United Nations Human Rights Council discriminates with proposed blacklist

In March, 2016, the United Nations Human Rights Council voted on a proposal from the Palestinian Authority to create a “blacklist” of companies operating in the West Bank, East Jerusalem and the Golan Heights. It passed with 32 votes in favor and 15 abstentions.

Creating a list that exclusively targets companies operating in Israeli settlements while ignoring companies doing business in other disputed territories is discriminatory. Such discrimination is contrary to the Human Rights Council’s own foundational principles of “universality, impartiality, objectivity and non-selectivity,” as set out in General Assembly Resolution 60/251.

The resolution might also breach laws of various democratic UN member states. In July, 2017, Lawfare Project fellow Prof. Eugene Kontorovich explained that “the old and existing [U.S.] anti-boycott law applies not just to the Arab League boycott, but also to the new foreign anti-Israel boycotts, such as those being organized by the U.N. Human Rights Council.” Other countries also have laws against BDS on the basis that it is discriminatory and antisemitic.

Nevertheless, the UNHRC dedicated $138,700 to create a database of “business enterprises that “directly and indirectly, enabled, facilitated and profited from the construction and growth of the settlements.” and sent letters in Sept-Dec, 2017, to 130 Israeli and 60 international companies warning about their impending addition to a database. On Holocaust Remembrance Day in Feb, 2018, a 16-report was released by the UNHRC but it did not identify the 206 companies mentioned and it is unclear if any New Zealand companies are included.

At the time the 2016 Palestinian Authority proposal was accepted, Israeli Prime Minister Benjamin Netanyahu said the UN Human Rights Council “has turned into an anti-Israel circus, which attacks the only democracy in the Middle East and ignores the blatant violations of Iran, Syria and North Korea.”

The UNHRC is anti-Israel – it has condemned Israel more than any other nation on Earth – and a minority of states on the council are free and democratic. Of the 47 member nations of the UNHRC in 2016, only 19 (40%) are considered by Freedom House to be free countries, like Israel. Furthermore, only 5 of the recent 16 candidates should qualify under the membership criteria established by UNGA Resolution 60/251.

The United Kingdom has strongly criticized the UNHRC for exceeding its authority in creating the blacklist. In October, 2017, UK officials said:

Human rights obligations are directed at states, and not individuals or businesses, who must determine their trading relationships for themselves; as such, we have no plans to set up an equivalent database. Ultimately it is the decision of an individual or company whether to operate in settlements in the Occupied Palestinian Territories. The British Government neither encourages nor offers support to such activity.”United Kingdom Officials

The United States has condemned the substance and motivation of the resolution. In June, 2017, Nikki Haley said

”Blacklisting companies without even looking at their employment practices or their contributions to local empowerment, but rather based entirely on their location in areas of conflict is contrary to the laws of international trade and to any reasonable definition of human rights. It is an attempt to provide an international stamp of approval to the anti-Semitic BDS movement. It must be rejected.”Nikki Haley

Anne Herzberg, a legal advisor at NGO Monitor has condemned the process around the UNHRC “blacklist”, saying

“It lacks oversight, notice of inclusion, and the ability to challenge the arbitrary determinations. Even UN officials recognized the complete illegitimacy of proceeding in its current composition… The origins of the blacklist, too, are highly disturbing. This list, proposed by the Arab League and the Organization of Islamic Cooperation, was originally conceived by BDS activists, and was promoted during a years-long lobbying effort.”Anne Herzberg

The discriminatory nature of the UNHRC move, and the questionable processes are worthy of critique. However, the fundamental basis for the resolution is also unstable. Just like it is incorrect to state that the blockade of Gaza is illegal, it is also incorrect to say that doing business in disputed or occupied territory is illegal. Indeed, some legal experts argue that Israeli settlements are not illegal under international law.

The UNHRC does not have any legal status and United Nations resolutions are not legally binding. However, they are widely reported as such. The UNHRC “blacklist” does not bear any penalty from the council but Prof Kontorovich has said it will cause “reputational harm” to companies, put “a cloud over business in Israel”, and could be used as a basis for future legal action.

The New Zealand government has not made any comment on the blacklist as yet. Nor has the New Zealand government spoken out against any of the other anti-Israel practices at the United Nations – rather, New Zealand voted in favour of more anti-Israel resolutions in 2017 than traditional allies like Australia, Canada, and the United States. Some clear recent examples of anti-Israel bias that New Zealand could have spoken up on are:

If New Zealand claims to be a balanced and fair nation then we surely must speak out against the continuing disproportionate and unfair focus on Israel at the United Nations that seeks to demonise and delegitimise the only democracy in the Middle East.

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