US Christian Zionists plan to take over Palestinian university in Israel

        

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Nazareth   
6 November 2013 

  

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Texas A&M Chancellor John Spencer Sharp, Israeli Education Minister Shai Piron, Israeli President Shimon Peres and Texas Governor Rick Perry meet in Jerusalem on 23 October 2013.   (Debbie Hill / UPI/Newscom)              

Palestine solidarity activists are campaigning against plans by Texas A&M University to take over a college in Nazareth, the city in present-day Israel with the highest number of Palestinian citizens.

“We find it impossible to support an A&M branch in Israel,” Jala Naguib, an Aggies for Palestine spokesperson, told The Electronic Intifada by email. Aggies for Palestine is a Texas A&M student human rights group.

“I believe it is a poor precedent to set in continuing to support a nation that has repeatedly violated human rights and has repeatedly pursued a policy of apartheid towards the Palestinian people,” Naguib added.

Texas A&M, the sixth largest university in the United States, intends to raise $70 million to assume control of the Nazareth Academic Institute.

Texas Governor Rick Perry and Texas A&M Chancellor John Sharp announced the plans to establish an international “peace campus” while meeting with with Israeli president Shimon Peres in Jerusalem in October (“Rick Perry to announce Texas A&M campus in Nazareth,” The Daily Beast, 22 October 2013).

John Hagee, a right-wing Christian Zionist pastor leading the lobby group Christians United for Israel, is also involved in the project.

“We think this is an extremely dangerous project for Palestinians in Nazareth,” said Omar Barghouti, founding committee member of the Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI).

“It’s another colonial project by Israel — to further colonize our space, whatever space is left of the Palestinian space within the state of Israel.”

In a recent statement, Texas A&M noted that the agreement to establish a branch in Nazareth was signed on 23 October (“Texas A&M University to open a branch in Israel,” 23 October 2013).

Perry’s involvement first became known back in July, when he ostensibly confused religious affiliation and ethnicity while telling The Washington Times that he “will be going to Israel to bring together Arabs, Christians and Jews in an educational forum” (“Rick Perry’s October trip to Israel sign of another White House bid,” 11 July 2013).

Yet North Texas BDS — a Fort Worth-based organization that promotes boycott, divestment and sanctions against Israel — has called on Texas A&M to halt the project so long as Israel “continues spending billions of dollars to destroy a people both inside and outside [its] borders,” said Diane Wood, the group’s co-founder.

Noting Perry and Hagee’s support for Israel, Wood said that “erecting a North American university in the midst of an area where Palestinians are suffering from illegal apartheid … raises serious questions as to the reason for this [campus].”

Racist comments

Perry is known for his staunch support of Israel as well as a number of racist and misinformed comments about Palestinians. Additionally, since his unsuccessful 2012 presidential campaign, Perry’s longstanding ties to Christian Zionist leaders have been brought to light.

“Historian T.R. Fehrenbach once observed that my home state of Texas and Israel share the experience of ‘civilized men and women thrown into new and harsh conditions, beset by enemies,’” he wrote in an opinion piece for The Jerusalem Post in September 2011 (“The Palestinians’ illegitimate UN gambit,” 15 September 2011).

Appearing next to extreme right-wing Israeli diplomat Danny Ayalon in New York City that same month, Perry told a group of reporters that Christians “have a clear directive to support Israel, so from my perspective it’s pretty easy. Both as an American and as a Christian, I am going to stand with Israel” (“Rick Perry’s speech reaches out to pro-Israel Jews, Christian Zionists,” The Houston Chronicle, 20 September 2011).

Perry has also consistently denounced Palestinians at large for “terrorism” (“The GOP’s fiery front-runner,” Time, 15 September 2011).

In August 2011, Perry hosted a prayer rally that included Zionist speakers such as Hagee and C. Peter Wagner (“Rick Perry’s Jesus imperative,” Religion Dispatches, 7 August 2011).

Wagner is a regular attendee of the Glory of Zion church in Denton, Texas, whose delegates are known to regularly visit illegal Israeli settlements in the occupied West Bank.

Omar Barghouti said that “Christian Zionists from the US … are not interested in justice or peace. We know their ideology — it’s a genocidal ideology, it’s an anti-Semitic ideology, and it’s an Islamophobic ideology.”

“They want all Jews to convert to Christianity when the messiah comes or they will die, they’ll be killed. The fact that Israel is going along with this extremely dangerous, anti-Semitic Christian Zionism is because it serves its goals of spreading Zionism in the US,” Barghouti said.

Incidentally, Hagee also “helped connect Mr. Sharp and other Texas A&M officials with Israeli leaders,” The New York Times has reported. It added that Hagee “has helped raise tens of millions of dollars” that contribute to illegal Jewish-only settlements in the West Bank (“Texas A&M pursues a campus in Israel,” 21 October 2013).

“Governor Rick Perry and John C. Hagee promote the Israeli government and their actions,” Diane Wood said. “They do not speak of Israel’s apartheid or the fact that there is a deliberate and overt plan to destroy the Palestinian people.”

Struggling to keep afloat

Established in 2010, the Nazareth Academic Institute (NAI) has struggled to keep afloat due to the Israeli government’s refusal to provide it with adequate funding.

NAI has, until now, received primarily private funding, some of which came from Munib Masri, a Palestinian billionaire who has cooperated with Israel’s settlement activities. After Texas A&M’s takeover, it will remain privately funded, though from sources that are unnamed at present.

The architects of the new project have excluded the input and participation of NAI officials and local community leaders.

Bishara Qattouf, chairperson of the board for NAI, told The Electronic Intifada that the news coverage has so far been misleading.

“We haven’t made any agreement with Texas A&M and we haven’t signed a single paper with them,” Qattouf said. “We know nothing about it for the moment. We haven’t had any discussion about in the board at the academic association yet because we have demands.”

The board’s primary demand is that “the degrees awarded — BA, MA, or PhD — be recognized by Israel as legitimate degrees,” Qattouf said. Until now, the NAI has not been recognized by the Israeli state.

Another demand is that Israel’s higher education council recommend that the state transfer land to the institute in order to build the campus. “If we don’t have any land to build on, we simply have nowhere to put the campus,” said Qattouf.

“If these demands are not met, we will not sign any agreement with Texas A&M or any other university,” Qattouf said, declining to comment further.

Barghouti also confirmed the top-down nature of the plans to establish a new campus in Nazareth. “No one asked the Palestinians what they need,” he said. “No one consulted with Palestinian educators within Israel to ask them, what are your educational needs?”

Organizer Najwan Berekdar of the Love in a Time of Apartheid campaign, which challenges Israeli laws that govern Palestinians’ abilities to enter or reside in present-day Israel, said that the campus would not improve higher education access. This is because only a specific and limited group of Palestinians — those who have Israeli citizenship — would be able to study in the new campus.

The new university “might bring many Israeli students and international students from across the world, but it will not be accessible to the majority of Palestinians because they are prevented from entering the country due to racist laws, such as the Citizenship and Entry Law,” Berekdar said, referencing an Israeli law that prevents the reunification of Palestinian families from present-day Israel and the West Bank and Gaza.

Those with Israeli-issued Jerusalem identity documents, who are stateless under international law, could theoretically attend the university — however, few have the financial means to do so, largely due to Israeli policies that strangle the economy in occupied East Jerusalem.

Those in the West Bank and the Gaza Strip, on the other hand, would have to apply for permits to study inside present-day Israel. Such permits are only granted in extremely rare cases.

“Erasing our existence”

Palestinian citizens of Israel, seeking an alternative to Israeli universities, have been seeking to establish an Arab university for years. By taking over the Nazareth Academic Institute, Israel is attempting to undermine that goal, according to Berekdar.

“When we called for an Arab university, it also meant calling for an Arab faculty because Arabs only make up around 1 percent of [professors] in Israel,” said Berekdar. Yet the “faculty will be drawn from Arab, Israeli, and international scholars,” as well as result in an influx of Jewish Israeli and international students.

“The real concern is what exactly they mean by ‘peace campus’ — co-existence, or erasing our existence?”

“Racism is very, very entrenched in Israeli academia,” said Barghouti, adding that racist incidents and university policies are part and parcel of student life in Israeli universities. Other concerns include the potential gentrifying effect of establishing an American-Israeli university — rather than an Arab university — in the heart of the last Palestinian-majority city in present-day Israel.

In other historically Palestinian cities across Israel, such as Jaffa and Akka (Acre), gentrification policies have had detrimental effects on the indigenous Palestinian populations, pushing them out of their homes as living costs soar and making way for Jewish Israelis.

Already encircled by Jewish-only settlements, Palestinian villages and towns across the Galilee region — where Nazareth is situated — have been subjected to enforce “Judaization” policies for decades.

For Nazareth, this has meant the establishment of Nazareth Illit — or Upper Nazareth, an adjacent Israeli colony that was established for the purpose of swallowing Nazareth and breaking up the contiguity of its Palestinian population.

Adding more fear to the situation, Israel has recently promoted a Christian Zionist project in Nazareth in a crude attempt to recruit Palestinian Christians into military service.

“This is using education for a political agenda,” Barghouti said, adding that it is “a very far-right, racist agenda.

“Such projects are not welcome because they are only ostensibly educational projects, whereas the real goal is a colonial goal, to further Israeli apartheid. We hope that solidarity groups — especially in Texas and in the US at large — will stand up against this.”

Patrick O. Strickland is an independent journalist whose articles have appeared on Al Jazeera English, Truthout and The Electronic Intifada. Follow him on Twitter @P_Strickland_.

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Palestine activists score big win as Veolia pulls out of St. Louis

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(Wissam Nassar / Maan Images)              
    

 

Submitted by Ali Abunimah on Fri, 11/01/2013 – 13:55   

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A Dump Veolia Coalition graphic celebrates victory.

                (St. Louis Palestine Solidarity Committee)              

Palestine solidarity activists in St. Louis, Missouri are celebrating victory after Veolia Water North America withdrew from a $250,000 contract to consult with the city’s water division.

Chicago-based Veolia Water North America is a subsidiary of the French municipal services multinational Veolia which has been a target of global protests and boycott calls because of its participation and profiteering in Israeli occupation of Palestinian lands.

“Major victory”

Veolia’s withdrawal was the “dramatic conclusion” to a one-year activist effort to defeat the contract, the St. Louis Palestine Solidarity Committee (PSC) said in a 31 October statement.

The company’s pullout “was a major victory for a group called the Dump Veolia Coalition, which has protested the contract throughout the year,” the St. Louis Post-Dispatch acknowledged.

PSC was in the forefront of the campaign and helped form the Dump Veolia Coalition.

As well as PSC, the Dump Veolia Coalition includes St. Louis Jewish Voice for Peace, Organization for Black Struggle, Missouri Muslims for Civic Engagement, US Campaign to End the Israeli Occupation, Women’s Voices Raised for Social Justice and several environmental organizations such as Sierra Club, Eastern Missouri Group and Missouri Coalition for the Environment.

Elected representatives listened

“For more than three years, Veolia attempted to secure a contract with St. Louis, defying the will of the local community through aggressive lobbying, bullying, political interference, back-door deals and outright contempt for democratic involvement,” the Dump Veolia Coalition said in a 29 October statement.

“When public opposition denied Veolia the necessary votes to pass the contract through normal channels, the mayor attempted to circumvent the democratic checks and balances by claiming the contract did not need approval through traditional means and threatened to sue the city comptroller if she did not sign it.”

The coalition thanked city councillors “for listening to constituents’ concerns and standing up for transparency, accountability, democratic processes and the will of the people by introducing a resolution to remove funds allocated for Veolia in the city’s budget, the straw that finally broke the camel’s back, prompting Veolia to withdraw.”

“Not worth it”

In a statement announcing Veolia’s withdrawal, Mary Ellen Ponder, deputy chief of staff to St. Louis Mayor Francis Slay, all but admitted the company had pulled out as a direct result of the stiff opposition:

Unfortunately, the passage of a year has had a greater impact than just lost time. Veolia Water, the firm that was legitimately selected per ordinance, to help improve the Water Division’s level of efficiency, has decided our business is not worth it. It is not worth the damage to their business. Veolia will not go forward with the contract they were legitimately awarded. Frankly, they can’t be blamed.

In another recent sign that Veolia is feeling the grassroots pressure, Alan Moldawer, executive vice-president of its subsidiary Veolia Transportation, US recently lashed out at the growing boycott, divestment and sanctions movement with a number of false accusations.

Moldawer was reacting to a campaign to exclude his company from a public transit contract in Sonoma County, California.

Election issue

PSC said that activists had successfully turned the Veolia contract into an election issue for the mayor earlier this year.

The video above shows the mayor during an election event as PSC members press him over Veolia’s abuses.

“While Mayor Slay handily won the mayoral election, the Dump Veolia campaign put his office and Veolia on the defensive and forced both to expend considerable political clout and resources,” PSC said in its statement.

Fruits of coalition work

PSC stresses that the victory in St. Louis was the result of working in a coalition that addressed local environmental and social justice concerns as well as Veolia’s appalling human rights record in Palestine.

Its statement details many of the milestones in its extraordinary campaign and concludes:

As the St. Louis Palestine Solidarity Committee celebrates this victory over occupation profiteer Veolia, we wish to thank the many coalition partners and St. Louis citizens who supported the Dump Veolia campaign. While we came to this issue because of Palestine, we soon learned of the many troubling aspects of Veolia’s business practices including privatization of public resources, labor abuses, corruption, environmental degradation and interference in democratic processes. This is a huge win for BDS in North America and a triumph for the people of St. Louis.

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UN Report on Occupied Palestine (September 18, 2013)

Report of Richard Falk, Special Rapporteur, to the UN General Assembly
Posted Oct 25
 

    SR UN Report on Occupied Palestine (18 September 2013)

(Prefatory Note: With apologies, I posted by accident my prior report this morning, which featured discussion of Gaza after the attacks of November 2012; this September report to the Third Committee of the General Assembly resumes the emphasis on corporate responsibility under international law for business dealing with unlawful Israeli settlements in the West Bank and East Jerusalem. It is part of the effort under this mandate to encourage the United Nations to move from words to deeds, from a critical rhetoric to a pro-active posture resolved to implement international law and uphold to the extent possible Palestinian rights in view of the failures of inter-governmental diplomacy after several futile decades of diversionary initiatives.]

United Nations General Assembly A/68/376

Situation of human rights in the Palestinian territories occupied since 1967 Note by the Secretary-General The Secretary-General has the honour to transmit to the members of the General Assembly the report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, submitted in accordance with Human Rights Council resolution 5/1. Distr.: General 10 September 2013 Original: English Sixty-eighth session Item 69 (c) of the provisional agenda* Promotion and protection of human rights: human rights situations and reports of special rapporteurs and representatives 13-46994 (E) * A/68/150. 111013 *1346994*  A/68/376 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 Summary The present report develops arguments presented in the previous report of the Special Rapporteur to the sixty-seventh session of the General Assembly, which focused on businesses profiting from Israeli settlements and described the involvement of 13 businesses in the activities of Israel in the Occupied Palestinian Territory with reference to the United Nations Guiding Principles on Business and Human Rights. The present report delineates a model for legal analysis by focusing on two illustrative companies chosen for the specific ways in which their activities potentially implicate them in international crimes. The report also takes note of other issues, including the urgent matter of water and sanitation rights. Contents 2/24 13-46994 Page I. Introduction…………………………………………………………. 3 II. Methodology………………………………………………………… 5 III. Normativeframeworks…………………………………………………. 6 A. Internationalhumanitarianlaw ……………………………………….. 7 B. Internationalhumanrightslaw ……………………………………….. 8 C. Internationalcriminallaw …………………………………………… 9 D. Conclusionsonanormativeframework…………………………………. 12 IV. Casestudies…………………………………………………………. 13 A. DexiaGroup…………………………………………………….. 13 B. Re/MaxInternational………………………………………………. 18 C. Conclusionsoncasestudies………………………………………….. 20 V. WaterandsanitationintheWestBankandGazaStrip…………………………… 21 VI. Recommendations…………………………………………………….. 23 A/68/376 13-46994 3/24 I. Introduction 1. As in all earlier reports during his period as Special Rapporteur, the Special Rapporteur has been denied the benefits of cooperation with the Government of Israel, including permission to enter the territory of the State of Palestine. The Special Rapporteur did benefit from a mission to Gaza in December 2012, facilitated by the then-Government of Egypt via entry at the Rafah crossing. The visit was extremely valuable in providing direct access to those living under occupation. There is no substitute for this kind of direct experience on the ground in assessing allegations of violations of human rights by Israel as the Occupying Power. As the present report to the General Assembly is the final one of his tenure, the Special Rapporteur would like to stress the importance of not allowing this pattern of non-cooperation to become a precedent that will hamper the efforts of future Special Rapporteurs to be as effective as possible in investigating contentions relating to the human rights situation that prevails. It has been disappointing that more has not been done by the United Nations to induce compliance by Member States with their obligation under international law to cooperate with the Organization. 2. This mandate was established in 1993 when it was still appropriate to refer to the West Bank, East Jerusalem, and Gaza as “occupied territories”. To continue such usage at this time seems misleading. On 29 November 2012 the Palestinian presence within the United Nations system was upgraded by General Assembly resolution 67/19, conferring the status of non-member observer State. It thus seems more appropriate to refer to the territories administered by Israel as “Palestine” — but at the same time confirm the continuing responsibilities of Israel under international humanitarian law, in particular the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), as the Occupying Power. Beyond the matter of status are issues of substance. The cumulative process of unlawful settlement building and expansion has reached a point where a partially irreversible process of creeping annexation has taken place, which needs to be recognized as such, that undermines the core assumption of “belligerent occupation” as a temporary reality. This alteration of the occupied territories over time has been perversely acknowledged, even provisionally validated, by the widely held assumption that Israeli “settlement blocs” will not be dismantled even in the event that a peace agreement is reached between the Palestinian Authority and Israel. 3. It is more crucial than ever to insist upon the responsibilities of Israel as the Occupying Power under international law. The Geneva Conventions and Additional Protocols I and II, as well as a large number of obligatory international human rights agreements, are indispensable in identifying and evaluating various allegations of practices relating to the administration by Israel of daily life in the West Bank, East Jerusalem and Gaza. This legal framework is important in evaluating such policies and practices as are associated with the construction of the wall on Palestinian land, the wrongful appropriation of Palestinian water resources, the confiscation of land, arrest and detention procedures, the violations of children’s rights, settler violence with the complicity of Israeli security forces, house demolitions and collective punishment via blockades, curfews and restricted movements. While all those policies and practices deserve international attention, the Special Rapporteur focuses some attention in the present report on the wrongful appropriation of water resources, which has been a somewhat neglected aspect of the Israeli occupation. A/68/376 4/24 13-46994 4. The resumption of direct negotiations designed to resolve the conflict between Israel and Palestine calls particular attention at this time to an emphasis on protecting the rights of the Palestinian people during the course of a diplomatic process that, in the past 20 years, has excluded the relevance of international law. This is true, in particular, of the inalienable Palestinian right of self-determination that is not even mentioned in the Declaration of Principles on Interim Self-Government Arrangements of 1993. This mandate will have failed if the solution reached through diplomatic channels does not uphold the collective right of self-determination and the individual rights of those who have lived without rights under Israel military administration since 1967. There are also additional concerns associated with the population of Gaza, whose de facto governing authority since 2007 is not participating in the revived negotiations, raising questions as to whether the rights and interests of Palestinians in Gaza are being adequately represented. 5. The situation of the Gaza Strip is particularly troublesome, as its 1.7 million people have been compelled to live under a blockade since 2007. Gaza seems to be threatened with even greater hardships for its population as a result of recent developments in Egypt. While Israel is the Occupying Power and thus maintains legal obligations to Palestinians in Gaza, the population — for the time being — needs consistent access to and from Egypt by way of the Rafah crossing and also, in order to ensure its survival, needs access to the tunnel network that has been supplying Gaza with basic necessities. It should be recalled that a United Nations report issued a year ago, before the recent complicating developments, concluded that the habitability of the Gaza Strip was in doubt after 2020.1 During the mission of the Special Rapporteur, several experts on the threatened infrastructure of Gaza observed that even such a dire prediction was too optimistic, and that 2016 was a more realistic date. What is at stake in such a situation of extreme deprivation is a comprehensive assault on the social and economic rights of the people of Gaza, as embedded in the International Covenant on Economic, Social and Cultural Rights, to which Israel is a party. The maintenance of the blockade is a continuing violation of article 33 of the Fourth Geneva Convention, which unconditionally prohibits collective punishment. 6. The emphasis in the present report, as well as in the report submitted to the sixty-seventh session of the General Assembly, in 2012 (A/67/379), on issues of corporate responsibility and potential accountability in relation to Israeli settlements follows the recommendation of the fact-finding inquiry into settlements under the auspices of the Human Rights Council.2 It is also a reaction to the refusal of Israel to respect the obligation set forth in article 49 (6) of the Fourth Geneva Convention, which prohibits an Occupying Power from transferring citizens from its own territory to the occupied territory. This provision has been widely interpreted as extending explicitly to Israeli settlements that have been continuously established and expanded since 1967 in defiance of this consensus as to the bearing of international law. When compliance with international law cannot be achieved by either self-regulation or persuasion, then it is appropriate to rely on non-violent, coercive means to achieve compliance and thereby contribute to the protection of the rights of those being victimized, that is, Palestinians. __________________ 1 United Nations country team, “Gaza in 2020: a liveable place?” (Jerusalem, Office of the United Nations Special Coordinator for the Middle East Peace Process, August 2012). 2 See A/HRC/22/63. A/68/376 13-46994 5/24 7. Ever since the adoption of Security Council resolutions 242 (1967) and 338 (1973), there has been a widely shared agreement in the international community that the Israel/Palestine conflict can only be solved by the creation of a viable and independent Palestinian State that corresponds to the 1967 de facto borders, altered to a small degree by mutual agreement. There is no doubt that the territorial scope of self-determination for the Palestinian people according to this “two-State” scenario has been continually diminished owing to unlawful settlement activity. It has long been the responsibility of the international community, and especially the United Nations, to take steps to safeguard Palestinian territorial rights. The extent of the Israeli settlement archipelago is putting the very idea of creating a Palestinian sovereign State that is independent and viable in increasing jeopardy. 8. There are many forms of abuse that deserve urgent attention and censure. The Special Rapporteur would like to highlight three for priority attention: abuses by security personnel in the form of arrest and detention procedures involving excessive force and humiliation, including of children; settler violence directed at Palestinians, and extending to their property and communities; and complicity by Israel Defense Forces in relation to settler violence, taking the form of protecting settlers engaged in violent activities rather than apprehending them, while taking punitive measures against Palestinians being victimized by such activities and failing thereby to discharge their primary responsibility under the Fourth Geneva Convention. The Special Rapporteur, in collaboration with five other Special Rapporteurs, issued a press release in connection with the mistreatment and harassment of Issa Amro, a human rights defender in Hebron who participated in the Human Rights Council interactive session devoted to occupied Palestine in June 2013 and was then detained and beaten upon his return, apparently in retaliation.3 II. Methodology 9. It is almost universally accepted that the establishment and expansion of settlements in the West Bank and East Jerusalem violate international humanitarian law and international human rights law. In addition, the ongoing expansion of settlements has proven to be a key obstacle to peace talks and a negotiated settlement between the Israelis and the Palestinians. 10. To date, Israel has refused to comply with international law in relation to its settlement project, and United Nations efforts to induce compliance by censuring such activities have had no discernible effect. In the meantime, the settlements by their nature and expansion act as a quasi-permanent encroachment on fundamental Palestinian rights. It is against this background that the international legal responsibilities and potential implications for non-Israeli companies that profit from the settlement enterprise is approached. 11. The report of the Special Rapporteur to the sixty-seventh session of the General Assembly raised human rights issues arising from undertakings profiting from doing business with the settlements. It took note of the relevance of the United __________________ 3 “Israel must stop harassment, intimidation and abusive treatment of rights defender Issa Amro”, 13 August 2013. Available from ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID= 13626&LangID=E. A/68/376 6/24 13-46994 Nations Guiding Principles on Business and Human Rights4 and, for the sake of concreteness and illustration, described the involvement of 13 businesses in the activities of Israel in Palestine. The present report develops arguments presented in the previous report and sets forth a possible model for legal analysis by focusing on selected companies chosen for the specific ways in which their activities potentially implicate them in international law violations that appear to be in some instances international crimes. The report is presented with the hope that its legal analysis will encourage companies that currently profit from the settlements to change their policies. The Special Rapporteur has consistently conveyed readiness to work with officials of companies to ensure their compliance with principles of corporate responsibility. The primary wish of the Special Rapporteur is to induce voluntary action, and it is only in the event of the failure of this approach that recourse to more coercive initiatives such as boycotts, divestments and sanctions is recommended. 12. The present report is based on information requested and received from civil society actors, United Nations agencies, companies and corporations, non-State entities and other stakeholders. The Special Rapporteur offers a series of recommendations to encourage businesses profiting from the settlements of Israel to take prompt action to bring their activities into line with relevant international law and related rules and standards. The Special Rapporteur notes that, since finalizing the present report, he has brought its content to the attention of the businesses mentioned. The Special Rapporteur will request clarification and further information regarding the relevant contentions in the present report with the goal of achieving prompt and effective responses to his recommendations. III. Normative frameworks 13. The present report seeks to bring the issue of corporate responsibly to the attention of that portion of the business community that has or might in the future have commercial relationships with the settlements. It has been firmly established that international law recognizes the legal personality of corporations.5 The analysis of corporate accountability will focus on relevant normative frameworks, including international humanitarian law, international human rights law and international criminal law. The establishment of settlements violates the duties of an Occupying Power according to international humanitarian law and infringes on the basic human rights of Palestinians. International criminal law creates individual criminal responsibility for the principal perpetrator as well as those who are accomplices in the commission of international crimes. The Special Rapporteur hopes that consideration of international criminal law can advance the debate on businesses and human rights, in particular because of the tangible judicial mechanisms that exist, for example the International Criminal Court and universal jurisdiction exercised by domestic courts, and in this way help guide business leaders in their decision-making. By explicating a model of legal analysis, the Special Rapporteur hopes that it will be used by and useful to other companies faced with these issues.   __________________ 4 A/HRC/17/31, annex. 5 See, for example, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgement of 5 February 1970, I.C.J. Reports, 1970, p. 246, and Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, I.C.J. Reports, 2007, para. 40. A/68/376 13-46994 7/24 A. International humanitarian law 14. International humanitarian law applies to situations of armed conflict and occupation, as set out in common article 2 of the Geneva Conventions of 12 August 1949. The rules that govern belligerent occupation, in particular the Regulations concerning the Laws and Customs of War on Land of 1907 (Hague Regulations) and the Fourth Geneva Convention, are universally accepted as reflecting customary international law and therefore apply to Israel as an Occupying Power. This has been recognized and confirmed by the Security Council, the General Assembly and the Human Rights Council, as well as by the International Court of Justice in its advisory opinion of 2004 on the wall.6 15. The Fourth Geneva Convention prohibits an Occupying Power from transferring citizens from its own territory to the occupied territory. The prohibition has been widely accepted to include the voluntary settlement of citizens of the Occupying Power in occupied territory.7 The Hague Regulations prohibit an Occupying Power from undertaking permanent changes in the occupied area unless necessitated by military needs, or unless undertaken for the benefit of the local population. The prolonged nature of the 46-year occupation by Israel appears to be inconsistent with the accepted legal understanding that an occupation is temporary in nature. The Special Rapporteur has previously emphasized the limits of international humanitarian law in a context of prolonged occupation, especially for failing to capture the extent to which the permanent interests and well-being of the civilian population are infringed.8 The International Committee of the Red Cross (ICRC) Expert Meeting on occupation and other forms of administration of foreign territory discussed the absence in both the Hague Regulations and the Fourth Geneva Convention of limits on the duration of effective control over foreign territory and noted that many have argued that “prolonged occupation necessitates specific regulations for guiding responses to practical problems arising from long-term occupation”.9 The Special Rapporteur is of the view that such regulations are required, including steps to establish regimes of law and rights when an occupation lasts for more than five years. 16. Notwithstanding shortcomings in existing law to address prolonged occupation, the temporal focus and underlying conservationist aim of the law on occupation clearly establishes that the applicable legal framework renders the establishment and expansion of Israeli settlements as unconditionally illegal. The permanent changes deliberately made in the West Bank and East Jerusalem contradict the basic aim of international humanitarian law to preserve the rights of an occupied people. __________________ 6 See Commission on Human Rights resolutions 6 (XXIV), 6 (XXV) and 2001/7; Human Rights Council resolutions 7/18, 10/18 and 19/17; Security Council resolutions 271 (1969), 446 (1979), 641 (1989), 681 (1990) and 799 (1992); and General Assembly resolutions 2546 (XXIV), ES-10/2, 36/147 C, 54/78, 58/97, ES-10/18 and 66/225; advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004 (see A/ES-10/273 and Corr.1), paras. 109-113. 7 See Security Council resolution 446 (1979) and the advisory opinion of the International Court of Justice of 9 July 2004, para. 120. 8 See A/HRC/23/21. 9 See ICRC, “Occupation and other forms of administration of foreign territory: expert meeting” (Geneva, 2012). Available from icrc.org/eng/assets/files/publications/icrc-002-4094.pdf. A/68/376 8/24 13-46994 17. The obligations that derive from international humanitarian law bind not only States, but also non-State entities, as set out in the Geneva Conventions of 12 August 1949 and in Protocol II (relating to the protection of victims of non-international conflicts) and reaffirmed at the international military tribunals held at Nuremberg, Germany, and at Tokyo. Therefore, business corporations directly or indirectly involved in armed conflicts can be held responsible for violating international humanitarian law. According to the ICRC: International humanitarian law does not just bind States, organized armed groups and soldiers — it binds all actors whose activities are closely linked to an armed conflict. Consequently, although States and organized armed groups bear the greatest responsibility for implementing international humanitarian law, a business enterprise carrying out activities that are closely linked to an armed conflict must also respect applicable rules of international humanitarian law.10 Accountability for international humanitarian law violations is illuminated by reference to international criminal law, a body of law that includes serious violations of international humanitarian law. B. International human rights law 18. International human rights law imposes obligations on States to protect the rights of individuals and groups. The extraterritorial application of human rights has been endorsed by various forums.11 The establishment of Israeli settlements in occupied Palestine results in manifold violations of international human rights law. Among other violations, the settlements infringe upon the right of property, the right to equality, the right to a suitable standard of living and the right to freedom of movement.12 The settlements directly impede the responsibility of Israel to protect the human rights of the civilian Palestinian population. 19. The obligations imposed on States include a duty to protect against human rights abuses by third parties. States must take appropriate steps to prevent, investigate, punish and redress abuse by private actors. Moreover, standards have developed that extend the applicability of human rights law to non-State entities, including corporations.13 Consequently, the obligation of States and companies, and those who act on behalf of such entities, to respect international criminal law norms constitutes a core corporate social responsibility within the evolving legal framework for respecting human rights. __________________ 10 ICRC, “Business and international humanitarian law” (2006). Available from icrc.org/eng/assets/files/other/icrc_002_0882.pdf. 11 See, for example, the advisory opinion of the International Court of Justice of 9 July 2004, paras. 109-113; The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, general comment No. 31 (CCPR/C/21/Rev.1/Add.13), paras. 15, 18; and the Public Commission to Examine the Maritime Incident of 31 May 2010 (the Turkel Commission), “Israel’s mechanisms for examining and investigating complaints and claims of violations of the laws of armed conflict according to international law” (February 2013), p. 64. Available from turkel-committee.gov.il/files/newDoc3/The%20Turkel%20Report%20for%20website.pdf. 12 See General Assembly resolution 2200 A (XXI), annex. 13 See, for example, the International Covenant on Civil and Political Rights; the International Covenant on Social, Economic and Cultural Rights; and General Assembly resolution 60/147. A/68/376 13-46994 9/24 20. Self-regulating mechanisms have been incorporated by many businesses to ensure compliance with ethical standards and international law.14 The United Nations is acting to bring human rights directly to bear on corporations through initiatives such as the Global Compact, which was launched by the Secretary-General in 2000. The Global Compact Initiative encourages businesses globally to promote voluntarily and show respect for 10 principles relating to human rights, labour standards, the environment and anti-corruption measures. Furthermore, in 2011 the Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights, which provide guidance on the responsibilities of business enterprises, as well as the necessary measures to be taken by States arising from their existing human rights obligations. 21. The Guiding Principles on Business and Human Rights are pertinent as a framework for analysis because they “outline steps for States to foster business respect for human rights; provide a blueprint for companies to manage the risk of having an adverse impact on human rights; and offer a set of benchmarks for stakeholders to assess business respect for human rights”.15 A key concept in the Guiding Principles is due diligence, which outlines an ongoing process that a reasonable business needs to undertake to meet its responsibility to respect human rights. The Guiding Principles also outline the related obligations of States, which include respecting human rights (refrain from interfering with or curtailing the enjoyment of human rights), protecting human rights (protect individuals or groups against human rights abuses, including by business enterprises) and fulfilling human rights (positive action to facilitate the enjoyment of basic human rights).16 The Guiding Principles have been and will continue to be an authoritative point of reference for Governments and businesses concerned with human rights. In this connection, the Working Group on the issue of human rights and transnational corporations and other business enterprises has been established by the Human Rights Council.17 It has a central role in developing operational advice regarding the Guiding Principles, promoting and providing support for efforts to implement the Guiding Principles and making recommendations, conducting country visits and working in close cooperation with relevant United Nations bodies. C. International criminal law 22. International criminal law establishes individual criminal responsibility over war crimes, crimes against humanity and acts of genocide. International crimes take into account the collective dimension of the offence, and that can aid in attributing aspects of a collective offence to individuals involved. Attribution of responsibility has extended to multinational corporations on account of their ability to perpetrate such violations. Corporations investing, doing business with or otherwise involved in Governments or groups active in conflict zones can find themselves in a situation __________________ 14 See, for example, Organization for Economic Cooperation and Development, Guidelines for Multinational Enterprises, 2011 edition (Washington, D.C., 2011). Available from oecd.org/daf/inv/mne/oecdguidelinesformultinationalenterprises.htm. 15 See Office of the United Nations High Commissioner for Human Rights, “The corporate responsibility to respect human rights: an interpretive guide” (2012). Available from ohchr.org/Documents/Publications/HR.PUB.12.2_En.pdf. 16 A/HRC/17/31, annex, paras. 1-10. 17 See A/HRC/17/4. A/68/376 10/24 13-46994 of committing or furthering the commission of an international crime. To date, international criminal complicity has only been imputed to natural persons.18 There is a need for caution when considering the extension of individual criminal responsibility to business managers or employees. Applying international criminal law to corporations is a developing area of international law.19 1. Ad hoc tribunals 23. The jurisprudence of the international ad hoc tribunals is pertinent to understanding the concept of complicity. The Furundzija case, heard before the International Criminal Tribunal for the Former Yugoslavia, provides the standard for establishing complicity in the form of aiding and abetting. The assistance given must have a substantial effect on the perpetration of the crime, and the person aiding or abetting must have knowledge that the assistance provided is contributing to the perpetration of a crime, even if he or she did not have a common design with the perpetrators.20 The Tribunal recently changed its approach to complicity in Prosecutor v. Mom􏰀ilo Periši􏰁, when it held that “specific direction” is now an element of aiding and abetting, although the degree to which this decision generates a precedent for similar litigation before other tribunals is unclear.21 2. International Criminal Court 24. Under article 25 (1) of the Rome Statute, the International Criminal Court has jurisdiction over natural persons. It does not have jurisdiction over legal entities. The Court could, however, adjudicate corporate involvement in international crimes by focusing on the individuals acting on behalf of a corporation. When a State becomes a party to the Rome Statute, it comes within the jurisdiction of the Statute with respect to the crimes set out in the Statute. The Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State party or where the crime was committed in the territory of a State party. Also, a State not party to the Statute may decide to accept the jurisdiction of the Court, as set out in article 12 (3) of the Rome Statute. Palestine did so in January 2009, but the Prosecutor at the time stated that the Court only had jurisdiction over States and pointed to determinations of the General Assembly as a guide for determination of entities that qualify as States. It is unclear whether the subsequent granting of non-member observer State status to Palestine by the Assembly will change the status of Palestine before the Court.22 Israel is not a party to the Rome Statute. 25. The Rome Statute is the best source of authority with respect to the elements of complicity in international crimes. Article 25 (3) (c) and (d) outlines aiding and abetting liability, according to which any natural person who aids, abets or otherwise __________________ 18 See, for example, United States of America v. Carl Krauch et al. (the I. G. Farben case), Judgement, 29, 30 July 1948, Trials of War Criminals before the Nuernberg Military Tribunals, United States Government Printing Office, 1952, vol. VIII. 19 See Antje K. D. Heyer, “Corporate complicity under international criminal law: a case for applying the Rome Statute to business behaviour”, Human Rights and International Legal Discourse, vol. 6 (2012). 20 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Furundzija, case No. IT-95-17/1-T, Trial Chamber II, 10 December 1998, para. 249. 21 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Mom􏰀ilo Periši􏰁, case No. IT-04-81-A, Appeals Chamber, 28 February 2013. 22 General Assembly resolution 67/19. A/68/376 13-46994 11/24 assists in the commission or attempted commission of crimes articulated in the statute is individually responsible for such crimes. It consists of a two-pronged test: (1) substantial contribution to the crime; and (2) knowledge and purpose in facilitating or assisting a crime. 26. Therefore, the ability to attribute international criminal responsibility to corporations is not wide in scope. According to the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court, it must be attributed to an individual as opposed to a company, and that individual must have knowledge that their acts have causally contributed to the commission of an international crime. “Knowing assistance” (i.e., an awareness that one’s actions are assisting in the commission of a relevant crime) is required. 27. The Rome Statute prohibits “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”.23 That information has long been available in the public domain, for example in official United Nations reports and resolutions, and would provide a compelling argument that corporations engaged in business activities with the settlements should by now be fully aware that Israeli settlements violate international law. The argument that requires development is the extent to which the corporation’s activities are causally connected to the international crimes being perpetrated. The International Criminal Tribunal for the Former Yugoslavia has introduced “specific direction”, indicating its belief that the activities in question should be specifically directed to assisting the commission of any crime. If one chooses to follow the Tribunal’s jurisprudence on complicity in relation to Israeli settlements, then questions relevant to some of the corporations discussed in the present and the previous report of the Special Rapporteur to the General Assembly would include the following: Does the provision of equipment or raw materials specifically directed towards the building of settlements and/or related infrastructure constitute a sufficient causal connection to the transfer of the Israeli civilian population to occupied Palestine? Does the provision of loans or similar financial transactions that are specifically directed towards the construction, renovation or purchase of settlements constitute such a connection? Does advertising, promoting the sale of and/or identifying buyers for a settlement constitute such a connection? Whether the Tribunal’s approach to complicity in the Periši􏰁 case will prove to be authoritative in other future cases is at this point an unknown. 28. What is clear is that prosecuting corporations for complicity at an international level offers a potential avenue for redress. Of course, jurisdictional requirements must be met. For example, the State from which the corporation and its employees are acting must be a party to the Rome Statute for the court to hear the case. The concept of complicity is not limited to international criminal law, however; other judicial mechanisms, such as national courts, could possibly prosecute corporations or their employees for involvement in international crimes. 3. Civil liability 29. Domestic law potentially provides an avenue for enforcing corporate liability for violations of international law. Civil liability is consistent with the principle of __________________ 23 Article 8 (2) (b) (viii) of the Rome Statute prohibits a broader range of actions than article 49 (6) of the Fourth Geneva Convention. A/68/376 12/24 13-46994 complementarity, which emphasizes the role of domestic legal regimes in the enforcement of international law. Corporate civil liability has the advantage of offering redress and compensation to the victims of the violation.24 Notwithstanding the recent lack of progress in domestic litigation on corporate complicity generally, including in relation to the settlements, it is established that corporations can be subject to civil liability for the wrongful conduct of corporate agents.25 Future cases will no doubt be heard on this issue before domestic courts.26 The United Nations High Commissioner for Human Rights has articulated several reasons why civil liability is an important mode of accountability for corporate complicity: First, international law obligates States to provide an effective remedy for victims of human rights violations. Second, civil liability for corporations helps promote the international legal principle of ensuring accountability for human rights violators. Third, in accordance with the principle of complementarity, international law necessarily relies on domestic legal mechanisms to ensure the effective protection of human rights. Finally, civil liability for corporations that are complicit in gross human rights violations serves as an avenue for orderly redress of grievances. Absent effective legal mechanisms to provide remedies for victims of gross human rights violations, those victims are likely to resort to extralegal measures to obtain redress for perceived wrongs, thereby threatening the established legal and social order.27 4. Civil society tribunals 30. For educational purposes of dissemination about failures of compliance by Israel, there are also important contributions to public awareness made by civil society initiatives such as was achieved by the Russell Tribunal on Palestine at its session in London in 2010 devoted to corporate responsibility. Such initiatives could mount constructive forms of pressure to secure compliance with standards of corporate responsibility, if preferred modes of voluntary adherence fail to uphold legal and moral standards.28 D. Conclusions on a normative framework 31. It should be noted that neither criminal law nor the law of civil remedies requires that the principal actor be held liable before a secondary actor is prosecuted. The difficulty of holding Governments or armed groups accountable for serious violations of international law means that in most cases of alleged business __________________ 24 International Commission of Jurists, Corporate Complicity and Legal Accountability, vol. 3 (Geneva, 2008), p. 4. 25 For recent litigation, see United States Supreme Court, Kiobel v. Royal Dutch Petroleum, 569 U.S. ____ (2013) for limitations of the Alien Tort Statute; the Dutch National Public Prosecutor’s Office dismissal of the case against Riwal; and the Court of Appeal of Versailles decision that ruled against civil liability for private French companies in the construction of a Jerusalem light rail tramway system, available from http://www.volokh.com/wp-content/uploads/ 2013/04/French-Ct-decision.pdf. 26 Corporations and other private legal persons can be prosecuted for genocide and crimes against humanity under article 213-3 of the French Penal Code and under the Canadian Crimes Against Humanity and War Crimes Act. 27 Brief of Amicus Curiae Navi Pillay, p. 3, in Kiobel v. Royal Dutch Petroleum. 28 See russelltribunalonpalestine.com/en/sessions/london-session. A/68/376 13-46994 13/24 involvement in those violations the company will be prosecuted independently of the principal actor.29 32. Much of the legal analysis has culminated in a discussion of international criminal law and its concept of corporate complicity.30 The importance of complicity, however, transcends international criminal justice. It has been extended to respect for corporate social responsibility and human rights standards. The Guiding Principles on Business and Human Rights refer to international criminal law in its articulation of corporate complicity for human rights violations. Such initiatives contribute to translating international criminal responsibility standards into guidelines for companies on how to conduct their business in order to avoid responsibility for violations and abuses, for example through due diligence. IV. Case studies 33. As noted in the previous report of the Special Rapporteur on this issue, there is a wide range of businesses operating in the settlements. The Special Rapporteur surveyed 13 businesses, including several that were Israeli and others that were international. Some businesses were connected with the occupation generally and others with the settlements in particular. In the present report the Special Rapporteur focuses on two discrete areas that relate to settlements. The first area is banking institutions involved in financial transactions, such as loans to construct or purchase Israeli settlements. The company that the Special Rapporteur discusses is the Dexia Group, a European banking group. This builds upon the analysis by the Special Rapporteur of the Dexia Group in the previous report. The second area that the Special Rapporteur draws attention to is real estate companies that advertise and sell properties in settlements. The activities of Re/Max International, a company based in the United States of America, are the focus of analysis in the present report. The case studies aim to determine whether the Dexia Group and Re/Max International, through providing loans and mortgages and through advertising and selling properties in settlements, provide knowing assistance that amounts to aiding in the commission of international crimes associated with transferring the citizens of the Occupying Power to the occupied territory. The Special Rapporteur reiterates that the businesses highlighted are illustrative examples. There are other companies that profit from Israeli settlement activities, both in the economic service areas in which the Dexia Group and Re/Max International are working and in other areas involving goods and services. A. Dexia Group 34. The Dexia Group carries out activities in the fields of retail and commercial banking, public and wholesale banking, asset management and investor services. The Special Rapporteur previously reported on the activities of Dexia Israel Bank __________________ 29 International Commission of Jurists, Corporate Complicity and Legal Accountability, vol. 1 (Geneva, 2008), p. 18. 30 Word constraints limited the present analysis on corporate responsibility to business activities connected to the settlements; however, the analysis could potentially be extended to all aspects of the occupation. A/68/376 14/24 13-46994 Limited (Dexia Israel), of which the Dexia Group is the majority shareholder, such as providing loans to Israelis living in settlements on the West Bank. 35. Since the previous report of the Special Rapporteur, the Dexia Group has continued to implement its revised orderly resolution plan, which was established as a result of the European sovereign debt crisis. In January 2013, Belgium, France and Luxembourg signed a tripartite liquidity guarantee agreement in favour of Dexia Crédit Local. The Dexia Group is now 94 per cent owned by Belgium and France (50.02 per cent Belgium and 44.38 per cent France).31 In 2012, the Dexia Group stated that it planned to sell Dexia Israel and that the sale should be completed within 12 months, following a definitive decision on the various legal actions taken against Dexia Israel and Dexia Crédit Local as a shareholder.32 A press release in May 2013 stated that there have been no new material developments in relation to this matter, and a mid-year report stated that legal proceedings between minority shareholders and Dexia Israel continue, but no mention was made of its banking activities.33 36. The Special Rapporteur previously noted that the Dexia Group was a member of the Global Compact Initiative and that it failed to communicate, in early 2012, on progress made in implementing the standards set by the Compact. The Special Rapporteur has learned that, in April 2013, the Dexia Group withdrew from the Compact, which seems to be a disturbing development from the perspective of securing compliance with the Compact guidelines.34 37. For several years the former and current presidents of the Dexia Group (Jean-Luc Dehaene and Karel De Boeck) have stated that no new contracts have been granted in relation to the settlements. The Belgian movement for international solidarity (Intal) questions the accuracy of this position. Intal’s research indicates that new loans to construct and expand settlements continue to be granted, bringing the total amount of loans to €35 million.35 According to Intal, in November 2012 Dexia Israel made a positive financial audit for the Elkanah and Karnai Shomron settlements and Dexia Israel continues to provide services for settlement development. For example, Ariel and Kedumim settlements can open accounts with Dexia Israel to receive Israel National Lottery (Mifal HaPais) grants.36 Mifal HaPais uses its lottery revenue to support various public projects in the field of health, education and the arts. The settlements are considered one such public project and they receive lottery grants which are transferred through Dexia Israel. Who Profits, an Israeli non-governmental organization, has also conducted research on Dexia Israel. According to their research, Mifal HaPais provided grants in 2012 to Israeli local municipalities and regional councils that were specifically intended __________________ 31 Dexia Group press release, 3 July 2013. Available from dexia.com/EN/journalist/press_releases/ Documents/20130703_CP_Dexia_emission_dette_garantie_EN.pdf. 32 Dexia Group, “Annual report 2012” (Brussels, 2012), p. 76. Available from dexia.com/EN/ shareholder_investor/individual_shareholders/publications/Documents/RA_2012_EN.pdf. 33 Dexia Group press release, 8 May 2013. Available from dexia.com/EN/journalist/ press_releases/Documents/20130508_CP_resultats_1T_EN.pdf; Dexia Group press release, 7 August 2013. Available from http://hugin.info/152020/R/1721538/574033.pdf. 34 See unglobalcompact.org/participant/2887-Dexia-Group. 35 See intal.be/files/20101121_written_statement_RToP_Dexia_-_mario_franssen.pdf and intal.be/fr/article/dexia-et-son-principal-actionnaire-la-belgique-se-portent-garant-pour-couvrir- un-projet-de-l. 36 See intal.be/files/20101121_written_statement_RToP_Dexia_-_mario_franssen.pdf. A/68/376 13-46994 15/24 to support the construction of settlement facilities, such as schools and community centres, all of which were transferred through Dexia Israel.37 It should be noted that Dexia Israel’s activities have also included managing personal bank accounts and mortgage loans for home buyers.38 38. Can the Dexia Group be held accountable for mortgages and loans granted by Dexia Israel to Israeli settlements? As a subsidiary of the Dexia Group (the Dexia Group owns 100 per cent of Dexia Crédit Local, which in turn owns 65 per cent of Dexia Israel), there is a strong basis for imputing the activities of Dexia Israel to the Dexia Group. The methodology of the legal analysis set out above will be applied to this case study in order to assess the grounds for making such an argument. Although that analysis focused on corporations generally, it appears to be accepted that providers of financial services can also be held criminally liable for aiding and abetting crimes. The International Commission of Jurists stated that: The criminal liability of a financier will depend on what he or she knows about how his or her services and loans will be utilised and the degree to which these services actually affect the commission of a crime. Criminal liability may be less likely for a lender or financier who supports a general project or organisation as opposed to the financier who knowingly facilitates specific criminal activities through funding them or dealing with proceeds of the crimes.39 1. International humanitarian law 39. Dexia Israel’s transactions with Israeli settlements render the Dexia Group a business corporation involved in the occupation of Palestine, and it can therefore be held responsible for violating international humanitarian law. Settlements are illegal because of the fact that they are built on occupied land. They are closely linked to the ongoing conflict and the belligerent occupation. Dexia Israel’s activities facilitate the growth of settlements, which demonstrates that the majority shareholder Dexia Group is complicit in violating international humanitarian law because, by transferring members of the Israeli population into occupied Palestine, Israel is violating article 49 (6) of the Fourth Geneva Convention, which, owing to its scale and intentionality, is a prima facie war crime. 40. Moreover, as States parties to the Geneva Conventions, Belgium and France are obligated to respect and ensure respect for the Conventions. At present, they are majority shareholders in a company that provides loans and mortgages to settlements in occupied Palestine and, in this connection, are violating their obligation to ensure respect for the Conventions. 2. International human rights Law 41. Dexia Israel, through its transactions with settlements, is aiding and abetting human rights infringements on the right of property, the right to equality, the right to a suitable standard of living and the right to freedom of movement, among other __________________ 37 Who Profits research paper submitted to the Special Rapporteur, July 2013. 38 Who Profits, “Financing the Israeli occupation” (2010). Available from whoprofits.org/content/ financing-israeli-occupation. 39 International Commission of Jurists, Corporate Complicity and Legal Accountability, vol. 2 (Geneva, 2008), pp. 39-40. A/68/376 16/24 13-46994 human rights. The Guiding Principles on Business and Human Rights consider the relevance of complicity to its concept of due diligence: “questions of complicity may arise when a business enterprise contributes to, or is seen as contributing to, adverse human rights impacts caused by other parties”.40 As a majority shareholder, liability extends to the Dexia Group. Belgium and France are also under a responsibility to take steps to prevent and punish the activities of private actors within the Dexia Group that have violated the law.16 Moreover, as owners of the Dexia Group, Belgium and France have an explicit duty to take appropriate action in the face of human rights abuses, including activities of its subsidiary, Dexia Israel, that support the growth of settlements. By failing to do so, these States are not fulfilling their duties under human rights treaties, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. This duty is recognized by the Guiding Principles, which highlight that, when a State controls a company, its violations may also constitute a violation of the State’s own international law obligations.41 If a State owns or controls a business, it has the direct means of ensuring that policies, legislation and regulations that respect human rights are implemented.42 42. Self-regulating mechanisms within corporations are relevant to assessing responsibility for potential human rights violations.43 It is regrettable that the Dexia Group has withdrawn from the Global Compact. The observation of the Special Rapporteur in his previous report that the Dexia Group was not up to date on its reporting requirements was intended to encourage compliance, but indications suggest that the Dexia Group has unfortunately chosen to follow an opposite course of action. 3. International criminal law 43. Individual criminal responsibility for the activities of Dexia Israel potentially extends to individual employees of the Dexia Group. Both Belgium and France are States parties to the Rome Statute, rendering their nationals within the jurisdiction of the International Criminal Court. Therefore, charges could be presented against Dexia Group employees for complicity in the war crime of establishing settlements in the occupied territory of Palestine. Take for example Dexia Israel’s proposal to grant a loan of 2.5 million new Israeli shekels to Ariel settlement. Ariel is one of the oldest and most prominent settlements in the West Bank. If Dexia Israel is providing mortgage loans for homebuyers in Ariel or to the regional council, or facilitating grants allocated by Mifal HaPais, these types of assistance directly contribute to the settlement’s growth, and therefore materially facilitate the transfer of Israeli citizens to occupied territory. Based on information available to the Special Rapporteur, there is a reasonable basis for concluding that Dexia Israel’s activities provide the financial assistance for the construction, sustainability and maintenance of settlements such as Ariel and Kedumim. It can be reliably presupposed that Dexia Israel is fully aware of the activities for which it provides financial support, and therefore knowingly assists in the establishment and maintenance of settlements. In turn, it can be assumed that, by owning 65 per cent of the bank, the Dexia Group has __________________ 40 A/HRC/17/31, annex, para. 17. 41 A/HRC/17/31, annex, para. 4. 42 Office of the United Nations High Commissioner for Human Rights, “The corporate responsibility to respect human rights: an interpretive guide”, p. 22; see also A/HRC/17/31, annex, para. 14. 43 A/HRC/17/31, annex, paras. 15 and 16. A/68/376 13-46994 17/24 knowledge of the loans its subsidiary grants, and therefore individual criminal responsibility can be attributed to employees in the Dexia Group who have knowledge of the activities of their subsidiary in Israel. 4. State responsibility 44. In addition to individual criminal responsibility, the question of State responsibility is relevant to this analysis. When a State commits an internationally wrongful act (complicity in a war crime), it is obligated to cease the act and make appropriate assurances not to repeat it. In this case, it would appear that Belgium and France must ensure that Dexia Israel stops providing loans and ceases the transfer of Government grants to settlements and settlement-related activities. Further, the State must make full reparation for the injury caused by its past wrongful acts. In this case, Belgium and France could be responsible for reparations to Palestinians adversely affected by settlements that received loans and mortgages from Dexia Israel. Reparation can take the forms of restitution, compensation and satisfaction. The fact that the Dexia Group is now State-owned means that State responsibility and individual criminal responsibility are potential modes of liability. Considering the concern and objections that have been voiced by the European Union about Israeli settlement activity, political and civil society pressure on the Governments of Belgium and France to sell its shares in Dexia Israel may be the most appropriate step to take if compliance is to be belatedly achieved.44 5. Civil liability 45. Domestic courts have been faced with litigation against financial institutions, albeit resulting in different verdicts.45 In most jurisdictions it must be proven that the banks knew about the criminal activity of the borrower they were financing and could foresee the effects of the loan and the harmful consequences resulting from the transaction.46 Civil liability could therefore be potentially imposed on the Dexia Group as an institution, on individuals within the corporation, and/or on Belgium and/or France as owners. The recent Court of Versailles decision on the Jerusalem light rail indicates that, in France at least, civil liability may be difficult to establish in a judicial setting. However, the judicial record of past receptivity by Belgium to universal jurisdiction suggests it may be more ready to respond sympathetically to such an initiative.47 46. In relation to civil liability, certain financial entities have demonstrated an increasing awareness of corporate social responsibility and the potential legal __________________ 44 See European Union, “Statement by the Spokesperson of the High Representative Catherine Ashton on renewed plans for Israeli settlements in and around East Jerusalem”, 31 May 2013. Available from consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/137350.pdf. 45 See, for example, South African Apartheid Litigation, 617 F. Supp. 2d 228, 260-262 (S.D.N.Y. 2009) and Almog v. Arab Bank, 471 F. Supp. 2d at 257 (E.D.N.Y. 2007). 46 See Juan Pablo Bohoslavsky and Veerle Openhaffen, “The past and present of corporate complicity: financing the Argentinean dictatorship”, Harvard Human Rights Journal, vol. 23 (2010). 47 It should be noted that, as a result of issues raised by the Sharon case (La Cour de Cassation, 24 September 2003), which was before the Cour de Cassation at the time, legislators in Belgium made changes to the Amendment to the Law of June 16, 1993, Concerning the Punishment of Grave Breaches of Humanitarian Law (5 August 2003), requiring a direct Belgian link for a case to be heard before the courts. A/68/376 18/24 13-46994 ramifications relating to Israeli settlements. The Norwegian Government Pension Fund Global excluded the construction company Shikun & Binui because of its involvement in the construction of settlements. The Ethical Council of four of the largest pension funds in Sweden excluded Elbit Systems because of its involvement in the construction and maintenance of the wall. The New Zealand Government Superannuation Fund divested from Elbit Systems, Africa-Israel Investments Limited and its subsidiary Danya Cebus, and Shikun & Binui because of their participation in either the construction of settlements or the wall.48 47. Investment committees have recommended that large European banks refuse to extend financial assistance to Israeli companies that manufacture, build or sell products in Palestine and to banks that grant mortgages to builders or buyers of housing therein. The Dexia Group would fall within the latter category. According to Haaretz, the recommendations have been put on hold following pressure from Israel exerted in the context of a diplomatic initiative led by the United States.49 Nonetheless, the recommendations, the response by the Government of Israel and related reporting in the Israeli press indicate that financial institutions are increasingly concerned about their legal and moral responsibilities associated with any dealings involving the settlements. B. Re/Max International 48. Re/Max International is a privately held real estate company in the United States that has an international network of franchisee-owned and operated offices. Re/Max International receives 1 per cent of the revenue of sales and a flat fee per associate.50 Re/Max International franchises its international brand name affiliation and recognition, start-up training, ongoing training, technological resources, and advertising and marketing support.51 Re/Max Israel is itself a franchise of Re/Max International. It opened in 1995 and has more than 100 branches, including in settlements on the West Bank. Israeli branches advertise properties and execute sales of settlement homes in the West Bank.52 The Re/Max Israel franchise office in Jerusalem, called Re/Max Vision, targets international clients who may be interested in purchasing a home in or around Jerusalem.53 Re/Max International promotes the same properties on its website. A search of its website in June 2013 indicated that there were 51 residential properties advertised in 9 settlements.54 49. Can Re/Max International be held accountable for settlement properties sold by Re/Max Israel? By providing international brand name affiliation and recognition, start-up training, ongoing training, technological resources, and advertising and __________________ 48 Jan Willem van Gelder, Barbara Kuepper and Ewoud Nijhof, “Dutch economic links with the occupation”, research paper prepared for Cordaid (Amsterdam, Profundo, 2013), p. 17. Available from cordaid.org/media/publications/Report_Dutch_economic_links_with_the_occupation_ 1.pdf; see also Norwegian People’s Aid, “Dangerous liaisons: Norwegian ties to the Israeli occupation” (2012). Available from npaid.org/Media/20_Files/Om-oss/Annual-reports/ Dangerous-liaisons. 49 “Danger ahead: an Israel boycott”, editorial, Haaretz, 14 July 2013. 50 See remax-franchise.com/fs/home/general_content/faqs. 51 See remax-franchise.com/fs/helping-you-succeed/training-and-support. 52 See remax-israel.com/OfficeProfile.aspx?OfficeID=5012. 53 See remax-capital.com/new/html/project_2_about.php. 54 Http://global.remax.com. A/68/376 13-46994 19/24 marketing, as well as by profiting from such sales, Re/Max International has constant interaction and influence over its franchises. Similar to the Dexia Group case study, the methodology used in the legal analysis set out below will be applied in order to assess the legal plausibility of such a case. 1. International humanitarian law 50. Promoting the sale of (for example by advertising) or selling property on or as part of a settlement contributes to the commission of the international crime of transferring citizens of the Occupying Power onto occupied territory. In fact, advertising and selling such properties to citizens of the Occupying Power constitute instances par excellence of participating in such transfers. 2. International human rights law 51. The responsibility to respect human rights requires businesses to avoid contributing to adverse human rights impacts and to mitigate such impacts when linked to their operations.55 Re/Max International, through selling properties on Palestinian land, is directly contributing to adverse human rights impacts, such as the restrictions on freedom of movement that obstruct Palestinians’ access to land, which is often used for agricultural purposes, and arbitrary and unlawful interference with Palestinians’ privacy, family and home.56 States parties to the International Covenant on Civil and Political Rights are obliged to regulate the conduct of private groups and ensure that such conduct will not result in violating human rights and, where it does, ensure that effective remedies are available. 52. Re/Max International’s code of ethics states that “its affiliates shall undertake to eliminate any practice by real estate professionals in their community which could be damaging to the public”.57 The statement reveals two things. First, if the Palestinian population is considered to be part of the public in Israel (given that Israel effectively controls the population) then the establishment of settlements is clearly damaging to that sector of the public. Second, the code of ethics extends to the “affiliates” of Re/Max International, which form part of its “community”, therefore reconfirming the connection between the global company and its local franchises. 3. International criminal law 53. Neither the United States nor Israel are States parties to the Rome Statute. That makes it difficult to bring a case of complicity against a Re/Max International employee, except if the employee is a national of a party to the Rome Statute. In terms of the causal connection between Re/Max International and its franchises, the fact that it advertises on its website the sale of the properties in settlements demonstrates that it knows about such sales and draws a 1 per cent profit from each sale. Again, by providing international brand name affiliation and recognition, start-up training, ongoing training, technological resources, and advertising and marketing, Re/Max International has an ongoing interaction and influence over its franchises. The Special Rapporteur believes that a strong case could be made that this amounts to knowing assistance in the commission of a crime. Further, the explicit connection of __________________ 55 A/HRC/17/31, annex, para. 13. 56 See General Assembly resolution 2200 A (XXI), annex, articles 12 and 17 and the individual complaint by the Norwegian Refugee Council to the Human Rights Committee, 28 February 2013. 57 See, for example, remax-fun.at/?id=qualitaeten&lang=en. A/68/376 20/24 13-46994 individual salespersons to the promotion and sale of homes in Israeli settlements greatly increases prospects for holding individuals accountable for such crimes. 4. Civil liability 54. Civil liability for corporate complicity may prove a difficult avenue for redress in this case. The United States Supreme Court decision on Kiobel v. Royal Dutch Petroleum Co. presents a challenge to litigation against corporations through the Alien Tort Statute, which had been a valuable mechanism to hold corporations accountable for violating international law.58 This would make it difficult to bring a case of corporate complicity against Re/Max International in the United States. Nonetheless, civil liability could be prosecuted against individuals within Re/Max International for their role in knowingly assisting in the commission of a crime by providing advertising and other administrative support to Re/Max Israel’s property sales in the West Bank, including East Jerusalem. Furthermore, the Guiding Principles on Business and Human Rights emphasize that States must take appropriate steps to ensure that effective remedy is available through judicial, administrative and legislative means.59 55. Real estate agents who promote and/or sell properties in settlements in Palestine to citizens of the Occupying Power may be held liable for complicity in the crime of promoting settlement activity in occupied territory. While the present case study examined Re/Max International, the same analysis would apply to other real estate agencies. The unavailability of civil relief in United States court at the present time does not establish that such a remedy might not be available in other national legal systems. C. Conclusions on case studies 56. The present report proposed a model for legal analysis by focusing on two companies chosen for the particular ways in which their activities potentially implicate them in international crimes. The legal model can be applied to other situations and other companies. The Special Rapporteur stresses again that the companies discussed herein are illustrative examples; however, some conclusions can be drawn about the case studies. 57. Financial institutions and real estate agents may be held accountable for their involvement with settlements in occupied Palestine. Pressure by the international community to uphold international law is no longer limited to States as the primary duty-bearers. Companies, individuals and groups can be implicated for behaviour that contributes to wrongful acts. The Dexia Group and Re/Max International, in different ways, assist in the growth of settlements: the Dexia Group by providing financial services connected to the settlements, and Re/Max International by selling settlement properties. In terms of assessing the causal connection to the policy and practice by Israel of transferring its citizens to Palestine, this must largely be based on the connection between the global companies and the settlement activity. Do the activities of the global companies directly contribute to the violations of international __________________ 58 The Alien Tort Statute is a legal instrument that enables plaintiffs to sue persons, including foreigners, who acted outside United States territory for breaches of international law before United States district courts. 59 A/HRC/17/31, annex, paras. 25 and 26. A/68/376 13-46994 21/24 law that the settlements constitute? Voluntarily playing a causal role in the commission of a crime can in certain instances be enough to make them accomplices to that crime. V. Water and sanitation in the West Bank and Gaza Strip 58. During the mission of the Special Rapporteur to the Gaza Strip in December 2012, a number of interlocutors raised serious concerns about the lack of clean water and adequate sanitation facilities in the Gaza Strip. Some of those issues were briefly touched upon in the previous report of the Special Rapporteur to the Human Rights Council.8 In the context of the near exclusive control by Israel over all underground and surface water resources in Palestine, the Special Rapporteur reiterates his concerns regarding the occupation-induced water and sanitation crisis. The situation in the Gaza Strip 59. In the Gaza Strip, 90 per cent of water in the underlying coastal aquifer beneath the Gaza Strip is unfit for human consumption as a result of pollution caused by raw sewage and rising seawater infiltration. In 2012, the United Nations reported that the coastal aquifer on which the Gaza Strip is almost completely reliant could become unusable as early as 2016, with the deterioration becoming irreversible by 2020. Polluted tap water has forced many families to buy expensive water from external vendors or to rely on desalinated water supplied by the Coastal Municipalities Water Utility, putting an unreasonable burden on average household incomes, which are already struggling at or below subsistence levels. Under these circumstances, most Gazans consume an average of 70 to 90 litres per person per day, which is well below the global standard set by the World Health Organization.1 60. The Israeli blockade of Gaza has exacerbated water scarcity and lack of adequate sanitation facilities. Delays and restrictions on the entry of materials through the Israeli-controlled Kerem Shalom crossing have stalled a number of water and sanitation infrastructure projects. Furthermore, Israel not only extracts a disproportionate share of the water from the coastal aquifer for its own benefit but also blocks the Gazan population from accessing water from the Wadi Gaza, a natural stream that originates in the Hebron Mountains and flows to the Mediterranean Sea. 61. Water scarcity in Gaza has been worsened by the repeated destruction of water and sanitation infrastructure in the course of Israeli military operations.60 Israel has destroyed at least 306 wells in the Access Restricted Areas of Gaza since 2005.61 In this context, the Special Rapporteur strongly condemns the targeting of water and sanitation facilities during Israeli military operations, which cannot be justified as a military necessity, and cannot be explained as a consequence of accidents. __________________ 60 See A/HRC/22/35/Add.1. 61 Emergency Water and Sanitation-Hygiene Group, “Fact sheet 13: Water and sanitation in the Access Restricted Areas of the Gaza Strip” (December 2012). Available from ewash.org/files/ library/factsheet%20jan%2021[1].pdf. A/68/376 22/24 13-46994 The situation in the West Bank 62. Palestinians in the West Bank are denied their rightful share of water from the underground mountain aquifer and prevented from accessing water from the Jordan River, which are both classified as shared water resources and thus must be shared equitably under customary international law.62 An estimated 500,000 Israeli settlers in the West Bank and East Jerusalem enjoy approximately six times the amount of water used by the Palestinian population of 2.6 million.63 Israeli settlers enjoy ample amounts of water channelled directly to the settlements, which allows settlers to irrigate agricultural land and grow water-intensive crops. In contrast, Palestinian farmers depend largely on water supplies transported in tankers or collected by water cisterns, raising agricultural costs and restricting most Palestinian agriculture to unprofitable small-scale operations growing rain-fed crops, which on average is 15 times less profitable than irrigated crops. In this context, only 6.8 per cent of land cultivated by Palestinians in the West Bank is irrigated.64 63. The unequal distribution of water resources has been sustained by the Joint Water Committee, which was established as part of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip. Mandated to grant permits for the drilling and rehabilitation of wells and sewage systems, the Committee is also responsible for setting water extraction quotas. The veto power of Israel on decision-making by the Committee has enabled it to constrain the development of water infrastructure for Palestinian communities, particularly in Area C of the West Bank. In addition, all Palestinian water projects located in Area C need to obtain approval from the Israeli Civil Administration. The Special Rapporteur finds it alarming that from 1995 to 2008, the Committee approved Israeli proposals for 3 wells and 108 supply networks and rejected only 1 of 24 proposed wastewater projects, while during the same period it approved only half of all Palestinian proposals for wells.63 64. The loss of scarce Palestinian water resources occurs not only through demolitions undertaken by Israeli authorities of “illegal” water collection facilities, including wells and water collection tanks, but also as a result of deep-water drilling activities by Israeli water companies. The Special Rapporteur is also concerned by acts of violence by settlers in the vicinity of Palestinian communities; there are several reports of Palestinian springs being taken over by settlers and fenced off.65 65. Israel systematically blocks the development of the Palestinian wastewater and sanitation sector through bureaucratic constraints imposed by the Joint Water Committee and the Israeli Civil Administration. Between 1995 and 2011, only 4 out of 30 Palestinian wastewater treatment plant proposals were approved by the Committee and their construction has been repeatedly delayed. It is of serious __________________ 62 Palestinian Water Authority, “Palestinian water sector: status summary report”, report prepared for the meeting of the Ad Hoc Liaison Committee (September 2012). Available from http://reliefweb.int/sites/reliefweb.int/files/resources/Water%2520summary%2520for%2520AH LC%2520report%2520FINAL.pdf. 63 Elizabeth Koek, Water for One People Only: Discriminatory Access and “Water-Apartheid” in the OPT (Ramallah, Al-Haq, 2013). 64 Emergency Water and Sanitation-Hygiene Group, “Fact sheet 14: Water for agriculture in the West Bank” (March 2013). Available from ewash.org/files/library/WB%20factsheet%20 fianl%20march%209[1].pdf. 65 See A/HRC/22/63 and Oxfam, On the Brink: Israeli Settlements and Their Impact on Palestinians in the Jordan Valley (Oxford, 2012). A/68/376 13-46994 23/24 concern to the Special Rapporteur that there is only one functioning Palestinian wastewater treatment plant in the West Bank, which has the capacity to treat less than 3 per cent of sewage.62 66. Meanwhile, Israeli authorities profit from the occupation-induced crisis by treating up to 21 per cent of Palestinian sewage in facilities established inside Israel and paid for by Palestinian tax revenues withheld by Israel. The treated wastewater is then reused for the exclusive benefit of the Israeli agricultural sector.62 The difficulties experienced by Palestinian communities in securing sewage treatment facilities contrasts with the wastewater treatment plants servicing the settlements, which makes a mockery of the relevance of international humanitarian law in the protection of an occupied people. The Palestinian right to water and development 67. Considering the unlawful policies and practices of Israel that induce a water and sanitation crisis in occupied Palestine, the Special Rapporteur stresses that the Palestinian Authority has neither been able to uphold Palestinian water rights nor embrace the right to development of water and sanitation facilities.66 Support from the international donor community for ad hoc solutions, such as financing desalination plants and sanitation facilities to meet the immediate needs of the Palestinian population, must go hand in hand with pressure exerted on Israeli authorities to put an end to its discriminatory policies. In sum, the discriminatory pattern disclosed is aggravated by the fact that while the Palestinians are being denied their rights to resources situated within Palestine, settlements have been the beneficiaries of these Israeli policies. In effect, illegality is compounded by illegality, with the result being impending threats of de-development hanging over the Palestinian future in the Gaza Strip, and to a lesser degree in the West Bank. VI. Recommendations 68. If current diplomacy fails to produce a solution to the underlying conflict, the Special Rapporteur recommends that the General Assembly request an advisory opinion from the International Court of Justice as to the legal consequences of the prolonged occupation of Palestine. 69. The Special Rapporteur recommends that the Government of Israel cease expanding and creating settlements in occupied Palestine, start dismantling existing settlements and returning its citizens to the Israeli side of the Green Line and provide appropriate reparations for the damage due to settlement and related activity since 1967. 70. The Special Rapporteur recommends that the Government of Israel inform Israeli businesses that are franchises and subsidiaries of global companies that profit from activity with the settlements of their corporate   __________________ 66 The International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities entail obligations for States parties in relation to access to safe drinking water and sanitation. Israel has ratified the aforementioned Conventions except for the Convention on the Rights of Persons with Disabilities, to which Israel is a signatory. A/68/376 responsibilities and the international legal ramifications of such business activities, in particular concerning potential liability for corporate complicity in overseas domestic courts. 71. The Special Rapporteur recommends that Belgium and France compensate Palestinians who have been directly affected by the settlements to which Dexia Israel has provided mortgages or administered grants. 72. The Special Rapporteur recommends that copies of the present report be forwarded to Robert de Metz (Chair of the Board of the Dexia Group) and David Liniger (Chair and founder of Re/Max International). It is strongly recommended that each of these two companies undertake a prompt review so as to bring it, its affiliates and its employees’ policies and practices into full compliance with the laws and standards mentioned in the present report. 73. The Special Rapporteur recommends that the Dexia Group and Re/Max International should agree to comply with and adopt clear guidelines for future corporate social responsibility based on the Guiding Principles on Business and Human Rights. 74. The Special Rapporteur recommends that civil society in Belgium and France be urged to pressure their Governments to sell their shares in the Dexia Group and encourages civil society to demand that all businesses cease their activities that relate to the settlements and henceforth insist that companies act in accordance with the Guiding Principles on Business and Human Rights. 75. The Special Rapporteur recommends that all companies with relations to the settlements comparable to those of the Dexia Group and Re/Max International review their arrangements with an eye towards respect for international law and the Guiding Principles on Business and Human Rights. 76. The Special Rapporteur recommends that Israel immediately end its discriminatory policies and practices that serve to deny Palestinians their rightful share of water resources in the West Bank and the Gaza Strip. In particular, Israel must cease the demolition of water collection facilities, including wells and water tanks, on the pretext that they operate without valid permits. 24/24 13-46994

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Dirty tricks won’t fix Israel’s ‘image problem’

The Prime Minister’s Office plan to set up a unit of students to operate on social networks as undercover spokesmen for the government and its actions reflects not only the depth of international suspicion of Israel’s government, but also the fact that Netanyahu and staff favor public diplomacy tricks above all else.

    |      Aug. 14, 2013 | 5:44 AM |        6
 
                        
Netanyahu   
Netanyahu using a computer at his office in Jerusalem. Photo by Alex Levac
 
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By Barak Ravid   | Aug. 13, 2013 | 5:50 AM        | 23       
By Barak Ravid   | Aug. 13, 2013 | 6:04 PM        | 21       
 

The Prime Minister’s Office wants to set up a unit of students to operate on social networks as undercover spokesmen for the government and its actions. And it’s right to want to do so: At a time when clouds of disbelief frequently hover over Prime Minister Benjamin Netanyahu, it has no choice but to recruit new spokesmen, people whose credibility is presently intact. This is a cynical plan that reflects not only the depth of international suspicion of Israel’s government, but also the fact that Netanyahu and his staff favor public diplomacy tricks above all else.

According to the report published by Barak Ravid in on Tuesday Haaretz, the government wants to invest almost NIS 3 million in deploying hundreds of students to promote its positions on social media networks – but with no governmental identification. The public diplomacy units to be established at the universities will operate under the direction of the public diplomacy staff in the Prime Minister’s Office, but “The entire idea of the setup is based on activity of students and by students,” and therefore, “the idea requires that the state’s role not be highlighted.”

The above quotes are taken from the official request to the government tenders committee to approve the contract with the National Student Union, which will be a party to this semi-secret project. The honesty of those behind the program is impressive. Perhaps we should praise the government for having finally understood that its official words and deeds can no longer convince the public, either in Israel or abroad. To accomplish that, it turns out, it’s better to pretend and to pay others.

This crude attempt by the Likud-led government to burnish its image by recruiting students should also be quashed in the interest of the students themselves. The bribes in the form of stipends that the Prime Minister’s Office will pay to the hundreds of warriors in the universities’ “public diplomacy units” will raise questions about the honesty of their activity. It’s also safe to assume that Arab students won’t make it through the project’s screening process.

The student union’s cooperation with this enterprise turns it into an arm of the government’s propaganda apparatus. Aren’t these the very students who, for instance, ought to be rising up against the harm Netanyahu’s diplomatic policy will cause to research? Aren’t these the very students who protested against his economic policy? Instead of protecting academia against political interference, the student leaders are helping subordinate it to directives from the Prime Minister’s Office.

A solution to Israel’s “image problem” won’t be achieved by dirty tricks. To accomplish that, what’s needed is a change in policy.

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Unfortunately, “peace talk” advocates seem comfortable excluding the majority of the Palestinian people, writes Samer Abdelnour  [EPA]

There are many advocates of the renewed US-sponsored peace talks between Israel and the Palestine Liberation Organisation, despite widespread scepticism. One particularly active set of advocates is the group known as The Elders. Three of the Elders – former US President Jimmy Carter, former President of Finland Martti Ahtisaari, and former Algerian Foreign Minister and freedom fighter Lakhdar Brahimi – recently spent time in Washington and London making the case for the peace talks. It is instructive to review their arguments, as I had the opportunity to do during their London visit.

Refreshingly, the talk proved productive and substantial: settlement expansion and the entrenchment of Apartheid is quickly rendering a two-state situation unachievable; the international community has failed the Palestinian people; peace is in Israel’s hands, as Palestinians have little capacity to pressure Israel into any agreement; there is scarce political will within Israel to end the colonisation of Palestine; without serious external pressure, Israel will have little incentive to uphold its obligations under international law; and finally, it is unlikely that the current Israeli political elite will ever take peace seriously.

Israel invites bids for settlement homes

Despite these major obstacles it was suggested by The Elders that Israelis and Palestinians would face a ghastly future in the post-two-state world. Thus, US Secretary of State John Kerry’s efforts were seen as not only serious and genuine, but the “last hope” for peace between Israelis and Palestinians. The two-state template proposed is the same as it has been for decades: two states with borders based on the Green Line and with swaps to incorporate most West Bank Jewish settlements in a redrawn Israel, allowing Palestinians to form a land corridor between the West Bank and Gaza.

Meanwhile, political leaders have suggested that the four million Palestinians under Israeli occupation in Gaza and the West Bank, including East Jerusalem, could voice their position on a potential peace agreement through a referendum. But what about the Palestinian Diaspora – the millions of refugees and exiles who are not allowed to go home and whose numbers are swelling daily with every new dispossession? What about our rights and aspirations?

Unfortunately, “peace talk” advocates seem comfortable excluding the majority of the Palestinian people, effectively disregarding them as an integral stakeholder in the peace process. Instead of working on an inclusive basis to consider the aspirations of the majority of Palestinians, talks will focus almost exclusively on the issue of borders and land swaps. The status of Jerusalem is occasionally mentioned and what little discussion about Palestinian refugees and exiles assumes that our rights and aspirations are negotiable.

Al-Nakba – Episode 1

As a Palestinian, I find these positions highly insensitive and utterly dismissive of our rights. As difficult as it may be for observers to accept, the rights of Palestinian refugees and exiles to return to our homeland are inalienable. The right of return is both an individual and a collective right. Any negotiation of this right must not happen without the full participation of Palestinian refugees and exiles, including the refugees in Gaza and the West Bank. More seriously, the Arab peace initiative, which speaks of a “just solution” for the refugees that would be “agreed upon,” should not be seen as a resettlement carte blanche .

Moreover, there are alternatives to the two-state dogma: a two-state solution is certainly not the only viable peace option. After decades of a failed process, the impending death of the two-state solution should invigorate considerations of alternative possibilities and not rehash the past. More than ever there is a need for strategic thinkers and policymakers to seriously explore the one-state solution as well as bi-national options. Israeli hard-liners may never accept living together with “non-Jews”, or that Palestinians should one day share equal rights, but this ideal is an attractive one for many people of Palestinian and also of Jewish origin.

A rights-based platform would get to the core of the Israeli-Palestinian conflict: the deeply ideological discrimination that permits the violent colonisation of the indigenous Palestinian people. Peace advocates prophesize doom for Israel if the two-state solution fails because it will lose its Jewish majority – a majority engineered through wars, ethnic cleansing, and Palestinian dispossession. This is not, to say the least, a healthy basis for a real peace based on justice and mutual understanding. The international community must seriously begin to consider and discuss alternatives to the two-state solution.

As for the Palestinians excluded from the peace “process” during these past two decades, we are working globally to engage with one another in unique ways and to influence Palestinian politics. Examples of such efforts are the Palestinian-led Boycott, Divestment and Sanctions movement (BDS), which now provides leadership to an international solidarity movement, media outlets with a growing readership, such as Electronic Intifada, new think tanks (such as Al-Shabaka and Masarat), and attempts to reinvigorate representative structures (such as the initiative to register Palestinians worldwide for Palestine National Council elections). Though we are not now at the peace talk table, any viable and sustained peace initiative will have to take our voices into account. The Palestinian Diaspora will not rest until our rights and aspirations are recognised.

Samer Abdelnour is a co-founder of Al-Shabaka: The Palestinian Policy Network. He is completing a PhD in Management at the London School of Economics on NGOs and humanitarian response, and the role of community and collective enterprise in post-war peace building and development in Sudan. Since 2005 he has managed applied research projects across Sudan.           

        

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.

 
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Should intellectual products be exempt from boycott?

The most recent issue of the Journal of Academic Freedom, the American university professors’ publication, is devoted to the question of Israel and academic boycott. We post three of the contributions below – by Joan Scott, Omar Barghouti and David Lloyd and Malini Johar Schueller. In Notes and links are the table of contents of the issue, and details of the forthcoming conference, organised by Independent Jewish Voices, Beyond the Stalemate: the ongoing Palestinian-Israeli impasse at which Mustafa  Barghouti,  General Secretary of the Palestine National Initiative (PNI),  is the keynote speaker on October 13th.

Protest in Melbourne, 2010

Changing My Mind about the Boycott

By Joan W. Scott, AAUP September 2013

In 2006, I was one of the organizers of an aborted AAUP conference on academic boycotts. The point was to open a conversation about the utility—past and present—of such political actions, to understand what was actually involved in the choice of that strategy, to conduct a conversation in a setting above the fray (in this instance at the Rockefeller Conference Center in Bellagio, Italy), and to learn what we could from the various points of view we hoped to represent at the conference. Idealistically, we imagined the conference to be an exercise in academic freedom, the fulfillment of the best of AAUP principles. In fact, our experience was anything but the fulfillment of AAUP ideals. From the outset, defenders of right-wing Israeli politics—with Professor Gerald Steinberg of Bar-Ilan University in the lead—sought to prevent the meeting, arguing, in the name of academic freedom, that “illegitimate” (that is, Palestinian) voices would be included in the group. Soon the then-leaders of the AAUP—Cary Nelson and Jane Buck—joined the opposition, notifying the funders of the conference that it did not have official AAUP approval. (They did not notify the conference organizers of these actions.) At that point the conference was canceled. The full story, as well as some of the papers that would been presented at the conference, was published in a special report in Academe (September–October 2006).

Those of us who organized the conference were not promoting academic boycotts; we were simply interested in debating the issue in order to better understand and evaluate the strategy of the boycott. In fact, at the time, I agreed with the prevailing view at the AAUP that academic boycotts were contrary to principles of open exchange protected by academic freedom. I have now reconsidered that view. Even at the time, in the heat of the controversy about our conference, it began to seem to me that inflexible adherence to a principle did not make sense without consideration of the political contexts within which one wanted to apply it. Indeed, given the vagueness of the principle of academic freedom, its many different uses and applications, knowing how to apply it required understanding the different functions it served in practice. If the conference was meant to achieve that understanding, it was thwarted, for we had clearly walked into a political minefield—the so-called defenders of Israel were going to prevent us from exercising our rights to free speech (to discussion and debate), just as they were preventing their critics within Israel from doing the same by threatening and firing those who represented dissenting views. What did it mean, I wondered, to oppose the boycott campaign in the name of Israeli academic freedom when the Israeli state regularly denied academic freedom to critics of the state, the occupation, or, indeed, of Zionism, and when the blacklisting of the state’s critics is the regular tool of state authorities against Israel’s own academic institutions?

If anything, the power of the Right and the oppression of Palestinians have increased since 2006—even the supposed “weakening” of the Netanyahu government has taken place through the strengthening of right-wing parties. The country that claims to be the only democracy in the Middle East is putting in place a brutal apartheid system; its politicians are talking openly about the irrelevance of Arab Israeli votes in elections and developing new methods for testing Arab Israeli loyalty to the Jewish state. Israel’s legal system rests on the inequality of Jewish and nonJewish citizens; its children are regularly taught that Arab lives are worth less than Jewish lives; its military interferes with Palestinians’ access to university education, freedom of assembly, and the right to free speech; and its Council of Higher Education, now an arm of the Likud Party, has elevated a religious college in the settlements to the status of a university, accrediteda neoconservative think tank to grant BA degrees to students, and conducted inquisitions among university faculty, seeking to harass, demote, or fire dissidents—that is, to silence their speech. The hypocrisy of those who consider these to be democratic practices needs to be exposed. An academic and cultural boycott seems to me to be the way to do this.

Such a boycott refuses to accept the facade of democracy Israel wants to present to the world. It is not a boycott of individuals on the basis of their national citizenship. Quite the contrary—it is an institutional boycott, aimed at those cultural and educational institutions that consistently fail to oppose the occupation and the unequal treatment of non-Jewish citizens. It demands evidence that these institutions provide academic freedom to Arabs as well as Jews, Palestinians as well as Israelis, within the borders of Israel, the occupied West Bank, and Gaza, and support it for Arabs and Jews equally. It says that, in the face of an apartheid that violates both the principles and practices of equality and freedom for all, a principled opposition to boycotts as punitive or unfair makes no sense. In fact, such an opposition only helps perpetuate the system. The boycott is a strategic way of exposing the unprincipled and undemocratic behavior of Israeli state institutions; its aim might be characterized as “saving Israel from itself.”

The American academy has been particularly complicit in perpetuating the fiction of Israeli democracy—its leaders seek to protect Israel from its critics, even as they also seek to protect themselves from the wrath of the organized lobbies who speak on behalf of the current Israeli regime and its policy of establishing academic outposts in illegal settlements. This, it seems to me, is ill advised, since so much of Israeli politics right now is at odds with the best values of the American educational system. Paradoxically, it is because we believe so strongly in principles of academic freedom that a strategic boycott of the state that so abuses it makes sense right now.

Joan W. Scott is Harold F. Linder Professor in the School of Social Science at the Institute for Advanced Study in Princeton, New Jersey. Her most recent book is The Fantasy of Feminist History (2011).


Boycott, Academic Freedom, and the Moral Responsibility to Uphold Human Rights

By Omar Barghouti [above]

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare in a democratic society.

—United Nations, “Universal Declaration of Human Rights” (1948), Article 29(2)

Discrimination at every level of the [Israeli] education system winnows out a progressively larger proportion of Palestinian Arab children as they progress through the school system—or channels those who persevere away from the opportunities of higher education. The hurdles Palestinian Arab students face from kindergarten to university function like a series of sieves with sequentially finer holes.

—Human Rights Watch, “Second Class: Discrimination against Palestinian Arab Children in Israel’s Schools” (2001)

Just before year end 2012, Israeli defense minister Ehud Barak signed the official document upgrading the colony-college of Ariel, built on occupied Palestinian land, to a university, inviting unprecedented condemnation. Many academics around the world had already joined the widespread silent academic boycott of Israel—that is, the unannounced, yet very effective, shunning of academic visits to and relations with Israeli academic institutions—well before this latest upgrade of Ariel. After the upgrade, what started as a trickle may well develop into a South Africa–style deluge of academic boycotts against Israel.

Yet the focus on settlement institutions should not ignore or obscure the fact that allIsraeli academic and cultural institutions are deeply complicit in maintaining the system of occupation and denial of basic Palestinian rights and are therefore just as worthy of the boycott. Not to recognize this would be to miss the forest for the trees. For example, in April 2005, the annual congress of the British Association of University Teachers (AUT) adopted a resolution calling for the boycott of two Israeli universities, BarIlan and Haifa, for various infringements, and asking AUT members to heed the call of the Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI).

In response, the AAUP issued a curt report condemning academic boycotts as inherently antithetical to academic freedom.

Three sets of problems arise from the AAUP stance on this issue: the conceptual, the functional, and the ethical. Together, they pose a considerable challenge to the coherence of the AAUP’s position on the academic boycott of Israel, and they call into question the consistency of this position with the organization’s long-standing policies and modes of intervention in cases where its principles are breached. Most important, by positing its particular notion of academic freedom as being of “paramount importance,” the AAUP effectively, if not intentionally, sharply limits the moral obligations of scholars in responding to situations of serious violations of human rights. This essay deals with the conceptual and ethical shortcomings of the AAUP position.

Conceptual Inadequacy

The AAUP’s conception of threats to academic freedom appears to be restricted to intrastate onflicts, mainly “governmental policies” that suppress the “free exchange of ideas among academics.” For example, a governmental decree in China institutionalizing censorship of academic publications would fall in this category. This leaves out academics in contexts of colonialism, military occupation, and other forms of national oppression where “material and institutional foreclosures . . . make it impossible for certain historical subjects to lay claim to the discourse of rights itself,” as philosopher Judith Butler eloquently argues. Academic freedom, from this angle, becomes the exclusive privilege of some academics but not others.

Moreover, by privileging academic freedom above all other freedoms, the AAUP’s notion contradicts seminal international norms set by the United Nations. The 1993 World Conference on Human Rights proclaimed, “All human rights are universal, indivisible . . . interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”

Finally, by turning the free flow of ideas into an absolute, unconditional value, the AAUP comes into conflict with the internationally accepted conception of academic freedom, as defined by the UN Committee on Economic, Social, and Cultural Rights (UNESCR), which states:

Academic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfill their functions without discrimination or fear of repression by the state or any other actor, to participate in professional or representative academic bodies, and to enjoy all the internationally recognized human rights applicable to other individuals in the same jurisdiction. The enjoyment of academic freedom carries with it obligations, such as the duty to respect the academic freedom of others, to ensure the fair discussion of contrary views, and to treat all without discrimination on any of the prohibited grounds.

When scholars neglect or altogether abandon such obligations, when they infringe on the “academic freedom of others,” they can no longer claim what they perceive as their inherent right to this freedom. This rights-obligations equation is the general underlying principle of international law in the realm of human rights. It also was one of the foundations of the AAUP’s initial view of academic freedom, as expressed in its 1915 Declaration of Principles, which conditioned this freedom on “correlative obligations” to further the “integrity” and “progress” of scientific inquiry. Without adhering to a set of inclusive and evolving obligations, academic institutions and associations have little traction to discourage academics from engaging in acts or advocating views that are deemed bigoted, hateful, or incendiary.

Should a professor be free to write, “Among [Jews], you will not find the phenomenon so typical of [Islamic-Christian] culture: doubts, a sense of guilt, the self tormenting approach. . . . There is no condemnation, no regret, no problem of conscience among [Israelis] and [Jews], anywhere, in any social stratum, of any social position”? In fact, if we substitute for the words in brackets—in order—“Arabs,” “Judeo-Christian,” “Arabs,” and “Muslims,” the above becomes an exact quotation from a book by David Bukay of Haifa University. A Palestinian student of Bukay’s filed a complaint against him alleging racially prejudiced utterance. The university’s rector exonerated Bukay of any wrongdoing, although Israel’s deputy attorney general ordered an investigation of Bukay “on suspicion of incitement to racism.”In this case, the institution itself becomes implicated.

Criminal law aside, should an academic institution tolerate, under the rubric of academic freedom, a hypothetical lecturer’s advocacy of the “Christianization of Brooklyn,”say, or some “scientific” research explicitly intended to counter the “Jewish demographic threat” in New York? Arnon Soffer of Haifa University has worked for years on what is exactly the same, the “Judaization of the Galilee,” and he is launching projects aimed at fighting the perceived “Arab demographic threat” in Israel.11 In his university and in the Israeli academic establishment at large, Soffer is highly regarded and often praised.

Do academics who uphold Nazi ideology, deny the Holocaust, or espouse anti-Semitic theories enjoy the right to advocate their views in class? Should they? Does the AAUP notion of academic freedom have the competence to consistently address such thorny cases?

British Ambassador to Israel Matthew Gould receiving an honorary doctorate from Ben Gurion University of the Negev in December 2012. He used his speech to criticize academic boycotts and praise Israeli universities for their excellence. Photo by Dani Machlis/Ben-Gurion University of the Negev

Ethical Responsibility

The AAUP report “On Academic Boycotts” asks, “If there is no objective test for determining what constitutes an extraordinary situation, as there surely is not, then what criteria should guide decisions about whether a boycott should be supported?” (emphasis added). While “objective” criteria may indeed be an abstract ideal that one can strive for without ever reaching, some ethical principles have acquired sufficient universal endorsement to be considered relatively objective, at least in our era. Prohibitions against committing acts of genocide and against murdering children are two obvious examples. The growing body of UN conventions and principles must be considered the closest approximation to objective criteria to guide us in adjudicating conflicts of rights and freedoms, particularly in situations of oppression.

UN norms and regulations may not be wholly consistent among themselves, but they are mostly informed by the ultimate ethical principle of the equal worth of all human lives and the indivisibility and interdependence of human rights to which every human being has a claim. Arguably, the violation of these principles was the strongest motivation behind the AAUP’s laudable call for divestment from South Africa during apartheid. This precedent is worth highlighting, as it deals with criteria, implicit though they may be, for deciding what constitutes an “extraordinary situation” necessitating exceptional measures of intervention.

The AAUP’s support for a form of boycott against apartheid-era South Africa can be interpreted or extrapolated to show that when a prevailing and persistent denial of basic human rights is recognized, the ethical responsibility of every free person and every association of free persons, academic institutions included, to resist injustice supersedes other considerations about whether such acts of resistance may directly or indirectly injure academic freedom. This does not necessarily mean that academic freedom is relegated to a lower status among other rights. It simply implies that in contexts of dire oppression, the obligation to help save human lives and to protect the inalienable rights of the oppressed to live as free, equal humans acquires an overriding urgency and an immediate priority. This is precisely the logic that has informed the call for boycott issued by PACBI in 2004.

PACBI’s Institutional Boycott

Unlike the South African academic boycott, the Palestinian call for an academic boycott of Israel is institutional in nature; it specifically targets Israeli academic institutions because of their complicity, to varying degrees, in planning, implementing, justifying, or whitewashing Israel’s occupation, racial discrimination, and denial of refugee rights. This collusion takes various forms, from systematically providing the military-intelligence establishment with indispensable research—on demography, geography, hydrology, and psychology, among other disciplines—that directly benefits the occupation apparatus to tolerating and often rewarding racist speech, theories, and “scientific” research; institutionalizing discrimination against Palestinian Arab citizens; suppressing Israeli academic research on the Nakba, the catastrophe of dispossession and ethnic cleansing of more than 750,000 Palestinians and the destruction of more than four hundred villages during the creation of Israel; and directly committing acts that contravene international law, such as the construction of campuses or dormitories in the occupied Palestinian territory, as Hebrew University has done, for instance.

Accordingly, although the ultimate objective of the boycott is to bring about Israel’s compliance with international law and its respect for Palestinian human and political rights, PACBI’s targeting of the Israeli academy is not merely a means to an end but rather a part of that end. In other words, the boycott against Israel’s academic institutions—one component of the general campaign for boycott, divestment, and sanctions (BDS)14 against Israel—not only aims at indirectly undermining Israel’s system of oppression against the Palestinians but also directly targets the academy itself as one of the pillars of this oppressive order.

Regardless of prevailing conditions of oppression, the AAUP has been consistent in opposing academic boycotts, preferring only economic boycotts and those only in extreme situations. In justifying its preference, the AAUP argues, among other points, that an academic boycott injures blameless academics. But does an economic boycott not hurt many more innocent bystanders, and not just in the academic community? Boycott is never an exact science, if any science is exact. Even when focused on a legitimate target, it invariably causes injury to others who cannot with any fairness be held responsible for the disputed policy. The AAUP-endorsed economic boycott of South Africa during apartheid certainly resulted in harm to innocent civilians, academics included. But as in the South African boycott, rather than focusing on the “error margin,” as important as it is, proponents of the boycott of Israel, while doing their utmost to reduce the possibility of inadvertently hurting innocent individuals, must emphasize the emancipating impact that a comprehensive and sustained boycott can have not only on the lives of the oppressed but also on the lives of the oppressors.

As South African leader Ronnie Kasrils and British writer Victoria Brittain have argued,

“The boycotts and sanctions ultimately helped liberate both blacks and whites in South Africa. Palestinians and Israelis will similarly benefit from this nonviolent campaign that Palestinians are calling for.”

The Israel boycott, in this light, can be a crucial catalyst for processes of transformation that promise to bring us closer to realizing a just and durable peace anchored in the fundamental and universal right to equality.

Omar Barghouti is an independent researcher, a founding member of PACBI and the BDS movement, and the author of Boycott, Divestment, Sanctions: The Global Struggle for Palestinian Rights (Haymarket, 2011).


The Israeli State of Exception and the Case for Academic Boycott

By David Lloyd and Malini Johar Schueller

Since the initial call for an academic and cultural boycott of Israel issued by Palestinian intellectuals in October 2002, the Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI), launched in April 2004, has been perhaps the most significant element in an international and growing movement for boycott, divestment, and sanctions (BDS) against Israel. Endorsed by over 170 Palestinian organizations, including the Federation of Unions of Palestinian Universities’ Professors and Employees, BDS and PACBI are widely popular, nonviolent means to pursue the end of a regime of occupation, siege, dispossession, and discrimination that Israel has imposed with almost complete impunity for decades. A rights based campaign that calls on civil society internationally to seek redress for gross violations of international law and human rights in the face of governments’ refusal to act, PACBI has called for an institutional boycott, that is, a boycott not of individual academics or artists but of educational and cultural institutions whose complicity in the maintenance and furtherance of occupation is indubitable and continuing.

It also calls for the boycott of institutions or cultural organizations that operate explicitly under the auspices of the Israeli state, as ambassadors who seek to normalize the occupation and to promote a benevolent image of Israel as part of its campaign of propaganda (hasbara).

Despite the AAUP’s history of censuring governments and institutions for violations of academic and intellectual freedoms, and despite the principled stand that it took against South African apartheid in supporting the divestment campaign, it has to date refused to endorse PACBI’s call for an academic boycott. The grounds that it has given publicly for this refusal are so confused and inconsistent with past policy and practice that we must again clarify the rationale for the boycott and question the exceptional exoneration that the AAUP grants to Israel alone among states.

A boycott is a nonviolent instrument that both expresses disapproval of the prolonged conduct of a person or institution that injures others and withdraws material support for that person or institution so long as they persist in such conduct. It is generally called for and applied by those to whom other means of action are denied. That said, a boycott is a specific tactic, deployed in relation to a wider campaign against injustice and under quite determinate circumstances. It should not be exercised indiscriminately in ways that would inevitably be ineffective. The optimal conditions for applying a boycott as a tactic include the following:

a. The entity aimed at must be vulnerable to a boycott as a result of its connections with, or dependence on, the nations whose publics boycott it. An economic boycott of the European Union, the United States, or China, for example, would probably be economically ineffectual and thus politically futile, much as we might desire such boycotts in principle.

b. There must be a relatively open public sphere in the nation boycotted in order for its citizens to influence their leaders, and the boycotted nation’s citizens must care about the opinion of those boycotting them. This is the case with Israel, as it was with South Africa, since their populations largely wish to be counted among “civilized” or “democratic” Western nations. In both cases the campaign for a cultural and academic boycott exerts more impact than economic sanctions: it goes directly to citizens’ sense of integration in the global cultural community. This is not to say that either South Africa was or that Israel is ademocracy in any meaningful sense of the word: apartheid systems function precisely by claiming democratic rights for only a part of their population, and systematically denying those rights to the subordinated remainder.

c. The boycott should be explicitly supported by the occupied or oppressed people concerned, who often stand to suffer most from the consequences of its application. This was the case with the divestment campaign against South Africa, called for by the African National Congress (ANC), and is the case with BDS against Israel.

d. The boycott must make demands that are realizable by the nation boycotted, like conforming to international law, ending an occupation or blockade, dismantling a racist or apartheid system, negotiating in good faith, and so on. BDS invokes three summary principles, in conformity with the norms of human rights conventions and international law.

Israel must:

1. End its occupation and colonization of all Arab lands, end the siege of Gaza, and dismantle the segregation wall;

2. Recognize the fundamental rights of the Arab-Palestinian citizens of Israel to full equality;

3. Respect, protect, and promote the rights of Palestinian refugees to return to their homes and properties as stipulated in UN Resolution 194.

e) Finally, a boycott should be based on nonviolent principles, and thus implies a rejection by those engaging in the boycott of the resort to violence. The Palestinian BDS campaign is expressly opposed to all forms of racial, religious, gender, or other discrimination, universally, which accords with its insistence on Israel’s coming into conformity to international law and human rights conventions.

To what extent, then, does Israel meet these criteria? To the usual charge that BDS singles Israel out for exceptional sanctions when many nations—including the United States—are guilty of some egregious injustice or aggression, an initial response is simply that the fact that many states infringe international law does not in any way exonerate Israel from its obligations to end an illegal occupation or to apply universal standards of human rights. Indeed, it is because Israel is constantly distinguished or singled out from other nations, particularly here in the United States, that a boycott, divestment, and sanctions campaign is justified. As is by now well known, Israel is the largest recipient of US foreign aid, receiving currently about $3 billion per year. US aid underwrites Israel’s commission of war crimes and crimes against humanity, including not only the use of weapons like white phosphorous against civilians, but also such offenses as collective punishment, systematic torture, and the extended occupation of Palestinian territory in violation of the Geneva Conventions. Indeed, Israel has violated more UN resolutions than any other state in the world, including twenty-eight Security Council resolutions that are legally binding on member states, largely because it has been consistently protected from any attempt to enforce those resolutions by the veto power the United States holds on the Security Council.

Nonetheless, public officials and academics who have critiqued Israel have faced campaigns of distortion, intimidation, threats of termination, and denial or loss of tenure. While Norman Finkelstein’s may be the best-known academic case, campaigns have also targeted scholars like Nadia Abu El Haj, Sami Al-Arian, David Shorter, and David Klein, in direct attempts to restrict their freedom of speech. Well-orchestrated efforts to define criticism of Israel as anti-Semitism or to intimidate Students for Justice in Palestine have resulted in the extraordinary prosecution of the Irvine 11, students who peacefully protested the visit of the Israeli ambassador, or California Senate Resolution, HR 35, which effectively defines peaceful protests against Israeli policies as hateful, and hence prohibited, and is clearly an attempt to model legislation for other states.

Israel is singled out most clearly by being the only country that cannot be criticized openly in the United States and on university campuses without serious repercussions.

This climate of orchestrated harassment of critics of Zionism, designed to intimidate and silence, bears no comparison with the no less orchestrated complaints by pro-Israel students on campuses that criticism of Israel is tantamount to anti-Semitism. To concede that point would be to undermine the very foundations of the university, which must allow any belief and any political system, political or religious, and however deeply held, to be subjected to reasonable criticism.

The censorship that US academics and citizens face regarding criticism of Israel is negligible, however, compared to the daily regime of occupation and siege that denies Palestinian scholarsthe right to free movement and prevents them from attending classes, taking exams, or studying abroad on fellowships; that subjects universities to frequent and arbitrary closures, constituting collective punishment; or that willfully destroys academic institutions, like the American International School or the Islamic University of Gaza in 2009, which were destroyed along with some twenty other schools and colleges. If there has been anywhere a systematic denial of academic freedom to a whole population, rather than to specific individuals or to institutions, it is surely in Palestine under Israeli occupation.3

Yet it is putatively on the grounds of academic freedom that the AAUP has rejected the academic boycott of Israel. Because the AAUP is a respected body whose opinions are taken seriously by academics worldwide, it is important to trace its position in relation to the boycott and explain why it is untenable. In 2005, responding to the UK Association of University Teachers’ call for a boycott of two Israeli universities, Haifa and Bar-Ilan (another resolution overturned this resolution a few months later), the AAUP condemned the boycott on the basis of academic freedom:

Since its founding in 1915, the AAUP has been committed to preserving and advancing the free exchange of ideas among academics irrespective of governmental policies and however unpalatable those policies may be viewed. We reject proposals that curtail the freedom of teachers and researchers to engage in work with academic colleagues, and we reaffirm the paramount importance of the freest possible international movement of scholars and ideas.

A year later, the AAUP published “On Academic Boycotts” to support its position that boycotts are “prima facie violations of academic freedom.” This condemnation of the academic boycott on the grounds of academic freedom has been thoroughly critiqued by scholars such as Marcy Newman, Lisa Taraki, Omar Barghouti, and Judith Butler, who contend that the AAUP Journal of Academic Freedom academic freedom extolled by the AAUP is a geopolitically based privilege rather than a transhistorical right. Butler has called for a “more robust conception of academic freedom, one that considers the material and institutional foreclosures that make it impossible for certain historical subjects to lay claim to the discourse of rights itself.” Notably, the AAUP allowed critics of its statement to voice their opinions in Academe, thus ironically appearing to many academics, who expressed outrage at these critics, to be condemnatory of Israel.

Nothing could be farther from the truth. The AAUP’s deliberations on the academic and cultural boycott of Israeli universities effectively promoted the idea of Israel as Agamben’s state of exception. Just as the state of Israel governs through an order “that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system,”the AAUP has proceeded to eliminate the rights of Palestinians from its arguments.

The academic boycott statement referred to the 1940 Statement of Principles on Academic Freedom and Tenure: “institutions of higher education are conducted for the common good . . . [which] depends upon the free search for truth and its free exposition.” But if universities are conducted for a universal idea of the common good, the grounds for the academic boycott of Israeli universities seem fairly obvious. The common good of the Islamic University of Gaza cannot be served by bombing it; neither can a university function for the common good if it is established in a settlement area: witness Ariel College, a West Bank campus of Bar-Ilan University, now Ariel University Center of Samaria, fully accredited in July 2012. Established illegally under international law, on occupied Palestinian territory, it is open only to Jewish academics and students, a separate and unequal apartheid institution. The question undoubtedly becomes, for whose common good are universities established? Whose common good matters? How should the common good be defined in a country under occupation? Once we interrogate the particularity of the common good, it becomes clear that this notion operates under the aegis of a liberal humanism that ignores colonialism or racial oppression. While both early Zionists and contemporary leaders have been brazen about the settler colonial nature of Israel’s enterprise, all of the AAUP’s statements are noteworthy for the absence of any mention of Israeli colonialism or its repressive military. Let us reflect on this willful blindness: the words colonialism and occupation simply do not appear in the Association’s statements.

Next, the AAUP distinguished censure, “which brings public attention to an administration that has violated the organization’s principles and standards,” from a boycott. “Throughout its history,” the AAUP claimed, it had “approved numerous resolutions condemning regimes and institutions that limit the freedoms of citizens and faculty,” but only in the case of South Africa had it supported resolutions both of condemnation and of divestment. The AAUP not only censured South Africa but actively supported the divestment movement against apartheid.

Now it refuses even the censure of Israel. Inconsistent as this is, the contradictions have recently been compounded. The December 2008 bombing of the Islamic University of Gaza, an institution serving twenty thousand students and comprising ten faculties including education, religion, art, medicine, engineering, and nursing, drew no comment from the AAUP. Yet the AAUP in 2007 had continued its commitment to condemning institutions that limited the freedoms of students and faculty by censuring four New Orleans universities for closing departments in the aftermath of Hurricane Katrina; and at its annual meeting in 2008, it condemned the government of Iran for discriminating against and denying educational opportunities to its Baha’i community.

In 2010, however, the AAUP, responding to allegations of anti-Semitism at UC Berkeley, UC Santa Cruz, and Rutgers, issued a statement in support of free speech but also suggested that university administrators use a working definition of antiSemitism to monitor individual cases. Part of the working definition includes “denying to Jews the right of self-determination (such as by claiming that Zionism is racism).”

This definition, which confuses criticism of a state with hatred of an ethnoreligious group, itself participates in the larger climate of censorship that we remarked on above. But given that the AAUP accepts the idea that settler colonialism is self-determination and implicitly denies the freedom to criticize Israel to the US-based Palestinian students its policies so drastically affects, should we AAUP Journal of Academic Freedom 8 be surprised that the organization has refused to censure Israeli universities, crucial instruments in the extension and maintenance of Israel’s regime of dispossession and settlement?

Instead the AAUP has satisfied itself by condemning criticisms of individuals’ writings as part of protecting the speaking of truth. At the 2007 annual meeting of the AAUP, Joan E. Bertin, the plenary speaker, portrayed attacks on Norman Finkelstein, Stephen Walt, and John Mearsheimer as simply part of the taboos against speech about Israel and Palestine and presented these, in a tactic of normalization, as “‘mutually destructive reductionism’ that prevents recognition of alternate views.” The report of the speech stressed the need for competing perspectives to foster discussion, thus equating the politics of settler colonialism and Palestinian protest, and assuming that both sides are equally heard in the United States.

In the spirit of this condemnation of individual acts—as if they were aberrant from the US government’s support of the Israeli state and its institutions—the AAUP recognizes only the right of individual faculty not to cooperate with institutions while it opposes any systematic boycott that “threatens the principles of free expression and communication on which we collectively depend.”12 It is crucial to repeat that the academic and cultural boycott is against Israeli institutions, all of which are complicit in occupation and create conditions under which the freedoms imagined by the AAUP cannot exist. The boycott does not extend to individual Israeli speakers invited to speak in the United States or to individual scholars writing a paper together. The point of the boycott is structural and is meant to challenge the state of exception through which Israel has escaped reprimand or penalty and has created conditions under which the rights of Palestinian scholars, academics, and students are routinely suppressed. In this context, it becomes a luxury for North American academics to appeal to a distinctly one-sided and restrictive version of the principles of academic freedom while accepting complicity in the denial of those rights to not just individuals but whole populations.

We would do well to remember the words of Howard Zinn in a lecture in South Africa during apartheid: “To me, academic freedom has always meant the right to insist that freedom be more than academic—that the university, because of its special claim to be a place for the pursuit of truth, be a place where we can challenge not only ideas but the institutions, the practices of society, measuring them against millennia-old ideals of equality and justice.” If academic freedom is, indeed, a universal value, not one restricted to a few who are privileged by geography and colonial histories, then the Palestinian call for an academic and cultural boycott of Israel becomes, as South Africa was in the 1980s, a test case for our intellectual and moral consistency. If we or the AAUP refuse to endorse that call, then the commitment to academic freedom becomes vacuous and meaningless, an assertion of privilege and entitlement, not of fundamental values. Palestinian education, like Palestinian culture and civil society, has been systematically targeted for destruction: it is no longer a matter of the infringement of the free speech of a few individuals but a case in which, in the time-honored manner of settler colonialism, a powerful and well-armed state seeks to extinguish the cultural life and identity of an indigenous people. Not only is the boycott movement the only practical possibility for Palestinian survival, its application is principled and defined in its scope and ends. No clearer case has existed for the extension of an academic boycott since the ANC made its similar call for boycott and divestment in the struggle against South African apartheid. To continue to duck what is increasingly one of the defining moral and political struggles of our time would be not merely inconsistent but intellectually and ethically bankrupt. The oldest US organization representing academics and scholars can do better than that, and it is time for it to do so. We must cease to make an exception of Israel.

David Lloyd is Distinguished Professor of English at the University of California, Riverside. His most recent book is Irish Culture and Colonial Modernity (Cambridge, 2011). Malini Johar Schueller is Professor of English at the University of Florida. Her most recent book is Locating Race: Global Sites of Post-colonial Citizenship (2009).

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The Growth of the Boycott, Divest and Sanction of Israel Movement

BDS campaigner: “Israel no longer the attractive investment that it once was”

Submitted by Nora Barrows-Fr… on Fri, 07/12/2013 – 20:20   

Palestinian families remain stranded at the Egypt-Gaza border.

                (Eyad Al Baba / APA images)              

A report on the eight years of global victories since the launch of the Palestinian-led boycott, divestment and sanctions movement

Rush transcript: Michael Deas, Europe coordinator with National Palestinian BDS Committee

The Electronic Intifada: Let’s have you assess the last eight years of the BDS movement — how it’s grown since that initial call, and what it looks like now.

Michael Deas: What I think is really exciting is that BDS is now recognized as one of, if not the most important and effective tools of solidarity with the Palestinian struggle. When the BDS call was launched in 2005, lots of solidarity groups and solidarity networks endorsed and took the BDS call as one of their main frameworks of action.

But those groups didn’t just endorse the call, they built BDS campaigns and the built effective BDS campaigns, and they went out and they won support for those campaigns — from trade unions and faith groups, and celebrities and so on. And what we have now is we have BDS winning huge amounts of support from those types of organizations like unions and faith groups and NGOs and political parties and so on, and BDS is increasingly being recognized in the mainstream media and elsewhere, as a key force and a key actor.

I think one of the main things that stands out about the growth of the BDS movement is that it really emerged all across the world as a result of grassroots organizing. Whether it’s things like artists, like Elvis Costello, or Roger Waters from Pink Floyd, refusing to play, or companies like Veolia losing millions of dollars worth of contracts because of its complicity with Israeli apartheid, all of these things in the BDS movement have become successful because of the work that’s been done by people giving up their time to organize at the grassroots level.

That’s really in contrast to Israel’s well-funded hasbara machine, and it means that we now have a movement with a lot of in-built strength and a lot of potential for continued growth and effectiveness.

EI: Well, Michael, you mentioned some of the key victories over the last eight years. Can you talk about some of the other ones that really stand out in this list that the BNC compiled of about 200 victories since 2005?

MD: Yeah, as you say, to mark the 8th anniversary of the BDS call, we just published a timeline of the growth of the BDS movement. It’s got more than 200 entries, and you can go check it out on the BDS website or on Electronic Intifada. But what was really amazing during the process of making it was to see the sheer quantity of different milestones that the movement has achieved, but also the breadth — so it’s not just students on campus, but also within trade unions, also within local communities. Israel is losing all the different types of international support on which it depends.

But I think it’s been especially exciting over the last couple of months, and just looking at things that have happened in the last couple of months gives us a good snapshot of where we are at the moment.

So in May, we saw the cancellation of Stephen Hawking, who was due to give a speech at an official conference in Israel. And that was impressive in itself in that our movement reached the stage of maturity where huge figures like Stephen Hawking are willing to come out and support, but it was also really exciting to see the amount of mainstream media coverage that it got. Because that really showed that BDS has now become a respected and accepted tool and actor.

Also in May, later that month, we saw the University of Sheffield in the UK become the first university to cut its contract with Veolia. Veolia, for people who don’t know it, is an outsourcing contractor that helps Israel run infrastructure contracts in its illegal Israeli settlements. And that contract in Sheffield that was lost was one of literally dozens of contracts that Veolia has lost as a result of grassroots campaigning in opposition to its support of apartheid.

And Veolia has now lost more than $20 billion worth of contracts, and Veolia’s been forced to admit the damage that the campaign has done, and make some announcements about intentions to pull out — whether it will or not is another matter, but what we’re beginning to see with Veolia and other companies is that we’re really changing corporate attitudes towards Israeli apartheid.

And the last thing that we’ll have to get up on the timeline was a story I saw in Haaretz today, about how some Israeli government leaders have been tipped off that European banks are now recommending divestment from any firm that’s involved in illegal Israeli settlements. And if you look at the list of shareholders for some of the big Israeli companies, it’s really interesting. If you look at the list of who owns shares in Elbit Systems, Israel’s largest weapons company, you’ll see that there are just one or two European banks left on that list of shareholders.

The campaigns that we’re creating means that Israel is no longer the attractive investment that it once was, and I think we’re at the start of a snowball moment.

I think it’s also worth looking at the role that solidarity and BDS is playing in public opinion. EI ran a story a few months ago about a BBC opinion poll, which showed that the US is the only western country where the majority still have a favorable view of Israel. And in the UK, 72 percent of the people hold a negative view of Israel. And it’s a similar picture across Europe and across the rest of the world.

And I think we can’t underestimate the role that solidarity grassroots campaigning and solidarity boycott campaigning is having and causing these changes in public attitudes.

EI: Michael, as a coordinator with the BNC, how do you and your colleagues see the BDS movement evolving over the next eight years?

MD: I think there are two or three things that we’re already starting to see the beginning of, that I’m really exciting to see the continued development of.

The first of those things would be the hard-hitting campaigns that are really capturing the public imagination, and we’re beginning to see that with campaigns like the We Divest campaign in the US, that are really well-presented, that are having dozens of people involved in the organizing, and thousands of people signed up in supporters and being aware of [it].

And we see that outside supermarkets in Europe, every Saturday, where we are asking people to boycott Israeli goods, and they’re telling us that they already are. And I think the challenge over the coming eight years is how we can crystallize some of that support and take some of the lessons from something like the We Divest campaign, about how campaigns can be really well-presented and really win mass support. So I think that’s one of the directions that we’d really like to see the movement heading over the years.

The other things that there’s a lot of excitement and potential around is increased involvement from big, mass civil society organizations. We’ve already got examples like the American Friends Service Committee or the Methodist Church in the US, these big faith organizations, or these big trade unions, that are moving from saying, okay, we’re happy to support BDS, moving into, we’re happy to to support and get actively engaged in building the boycott of Israel. And I think there’s huge potential in building these types of mass voluntary organizations that once they begin to become actively engaged will really win a mass amount of public exposure — and really start to build the effective boycott.

The third thing I think we’re really starting to see now is governments starting to take action against Israel. Governments in Europe have started to move to introduce special guidelines for how products from illegal Israeli settlements should be labeled. We’re seeing governments in New Zealand and Norway sell their shares in Israeli weapons companies.

And although these are only baby steps, governments have started to lose their fear about taking action against Israel. I think what we’ll see towards the end of this year and the beginning of next year is governments in Europe taking even bolder steps against Israel, and that will be really interesting to see how that goes as well.

So I think one of the ways in which I’ve been thinking and talking about the BDS movement recently is: phase one is complete. We’ve built a huge amount of awareness within the solidarity movement about the importance and effectiveness of BDS, we’ve developed some really, really successful campaigns.

And the challenge for all of us activists now is how can we build even bigger campaigns and get truly mass involvement in the boycott, divestment and sanctions movement.

 

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