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Submission of the Institute for NGO Research Position Paper Regarding the Preparation of a Discriminatory Blacklist Pursuant to UNHRC Resolution 31/36

January 2, 2017 Submission of the Institute for NGO Research Position Paper Regarding the Preparation of a Discriminatory Blacklist Pursuant to UNHRC Resolution 31/36 The Institute for NGO Research, 1
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January 2, 2017 Submission of the Institute for NGO Research Position Paper Regarding the Preparation of a Discriminatory Blacklist Pursuant to UNHRC Resolution 31/36 The Institute for NGO Research, 1 an NGO in Special Consultative with ECOSOC, submits the following information to the Office of the High Commissioner for Human Rights (OHCHR) in advance of its preparation of a discriminatory blacklist aimed at entities doing business over the 1949 Armistice Lines, pursuant to UN Human Rights Council Resolution 31/36. Summary Pursuant to UN Human Rights Council Resolution 31/36, the Office of the High Commissioner for Human Rights, in conjunction with BDS activists, is currently preparing a discriminatory blacklist intended to defame and economically destroy companies doing business with Israel. The ultimate goal is to isolate, demonize, and harm the Jewish State. The UNHRC s discriminatory blacklist operates from the premise that business in occupied territory is illegal settlement activity and is barred by international law. In fact, there is no such prohibition and almost every country engages in and/or facilitates business activities in settlements in situations of occupation throughout the globe. The discriminatory blacklist also targets companies providing security services to the State of Israel, by labeling legitimate security measures (undertaken everywhere in the world) as illegal settlement activity. The purpose is to disrupt efforts to protect civilians from Palestinian terrorism and is part of a decades-long UN campaign to minimize and justify Palestinian violence. 1 Formerly the Amuta for NGO Responsibility. Members of the Institute s Advisory Board include Harvard Professor Alan Dershowitz; Colonel Richard Kemp, former commander of British forces in Iraq and Afghanistan; Hon. Alexander Downer AC, former Foreign Minister of Australia, UN Special Advisor to the Secretary General on Cyprus, and currently Australian High Commissioner to the UK; Hon. Michael Danby MP, senior member of the Australian Labor Party; R. James Woolsey, former US Director of Central Intelligence; former Member of Italian Parliament, Fiamma Nirenstein; US Jurist and former Legal Advisor to the State Department, Abraham Sofaer; UCLA Professor and President of the Daniel Pearl Foundation, Judea Pearl; Harvard Professor Ruth Wisse, former US government official, Elliot Abrams; Einat Wilf, former member of Knesset with the Israel Labor Party and advisor to Shimon Peres; Douglas Murray, Director of the Centre for Social Cohesion, best-selling author and commentator; and British journalist and international affairs commentator, Tom Gross. 1 The discriminatory blacklist promotes the violation of the documents known as the Oslo Accords (1993-5), mutually agreed to by the PLO and Israel, and guaranteed by the UN and the international community. It seeks to punish activity necessary to carry out Israeli security and infrastructure obligations mandated by the agreements. In contrast to actual international law, the interpretation of settlement activity used in Resolution 31/36 is so absurdly broad that the UNHRC may blacklist entities with any presence and for whatever purpose over the 1949 Armistice lines. Under the UNHRC s inexplicable logic of Resolution 31/36, being the wrong person (as secretly defined by anonymous OHCHR bureaucrats) who is cleaning one s hands in a sink over the line could be enough for inclusion on the blacklist. The discriminatory UNHRC blacklist is meant as a backdoor means to impose sanctions. The UNHRC, however, does not have this power. Under Chapter VII, Article 41 of the UN Charter, the power to levy sanctions and implement enforcement mechanisms is solely vested in the UN Security Council. The creation of the blacklist is therefore an illegal usurpation of the Security Council by both the UNHRC and the OHCHR in violation of the UN Charter. The discriminatory UNHRC blacklist violates due process rules and norms by placing individuals and entities on an illegal sanctions list aimed at causing reputational harm and economic damage. The blacklist is being created by anonymous UN bureaucrats in conjunction with BDS activists utilizing vague and secret criteria. There is no oversight of their work, no notice of inclusion, and no right to challenge these arbitrary determinations. Anne Herzberg, legal advisor of NGO Monitor (a project of the Institute for NGO Research), wrote to OHCHR seeking basic information about the procedural aspects of the blacklist, but OHCHR was either unwilling or unable to answer these simple questions. The UNHRC blacklist violates international human rights law and UNHRC guidelines by promoting religious and national origin discrimination, and supporting antisemitic BDS. There are more than a dozen situations of military occupation and settlement activity currently in place around the globe. Yet, as part of the UNHRC s ongoing anti-israel obsession and immoral double standards, Israel alone is singled out. Neither UNHRC nor OHCHR has taken any steps to blacklist economic activities in any other settlements despite their being far greater in scale and scope, as well as in demographic impact, than Israeli settlements located in Jerusalem or over the 1949 Armistice lines. Moreover, boycotts and blacklists have been used to target and discriminate against Jews throughout history. Many of these efforts have been aided and abetted by the UN. The discriminatory UNHRC blacklist is the latest iteration of that shameful legacy. 2 Introduction On March 24, 2016, the Human Rights Council (UNHRC) adopted resolution 31/36, Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan. The resolution calls on the Office of the High Commissioner for Human Rights (OHCHR) in consultation with the UN s Working Group on Business and Human Rights to create a discriminatory blacklist of entities allegedly conducting activities in areas over the 1949 Armistice Lines. This blacklist, aimed at promoting discriminatory anti-israel boycott, divestment and sanctions (BDS), violates international law in the following manner: 1) it operates from the premise that it is illegal to conduct business with an occupying power in occupied territory even though there is no such prohibition whatsoever in international law and almost every country in the world engages in this activity; 2) it promotes the violation of the documents known as the Oslo Accords (1993-5), seeking to punish activity necessary to carry out Israeli security and infrastructure obligations mandated by the agreements; 3) it violates the UN Charter by usurping the exclusive power of the UN Security Council to levy sanctions; 4) it violates due process rules and norms by placing individuals and entities on a sanctions list created by anonymous UN bureaucrats based on secret criteria, with no oversight, no notice, and no right to challenge; 5) the illegal blacklist is predicated on religious and national origin discrimination in violation of the UN Charter, international human rights law, and rules and guidelines of the UNHRC and OHCHR. Paragraph 17 of Resolution 31/36 explicitly calls for the establishment of the discriminatory blacklist: [r]equests the United Nations High Commissioner for Human Rights, in close consultation with the Working Group on the issue of human rights and transnational corporations and other business enterprises, in follow-up to 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 [A/HRC/22/63] and as a necessary step for the implementation of the recommendation contained in paragraph 117 thereof, to produce a database of all business enterprises involved in the activities detailed in paragraph 96 of the afore-mentioned report, to be updated annually and to transmit the data therein in the form of a report to the Council at its thirty-fourth session. (emphasis added) 3 The resolution purports to be a necessary step of Paragraph 117 of the UNHRC s factfinding mission on settlements 2 even though there is no mention in this paragraph of establishing a blacklist, boycott, or sanctions: Private companies must assess the human rights impact of their activities and take all necessary steps including by terminating their business interests in the settlements to ensure that they do not have an adverse impact on the human rights of the Palestinian people, in conformity with international law as well as the Guiding Principles on Business and Human Rights. The mission calls upon all Member States to take appropriate measures to ensure that business enterprises domiciled in their territory and/or under their jurisdiction, including those owned or controlled by them, that conduct activities in or related to the settlements respect human rights throughout their operations. The mission recommends that the Working Group on Business and Human Rights be seized of this matter. Moreover, this paragraph merely asks that private businesses and Member States assess and respect the human rights impact of their activities. Again, it says nothing about creating a blacklist, promoting a boycott, or placing sanctions on those that do not conform to the vague standards advocated by the UNHRC. Resolution 31/36 also says that OHCHR should create a blacklist based on an absurdly broad range of activities that the UNHRC mission claimed raise particular human rights violations. 3 Many of these proscribed activities merely reflect the UNHRC s economic and political ideology: The supply of equipment and materials facilitating the construction and the expansion of settlements and the wall, and associated infrastructures The supply of surveillance and identification equipment for settlements, the wall and checkpoints directly linked with settlements 2 See NGO Monitor s submission to the Fact-finding mission, available at 3 Contrary to the implications of the blacklist, Israelis, even those living in settlements, are also entitled to human rights such as the right to life, right to water, etc As in most activities conducted by the UNHRC, these rights are erased. In other words, according to UNHRC 31/36, it is illegal for Israel to take any measures, such as examining ids, utilizing cameras, or erecting checkpoints or other barriers, to prevent a Palestinian suicide bomber to freely enter a settlement or travel inside the 1949 Armistice lines to kill people. And according to the UNHRC, any companies that are contracted by Israel to implement these measures should be singled out for reputational harm and economic ruin, subject to the whim of anonymous individuals at OHCHR under secret criteria. 4 The supply of equipment for the demolition of housing and property, the destruction of agricultural farms, greenhouses, olives groves and crops The supply of security services, equipment and materials to enterprises operating in settlements The provision of services and utilities supporting the maintenance and existence of settlements, including transport Banking and financial operations helping to develop, expand or maintain settlements and their activities, including loans for housing and the development of businesses The use of natural resources, in particular water and land, for business purposes Pollution, and the dumping of waste in or its transfer to Palestinian villages Captivity of the Palestinian financial and economic markets, as well as practices that disadvantage Palestinian enterprises, including through restrictions on movement, administrative and legal constraints Use of benefits and reinvestments of enterprises owned totally or partially by settlers for developing, expanding and maintaining the settlements It is notable that most of the activity the UNHRC seeks to prohibit involves measures aimed at preventing Palestinian terror attacks on civilians on both sides of the 1949 Armistice lines, weapons smuggling, unsafe and unsanitary building, and crime. I.International Law Does Not Bar Business Activities in Occupied Territory The UNHRC s discriminatory blacklist operates from the premise that doing business in occupied territory is a form of settlement activity and is barred by international law. There is no such prohibition whatsoever. Resolution 31/36 claims that East Jerusalem and the West Bank are occupied by Israel; that the law of occupation, as laid out in the 1907 Hague Conventions, the 1949 Geneva Conventions, and the Additional Protocols apply to the territory; and Israel as the Occupying Power is bound by the legal duties contained therein. 4 In particular, it points to Article 49 of the Fourth Geneva Convention. Article 49(6) states that [t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. The UNHRC interprets this provision as prohibiting settlement activity. 4 Israel is not a party to the Additional Protocols of the Geneva Conventions. Many NGOs and organizations like the International Committee for the Red Cross (ICRC) claim that most of the provisions in these treaties have reached the status of customary law. This is a highly disputed position. See, e.g., Letter from John Bellinger III, Legal Adviser, U.S. Dept. of State, and William J. Haynes, General Counsel, U.S. Dept. of Defense, to Dr. Jakob Kellenberger, President, Intl. Comm. of the Red Cross, Regarding Customary International Law Study, 46 I.L.M. 514 (2007). 5 The UNHRC seeks to reduce the entire body of occupation law to the supposed prohibition against settlement activity. 5 The framework of international humanitarian law, however, is simply not limited to whether there is state compliance with Article 49(6). Moreover, its applicability to private actors is even more attenuated, if at all even relevant. Instead, the law aims to regulate the relationship between a State s military forces and the population and property in enemy territory, which as a result of an international armed conflict, have come under the control of those forces. 6 Under this paradigm, the occupier is required to restore and maintain public order, and provide for the needs of the population. 7 Article 43 of the 1907 Hague Convention sets out this obligation: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. 8 It is important to mention that the 1907 Hague Convention was originally published in French and the French text is the authoritative version. 9 The widely disseminated English translation changed the meaning of the French text. Notably, the French text refers to l ordre et la vie publics (i.e., public order and life), which is considerably broader than the English phrase public order and safety. 10 Yoram Dinstein, the leading expert on the law of occupation, explains that under Article 43, the Occupying Power must restore and ensure, as far as possible, public order and life in the occupied territory and respect the laws in force in the occupied territory unless an 5 It is beyond the scope of this submission to analyze whether Israeli settlements are prohibited by Article 49(6). For discussion on this issue, see YORAM DINSTEIN, THE INTERNATIONAL LAW OF BELLIGERENT OCCUPATION (2009). See also, Eugene Kontorovich, finding no rule or state practice prohibiting or facilitating settlement activity given its ubiquity in every situation of occupation across the globe. Unsettled: A Global Study of Settlements in Occupied Territories, Northwestern Public Law Research Paper (2016). This submission also does not analyze whether territory across the 1949 Armistice Lines is indeed occupied. 6 GEOFFREY S. CORN ET AL., THE LAW OF ARMED CONFLICT: AN OPERATIONAL APPROACH 356 (Vicki Been et al. eds., 2012). 7 Id. at Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, art. 43, Oct. 18, 1907, 187 CTS 227, available at Document [hereinafter Hague Convention]. 9 See Yoram Dinstein, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, HPCR OCCASIONAL PAPER SERIES 2 (2004), default/files/publications/occasionalpaper1.pdf [hereinafter HPCR PAPER]. The original French text reads: L autorité du pouvoir légal ayant passé de fait entre les mains de l occupant, celui-ci prendra toutes les mesures qui dépendent de lui en vue de rétablir et d assurer, autant qu il est possible, l ordre et la vie publics en respectant, sauf empêchement absolu, les lois en vigueur dans le pays. 10 Id. 6 empêchement absolu exists. 11 The provision also makes clear that [w]hen a necessity arises, the Occupying Power is allowed to enact new legislation, repealing, suspending, or modifying the preexisting legal system. 12 Thirdly, Article 43 recognizes the need to ensure the orderly government of the occupied territory. Orderly government laws can encompass security, the environment, public health, and sanitation. There is no doubt that Israel, under the paradigm of occupation, is able to build roads, enact security measures, engage in environmental protection, or other provisions relating to infrastructure. To conclude otherwise could lead to grievous social woes. 13 A March 2013 French appellate court decision elaborates on the scope of Article 43 and points to the legality of a range of infrastructure. The decision dismissed a lawsuit brought by the Palestine Liberation Organization (PLO) and the Palestinian activist group Association France-Palestine Solidarité (AFPS) against three French companies. 14 The PLO and the AFPS accused the French companies of aiding and abetting a violation of Article 49(6) by participating in contracts to build the Jerusalem light rail, a portion of which travels through North Jerusalem, deemed by these organizations to be occupied territory. 15 The PLO and AFPS claimed that Israel was occupying Palestinian territory illegally and that the rail was illegal because of the access that its route provides for Israeli settlers. 16 They argued that the companies participation in the contracts was, therefore, illegal on account of the violation by the State of Israel of its obligations under international occupation law. 17 Among other demands, the claimants sought an order annulling the contracts, thereby prohibiting continued performance and barring the companies from entering into any subsequent agreements. Ultimately, the PLO and the AFPS were seeking a judicial declaration that the Jerusalem light rail itself was illegal and that Israel was violating international law by building it. The French appellate court rejected these demands, basing a significant part of its decision on the failure to allege a cause of action. In particular, the court considered whether an unlawful act had even been claimed. Relying on Article 43 of the Hague Convention, the court noted that building the Jerusalem light rail was not illegal because occupation law allows for the governance of occupied territory which includes the building of transportation 11 Id. at Id. at DINSTEIN, supra note 5, at Cour d appel [CA] [regional court of appeal] Versailles, 3 ch., March 22, 2013, 11/05331 (Fr.), available at [hereinafter Cour d appel], translated at 15 Id. The three companies were not signatories on the contract but had formed an Israeli company that subsequently won the government tender to build the light rail. The companies were also involved in its construction and maintenance. Id. at Cour d appel, supra note Id. 7 infrastructur
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