I. Introduction
Situations of conflict evoke the most basic images of life and death. State and non-state actors fight for power and control, while average citizens are caught in the crosshairs. Conflict breeds instability and insecurity – a ripe environment for individuals and businesses to reap profit from the chaos by aligning themselves with the strongest entity. In the context of the Occupied Palestinian Territory (OPT),Footnote 1 where Israel, as Occupying Power, third states and private actors have largely failed to respect and implement international law, the situation of prolonged occupation is, in part, perpetuated by a discourse that distorts notions of security and disregards human rights.Footnote 2 As part of this discourse, Israel simultaneously brands itself as vulnerable,Footnote 3 while promoting itself, alongside the private business sector, as a leader in the field of security.
Israel stands in the top ten of the largest exporters of arms,Footnote 4 using its ability to perpetually ‘field test’ weapons serving as a boon in the industry.Footnote 5 These purported security ‘successes’ drive the insecurity and dehumanization of the protected Palestinian population in the OPT, denying their rights to life and bodily integrity, amongst others.Footnote 6 Israel more broadly uses the umbrella of ‘security’ or ‘military necessity’ to legitimize other policies against the Palestinian population, including those that impede movement, obstruct access to natural resources, and restrict livelihoods. While not characterized by the same physical violence as other practices, they nonetheless aim at and cause suffering and threaten the viability of Palestinian life.Footnote 7 Notably, these practices and policies all seek to project an appearance of legality.Footnote 8
While this broad ‘security’ paradox is driven by Israel’s aim to maintain the occupation of Palestinian territory, businesses have played a central role in facilitating and reinforcing Israel’s objectives of expansion, annexation and control. By following the lead of Israel, the Occupying Power and ‘host’ state for corporations in the OPT,Footnote 9 businesses find countless opportunities to derive profits from normalized violations of international law. By following the lead of their ‘home’ states, transnational businesses have benefited from inconsistent, and often unimplemented, domestic policies.Footnote 10 Business enterprises have been able to maintain their operations in the OPT and/or their business relationships linked to Israel’s occupation due to the vacuum of accountability present. Within this context, continued occupation, colonization and gross human rights abuses are not only sustainable, but profitable. Chipping away at this status quo, however, are civil society organizations, pioneers in monitoring and advancing human rights and the rule of law, which seek to bring attention and accountability to these abuses.
The situation in the OPT is not unique in that private actors, including business enterprises, have a heightened risk of directly or indirectly being involved in human rights abuses due to the context of conflict.Footnote 11 What is perhaps unique are the inconsistent policies adopted by states and businesses that hold the OPT as an exception, and leave it outside of the usual business and human rights discourse.Footnote 12 As such, this article explores these inconsistencies by providing case studies of business involvement in Israeli ‘security’ policies and measures in the OPT, including private security companies, and companies linked to the construction of the Annexation Wall and house demolitions. Case studies presented in this paper further illustrate that mechanisms currently available, on a domestic and international level, have proven to be inadequate, and have failed to hold state actors and businesses to account for the commission of gross human rights abuses in the OPT, or provide redress for those affected.
II. Applicable Legal Framework
Following the Six-Day War in June 1967, Israel occupied the West Bank, including East Jerusalem, and the Gaza Strip. Israel applies Israeli civil laws to settlers in the West Bank, whereas Palestinians living in the OPT are generally subject to Israeli military law.Footnote 13 Israel insists that the human rights treaties that it has signed on to do not apply to the OPT,Footnote 14 and that the Fourth Geneva Convention is not applicable de jure in the OPT.Footnote 15 The International Court of Justice (ICJ), United Nations (UN) bodies, including the UN Security Council and treaty bodies, the International Committee of the Red Cross (ICRC), and others have rebuked these positions.Footnote 16 Israel’s obligations towards the Palestinian population in the OPT are not diminished by the Palestinian Authority’s presence in some parts of the West Bank nor Hamas in the Gaza Strip, as Israel retains effective control over the OPT.Footnote 17
It is further important to underscore that while it is well established that settlements are illegal under international law, the Israeli government not only argues that its settler population is lawfully present,Footnote 18 but also provides financial support and security for the maintenance and growth of settlements. International and Israeli businesses are also incentivized by the Israeli government, including by low rent, tax breaks and other benefits, to operate in settlements.Footnote 19 The Israeli High Court of Justice (HCJ) plays an important role in sanctioning these policies, including by holding that the issue of settlements in the OPT is non-justiciable.Footnote 20
A. International Human Rights Law and Business Enterprises
In situations of occupation, international human rights law is applicable and complementary to international humanitarian law and the law of occupation, so that the fundamental rights of the occupied population are fully protected. While the state remains the primary duty bearer to respect, protect and fulfil human rights, non-state actors, including private actors and business enterprises, are also expected to respect human rights standards and guarantees. The Universal Declaration of Human Rights (UDHR), the foundation for other UN human rights treaties, expanded the scope of human rights obligations beyond the state. The Declaration stipulates that ‘every individual and organ of society’ must commit to the standards set forth to promote rights and freedoms, without excluding any person or entity – ‘no company, no market’.Footnote 21 Private and corporate sectors are therefore expected to observe and uphold human rights standards in their codes of conduct and operations.
A recent development concerning the conduct of businesses in the context of international human rights law is the UN Guiding Principles on Business and Human Rights (UNGPs). The UNGPs reiterate states’ legal obligations to protect human rights, including by monitoring and regulating corporations within their jurisdiction. The UNGPs further stipulate that corporations themselves must respect human rights, including by undertaking enhanced due diligence and providing grievance mechanisms for those affected by their operations.Footnote 22 States have recognized these shared responsibilities by developing National Action Plans (NAPs),Footnote 23 and introducing legislation that aims to prevent human rights abusesFootnote 24 and allows courts to have jurisdiction over companies operating extraterritorially.Footnote 25 In some cases, states, such as the Netherlands,Footnote 26 have also extended liability to parent companies for the activities of their subsidiaries.Footnote 27
B. International Humanitarian Law, the Law of Occupation, and Business Enterprises
The sources of international humanitarian law include the Hague Conventions of 1899 and 1907,Footnote 28 the four Geneva Conventions of 1949Footnote 29 and their Additional Protocols of 1977,Footnote 30 covering both international and non-international armed conflicts, and customary international law. Article 47 of the Fourth Geneva Convention stipulates that where a state exercises effective control over foreign territory a situation of occupation exists, and the state is required to fulfil its obligations in the best interest of the occupied population and ensure their protection and their rights.Footnote 31
Similarly, under Article 43 of the Hague Regulations, the Occupying Power is obliged to ensure public order and the safety of the occupied population.Footnote 32 The rules of international humanitarian law allow the Occupying Power to take measures of control and security when necessary;Footnote 33 however, such measures must respect fundamental guarantees of international law.Footnote 34 In doing so, an Occupying Power must strike a balance between military necessity, proportionality, and the interests of the occupied population. A state may not invoke the principle of necessity ‘as a ground for precluding the wrongfulness of an act not in conformity with an international obligation’ unless it is ‘the only way for the State to safeguard an essential interest against a grave and imminent peril’.Footnote 35
States, armed groups and individuals are bound to respect and abide by international standards relevant to armed conflict should a nexus between their activities and the conflict exist.Footnote 36 As such, the rules of international humanitarian law apply to state and non-state actors.Footnote 37 In the same vein, the Occupying Power is also responsible for actions of private business enterprises operating within its jurisdiction,Footnote 38 as well as state agents including ‘… any person or entity… exercising legislative, executive, judicial or any other functions’.Footnote 39 Article 29 of the Fourth Geneva Convention specifies that the Occupying Power is responsible for the commissions and activities of its ‘agents, irrespective of any individual responsibility which may be incurred’.Footnote 40 Both the agent and the state may become the subject of liability, unless the commission of the illegal act was carried out by the agent ‘truly independently’ from the Occupying Power; in which case the latter cannot be held accountable.Footnote 41
More broadly, in the case of Congo v Uganda, the ICJ found that the Occupying Power is in breach of its obligations under international law where it fails to exercise its due diligence with non-state actors within its jurisdiction to prevent them from becoming perpetrators of human rights violations.Footnote 42 The UNGPs similarly emphasize state responsibility in ensuring that businesses domiciled within their territory respect human rights and humanitarian law in their operations both domestically and abroad.Footnote 43 Special attention is also granted to business operations and relationships in conflict-affected areas in the draft treaty to regulate the activities of transnational corporations and other business enterprises.Footnote 44
C. International Criminal Law and Business Enterprises
Grave breaches of international humanitarian law, including war crimes, have been prosecuted under domestic military tribunals and commissions, ad hoc international criminal tribunals, and the International Criminal Court (ICC).Footnote 45 State actors may be subject to individual criminal liability for internationally recognized crimes, involving direct participation or complicity.Footnote 46 Representatives and officers of business enterprises that commit,Footnote 47 instigate,Footnote 48 orderFootnote 49 or planFootnote 50 a crime may be held criminally liable.Footnote 51 Once a link has been established between the business’s activities and grave breaches of international law in the context of an armed conflict, business leaders or representatives may be exposed to individual criminal responsibility for war crimes.Footnote 52
During conflict, corporations can be directly and indirectly implicated with grave breaches of international humanitarian law as either immediate perpetrators or through their involvement and participation with other actors, i.e., complicity.Footnote 53 Indirect participation may occur when companies use their influence to manipulate public and governmental institutions for the purpose of increasing revenue and authority, leading to human rights abuses and violations of humanitarian law. Corporations that maintain economic relations and support state agencies or armed groups committing war crimes may also be complicit. Direct participation in the commission of crimes ranges from corporations that assume state-assigned roles, such as is the case with private security agents granted authority to use force, to those that may be involved in or linked to specific activities.
With the ICC’s Office of the Prosecutor preliminary examination on Palestine ongoing, note was taken of the Office’s 2016 policy brief which stated that it will prioritize cases involving ‘crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’,Footnote 54 and its potential applicability to corporate actors operating in the OPT.Footnote 55
III. Israeli Private Security Contracts: Whose Security?
A. Background
Private security contractors (PSCs)Footnote 56 are private businesses that provide military and security services to states, international organizations, and corporations. Their services include: combat; guarding prisons, detention and interrogation centres and checkpoints; collecting intelligence information; and providing training, guidance and technical support to local forces, including by installing and operating security and surveillance systems. The industry is a lucrative one, where individuals may opt to be hired by civilian contractors rather than join or remain in state military.Footnote 57 The practice of hiring PSCs by states, especially in conflict-affected areas, has drastically increased.Footnote 58 This privatization of wars and conflicts has not only put civilians increasingly at risk, but is also marked by an accountability gap,Footnote 59 due in part to the insufficient laws surrounding PSCs and their activities.Footnote 60
The security sector has grown considerably in Israel, generating valuable profit for the economy and the companies themselves. There are at least 600 PSCs operating in Israel, employing about 25,000 employees.Footnote 61 Israel’s budget for ‘private security companies and the number of personnel they employ exceeds those of the public police’.Footnote 62 PSCs hired by Israel have been local, such as Modi’in Ezrachi, and multinational, such as G4S and T&M Protection Resources. Military service is a compulsory requirement for the recruitment of PSC employees in Israel; those recruited for positions requiring possession and possible use of arms are expected to have combat experience.Footnote 63 Israel employs PSCs at checkpoints, settlement gates and construction sites, and police facilities in the OPT.Footnote 64 As of 2016, 14 checkpoints have been completely privatized in the OPT,Footnote 65 except for those located in the Jerusalem area where PSC personnel accompany Israeli military and police.Footnote 66
B. State Responsibility
In cases where PSCs are incorporated into the members of the armed forces of the state, they are bound by international humanitarian and human rights law as state agents.Footnote 67 PSCs could be afforded a civilian status in the event that they ‘provide a service to, the armed forces, not merely the State’, yet those ‘employed by civilian State authorities or by private companies do not fall into this category [civilians]’.Footnote 68 As such, in accordance with Article 4 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (DASR), the conduct of any state organ (any person or entity with the attributed status by the laws of the state) will have to be considered as an act of the state itself. The activities of persons or entities who are not an organ of the state but authorized and empowered by its laws,Footnote 69 or acting under the instruction of, or under the direction or control of the state,Footnote 70 are considered an act of the state under international law.
PSCs are under the authoritative and operational control of the State of Israel, rendering the State liable for the actions of PSC employees.Footnote 71 Although the Ministry of Defence (MOD) does not directly hire private security personnel, ‘the MOD is their de facto employer: it is in charge of their training, working conditions, salary levels and employment termination; the PSCs are merely manpower contractors’.Footnote 72 To ensure the privatization of checkpoints, the Israeli Crossing Points Authority (Authority) was created to control the ‘planning, establishment, operation, security, maintenance, supervision and management of activities in the border checkpoints, as well as for supervision over the training of employees of the private security companies’.Footnote 73 The Authority does not function in a vacuum and is under the aegis of the MOD, where a civil servant employee manages these checkpoints.Footnote 74 The Authority works with Israel Police and the General Security Service, who advise on security matters and regulations,Footnote 75 the District Coordination Office, Civil Administration, and the Coordinator of Government Activities in the Territories (COGAT).Footnote 76 Accordingly, at checkpoints, the structure and chains of command are multi-layered and involve an intertwined relationship between the government, military, and private actors.
PSC employees stationed at checkpoints carry out duties as either security guards or inspectors – in both instances bearing weapons.Footnote 77 Although PSC guards have been granted special powers allowing them to use force at checkpoints,Footnote 78 there are no supervising mechanisms for their activities, such as those designed to prevent representatives of security authorities from using unnecessary and excessive force, for example.Footnote 79 The MOD provides training for PSCs on the Rules of Engagement (RoE) which are differentiated based on the activity; some PSCs undergo training according to military or police regulations but without publicly disclosing which RoEs apply.Footnote 80 While the hiring, training and common tasks of PSCs by and with Israeli authorities supports findings that Israel should be responsible for the conduct of PSCs, Israel’s handling of allegations of human rights violations by PSCs further suggests shared intent.
C. Human Rights Violations Linked to PSCs
Israeli checkpoints in the West Bank, including East Jerusalem, cut off villages and in some cases, neighbourhoods from one another.Footnote 81 Checkpoints serve to obstruct the freedom of movement of Palestinians, which impacts the rights to work, health, education, choose one’s residence, and even the right to life, amongst others.Footnote 82 This has an overall impact of obstructing the right of Palestinians to self-determination.Footnote 83 In February 2016, the UN Office for the Coordination of Humanitarian Affairs (OCHA) reported that there were 85 fixed checkpoints in the West Bank.Footnote 84
Israel’s hiring of PSCs and their deployment at checkpoints and other areas within the OPT illustrate a clear case where state–corporate interrelation and dependence result in human rights abuses, grave breaches and possible international crimes. Incidents of wilful killings, which may amount to war crimes, have been carried out by Israeli military and PSC personnel against Palestinians at checkpoints in the absence of any form of accountability. The deficient mechanisms of liability for PSCs as agents of the state should be perceived within the wider context of impunity in which Israeli forces operate. Israeli forces are rarely prosecuted, let alone sentenced, for the killing or injury of Palestinians.Footnote 85 When they are prosecuted, they often face lesser charges, such as manslaughter, and receive reduced sentences.Footnote 86
Between 1 October 2015 and 30 November 2016 alone, there were nine Palestinians killed by private security guards. In an additional case during that same period, the source of the lethal force was unknown as Israeli ‘border police, private guards and civilians fired simultaneously’.Footnote 87 In April 2016, Palestinian siblings, Maram and Ibrahim Abu Saleh, 23 and 16, respectively, were shot and killed at Qalandiya checkpoint, despite them posing no imminent threat, by personnel from the Israeli PSC Modi’in Ezrachi.Footnote 88 Although there were calls by the Israeli media and human rights organizations to release the footage of the incident from the security cameras at the checkpoint due to the conflicting accounts of witnesses and Israeli officials, Israel refused to do so.Footnote 89 The Israeli State Prosecutor dropped the charges against the two ‘civilian guards’ who killed the siblings.Footnote 90 The decisions to close the cases were due to ‘lack of evidence’ in one case, and ‘lack of guilt’ in another.Footnote 91
The Modi’in Ezrachi Group Ltd is the ‘largest security contractor currently employed by the Israeli government’,Footnote 92 with more than 1,000 employees in Israel. The case brought against the company’s guards for the 2016 killings was not the first time its operations were linked to human rights abuses. In 2011, the Association for Civil Rights in Israel (ACRI) petitioned the HCJ regarding the use of private security guards deployed in Palestinian neighbourhoods of East Jerusalem, to guard unlawful Jewish settlements there.Footnote 93 Notably, the company Modi’in Ezrachi won the bids from the Israeli Ministry of Housing,Footnote 94 estimated at 100 million shekels in 2014.Footnote 95 It was estimated that 350 private security guards from Modi’in Ezrachi were deployed to provide protection for 2,000 settlers. The petition asserted that the presence of the guards ‘endanger Palestinian life and limb, and they harm the normal exercise of residential daily life due to the improper and illegal discretion they wield’.Footnote 96 The petition further highlighted the case of Samer Sarhan who was fatally shot by a Modi’in Ezrachi guard in 2010.Footnote 97 After two years, Israel decided not to indict the guard, ‘claiming there was not enough evidence to bring him to trial – especially since the bullet that killed Sarhan, a key piece of evidence, had gotten lost’.Footnote 98 Years after the petition was filed, the presence of Modi’in Ezrachi in unlawful settlements in East Jerusalem continues.Footnote 99
IV. Building Walls, Building Business
A. Background
Referred to as the ‘Security Fence’ by Israel, and by others as the Annexation Wall, the Wall, composed of concrete barriers, barbed wire and fences, dissects the West Bank. It has undoubtedly become one of the most infamous yet normalized symbols of Israel’s occupation, and a stark reminder of the role that businesses play in it. Israel first began appropriating land for and constructing the Wall in the West Bank in 2002. At the time, Israel asserted that the Wall’s construction was in response to a rise in attacks that began in September 2000, the start of the second Intifada. The Israeli Ministry of Foreign Affairs alleged that the Wall’s path was ‘determined on the basis of security needs and topographical considerations’, would not ‘annex Palestinian lands’, and that ‘no Palestinians will have to relocate’.Footnote 100
Although the pretence of respecting the rights of Palestinians while ensuring the ‘security’ of Israeli citizens was at the centre of Israel’s discourse, the reality was far different. Palestinians immediately felt the impact of the Wall on nearly all aspects of life. The first phase of construction in the northern West Bank alone led to the uprooting of over 80,000 trees, the loss of nearly 30 water wells, and the obstruction of access to basic services ranging from medical care to education.Footnote 101 More broadly, the West Bank was further fragmented, as the Wall isolated and subdivided Jerusalem, and wholly encircled other Palestinian communities. In addition, the Wall exacerbated food insecurity, physical insecurity, and psychological insecurity for Palestinians in the OPT.Footnote 102
Underlying these conditions are Israel’s effective confiscation and obstruction of access to land via the construction and establishment of the Wall. Following a trip to the OPT in 2003, UN Special Rapporteur John Dugard stated in relation to the construction of the Wall: ‘[t]he fact must be faced that what we are presently witnessing in the West Bank is a visible and clear act of territorial annexation under the guise of security’.Footnote 103 One month after the issuance of Dugard’s report, an emergency session was held in October 2003 where the UN General Assembly passed resolution ES-10/13, demanding ‘Israel stop and reverse the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of international law’.Footnote 104 With no action taken by Israel, the General Assembly issued another emergency resolution requesting an advisory opinion from the ICJ on the legal consequences arising from the construction of the Wall.Footnote 105
The ICJ issued its opinion in July 2004, finding that the route of the Wall’s proximity to the Green Line was critical, as ‘the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements’.Footnote 106 This came in violation of the customary law prohibition of ‘territorial acquisition resulting from the threat or use of force’.Footnote 107 The ICJ concluded that the construction of the Wall was in violation of international law, including provisions related to unlawful transfer and the unlawful destruction of property.Footnote 108 Accordingly, ‘[g]iven the character and the importance of the rights and obligations involved’, third states had specific obligations to: not render aid or assistance in maintaining the unlawful situation created by the wall; to not recognize the illegal situation resulting from it; and, to bring to an end ‘any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination’.Footnote 109
Within and in spite of this backdrop of condemnation by UN bodies and experts, and a definitive ICJ opinion, Israel continued to build the Wall, establishing 85 per cent of it inside the West Bank,Footnote 110 and effectively appropriating Palestinian land and resources. Although the Israeli HCJ has ruled that some portions of the Wall have a disproportionate impact on Palestinians when balanced against the security advantage gained,Footnote 111 it has largely deferred to the decisions of the military commander. Prior to the issuance of the ICJ’s advisory opinion, the HCJ found that the ‘fence is motivated by security concerns’, and not political considerations,Footnote 112 and determined that its route must be examined under a ‘security perspective…without regard for the location of the Green Line’.Footnote 113 The Israeli HCJ confirmed these positions, even following the issuance of the ICJ opinion.Footnote 114
B. Riwal and the Construction of the Wall
Although not addressed in the ICJ opinion, the role of businesses in the construction and maintenance of the WallFootnote 115 was nonetheless brought to the forefront early on. In 2006, mobile cranes with the logo of Riwal, a Dutch company, were filmed being used to construct the Wall. At the time, Riwal admitted that its equipment was being used, but for ‘commercial’ purposes only.Footnote 116
In March 2010, a criminal complaint was filed on behalf of Palestinian human rights organization, Al-Haq, against Riwal’s parent company, Lima Holding, in the Netherlands for war crimes and crimes against humanity during the period from 2004 until the filing.Footnote 117 The complaint alleged that Riwal contributed to the construction of the Wall in the Palestinian villages of Al-Khader and Hizma, and participated in the building of a settlement near the village of Bruqin.Footnote 118 The complaint further alleged that as a result of Riwal’s activities, Palestinians had their properties destroyed, and ‘have been denied access to their lands, their freedom of movement has been restricted, the fundamental rights of the Palestinian residents have been violated, and Israeli settlements have been expanded’.Footnote 119
Following a three-year investigation, which included searches of corporate offices,Footnote 120 the Netherlands National Prosecutor’s Office (NPO) announced in May 2013 that it would not prosecute Riwal. From its criminal investigation, it found that the company ‘rented out cranes and aerial working platforms that were used for the construction works in the occupied territory’.Footnote 121 The NPO’s statement acknowledged the ICJ’s advisory opinion, and that under domestic law, Dutch companies were ‘required to refrain from any involvement in violations of the International Crimes Act or the Geneva Conventions’.Footnote 122 However, the NPO decided to end its investigation, after finding that the company’s work was ‘small scale’, and its equipment was ‘used only occasionally and only for a few days, sometimes after having been rented to third parties’.Footnote 123 The NPO also reportedly considered that the company had decided to end its activities in the OPT, and that Israel would likely not cooperate.Footnote 124 Although the investigation did not lead to prosecution, the issue of business complicity in Israel’s violations of international law, including abuses related to the Wall, was highlighted.
Irrespective of heightened awareness and the ICJ opinion, there has been no concrete action taken by the international community to change the unlawful status quo. Instead, the Wall has become a selling point for businesses involved in its construction, while remaining a severe burden for Palestinians. Following the election of United States (US) President Donald Trump, whose campaign focused on expanding the border wallFootnote 125 with Mexico, shares of Israeli company Magal rose by nearly 50 per cent.Footnote 126 Magal was a major contractor during the building of the Wall in the OPT, and hoped to use its experience to gain contracts for the US–Mexico wall.Footnote 127 Elbit, another Israeli company whose surveillance equipment is used for the Wall in the OPT, won US contracts in 2014 to provide and install surveillance systems for the US–Mexico wall.Footnote 128 Most recently, another Israeli company’s subsidiary, Elta North America, was one of four companies that will receive a grant to build a ‘prototype of smart systems integrated into the border wall’.Footnote 129
V. Heavy Machinery: Systematic Demolitions
A. Background
A feature of Israel’s prolonged occupation has been the demolition of Palestinian homes, structures and infrastructure. Pretexts for demolitions vary between administrative and ‘security’ considerations to those that are punitive in nature, with both pretexts often working together as part of collective punishment operations. Administrative demolitions are conducted against structures that are built without a license. The UN and others have noted that building permits are nearly impossible to acquire in Area C and East Jerusalem, forcing Palestinians to build illegally (deemed as ‘construction terrorism’ by one Israeli parliamentarianFootnote 130 ) and face possible demolition.Footnote 131 Punitive demolitions are carried out against the homes of Palestinians alleged to have committed an attack as a form of collective punishment. In many cases, the suspect is killed at the scene, therefore causing the punishment to be inflicted solely on his surviving relatives. Israel paused its use of punitive home demolitions following the second Intifada, and the finding by an Israeli committee that ‘no effective deterrence was proven, except in a few cases, and that the damage to Israel caused by the demolitions was greater than the benefits […]’.Footnote 132 Israel nonetheless returned to the practice in 2014,Footnote 133 with the HCJ affirming it was ‘not inclined to intervene with the security agencies’ evaluation concerning the effectiveness of using the measure of demolishing houses or sealing them as a means to deter others’.Footnote 134
B. Caterpillar
Caterpillar, a US manufacturer of heavy machinery, is perhaps one of the most infamous international companies associated with Israel’s occupation. Caterpillar machines have been used to demolish thousands of Palestinian homes and structures,Footnote 135 to construct the Annexation Wall and settlements, and in ‘crowd control’ against Palestinian demonstrators.Footnote 136 In some cases, the Israeli military has demolished homes without warning, killing its residents inside.Footnote 137 In addition to these activities which Israel may claim as ‘security operations’, the machines have a broader impact on Palestinian livelihoods through wider-scale demolitions.
In 2004, the UN Special Rapporteur on the Right to Food wrote to Caterpillar expressing his concern that the company was ‘supplying its specially modified armed D9 and D10 bulldozers to the occupying army, in full knowledge that they will be used to destroy farmland, greenhouses, crops and olive groves as well as water installations’, which ‘might amount to complicity with or acceptance of actual and potential violations of the right to adequate food’.Footnote 138
Initiatives launched to raise awareness and end the use of Caterpillar equipment in Israel’s occupation have included: letter campaigns targeting the CEO,Footnote 139 divestment campaigns, shareholder resolutions,Footnote 140 a petition to the US government,Footnote 141 and a criminal complaint. Many of these actions were spurred by the tragic death of Rachel Corrie, an American peace activist, who was killed by a Caterpillar bulldozer operated by the Israeli military in the Gaza Strip in 2003. Rachel, 23 at the time, was peacefully trying to protect a Palestinian home from being demolished in Gaza. The Israeli military launched an ‘operational debriefing’ and a criminal investigation into Rachel’s death but failed to hold any individual accountable.Footnote 142 The Israeli Supreme Court also exempted the Israeli Ministry of Defence from liability in a civil suit brought by the Corrie family.Footnote 143
In 2005, American and Palestinian groupsFootnote 144 represented the Corrie family and Palestinian plaintiffs who had family members killed during house demolition operations in suit against Caterpillar in the US. The lawsuit charged Caterpillar with selling D9 bulldozers, which the company knew would be used for unlawful activities, and therefore aided and abetted in war crimes committed by the Israeli forces.Footnote 145 The District Court dismissed the case, finding that ‘it interferes with the foreign policy of the United States of America’, and that because other branches of government had not ‘urged or enjoined sale of weapons to Israel nor restrained trade with Israel in any other manner’ it could not preclude sales to Israel.Footnote 146 The decision was confirmed on appeal in 2007.
Alongside the defences provided for in court documents, Caterpillar has provided responses to inquiries on its equipment being used by the Israeli military. It has stated that it ‘cannot monitor the use of every piece of its equipment around the world’,Footnote 147 but that it does ‘not condone the illegal or immoral use of any Caterpillar equipment’.Footnote 148 It has further asserted that it sells non-weaponized machines to the US government through the Foreign Military Sales program, which then transfers ownership to Israel.Footnote 149 Caterpillar’s reputation was further damaged in 2017, when leaked documents reported that it hired intelligence firms to spy on the Corrie family, as well as to monitor activists.Footnote 150
VI. Upholding Human Rights: States, Companies and Civil Society
A. State Duty and State Practice
Israel’s political and legal positions relevant to the OPT expose pertinent risks associated with the potential commission of human rights abuse through business operations or relationships. While the Occupying Power should ensure ‘equality before the law, fairness in its application, and by providing for adequate accountability, legal certainty, and procedural and legal transparency’,Footnote 151 the aforementioned case studies demonstrate that these protections are not afforded to Palestinians,Footnote 152 and that claims brought against a company where a ‘security’ decision is concerned would likely fail.
More broadly, cases related to business operations and economic benefits to Israel in its prolonged occupation demonstrate the absence of remedy for the occupied population within Israel’s judicial system. For example, in its 2011 judgement concerning Israeli-administered quarries in the West Bank, the Israeli HCJ argued that Article 55 of the Hague Regulations, which seeks to limit the use of resources present in an occupied territory by an occupying power, had to be read in light of the need to adjust ‘the laws of occupation to the reality of prolonged occupation’,Footnote 153 and that a strict interpretation ‘might result in the failure of the military commander to perform his duties pursuant to international law’.Footnote 154 The Court similarly interpreted Article 43 of the Hague Regulations, on the occupying power’s duty to ensure public order and safety, and found the respondents’ claims regarding the employment of Palestinians in the quarries, the marketing of quarried products to Palestinians, and other factors, as in the interest of the protected population.Footnote 155 Notably, this view of adapting the laws of occupation was previously dismissed in a Separate Opinion in the ICJ’s Wall case.Footnote 156 Since the HCJ’s ruling, Israeli quarrying activity in the occupied West Bank has significantly expanded.Footnote 157
Meanwhile, ‘home’ states of business enterprises have an important role to play in ensuring business respect for human rights, including when they operate extraterritorially. Principle 7 of the UNGPs urges states to engage with business enterprises ‘at the earliest stage possible…to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships’.Footnote 158 It further calls for effective measures to be taken by the state, including legislation and regulations, in order to address ‘the risk of business involvement in gross human rights abuses’.Footnote 159 In cases of prolonged conflict, the objective of Principle 7 can be met by proactive and long-term guidance and measures in conformity with domestic policy and international law.
Although strong unilateral and multilateral initiatives have been taken in relation to business activities in other conflict-affected areas, efforts in relation to the OPT have largely been unimplemented or ineffective in bringing to an end Israeli and transnational businesses’ violations of international law. As noted in the Riwal case study, third states have not taken any action in line with the ICJ opinion to ensure an end to the situation created by the Wall. Many states have recognized the risks involved with business operations contributing to or benefiting from the presence of Israeli settlements. According to the European Council on Foreign Relations (ECFR), 18 ‘EU member states have published business advisories warning of the legal, reputational, and financial risks of such activities’.Footnote 160 Moreover, regional action was taken in November 2015, when the European Commission issued a notice that requires that products produced in Israeli settlements give appropriate notification so that consumers may ‘take an informed transactional decision’, when the listing of origin is mandatory.Footnote 161 However, ‘many member states – including those who called for such guidance – remain unable or unwilling to implement the guidelines at the national level’.Footnote 162 Further frustrating the implementation of accurate labelling is Israel’s introduction of a seven-digit postal code system, making it ‘impossible for the European Union to establish a list of settlements’ postcodes’.Footnote 163
In 2016, the UN Security Council passed Resolution 2334, which reaffirmed the illegality of Israeli settlements, and called on all States ‘to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967’.Footnote 164 The Resolution included a reporting requirement on the status of implementation every three months. The first initiative recorded in such reports occurred in early 2018, when the Danish parliament passed a resolution ‘urging that future agreements between Denmark and Israel clearly state their inapplicability to occupied territory and encouraging the Government to strengthen its guidance to private and public investors’.Footnote 165
In 2016, the UN Human Rights Council passed a resolution to create a database of all business enterprises involved in specified activities that have led to the ‘construction and growth’ of Israeli settlements.Footnote 166 More than two years later, and within a reported context of pressure by the US and Israel to prevent the development of the database, names of businesses have yet to be made public. In other contexts, the UN Security Council has listed business enterprises that are involved in gross human rights abuses and violations of international law.Footnote 167 The divergence in these outcomes highlights the importance of political will and state support for such initiatives. In total, ‘home’ states of multinational corporations operating in the OPT and those contributing to Israel’s prolonged occupation can do far more to uphold their obligations under international law, including by ensuring that businesses domiciled in their territory do not contribute to or profit from the commission of human rights abuses in the OPT.
B. Role of Businesses
Domestic policies, measures and statements by ‘home’ states in line with international law standards, should be primary considerations when businesses conduct their due diligence, and assess whether it can ‘prevent or mitigate adverse impacts’.Footnote 168 However, businesses may also look to ‘home’ and ‘host’ states’ actions, including the implementation of policies and avenues for remedy, and feel undeterred to operate in the OPT. More generally, businesses may question other mixed messages sent by states, such as the production of business advisories on the OPT while also penalizing businesses and other institutions who seek to uphold their responsibilities under law and respect human rights by enacting Anti-Boycott Divestment Sanctions (BDS) legislation and executive orders.Footnote 169
The framework provided for in the UNGPs plays a critical role in ensuring consistency and coherence in the standards and expectations applicable to businesses.Footnote 170 In a situation where a conflict in laws puts ‘an enterprise at risk of being involved in gross abuses of human rights such as international crimes’, a business should consider if it can continue to operate at all.Footnote 171 Accordingly, businesses should carefully examine Israel’s political and legal positions in light of international law. Irrespective of whether a business may be involved in a more traditional business activity, or one linked to the security sector, the impacts of the activity on the occupied Palestinian population should be carefully considered. In conducting due diligence, businesses should directly consult with Palestinian communities that may be impacted, as well as with relevant Palestinian organizations, agencies, and representative authorities.Footnote 172 Given that the Israeli government and its institutions support settlements, businesses should also carefully assess their business relationships with all entities and businesses based in Israel, to ensure that that their operations and activities have no direct or indirect connection with unlawful policies that may amount to internationally recognized crimes. Businesses may find that Israel ‘is unable or unwilling effectively to protect human rights or may itself be responsible for human rights violations’,Footnote 173 creating legal, reputational, and other risks for the company.
C. The Role of Civil Society in Advancing the Business and Human Rights Framework
Civil society has played an important role in advancing the global business and human rights agenda and ensuring that the voices of indigenous and vulnerable communities are heard. This has been especially crucial in trying to fill the accountability gap produced by states in the OPT. Civil society organizations working on the situation of human rights in the OPT have exposed the relationships between Israel and businesses in sustaining and profiting from the occupation, and their impact on the civil, political, economic and social rights of the occupied Palestinian people.Footnote 174 This advocacy and awareness-raising work has been an important step in ensuring that the OPT is not excluded from the discourse on business and human rights.
In this capacity, organizations have set up profiles on companies operating in or with settlements, as well as those directly contributing to Israel’s prolonged occupation.Footnote 175 Organizations have also sought to directly communicate with concerned businesses,Footnote 176 to remind the corporations in question of their responsibilities under international law and expected codes of conduct in situations of occupation. Furthermore, organizations have used judicial and non-judicial mechanisms for accountability. Israeli, Palestinian and international NGOs have all brought complaints related to business operations in the OPT, and their violations of international human rights and humanitarian law. Non-judicial mechanisms, such as submitting complaints through the appropriate OECD National Contact Point regarding company involvement with the commission of human right abuses, have also been used.Footnote 177
Although these more traditional avenues for accountability have not brought widespread and immediate remedy to victims or an end to profiteering from the occupation, the cumulative actions of civil society often do have a tangible impact. This has included the relocation of businesses from settlements in the OPT, and successful divestment campaigns.Footnote 178
VII. Conclusion
Conflict-affected areas, including situations of occupation, present unique and numerous risks for business operations in an environment that may thrive on the deliberate misinterpretation of the law, the legitimization of illicit acts, and impunity. Moreover, an operational environment once cloaked in a security discourse may sanction rampant human rights abuses, and violations that rise to the level of internationally recognized crimes. Such contexts also, however, provide substantial opportunities for profit.
Israel’s prolonged occupation of Palestinian territory and its booming ‘security’ industry and economy provoke genuine questions on the status and implementation of international law, and the role of and opportunity for third states and businesses to impact change.Footnote 179 The case studies presented on PSCs, and companies linked to the construction of the Wall and demolitions, demonstrate that Israel’s ‘security’ sector, as well as its produced results – i.e., control over land and the occupied population – are indeed profitable. By legitimizing and continuing their activities under Israel’s security discourse, a business’s impact on deepening Palestinian insecurity is either dismissed or translated into a marketing advantage.
Both state and non-state actors have obligations and responsibilities with regard to protecting and respecting human rights. Israel, as occupying power, and in its role as ‘host’ state should ensure that international human rights law and international humanitarian law are upheld and respected. Instead, over the course of its prolonged occupation of Palestinian territory, it has become clear that Israel is not only unwilling to uphold such obligations, but that violations of international law are part and parcel of its policy for expansion, annexation and control. Meanwhile, third states are under the obligation to take concrete measures to not recognize and bring to an end Israel’s unlawful policies and practices in the OPT,Footnote 180 and more broadly, Israel’s unlawful prolonged occupation of Palestinian territory.Footnote 181 In line with international law, states are also required to ensure accountability for human rights abuses by business and state actors alike. In practice, the international community, represented by states and various stakeholders and bodies, have failed to adopt a consistent policy towards regulating business operations in the OPT in line with international law.
While businesses have benefited from this gap in law and practice, it is undeniable that business enterprises can make informed decisions on actual and potential operations and relationships in the OPT given the wealth of documented information on the context. Civil society organizations have played a central role in gathering and producing such information, and using other measures to ensure that the legal, reputational, and other risks to businesses are not just known, but also felt.
