In November 1962, the United Nations General Assembly condemned the policies and practices of South Africa in unusually strong terms. According to Resolution 1761, apartheid South Africa was “flouting of world opinion by refusing to abandon its racial policies” and seriously endangering international peace and security. It was also acting against the UN Charter and engaged in a “determined aggravation of racial issues by enforcing measures of increasing ruthlessness involving violence and bloodshed”.
Beyond condemnation, the General Assembly called on member States of the United Nations to end diplomatic relations with South Africa and to close their ports and airports to South African ships and planes. The Assembly also requested the “boycotting [of] all South African goods and refraining from exporting goods, including all arms and ammunition, to South Africa”. The following year, the UN Security Council called upon member States to cease trading arms with South Africa. Over the following decades, a number countries eventually adopted broader trade sanctions, although at times only after domestic public pressure, such as the refusal of Dunnes Stores workers in Ireland to handle South African fruit.
As the United Nations started taking concerted action against South Africa for apartheid in the 1960s, the term also began to surface in relation to Israel’s treatment of Palestinian Arabs. While the description has been used for decades by Palestinian activists and scholars, in the past couple of years, leading Palestinian, Israeli and international civil society organisations have placed apartheid front and centre in their analyses and critiques of Israel’s policies and practices towards the Palestinians. And as was the case in South Africa, they have at times highlighted both the role and the responsibility of the private sector in contributing to a system of apartheid.
The most recent of these reports comes from Al-Haq, one of the oldest and most-respected Palestinian human rights organisations in the region (and thus the target of criminalisation efforts by the Israeli authorities). It’s report Israeli Apartheid states bluntly that “corporate activities conducted at the expense of the rights of the Palestinian people, on both sides of the Green Line, have served to normalise Israel’s settler colonial apartheid regime and undermine the realisation of the rights of the Palestinian people, including to self-determination, permanent sovereignty, and the right of return”. It contains a wealth of recommendations concerning business and human rights, aimed at both companies and countries, more of which below.
The Israeli organisation B’tselem did not consider the business dimension in their report on apartheid from January 2021, while Human Rights Watch considered that the implications of its findings for business were “complex” and beyond the scope of its report A Threshold Crossed. It did make the following recommendations, however:
Amnesty International also treated the issue of business involvement in Israeli’s apartheid in a somewhat cursory fashion in its 2022 report Israel’s Apartheid Against Palestinians. It does state that companies have “a responsibility to assess their activities in Israel and the OPT and ensure that they do not contribute to or benefit from the system of apartheid, and address such impact when it occurs and cease relevant activities if it cannot be prevented”. Its sole recommendation said much the same:
The criticism levelled at Amnesty International for framing Israel’s policies and practices as apartheid prompted thirteen human rights groups based in Israel to issue a statement in support of the organisation, pointing out that “[m]any of us have used the term and/or have made the legal designation of ‘apartheid’ in relation to various aspects of Israel’s treatment of Palestinians”. Amnesty has previously looked in more depth at business involved in unlawful Israeli settlements (including some companies with a presence in Ireland, like Air BnB ).
Palestinian civil society groups have been increasingly using the apartheid framework in their own reports, as well as submissions to international bodies. A letter signed by over 450 Palestinian and other organisations called on the United Nations to investigate Israeli apartheid and to “[p]rohibit all trade with illegal Israeli settlements and ensure that companies refrain from and terminate business activities with Israel’s illegal settlement enterprise”. While Human Rights Watch and Amnesty International have only touched on business responsibilities in their recent reports concerning apartheid, a number of Palestinian organisations have engaged in a far deeper analysis of the issue.
Al Haq, as mentioned above, provides an extensive engagement with business and human rights in their just published report Israeli Apartheid. The practice of apartheid in this context serves as a “tool of Zionist settler colonialism”, according to the report, and certain corporate entities, including business enterprises and institutions which operate as charities, are seen as complicit. States are contributing to an unlawful situation by “failing to prevent business enterprises domiciled in their territories and/or jurisdiction from respecting international law”. Universal jurisdiction should be deployed by third States to pursue corporate entities. Al Haq takes the view that complicity may be unavoidable for certain companies:
Given the sweeping nature of Israel’s institutionalised regime of racial domination and oppression, it is similarly unlikely that businesses and corporate entities can responsibly engage with illegal Israeli settler colonisation without being complicit in the international wrong and crime of apartheid, on whichever side of the Green Line their activities may take place.
Measures such as the mandatory labelling of goods as being produced in settlements are viewed as insufficient, and States should instead prohibit trade in settlement goods and impose economic sanctions (as the United Nations Generally Assembly called for in relation to South Africa in 1962). Additional recommendations to States call for human rights due diligence and the application of public procurement law so as to deny contracts to companies involved in grave violations of international law. Recommendations are also addressed to companies, including that they “[r]esponsibly cease and desist” from activities or business relationships that may render them complicit in apartheid and establish reparations processes in consultation with those directly affected.
Al Mezan, in its report The Gaza Bantustan, makes similar recommendations to States, drawing on the State duty to protect under the UN Guiding Principles on business and human rights. Companies should “[c]ease all activities and relationships that are directly or indirectly linked to Israel’s military occupation, colonization and apartheid regime, and associated violations of international law.” There is also a call that the International Criminal Court, which has jurisdiction over the State of Palestine, “[i]nvestigate the role of non-state actors in the commission of the crime of apartheid, among other crimes, in the Situation in Palestine, including private business actors, charity organizations representatives, and others”.
The Don’t Buy into Occupation coalition of Palestinian and European organisations focuses on financial flows to Israeli settlements in its 2022 report. Settlements, the report notes, “are a key component of Israel’s apartheid regime over the Palestinian people”, and Israeli, European and international businesses “play a critical role in the functioning, sustainability and expansion of illegal settlements”. The report found that hundreds of European financial institutions had relationships with 50 companies implicated in settlement activity. Over twenty specific recommendations are provided to financial institutions, business enterprises, European governments and institutions and local authorities. Many are along the lines of those mentioned above, but the report adds, for example, that pension funds should engage in “adequate investment screening and due diligence procedures, to comply with the relevant obligations and responsibilities so as to avoid involvement and complicity in violations of international law”.
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The application of business and human rights lens to the situation in Palestine has gathered significant momentum. United Nations special rapporteurs and other bodies have for many years highlighted the involvement of companies in Israel’s violations of the rights of Palestinians, most notably in the construction of unlawful settlements. With more recent reports explicitly describing the situation as one of apartheid, States may soon start to recognise this categorisation and take appropriate action, including against business enterprises implicated in Israeli apartheid. The current Special Rapporteur in her first report called on States to:
Take appropriate steps to prevent, investigate and redress human rights abuses by all business enterprises domiciled in their territory and/or under their jurisdiction by adopting the necessary policies to regulate business conduct in the occupied Palestinian territory, including disengaging from the colonies and providing effective remedy for victims.
The database of businesses involved in settlement activity published by the Office of the High Commissioner for Human Rights, although suffering from recurring delays, insufficient funding and a lack of visibility, provides an important public record of companies complicit in unlawful settlements. The previousUN Special Rapporteur viewed it as “an important initial step towards accountability and the end to impunity”.
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Following the end of apartheid in South Africa, there was a reckoning with the past through the establishment of the South Africa Truth and Reconciliation Commission. This involved truth-telling and an amnesty process, and while no person or company was ever prosecuted for the crime of apartheid itself, the Commission did examine the role of individuals and institutions in apartheid, including business. The Commission’s analysis concluded that:
The case for reparations was made against Swiss banks, mining companies and various other business enterprises, with the Truth and Reconciliation Commission also concluding that “business benefited substantially during the apartheid era either through commission or omission and has, at the very least, a moral obligation to assist in the reconstruction and development of post-apartheid South Africa through active reparative measures”.
Following the end of apartheid in South Africa, there was a limited voluntary contribution by business to reparations. Some victims pursued companies in other jurisdictions for their complicity, albeit with limited success. While doing business with apartheid can come with a cost, the extent of this will largely be determined by the action of States, whether acting individually or through international organisations. Citizens and companies also have a role, and can in fact take concrete action where States refuse to do so. Civil society organisations are certainly playing their part. Condemnation alone by States was insufficient for victims in South Africa, and will be also an empty gesture for Palestinians in the absence of proper sanctions and accountability, including for the deeply embedded private sector.
Business & Human Rights in Ireland 