25 Nov Misreading Human Rights Due Diligence: A Response to Tara Van Ho
[Anne Herzberg is the Legal Advisor of NGO Monitor and the UN Representative for the Institute for NGO Research.]
On November 2, 2021, Tara Van Ho, Senior Lecturer at Essex University, posted “The Unexpected Trade and Business Implications of Israel’s Attack on Al Haq” at Opinio Juris. In the piece, Van Ho condemns Israel’s designation of six Palestinian NGOs for their alleged affiliations with the Popular Front for the Liberation of Palestine (PFLP), in particular the designation of Palestinian NGO Al Haq, which she characterizes as the “leading business and human rights NGO in the Middle East” and “one of the UN’s most trusted NGO partners.”
Van Ho’s post, however, added another dimension, largely based on a misreading of human rights due diligence standards under the UN Guiding Principles for Business and Human Rights (UNGPs) and the Arms Trade Treaty, and the role to be played by NGOs in their processes. Advocating for NGOs to play a central role in human rights due diligence, Van Ho claims that they “carry an additional responsibility,” can “help businesses and third-party states negotiate tricky compromises,” can “bring proposals from businesses back to affected stakeholders,” and can offer “creative and legitimate mitigation efforts in complex environments like Israel and Palestine.”
Because of the central role she accords to NGOs, Van Ho goes on to claim that by “attacking and foreclosing civil society space, [Israel’s Defense Minister] Gantz has undermined the ability of businesses and states to continue trading with or within Israel while respecting human rights.” Van Ho similarly claims that the designation of a single NGO means that “additional data points necessary for human rights due diligence are also gone” and that “there is simply no way for businesses or states to get the comprehensive picture needed for human rights due diligence.”
These latter claims are not supportable.
First, Van Ho’s conception of human rights due diligence is inconsistent with the UNGPs and other international standards, including those not mentioned, such as the OECD’s Responsible Business Conduct Guidelines. These instruments highlight that human rights due diligence is a voluntary, layered, and cooperative process tailored for the specific needs of an individual business and industry sector, and intended to engage multiple relevant stakeholders. As noted by the OECD’s “Due Diligence Guidance for Responsible Business Conduct,” due diligence is a “bundle of interrelated processes” aimed at examining whether a business is causing, contributing to, or directly linked, to adverse human rights impacts as well as assessing the likelihood and severity of such impacts.
The process is not meant to hinge solely on claims provided by one organization with a narrow, political agenda, and that may have no direct interest in the case at issue save for reflecting its partiality. (As pertains to Al Haq, it has supported requiring “corporate actors to either terminate their engagement or not engage in the first place” (effectively, to divest or boycott), as well as trade sanctions, which cannot contribute to “tricky compromises” or “creative…mitigation efforts.” The issues raised by Van Ho, however, go far beyond Al Haq alone.) While NGO reporting can inform, it does not comprise the entire process, nor should it. Due diligence involves consultation and the balancing of rights and interests of many potential actors including shareholders, employees, management, customers, sub-contractors, local and national government, the local community, and others. Businesses may also be required by law (and their officers have a fiduciary duty) to prioritize shareholder interests over other demands.
The need for a plural, diverse, approach is all the more necessary when addressing business activities in conflict situations where there are often highly complex and competing political factors at issue. These situations also often involve significant pressure on businesses to take sides and to shift responsibility away from the parties onto private actors.
Under international humanitarian law (IHL), there is no explicit bar to business operations in armed conflict, nor in occupied territory. While the ICRC takes the position that, “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”, it also acknowledges that “determining which activities are closely linked to an armed conflict” and “the line between these various situations is at times difficult to draw precisely.”
Activists may take the position that businesses should simply cease all operations in a conflict zone, even when there is no link between the business and any alleged rights violation, and regardless of the impact. Some practitioners have observed that this “legal compliance approach” may have the “undesirable effect of discouraging responsible companies from investing in conflict affected countries, leaving the door wide open for cowboy operators.”
This approach is advanced in Van Ho’s article, and when practiced by groups like Al Haq, is simplistic and ignores these due diligence principles. It reflects a methodological approach whereby a provision of a human rights or humanitarian law instrument is selectively analyzed as providing the basis for a claim, using one-sided, partial, or even false information. The alleged existence of a violation is then used to implicate the corporation in abuse, regardless of how attenuated the connection might be between it and the alleged violation. The proposed remedy is almost invariably that the specific business activity must be ended and there must be divestment from the jurisdiction.
This approach risks failure to consider other applicable bodies of law, confusing the legal obligations of governments as opposed to private business, and presents aspirational objectives as binding norms. It also ignores competing human rights considerations, and fails to appreciate the challenges faced by businesses needing to balance multiple and competing stakeholder interests, while also complying with multiple and overlapping regulatory environments.
Regarding Israel and the Palestinian Territories, the case of the Kidron Valley wastewater treatment plant provides an example. On September 6, 2013, Dutch engineering firm Royal Haskoning DHV issued a statement on its website that it was terminating its involvement in a project to build a wastewater treatment plant in the Kidron Valley, a riverbed running to the Dead Sea through Jerusalem and the West Bank, and one of the most polluted in the region. According to its statement, the firm suggested that “future involvement in the project could be in violation of international law” based on the fact that it would be located east of the 1949 Armistice Line. The announcement was a shock to many who had worked on the project for years, including environmental activists, academics, and local authorities. It ignored applicable international law, including Israel’s responsibilities over the area to provide water and sanitation under IHL, its responsibilities for the same under human rights law, and its rights and obligations delineated in the Oslo Accords. Instead, Royal Haskoning’s decision was the result of extensive campaigning by boycott activists, including Al Haq, which lobbied for and praised the move, erroneously claiming the plant would “primarily benefit the settlement enterprise,” even though the plant was aimed at serving Palestinian communities, and disregarding the broader human rights and peace implications. Al Haq’s approach advanced narrow, zero-sum interests rather than using the cross-border issue of provision of vital water resources to Palestinian and Israeli communities to remediate environmental damage and foster an atmosphere of Palestinian-Israeli cooperation.
Airbnb provides another case study. In November 2018, the company announced it would de-list properties located in Israeli settlements in the West Bank. It issued a policy statement recognizing that its actions were not legally required and that “[t]here are conflicting views regarding whether companies should be doing business in the occupied territories that are the subject of historical disputes between Israelis and Palestinians.” The policy did not apply to East Jerusalem or the Golan Heights. The Airbnb decision immediately drew a backlash. Although Airbnb claimed it was not acting in a discriminatory fashion or endorsing the anti-Israel boycott movement, its explanation did not match public perception. BDS activists, who had campaigned for the policy, hailed the decision as a significant victory. Al Haq welcomed the change and advocated its expansion to East Jerusalem and boycotts (by Airbnb and other tourist companies) of Jewish historical sites such as the City of David.
Jewish and Israeli groups, and Israeli public officials, argued that the act was motivated by discrimination. They sought to demonstrate the discriminatory effect, if not intent, of Airbnb’s decision by showing that in enacting the new policy, the company had failed to consult with necessary stakeholders, failed to examine each listing on a case-by-case basis, and had relied on a one-sided analysis of the Israeli-Palestinian dispute.
As a result of its actions, Airbnb faced several discrimination lawsuits in both Israel and the US, as well as government sanctions in several US states. In April 2019, it settled multiple discrimination lawsuits and reversed its policy, deciding to maintain the listings on its site.
Van Ho concludes her article with the unsupported and sweeping claim that because Al Haq may no longer be able to issue reports (a fact not yet proven), “the legal consequence of that under the UNGPs is that most businesses will need to leave Israel.” Taking her case at its highest, Van Ho offers no explanation as to how this process will work in practice. Why would Israel’s alleged infraction against Al Haq necessitate the cessation of all business in the country? Why should government interference with certain NGO activity be privileged as requiring wholesale divestment from a country as opposed to any other rights abuse? By applying this invented (and exceedingly low) standard (the existence of one alleged instance of government mistreatment of an NGO), business could not take place in virtually any country. Indeed, the OECD Guidance explicitly notes that only in “some limited cases” and as a “last resort” should companies decide to discontinue business operations or relationships. This is all the more so when there is no direct link alleged between any business activity and the designations, nor any tangible evidence that the designations mean that human rights due diligence can no longer be conducted.
In fact, one could argue that Van Ho’s approach to due diligence obligations might expose a company to liability if it relied on claims by an NGO alleged to have provided material assistance to a terror group as the basis for making a significant business decision. Human rights due diligence requires businesses to take allegations of terror affiliations seriously and to investigate. When confronted with such claims, companies should take into account possible political persecution, but they are also required to consult with government, law enforcement, and other actors to ensure that any potential risk of violation of terror financing regulations, money laundering, or other criminal laws, is mitigated.
Van Ho’s recommendations, by contrast and perhaps ironically, would render the human rights due diligence process less pluralistic and less comprehensive.