On March 13, 2019, Amnesty International posted, “Think Twice: Can companies do business with Israeli settlements in the Occupied Palestinian Territories while respecting human rights?”. This is the NGO’s second publication in as many months promoting anti-Israel BDS under the guise of corporate social responsibility.
The Amnesty campaign coincides with the anticipated release of the UN Human Rights Council blacklist of “settlement” businesses and is designed to bolster this UN initiative singling out Israel for attack. In a major blow to Amnesty’s BDS campaign, however, the UN High Commissioner of Human Rights decided to delay publication of the list citing the “novelty of the mandate” and the “legal, methodological, and factual complexity involved.”
While Amnesty’s January 2019, “Destination: Occupation” attacked Jewish and Christian tourism in Jerusalem and the West Bank, “Think Twice” purports to “provide companies with a framework for examining their business interests and relationships with Israeli settlements in the Occupied Palestinian Territories.” Yet, the only option Amnesty advocates is BDS. And in serving the BDS agenda, the publication includes numerous false legal and factual claims, while grossly misrepresenting business and human rights guidelines and monitoring mechanisms.
In essence, Amnesty invents its own standards regarding company obligations and passes them off as widely-accepted standards or binding legal regulations. Amnesty then asserts that companies that do not agree with its unsupported premises or extreme conclusions are complicit in violations of international law, including war crimes.
“Think Twice” represents the latest example of how pro-BDS NGOs routinely exploit and manipulate legal and UN frameworks as part of their campaigns to economically damage and internationally isolate the Jewish state. While the following analysis directly addresses claims specifically made by Amnesty, the same problems can be found in almost every publication by other pro-BDS NGOs, such as Human Rights Watch (HRW), FIDH, and Trocaire, which proffer similar arguments:
One of the more egregious examples is an April 2019 publication “Investor Obligations in Occupied Territories: A Report on the Norwegian Government Pension Fund – Global” published by the “Essex Business and Human Rights Project.” Despite the academic facade, the publication was commissioned by two BDS organizations, co-authored by a former fellow at a BDS organization, and relies almost exclusively on BDS source material to conclude that the Norwegian Pension Fund should engage in BDS.
Distortions of International Law
Amnesty’s publications offer a superficial legal analysis replete with omissions and distortions. The following are just a few representative examples:
- Amnesty’s summary of international law is selective, mentioning only a few provisions that appear to support its arguments, while ignoring the extensive law that negate it. Interestingly, the publication does not refer to Article 43 of the 1907 Hague Convention, which requires the occupying power to carry out governmental functions and maintain public infrastructure. Amnesty also fails to mention the core fact that companies are not legally bound by IHL, instead claiming that the Rome Statute of the International Criminal Court bars business activity in settlements. However, the term “settlements” does not appear in the Rome Statute, the ICC has yet to define or rule on the scope of the prohibition against “transfer” of the civilian population, and corporations are not bound by the treaty nor may they be prosecuted under it. Moreover, Israel is not a party to the Rome Statute, and therefore not bound by its provisions.
- Amnesty inconsistently uses the term “settlements” repeatedly throughout the publication. On the one hand, Amnesty cites the Geneva Conventions and refers to settlements as the “transfer” of “civilians” into occupied territory, yet, it also frequently invokes the term to refer to military infrastructure, installations, and activity.
- Amnesty complains that Israel “extension of Israeli laws to the West Bank and the creation of a discriminatory legal regime,” but then also complains that Israel is purportedly not enforcing Israeli labor and other domestic laws to Palestinians.
Distortions of Business and Human Rights Framework
Like its flawed legal claims, Amnesty grossly distorts the concept of business and human rights and the mechanisms established to promote it:
- Amnesty fails to provide analysis as to how companies are involved in or complicit in any way with any of the purported violations it alleges. To the extent an explanation is offered, the connection to specific business activities is marginal at best, and highly convoluted to non-existent in almost all cases.
- Amnesty uses a tendentious risk analysis to advocate for BDS. Specifically, the NGO provides a very minimal and lazy analysis of human rights risk (simply that settlements are illegal), while ignoring dozens of human rights concerns (labor, environment, right to life, etc…). The NGO then claims that companies engaged in activities related to settlement activity, expansively defined by Amnesty and no matter how marginal, must cease operations.
- Amnesty states: “The Occupied Palestinian Territories are a conflict-affected area. This fact alone increases the risk of companies operating there becoming involved in or contributing to serious human rights abuses.” Even accepting Amnesty’s application of the terms “occupied” or “settlements,” there is no prohibition whatsoever on business activities in situations of armed conflict, occupation, or settlements. Every court that has examined these issues has rejected arguments similar to those proffered by Amnesty.
- Amnesty falsely claims there is the existence of an accepted body of international law regulating businesses in situations of armed conflict. In fact, John Ruggie, the world’s leading expert on business and human rights, who was cited in the source referenced by Amnesty for this claim, explicitly states: “There are no universally recognized and enforced legal rules with regard to the overseas conduct of corporations in relation to human rights.” The other UN source quoted by Amnesty states, “the responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement, which remain defined largely by national law provisions in relevant jurisdictions.” Notably, except in a few narrowly defined circumstances, States are bound by international human rights law, not businesses.
- The guidelines referenced by Amnesty (the UN Guiding Principles and the OECD Guidelines for Multinational Enterprises) do not establish any legal obligation and are entirely voluntary. Importantly, they lack any specificity and leave it to the discretion of businesses to develop due diligence programs – including how to identify risks and balance human rights concerns – that work best in the unique situation of each business. NGO Monitor’s Legal Advisor has met with representatives of the UN and the OECD, and in contrast to Amnesty’s assertions, at no time did officials from these institutions claim there were detailed rules proscribing business activity in conflict.
- Amnesty pronounces that a “due diligence framework” is only useful “if it plays a role in helping companies determine” that “settlements are illegal and a war crime”; and that “business activities in or with settlements help to normalize and legitimize an illegal situation.”. Amnesty is explicitly stating that it only believes in corporate due diligence if a company reaches the same conclusions as Amnesty. Contrary to this extremist viewpoint, there is no “right” way to do due diligence. Each company must make assessments and weigh competing impacts, based upon unique circumstances. As a human rights NGO, Amnesty should be encouraging companies to engage in due diligence. It is completely against the business and human rights process for Amnesty to proclaim that if a company comes to a different conclusion regarding its operations, its due diligence is not “useful” or “normalizing” illegality.
- Amnesty purports to lay out the legal risks should companies continue their operations, yet ignores the many legal violations under US domestic, European domestic, EU, and international trade law that companies would face should they heed Amnesty’s unsound advice.
- Amnesty claims several companies have conducted the “due diligence” formula it advocates and decided to cease operations in the West Bank and East Jerusalem. Yet, all of the ten companies mentioned were subject to intense BDS harassment and threats, including from Arab countries, and acted on that basis. In the Airbnb case, in April 2019, the company reversed its decision to delist posts in settlements when faced with substantial legal liability and PR damage for following Amnesty’s approach. While citing to PGGM as a positive example of divestment from Israeli companies, Amnesty fails to disclose that PGGM actually reversed its decision and reinstated the companies. Similarly, in the Danske Bank case, Amnesty does not mention that in 2016 after dialogue with the Israeli banks, the company reversed course. They also do not disclose the significant legal problems Danske has faced in the US as a result of its BDS decision.
- Amnesty refers to a 2014 UK National Contact Point decision relating to G4S activity in the West Bank. Amnesty provided a partial summary of the proceedings and omits that the NCP found that G4S was not required to cancel its contracts or cease its operations in the region.
False and unsupported factual claims:
There are numerous false and unsupported claims in “Think Twice.” The following are some of the more egregious:
- Many of Amnesty’s factual claims are based on tendentious publications, such as the UN Human Rights Council 2012 Fact Finding Mission on Settlements Report, that are nearly a decade out of date. Amnesty ignores that, in most cases, more recent information (contradicting Amnesty’s claims) is available.
- Amnesty considers parts of Jerusalem including the Jewish Quarter of the Old City to be a “settlement” and Jews living there to be “settlers.”
- Amnesty provides no definition for the term “Israeli settlements,” nor any source to support its claim that “60%” of the “occupied West Bank” comprises “settlements and their infrastructure.” Settlements constitute less than 2% of the West Bank, according to Palestinian negotiator Saeb Erakat. To the extent that Amnesty’s 60% claim is sloppily referring to Area C (defined by the Oslo Accords), Area C does not refer to settlements (as commonly defined) but rather, it refers to territory under Israeli control per the Oslo Accords. The Oslo Accords were jointly agreed to with the Palestinian Authority.
- Amnesty’s publication opens with a map of the “Occupied Palestinian Territory” sourced to UN OCHA-oPt, demarking Areas A, B, and C per the Oslo Accords. Amnesty includes its own key on the map, falsely describing Area A as “under the civil control of the Palestinian authority which also controls law enforcement, but Israel retains overall military control.”
- In fact, Area A is under both Palestinian civil and military control, as noted on OCHA- oPt maps that clearly state that Palestinians have full civilian and military control in Area A. Absurdly, Amnesty includes another OCHA oPt map at the end of “Think Twice” that explicitly states Area A is under full Palestinian military and civil control, contrary to Amnesty’s doctored description at the beginning of the publication.
- Amnesty makes outrageous and false charges that Israel is responsible for “the physical enclosure and segregation of the 3 million West Bank Palestinians,” the “extension of Israeli laws to the West Bank and the creation of a discriminatory legal regime” and the “establishment of about 250 settlements, populated by 600,000 Israeli settlers.” In fact, Amnesty’s source, the Israeli Central Bureau of Statistics, does not say anywhere that there are 250 settlements with 600,000 settlers. Amnesty also claims, without evidence, “these trends have intensified over the past two years.” According to statistics released in 2019, settlement growth is down for the 7th year in a row. Even the UN’s Office of the High Commissioner for Human Rights noted in March 2019 that “Settlement housing advancement in Area C and East Jerusalem declined.”
- Amnesty claim that all Palestinians are subject to a “military court system” is blatantly false. Palestinians that commit one of a narrow subset of violent or security offenses in certain parts of the West Bank are tried in military courts. The remaining civil and criminal offenses committed by West Bank Palestinians are adjudicated by the Palestinian Authority courts. Palestinians who reside resident in East Jerusalem or Gaza and that commit offenses in areas under Israeli sovereignty are subject to the jurisdiction of the Israeli civilian courts. Amnesty’s complaint that some West Bank Palestinians are not subject to Israeli law strangely suggests that the NGO would prefer for Israel to annex the territory.
- Amnesty falsely claims that Israel’s military court system “falls short of international standards.” The military courts apply nearly identical rules of procedure and evidence as the Israeli civilian courts. The military court standards meet or exceed all international agreements.
- Amnesty provides no source or evidence for the claim that “settlement businesses depend on and befit from Israel’s unlawful confiscation of Palestinian land and other resources.”
- Amnesty falsely claims Palestinians working in settlements are not protected by Israeli labor law. After making this bogus assertion, the NGO then admits that since 2007 Israeli labor laws cover Palestinian workers. Yet, Amnesty then claims without providing any source or evidence that these laws are “rarely enforced.”
- Amnesty claims that the settlement agricultural sector has “disadvantaged and impoverished Palestinians.” It also falsely claims “import of fertilizers into the West Bank is banned for Palestinians.” Amnesty provides no evidence for its claims other than lifting similarly unsourced sentences from an outdated 2012 UN Human Rights Council document. In contrast to the NGO’s claims, Palestinian growth was up 3.4%, exports up to 12.1%, and GDP 3% in 2018. These numbers are squarely within the global average. Moreover, problems in the agricultural sector are attributed to many factors completely ignored by Amnesty and having no connection to international or Israeli businesses. These factors including lack of technical knowledge by Palestinian farmers, fragmented production, bureaucratic hurdles imposed by the PA on exports; lack of sanitary regulation, and lower production costs in other MENA states. Regarding fertilizers, some types of fertilizer are restricted due to concerns they will be commandeered by Palestinian terror groups to make explosives. Nevertheless, other types of fertilizer are allowed.
- Amnesty falsely claims and again with no source provided that Israel runs “interrogation and detention centres in settlements” and absurdly states that providing protection against Palestinian terrorism is a “violation of human rights.”