[PDF version can be viewed here]

Introduction

1. This briefing addresses the impending demolition of the Palestinian community of Khan al-Ahmar Abu al-Helu, located on the outskirts of East Jerusalem in the occupied West Bank. This demolition entails the forcible transfer of its 188 residents, the majority of whom are children, and 95 per cent are registered refugees with the United Nations Relief and Works Agency (UNRWA).

2. Extensive destruction of property without military necessity and forcible population transfer in an occupied territory amount to war crimes under both the Geneva Convention and the Rome Statute for the International Criminal Court. This was reaffirmed in a significant public statement by the Prosecutor of the International Criminal Court, Fatou Bensouda, on 17 October 2018.

3. At a Cabinet meeting of the Israeli Government on 21 October, a decision was taken to delay the demolition for several weeks so as to reportedly consider an offer made under severe duress by residents of Khan al-Ahmar to be relocated to a site several hundred metres away. Israeli officials have previously ignored this suggestion. It is reported that the Israeli Government’s decision to delay followed an intervention from Israel’s Attorney General, Avichai Mandelbit, highlighting that forcibly removing the residents’ would undermine Israel’s position at the International Criminal Court. Sustained diplomatic pressure is also reported to have contributed to the decision.

4. The Khan al-Ahmar residents’ offer is reportedly a bid to prevent their forcible transfer to an area called ‘al-Jabal West’ near the Abu Dis municipal rubbish dump by offering to relocate to a different site. The residents have opposed moving to al-Jabal West saying that they were never consulted, that the location is unsuitable for their rural way of life, and that it is adjacent to a rubbish dump. They have similarly opposed a second relocation site proposed two months ago by Israeli authorities which is adjacent to a sewage treatment facility. Their principal position – which is protected by international humanitarian law as they are protected persons residing within occupied territory and there is no military necessity for their forced removal – is to remain in Khan al-Ahmar.

5. It is incumbent upon the UK Government, either acting alone or in concert with other States, to take effective action should the demolition of Khan al-Ahmar and the forcible transfer of its residents materialise. Such action should include specific legal accountability measures.

6. This action is necessary to: a) avoid undermining the credibility of the UK Government’s unequivocal public statements that the forcible transfer of protected persons in Khan al-Ahmar would breach international humanitarian law; b) provide an effective deterrent against Israeli authorities further implementing their “relocation plan” affecting 46 named Palestinian communities in the West Bank (see next section below), of which Khan al-Ahmar will be the first to be actioned; and c) underscore the UK Government’s stated commitment to respect for the rule of international law and human rights.

7. We accordingly urge the UK Government to take the proposed seven urgent actions outlined at the conclusion of this briefing. These actions have previously been presented by LPHR to the UK Government in the last twelve months with the objective of deterring the demolition and forcible transfer of Khan al-Ahmar.

Context of the impending demolition of Khan al-Ahmar and forcible transfer of its residents

8. Khan al-Ahmar Abu al-Helu is home to 188 people, 53 per cent of whom are children and 95 per cent of whom are Palestine refugees registered with UNRWA. The community also has a school, where some 170 children aged six to fifteen were educated, some of whom come from four nearby communities. Before it was built in 2009, these children had to make lengthy and risky journeys to attend school.

9. Khan al-Ahmar Abu al-Helu will be the first of 46 Bedouin communities named in the Government of Israel’s “relocation plan”, published in August 2014, to be demolished. It therefore represents a significant test case relative to the implementation of the plan.

10. This “relocation plan” advanced by Israeli authorities affects 1,358 families and 8,174 people, over half of whom are children. From a legal perspective it amounts to a “mass forcible transfer plan”. The potential mass demolition of communities and expulsion of the Bedouin from the land must be seen within the context of Israel’s continual settlement expansion endeavours within the occupied Palestinian territory, that are contrary to international law and in serious breach of UN Security Resolution 2334.

11. Khan al-Ahmar is one of eighteen of the Bedouin communities named in the ‘relocation plan’ that is located in or next to the sensitive E1 area around Jerusalem, where the Government of Israel plans to expand existing illegal settlements through the construction of thousands of new illegal settlement housing and commercial units, creating a continuous built-up area between the illegal Ma’ale Adumim settlement and Jerusalem.

12. The residents of Khan al-Ahmar therefore amount to an obstacle to Israeli developments plans for the future expansion of the illegal Ma’ale Adumim settlement and for the E1 area. The affected area is also planned to be surrounded by the illegal Separation Barrier. If implemented, these plans will undermine Palestinian presence in the area, further disconnect occupied East Jerusalem from the rest of the West Bank, and disrupt the territorial contiguity of the occupied Palestinian territory.

13. Israeli authorities have justified the “relocation plan” by claiming that the residents lack title over the land and that the relocation will improve their living conditions. The residents, however, have not been genuinely consulted about the plan. They firmly oppose it and insist on their right to return to their original homes and lands in southern Israel. In the meantime, they have requested protection and assistance in their current location, including adequate planning and permits for their homes and livelihoods.

14. Various Israeli practices have created a coercive environment which functions as a push-factor for the targeted communities in the “relocation plan”. These practices include the restriction of access to grazing lands and markets; the denial of access to basic infrastructure; a prohibitive application process for building permits; and the demolition and threat of demolition of homes, schools and animal shelters. Authorities have also largely failed to protect the communities from intimidation and attacks by settlers.

15. The three designated “relocation” sites for the targeted communities are inadequate and raise serious humanitarian concerns. For a number of reasons, including the limited availability of grazing land at the designated sites, the relocation is expected to undermine the traditional livelihoods and culture of the communities, as was the case for 150 Bedouin families who were relocated from this area in the 1990s. One of the three new “townships” – and the primary proposed relocation for the residents of Khan al-Ahmar – is located next to a refuse dump site, raising serious health concerns.

16. The UN Secretary General has stated that the implementation of the proposed “relocation plan” would amount to mass forcible transfers prohibited by international humanitarian law. He has clarified that under international law “forcible transfer does not necessarily require the use of physical force by authorities, but may be triggered by specific circumstances that leave individuals or communities with no choice but to leave; this is known as a coercive environment” (A/HRC/34/38, March 2017). He has also called on the Israeli authorities to “(c)ease from taking any initiative to relocate communities in Area C in contravention of international law, including Bedouin and herder communities” (A/72/564, November 2017).

17. In specific relation to Khan al-Ahmar, a number of court petitions have been filed by Israeli illegal settlers over the years seeking demolition of both its school and residential structures, including one filed a month after its school was built in 2009. In September 2012, the Israeli Government announced that it was considering a relocation of the community and school through a participatory process, and in November 2013 it indicated its plan to relocate residents to an area north of Jericho, in response to which the residents made clear their opposition. Thereafter, further court petitions were filed by both illegal settlers and residents of Khan al-Ahmar.

Israeli Supreme Court permits the demolition and forcible transfer of Khan al-Ahmar

18. An Israeli Supreme Court judgment of 24 May 2018 gave permission to Israeli authorities to demolish the homes of the community of Khan Al-Ahmar and relocate the residents away from their homes. This decision was confirmed when a final appeal by residents was rejected by the Supreme Court in early September.

19. The 24 May 2018 Supreme Court judgment focused upon the view that the construction in Khan al-Ahmar is ‘illegal.’ However, this position ignores the reality that residents had been forced to build without the requisite building permissions because these are systematically denied by the discriminatory planning system operated by Israeli authorities in Area C of the occupied West Bank.

20. The Supreme Court judgment also suggested that judicial intervention to prevent the transfer plans is not required because the proposal for relocation is “not an unreasonable one” given the new area for the families to live and arrangements made to continue shepherding. Apart from the fact that this cannot justify forcible transfer, it is also factually incorrect. The Israeli government’s statement to the court confirms that the neighbourhood ‘is indeed planned in an urban environment’, which does not include large pasture lands or farming areas. Accordingly, residents would be forced not only to leave their homes, but to fundamentally change their way of life.

21. Furthermore, and crucially, the Supreme Court judgment fails entirely to engage with the issue of international humanitarian law provisions that should prevent the residents’ transfer from Khan al-Ahmar Abu al-Helu. It states that the court will not interfere in decisions made by the Israeli government about ‘law enforcement’ actions, but gives no explanation for the glaringly clear potential breach of international humanitarian law and international criminal law that is inherent in the forcible transfer of the residents of Khan al-Ahmar.

The demolition of Khan al-Ahmar is likely to amount to the war crime of forcible transfer, which is prosecutable before the International Criminal Court

22. Palestinian residents in the occupied West Bank have the status of protected persons under the Geneva Conventions. Article 49 of the Fourth Geneva Convention prohibits “forcible transfer” of protected persons for any reasons. Pursuant to Article 147 of the Fourth Geneva Convention, the unlawful forcible transfer of protected persons amounts to a grave breach of international humanitarian law, and accordingly a war crime entailing individual criminal responsibility for all persons involved with its implementation, including government officials.

23. Under Article 49 of the Fourth Geneva Convention, evacuations are only permitted where required for the security of the population or imperative military reasons. This is not the case in regard to actual and planned demolitions by Israeli authorities in the occupied West Bank. Israel has specifically referred to lack of permits for buildings in its purported justification for its proposed actions. This underlines the fact that their plans clearly relate to building permissions and paving the way for the expansion of illegal settlements, both of which fall outside the only legally permitted grounds to justify the transfer of protected persons (that is, military or security needs).

24. Article 8 (2) (a) (vii) of the Rome Statute of the International Criminal Court provides that unlawful transfer is a war crime. Under the Rome Statute, “forcible transfer of population” is defined as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” We consider the Israeli government plans for the “relocation” of residents in the occupied West Bank, including in Khan al-Ahmar, would clearly meet this legal definition of the war crime of forcible transfer.

25. It is also important to note that the extensive demolition of private property, when carried out wantonly and unlawfully, constitutes a grave breach of the Fourth Geneva Convention and is a war crime under the Rome Statute.

26. It must be noted in this context that the International Criminal Court is able to examine alleged war crimes committed on Palestinian territory since 13 June 2014, following Palestine’s accession to the Rome Statute. The Prosecutor of the International Criminal Court, Fatou Bensouda, underscored this fact in her important short statement of 17 October 2018 which opened with the following two paragraphs:

“I have been following with concern the planned eviction of the Bedouin community of Khan al-Ahmar, in the West Bank. Evacuation by force now appears imminent, and with it the prospects for further escalation and violence.

“It bears recalling, as a general matter, that extensive destruction of property without military necessity and population transfers in an occupied territory constitute war crimes under the Rome Statute.”

The UK Government’s position on Khan al-Ahmar is consistent with international law

27. The UK Government has been clear that the demolition of Khan al-Ahmar and forcible transfer of its residents would violate international humanitarian law. In response to two letters from LPHR, the Minister of State for the Middle East, Alistair Burt MP, has notably made explicit and important reference to the legal term “forcible transfer”.

28. In his reply to LPHR dated 11 October 2017, Minister Alistair Burt stated: “We also make clear to Israel that forcible transfer of protected persons would be a breach of international humanitarian law and would have serious ramifications on Israel’s international standing.”

29. And in his reply to LPHR dated 27 June 2018, Minister Alistair Burt stated: “the Foreign Secretary made clear in his statement of 1 June, that the UK is deeply concerned by the proposed demolition of the village of Khan al-Ahmar which the UN has said could amount to ‘forcible transfer’ in violation of International Humanitarian Law.”.

30. Subsequent to this, on 10 September 2018, the UK Government issued a significant joint public statement with other European nations, Germany, France, Spain and Italy:

“France, Germany, Italy, Spain and the United Kingdom have repeatedly expressed their concern about the village of Khan al-Ahmar, which is located in a sensitive location in Area C, of strategic importance for preserving the contiguity of a future Palestinian state.

“We took note of Wednesday’s decision by the Israeli Supreme Court leaving a demolition of Khan al-Ahmar up to the discretion of the Israeli government.

“We therefore join High Representative/Vice-President Federica Mogherini in reiterating our call to the Israeli government not to go ahead with its plan to demolish the village – including its school – and displace its residents.

“The consequences a demolition and displacement would have on the residents of this community, including their children, as well as on the prospects of the two-state solution would be very serious.”

31. The Prime Minister, Theresa May, at Prime Minister Questions on Wednesday 17 October 2018, underlined the UK Government’s opposition to the demolition of Khan al-Ahmar and the forcible transfer of its residents when stating:

“My right hon. Friend the Minister for the Middle East met the Israeli ambassador on 11 October. He made clear the UK’s deep concerns about Israel’s planned demolition of the village of Khan al-Ahmar. Its demolition would be a major blow to the prospect of a two-state solution with Jerusalem as a shared capital, and I once again call on the Israeli Government not to go ahead with its plan to demolish the village, including its school, and displace its residents.”

A business and human rights component to the demolition of Khan al-Ahmar that includes the potential involvement of UK companies

32. LPHR is closely monitoring the potential involvement of UK companies in the demolition of Khan al-Ahmar. We consider that this would be in their breach of business and human rights responsibilities and may amount to aiding and abetting a war crime.

33. This follows from LPHR noting that when Israeli authorities begun paving an access road to Khan al-Ahmar on 4 July 2018 in preparation for its demolition, the BBC reporter, Tom Bateman, published a photo of an excavator carrying the logo of the UK company, J.C. Bamford Excavators Limited (JCB).

34. This raised our serious concern that:

a) JCB’s products are contributing to human rights violations against the Palestinian residents of Khan al-Ahmar, and that the provision of JCB’s construction equipment for use by the Israel authorities in these (and other) demolitions is in breach of JCB’s human rights responsibilities under the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises;

b) JCB may be in the process of committing the criminal offence of aiding and abetting the commission by another person of a grave breach of the Fourth Geneva Convention, namely aiding and abetting Israeli authorities in perpetrating the forcible transfer of protected persons which is prohibited by Article 49 of the Fourth Geneva Convention. This could incur the criminal liability of individuals within the company.

35. We accordingly urged the UK government, by a letter dated 5 July 2018, to investigate these concerns and outlined a number of recommendations. Among them, we urged that the UK Government should ask JCB to immediately take all available steps and use all available leverage to ensure that its construction equipment is not used to contribute to the demolition process in Khan al-Ahmar or the prohibited forcible transfer of its residents, and that no further equipment be supplied in relation to such purpose.

36. Minister Alistair Burt’s reply of 12 September stated that the UK Government had made enquiries into this issue and that it is committed to fostering respect for the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises.

37. There was a lack of clarity on whether UK Government officials had sought direct dialogue with JCB as part of its enquiries into JCB’s apparent involvement in the pre-demolition process in Khan al-Ahmar.

38. We have therefore sought clarification that the Government’s enquiries did include asking JCB to take all necessary measures to ensure its compliance with the UN Guiding Principles on Business and Human Rights / OECD Guidelines, and the details of any response (please see our letter dated 24 September available on our website). Minister Alistair Burt declined the opportunity to clarify this in his written response to LPHR dated 10 October (also available on our website).”

39. In addition to this dialogue with the UK Government, LPHR wrote to JCB on 21 August 2018 about our concerns without a response being received. We are now closely monitoring whether the products of UK companies have been involved in the current demolition of Khan al-Ahmar. We will present the results of our investigation soon.

Seven actions for the UK government to consider as part of an urgent intervention

40. It is incumbent upon the UK Government, either acting alone or in concert with other States, to take effective action in response to the demolition of Khan al-Ahmar and the forcible transfer of its residents. Appropriate legal accountability measures are required as both a necessary response to the actions in Khan al-Ahmar, and also as the most effective deterrent against further demolitions and forcible transfers in the occupied West Bank. We accordingly urge the UK Government to take the following urgent actions:

a) Call upon Israel (in public statements as well as in private communications) to immediately cease further demolitions and forcible transfer plans for Palestinian communities in the occupied West Bank.

b) Instigate and provide support for the establishment of expert and independent observation and investigation teams to document apparent criminal offences and / or human rights violations linked to demolitions and population transfers in the occupied West Bank.

c) Raise serious concerns with Israel in regard to any planned or actual commission of the war crime of forcible transfer, and state the UK Government’s expectation that any individual responsible for the commission of this war crime be criminally investigated and prosecuted under Israel’s legal system.

d) Assess how it can fully conform with its legal obligation under the Geneva Convention to “ensure respect” for its provisions, including through preparing the domestic exercise of universal jurisdiction measures to hold individuals criminally responsible for committing the war crime of forcibly transferring Palestinians in the occupied West Bank.

e) Issue a public statement concerning the need for JCB and all other UK companies to immediately implement all necessary measures in conformity with their business and human rights responsibilities so as to ensure they are not involved in criminal offences and / or human rights violations connected to demolitions and forcible transfers in occupied territory.

f) Urge Israel to end its discriminatory and unlawful planning policies and laws by amending its planning legislation and processes to clearly ensure planning and construction rights for Palestinian residents in Area C of the occupied West Bank.

g) Continue to use precise terminology expressly referring to “forcible transfer” and Israel’s specific obligations under international humanitarian law in its bilateral relations, public statements and before international fora on this grave issue.

Tareq Shrourou, Natalie Sedacca

[Update: Business and Human Rights Resource Centre published our letter on 18 September. They sought a reply from JCB, but the company did not respond.]

LPHR has today submitted an urgent letter to the UK company, JC Bamford Excavators Limited (“JCB”), in relation to the use of their excavators in the imminent demolition of the village of Khan al-Ahmar in the occupied West Bank. It can be read here.

Our letter follows the publication of images of a JCB excavator assisting in the levelling of access roads to Khan al-Ahmar on 4 July, and our letter on this specific issue to the UK Government.

We raise with JCB the serious concern that the provision of its products for use by the Israel authorities in these (and other) demolitions, is in breach of JCB’s human rights responsibilities under the UN Guiding Principles on Business and Human Rights (UNGPs) and the OECD Guidelines for Multinational Enterprises (OECD Guidelines).

We additionally raise with JCB the significant concern that JCB’s involvement in the demolition process of Khan al-Ahmar – which will lead to the involuntary eviction of its 181 residents – may amount to aiding and abetting the war crime of forcible transfer. This could lead to the criminal liability of individuals within the company.

We urge JCB to consider our two practical and necessary recommendations that are in accordance with their business and human rights responsibilities:

1. immediately implement all necessary measures to bring JCB into transparent compliance with the UNGPs and the OECD Guidelines in regard to the use of JCB products by the Israeli authorities; and

2. take all available steps and use all available leverage to ensure that JCB’s products are not used to contribute to the demolition process in Khan al-Ahmar or the prohibited forcible transfer of its residents and that no further equipment is supplied in relation to such purpose

LPHR requests that JCB inform us as soon as possible what steps they will take in relation to points 1 and 2 above. We will continue to closely monitor this urgent matter.

Contact information: Tareq Shrourou, Director of LPHR,

About LPHR: Lawyers for Palestinian Human Rights (LPHR) is a lawyer-based legal charity in the UK that works on projects to protect and promote Palestinian human rights. LPHR’s mission is to use our expertise to meaningfully contribute towards transforming the critical human rights situation impacting Palestinians.

[PDF version of this statement is here]

[PDF version can be read here. And published by the Business and Human Rights Resource Centre here]

Following on from our briefing in January 2018 on the UK Government’s position on the UN Business and Human Rights Database (UN Database) that will list companies involved in settlement-related activities, we have set out the latest updates on the UN Database below.

What is the UN Database and why is it important?

The UN Database will name companies involved in settlement related activities that adversely impact Palestinian human rights. It is being devised by the Office of the United Nations High Commissioner for Human Rights (OHCHR), under a mandate given to it by UN Human Rights Council resolution 31/36 in March 2016.

If published (see question 5 below), the UN Database will place a spotlight on companies acting in breach of their human rights responsibilities under various business and human rights guidelines through involvement in settlement-related activities. This spotlight will enable civil society and investors to productively engage with the companies, to see how such breaches can be sufficiently addressed.

The UN Database is a necessary and proportionate measure to effectively challenge Israel’s illegal settlement policy by incentivising named companies to evaluate/re-evaluate their human rights responsibilities, and to accordingly properly withdraw from settlement-related activities where it is not possible to remediate their involvement in human rights violations. In so doing, the UN Database has significant potential to effectively advance basic public interests of transparency, accountability and corporate respect for human rights.

Why does corporate involvement in settlements matter?

Continuing corporate involvement in the occupied West Bank and East Jerusalem enables and perpetuates Israel’s settlement enterprise which severely harms the human rights of Palestinians.

The inextricable link between settlements and negative human rights impacts was recently reaffirmed by OHCHR in its February 2018 update on the UN Database: “[T]he violations of human rights associated with the settlements are pervasive and devastating, reaching every facet of Palestinian life, owing to settlement development and infrastructure, Palestinians suffer from restrictions on freedom of religion, movement and education; their rights to land and water; access to livelihood and their right to an adequate standard of living; their rights to family life; and many other fundamental rights.”

Detailed analysis from multiple sources has confirmed the “devastating” impact of the settlements on the day-to-day lives of Palestinians and their social and economic well-being. For example, the International Labour Organisation has categorically noted the detrimental impact of settlement development on the Palestinian economy: “The combined weight of the continued occupation and the settlements has not permitted the development of a viable, productive Palestinian economy, which could provide sufficient opportunities in terms of decent work. If the current trends continue, the scope for such opportunities will shrink further.” 

This authoritative analysis contradicts the highly disappointing suggestion of the then UK foreign secretary, Boris Johnson, in February 2017, that the development of illegal settlements, and continued trade with them, is the “best way to support the economy of the region”.

Many individuals and organisations have supported OHCHR in its work on the UN Database. More than 400 members of Israeli civil society, including a former attorney general and former members of the Knesset, have signed a petition in support of the database. 56 non-governmental organisations (including LPHR) have signed a supportive joint statement, and 60 UN member states have signed a letter received by the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein (UN High Commissioner).

When was the UN Database due to be published and what happened?

Originally, the UN Database had been aimed to be ready for publication in March 2017. It has, however, been delayed, with no amended date set for its publication.

OHCHR published a report, on 1 February 2018, setting out their progress so far. The OHCHR noted in that report that it is behind schedule because of lack of resources, and that it needs additional resources if it is to complete its work on the UN Database.

The UN High Commissioner, Zeid Ra’ad Al Hussein, has recently suggested that there may be a further update by his office prior to September, which we expect may coincide with the end of his term in August.

Will the UN Database be published?

There is a lack of clarity over whether the UN Database will ever be published.

LPHR firmly supports its publication, as soon as the relevant work is complete in accordance with OHCHR’s methodology. Without publication, a number of the benefits of the UN Database, and particularly the transparency, accountability and corporate respect for human rights that it encourages, will be lost.

There has, however, been significant pressure, particularly from the US and Israel, not to publish the UN Database once it is complete. In fact, the US administration claimed that it would leave the UN Human Rights Council if the Database was published; although this threat is now less relevant given the US’ announcement last month that it is leaving the UN Human Rights Council in any event.

The UK Government has also argued, as one of its reasons for not supporting the UN Database, that it should not be made public based on its interpretation of UN Human Rights Council resolution 31/36. As outlined in our January 2018 briefing on the UK Government’s position on the UN Database, we believe the UK’s interpretation is misjudged. The text of OHCHR’s mandate in Resolution 31/36 carries the clear implication that the UN High Commissioner’s report will be made public at a session of the UN Human Rights Council. This is in line with general practice for UN High Commissioner reports, and there is further no express reference in Resolution 31/36 for the report to be private.

What methodology has OHCHR adopted for producing the UN Database?

Both the UK Government and LPHR have previously expressed concerns about what methodology would be applied in relation to the UN Database. LPHR is keen to ensure that the methodology adopted by OHCHR is sufficiently rigorous, and, particularly, to ensure that it affords adequate due process to companies.

The February 2018 update report from OHCHR should allay these concerns.

The report explains that OHCHR devised its methodology in consultation with the Working Group on the Issue of Human Rights and Transnational Corporations.

The applicable standard of proof for potential inclusion on the UN Database is whether there are reasonable grounds to believe that a company is engaged in one or more of the listed settlement-related activities that OHCHR considers does have an adverse impact on the human rights of Palestinians.

OHCHR first carried out desk-top reviews of publicly available information, and invited information from States and submissions made by non-governmental organisations. As a result of information received, a long-list of 307 companies was formed.

This long-list was then refined, by excluding companies on particular grounds (for example, if they were no longer engaged in the alleged activities, or did not carry out any of the specific activities that were within OHCHR’s remit to consider).

The resulting short-list after applying the exclusion criteria has left 206 companies for potential inclusion on the UN Database. OHCHR has not disclosed the names of any of these companies.

Is fair due process for companies provided in OHCHR’s methodology?

Importantly, and in line with a call made by LPHR to incorporate fair due process into its methodology, OHCHR revealed in its February 2018 update that it had decided to contact each individual company to provide them with an opportunity to provide a response on their apparent involvement in settlement-related activities. OHCHR explained that it has provided a right of response to short-listed companies so as “to offer a procedural safeguard designed to provide fairness, consistency, reasonableness and absence of arbitrariness of potential decisions that may affect the interests of business enterprises.”

At the time of its February 2018 report, only just over one quarter (64) of the 206 short-listed companies had been contacted by OHCHR, due to its limited resources. Whilst doing so, it has carried out its own detailed research, in English and Hebrew, on the short-listed companies, and accessed a range of other information, including annual financial reports, official websites and financial resources.

How have the short-listed companies responded to OHCHR?

OHCHR’s February 2018 report states that they had received mixed responses from the 64 companies that they have contacted. The precise details of the responses were not disclosed in the report, but rather have been grouped under several categories.

Whilst some objected to OHCHR’s mandate altogether and declined to provide a substantive response, or rejected the information presented and objected to being included in the UN Database, some companies did accept the information presented and their participation in a particular settlement-related activity, and provided explanations. Further companies provided information which indicated they were no longer involved in the relevant settlement-related activity, or that will require further discussion and analysis before a determination can be made about their involvement in a settlement-related activity.

OHCHR has not yet given further detail on what impact these specific responses will have on whether the responding companies will be included on the UN Database.

How many of the short-listed companies are from the UK?

Three of the companies on the short-list are from the UK. The names of these companies have not been disclosed. There were originally six UK companies on the long-list, but half of these were excluded as a result of OHCHR’s initial screening process.

OHCHR has only contacted one of these UK companies so far, and we do not know how that company has responded.

Where are the majority of the companies being considered from?

The majority are from Israel or the settlements (131), with the rest predominantly being from the USA (20), Germany (7), the Netherlands (5) and France (4).

Is there an update on whether G4S or FIMI Opportunity Funds have been shortlisted by OHCHR?

LPHR made a submission in December 2016 to OHCHR which focused on G4S and FIMI Opportunity Funds (an Israeli private equity fund). We then submitted an update to OHCHR in August 2017 following G4S’ announcement that it had completed the sale of G4S Israel to FIMI Opportunity Funds.

LPHR recommended to OHCHR that both G4S and FIMI should be considered for inclusion on the UN Database. This is because we are concerned that following G4S’ announcement of its sale of G4S Israel to FIMI in December 2016, G4S has failed to provide the clarification that we have sought as to the extent of the sale or the extent to which it would continue, post-sale, to be involved in activities that infringe upon the human rights of Palestinians.

Our specific interest in these two companies arise from LPHR successfully pursuing a significant business and human rights complaint under the OECD Guidelines for Multinational Enterprises against G4S for its involvement in human rights violations against Palestinians in Israel and the occupied Palestinian territory.

In March 2016, and just nine months after the OECD UK National Contact Point agreed with our evidence-based assessment that G4S were in breach of its human rights responsibilities under the OECD Guidelines, the company announced that it had commenced a process to sell its subsidiary, G4S Israel. The UK multinational announced the completion of the sale of G4S Israel to FIMI Opportunity Funds in June 2017.

Although the names of the short-listed companies on the UN Database have not been disclosed, we are concerned that notes in OHCHR’s February 2018 report suggest that neither may have been included.

OHCHR states that it has excluded from the UN Database business enterprises that were “no longer engaged in the alleged activities because of corporate restructuring (for example, if a part of the business had been sold)…”. However, as we outlined in our December 2016 submission and August 2017 update, despite G4S’ sale of its subsidiary, G4S Israel, to FIMI, there is no clarity about whether, despite this sale, G4S will continue to be involved in relevant activities. Until this has been clarified, we would contend that G4S should be considered for inclusion on the UN Database, and further suggest that OHCHR should investigate and engage with G4S to understand the reality of their current involvement, if any, with settlement-related activities.

OHCHR has also stated (in a footnote to its February 2018 report) that the UN Database will not include hedge funds or private investment firms. We are concerned that, on this basis, OHCHR may seek to exclude FIMI, a private equity firm, from the UN Database. LPHR would urge the OHCHR to reconsider this approach. This is because the UN Guiding Principles on Business and Human Rights (UNGPs) apply to all business enterprises regardless of their sector, and OHCHR itself has gone into some detail on how the UNGPs apply to financial institutions. There is no provision in the UNGPs to exclude hedge funds or private investment firms from its scope.

Whilst there is more work to be done in unpacking the ways in which the UNGPs apply in a private equity context, we would suggest that it would not be in the interests of transparency, accountability and corporate respect for human rights to exclude such firms from the UN Database.

What is the UK Government’s current position on the UN Database?

LPHR’s January 2018 briefing would be a good read for anyone seeking information on the UK Government’s position on the UN Database. There has been no material change in the UK’s position since then.

To recap very briefly here, the UK Government was one of 15 states to abstain from the UN vote on establishing the database in March 2016 at the UN Human Rights Council; 32 states supported the vote and no states voted against.

The UK was the only State to publicly declare at that vote that the database was “inappropriate” and that “it would not cooperate in the process” of its implementation. The UK’s vote and position is glaringly incompatible with the UK’s clear support for the United Nations Guiding Principles and Business and Human Rights (UNGPs) and its long-standing position that Israeli settlements are illegal.

LPHR has been in contact with HM Foreign and Commonwealth Office on the UK Government’s position. It has briefly elaborated a host of reasons for its opposition to the UN Database to LPHR. Our assessment of them is that they do not individually or cumulatively amount to an adequate basis for justifiably opposing the UN Database. This is all outlined in our January 2018 briefing.

Subsequent to the publication of our January briefing, the UK Government has reiterated its opposition to the UN Database. This occurred at the 37th session of the Human Rights Council in March, where the UK stated:

“As in 2017, today we are abstaining on the Settlements resolution. The implications of the 2016 resolution, specifically creating a database of businesses that trade with settlements, remains concerning. We urge those responsible for implementing this database to avoid doing so in ways that would exacerbate tensions and risk creating a de facto blacklist.”

So is the UN Database really a blacklist?

No. The UN Database is a business and human rights mechanism that builds upon widespread support (including by the UK) for the UN Guiding Principles on Business and Human Rights, rather than a “BDS” promotional tool, or “blacklist”, as pejoratively stated and framed by Israeli and United States government officials. The UK Government must be careful to refrain from repeating such language in its own discourse on the UN Database.

It must be noted that companies have the opportunity to constructively engage with OHCHR prior to their potential inclusion on the UN Database, and civil society organisations and investors will no doubt also want to engage with those companies once the UN Database is made public.

There are no sanctions attached to inclusion on the UN Database and, as OHCHR has shown through its methodology, inclusion on the UN Database is not a permanent step; companies are expected to come on and off the UN Database, depending on their current activities and the information they provide to OHCHR.

What is next for the UN Database?

LPHR will await the update on the UN Database from the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, that is expected before September 2018.

In the meantime, we are in regular contact with other non-governmental organisations who support the preparation and publication of the UN Database. For example, following the OHCHR update report in February 2018, LPHR worked on a letter signed on by 33 organisations including Amnesty International, Al Haq, and the Cairo Institute for Human Rights (based in Geneva), that was addressed to the UN High Commissioner for Human Rights, and that made the four recommendations that are well worth repeating here:

i) Immediately list businesses that have been duly screened and contacted according to the methodology and standard of proof set out in the report, and who subsequently provided a response rejecting the process and mandate of OHCHR, or have not provided a response within the given 60 day timeframe;

ii) Continue working with civil society organisations and human rights defenders in full transparency for the completion and continuous updating of the UN Database, and the strengthening of methodologies and procedures;

iii) Ensure that appropriate resources are allocated so as to allow for continued development of the UN Database mechanism;

iv) Include, in the coming report, direct recommendations for States on how to engage with the new mechanism to help them distinguish in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967, as stipulated by UN Security Council resolution 2334.

LPHR will also continue to urge the UK Government, through meetings and correspondence, to take the following steps outlined in our aforementioned January 2018 briefing:

i) Revise its opposition to the UN Database, and begin supporting it so as to establish necessary coherence with its principled positions supporting the UN Guiding Principles on Business and Human Rights and its firm and clear position recognising the illegality of Israeli settlements;

ii) Clarify the action it will be taking against any UK company placed on the UN Database, which should include considering to exclude it from procurement processes for public contracts until the human rights issues raised have been adequately addressed;

iii) Update its Overseas Business Risk guidance to UK companies operating, or planning to operate, in Israel and the occupied Palestinian territory, so that it makes express reference to the need for companies to fully consider and adhere to their human rights responsibilities under the UN Guiding Principles on Business and Human Rights and OECD Guidelines for Multinational Enterprises.

Claire Jeffwitz, Tareq Shrourou

(Signed by 33 organisations, including Lawyers for Palestinian Human Rights, Amnesty International and Al Haq)

Your Excellency,

The undersigned 33 organisations welcome the report your office released on 26 January 2018 pursuant to Human Rights Council resolution 31/36 on Israeli settlements in the Occupied Palestinian Territory (OPT), with regards to producing a Database of all business enterprises engaged in certain specified activities related to the Israeli settlements in the OPT. Our organisations acknowledge the significant progress made in establishing the Database, and in setting out a clear methodology and solid normative framework for this purpose. The report reiterates the unequivocal language of UN Security Council resolution 2334: the establishment by Israel of settlements in the OPT has no legal validity, and constitutes a serious and flagrant violation of international law. It further affirms that businesses should be prepared to accept any consequences – reputational, financial, or legal – of involvement in human rights violations. Given the clarity with which your office has addressed and rebutted the standard arguments proffered by certain companies seeking to justify their engagement in the settlements, going forward there can be no doubt that an enterprise which conducts such activities does so at its own peril.

While we acknowledge the progress made to date, there is much work left to do. In that regard, and conscious of the fact that this mandate was created almost two years ago, we would urge your office to complete its review of all companies named as a matter of urgency. As many of our organisations have already highlighted, the Database should be a mechanism that assists states in meeting their obligations under international law, including the obligation not to recognize as lawful – even implicitly – the illegal situation created by Israeli settlements and not to contribute to maintaining this illegal situation. This entails regulating businesses domiciled in their territory to ensure they are not engaged in listed activities in settlements.

In moving forward with this process, we would ask your office to further clarify and elaborate on specific matters of methodology and processes. For example, as part of the screening process, we would ask that your office define the ‘minimal and remote’ business activities that would result in the business being excluded from the Database, and explain how this definition may relate to sub-contracting relationships and supply chains. For purposes of increased transparency, we would urge you to reconsider providing enterprises with the option of keeping the substance of written responses confidential. While we acknowledge that there may be a value in companies submitting information confidentially during the fact-finding stage for the purpose of enabling constructive engagement, we nonetheless suggest that company responses to allegations of fact be made public. Alternatively, as a minimum, an accurate summary of the company’s response should be publicly released. This disclosure constitutes vital access to information for affected communities and individuals in the settlement areas. Similarly, in relation to your communications with states that have relevant business enterprises domiciled in their countries, we request that you provide more information on commitments such ‘home’ States may have agreed to undertake in this regard. Moreover, the data gathered on companies involved in human rights violations in the OPT should be transmitted by the OHCHR to the Human Rights Council (HRC) as an annually updated official document providing a living Database.

The undersigned organisations acknowledge the effort and resources required to accomplish the progress highlighted in the report, where your office has reviewed 321 companies allegedly involved in activities pursuant to paragraph 96 of the fact-finding mission report on the settlements (A/HRC/22/63). We strongly suggest that all the businesses that were duly screened and contacted according to the methodology and standard of proof set out in the report, and who subsequently provided a response rejecting the process and mandate of OHCHR or have not provided a response within the given 60 day timeframe, should be immediately released. It should be recalled that the purpose of the Database is to be a living document with periodic updates. As such, the release of any current findings would be a first step towards the ongoing work set out in the mandate. In addition, we believe that there must be a clear time frame set for an enterprise’s engagement with your Office, including a maximum timeframe for those companies that opt to constructively engage with your Office, for the sake of increased transparency and clarity of the process for all stakeholders involved.

We are aware that UN bodies, including your office, have been facing unprecedented pressure by some states and organisations to prevent the release of this Database. We therefore applaud your office for releasing this report nonetheless. The Database presents a significant step forward for the business and human rights agenda worldwide. It sets an example of an efficient tool to ensure greater accountability for corporate human rights abuses, including the right of victims to an adequate remedy, particularly in situations of occupation. It also assists states to bring their companies into compliance with the UN Guiding Principles on Business and Human Rights (A/HRC/17/31), as well as principles of international humanitarian and human right law. An effective database would give a glimmer of hope to the Palestinian people enduring half a century long military  occupation, and stand as a reminder that the international community is committed to putting an end to the illegal settlement enterprise that is stifling their economy, depleting their natural resources, and undermining their human rights.

In light of the above, we urge you to:

a) Immediately list businesses that have been duly screened and contacted according to the methodology and standard of proof set out in the report, and who subsequently provided a response rejecting the process and mandate of OHCHR, or have not provided a response within the given 60 day timeframe;

b) Continue working with civil society organisations and human rights defenders in full transparency for the completion and continuous updating of the Database, and the strengthening of methodologies and procedures;

c) Ensure that appropriate resources are allocated so as to allow for continued development of the Database mechanism;

d) Include, in the coming report, direct recommendations for States on how to engage with the new mechanism to help them distinguish in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967, as stipulated by UN Security Council resolution 2334.

Yours sincerely,

• Al-Haq
• Amnesty International
• Cairo Institute for Human Rights Studies
• Al Mezan Center for Human Rights
• Addameer Prisoner Support and Human Rights Association
• Aldameer Association for Human Rights
• Arab Organization for Human Rights
• Article 1 Collective
• Asian Forum for Human Rights and Development (FORUM-ASIA)
• BADIL – Resource Center for Palestinian Residency and Refugee Rights
• Bytes For All, Pakistan
• CNCD-11.11.11
• Community Action Center – Al-Quds University
• Conectas Direitos Humanos
• DCI – Defense for Children International – Palestine
• EuroMed Rights
• Forum Tunisien Pour les Droits Economiques et Sociaux
• Hurryyat – Center for Defense of Liberties and Civil Rights
• International Federation for Human Rights (FIDH)
• International Trade Union Confederation
• Italian General Confederation of Labour
• Jerusalem Legal Aid and Human Rights Center
• Lawyers for Palestinian Human Rights (LPHR)
• National Institution of Social Care & Vocational Training
• Odhikar
• Palestinian Centre for Human Rights
• Palestina Solidariteit vzw, Belgium
• Plateforme des ONG françaises pour la Palestine
• Ramallah Center for Human Rights Studies
• QADER for Community Development
• Trócaire
• Health Work Committees
• 11.11.11

[PDF version can be viewed here. And published by the Business and Human Rights Resource Centre here]

Introduction

Tareq Shrourou

Author of this LPHR briefing:

Tareq Shrourou is the director of LPHR. Before becoming LPHR’s first director in 2013, he worked as a human rights solicitor in London representing asylum claimants, unaccompanied children and survivors of human trafficking, and led the public legal advice service of the human rights organisation, Liberty. He holds a master’s degree in Public International Law from King’s College London.

LPHR’s expertise in business and human rights:

LPHR successfully pursued a significant business and human rights complaint under the OECD Guidelines for Multinational Enterprises against the security services company, G4S Plc, for its involvement in human rights violations against Palestinians in Israel and the occupied Palestinian territory. In March 2016, and soon after the OECD UK National Contact Point agreed with our evidence-based assessment that G4S were in breach of its human rights responsibilities under the OECD Guidelines, the company announced that it had commenced a process to sell its subsidiary, G4S Israel. The UK multinational announced the completion of the sale of G4S Israel to FIMI Opportunity Funds (an Israel private equity fund) in June 2017.

In regard to the UN Database, LPHR made a submission in December 2016 to the UN Office of the High Commissioner for Human Rights which focused on G4S and FIMI Opportunity Funds. We submitted an update following G4S’ announcement that it had completed the sale of G4S Israel to FIMI Opportunity Funds. Both are published on the publications page of our website.

LPHR has prepared a briefing for local authorities that provides an accessible legal and human rights analysis of the UK Government’s position in relation to: a) local authority pension funds’ (LAPFs) investment in companies operating in the occupied Palestinian territory and/or Israel; and, b) local authorities’ approach to procurement decisions in relation to the same.

The briefing is being directly submitted to local authorities. It can also be read here.

It clarifies two recent Government initiatives that have caused some concern and uncertainty in relation to these two areas. It further makes specific recommendations to LAPFs and local authorities on essential actions to be adopted to better protect and promote Palestinian human rights.

A summary of the briefing is provided immediately below.

Overview of Part I of LPHR’s briefing: Investment in companies operating in the occupied Palestinian territory and/or Israel

LPHR has reviewed in detail the Department for Communities and Local Government’s ‘Guidance on Preparing and Maintaining an Investment Strategy Statement’ (Guidance) that has been issued to assist LAPFs in devising their Investment Strategy Statements pursuant to The Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016. We have also considered correspondence with the Minister for Local Government, Marcus Jones MP, on the issue.

In addition, we have considered the judicial review in relation to certain provisions of the Guidance which sought to prohibit LAPFs from potentially using pensions policies to pursue boycott, divestment and sanctions against foreign nations. As a result of the judgment published in June 2017, these sections of the Guidance have been found to be unlawful and accordingly removed from the amended Guidance published in July 2017.

Our resulting position is:

a)  LAPFs should incorporate into their Investment Strategy Statement a policy of necessarily taking into account their international law obligations, and business and human rights responsibilities under the United Nations Guiding Principles and the UK National Action Plan, when making investment or divestment decisions.

b)  In accordance with the above recommended legal and human rights-based policy, LAPFs should, on a case-by-case basis, decide whether or not to divest from, or to invest in, a particular company on the basis of genuine and substantiated concerns about the adverse human rights impacts that are linked to that company’s activities.

c)  There is nothing preventing or restricting LAPFs from applying this above recommended policy specifically in the context of the occupied Palestinian territory and/or Israel.

Overview of Part II of LPHR’s briefing: Public procurement decisions relating to companies operating in the occupied Palestinian territory and/or Israel

LPHR has considered the UK Government’s Procurement Policy Note (2016), in tandem with the UK Public Contract Regulations 2015. It has also been in direct written correspondence with the then Minister for the Cabinet Office, Matthew Hancock MP on the issue.

Our resulting position is:

a)  Pursuant to the UK Public Contract Regulations 2015, where a contracting authority can demonstrate by appropriate means that a company is guilty of grave professional misconduct (which arguably includes involvement in human rights violations) which renders its integrity questionable, that company may be excluded from participation in a procurement procedure. The February 2016 Procurement Policy Note does not, in our view and as confirmed by the then Minister for the Cabinet Office, alter this legal position.

b)  The UK Parliament Joint Committee on Human Rights has recently recommended that the UK Government makes it mandatory that companies found to be involved in violations of human rights should be excluded from public procurement processes, and so the direction of travel on this issue may be towards greater regulation and enforcement in the future (rather than the current voluntary exclusion process).

Overarching conclusion

LPHR takes a legal and human rights-based approach to all of its analysis. In accordance with this approach, LPHR’s concern is that LAPFs and local authorities should give necessary consideration as to whether any company within a LAPF’s portfolio, or a local authority’s procurement process, is involved with infringing Palestinian human rights and if so, take appropriate action to responsibly address this.

Our analysis confirms that LAPFs and local authorities can respectively make decisions to a) divest from, or b) not to invest in, or c) to exclude from participation in a procurement procedure, individual companies on the basis of involvement in human rights violations against Palestinians in the occupied Palestinian territory and/or Israel.

LPHR’s briefing can be viewed here.

Contact information: Tareq Shrourou, Director of LPHR,