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UN Settlements ‘Blacklist’ of Israeli and International Companies Will Have Scant Legal Impact, Expert Says

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Prince Zeid bin Ra’ad al-Hussein, the UN’s high commissioner for human rights. Photo: File.

A United Nations Human Rights Council effort to squeeze international companies engaging in business with Israeli individuals and entities in eastern Jerusalem and the West Bank is unlikely to have any major legal impact, a leading Israeli expert on the boycott campaign said on Tuesday.

“There is nothing illegal about such business activity, and no court anywhere in the world has established otherwise,” Anne Herzberg — legal adviser to the Israeli research institute NGO Monitor — told The Algemeiner.

Last week, some 130 international and 60 Israel companies received letters from Prince Zeid bin Ra’ad al-Hussein — the UN’s high commissioner for human rights and a former Jordanian ambassador to the UN and the US — warning them that their activities in Israeli settlements were in breach of international law. The companies reportedly include leading brands like Hewlett-Packard, Motorola, Israel Aircraft Industries and Ahava.

Under the terms of the UNHRC resolution adopted in March of this year, member states are urged to offer “guidance” to “individuals and businesses” regarding the “possibility of liability for corporate involvement in gross human rights abuses and the abuses of the rights of individuals, of becoming involved in settlement-related activities, including through financial transactions, investments, purchases, procurements, loans, the provision of services, and other economic and financial activities in or benefiting Israeli settlements.”

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The resolution also pledged to “inform businesses of these risks,” as UN Commissioner Hussein now appears to be doing. The database of companies being assembled by the council to that end has been dubbed by critics — foremost the US and Israeli governments — as a “blacklist.”

Herzberg said that international companies who decide to comply with any boycott would be “risking the ability to operate in the US market,” given the passage of anti-BDS legislation by 24 states — most recently Wisconsin, whose governor, Scott Walker, issued an executive order last Friday prohibiting government business with entities that boycott Israel. She added that any companies that do comply with a boycott are bound to face a public relations backlash. “For decades, people on the right side of history fought the Arab League boycott of Israel, and this is a just a backdoor way of reviving that boycott,” Herzberg remarked.

The council’s “blacklist”  does not enjoy any legal standing in national courts, Herzberg said, while the absence of international governmental sanctions targeting Israel further weakens any legal case. “BDS groups may try to bring lawsuits in different jurisdictions, but none of these have been successful to date,” Herzberg said.

The potential challenge, Herzberg continued, involved the “discreet pressure” which some governments, mainly in Europe, may put upon private companies to end any business relationships with Israelis beyond the 1949 “Green Line” dividing Israel from the West Bank and Gaza — a process that could legitimize a full boycott given the difficulty of strict separation between the settlements and the broader Israeli economy, she explained.

Herzberg cited as an example the 2010 case of Riwal, a Dutch construction equipment company that leased cranes used in the construction of Israel’s security barrier, which has long been a favored target of BDS activists. Al-Haq, a Palestinian legal NGO, filed a case against Riwal in a Dutch court, accusing the company of having “participated in the commission of war crimes and crimes against humanity.”

The case against Riwal was eventually dismissed by the Dutch public prosecutor in 2013, who argued that “complex investigations” would be necessary to establish whether the company had been complicit in war crimes.

Herzberg argued that the impact of the “blacklist” was more likely to be political, with socially-responsible investing being one sector that would be vulnerable to pro-BDS advocacy. “A lot of companies want to be seen as good corporate citizens,” she said. “They contract to outside companies for investment guidance who often conduct poor research based on online searches, and who then provide poor advice about boycotting Israel.”

Herzberg emphasized that such problems were far more likely to be encountered in Europe than in the United States — at the same time, she said, European companies are still likely to take US legislation more seriously than an appeal from the UN Human Rights Council. “We have to be vigilant, we have to pay attention, but there’s no need to panic,” she concluded.

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