As part of the UN Human Rights Council’s (HRC) obsessive fixation on Israel, in addition to the adoption of the five annual anti-Israel resolutions, it also heard at the March 2018 session, seven one-sided reports on Israel1 that were presented under Item 7, a permanent agenda item dedicated exclusively to condemning Israel.2 Thus, in that session, the HRC heard more reports on Israel than on Iran, North Korea, and Syria combined.3
One of the reports on Israel concerns a database of business enterprises involved in activities in Israeli settlements.4 The report charged that “some business enterprises have, directly and indirectly, enabled, facilitated, and profited from the construction and growth of the Israeli settlements in the Occupied Palestinian Territory,”5 The HRC requested the United Nations High Commissioner for Human Rights (UNHCHR) to produce a database of all business enterprises engaged in certain defined Israeli settlement activity.6
The parameters of the business activities to be reflected in the database were defined by paragraph 96 of the report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the rights of the Palestinian people.7 The report also required that the database be updated annually and instructed the UNHCHR to submit the data in the form of a report to the Council at its thirty-fourth session, i.e., on March 2017.8
The report was submitted on January 26, 2018, but the database itself was not included.9 According to the report, the Office of the United Nations High Commissioner for Human Rights (OHCHR) screened a total number of 206 companies. More resources were required to continue the dialogue. The OHCHR expected to provide the names of the companies in listed activities in a future update.10
The Blacklist Release
On February 12, 2020, the OHCHR released the database, which was a blacklist of 112 companies doing business “related to the Israeli settlements in the Occupied Palestinian Territory.”11 It contained 94 Israeli companies, including Israel’s major banks, and its water, railway, and telephone utilities, as well as 18 international companies such as Motorola, Airbnb, and General Mills.
The creation and publication of such a database raise some questions as to the mandate of the HRC and to the position of international law.
Discouraging companies from doing business in Israeli settlements was intended to put economic pressure on Israel to withdraw from the settlements. This measure is punitive in nature.12 Significantly, in accordance with Article 41 of the UN Charter, only the Security Council is authorized to employ measures upon Members of the UN, including “complete or partial interruption of economic relations.”13 Thus, the creation of a database aiming to pressure Israel economically is beyond the authority of the HRC.
To be sure, despite the fact that the blacklist is only a recommendation and does not have any tangible legal implication,14 it serves as a tool for the boycott movement and a resource for those seeking to attack and scapegoat Israel.15 The vast majority of the companies are Israeli,16 and they are being targeted for fostering Israeli economic activity in the territory and not restricting or damaging the Palestinian economy. Thus, for example, none of the companies falls under the following category included in the list of parameters of the business activities to be reflected in the database: “[c]aptivity of the Palestinian financial and economic markets, as well as practices that disadvantage Palestinian enterprises, including through restrictions on movement, administrative, and legal constraints.”17
Hence, it is all the more evident that the purpose of the blacklist is to single out the state of Israel. Moreover, should the HRC really be concerned with the human rights of the Palestinians, then it had to consider whether those rights were actually infringed. Yet, that was not done.18 In fact, sometimes the reality implies the converse. Some of the companies not only provide jobs, services, and goods to both Israelis and Palestinians, aiding their coexistence,19 but most Palestinians actually prefer to work for Israelis firms, where in addition to their higher salaries they are protected by the same workers’ rights as Israeli workers.20
Business Activity in the Settlements Is Not Illegal
While this submission does not analyze the status of the territories that came under Israel’s control in 1967 and the Israeli settlements there, it is to be noted that according to international law, as observed by experts and recent national European judgments, business activity in the settlements is not illegal.
James Crawford, a judge of the International Court of Justice (ICJ), wrote in 2012, before his nomination to the ICJ, an opinion, acknowledging that: “ … a private sector entity or person does not bear any international legal responsibility for aiding or assisting the unlawful settlement program nor for ensuring that the people of Palestine can exercise their right to self-determination…”21
Judicial decisions rendered in recent years by European national courts in lawsuits against Israel and third-country business in the West Bank supported the position that international law did not forbid business activity in occupied territories.22
Clearly, although the recent report released by the OHCHR does not accuse the companies of violating international law, the database is the first-ever international attempt to list corporate activities in disputed territories. Out of more than 100 territorial disputes in the world today, including Moroccan-occupied Western Sahara, Turkish-occupied Northern Cyprus, and Crimea annexed by the Russians, the UN chose only to blacklist companies “related to the Israeli settlements in the Occupied Palestinian Territory.” The HRC has never before asked such a list to scrutinize business enterprises and rightly so. The HRC cannot tell companies where or where they should not operate, and it is left for the company to decide.23
In conclusion, the Arab-Israeli conflict, including all the permanent status issues, among them settlements and borders, can only be dealt with and determined between the parties themselves, as part of direct bilateral negotiations, as agreed upon in the Oslo Accords.24 As such, any attempt of the politicized HRC to pressure Israel to make concessions beyond the negotiating table is useless. The relentless fixation on Israel does not add to the credibility of the HRC. Nor does it help to promote the Palestinians’ interests. It only undermines the prospects for peace between the Israelis and the Palestinians in sharp contrast to an agreed negotiating issue between them.
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1 A/HRC/37/2, Report of the Human Rights Council on its thirty-seventh session,178- 179, 183, https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session37/Pages/37RegularSession.aspx.
2 The HRC has a standing agenda that includes ten items. One of these items, Item 7, entitled “Human rights situation in Palestine and other occupied Arab territories” is always, at every meeting, reserved specially for condemning and criticizing Israel. Item 7 is the only agenda item that focuses on a single country- Israel. As for the rest of the world, Item 4, entitled “Human rights situations that require the Council’s attention,” is for all the other 192 states, should the situation in any of them be considered. See Michal Navoth, Israel’s Relationship with the UN Human Rights Council: Is There Hope for Change? Jerusalem Center for Public Affairs, April 6, 2014, https://jcpa.org/article/israels-relationship-un-human-rights-council/ nn. 28-31 and accompanying text.
3 There were two reports on Iran, one report on North Korea and one report on Syria, supra note 1,
4 A/HRC/37/39, Database of all business enterprises involved in the activities detailed in paragraph 96 of the report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem Report of the United Nations High Commissioner for Human Rights. 26 January, 2018, https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session37/Documents/A_HRC_37_39_EN.pdf
7 Id. For para. 96 see A/HRC/22/63 Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, U.N. Doc. A/HRC/RES/22/63 (7 February 2013), https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session31/Pages/DatabaseHRC3136.aspx
8 Supra note 5.
9 The U.N.’s Anti-Israel Blacklist: Myths & Facts on the “Settlements”, December 24, 2017, https://unwatch.org/u-n-s-anti-israel-blacklist-myths-facts-database-pursuant-human-rights-council-resolution-31-36/
10 Supra note 4.
11 A/HRC/43/71, Database of all business enterprises involved in the activities detailed in paragraph 96 of the report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem Report of the United Nations High Commissioner for Human Rights, 12 February, 2020, https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session43/Pages/ListReports.aspx, Business activities related to the occupied Syrian Golan are not included in the database. See id. n. 1.
Further analysis of the 206 business enterprises resulted in 188 business enterprises for additional consideration, of which OHCHR identified 112 for inclusion in the database. See id. arts. 21,31.
12 Supra note 9.
13 U.N. Charter art. 41, https://www.un.org/en/charter-united-nations/
14 Israel strongly condemns UNHRC Commissioner’s announcement, 12 February 2020, https://mfa.gov.il/MFA/PressRoom/2020/Pages/Israel-condemns-UNHRC-Commissioner-s-announcement-12-February-2020.aspx
15 ADL (the Anti-Defamation League), ADL Condemns UNHRC Decision to Publish “Blacklist” Database of Companies with Ties to Settlements in West Bank, February 12, 2020, https://www.adl.org/news/press-releases/adl-condemns-unhrc-decision-to-publish-blacklist-database-of-companies-with;
The Associated Press, UN List Targets Firms Linked to Israeli Settlements, n.y. times, February, 12, 2020, https://www.nytimes.com/aponline/2020/02/12/business/ap-ml-un-israel-settlements.html
16 Most of the remaining 18 are based in the United States with the remainder based in 4 European countries and one enterprise is based in Thailand. See supra note 11.
17 Id. See also Ben Cohen, Breaking down the UNHRC blacklist, February 12, 2020, https://www.jns.org/opinion/breaking-down-the-unhrc-blacklist/
18 UN Watch Press Release on UN Releases Anti-Israel Blacklist, Fueling Global Boycott, Divestment & Sanctions Campaign, February 12, 2020, https://unwatch.org/press-release-un-releases-anti-israel-blacklist-fueling-global-boycott-divestment-sanctions-campaign/
19 Jackson Richman, US lawmakers condemn UN blacklist of companies with ties to Israeli settlements, February 13, 2020, https://www.jns.org/us-lawmakers-condemn-un-blacklist-of-companies-with-ties-to-israeli-settlements/ [in the original –M.N.]; UN releases blacklist of firms with ties to Israeli settlements, February 12, 2020, https://www.jns.org/un-releases-blacklist-of-firms-with-ties-to-israeli-settlements/
20 Report: Palestinian workers prefer to work for Israeli employers, February 16, 2020, https://www.jns.org/report-palestinian-workers-prefer-to-work-for-israeli-employers/
21 James Crawford, Opinion Third Party Obligations with respect to Israeli Settlement in the Occupied Palestine Territories, 58 (24 January 2012), https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf
22 Eugene Kontorovich, Economic Dealings with Occupied Territories, 53 Colum. j. transnat’l L 584, 630, 634 (2015), SSRN: https://ssrn.com/abstract=2494964 or http://dx.doi.org/10.2139/ssrn.2494964 ; see also supra note 9. For the decision of the UK Supreme Court see Richardson v. Director of Public Prosecutions  UKSC 8, https://www.supremecourt.uk/cases/docs/uksc-2012-0198-judgment.pdf; For the decision of the French court see Tribunal de grande instance de Paris, No. 13/06023 , http://www.intjewishlawyers.org/main/files/Decision%20Sodastream%20(anglais).pdf
23 The Associated Press, supra note 15; UN releases blacklist, supra note 19; UN Watch Press Release, supra note 18.
24 Declaration of Principles on Interim Self-Government Arrangements, September 13, 1993, http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/declaration%20of%20principles.aspx; The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, September 28, 1995, http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israeli-palestinian%20interim%20agreement.aspx