On behalf of the Institute for NGO Research, Anne Herzberg1 presents the following response to the 22 November 2021 letter2 authored by UN Special Rapporteur Michael Lynk to the Local Government Pension Scheme (LGPS), “Responsible Investments – UN Guiding Principles on Business and Human Rights Investments in the Israeli settlement economy.” This response corrects multiple misrepresentations made by Lynk in his letter, relating to business and human rights in conflict zones and the UN Human Rights Council “database”. We hope that this response will provide the LGPS and its members with information to aid in ongoing supervision of its investment policies and activities of the pension scheme. We also hope that this information will assist the LGPS in protecting itself and its managers and affiliates from attempts to politicize the funds’ policies and practices to the detriment of its beneficiaries and employees.
The Institute is concerned3 that activists promoting BDS (boycott, divestment, and sanctions) against Israel – a campaign that Lynk has promoted4 – are targeting the LGPS to drag the scheme into a highly controversial and contested political debate in order to advance their narrow and discriminatory agenda in both policymaking and investment decisions, to the detriment of pension beneficiaries. We are also concerned that this BDS campaign seeks to push LGPS and its members to adopt policies and standards that are inconsistent with the position of the UK government, international business and human rights guidelines, and international law. In addition, relying on BDS claims and acquiescence to such demands come with significant exposure for pension funds, their management, and their employees, including potential legal actions based on defamation, breach of fiduciary duty,5 market manipulation, violations of anti-discrimination laws, and breach of counter-terror regulations.
We urge, therefore, that these efforts be rejected.
- The Institute for NGO Research is a Jerusalem-based research organization. Members of the Institute have published multiple studies and policy papers on international human rights and humanitarian law, business and human rights, the UN system and NGOs, and fact-finding in situations of armed conflict. Elliott Abrams, Senior Fellow for Middle Eastern Studies at the Council on Foreign Relations; former Canadian Ambassador to Israel, Amb. Vivian Bercovici; Michal Cotler-Wunsh, former member of Knesset for the Blue and White Party; Hon. Michael Danby, MP, senior member of the Australian Labor Party; Harvard Professor Prof. Alan Dershowitz; Canadian Senator, Hon. Linda Frum; best-selling author and commentator and British journalist and international affairs commentator, Tom Gross; Bonnie Glick, former Deputy Administrator and Chief Operating Officer of USAID; Colonel Richard Kemp, former commander of British forces in Iraq and Afghanistan; Douglas Murray, Director of the Centre for Social Cohesion, best-selling author and commentator; former Member of Italian Parliament, Hon. Fiamma Nirenstein; UCLA Professor and President of the Daniel Pearl Foundation, Prof. Judea Pearl; US Jurist and former Legal Advisor to the State Department Judge Abraham Sofaer; Dr. Einat Wilf, former member of Knesset with the Israel Labor Party and advisor to Shimon Peres; Harvard Professor Prof. Ruth Wisse; R. James Woolsey, former US Director of Central Intelligence; and Israeli Supreme Court Justice, Justice Elyakim Rubinstein.
Anne Herzberg (J.D., Columbia University School of Law; B.A., Oberlin College). She is the author of multiple books, articles, and research studies on international humanitarian and human rights law, international criminal law, and business and human rights, and has presented on these issues at several international conferences. She is also a member of the Business and Human Rights Scholars Association. Publications include: “Misreading Human Rights Due Diligence,” Opinio Juris, November 25, 2021; “UN Treaty Body Promotes BDS at Urging of a Norwegian NGO,” BESA Center Perspectives Paper No. 1,530, April 15, 2020; “Kiobel and Corporate Complicity: Running with the Pack,” American Journal of International Law Special Kiobel Agora, (January 2014); “When International Law Blocks the Flow: The Strange Case of the Kidron Valley Sewage Plant,” 10 Regent J. of Int’l L. 71 (2014); NGO ‘Lawfare’: Exploitation of Courts in the Arab-Israeli Conflict, (September 2008, 2d edition December 2010).“Boycotts, Divestment, Sanctions and the Law,” with Jonathan Turner, 54 Justice 15 (2014); “NGO Factfinding for IHL Enforcement: In Search of a New Model,” with Gerald Steinberg, 51 Israel Law Review 261 (2018).“A Farewell to Arms: NGO Campaigns for Embargoes on Military Exports: the Case of the UK and Israel,” with Gerald Steinberg & Asher Fredman, 19 Israel Affairs 468 (2013); Best Practices for Human Rights and Humanitarian NGO Fact Finding, with Gerald Steinberg and Jordan Berman (Nijhoff 2012).
- See next section.
- Daniel Harris, “BDS and English Law: Taking Stock,” Justice No. 67, https://www.ijl.org/justicem/no67/12/.