On April 27, 2020, Al-Haq (Ramallah) and Global Legal Action Network (GLAN, Ireland) published, “Business and Human Rights in Occupied Territory: A Guidance for Upholding Human Rights.” This report, “submitted to the UN Working Group on Business and Human Rights,” purports to examine “what steps businesses should take in their due diligence processes to mitigate and prevent abuses” in occupied territories, using case studies on the Crimean, Western Saharan, and Palestinian situations.
On the surface, this publication, which was funded by the Catalan Regional government, is an aberration for Al-Haq and GLAN. Both are active in anti-Israel BDS campaigns – in particular for Al-Haq, in UN Business and Human Rights frameworks where it retains undue influence – yet the document does not appear to explicitly call for BDS measures against or single out Israel.
However, a careful reading exposes the BDS agenda. Al-Haq and GLAN present a prejudicial account of business activity in the West Bank and implicitly demand that States impose sanctions on Israel. Moreover, the NGOs distort basic business and human rights principles in recommending that companies discard due diligence in specific cases of occupation (as discussed below).
This conclusion is confirmed by a follow-up report, “Atarot Settlement: The Industrial Key in Israel’s Plan to Permanently Erase Palestine,” written by Al-Haq and funded through the same channel. In the recommendations section, “Al-Haq calls on Third States to” ban settlement products, ban companies from operating in the West Bank, and support an ICC investigation against Israel.
By obscuring their goals, Al-Haq and GLAN are attempting to mainstream BDS against Israel in a UN framework that has, to a certain extent, resisted incorporating a BDS agenda (in contrast to the UN Human Rights Council, Office of the High Commissioner for Human Rights, and others).
Spanish Government Funding for the Project
As further indication of a pro-BDS agenda, the report was prepared as part of a joint project coordinated by three anti-Israel Spanish NGOs – NOVACT, DESC Observatori, and SUDS – and funded by the Catalan Agency for Development Cooperation (ACCD) (p 2).
According to NOVACT’s 2018 Annual Report, the project, “Business and Human Rights in East Jerusalem: Its Special Impact on the Rights of Palestinian Women,” received €140,516 from ACCD in 2019 (of a total project cost of €175,440). It is telling that this publication – only partially about Palestinian issues, and which ignores questions of gender and only mentions Jerusalem in passing – would should be seen as relevant to this rubric. In practice, there is a major difference between the declared topic and the product. This project also funded a side event at the October 2019 UN Intergovernmental Working Group (IGWG) session on transnational corporations and other business enterprises, where Al-Haq called for “a legally binding instrument in light of corporate impunity in situations of occupation.”
Interestingly, NOVACT runs another project, “Disassembling the occupation business in Sahara and Palestine conflicts,” also implemented with SUDS, that aims to “end the occupations in Palestine and Western Sahara through research, the awareness and political advocacy” and is receiving €99,905 from Barcelona City Hall in January 2018 – November 2020. Nevertheless, Al-Haq and GLAN were contracted for the seemingly less relevant project detailed above.
The NGOs Behind the Report and Their BDS Agendas
Al-Haq is a leader in BDS and lawfare campaigns targeting Israel, with its advocacy focusing on anti-Israel activities. Al-Haq has been one of the main proponents advocating for the Human Rights Council’s discriminatory BDS Blacklist and for an International Criminal Court investigation against Israel. In 2019 Al-Haq was a signatory on a statement calling on the German Bundestag to revoke its joint resolution defining BDS campaigns against Israel as antisemitic and has advocated for the Irish “Control of Economic Activity (Occupied territories)” bill which would make it illegal for Irish citizens and residents to import or sell “settlement goods” or to provide or attempt to provide “settlement services” (see section on GLAN, below). Al-Haq’s General Director Shawan Jabarin has been linked to the Popular Front for the Liberation of Palestine (PFLP), a designated terrorist organization by the US, EU, Canada, and Israel.
The author of the report, Marya Farah, is Legal Research and Advocacy Officer at Al-Haq and has a long history of one-sided anti-Israel advocacy, including speaking on numerous panels for pro-BDS groups and alongside BDS activists. Susan Power of Al-Haq was thanked by the author for her “advice, comments, and support during the drafting process.”
Al-Haq’s funding information is not transparent, and the organization has not released financial details or donation amounts since 2009. Known donors include the European Union, Germany, Norway, Ireland, Italy, France, and Spain.
Global Legal Action Network (GLAN)
According to its website, “GLAN is an independent organisation made up of legal practitioners, investigative journalists and academics” with an objective to “work with affected communities to pursue innovative legal actions across borders to challenge powerful actors involved in human rights violations and systemic injustice.”
GLAN “led” the “drafting process” of the Irish “Control of Economic Activity (Occupied territories)” bill, acknowledging that “the Bill will apply automatically on enactment only to the Israeli occupation of Palestine.” In 2018, GLAN lobbied the Irish Seanad to push the bill, as well as to “rais[e] n Seanad of submission by GLAN of complaint to National Contact Point in respect of Irish company allegedly operating in Western Sahara.” It also lobbied in support of the UNHRC BDS Blacklist.
Valentina Azarova from GLAN’s Legal Action Committee and a longtime BDS and lawfare activist, was thanked by the author for her “advice, comments, and support during the drafting process.”
In 2018-2019, GLAN received $200,000 from the Rockefeller Brothers Fund, one of the primary funders of pro-BDS NGOs, “For its work on Israel/Palestine.”
NOVACT is a Catalan NGO, claiming that its work in the West Bank and Gaza “supports nonviolent movements fighting the occupation” and which participates “in international campaigns  to end an occupation that has already lasted 70 years” (emphasis added).
It promotes a number of political campaigns advocating for sanctions against Israel, such as “Hidden Business,” launched to “denounce the security, military and arms relations between the Spanish state and the state of Israel in order to claim the application of Spanish and European legislation on arms exports.” In August 2019, NOVACT signed an Al-Haq letter to the UN High Commissioner for Human Rights calling for the “release of the United Nations Database of Businesses Engaged in Activities Related to Israeli Settlements,” known also as the BDS Blacklist.
NOVACT other partners include the Union of the Palestinian Women Committees (UPWC), identified by Fatah as an “affiliate” and by USAID as the “women’s organization” of the PFLP. UPWC also supports BDS campaigns and utilizes inflammatory rhetoric.
In 2018, Novact received €1.8 million in public funding, with donors including the EU (EuropeAid), Generalitat of Catalonia, Autonomous community Extremadura, Metropolitan area of Barcelona, Barcelona City Hall, and Catalan Fund Cooperation and Deputation Barcelona.
SUDS (International Feminist Solidarity) is an NGO based in Catalonia that describes itself as “part of the struggle to build a model society around the world…” SUDs is active in four projects in Israel, the West Bank and Gaza that promote BDS and/or partner with groups with ties to internationally designated terrorist organizations, including Al-Haq, UPWC, and WATC. According to SUDS’ “Activity Report 2013-2018,” SUDS managed a project “Corporations and Human Rights” that deals with the “architecture of corporate impunity [in] the Occupied Territories of Palestine and Western Sahara.” The project is implemented by the PFLP-linked NGO Addameer and the pro-BDS NGO Who Profits.
A BDS Agenda
Al-Haq and GLAN portray their report as an objective analysis of businesses operating in areas of occupation, and blandly stating at the outset: “states should examine the coherence of policies related to contexts of occupation, ensure their consistency with international law, and take all necessary measures to fulfill their obligations” (p7). However, toward the end, the NGO authors propose recommendations that amount to sanctions against Israel – in a manner, as discussed below, that is incompatible with existing business and human rights norms and the due diligence model supposedly championed earlier in the report.
For instance, despite there being no prohibition whatsoever in international law against business activities in occupied territory, the authors propose, “given the prolonged nature of certain contexts of occupation, such as the Western Sahara and the OPT,” that “States should consider the utility of broad guidance to businesses and instead move towards more proactive measures. This may include establishing civil, administrative or criminal liability, or taking action as a result of non-cooperation, such as by denying access to public contracts, support, and services (p77).
Similarly, according to the report, companies are expected to establish situational boycotts, including in the Israeli context, even in the absence of illegal activity or the existence of a formal sanctions regime. Companies are urged to “Assess whether the administration of the occupied territory is in line with the requirement that occupation be temporary and evaluate the state of the rule of law in the territory” (82) and “evaluate how they may become linked with an economic structure which may serve to prolong an occupation, pursue or entrench a territory’s annexation, or uphold systemic discrimination and other serious human rights abuses” (8-9). The making of such highly abstract, indeterminate, and political determinations are well beyond the capacity of corporations, and many of these terms of reference are invented by the NGOs and are not required by international law. In addition, under the paradigm promoted by Al-Haq and GLAN, business activity in occupied territory is required in order for an “Occupying Power” to carry out its legal obligations.
Al-Haq and GLAN also quote an obscure paragraph from a 2018 “OHCHR Palestine” report – which reflected intense lobbying by Al-Haq and others – that “it would be ‘difficult to imagine a scenario’ where businesses could engage in specified activities related to the establishment, maintenance, and growth of settlements ‘in a way that is consistent with the Guiding Principles and international law’” (pg 69). However, this conclusion is not supported by the UN Guiding Principles or any other business and human rights instrument. Elsewhere, the authors cite a nonsensical claim by Amnesty International that mandatory labeling of settlement products by European countries “fell short of meeting State obligations under international law, which … required the banning of settlement products” (pp 78-79).
A close reading demonstrates the report’s anti-Israel bias in other sections, as well. The NGOs use highly prejudicial depictions of Israel-related topics – alongside distortions of business and human rights norms – in order to build their case for wide-scale sanctions against Israel.
- Al-Haq and GLAN approvingly cite BDS initiatives in Dublin, Belgium, and Jordan (pp 72-73). Although they suggest that these targeted “business enterprises that violate human rights,” in reality these involve antisemitic actors that pursue broad-based BDS motions involving “a police training facility in Israel” (fn 360) and companies and Israeli institutions supposedly “linked to the occupation” (pg 72, emphasis added).
- Al-Haq and GLAN criticize Airbnb’s reversal of a discriminatory policy of “removing listings” in “Israeli settlements in the Occupied West Bank.” The NGOs equate private accommodation listings with actions of the “Occupying Power” but in reality, the law of occupation applies to states and not private individuals. Also, Al-Haq and GLAN characterize Airbnb’s original decision to delist as “an Occupying Power, alongside other interested parties,  falsely depict[ing] attempted compliance with the UNGPs and international standards as a political issue in order to dissuade challenges to its occupation” (pg 76). The implication that those pushing for delisting were somehow apolitical is clearly false, and ignores the lengthy, coordinated campaign by political advocacy NGOs pressuring Airbnb to adopt a BDS agenda.1
- Al-Haq and GLAN reject the legitimacy of Israel’s judicial system. In 2009, the Israeli High Court of Justice rejected a petition brought by an Israeli NGO, Yesh Din, against quarries located in Area C of the West Bank. The Court ruled that the quarries had been operating in accordance with international agreements, including the Oslo Accords, and that the amount of existing and projected quarried material constituted half of one percent of existing reserves in accordance with the laws of usufruct and occupation. However, since the Court did not rule in accordance with the NGOs’ preferred political outcome, they allege that “while a case may move forward…the impartiality of the system itself may be a barrier to effective remedy” (pg 63).
- Another omission concerns “a pending legislative initiative in Ireland” seeking “to use import restrictions to ensure State and business respect for human rights and international law” (pg 77). In its positive assessment of antisemitic efforts in the Irish legislature, the authors neglect to inform readers that the legislation was drawn up by GLAN. And, as acknowledged by GLAN, it was written specifically to single out Israel: “As currently drafted, the Bill will apply automatically on enactment only to the Israeli occupation of Palestine.”
- Throughout the report, Al-Haq and GLAN ignore binding agreements between Israel and the Palestinian Authority (and guaranteed by the international community) that dictate business operations in the West Bank. For example, they consider “the provision of fees to [occupying] authorities,” referring to Israel and quarries in the West Bank per the footnote, through the lens of “relationships” that “serve to further annexation or entrench the Occupying Power’s unlawful exercise of sovereignty” (pg 18). In sharp contrast, Article 31 of the 1995 Interim Agreement (Oslo II) governs such transactions, assigning responsibility for regulating and licensing quarries to the Israeli Civil Administration, with disputes to be addressed by a joint Israeli-Palestinian Committee. Accusing companies of being complicit in violations based on their adherence to mutually agreed and internationally brokered agreements fundamentally undermines the foundations of the international legal order.
Distortion of Business and Human Rights Norms
Al-Haq and GLAN prepared this report as part of consultations by the UN Working Group on Business and Human Rights. However, the NGOs distort the very norms that they claim to be discussing (pg 8).
Throughout their report, Al-Haq and GLAN refer to the UN Guiding Principles on Business and Human Rights (UNGPs). This is a voluntary set of guidelines and principles, meant to “enhanc[e] standards and practices with regard to business and human rights so as to achieve tangible results for affected individuals and communities” (UNGPs, pg 1). As emphasized in the UNGPs, they do not create “new international law obligations,” which pertain to States, not businesses, but rather encourage businesses to “respect human rights.” A fundamental aspect of the UNGPs is due diligence – namely, that companies that choose to adopt the UNGPs framework should develop a “process to identify, prevent, mitigate and account for how they address their impacts on human rights” (UNGPs, pg 16).
Nevertheless, Al-Haq and GLAN describe the UNGPs as binding international law (pg 58).
It also appears there is no company action, short of the measures advocated by Al Haq and GLAN, that would satisfy these actors. For instance, they criticize companies for not making explicit reference to the UNGPs in their various statements concerning the due diligence they performed (pp 25-26, 30, 39, 56). Companies that did, voluntarily, adopt the UNGPs were likewise attacked because their internal due diligence conclusions did not comport with what the interpretations and political agendas of the NGOs (pp 51, 55, 58).
Indeed, throughout the report, Al-Haq and GLAN discount the possibility that companies operating in occupation zones may have conducted proper due diligence and determined that there were tangible benefits for protected populations or no adverse impacts. Alternatively, due diligence calculus may lead a company to legitimately conclude that minor negative impacts were offset by positive contributions to human rights. As seen in the discussion of the recommendations in the previous section, Al-Haq and GLAN actually promote a sanctions model, not human rights due diligence. (See Anne Herzberg, Submission to the Working Group on Business and Human Rights Project on Business in Conflict and Post-conflict Contexts: Corporate Due Diligence in Situations of Armed Conflict, for more information on this topic).
Problems with Sources
Al-Haq and GLAN rely primarily on non-legally binding principles, statements, and resolutions. and conflate these with international laws related to states, not non-state entities like corporations. As noted in the previous section, this occurs alongside distortions about what those voluntary principles say.
As compared to the sections on Crimea and Western Sahara – where Al-Haq and GLAN cite court decisions against the position of the companies, and rely on UN Security Council-implemented sanctions regimes – their analysis of the West Bank and Gaza is primarily based on claims made by biased advocacy NGOs that promote BDS and delegitimization campaigns against Israel. There are over 25 citations to NGOs, such as Who Profits, Human Rights Watch (HRW), Center for Constitutional Rights, B’Tselem, Kerem Navot, Lawyers for Palestinian Human Rights (LPHR), and Yesh Din, as well as material from Al-Haq.
Who Profits and HRW are cited most frequently. Who Profits is a leader in BDS efforts against Israeli and foreign companies. It maintains a tendentious database of businesses that are often targeted in international BDS campaigns. HRW’s publications reflect the absence of professional standards, research methodologies, military and legal expertise, as well as a deep-seated ideological bias against Israel.
Al-Haq and GLAN also cite extensively to controversial and non-binding resolutions from the UN Human Rights Council (UNHRC), the UN Committee on the Elimination of Racial Discrimination (CERD), and former UN Special Rapporteurs “on the situation of human rights in the Palestinian territory occupied since 1967” Richard Falk and John Duggard – bodies and individuals that disproportionately single out Israel and whose activities clearly meet the IHRA definition of antisemitism.2
Al-Haq and GLAN also cite the BDS Blacklist, ordered by the UN Human Rights Council, as an authoritative source on companies’ supposed involvement in abuses. (Al-Haq was a major proponent of the Blacklist, calling for its release on countless occasions.) Publication of the list was delayed multiple times due to legal, due process, and methodological concerns, which were not addressed in the final product. At best, the UN relied on old information showing attenuated and indirect links between companies and the West Bank.
- Indeed, the company acknowledged that its offerings in West Bank were not illegal, indicating that it had, initially, succumbed to threats of negative publicity.
- For instance, Falk is a “9/11 conspiracy theorist” who has been widely denounced, including by the former Secretary-General of the UN, for vile comments blaming the Boston terrorist attack on “the American global domination project” and “Tel Aviv.” He is also the author of an article “Slouching toward a Palestinian Holocaust” that compares Israel to Nazi Germany and has been condemned for publishing an antisemitic cartoon on his blog.