UN Human Rights Council resolution warning companies to ‘terminate business interests in the settlements’ or face possible criminal liability gets watered down

UN Human Rights Council resolution warning companies to ‘terminate business interests in the settlements’ or face possible criminal liability gets watered down

Annie Robbins and Hostage

The United Nations Human Rights Council (UNHRC) in Geneva passed a resolution today at the closure of the Human Rights Council’s 25th session titled "Israeli Settlements in the Occupied Palestinian Territories, including East Jerusalem, and in the occupied Syrian Golan" (pdf) urging all States to:

(c) To provide information to individuals and businesses on the financial, reputational and legal risks, as well as the possible abuses of the rights of individuals, of getting involved in settlement-related activities, including economic and financial activities, the provision of services in settlements and the purchasing of property;
12. Requests that all parties concerned, including United Nations bodies, implement and ensure the implementation of the recommendations contained in the report of the independent international fact-finding mission [pdf] to investigate the implications of Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, and endorsed by the Human Rights Council through its resolution 22/29 in accordance with their respective mandates;
13. Calls upon the relevant United Nations bodies to take all necessary measures and actions within their mandates to ensure full respect for and compliance with Human Rights Council resolution 17/4 of 16 June 2011, on the Guiding Principles on Business and Human Rights [pdf] and other relevant international laws and standards, and to ensure the implementation of the United Nations "Protect, Respect and Remedy" Framework, which provides a global standard for upholding human rights in relation to business activities that are connected with Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem;

The original draft of resolution (pdf) called for States and private enterprises to terminate business transaction beyond the 1949 armistice lines and warned of the probability of criminal liability for corporate complicity in breach of international law.
Essentially it was a call to boycott and divest from all Israeli settlements in the West Bank, including East Jerusalem, and the Golan Heights or else be prepared to be held criminally accountable.
The final version of the resolution appears to be watered down. However, the request to implement recommendations contained in the "international fact-finding mission", as well as the references to resolution 22/29, 17/4, and the Guiding Principles on Business and Human Rights (pdf) deserves further scrutiny. The UNHRC had already adopted the conclusions and recommendations contained in the fact finding report, which recommended that the issue of corporate culpability be addressed by a special mandate holder created as part of a decade long UN initiative to hold transnational corporations and other businesses criminally responsible for their roles in human rights violations:

117. 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. (pdf)

The Working Group on the issue of human rights and transnational corporations and other business enterprises, is a standing expert panel with their own UN mandate. Today’s resolution noted that it hasn’t reported back yet on the implementation of its mandate with regard to the issue of settlements in Palestine and the Syrian Golan Heights and that it has announced its intention to make a statement before the next session of the UNHRC is convened.
The council held a general debate on human rights violations in Palestine earlier this week which included the follow-up to, and implementation of, the Vienna Declaration and Programme of Action. The Council then adopted the outcomeof the Universal Periodic Review of Israel (full report here).
The background of the vote is that the PA and Arab League requested a special fact finding mission on the impact of the Israeli settlements. In July 2012 the president of the Human rights council appointed three high-level experts to that mission, Christine Chanet as Chair, Asma Jahangir and Unity Dow.  The findings of the mission resulted in an UNHRC report, titled "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".
The missions’ report, which addresses the implications of corporate involvement in international crimes, develops arguments presented in two previous September 2013 reports by Special Rapporteur Richard Falk. Among other things, the first report describes the involvement of 13 businesses in the Occupied Palestinian Territory with reference to the United Nations Guiding Principles on Business and Human Rights. The second report includes case studies on two companies, the American international real estate company  Re/Max  and their international Israeli subsidiary, and the second company is the Dexia Group, a European financial institution.
These companies were chosen for the specific ways in which their activities, including profiting from Israeli settlements, potentially implicate them in international crimes.

IV. Case studies
33. As noted in the previous report of the Special Rapporteur on this issue, there is a wide range of businesses operating in the settlements. The Special Rapporteur surveyed 13 businesses, including several that were Israeli and others that were international. Some businesses were connected with the occupation generally and others with the settlements in particular. In the present report the Special Rapporteur focuses on two discrete areas that relate to settlements. The first area is banking institutions involved in financial transactions, such as loans to construct or purchase Israeli settlements. The company that the Special Rapporteur discusses is the Dexia Group, a European banking group. This builds upon the analysis by the Special Rapporteur of the Dexia Group in the previous report. The second area that the Special Rapporteur draws attention to is real estate companies that advertise and sell properties in settlements. The activities of Re/Max International, a company based in the United States of America, are the focus of analysis in the present report. The case studies aim to determine whether the Dexia Group and Re/Max International, through providing loans and mortgages and through advertising and selling properties in settlements, provide knowing assistance that amounts to aiding in the commission of international crimes associated with transferring the citizens of the Occupying Power to the occupied territory. The Special Rapporteur reiterates that the businesses highlighted are illustrative examples. There are other companies that profit from Israeli settlement activities, both in the economic service areas in which the Dexia Group and Re/Max International are working and in other areas involving
goods and services.

(Full case studies here)
Mondoweiss commenter Hostage:

Those two reports and the threat of liability (posed by Palestine’s joining the ICC and the Prosecutor subsequently acting on the 2009 declaration) triggered divestment by companies located in EU/ICC member states. The Prosecutor will be able to investigate acts committed in the EU or Palestine since July 2002, without any Security Council referral or veto. EU members of the ICC would also be required to investigate and prosecute their citizens and corporations.
The present report develops arguments presented in the previous report of the Special Rapporteur to the sixty-seventh session of the General Assembly, which focused on businesses profiting from Israeli settlements and described the  involvement of 13 businesses in the activities of Israel in the Occupied Palestinian Territory with reference to the United Nations Guiding Principles on Business and  Human Rights. The present report delineates a model for legal analysis by focusing  on two illustrative companies chosen for the specific ways in which their activities potentially implicate them in international crimes. The report also takes note of other issues, including the urgent matter of water and sanitation rights.
http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/22/63

This is Richard Falk’s last stand and a testament to the man he is. It’s his legacy and we thank and honor him. Falk’s 6 year term as  United Nations Special Rapporteur  expires on May 1st. UNHRC decided to delay a vote on 18 incoming special rapporteurs by one month, so it is not clear who Falk’s successor will be.
The ADL  issued a press release earlier this week referencing the resolution:

"This resolution attempts to advance a very similar position to elements of the vehemently anti-Israel Boycott, Divestment and Sanctions (BDS) movement, and at the same time, it puts a serious damper on the current peace talks taking place."
In a letter sent to members of the UNHRC, ADL expressed concern that the resolution was an attack on Israel that was taken "further than any previous sessions."
"Its language goes beyond the current policies of most countries with respect to the issue of Israeli settlements," Mr. Foxman wrote.

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