Corporate Responsibility to Uphold the Rules of International Humanitarian Law
The UN Guiding Principles make clear that companies have a responsibility to respect standards of international humanitarian law. The OHCHR has explained that international humanitarian law imposes obligations on business managers and staff not to breach the rules of international humanitarian law.
Companies operating in or with settlements must take account of the standards laid down in international humanitarian law in relation to the protection of people in occupied territory. This includes the prohibition of establishing settlements, as well as special provisions designed to protect the local population from abuse and their resources from being stolen or pillaged.
The establishment of civilian settlements, the extensive appropriation and destruction of property not justified by military necessity and carried out unlawfully and wantonly, and the transfer or deportation of the population of the occupied territory, all amount to war crimes. Acts that could amount to aiding and abetting war crimes include participating in, assisting or encouraging the settling of civilians in occupied territory or the appropriation and destruction of land and property, or enabling or exacerbating these violations.
Given that certain acts carried out by Israel in relation to its illegal settlement policy amount to war crimes, companies may also be complicit in war crimes. In many national jurisdictions, complicity in war crimes is a serious offence for which individuals, including business directors and managers, can be held criminally liable. Businesses carrying out activities that contribute to the maintenance, development and expansion of settlements may expose themselves, or their individual directors and managers, to the risk of prosecution for complicity in war crimes.
Corporate Responsibility to Respect Human Rights
Under the UN Guiding Principles, companies have a responsibility to respect all internationally recognized human rights wherever they operate in the world.
The responsibility to respect human rights requires companies to “avoid causing or contributing to adverse human rights impacts through their own activities and address such impacts when they occur.” If a company identifies that it may cause or contribute to human rights abuses, and that it cannot prevent these abuses, the only possible course of action is not to undertake the relevant activity. Under the UN Guiding Principles, companies should also “enable the remediation of any adverse human rights impacts they cause or to which they contribute”.
Profiting from Tourism in Illegal Settlements
Airbnb, Booking.com, Expedia and TripAdvisor all engage in business activities with settlement actors. Airbnb has not yet implemented its pledge to stop listing properties in settlements in the West Bank. But even after doing so, the company said it will continue to list properties in East Jerusalem, which is an area within the occupied West Bank.
These four companies both extend their online services to settlers and facilitate the provision of tourism services by settlers. They list and promote rental properties and hotel rooms owned or run by Israeli settlers in settlements. TripAdvisor also lists and promotes activities and tourist attractions run by settler organizations or individual settlers in, or close to, illegal settlements and for their exclusive benefit. These companies therefore provide an outlet for Israeli settlers to advertise their properties or businesses and activities, reach out to potential customers all over the world, secure contracts and maintain a regular source of income. These digital tourism companies charge hosts or customers a fee when a booking is made, therefore deriving a direct profit from these activities.
The companies also benefit extensively from the exploitation of illegally appropriated Palestinian land and other natural resources. To boost bookings, many listings in settlements boast their proximity to areas of natural beauty in the occupied territories, such as the Dead Sea, nature reserves and the desert. Other listings include activities or destinations where the use or exploitation of Palestinian natural resources constitutes the main attraction. These include walking trails, desert campsites, desert safaris and vineyards. By listing and promoting these natural features and nature-based activities and attractions the digital companies are increasing the attractiveness of the listings, securing greater numbers of tourists and benefiting financially from the illegal exploitation of Palestinian natural resources.
DIGITAL TOURISM COMPANIES ARE KNOWINGLY CONTRIBUTING TO VIOLATIONS OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW
For any company currently operating or planning to operate in settlements or with settlement actors, even the most basic of inquiries would reveal the fact that settlements are illegal under international law. The illegality of the settlements has been recognized by UN bodies and states for decades and is widely known. There have been high-profile campaigns against digital tourism companies doing business with settlements for many years, prior to Airbnb’s well publicized announcement of 19 November 2018. The companies actively reach out and engage with customers from the area, whichprovides them with direct sources of expertise. Booking.com has an office in Israel. Both Booking.com and Expedia have Hebrew-speaking staff who communicate regularly with property owners from the area, which means they know the country well. TripAdvisor’s account managers proactively seek clients. Airbnb employs senior headquarters staff to oversee operations in the region. Given all this, it is clear that the digital tourism companies know that Israeli settlements are illegal under international law and that settlement properties, activities and attractions have been built or developed on illegally
appropriated Palestinian land.
Digital tourism companies also know that Israeli settlements have a negative impact on a vast number of human rights of the Palestinian population. This has been extensively documented by local and international organizations and is also widely known. Any basic preliminary risk assessment would show not only that these human rights violations are widespread, systemic and severe, but also that they are inextricably linked to the presence and/or expansion of settlements. It would also reveal that any business activity in or with settlements would unavoidably contribute to sustaining an inherently discriminatory and abusive regime that systematically violates the human rights of Palestinians.
MISLEADING ADVERTISING
The failure to accurately disclose the location of settlement properties and attractions exacerbates the companies’ contribution to breaches of international humanitarian law. The websites ensure greater numbers of visitors than there might otherwise have been had these visitors known the exact location of the property or attraction they were booking.
Allowing some properties and attractions to be listed as being in “Israel”, as Airbnb, Booking.com, Expedia and TripAdvisor do, not only deceives users, but also helps conceal information that can help reveal the illegal nature of the settlements. This can lead to customers inadvertently supporting illegal Israeli settlements. Describing them as located in an “Israeli settlement” or in “Palestinian Territories” is still only a partial truth. Users are still deprived of information revealing the critical fact that these properties have been built illegally on occupied Palestinian land. The failure to provide such important information is tantamount to misleading advertising, which is typically sanctioned under consumer protection laws.
All four companies have been publicly criticized for their inaccurate description of settlement properties. Booking.com and Expedia are showing some progress but are yet to implement improved practices consistently across all settlement listings. The apparent reluctance of all the digital tourism companies to ensure that the location of settlement properties, attractions and activities is accurately described suggests that either they know that there is something fundamentally wrong and alarming about such a description, or that they simply do not care.
DIGITAL TOURISM COMPANIES ARE CONTRIBUTING TO VIOLATIONS OF THE RIGHTS OF SPECIFIC PALESTINIAN COMMUNITIES
In addition to the unlawful appropriation of Palestinian land involved in all settlements, the five case studies highlighted in chapter 5 demonstrate how certain settlements have resulted in additional violations of the human rights of specific groups of Palestinians living in their proximity. By listing and promoting properties and attractions in these settlements, digital tourism companies have also contributed to human rights violations of these specific groups of people.
The companies’ listing and advertising of properties, attractions and activities in the settlements of Kfar Adumim, Shiloh and Susya, and settler-operated attractions in Silwan (East Jerusalem) and Hebron drive tourists to these settlements. These tourists contribute financially to the economy of these settlements, and in settler enclaves. As established in the case studies, the very existence of these settlements and, in some cases their expansion plans, are at the very core of the human rights violations described in these studies. By driving tourists to these areas, Airbnb, Booking.com, Expedia and TripAdvisor have contributed to the economy of the settlements and, as a result, to theirmaintenance, consolidation and further expansion. In doing so, they have indirectly contributed to the many human rights violations affecting Palestinian residents of Khan al-Ahmar, Qaryut, Jalud, Khirbet Susiya, Silwan and Hebron that are a direct result of these settlements or settler-run tourist attractions.
Some business activities are much more closely linked to violations of the human rights of certain groups of Palestinian neighbours. For example, the listing by Airbnb, Expedia, Booking.com and TripAdvisor of tourist attractions built or developed on the land previously used by the Bedouin community of Khan al-Ahmar has directly contributed to the violation of many of their rights as Indigenous Peoples. The tourist attractions and activities they list and promote both rely on the use of the land and constitute one of the key drivers behind the threats of further dispossession, demolition and forcible transfer of this Indigenous community. Airbnb, TripAdvisor and Booking.com have directly contributed to and benefited from these violations and helped perpetuate them. Once Airbnb implements its announcement to delist from this area, it will cease to do so.
TripAdvisor has also listed tourist attractions that constitute the main driver behind some of the human rights violations affecting the Palestinian communities of Qaryut and Jalud (case study two) and Khirbet Susiya (case study three). As established in these case studies, the development of the Tel Shiloh and Susya archaeological sites is pivotal to Israeli and settler plans to develop and expand the Shiloh and Susya settlements. However, they cannot achieve their goals without reaching out and promoting the sites to a global audience for which the services of digital tourism companies, such as TripAdvisor, become essential. TripAdvisor’s listing of the archaeological sites makes the companycomplicit in this endeavour. TripAdvisor has directly contributed to, and benefited from, violations of the human rights of the residents of Qaryut, Jalud and Khirbet Susiya that result from the existence and/or development of the archaeological sites and is helping perpetuate them.
TripAdvisor has also facilitated plans by Israel and Elad to grow and consolidate the City of David as a major tourist attraction. As these plans are putting the rights to adequate housing of Palestinians in the al-Bustan area at risk, TripAdvisor’s participation in them has contributed to and possibly augmented this risk.
In sum, settlers and digital tourism companies are doing business with one another and gaining a profit at the expense of Palestinian communities and resources. As well as acting in breach of international humanitarian law by sustaining an illegal situation, these companies have either directly or indirectly contributed to, and benefited from, past and continuing human rights violations against the Palestinian residents of Khan al-Ahmar, Qaryut, Jalud, Khirbet Susiya, Silwan and Hebron. As stated above, some of these companies are also contributing to perpetuating these violations.
Once Airbnb fully implements its announcement to delist properties from the occupied West Bank, it will cease this contribution as far as settlements in Area C are concerned. However, its prior contribution to human rights violations in these areas means that the company will still owe reparations to the affected people. Finally, since the company did not extend its delisting commitment to settlements in East Jerusalem, the company is and will continue to be involved in human rights violations associated with these settlements for as long as it continues to do business with them.
FLOUTING THEIR OWN CORPORATE STANDARDS
All the digital tourism companies addressed in this report have adopted, and claim to operate in line with, certain corporate standards and commitments concerning the rule of law and ethical behaviour. However, none of these standards and commitments appears to influence the companies’ decisions in relation to settlement listings.
Airbnb provides advice to property owners (prospective “Airbnb hosts”) about complying with local laws and regulations. In fact, the company makes compliance with local laws and regulations an explicit condition for its services. Unfortunately, the company does not seem to show this same level of concern for international humanitarian law. As stated earlier, on 19 November 2018, the company announced that it would remove listings in settlements in the occupied West Bank. Although this is a positive step, the company did not base its decision on the fact that settlements are illegal under international humanitarian law or that they amount to war crimes. The company did not explain why it had decided to remove listings from settlements in the “occupied West Bank” but not East Jerusalem, which have the same status (as occupied territory) under international law.
Airbnb claims to operate, and expects guests and hosts to operate, under a “Non-discrimination Policy”. According to the company, this policy is underpinned by the two foundational principles of “inclusion” and “respect”. The company expects guests and hosts to abide by these principles in their relationships with one another. In its own words, “bias, prejudice, racism, and hatred” have no place on its platform. Airbnb’s November 2018 announcement goes some way to honouring its stated commitments. However, it is still to show it is equally concerned about the right to non-discriminationof Palestinian communities living in East Jerusalem. By continuing to list and promote settlement properties in East Jerusalem, Airbnb will in fact still be contributing to a discriminatory regime that is biased and racist in nature, in direct contradiction to the values it claims to champion.
Booking.com appears to take compliance with the law very seriously. It expresses a strong commitment to “operating in compliance with all applicable laws in every country where we do business”. As with the other companies, this concern does not appear to extend to illegal Israeli settlements or result in an equally strong commitment to ensuring the company operates in accordance with international law in relation to settlement properties and attractions.
Booking.com also claims to support projects and initiatives that “contribute to the ongoing health” of the destinations it promotes through its website as well as “strengthen local communities” and “preserve and promote local culture” of these destinations. Yet Israeli settlements are inherently discriminatory and result in many human rights violations against Palestinian communities. In addition, the one-sided narrative offered of the history, cultural heritage and traditions of the land and sites that tourists visit does nothing to preserve the “socio-cultural authenticity of host communities”. The company’s promotion of tourism to the settlements or to sites and attractions run by settlers undermines, rather than strengthens, Palestinian communities and their “health”, “cultural heritage” and “traditional values”.
Expedia also says that it endeavours to ensure that property owners (defined by the company as “travel suppliers”) comply with all laws. The company warns that it may “terminate relationships with third parties who engage in illegal activities”. However, its business activities with Israeli settlers suggest that the company does not consider international humanitarian and human rights law to be part of the “laws” it expects compliance with. Similarly, the “illegal activities” the company is concerned about donot appear to include breaches of these legal regimes.
Expedia also expresses a firm commitment to respecting human rights in its “Employee Code of Conduct” (which the company calls a “Boarding Pass”). But by listing and promoting settlement properties, attractions and activities, Expedia is contributing to the existence, maintenance and expansion of a discriminatory regime that systematically violates the human rights of Palestinians.
TripAdvisor is also committed to ensuring that all company employees, contractors and consultants comply with applicable laws and regulations in the jurisdictions where they conduct business. In its “Code of Business Conduct and Ethics”, the company states that “complying with the law is the foundation on which our ethical standards are built”. However, the company allows settlement properties, activities and attractions to be listed, reviewed and promoted, showing no concern about the fact that settlements are illegal under international law. This suggests that the company does not view international humanitarian law as part of the “applicable laws” it expects compliance with.
The company also expresses a commitment to “human and workplace rights”. TripAdvisor appears to be particularly concerned about ensuring non-discrimination in the workplace. The company does not appear to extend this same concern for the human rights, including the human right to nondiscrimination, of Palestinian communities affected by the illegal settlements it helps sustain through the many listings and promotional activities of Israeli settlements on its platform.
None of these supposed values and commitments appear to have any bearing on the way the companies named in this report choose to deal with settlement properties, attractions and activities.
DIGITAL TOURISM COMPANIES’ LISTING PROCESSES AND SETTLEMENT PROPERTIES, ACTIVITIES AND ATTRACTIONS
The digital tourism companies mentioned in this report either do not require an accurate and complete description of the location of a property, activity or attraction or do not verify this information before proceeding with a listing. As far as Amnesty International could discern, the fact that a request comes from, or relates to a property, activity or attraction in Israel or the OPT – both of which should be considered high-risk areas – does not trigger further checks or investigations.
According to Airbnb’s website, anybody can create a listing and become an “Airbnb host” in almost any location in the world. Before its November 2018 announcement, the only explicit restrictions on who could become a host or where a property could be located appeared to relate to residents of states or regions subject to US sanctions. Based on its announcement, these restrictions will extend to listings in settlements in the “occupied West Bank”, excluding East Jerusalem. However, the company provides no explanation as to why it treats occupied East Jerusalem differently from the rest of the occupied West Bank. The company does not provide any further information as to when and how this commitment will be implemented, and how it will be guaranteed in the long term.
To list a property on Booking.com, property owners (defined by the company as “suppliers”) must first register their property through an online form. There do not appear to be any restrictions in relation to who can add a listing or the location of properties and attractions other than businesses, individuals or countries that are subject to embargoes and trade sanctions. Beyond these situations, anybody wishing to register must provide property details (such as rooms, facilities, and so on), photos, payment details and a signed agreement.
The company reviews the information provided to verify property details. In its own words, “we want to ensure that all properties on Booking.com are 100% genuine and that’s why we verify all of them, no matter where they are.” There is no information about any further checks the company may perform, although according to the job description of staff in its Israel office, they regularly contact property owners to verify information, sometimes meeting them in person. However, the fact that the company lists settlement properties indicates that no checks are conducted relate to or are relevant in any way to whether settlement properties can be listed.
Expedia does not provide much information about who can request a listing. It appears that anybody can fill in an online form expressing their interest in listing their property. They must provide their full name, email address and phone number. After this, the website indicates that Expedia might contact the person submitting the form. There is no information about what further information is requested or checks performed. However, Hebrew-speaking staff in its Prague office maintain relations with property owners. The fact that Expedia lists settlement properties indicates that none of this information or further checks, if any, relate to or are relevant in any way to whether settlement properties can be listed.
Any owner or “representative” of a hotel or attraction can list on TripAdvisor. The only conditions TripAdvisor places on prospective listings relate to the nature of the accommodation or attraction and conditions of service. These are reflected in the company’s “listing guidelines” and relate to issues such as how many guests the property accommodates, how many weeks of the year it is available and so on. None of these relate to the location of the hotel or attraction. The company requests information that allows company “editors” to confirm that the listing meets the guidelines. In addition, it requires that hotel or attraction representatives provide their company’s official name, address, website and phone number. Interestingly, TripAdvisor editors do perform checks to verify the information provided and may even reject the request for a listing. A refusal might be based on not having sufficient information to assess whether the place or business meets the company’s guidelines or on the fact that the place or business does not actually meet these guidelines.
The companies’ listing methodology and criteria show that they do not perform any checks on prospective hosts or “suppliers” to determine whether they, or the property, activity or attraction they wish to list, are located in an Israeli settlement in the OPT. They also show that the companies would not reject a listing even if they had this information.
However, the companies’ listing methodology and criteria also reveal that they do limit access to their services or refuse listings in certain parts of the world if required to by law. They also reveal that the companies are able to implement preliminary screening and vetting processes of prospective listings in relation to listing conditions they themselves impose. This demonstrates that, if they wanted to, they could avoid listing properties, activities and attractions in illegal Israeli settlements or run by settlers in the OPT.
INADEQUATE COMPANY RESPONSES
Amnesty International provided the four digital companies featured in this report with the opportunity to respond to our findings, as well as answer a series of questions. At the time of writing, two companies, Airbnb and TripAdvisor had not replied.
Neither Expedia nor Booking.com addressed our findings or questions directly. In their short responses they appeared to suggest that they were not under any legal obligation to stop business activities in relation to Israeli settlements. The full text of their responses is available in the annex. Expedia wrote that the company allows “any accommodation provider to sign up to our platform in accordance with laws applicable to Expedia Group.” Booking.com wrote that it permits listings wherever “this is in compliance with legislation applicable to Booking.com and its operations. Where clearly defined and applicable laws or sanctions prohibit us from offering our services, we fully comply with such restrictions.”
Booking.com further denied that it provided “services…supporting the maintenance and existence of settlements.” Both Booking.com and Expedia also referred to their commitments to “transparency” and the accurate labelling of Israeli settlements.
Amnesty International is greatly disappointed by the failure of these companies to address their responsibilities to respect international humanitarian and human rights law. Amnesty International strongly disagrees with Booking.com’s statement that its services do not support the maintenance and existence of settlements, for the reasons outlined in this report.
Although Airbnb did not reply to Amnesty International’s letter, it issued a new public statement on 18 December (in addition to its earlier statement of 19 November), following a meeting between a company executive and Israel’s minister of tourism. Airbnb denied reports that it had suspended its commitment to stop listing properties in settlements in the West Bank, stating that it had “communicated that we are developing the tools needed to implement our policy and that process includes continuing our dialogue with the Government of Israel and other stakeholders.” However, Airbnb has not yet publicly set a date by when it will stop listing these properties. Nor did it explain why its decision did not cover properties in settlements in occupied East Jerusalem.