Corporate human rights violations in the occupied Palestinian territories: is there any recourse?

Author:Cefo, Ena
Position:NOTES
 
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  1. Introduction II. The Illegality of the Israeli Settlements in the Occupied Palestinian Territories under International Law III. The Involvement of Israeli and Multinational Corporations in the Illegal Israeli Settlements: A Case Study of G4S, Caterpillar and Soda Stream A. Control of the Population 1. Case Study: G4S B. Settlement Industry 1. Case Study: Caterpillar Inc C. Exploitation 1. Case Study: Soda Stream International IV. The Challenges of Holding Corporations Directly Accountable Under the International Legal System V. Failed Attempts to Hold Israeli Corporations Accountable in U.S. Courts Under Both Domestic and International Law A. ATS Claims B. TVPA Claims C. RICO Claims VI. Using BDS & Public Disclosure Requirements to Indirectly Pressure Corporate Changes in the OPT VII. Promising Soft Law Codes of Conduct for Binding Israeli and Multi-national Corporations to Human Rights Law A. The Original U.N. Draft Norms and the Finalized U.N. Framework 1. Application of the U.N. Framework in the OPT B. U.N. Global Compact--A Voluntary Code of Conduct 1. Application of the U.N. Compact in the OPT C. OECD Guidelines 1. Application of the OECD Guidelines in the OPT D. International Labor Organization (ILO) and its Declaration of Principles VIII. Future Development of Corporate Human Rights Obligations IX. Conclusion I. INTRODUCTION

    In the aftermath of the 1967 Arab-Israeli War, the Israeli government began setting up border settlements, nahalim, along the Palestinian territories, with the idea that these settlements would act as a first line of defense against any potential attacks by the Palestinians. (1) For the next half-century Israel continuously expanded its settlements, reaching within and fragmenting the Palestinian territories, and in 2012, approximately half a million Jewish Israeli settlers lived in the Occupied Palestinian Territories (OPT): 341,400 in the West Bank, 18,900 in Golan Heights, and 196,400 in East Jerusalem. (2) In 2013, Israel announced renewed plans for 20,000 additional settler homes in the OPT. (3) Such announcements have consistently received criticism, with the United Nations, (4) international NGOs, (5) and even the United States--Israel's biggest ally--regarding the settlements as a flagrant violation of international law. (6) In order to maintain and expand these settlements, Israel violates both international law and the human rights of Palestinians. Israel illegally expropriates land from Palestinians (7) and evicts Palestinian families from their homes to clear land for the illegal settlements. (8) Israel discriminates against the Palestinians living in the OPT by denying their building permits, blocking their road access, restricting their movement through checkpoints and roadblocks, (9) and controlling their access to basic essentials such as water, electricity, sewage and other utilities (10)--measures some Israeli politicians and legal academics support. (11) While the Israeli settlers enjoy significant government subsidies for housing, education, and expansive infrastructure in the OPT, (12) the Palestinians are banned from taking advantage of these amenities. (13) The dire situation of Palestinians living in the OPT and Israel's blatant disregard for international law requires an approach that bypasses the uncooperative Israeli government and instead pressures corporations to cease their involvement in the construction and maintenance of the illegal settlements.

    This Note begins in Part II by briefly outlining the illegality of Israeli settlements in the OPT under applicable international human rights and humanitarian law. Part III will outline the extensive involvement of Israeli and multi-national corporations in the development, expansion, and sustainability of the illegal settlements, specifically focusing on Caterpillar, Inc. and Soda Stream International. In Part IV, the Note will briefly explain the difficulty of bringing of claims against corporate actors on the international level, due to the international system's state-based structure. Part V will examine the obstacles of holding corporations directly liable under domestic law, namely through the Alien Tort Statute and the Torture Victim Protection Act. Part VI briefly addresses the possibility of indirectly targeting specific corporate human rights violations through public disclosure and reporting requirements through the Security Exchange Commission. Part VII of this Note will look at the promulgation of international corporate standards, most notably the U.N. "Respect, Protect, Remedy" Framework and the U.N. Global Compact, and their potential in pressuring corporate disengagement from Israeli settlements in the OPT. Part VIII discusses the possibility of expanding on the existing soft-codes for corporate responsibility and cementing direct corporate human rights obligations.

  2. THE ILLEGALITY OF THE ISRAELI SETTLEMENTS IN THE OCCUPIED PALESTINIAN TERRITORIES UNDER INTERNATIONAL LAW

    As detailed below, the United Nations General Assembly, the United Nations Security Council (U.N.S.C.), and the International Court of Justice have all unequivocally condemned the Israeli settlements as illegal. The United Nations has been clear that "the building of settlements on occupied territory is illegal under international law." (14) On December 11th, 2013, the U.N. General Assembly adopted Resolution 68/82 specifically on the subject of Israeli settlements, (15) adding to prior resolutions on the issue and once more denouncing the settlements in the OPT. (16) "The Israeli settlements in the Occupied Palestinian Territory ... are illegal and an obstacle to peace and economic and social development," the U.N. resolution held. (17) The resolution further expressed the U.N.'s grave concern that Israeli settlements exploit the resources of the Palestinians and result in their forced displacement and in the confiscation of their lands. (18) The U.N.S.C. has issued Resolutions 446, 452, and 465 relating to the issue of Israeli settlements, and is also of the position that settlements in the OPT are a "flagrant violation" of the Convention. (19) Likewise, the International Court of Justice's Advisory Opinion regarding the Legal Consequence of the Construction of a Wall in the Occupied Palestinian Territory reiterated the illegality of the settlements in the OPT. (20)

    The illegality of the settlements first rests on the concept that the Geneva Conventions, especially Geneva Convention IV (the Convention on the Protection of Civilian Persons in Time of War), apply to the OPT. (21) In contrast, Israel urges a reading of the Convention to apply only in "the territory of a High Contracting Party," claiming that the OPT does not meet this requirement because "Jordan was not sovereign in the West Bank and Egypt was not sovereign in Gaza." (22) Israel also contends that the OPT were not under the control of a sovereign before Israel's 1967 occupation and thus cannot be considered "occupied," (23) but instead are merely "administered" territories. (24) The International Committee of the Red Cross (ICRC) (25) and individual international law experts reject this argument, however, pointing to the fact that the Convention explicitly states that it applies "in all circumstance," (26) and urging that "occupation" cannot be contingent on a sovereign's control. (27) In the alternative, even if Israel's argument that the Conventions do not apply to the OPT is set aside, the 1907 Hague Regulations, which even Israel considers to be customary international law, (28) prohibit the confiscation of private property and the "use of land in the occupied territory as a site for settlement construction," and require the occupying power to administer the land to benefit the local population. (29) Through the construction of settlements in the OPT, even under its own interpretation of international law, Israel has violated the 1907 Hague Regulations.

    However, because it is generally accepted in the international legal community that the Geneva Conventions do in fact apply to Israel and the OPT, (30) Israel has also violated these Conventions by building settlements. Article 49(1) of Geneva IV specifically prohibits the "individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying power." (31) Article 49(6) of Geneva IV states "the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." (32) Israel has violated both provisions through the deportation of Palestinians from Israeli territory, (33) the removal of Palestinians from their lands within the OPT, and the resettlement of Israelis into the OPT. Israel rejects any violation by arguing that the Jewish settlers voluntarily decide to move to the settlements, (34) and that article 49(6) only "refers to State actions by which the government in control transfers parts of its population to the territory concerned." (35) This argument by Israel is null considering the significant Israeli government incentives, tax breaks, and funding (36)--approximately $650 million per year (37)--that were the primary motivators for seventy-seven percent of settlers to move into the OPT and remain in the OPT., (38) The ICRC has made it clear that asserting voluntariness on the part of the transferees misses the humanitarian aspect of Geneva IV, whose purpose is to protect the indigenous population. (39) Likewise, the U.N. Security Council Commission appointed to consider the human rights consequences of Israeli population transfers found that they are achieved without the free consent of the transferees or those residing in the territories where the transfer would occur. (40) Thus, the incentives are a "direct transfer" as conceived by Article 49(6) of Geneva IV. (41)

    Considering the international consensus that Geneva IV and the Hague Convention do in fact apply to...

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