UN human rights chief Michelle Bachelet allowed her office to be instrumentalized by the discriminatory BDS movement whose goal is to demonize and delegitimize Israel when she released an unprecedented list of companies doing business with Israeli settlements last month. On February 12, 2020, the Office of the High Commissioner published the anti-Israel blacklist, listing 112 companies, 94 of which are Israeli, as violators of human rights due to their business activities with Israeli settlements. The blacklist itself is deficient on numerous grounds, including lack of transparency, lack of due process, and failure to consider the companies’ actual human rights records.
The report acknowledged that the list was not based on a “judicial or quasi-judicial process” and that it was not making a “legal characterization” about the companies’ activities. Thus, the High Commissioner’s office which produced the list effectively admitted that the UNHRC had been co-opted by the anti-Israel BDS movement to create a politicized blacklist that has no legal value. The obvious goal of the blacklist is to harm the companies on the list by encouraging boycotts.
Below are UN Watch’s main criticisms of the blacklist.
UNHRC Blacklist rewards Palestinian rejectionism
The blacklist is described as a “database of all business enterprises involved in certain specified activities related to the Israeli settlements in” Judea and Samaria, which includes the Old City of Jerusalem. It completely denies Jewish rights to these disputed territories and ignores the rich Jewish history in these areas and the numerous Jewish holy sites dating back to biblical times. Judea and Samaria, referred to by the UN as “Occupied Palestinian Territory,” are actually disputed territories under international law, to which both Israel and the Palestinians assert rights. Yet, through a torrent of non-binding, politicized resolutions, the UNHRC has unilaterally awarded the entirety of this territory to the Palestinians and has now joined hands with the antisemitic BDS movement to place companies that do business with Jewish communities there on a blacklist with the ultimate aim of forcing the Jews out of these territories. Thus, the UNHRC rewards the Palestinians’ rejectionist tactics which seek to achieve maximum gains with zero compromise through their campaign to delegitimize and demonize Israel in the international arena, rather than pursuing direct negotiations which would necessarily involve concessions on both sides.
UNHRC Blacklist applies different rule to Jews than to Palestinians or to any other ethnic or religious group involved in a territorial dispute
According to the UNHRC, any company that facilitates Jews living in these areas will now find itself listed on a UN blacklist telling the world to be ware – this company may be violating human rights. According to the UN, Jews residing in these disputed areas are not entitled to basic services like transportation, banking, telephone, food, etc. Likewise, Jews in these disputed territories are not entitled to personal security because any company that provides security services or equipment to Jewish communities will find itself on the blacklist. Of course, the blacklist does not take into consideration whether the companies on the list are also providing their services to Palestinians. Furthermore, companies that support Palestinian terrorism and rejection of Jewish rights in Israel are not on any blacklist. By creating one rule that applies only to Jews living in these disputed territories and a different rule for Palestinians, the UN is engaging in blatant discrimination based on national and ethnic origin. Moreover, the UN does not apply such discriminatory rules to any other national, ethnic or religious group anywhere in the world. It has no issue with ethnic Chinese settling in Tibet, Turks moving into Northern Cyprus or now being settled in Kurdish territory in Syria, Moroccans in Western Sahara or any other similar situation.
UNHRC Blacklist not about human rights, but about “business enterprise” “involvement” in “listed activities”
The determination as to whether the company is listed on this unprecedented blacklist has nothing to do with the company’s actual record on human rights. Violation of human rights is not a factor for inclusion on the list and the report gives no consideration to how the human rights of either Palestinians or Israelis will actually be impacted if these businesses cease their operations. Indeed, the list is compiled solely based on whether the company is “involved” in a pre-set list of activities set forth in an anti-Israel UNHRC report on Israeli settlements (A/HRC/22/63). That report provides no explanation for how it came up with the listed activities or how these activities violate human rights. In addition, the report employs ambiguous, non-legal terms with vague and imprecise definitions which provide insufficient guidance to businesses. For example, the term “involved” is defined as “substantial and material business activity that had a clear and direct link to one or more of the listed activities.” However, the terms in the definition: “substantial and material” and “clear and direct link” are equally vague. How much is “substantial and material”? and what constitutes a “link”? There is no explanation in the report for how the UN human rights office came up with the list, which is comprised of mostly Jewish-owned Israeli companies.
Significantly, none of the activities in the report are illegal under international law. Indeed, the UN’s Guiding Principles for Business and Human Rights nowhere state that businesses are prohibited from operating in conflict areas and does not provide a list of business activities in conflict situations that would violate international law. According to the Guiding Principles, decisions about whether a company should or should not conduct business in conflict areas are left for companies to decide internally based on their own corporate social responsibility policies.
UNHRC Blacklist not product of “judicial or quasi-judicial process” and not a “legal characterization”
The UN High Commissioner for Human Rights acknowledged (Para. 19) that the decision of which companies to include in the blacklist did not result from a “judicial or quasi-judicial process of any kind.” This is an admission that the High Commissioner’s office is not a court, does not have rules of evidence and did not apply a set of universally recognized laws. The High Commissioner further added that the blacklist is not a “legal characterization of the listed activities or business enterprises’ involvement therein.” Therefore, from the perspective of the database’s author, the database itself is nothing more than a technical exercise to fulfill a mandate in a UNHRC resolution and has no legal value whatsoever. Clearly then, the endeavor is purely political. Thus, it is not surprising that despite the High Commissioner’s qualification that the list says nothing about the legality of the business activity, Palestinians have already announced that it should be used as a lawfare tool to pursue legal action against these companies (see, e.g., here, here, here, here).
UNHRC Blacklist claims “procedural fairness,” but does not detail sources
While the Office of the High Commissioner claims it provided “procedural fairness” through its direct contact “with all screened business enterprises, in consultation with the Working Group on the issue of human rights and transnational corporations” (Para. 20), it does not provide any details about its sources or the substance of its consultations with the Working Group. For example, the report states that the blacklist was compiled “following a transmittal of Notes verbales to States, an open invitation for submissions and its own research,” but does not identify the parties that supplied it with information or explain which sources it relied on for its own research or how it conducted fact gathering. This is crucial information that would enable readers to evaluate the credibility of the blacklist. A major flaw in the process is that the Office of the High Commissioner acted as both the prosecutor and the judge, i.e., identifying the target companies, collecting the evidence and then deciding based on that evidence whether the companies ultimately should be included or not. Furthermore, the High Commissioner’s office ignored material provided by targeted companies explaining how their business activities comply with their human rights obligations. As one security company included on the list tweeted, the High Commissioner’s office completely disregarded the information it provided about how it protects innocent people from violence and terrorism without regard to ethnicity, religion or nationality.
Office of High Commissioner asks for more UN resources to continue the work
The High Commissioner could have acknowledged the discriminatory nature of the blacklist and ended matters with this report by saying that her office has now fulfilled its mandate pursuant to resolution 31/36 and requesting the mandate to be discontinued. Instead, however, she called for more UN resources to by diverted to this discriminatory endeavor by noting in paragraph 33 that resolution 31/36 “contemplated that the database be updated annually” and recommending that the Human Rights Council “establish a group of independent experts” to continue the work. On a positive note, at least she recommended that the experts be given a “time-bound” mandate, so that at least this endeavor will have an end, unlike other UNHRC anti-Israel initiatives which last forever.