mai abdul rahman April 11, 2015
On March 22nd, Saeb Erakat the chief Palestinian negotiator joined a large group of American Palestinian to commemorate the traditional forty days “Arba’een” communal mourning that marked the passing of three young Arab Americans who were senselessly killed in Chapel Hill, North Carolina. At the end of the memorial service, Saeb Erakat addressed the group. The informal discussion inevitably focused on the Palestinian decision to join the International Criminal Court, and the legal liability of international and US companies operating in Israel’s illegal settlements, and profiting from Israel’s occupation policies.
Erakat explained the pretext for joining the ICC. He said that for several decades the international community has failed to act, and most were unwilling to exert the necessary diplomatic pressure to stop or curb Israel’s counter productive policies and human rights abuses. Meanwhile, Palestinian have witnessed and suffered the unabated growth of Israel’s illegal settlements across the West Bank and, in particular, in and around East Jerusalem. He said the ICC is the world’s first permanent war crimes tribunal, and is the court of “last resort for Palestinians.” According to Erakat the ICC membership would offer Palestinians protections that were not available to them in the past.
He also cited the decades long and repeated condemnations of Israel’s ongoing violations of international law in the West Bank, East Jerusalem, and Gaza that were dismissed and ignored by the Israeli government. In short, the ICC would help shield Palestinians from future harm, and offers the prospect of holding Israel accountable for its international law violations and military actions.
Erakat said that for the time being Palestine is asking the ICC to investigate two specific cases. He also discussed the rationale for choosing this specific strategy. According the Erakat, the first case, which was lodged ad hoc, and formally commenced as of January 2015, involves an ICC investigation of Israel’s recent war on Gaza, during the summer of 2014. In a span of 7 weeks, Israel’s military killed 2,100 Palestinians among them 504 children under the age of 16, orphaned countless of young Palestinian children, and rendered many more in an extended state of homelessness.
Erakat also explained the reasons behind the Palestinian decision to limit the timeline of the ICC Gaza inquiry, which focuses on 50 specific days during the summer of 2014. He said the decision was based on reviews of the customary legal practices and process that the ICC follows, which are “laborious and time consuming”. To avoid an open-ended time frame that could take the ICC several years to complete, the Palestinian legal team decided to limit the investigation to a narrow and specific period.
In regard to the second case, Erakat said the Palestinians are asking the ICC to investigate Israel’s settlement constructions, which are illegal under international law. Moreover, the illegality of Israel’s settlements has well-established legal precedence. It is substantiated by the Geneva Convention, documented in countless of UN resolutions and reports, and codified in international human rights law. In addition, the vast majority of the world nations including the European Union, China, Russia, and the US consider the continued growth of Israel’s settlements an intentional Israeli policy to “annex” Palestinian lands, and 135 countries (82% of the world nations) recognize the Palestinian state.
More significantly, Erakat said that ICC jurisdiction covers individuals that commit their alleged crimes on the territory of an ICC state party member- in this case Palestinian territory. Also, ICC’s legal authority is applicable to cases referred to it by member states that signed the Rome Statute. So, while Israel has unsigned the Rome Statute, and withdrew its ICC membership, its citizens, and some of its officials could be indicted and tried for crimes committed on Palestinian lands. Accordingly, Israeli citizens are accountable for their actions within the West Bank, East Jerusalem, and Gaza.
Erakat was asked several questions regarding the scope of the ICC inquiry. More specifically, whether or not the ICC can address the complicity of international businesses and institutions in facilitating and supporting Israel’s illegal settlement enterprises. To put this in context, for decades Palestinians have witnessed countless of international corporations, and high earning pension funds profit from their painful displacement from their historical lands and homes- without the legal means to stop it. Understandably, Palestinians are anxious to know whether or not these international companies and organizations are accountable under international law for operating and supporting Israel’s illegal settlements, and for profiting from Israel’s occupation policies and wars.
Erakat’s answer was revealing. He said that his office has been initiating informational sessions with friendly countries that have publicly declared their support for an independent Palestinian state to warn them that their private and public institutions that “facilitate and support Israeli violations of international law and illegal Israeli settlements” could be open to ICC litigation. This was well noted by the European Union. In 2012, the EU urged its member states to “prevent, discourage and raise awareness about problematic implications of financial transactions, including foreign direct investments, from within the EU in support of settlement activities, infrastructure, and services.”
So how does the Palestinian ICC membership impact US companies and organizations operating in Israel’s illegal settlements? His answer was unambiguous. US companies, organizations, and institutions that are importing and selling goods produced by companies operating in illegal Israeli settlements are violating international law. Also companies that are investing in Israel’s illegal settlements are “legally responsible for breaching international law.”
So, while some US institutions and their executives are falsely assuming that since the US is not a member of the ICC, or because the US government has not officially endorsed an independent Palestinian state they are absolved from legal liability for human rights violations- think again. Now that the Palestinians have joined the ICC and signed the Rome Stature, American institutions that are funding or profiting from the Israeli occupation of Palestine are obligated to abide by international and human rights laws. In fact, US institutions, corporations, and their executives could be implicated for a number of international law violations and are criminally liable for their complicit role in supporting Israel’s occupation policies and illegal settlements.
Under the Rome Statute “direct participation in the crime is not necessary to establish the criminal liability of corporate officers and managers”, rather “intermediary culpability” is sufficient to hold an institution for actions committed by others on its behalf. Both the ICC and international law hold corporations liable for “aiding and abetting” human-rights violations. Additionally, the ICC can impose individual criminal liability on a person who “aid[s] or abet[s] in the planning, preparation or execution” of crimes against humanity, or war crimes.” Likewise, criminal universal jurisdiction is applied to individuals, non- government agencies, and business enterprises. Furthermore, the development of international law since 1949, and the principles of Universal Jurisdiction “allows and requires” an ICC state member to “bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator.”
Meanwhile, the Universal Declaration of Human Rights (UDHR), established in 1948, obligates every social, faith, civil and business entity to respect and “observe human rights”. Based on the UDHR provisions, the Organization for Economic Co-operation and Development (OECD) in 1976, established a set of Guidelines on responsible business conduct. These guidelines were specifically tailored for Multinational Corporations, and include a list of protected human rights that corporations are legally required to respect and honor when operating in a conflict zone.
Corporate and individual complicity is generally established when a business enterprise, business partner, and non-state entities benefit from human right abuses committed by others directly or indirectly. Within the Palestinian territories actions that are considered human rights violations include extraction of Palestinian natural resources, destruction of Palestinian agricultural lands, and polluting their native environment and landscape. Also, institutions conducting business in Israel’s illegal settlements are also liable for their business driven actions that result in reducing Palestinian access to food and water, and for fostering tension and hostility among the Palestinians and the Israeli illegal settlers that lead to increased violence in the area they are operating from within. Again, in a nutshell, corporations and organizations that are profiting from Israel’s illegal settlements are liable for human rights violations and fall within ICC’s jurisdiction.
Moreover, Israel’s human rights violations are broad and comprehensive in scope. They include economic, social and cultural rights abuses. Also, Israel’s systematic employment of discriminatory policies that exclusively target one particular population for their ethnicity (Palestinians) and faith (Christians and Muslims), are considered to be “gross human rights violations”. Therefore, international organizations profiting from Israel’s occupation policies are legally accountable for obstructing the human rights of the native inhabitants- the Palestinians.
For decades, international and US organizations and corporations have profited from the systematic abuse and suffering of Palestinians. It is time to end these egregious business practices, if not for the obvious ethical and moral reasons, than for the legal implications of a costly litigation that could tarnish the reputation and standing of these institutions and organizations. More specifically, American companies should re-consider their investments in Israel’s illegal settlements, and re-assess their legal responsibility and role in Israel’s occupation scheme.
Meanwhile, Saeb Erakat, suggests that as of April 1st, US institution that are operating within Israel’s illegal settlements, or are directly and indirectly profiting from Israel’s occupation of Palestine are endangering their organizations and exposing their executives for possible ICC prosecution. However, without clear guidelines American institutions and their executives would remain unsure of the extent of their individual and collective liability under international law for operating, profiting, and supporting Israel’s illegal settlements and its occupation policies. The UN Guiding Principles on Business and Human Rights urge states to provide information to help businesses avoid contributing to human rights abuses arising from conflict and to provide “adequate assistance to business enterprises to assess and address the heightened risks of abuses” in conflict areas.
So, how much longer should US companies and institutions wait before their government issues clear guidelines to alert them of the risks involved in investing in Israel’s illegal settlements? The US issuance of these case specific guidelines should not be viewed from the political prism that we have become accustomed to in the US- meaning whether or not they will ire Israel and its US supporters. Rather these guidelines should be developed for one simple reason- to protect American citizens and institutions.