Lawfare Project strongly cautions against compliance with U.N. “blacklist” of firms doing business in Israeli settlement

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According to The Washington Post, the U.N. Human Rights Council (HRC) is planning to publish by the end of 2017 a “blacklist” of international entities that do business in Israeli settlements. We do not know if the database has been finalized, but it reportedly includes TripAdvisor, Priceline.com, Airbnb, and others. The Lawfare Project is now advising such companies that if they are targeted, this may be in violation of U.S. law, and they may have recourse.

The United States and Israel have strongly opposed the creation of the database, with U.S. diplomats asserting that the HRC has exceeded the bounds of its mandate—to “strengthen[] the promotion and protection of human rights around the globe” and “address[] situations of human rights violations and make recommendations on them.” Further, although the HRC lacks authority to impose sanctions or otherwise penalize companies for their involvement with Israel, critics opine that the database “could put pressure on the U.N Security Council to follow up.”

The goals of the database are clear: to coerce the blacklisted companies into reducing or ceasing their Israeli operations, and/or to prompt other business entities (and consumers alike) to boycott or refuse to deal with the named companies. What the HRC seems to ignore, perhaps purposefully, is that compliance by business enterprises with the boycott of Israel can violate a slew of U.S. federal and state laws.

“It comes as no surprise that proponents of the Israeli boycott—the Human Rights Council, NGOs, Arab League member states, and others—do not acknowledge the serious legal implications of actually carrying out the discriminatory conduct for which they advocate,” said Benjamin Ryberg, Chief Operating Officer and Director of Research at The Lawfare Project. “If I attended a corporate board meeting and proposed a boycott of companies that do business with or in Israel, while simultaneously warning that doing so was unlawful and providing a laundry list of potential harm to the corporation that could result, I would be laughed out of the meeting. When corporations are faced with such proposals or consider implementing boycotts based on the HRC’s database, it is imperative that they are well-versed in the relevant laws so that they can act in their own self-interest, which is to firmly reject the boycott. To this end, The Lawfare Project drafted a comprehensive analysis of U.S. and foreign law relating to the boycott of Israel, which we have disseminated to a number of Fortune 500 companies that have been or may be targeted. Our aim is not to threaten legal action, but to prepare these entities to protect themselves from liability that could ensue should they succumb to pressure from the boycott campaign.”

The HRC itself is also treading on precarious territory. The Israel Anti-Boycott Act, a bill currently pending in the Senate, “makes clear that the old and existing [U.S.] anti-boycott law applies not just to the Arab League boycott, but also to the new foreign anti-Israel boycotts, such as those being organized by the U.N. Human Rights Council,” explained Lawfare Project fellow Prof. Eugene Kontorovich.

“For years, the Human Rights Council has focused obsessively and disproportionately on Israel, while turning a blind eye to the most egregious and rampant human rights violators in the Middle East and around the world,” said Brooke Goldstein, Director of The Lawfare Project. “With this blacklist, the HRC continues to unabashedly devote disproportionate resources to foment discrimination based on national origin. It continues to make a mockery of its mission to the detriment of human rights worldwide.”

“It is nothing less than a tragedy that the Human Rights Council has failed so miserably to address the many dire human rights crises around the world. The Council has instead chosen to squander its resources by focusing obsessively on demonizing Israel, the nation with the far and away best human rights record in the Middle East,” said Lawrence Hill, Chairman of the Board of The Lawfare Project. “The Israel Anti-Boycott Act is necessitated because of the Council’s farcical conduct and is the type of active U.S. engagement that is needed to achieve game-changing reforms at the HRC.”