Multiple Inaccuracies in the Essex/NPA BDS “Investor Obligations” Report
In April 2019, the Essex Business and Human Rights Project (EBHR) at Essex University (UK) published “Investor Obligations in Occupied Territories: A Report on the Norwegian Government Pension Fund.” The report was commissioned by two Norwegian organizations active in promoting BDS (boycott, divestment, and sanctions) against Israel: Fagforbundet, a trade union, and Norwegian People’s Aid, a non-governmental organization (NGO).
EBHR claims to “examine what institutional investors need to do in order to meet their responsibility to respect human rights when investing in businesses that operate in occupied territory.” However, as evidenced by the distortions of international legal obligations and its general shoddiness, the report exemplifies how not to conduct human rights due diligence in situations of conflict. Rather, the publication primarily reflects the ideological agendas of its pro-BDS backers.
EBHR’s report uses an academic facade to promote an anti-Israel divestment agenda in the context of the Norwegian Government Pension Fund. In April 2019, the Norwegian Government announced the formation of a Committee to examine “ethical guidelines” for the “exclusion” of companies from the Pension Fund. This document (“Investor Obligations”) was submitted to the Committee in order to influence this process and persuade the Committee to adopt a policy of discriminatory BDS against Israel via an unsupported interpretation of business and human rights guidelines.
The central part of “Investor Obligations” consists of false, distorted, or misrepresented claims of human rights violations allegedly committed by Israel. EBHR then defames companies in which the Pension Fund has invested, falsely claiming that they are complicit in and responsible for such violations.
However, in contrast to these claims, under international humanitarian and human rights law as well as business and human rights guidelines – the paradigm applied by EBHR – there is no prohibition on business activities in occupied territory or settlements. To the extent that the activities attributed to Israel in the publication are factually substantiated, the links to the companies mentioned are highly attenuated, if such links exist at all.
Another primary methodological flaw in “Investor Obligations” is the failure to consult primary sources for information and data about Israel and the West Bank. The report has an almost exclusive reliance on secondary and tertiary references that lack credibility. In many instances, these sources are outdated. More troubling, as shown below, several EBHR claims are not supported by the given citation. Furthermore, the authors of the EBHR document clearly did not verify the citations of the consulted documents, since, upon closer examination, the original source material does not comport with the presentations in the cited secondary and tertiary sources.
Best practices in fact-finding and due diligence require verifying and confirming every claim – particularly when dealing with biased sources. As “Investor Obligations” accuses entities of criminal activity and gross human rights violations, and seeks to use these claims as the basis to economically damage companies, accurate reporting is critical and legally required. Yet, many of the secondary and tertiary sources are documents prepared by political advocacy NGOs with minimal credibility. In addition, citations to UN publications often lead to the same NGOs which make frequent questionable, if not false, factual and legal claims.
Finally, accusations from UN Special Rapporteur Michael Lynk, who is cited repeatedly by EBHR, are particularly suspect; Lynk presides over a one-sided anti-Israel mandate established by the UN Human Rights Council and improperly uses his position to promote discriminatory BDS. Lynk’s bias has been documented repeatedly and in detail.
Below are representative quotes taken from “Investor Obligations” (in italics), followed by a discussion of the fundamental flaws in the report. There are several more examples of inaccurate or misrepresented claims but these were too numerous to cover in this analysis:
Examples of Flawed Claims in “Investor Obligations”
- Violence in the West Bank is pervasive, and at times it becomes particularly alarming. Between 9 and 16 December 2018 – 7 days – the UN reported that over 400 Palestinians were injured, 200 arrested, and 5 killed. In comparison, 3 Israelis were killed and 13 injured. The UN does not indicate that any Israelis were arrested for their participation in the violence. While some of these deaths likely comply with international law, the disproportionate impact raises serious questions about the use of force
EBHR withholds salient details about these events. Its account falsely suggests riots on all sides, presenting an image of Palestinian and Israeli civilians attacking each other, resulting in the injuries and deaths.
In reality, as widely reported, the violence of the week of December 9, 2018 began with a drive-by shooting attack at a bus stop perpetrated by Palestinians, which injured seven Israeli civilians, including a pregnant woman whose baby died a few days later. The other Israeli casualties came in additional attacks in the West Bank (two soldiers killed, two wounded) and the Old City of Jerusalem (two police officers wounded).
Of the Palestinian deaths, in contrast, four were terrorists killed while perpetrating attacks or resisting arrest; the last was killed during violent clashes. The arrests were of Palestinian accomplices or rioters; there is no evidence, despite EBHR’s implication, that any Israelis participated in riots or other violence that would obligate arrests.
Clearly the “comparison” of Palestinian and Israeli casualties is both immoral and ignorant of international law. In both instances, the operative question is not the numbers but the circumstances of the incidents. The manipulation of basic facts is cynically designed to justify the political objectives of boycotts and divestment.
- In Hebron alone, 6,000 Palestinians are subjected to “approximately 95 physical obstacles, including 19 permanently staffed checkpoints” that restrict the movements of cars and buses, and sometimes even pedestrian movements. The roadblocks as well as checkpoints limit the ability of West Bank residents to access medical care, particularly medical care that is only available to them in East Jerusalem or elsewhere.
This is a highly misleading amalgamation of marginally related numbers. The reference to “6,000 Palestinians” is based on an outdated statistic published by B’Tselem, and quoted in a UN Secretary-General’s report from 2016, and refers to Palestinians living in “areas near settlers’ homes or near streets in use by the settlers.” Contrary to the allegation, in terms of both access to health care and freedom of movement, many of the “obstacles” are in the vicinity of the Jewish neighborhood in Hebron, historical and religious sites, and military areas. Unmentioned is the fact that these “obstacles” were erected in direct response to terrorist attacks and are necessary to protect the civilian population. Under the law of occupation, that EBHR claims is binding in Hebron, Israel is required to maintain public order, including measures to prevent violence.
Similarly, the “approximately 95 physical obstacles” is outdated, sourced to a November 2015 UN report based on documentation from 2013. Moreover, the term “physical obstacles” is not defined, nor is any methodology included as to how such “obstacles” are counted.
In addition, EBHR ignores or is unaware of a 2019 B’Tselem report explaining that the majority of the “physical obstacles” are found in the greater Hebron area, meaning Southern Hebron Hills, site of several terror attacks and from where at least 6 attacks were planned, and not within the City of Hebron. Many of these checkpoints are also unmanned. In summary, the claims in this paragraph are misleading.
- It appears that SPU currently invests in Caterpillar (USA), which supplies equipment to the Israeli government that has been used in home demolition. It is clear that Caterpillar has actual knowledge of how its equipment is used as it was famously sued over the death of an American woman. Rachel Corrie was run over by a bulldozer in 2003 as she protested a home demolition in the Gaza Strip. Caterpillar appears to continue to sell bulldozing and other equipment to the Israeli government.
It is clear that there is no legal prohibition in and of itself of providing equipment to the IDF. EBHR’s “proof” of Caterpillar’s alleged culpability in human rights violations through its provision of vehicles to the Israeli military is a single, controversial incident from 2003. (Rachel Corrie was accidentally killed while attempting to block an IDF-operated bulldozer during a military operation in Gaza.)
In fact, the lawsuit against the company referenced by EBHR disproves the assertions. It was rejected by a US Federal court, and the decision was sustained on appeal. The US District Court in Washington State stated, “Selling products to a foreign government does not make the seller a participant in that government’s alleged international law violations.” Similarly, in 2012, the Haifa District Court rejected claims against the IDF regarding this incident, and the decision was sustained on appeal.
- The construction of the Palestinian border wall has been acknowledged by the International Court of Justice to breach international law. Both activities take public and private Palestinian property for purposes that are not militarily necessary. As such, the constructions cause breaches of the human rights to property and contribute (minimally) to a breach of the right to self-determination. It appears that SPU invests in two companies that undertake such activity. Alstom is helping to construct the rail while Cemex has provided cement for the construction of the wall. SPU is, therefore, undoubtedly directly linked to these violations.
With regards to the mischaracterized “Palestinian border wall”: EBHR entirely ignores the human rights perspective of the security barrier, which was built in response to terror attacks emanating from the West Bank. The barrier has saved countless lives since its construction. More specifically, EBHR provides no evidence that Cemex was involved in the construction of the security barrier, and even if it did so in the past, the report fails to explain how this translates into linkage for investors at the present time or a current evaluation of the company’s human rights impacts. EBHR also erases hundreds of petitions heard by the Israeli Supreme Court on the route of the barrier, in which the Court required changes or compensation where the impact was deemed to be disproportionate.
With regards to the Jerusalem light rail line (elsewhere, EBHR apparently conflates the Jerusalem light rail and the Jerusalem-Tel Aviv train line under the term “rail line”): EBHR never explains how building the light rail violates international law, speculating that it is part of “annexation” and inaccurately stating that “rail line [will] serve the settlements in the West Bank.” In fact, the Jerusalem light rail was constructed and is being expanded for the benefit of both Israelis and Palestinians in Jerusalem neighborhoods. Indeed, a French court confirmed that occupation law allows for the governance of occupied territory, including the building of transportation infrastructure.
- It appears that both Hewlett-Packard Enterprise Co (HPE), USA, and Motorola Solutions, USA, supply equipment that is routinely used by the Israeli military for the purpose of monitoring Palestinians….
EBHR targets these companies for contributing to security procedures and mechanisms meant to protect Israeli civilians and to secure borders. (The laws of occupation expressly mandate and require economic activity in occupied territory.)
There is no prohibition under international law with respect to establishing checkpoints or similar security measures. Security-related goods and services, particularly given the context of Palestinian terrorism, is one of the primary functions of government, and denying them to Israeli and Palestinian civilians would be a massive violation of human rights. Such checkpoints and crossings at the West Bank borders would continue to exist in the absence of settlements and/or if a Palestinian state existed, as is the case with borders around the world.
In addition, the equipment supplied by these companies is designed to replace more intrusive security measures and to reduce friction and violence, particularly in facilitating tens of thousands of crossings into Israel from the West Bank and vice versa. There is no basis for asserting that faster baggage scanning, “quick entry” identification programs, and other screening technology that reduces intrusiveness and waiting times is somehow illegal.
Short of having no security at all, EBHR offers no alternatives as to how public safety can be maintained in a less invasive fashion. In other words, EBHR’s recommendations, if followed, would heighten conflict and tension between Israelis and Palestinians, and more importantly, endanger lives.
- SPU’s portfolio includes Heidelberg Cement, which is currently engaged in quarrying in the OPT. Quarrying in occupied territory without the permission of the occupied government breaches the law of occupation as it constitutes the war crime of pillage….In the case of Heidelberg Cement’s Nahal Raba quarry, the border wall – which does not align with the border and therefore prevents Palestinians from free movement within the occupied territories – is being constructed in a way that ensures discriminatory access to the quarry areas. By generally encouraging the build-up of settlements, quarries are also directly linked to violations of the rights to housing and water.
According to Heidelberg, its activities fully comply with international law since the “land was not privately owned and emphasized that the royalties it pays Israel are transferred to the Civil Administration ‘for the benefit of residents of Area C.’ It also noted that it employs 36 Palestinian residents of the West Bank who receive the same benefits and salaries as their Israeli counterparts and that another 25 Palestinians work on the site daily through a sub-contractor.” According to the Israeli Supreme Court, in a response to a petition filed by an NGO, these quarries are also allowed because “employment of Palestinians [are] a benefit to the occupied population.” In addition, the Court noted that under Article 31 of the 1995 Interim Agreement (Oslo II), the Israeli Civil Administration was made responsible for regulating and licensing quarries, with disputes to be addressed by a joint Israeli-Palestinian Committee. Regarding the use of natural resources, the Court found that the amount of existing and projected quarried material constituted half of one percent of existing reserves. In the proceedings, the Israeli government also agreed to restrict the issuance of any new quarry licenses while the territory was under dispute, rehabilitate any environmental damage, and to separate out royalties and duties collected from these companies for the sole use of the Palestinian population. Thus, this EBHR allegation is also without foundation.
- The Government of Israel is under an obligation to ensure the effective investigation, and where appropriate prosecution and punishment, of those directly responsible or who aid and abet torture, extrajudicial killings, or other criminal violations of IHRL and IHL. Unfortunately, invesitgations (sic) and prosecutions are rare.
It is blatantly false to allege that Israel does not investigate alleged abuses or that such investigations are rare. In fact, the B’Tselem source cited by EBHR, if accurate, acknowledges that 75% of B’Tselem’s complaints were investigated. Moreover, despite claims from political NGOs, the effectiveness of an investigation does not depend upon whether that investigation leads to “charges being brought”, “indictment,” or prosecution.
Additionally, B’Tselem does not discuss the difficulty of collecting evidence and testimony in Palestinian-controlled areas, particularly Gaza, and the unwillingness of Palestinians to cooperate throughout the process. Unlike the NGO version of “fact-finding,” in which anonymous claims are levied with little to no proof, a criminal prosecution requires due process and verified evidence.
Contrary to EBHR’s and the NGOs’ claims, Israel’s investigation and prosecution rate is recognized as on par with justice systems in Western democracies. Israeli military investigations also meet international standards, as noted by Judge Mary McGowan Davis (empanelled by the UN Human Rights Council to lead a commission of inquiry into the 2014 Gaza conflict) and the Turkel Committee. This inquiry was established as part of a wider investigation of the events that took place during the 2010 Gaza flotilla confrontation. The conclusions were based on input from independent legal advisors, as well as a broad range of NGOs, academics, and government officials. EBHR’s failure to recognize and cite from this important document is another fundamental flaw.
- Water use in the West Bank is particularly problematic. Exact figures are difficult to determine, but in 2012 the UN estimated that collectively the settlements consume “approximately six times the [amount of] water used by Palestinians in the West Bank.” While Palestinians are supposed to have access to 138.5 MCM of water each year, they have been unable to draw that, and Palestinians routinely have to pay for tankers to bring them water. Since 1994, Palestinian “per capita water access has declined by more than 30 percent,” and Palestinians, on average, use only 60% of the minimum water consumption recommended by the World Health Organization.
Relying on data nearly a decade old is a clear methodological failure. Moreover, even at the time that these claims were published, they were inaccurate.
Israel’s involvement in the water sector in the West Bank, supplying water to some Palestinian communities and to settlements, is entirely anchored in the 1995 Interim Agreement (Oslo II) which states the exact obligations of both sides. A Joint [Israeli-Palestinian] Water Committee (JWC) was established to “deal with all water and sewage related issues in the West Bank.” The decision making mechanism of the JWC is based on “consensus, including the agenda, its procedures and other matters.” (See NGO Monitor’s report “Myths vs. Facts: NGOs and the Destructive Water Campaign Against Israel.”)
The claim that the settlements consume more water than the Palestinians is blatantly distorts the water supply system in the West Bank. The Palestinian Water Authority (PWA) is responsible for supplying water to Palestinian communities. Israeli water supply to the settlements is part of Israel’s allocation of water as stipulated by the JWC, and does not affect the supply to the Palestinians in any way. In general, Mekorot provides more water annually to the PA (64 MCM) than it is obligated to according to the water agreement (31 MCM), in addition to the water provided by the Palestinians themselves (approximately 140 MCM/Y).
- The roadblocks as well as checkpoints limit the ability of West Bank residents to access medical care, particularly medical care that is only available to them in East Jerusalem or elsewhere. As the UN has explained, “[m]ost Palestinians from the West Bank or Gaza requiring health care in East Jerusalem, Israel or abroad must apply for an Israeli-issued permit. … 15-30 per cent of the applications are delayed or never approved, and the application process is reportedly slow and complicated.” Each of these acts constitutes a violation of the right to free movement because the regulation is carried out on a discriminatory basis; where the impact is on the availability and accessibility of healthcare, the checkpoints also breach the right to health.
Crucially, this claim erases the role of the Palestinian Authority (PA) in limiting health care options for Palestinians, including in the context of the 2007 violent takeover of Gaza by the Hamas terror organization. In April 2019, the PA stopped referring patients from the West Bank and Gaza to Israel for treatments, refusing to continue to pay for its patients to receive treatment in Israel (as agreed upon in the Paris Protocol). There are, however, six Palestinian run hospitals in Jerusalem to which the PA continues to refer Palestinian patients.
Furthermore, EBHR conflates Palestinians in Gaza with those in the West Bank, ignoring the distinct circumstances pertaining to the former. Contrary to their claims, delays and denials are not discriminatory, but are rather the product of essential security measures that are necessary for patients and family members from Hamas-run Gaza. Unfortunately, health permits have been regularly exploited for terror actions, such as the May 2017 episode where two sisters — one of whom acquired a travel permit to receive cancer treatment — smuggled explosives from Gaza into Israel inside a pill bottle.
- The restrictions prevent the Palestinian Ministry of Education from delivering textbooks, supplies, and furniture to some schools…….From 1 November 2015 to 31 October 2015, “the United Nations Children’s Fund documented 247 cases of attacks on education, including physical assault, detention and checkpoint harassment and delays, affecting 32,055 children.”
Parroting the biased source material, EBHR distorts and manipulates these concepts to accuse Israel of wrongdoing. In reality, the incidents mentioned do not fall under the UN definition of “attacks on schools” and “attacks on education,” which relate to armed attacks against school facilities and targeting of schools qua schools. Delays at security checkpoints and detention of offenders who happen to be on the way to school do not constitute “attacks.”
Tellingly, the quoted UNICEF “data” regarding students, checkpoints, and alleged incidents are unverified and completely unreliable. UNICEF compiles information obtained from activists from the Ecumenical Accompaniment Programme in Palestine and Israel (EAPPI). EAPPI volunteers are not qualified experts with extensive training in human rights monitoring and documentation. Rather, they are a self-selecting group with minimal experience and knowledge of the conflict. Yet, their allegations are blindly repeated by UNICEF, the UN system, and international NGOs. Upon completion of the program, the volunteers return to their home countries and churches where many engage in anti-Israel advocacy, including advocating for BDS campaigns in churches, comparing Israel to apartheid South Africa and Nazi Germany, and other delegitimization strategies. (See NGO Monitor’s report “UNICEF and its NGO Working Group.”)
Ironically, EBHR also references Palestinian Ministry of Education difficulties in delivering textbooks. In contrast, detailed studies from IMPACT-se, a “research, policy and advocacy organization that monitors and analyzes education” meticulously document the endemic incitement found throughout Palestinian textbooks. (See NGO Monitor’s 2019 submission to the UN Committee on the Rights of the Child for more details.)
- Israeli settlements are only open to Jewish Israelis. Palestinians are prohibited from living there. This is a form of discrimination on the basis of race and ethnicity.
This is categorically false. All Israelis, Jewish and non-Jewish alike and including Palestinian citizens of Israel, are permitted to freely enter and live in Israeli communities in the West Bank. To the extent that the report includes “East Jerusalem” in its definition of “settlements,” as implied later in section 3.1, there are hundreds of thousands of Palestinians (both Israeli citizens and non-citizens) living in this area , including within Jewish-majority neighborhoods.
- According to the World Bank, 68% of Area C is dedicated to Israeli settlements, 21% is closed for military purposes, and 9% for nature reserves. This leaves only 2% of the land in Area C available for Palestinian use, housing 180,000 to 300,000 Palestinians….The government’s protection of individual Israelis choosing to move to occupied territory without prior permission – and the government’s failure to stop the move in the first place – stands in stark contrast to the experience of Palestinians who are, as a matter of international law, entitled to live in Area C.
The division of Area C of the West Bank into Israeli and Palestinian regions was mutually agreed upon by the Palestinians in the Oslo Accords (1993-4). The Palestinians agreed that “In Area C, powers and responsibilities related to the sphere of Planning and Zoning will be transferred gradually to Palestinian jurisdiction…except for the issues that will be negotiated in the permanent status negotiations,” such as settlements. Therefore, “the Palestinian side shall ensure that no construction close to the Settlements and military locations will harm, damage or adversely affect them or the infrastructure serving them” (Annex III, Appendix 1, Article 27(2, 3a)). In other words, EBHR is decrying an arrangement in Area C, pending final status negotiations, that the Palestinians endorsed (and was guaranteed by the international community). The population claims, which originate with B’Tselem, are also highly speculative.
- Palestinians are routinely denied planning permission and when they undertake necessary renovations without planning permission they risk eviction, and with the Israeli government routinely destroying Palestinian homes… Another 15,000 homes – with 100,000 Palestinian residents – were “under threat of demolition,” according to the UN Special Rapporteur on Situation of Human Rights in the Palestinian Territory (“UN Special Rapporteur”). If these threats were carried out, it would displace one-third of the Palestinian residents of East Jerusalem. The destruction of houses and the forced evictions of Palestinians because they have undertaken renovations necessary to secure the habitability of their homes breaches the right to housing; the discriminatory treatment of Israelis and Palestinians on the basis of nationality, ethnicity, and race breaches the right to non-discrimination.
Since Israeli law is fully applied throughout the Jerusalem municipal boundaries, Palestinians in eastern and northern Jerusalem are subject to the identical zoning and planning restrictions as all apply to other Israelis. Such restrictions are in place to ensure public safety and health as well as to protect against the building of dangerous structures. The EBHR publication provides no evidence whatsoever that such restrictions are enacted or enforced in a discriminatory manner. They also provide no proof that illegal building in east Jerusalem is merely to undertake “renovations necessary to secure the habitability of their homes.” The “right to housing” does not include a right to build structures on public land or that could endanger the inhabitants, the community, public health, or the environment. As such, and as would be the case in any other modern country in the world, illegally built structures are met with “stop-work” and then “demolition” orders — regardless of the nationality, ethnicity, and race of the homeowner.
EBHR cites an October 2018 report by UN Special Rapporteur Michael Lynk (see above) for the claim that “15,000 homes – with 100,000 Palestinian residents – were under the ‘threat of demolition’.” Lynk, in turn, cites a joint publication by Israeli NGOs Ir Amim and Bimkom, but these figures do not appear in that report. NGO Monitor research indicates that these numbers have been circulated by activists, without citation, proof, or reference to municipal statistics. In fact, the category “under threat of demolition” seems to represent the large number of buildings constructed illegally in Arab neighborhoods of Jerusalem over the past few decades; while these structures could be eligible for demolition – as they would be in Jewish neighborhoods or any other locale with a functioning government – they have not necessarily been served with demolition orders.
Additionally, in Area C of the West Bank, under the laws of occupation that the authors of this report cite, Israel is obligated to enforce zoning and planning regulations. If Israel were to ignore such obligations, these same NGOs would accuse Israel of turning a blind eye to dangerous, irresponsible, unsupervised, and unregulated construction.
- …where construction occurs without prior permission, Israel often demolishes the homes of Palestinians but not of Israelis in the settlements. (128 See, e.g., Special Rapporteur October 2017 Report n 116, para 54.)
Reflecting the overall methodological inaccuracy of the EBHR report, the source in the given citation does not support this allegation (it repeats a frequently cited unsourced claim made by NGOs such as Diakonia). The report also uses the word “often” without defining the term, distinguishing between cases, or describing the circumstances surrounding specific demolitions. In contrast to EBHR’s very imprecise language, a brief, non-exhaustive search shows that Israeli authorities regularly carry out demolitions orders of structures lacking proper permits in Israeli settlements (for instance, in February 2020, October 2019, and November 2017); occasionally, entire neighborhoods, built without proper permits, are demolished.