Chapter 6: Settlements and Third State Responsibility
All states that are party to the Fourth Geneva Convention, including Israel and its key economic partners, are under an obligation to “ensure respect” for the Convention. The obligation to ensure respect has been widely interpreted as requiring positive action on the part of individual states.
It is generally accepted that the duty to ensure respect includes third states taking the measures required to enforce compliance with international humanitarian law among those under their jurisdiction. Regulating the conduct of those under a state’s jurisdiction to ensure compliance with international standards is now widely recognized as a legitimate means of ensuring respect for international human rights law in the context of business activity (see below). This measure is equally relevant and necessary to ensure respect for the Geneva Conventions in relation to Israeli settlements in the OPT.
The state obligation to ensure respect entails abstaining from acts that would be contrary to this objective, such as directly financing, favouring or facilitating economic activities that are directly connected to serious breaches of humanitarian law.
As explained earlier, Israel’s settlement project entails serious breaches of peremptory norms which give rise to certain additional duties among all states. These duties are: the duty to “cooperate to bring to an end through lawful means” serious breaches; the duty to not “recognize as lawful” the situation created by such breaches; and the duty to not “render aid or assistance in maintaining that situation”.
While the exact scope of the obligation to “bring to an end” serious breaches is debated, this duty implies, at a minimum, refraining from promoting, supporting or allowing economic activities that contribute to the exact opposite, such as those activities which result in maintaining and growing the settlements. The obligation of non-recognition “not only refers to the formal recognition of these situations, but also prohibits acts which would imply such recognition”. The obligation to not render aid or assistance “deals with conduct ‘after the fact’ which assists the responsible State in maintaining a situation” in violation of international law. This includes conduct that contributes to perpetuating the illegal situation.366 Allowing trade in goods and services, for example, would have the effect of both implicitly conferring recognition on illegal settlements and aiding in their economic development and survival.
Although different in substance, the implications of these duties all seem to converge in one clear direction: states must not promote, support or allow business entities domiciled or headquartered within their jurisdiction to conduct business in the settlements or with settlement actors. Such activities fuel the settlement economy, which helps finance the continued existence and expansion of illegal settlements. States must equally prohibit or regulate activities taking place within their jurisdiction which support, promote or fuel the settlement economy. A failure to act to prohibit or regulate these activities, when a state is both practically and legally able to do so, is contrary to its obligations under international law.
The Duty to Protect Human Rights Beyond Borders
In addition to ensuring respect for the rights of protected persons in situations of conflict, third states have a duty to protect their human rights from potential abuses by corporate actors over which they exercise regulatory control.
In 2017, the UN Committee on Economic, Social and Cultural Rights confirmed that:
“The extraterritorial obligation to protect requires States parties to take steps to prevent and redress infringements of Covenant rights that occur outside their territories due to the activities of business entities over which they can exercise control, especially in cases where the remedies available to victims before the domestic courts of the State where the harm occurs are unavailable or ineffective.”
Many other UN treaty bodies, including the Human Rights Committee, have expressed this view. An effective means of discharging the obligation to protect in these contexts is through what the UN Guiding Principles on Business and Human Rights (UN Guiding Principles) term “domestic measures with extraterritorial implications”. These refer to laws and regulations applied to domestic activities or actors which bring about positive human rights outcomes, such as the prevention of human rights abuses, outside the territory of the state.
The UN Guiding Principles specifically address the implications of state duties in relation to businesses operating in conflict-affected areas. They clarify that human rights duties are “in addition to States’ obligations under international humanitarian law in situations of armed conflict, and under international criminal law”. Among other measures, they recommend that states ensure their “policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.”
In essence, states’ extraterritorial obligations require that they take measures to prevent companies operating, domiciled or headquartered within their jurisdiction from causing or contributing to human rights abuses in other countries. In the context of Israeli settlements, these duties entail regulating the activities of such companies to ensure they do not cause or contribute to violations of the human rights of the Palestinian population.
Currently, no third state is fulfilling its international obligations in relation to illegal Israeli settlements. While condemning settlements, the vast majority of states are failing to take concrete action to regulate companies or activities over which they have control, in order to prevent them from fuelling the settlement economy. At least 18 EU member states have issued advisories warning their businesses of the possible legal, financial and reputational consequences of pursuing economic activities in or for the benefit of Israeli settlement entities. Brazil and Japan have issued similar warnings. While a positive step, this is still insufficient. By failing to take regulatory action to prohibit these activities, states are
knowingly allowing business activities which help maintain an illegal situation and are, therefore, still acting in breach of their international obligations.
Some states have recently begun to take additional steps. A significant piece of legislation has been proposed in Ireland to prohibit the import or sale of goods or services from illegal settlements in territories deemed occupied under international law, or the facilitation of these actions. Significantly, this bill is proposed as a measure “to give effect to the State’s obligations arising under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and under customary international humanitarian law”.
An Important Step Towards Accountability: the UN Database
As noted earlier, the UN Human Rights Council passed a resolution in March 2016 requesting that the OHCHR create a database of all business enterprises involved in activities which, according to UN fact-finding mission report, “raise particular human rights violations concerns” (the UN Database). The purpose of the UN Database is, among other things, to assist states in ensuring that companies domiciled in their territory and/or under their jurisdiction that conduct activities in or related to the settlements respect human rights. This constitutes an implicit acknowledgment of the need for governments to take action in relation to companies over which they exercise control. On 26 January
2018, the OHCHR published a progress report describing the steps taken towards the consolidation of the UN Database.
The “provision of services and utilities supporting the maintenance and existence of settlements” is listed by the UN fact-finding mission report as one of 10 types of business activity that “raise particular human rights concerns”. The provision or facilitation of tourism services in settlements or by settlers in the OPT is clearly covered by this category.
The OHCHR has not yet made public which companies or activities it has reviewed in connection with compiling and preparing the UN Database. In this regard, Amnesty International encourages the OHCHR to finalize its initial review, in line with due process, and publish the UN Database as a matter of urgency. To the extent that digital tourism companies and their provision of online services to settlers are not addressed in the first iteration of the UN Database, Amnesty International would encourage the OHCHR to consider including them in subsequent updates.