is taken to punish and deter corporate complicity in violations of international law in the territories.
This will require the home states of offending companies to ensure robust enforcement at home for illicit activity abroad through regulation, investigation and sanction – and, when warranted, allowing victims access to legal remedy.
Indeed, there is a growing trend to hold multinational corporations accountable in their home countries for complicity in violations abroad: In France, legislation recently passed imposing strict human rights obligations on companies operating abroad, and legal remedies for violating them; in the United Kingdom, the Supreme Court has accepted an expansive interpretation of the responsibility of parent companies for violations by their foreign subsidiaries; and in the Netherlands, a Dutch timber baron was convicted for selling arms that aided and abetted war crimes in Liberia.
Whatever the result of next week’s Israeli election, the government will continue to cement its de facto annexation of Palestinian territories. The UN database is an attempt to reverse course, but it remains incomplete and lacks teeth. The occupation will not end so long as the overwhelming majority of countries condemn Israeli settlements as illegal, yet allow their own corporations to prop them up with impunity.
Emily Schaeffer Omer-Man is an Israeli human rights lawyer and litigator specializing in violations of international law committed by state and corporate actors in the Palestinian territories.