10 Jul A New Kind of Israel Boycott: Sue Corporations Doing Business in Israel
I used to think that ICJ advisory opinions, like the July 9, 2004 ICJ opinion finding Israel’s separation wall a violation of international law, didn’t have much legal significance. But maybe I’m wrong. The ICJ opinion does open up a new avenue to pressure the Israeli Government – sue or boycott corporations for complicity in Israel’s alleged human rights violations in Palestine.
This article in the Guardian lays out just such a case against Caterpillar, the U.S. bulldozer manufacturer, and relies heavily on the ICJ advisory opinion.
Caterpillar supplies militarised bulldozers to the Israeli army through the US government’s foreign military sales programme, and the bulldozers are then used as a “key weapon”, according to one Israeli commander, in urban warfare against the Palestinians. The UN’s special rapporteur on the right to food, Jean Ziegler, has accused Caterpillar of complicity in the violation of Palestinian rights, given that the company was well aware of the end use for which its equipment was destined, and indeed this does seem a clear-cut case of corporate involvement in crimes against the Palestinian people.
I have to say this allegation of Caterpillar’s complicity or “aiding and abetting” in the violation of the “right to food” seems far from clear cut to me, from a legal standpoint anyway. Nor does labelling food from East Jerusalem “Made in Israel” seem to rise to the level of serious human rights abuses.
But I guess I’ll never be a member of the International Commission of Jurists, which has convened an panel of legal experts to develop “the legal and public policy meaning of corporate complicity in the worst violations of international human rights and humanitarian law.” As the dispute over Israel’s “crimes” demonstrates, though, developing such a meaning seems pretty much impossible, even for a distinguished group of law professors (or perhaps especially for that group).
I understand that NGOs like the groups pressuring Israel (see one such group here) and the International Commission of Jurists are important, but such one-sided NGO activism also demonstrates some of the pathologies of decentralized lawmaking and makes me look fondly on boring inter-governmental conferences.
Julian,
A right to an adequate standard of living, including a right to food (or a “right to food” as you call it) is protected by international law, namely Article 11 of the ICESCR, which has been ratified by Israel, and is applicable to the occupied territories.
As for the duty of corporations not to engage in human rights violations, this is problematic according to current law because human rights obligations are generally addressed to states, and don’t have a direct third party effect among private persons. That is why the issue of corporate responsibility is being assessed from numerous scholarly perspectives, and that is certainly not an example of “NGO activism.” Take a look, for example, at Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE LJ 443 (2001).
I don’t see how the article could be said to rely heavily on the ICJ’s advisory opinion. The opinion is mentioned only once, in the following terms:
‘The International Court of Justice ruled two years ago this weekend that Israel’s separation wall (built largely on Palestinian, not Israeli land) and the associated regime of closures are also contrary to international law.
While the legal case is clear, however, the case against companies profiting from the occupation has been much less well articulated.’
There is no suggestion that the ICJ had anything to say on the liability of any private actors in Israel.
When I began reading your post, I thought there was going to be an argument that the duty to act against violations of the Geneva Conventions, as found by the Court (which, incidentally, Congress would be well-advised to bear in mind when thinking about overruling Hamdan), applied also in some shape or form to actions by private persons or entities. Of course, there is none, and quite rightly so.
On a side note, it is clearly not true that ICJ advisory opinions don’t have much legal significance. Certainly, they don’t bind anyone in the sense that ICJ judgments do (Article 94 (1) of the UN Charter), but then I think you will find that the importance of ICJ judgments depends not so much on what the Court does for the parties to a case, and with binding force, but on the value of the Court’s clarifications on the state of the law. There is no question that advisory opinions do have this kind of effect, even if it is the only kind of effect they can have.
Ethics appears to lack the proper language with which to deal with the collective harms caused and/or abetted by corporations, and thus it is not surprising (assuming with Kutz that ‘social, moral, and legal forms of accountability overlap’) that both international and domestic law are similarly found wanting when it comes to addressing questions of corporate responsibility and accountability (hence Marko’s comment above and the inability of criminal law to adequately treat complicity as such as an object of accountability). As Christopher Kutz writes, ‘the relational and causal solipsism of the individualistic conception [of moral agency] tends to preclude moral accountability based upon complicity.’ Please see Kutz’s Complicity: Ethics and Law for a Collective Age (2000) for an example of the kind conceptual and ethical clarification we need in order to hold corporations legally accountable for the moral harms they cause. Kutz’s book, with the Ratner article cited above (available online), does indeed suggest that the endeavor to hold corporations like Caterpillar accountable is not some pet project propelled by ‘one-sided NGO activism.’ For further reasons to delineate the ethical and legal contours of corporate accountability, see Joel Bakan’s The Corporation: The Pathological Pursuit of Profit and Power (2004).
With regard to Israel itself: ‘According to the United Nations, the destruction of Palestinian homes by Israel increased dramatically from year to year since 2000. For example, in the Gaza Strip Israel destroyed an average of 11 homes per month during the last three months of 2000, an average which increased to 35 homes per month in 2001, 25 per month in 2002, and 65 per month in 2003. During the first four months of 2004–prior to the Israeli army incursion into Rafah in May–an average of 69 homes were demolished each month. And in the first fifteen days of May 2004, 191 homes were destroyed, displacing 2,200 people, half of them from Rafah. By May 30, 2004, approximately 21, 142 people had lost their homes in the Gaza Strip. The Israeli army is also considering the demolition of 2,000 additional homes in Rafah in order to widen the Philadelphia Corridor, the no-man’s-land between Gaza and Egypt’ (courtesy of Sara Roy, ‘Economic Siege and Political Isolation: The Gaza Strip in the Second Intifada,’ in Joel Beinin and Rebecca L. Stein, eds., The Struggle for Sovereignty: Palestine and Israel, 1993-2005 [Stanford, CA: Stanford University Press, 2006]).
We should be quite grateful for the ICJ’s advisory opinion on Israel’s fence-and-wall complex in the West Bank. The security rationale invoked for ‘the wall’ is belied by facts on the ground: ‘the structure’s meandering path betrays underlying territorial objectives. In places, the barrier dips several miles into the West Bank, leaving settlements, fertile Palestinian land, and valuable water resources on the Israeli side’ (see the chapter by Cook and Hanieh in the Beinin and Stein volume above).
While a bit off topic, I was disturbed by the phrase ‘Israel’s alleged human rights violations in Palestine’ and the use of scare quotes in reference to Israel’s crimes. The following should help by way of providing ample evidence that there’s substance to the charges (I’m not used to Blue Book format, so pardon the cite style):
Bowen, Stephen, ed., Human Rights, Self-Determination, and Political Change in the Occupied Palestinian Territories (The Hague: Kluwer Law International, 1997).
Boyle, Francis A. Palestine, Palestinians, and International Law. Atlanta, GA: Clarity Press, 2003.
Falk, Richard. ‘International Law and Palestinian Resistance,’ in the Beinin and Stein volume cited above.
Falk, Richard and Burns W. Weston, ‘The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada,’ Harvard International Law Journal 32, No. 1 (1991): 129-150.
Falk and Weston, ‘The Israeli Occupied Territories, International Law, and the Boundaries of Scholarly Discourse: A Reply to Michael Curtis,’ Harvard International Law Journal 33, No. 1 (1992): 191-204.
Hajjar, Lisa. Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. (Berkeley, CA: University of California Press, 2005).
See too Amnesty International’s page on Israel/Occupied Territories.
As a prelude or companion to Bakan’s book, or for those who simply can’t get past the subtitle, I trust it is not impertinent for me to suggest Scott R. Bowman, The Modern Corporation and American Political Thought: Law, Power, and Ideology. University Park, PA: Pennsylvania State University Press, 1996.