In Paris this week on an official visit, Azerbaijan’s autocratic President Ilham Aliyev has already scored one photo op. Anyone reading yesterday’s Azeri media could see dozens of photos of Aliyev posing with leaders of top French companies, including Airbus, Suez, and Credit Agricole.

Azerbaijan's President Ilham Aliyev (L) shakes hands with his French counterpart Francois Hollande as they visit a local French school under construction in Baku, May 11, 2014.

© 2014 Reuters

Today, President Hollande will receive President Aliyev and host an official dinner at Palais de l’Elysee. Again, Parisian photo ops abound. But amid the flashing cameras, one has to wonder where Azerbaijan’s repression of critics and the jailing of opponents fits in the new relationship between Paris and Baku?

In the past few years, Azerbaijani authorities have aggressively gone after the country’s once vibrant civil society, jailing dozens of activists, journalists, and political opponents. It also adopted draconian legislation making it virtually impossible for independent non-governmental organizations to operate.

One year ago, as Azerbaijan’s economy started to suffer from falling oil prices, several of those detained on political grounds were released. That was an important first step, but hopes for progress were short-lived.

Many of those released face travel bans or obstacles to their activities. Dozens are still locked up on political grounds, including opposition activist Ilgar Mammadov, despite repeated calls by the Strasbourg-based Council of Europe for his immediate release. And more activists have been thrown in jail. Recently, one of the country’s most popular journalists and bloggers, Mehman Huseynov, was sentenced to two years in prison for allegedly defaming the police, in response to his brave public denouncement of the police abuses he suffered.

When visiting Paris, Brussels, or other European capitals, President Aliyev hopes to get more business opportunities and investment in Azerbaijan. But he prefers to ignore that the people of Azerbaijan want human rights protections, transparency, and good governance. Those standing up for these values are routinely exposed to attacks and harassment.

Yet what more clear message that Azerbaijan’s crackdown cannot be ignored by potential investors than last week’s decision by the Extractive Industries Transparency Initiative (EITI), an international coalition promoting better governance of resource-rich countries, to suspend Azerbaijan – precisely because of its actions against civil society.

President Hollande should reject a narrative that only finance and economy matter in Azerbaijan. Human rights should be as central to France’s foreign policy as other topics.

Hollande should publicly call for the release of Ilgar Mammadov and all those detained in retaliation for their activism and criticism. A failure to explicitly support human rights principles would be the worst message to those unjustly waiting behind bars.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Arvind Ganesan is the director of Human Rights Watch’s Business and Human Rights Division. He leads the organization’s work to expose human rights abuses linked to business and other economic activity, hold institutions accountable, and develop standards to prevent future abuses. This work has included research and advocacy on awide range of issues includingthe extractive industries; public and private security providers; international financial institutions; freedom of expression and information through the internet; labor rights; supply chain monitoring and due diligence regimes; corruption; sanctions; and predatory practices against the poor. Ganesan’s work has covered countries such as Angola, Azerbaijan, Burma, China, Colombia, the Democratic Republic of Congo, Equatorial Guinea, India, Indonesia, the United States, and Nigeria. His recent research has focused on predatory lending practices and governance issues on Native American reservations in the United States. He has written numerous reports, op-eds, and other articles and is widely cited by the media.

Ganesan has also worked to develop industry standards to ensure companies and other institutions respect human rights. He is a founder of the Voluntary Principles on Security and Human Rights for the oil, gas, and mining industries and is a founding member of the Global Network Initiative (GNI) for the internet and telecommunications industries, where he also serves on the board. Ganesan has helped to develop standards for international financial institutions such as the World Bank, and regularly engages governments in an effort to develop mandatory rules or strengthen existing standards such as the Kimberley Process. He serves on the board of EGJustice, a nongovernmental organization that promotes good governance in Equatorial Guinea, and is a member of the International Corporate Accountability Roundtable (ICAR)’s steering committee.

Before joining Human Rights Watch, Ganesan worked as a medical researcher. He attended the University of Oklahoma.

Posted: January 1, 1970, 12:00 am

Gambian security officers at the Supreme Court in Banjul, December 5, 2016.

© 2016 Reuters

The Gambian authorities should thoroughly investigate the alleged excessive use of force by police causing the deaths of two anti-sand mining demonstrators on June 18, 2018, Human Rights Watch and Amnesty International said today. The Gambian government should accelerate the reforms needed to ensure that government security forces have the supervision, training, and equipment needed to police demonstrations in accordance with international human rights standards.

Witnesses said that police fired live ammunition at demonstrators in the village of Faraba Banta, killing local residents Bakary Kujabi and Ismaila Bah, and wounding at least six others. President Adama Barrow issued a news release the same day stating that he had opened an investigation and that all mining in the area had been suspended. The government also said that five police officers involved in the shooting were in police custody and will be suspended while investigations are conducted.

“The alleged excessive use of lethal force by the security forces has conjured up painful memories from Gambia’s recent past,” said Sabrina Mahtani, West Africa researcher at Amnesty International. “The government’s promise to investigate is a positive move. Gambians should be able to hold demonstrations safe from disproportionate and excessive use of force by the security forces.”

Members of Gambia’s Police Intervention Unit (PIU), a police paramilitary force, clashed with residents of Faraba Banta, 50 kilometers south of the capital, Banjul, after local residents blocked mining-related traffic.

A journalist who observed the protest told Human Rights Watch and Amnesty International, “As soon as [police reinforcements] came out of the vehicle they started firing live bullets. They did not issue a warning or alarm.” Another journalist in the village, Pa Bojang, said that police officers detained him for six hours, slapped him, and confiscated his voice recorder.

Witnesses told Human Rights Watch and Amnesty International that protesters threw stones and burned vehicles, injuring more than a dozen police officers. Gambia’s police chief, Landing Kinteh, said in a June 18 media statement that police leadership, “did not authorize the use of firearms” by police in responding to the protests.

Several protesters arrested on June 18, including those injured, remain in police custody, and face possible charges for destruction of property. Injured detainees should receive medical attention and a court should promptly review the necessity of their continued detention. Those responsible for destroying property or committing other offenses should be prosecuted in accordance with international fair trial standards.

A May 26 protest in Faraba Banta against sand mining, which provides sand for concrete for construction, had also led to clashes between local residents and police, with officers firing teargas and rubber bullets to disperse at times violent demonstrators. Faraba Banta residents say that sand mining will damage the rice fields they rely on for food and income. The Police Intervention Unit had maintained a presence in the village following the May 26 clashes.

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state that the intentional lethal use of firearms by security forces “may only be made when strictly unavoidable in order to protect life.” Furthermore, “[i]n the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary.”

The Guidelines on Policing Assemblies in Africa, adopted by the African Commission on Human and Peoples’ Rights, state that, “firearms must never be used to disperse an assembly” and that intentional use of lethal force is prohibited “unless it is strictly unavoidable to protect life.” Where force is used, law enforcement officials must ensure that medical assistance is rendered to any injured person.

“Gambia’s Police Intervention Unit has a history of using excessive force against demonstrators, and escaped censure during former President Jammeh’s abusive rule,” said Jim Wormington, West Africa researcher at Human Rights Watch. “The Gambian government needs to show that it can conduct credible investigations and appropriately discipline or prosecute those responsible for abuses.”

Posted: January 1, 1970, 12:00 am

This week, June 18 to 22, Antwerp hosts a meeting of governments, the diamond industry, and nongovernmental groups to take stock of the Kimberley Process, the certification process set up nearly two decades ago to end the trade in “blood diamonds.” But the Kimberley Process is not up to the task. The European Union—currently the chair of the Kimberley Process—should push for change to improve the protection of human rights starting with mining and throughout the entire supply chain. Belgium has a key role to play as well, as global diamond trading hub and EU member state.

Far away from Antwerp, villagers in Zimbabwe recently faced a violent crackdown by police and soldiers. Why? They were protesting because they believe that state-run companies have looted billions of dollars in revenue from local diamond mines with no benefit to their community. Residents say security force personnel beat women with batons, fired live ammunition into the air, and fired tear gas canisters to disperse the demonstrators—sending three children to the hospital.

Zimbabwe’s diamond mines have a long history of human rights abuses. Armed forces killed more than 200 people when the military first seized control of the mines in 2008 and have coerced children and adults into forced labor. In April, local organizations reported that security guards had handcuffed local miners and unleashed attack dogs on them.

Yet, diamonds from Zimbabwe are exported legally into the international market under the Kimberley Process. Diamonds tainted by abuse—in Zimbabwe or elsewhere—can still reach the global diamond market easily. The Kimberley Process is narrowly focused on curbing abuses perpetrated by armed groups, ignoring those of state actors. It also lacks an independent monitoring system to check if the necessary customs controls are actually in place. Finally, the Kimberley Process only applies to rough diamonds, allowing stones that are fully or partially cut and polished to fall outside the scope of the initiative.

This needs to change. At the Kimberley Process “intersessional” meeting this week, delegates should seek to strengthen human rights protection in diamond supply chains, including by expanding the Kimberley Process definition of conflict diamonds.

Under international standards, companies need to have due diligence safeguards in place to identify and respond to human rights risks throughout their supply chain. Yet, many jewelry companies do not live up to these standards. Human Rights Watch recently scrutinized the diamond sourcing practices of 13 leading jewelry and watch brands, whose combined annual revenue totals about US$30 billion. We found that many companies point to their compliance with the Kimberley Process as evidence that their diamonds are “responsibly sourced,” but take limited action to identify forced labor or other human rights risks in their diamond supply chains.

Companies and governments need to do much more to ensure human rights are protected. The Kimberley Process should adopt a wider definition of “conflict diamonds” to address abuses like those seen in Marange, and establish an independent monitoring system and ensure more rigorous controls. The diamond industry in Antwerp and elsewhere needs to take responsibility, too, and establish robust human rights safeguards throughout the supply chain, to ensure they are not linked to or contributing to human rights abuses in Marange or anywhere else.

Juliane Kippenberg is a child rights expert at Human Rights Watch and co-author of “The Hidden Cost of Jewelry”, a report on jewelry supply chains published in February 2018. Follow her on Twitter @KippenbergJ

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Next week (June 18-22) the European Union hosts governments, the diamond industry, and nongovernmental groups in the diamond-trading city of Antwerp to take stock of the Kimberley Process, the certification process set up nearly two decades ago to end the trade in “blood diamonds.” But the Kimberley Process is not up to the task. The European Union-currently the chair of the Kimberley Process-should push for change to improve the protection of human rights starting with mining and throughout the entire supply chain.

An illegal diamond dealer from Zimbabwe displays diamonds for sale on September 19, 2010

© 2010 Reuters

Far away from Antwerp, villagers in Zimbabwe recently faced a violent crackdown by police and soldiers. Why? They were protesting because they believe that state-run companies have looted billions of dollars in revenue from local diamond mines with no benefit to their community. Residents say security force personnel beat women with batons, fired live ammunition into the air, and fired tear gas canisters to disperse the demonstrators-sending three children to the hospital.

Zimbabwe’s diamond mines have a long history of human rights abuses. Armed forces killed more than 200 people when the military first seized control of the mines in 2008 and have coerced children and adults into forced labour. In April, local organizations reported that security guards had handcuffed local miners and unleashed attack dogs on them.

Yet, diamonds from Zimbabwe are exported legally into the international market under the Kimberley Process. Diamonds tainted by abuse-in Zimbabwe or elsewhere-can still reach the global diamond market easily. The Kimberley Process is narrowly focused on curbing abuses perpetrated by armed groups, ignoring those of state actors. It also lacks an independent monitoring system to check if the necessary customs controls are actually in place. Finally, the Kimberley Process only applies to rough diamonds, allowing stones that are fully or partially cut and polished to fall outside the scope of the initiative.

This needs to change. At the Kimberley Process “intersessional” meeting in Antwerp this week, delegates should seek to strengthen human rights protection in diamond supply chains, including by expanding the Kimberley Process definition of conflict diamonds.

Under international standards, companies need to have due diligence safeguards in place to identify and respond to human rights risks throughout their supply chain. Yet, many jewelry companies do not live up to these standards. Human Rights Watch recently scrutinized the diamond sourcing practices of 13 leading jewelry and watch brands, whose combined annual revenue totals about US$30 billion. We found that many companies point to their compliance with the Kimberley Process as evidence that their diamonds are “responsibly sourced,” but take limited action to identify forced labor or other human rights risks in their diamond supply chains.

Companies and governments need to do much more to ensure human rights are protected. The Kimberley Process should adopt a wider definition of “conflict diamonds” to address abuses like those seen in Marange,  and establish an independent monitoring system and ensure more rigorous controls. Jewelry companies, diamond traders, and cutters and polishers need to take responsibility, too, and establish robust human rights safeguards throughout their supply chain, to ensure they are not linked to or contributing to human rights abuses in Marange or anywhere else.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

(New York, June 13, 2018) – The World Bank, along with the Afghan government and its donors, should use its new education program to reverse the declining number of girls in school in Afghanistan, Human Rights Watch said on Tuesday in a letter to bank management. The anticipated US$300 million donor-funded World Bank project, Education Quality Reform in Afghanistan (EQRA), is to be submitted for approval to the World Bank’s executive board in the coming weeks.

A June 2018 UNICEF report found that up to 3.7 million children in Afghanistan – nearly half the children in the country – are out of school, and 60 percent of those are girls. In six of the country’s 34 provinces – Helmand, Kandahar, Paktika, Uruzgan, Wardak and Zabul – 15 percent or less of girls are in school. For the first time since 2002, UNICEF found, the number of Afghan children studying is falling.

“There’s an education crisis in Afghanistan right now – with girls most affected – and the world is looking away,” said Heather Barr, senior women’s rights researcher at Human Rights Watch. “It’s intolerable that nearly 17 years after the Taliban government’s fall, the number of girls going to school in Afghanistan is falling.”

The UNICEF findings are consistent with an October 2017 Human Rights Watch report that found that while deteriorating security is a significant barrier to girls’ education, girls were at increasing risk of missing school due to other factors. These include decreases and changes in donor support, and discrimination against girls within the Afghan government’s school system.

In addition to reducing funding, donors in many cases are shifting their bilateral aid from supporting nongovernmental organization-run schools focused on serving girls, to pooled funding through the World Bank program that directly funds the Afghan government’s education system. While direct government aid can improve sustainability, this particular shift is likely to harm girls’ ability to attend school because the government has made education inaccessible to many girls, Human Rights Watch said.

The Afghan government has 5,260 boys’ schools but only 2,531 girls’ schools – more than two to one. Many families want their daughters to study but will only accept them being taught by a female teacher – and in half of Afghanistan’s provinces, 20 percent or fewer teachers are female. Neither boys nor girls should have to study at a school without a toilet, but it is much harder for girls, especially as they reach puberty and begin menstruation – and 60 percent of Afghan government schools have no toilets.

EQRA will become the third World Bank project to support education in Afghanistan since 2002. It will receive funding from the World Bank-administered Afghanistan Reconstruction Trust Fund (ARTF). As of April 2018, donors to the ARTF, by pledge size, were: the European Union/European Community, the United States, United Kingdom, Denmark, Canada, Australia, Italy, Finland, South Korea, Switzerland, Japan, and Poland.

To move forward, the EQRA project will require approval by the World Bank’s board, which consists of donor countries to the bank’s work. That gives board members the opportunity to ensure that the education project and its respective donor countries give priority to addressing the disproportionate barriers to girls’ education.

“Girls’ education in Afghanistan is at urgent risk unless donors use their funds to ensure that the Afghan government takes this problem seriously,” Barr said. “The World Bank’s US$300 million education project is their best chance to turn this crisis around.”

Posted: January 1, 1970, 12:00 am

Re: Education Quality Reform in Afghanistan (EQRA) project

Dear Vice Presidents Dixon and Sennhauser,

I am writing on behalf of Human Rights Watch to update you on our research and to raise urgent issues regarding the World Bank’s funding for girls’ education in Afghanistan. We are specifically interested in the Education Quality Reform in Afghanistan (EQRA), which we expect will be reviewed by the World Bank board this summer.

EQRA will be the third World Bank education project in Afghanistan since 2001, following EQUIP 1 and EQUIP 2. With an anticipated US$300 million budget, it will play a major role in setting the direction of international support for education in Afghanistan for years to come.

Human Rights Watch’s October 2017 report on girls’ access to education in Afghanistan,[1] attached, found that in many parts of Afghanistan the number of girls going to school is falling.[2] Based on 249 interviews, most with out-of-school girls, in Kabul, Kandahar, Balkh, and Nangarhar provinces, we found that while deteriorating security is a barrier to girls’ education, other important factors are also driving this decline. 

Human Rights Watch’s research indicates that the Afghan government’s education system discriminates against or fails to provide access to education for girls in the following ways:

  1. There are fewer government schools for girls. The government has 5,260 boys-only general education schools, and 2,531 girls-only general education girls’ schools.[3]
  2. There is a dire shortage of female teachers – 20 percent or fewer in half Afghanistan’s provinces – and many families won’t let daughters study with a male teacher, especially as they get older. Afghan officials argue that it is difficult to get women to take teaching jobs, especially in remote areas, but a likely more important barrier is that because of corruption, teaching jobs are “purchased” in return for hundreds of dollars – something women are less able to do than men.[4]
  3. The government school system suffers from a lack of infrastructure, which specifically affects girls. For example, 60 percent of government schools have no toilets.[5] The lack of toilets has a disproportionate impact on girls, especially as they reach puberty and begin menstruation and have no facilities or privacy to manage their periods.

Our research also showed the importance of community-based education (CBE) programs, which are small schools that usually prioritize or solely serve girls. CBE is a completely parallel system of education from the government’s and risks being abandoned as funds are shifted from bilateral to multilateral funding mechanisms. As donors are giving less money, and the money they are giving is increasingly spent through pooled mechanisms rather than bilaterally, funding is being shifted out of CBE programs and into the government system that is not serving girls well — making it especially important that donors mitigate discrimination in the government system.[6]

In this context, we see the new EQRA project as a crucial moment for the World Bank to halt the decline in girls’ education in Afghanistan. Human Rights Watch strongly urges the Bank and the countries contributing to the Afghanistan Reconstruction Trust Fund to insist that EQRA include:

  1. A requirement that the government end discrimination in the number of girls’ schools versus boys’ schools. This can be done most quickly by turning boys’ schools into mixed schools, and accomplished through a shift system or separate classes in communities where co-education is not feasible;
  2. Specific targets and timeline for equalizing access of girls to equivalent qualified and adequately trained female teachers as boys have to male teachers;
  3. A specific plan, and funding, for ensuring that all mixed and girls’ schools have adequate toilets — meaning toilets that are accessible, private, locking, and have access to water on-site, waste receptacles, plans for upkeep, etc.;
  4. A long-term plan to ensure the survival of CBE by using EQRA to integrate CBE into the government school system. The Afghan Ministry of Education should receive EQRA funds to establish CBE programs for girls, and the World Bank should monitor closely to ensure that these schools are run properly and serve girls; and
  5. A commitment to monitoring with a focus on gender-equity, including gender disaggregation of all indicators, and specific monitoring of all measures focused on assisting girls. Monitoring of the EQRA program will be crucial to its success and needs to include, from the outset, indicators and monitoring mechanisms that will fully capture the impact of the program on girls.

Thank you, and we look forward to your response. We would also be most happy to discuss this research with you or your staff in person or by telephone.

Cc: World Bank Board of Executive Directors


[1] Human Rights Watch, “I Won’t be a Doctor and One Day You’ll Be Sick: Girls’ Access to Education in Afghanistan,” October 2017, https://www.hrw.org/report/2017/10/17/i-wont-be-doctor-and-one-day-youll... (accessed June 12, 2018).

[2] This finding is confirmed by Afghan government statistics. Data in the government’s statistical yearbook for 2016-2017 compared to data 2015-2016 shows the number of girls enrolled in government schools fell in 32 out of 34 provinces. This decline is happening in a context in which girls were already frequently excluded. According to the Afghan Ministry of Education, 85 percent of all out-of-school children are girls. No province has 50 percent female students; in some provinces, enrolment is as low as 15 percent.

[3] Islamic Republic of Afghanistan Central Statistics Organization, Statistical Yearbook 2015-16 and 2016-17, http://cso.gov.af/en/page/1500/4722/2016-17 and http://cso.gov.af/en/page/1500/4722/2015-2016 (accessed June 11, 2018).

[4] Islamic Republic of Afghanistan Monitoring and Evaluation Committee, “Vulnerability to Corruption Assessment of the Ministry of Education,” October 2017, http://www.mec.af/files/2017_23_10_moe_english.pdf (accessed June 11, 2018).

[5] Islamic Republic of Afghanistan, Ministry of Education, “Afghanistan Education for All 2015 National Review,” 2015, http://unesdoc.unesco.org/images/0023/002327/232702e.pdf (accessed June 6, 2018), p. 25.

[6] CBE consists of small, local schools designed to provide primary education, often on an accelerated basis, to children who are unable to attend government schools due to reasons of distance, security, lack of female teachers, etc. There has been rigorous research showing that CBE helps to eliminate the gender gap in enrollment and in test scores.

Posted: January 1, 1970, 12:00 am

A child walks between bales of tobacco on an auction floor in Harare, Zimbabwe.  

© 2017 Tsvangirayi Mukwazhi/AP Photo

Today is the World Day Against Child Labor, and this year’s theme highlights the global need to improve the health and safety of young workers and eradicate hazardous child labor.

Worldwide, about 73 million children work in hazardous conditions. The International Labour Organization (ILO) estimates a staggering 22,000 children are killed at work every year. Children who work often miss out on an education, and studies show they are less likely to find decent-paying jobs as adults. Human Rights Watch has documented the risks child workers face in agriculture, mining, the apparel industry, and other sectors.

On tobacco farms in Zimbabwe, Indonesia, and the United States, Human Rights Watch found that child workers face significant health risks from exposure to nicotine and toxic pesticides. Last year, we spoke to 15-year-old “Davidzo” who worked on a Zimbabwe tobacco farm. “The first day I started working in tobacco, that’s when I vomited.” He said he felt especially sick when he carried the harvested leaves. “I started to feel like I was spinning,” he said. “Since I started this [work], I always feel headaches and I feel dizzy.”

Like Davidzo, many child workers told us they experienced nausea, vomiting, headaches, and dizziness – all symptoms consistent with nicotine poisoning – after handling tobacco leaves. Children are particularly vulnerable to toxic chemicals because their bodies are developing.

In small-scale gold mines in Ghana, Mali, Tanzania, and the Philippines, Human Rights Watch documented how children work in underground pits, and have sometimes been killed when pits collapsed. Children use toxic mercury to process gold, without being aware that mercury can cause brain damage, and even kill.

Governments should take comprehensive action to regulate industries to prevent child labor, and businesses should conduct human rights due diligence, including monitoring child labor throughout their supply chains. Unfortunately, at present, governments and companies do not do enough to ensure rights are respected in supply chains, as our recent work on 13-well known jewelry companies shows. We found most companies are unable to identify where their gold and diamonds are sourced.

Human rights law leaves space for children older than 15 to work, as long as the jobs are safe and do not interfere with schooling – such work might actually benefit them. But no child should ever have to suffer injury, illness, pain, or even death in a dangerous workplace. We owe it to kids to protect them from these perils.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

(Brussels, June 6, 2018) – The new European Union General Data Protection Regulation (GDPR) will enhance privacy and should spur other countries to improve protection of people’s personal information, Human Rights Watch said in a question and answer document released today. The document summarizes key portions of the EU law and discusses what comes next.

“In the digital age, so much of what we do generates data that can reveal intimate details of our lives, thoughts, and beliefs,” said Cynthia Wong, senior internet researcher at Human Rights Watch. “The GDPR is hardly perfect, but it strengthens protections for privacy in the EU and shows that strong safeguards for data are both possible and good for human rights.”

As of May 25, 2018, the new rules are legally binding across the EU’s 28 Member States. The law, agreed upon in 2016, is one of the strongest and most comprehensive attempts globally to regulate the collection and use of personal data by both governments and the private sector. If robustly implemented and enforced, it can bolster the right to privacy in Europe and serve as a useful model for countries such as the United States that have comparatively weak protections for personal data.

The regulation requires government agencies and companies such as Facebook and Google to obtain genuine and informed consent before they collect data, and to clearly explain how they will use, share, and store it. Internet users have the right to ask companies and other organizations what personal data they hold, request corrections, and withdraw consent for their data’s continued use. People can bring complaints about data misuse to national data protection regulators, who can investigate and impose penalties for violations.

Public and private entities must promptly report data breaches, build privacy safeguards into their systems – known as “privacy by design” – and allow people to download their data so they can easily switch service providers if they choose. People can also appeal decisions based on algorithmic or automated decision-making and profiling by requesting human review. Such a review would provide safeguards against discrimination if algorithms are used to determine, for example, eligibility for public benefits, insurance, credit, or employment.

The new EU rules contain some shortcomings and limitations. Many provisions include vague, undefined, or potentially overly permissive terms. For example, governments and companies may obtain and process data without consent if their “legitimate interests” outweigh a person’s rights and freedoms. The regulation’s permissible legitimate interests are either not well defined or broadly drawn, which could create significant loopholes.

Regulators and courts will need to work vigilantly to make sure that governments and corporations do not try to exploit ambiguities in violation of rights. In addition, the regulations will not curtail large-scale government surveillance as they allow government processing of data without consent for undefined “national security” and “public security” reasons.

Data protection laws are critically important for human rights in the digital age, Human Rights Watch said. Many countries around the world have few, if any, such protections. Recent scandals involving Facebook and Cambridge Analytica and public concern about digital data breaches, targeted advertising, and unchecked private sector profiling have driven calls for greater controls over how personal data is collected and used.

Governments and companies are increasingly amassing large pools of data on our private lives and using it to make important decisions that affect us,” Wong said. “Governments should regulate how this information is handled so that it is less vulnerable to abuse by governments, companies, or crooks.”

Posted: January 1, 1970, 12:00 am

Comprehensive data protection laws are essential for protecting human rights – most obviously, the right to privacy, but also many related freedoms that depend on our ability to make choices about how and with whom we share information about ourselves. The European Union General Data Protection Regulation (GDPR) is one of the strongest and most comprehensive attempts globally to regulate the collection and use of personal data by both governments and the private sector. It was enacted in 2016 by the European Union, and went into effect May 25, 2018, across the EU’s 28 Member States. If robustly implemented and enforced, it will bolster privacy protections in Europe and potentially far beyond.

The regulation’s new safeguards are particularly important for human rights in the digital age. Recent scandals involving Facebook and Cambridge Analytica and public concern about digital data breaches, targeted advertising, and private sector profiling have driven calls for greater controls over how personal data is collected and used.

The following questions and answers summarize key portions of the law and discuss what comes next.

  1. What is the EU General Data Protection Regulation (GDPR) and to whom does it apply?

The EU GDPR is a new set of rules that aims to strengthen protections for personal data and to ensure consistency of such protections across the EU. The regulation builds upon the EU’s existing 1995 Data Protection Directive, an important set of laws that predates ubiquitous smart phones and the rise of social media and other online services (search, email, etc.) that companies offer free-of-charge to users, but finance with data-driven targeted advertising. The EU regulation expands the directive’s privacy protections and introduces new safeguards in response to these technological developments.

In the digital age, everything a person does online generates or implicates data that can be highly revealing about their private life. The GDPR provides new ways people can protect their personal data, and by extension their privacy and other human rights. It gives everyone more control, and requires businesses, governments, and other organizations to disclose more about their data practices, and regulates the way they collect, process, and store people’s data.

Personal data” is defined broadly under the GDPR to include “any information relating to an identified or identifiable person.” Thus, even data that does not directly identify a named person, but could still help identify them, is still covered by the law. This definition encompasses online and device identifiers (like IP addresses, cookies, or device IDs), location data, user names, and pseudonymous data.

Although the GDPR is an EU regulation, it will affect the data practices of many organizations outside the EU. It applies to any organization that offers free or paid goods or services to people in the EU, or that monitors the behavior of anyone in the EU, regardless of the organization’s location. This includes, for example, large US internet companies, advertising companies, and data brokers that process the personal data of people in the EU. Under the regulation, “processing data” is defined broadly to include any activity that touches personal data, such as collecting, storing, using, or sharing it.

For the purposes of this Q&A, we refer to the obligations of “organizations” and companies. However, it is important to note that the GDPR’s requirements apply to a broad range of private and public sector entities, including government agencies, companies, and non-governmental organizations.

  1. What are the distinctive protections of the GDPR?

The EU regulation requires all organizations, public and private, that process personal data of people in the EU to put into place certain protections and disclose more information about what data they collect and how they will use and share it. It also provides many more privacy protections for people and the data they may be giving a company or government agency. For example:

  • Companies must ask for consent before collecting or using a person’s data. In most circumstances, companies, governments, and other organizations must now obtain genuine and informed consent before they can collect, use, or share a person’s personal data. The request for consent must be clearly distinguishable, in an intelligible and easily accessible form, and use clear and plain language [Art. 6(1)(a)]. In other words, the request for consent has to be easy to find, and easy to understand.
  • Special protections apply to sensitive information. Processing certain special categories of sensitive data is very tightly regulated. These include information revealing someone’s racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, as well as data about genetics, health, and biometrics (for example, fingerprints, facial recognition and other body measurements) [Art. 9].
  • Companies must treat online identifiers and location data as personal data [Art. 4(1)]. That means that information that advertisers and websites use to track online activity like cookies, device identifiers, and IP addresses are entitled to the same level of protection as other personal data. Such information can be highly revealing about online searches and activity, especially when combined with other data companies hold.
  • Companies must explain how a person’s personal data is used, shared, and stored [Art. 13], even if they obtained their data from another company like a data broker or social media company [Art. 14].
  • Anyone can ask a company what personal data they hold about them free of charge [Art. 15] and then request that it be deleted.
  • A person can download their personal data and move it to a competitor through a new right to data portability [Art. 20]. For example, everyone should be able to take their data from one social media network or financial institution in a format that enables them to more easily switch to another.  
  • Companies are encouraged to build privacy-protecting mechanisms into their systems – a concept known as privacy by design [Art. 25]. Under the regulations, those who process data must carry out technical and organizational security measures designed to protect the data from abuse, loss or misuse – for example, by minimizing the data they collect, and considering the use of pseudonyms and encryption. Where the risk to people’s rights seems high, and particularly where the technology is new, companies are required to conduct data protection impact assessments before processing data [Art 35].
  • Data breaches must be reported to authorities [Art. 33] under almost all circumstances, and people must also be informed if their data is subject to a breach that is likely to result in a “high risk” to their rights and freedoms [Art. 34].

The 1995 EU Data Protection Directive imposed many of the same requirements, but the GDPR strengthens and expands the directive’s obligations.

  1. How does the GDPR protect individuals and human rights?

The GDPR gives people enhanced protections against unnecessary data collection, use of data in unanticipated ways, and biased algorithmic decision-making. In the digital age, personal data is intrinsically linked to people’s private life and other human rights. Everything a person does leaves digital traces that can reveal intimate details of their thoughts, beliefs, movements, associates, and activities. The GDPR seeks to limit abusive intrusions into people’s private lives through their data, which in turn protects a range of other human rights.

The EU regulation gives people in EU member states more control over their personal data, including what information they turn over, how it is used, and with whom it is shared. When a company collects someone’s personal data, it will often need to get consent in plain language, which means the person will often be asked to “opt-in” to collection or use of their data. Companies should collect and process only what data is necessary for the service, whether selling something online or creating a social media account.

Individuals can download and view the data collected on them, ask for corrections, request that their data be erased in some circumstances, and withdraw consent for the data’s continued use. People also have the right to object to online profiling and targeted advertising, and entities must then stop processing their personal data unless the company can demonstrate “compelling legitimate grounds” to do otherwise. Though the regulations don’t define what will be considered “compelling legitimate grounds,” they do provide an absolute right to object to and stop direct marketing by email, phone calls, and text messages.

After data is collected, companies have to be more transparent about how they share it with others. In theory, this means users may be able to learn more about how companies approach online profiling and ad-targeting partnerships, especially those that offer web analytics, advertising, or social media services.

Finally, the new framework also guarantees some protections from decisions based on profiling and from computer-generated decisions [Art. 22]. Systems that incorporate algorithmic decision-making or other forms of profiling can lead to discrimination based on race, sex, religion, national origin, or other status. Even if individuals consent, they still have the right to human review of significant results from automated decision-making systems. As governments and companies increasingly use algorithms to make important decisions about people’s lives, such as whether a person gets public benefits, health insurance, credit, or a job, these protections promise a degree of transparency and accountability and safeguard against discrimination that affects a person’s human rights.

  1. How clear are the rights and duties under the GDPR?

The GDPR, like any new rule, will become clearer over time as people and companies challenge practices and interpretations of its requirements. There are already certain areas that are likely to be contentious and await further resolution.

Member States of the EU have a certain amount of flexibility in deciding how to apply the law and reflect it in their own national data protection regimes. One area in which some variation is expected is the age at which children can themselves consent to the processing of their data without a parent or guardian. The EU regulation allows member states to set the age of consent to anywhere between ages 13 and 16. This raises the risk of inconsistencies in approaches across the European Union.

Another area of uncertainty is when the regulation permits organizations to obtain and process a person’s data without consent if the entity’s “legitimate interests” outweigh a person’s rights and freedoms. Some of the legitimate interests that entities can rely on include fraud prevention, internal administration, information security, and reporting possible criminal acts. But direct marketing is also a legitimate interest, raising a potentially much broader category against which the individual’s rights would be weighed. Depending on how the “legitimate interests” provision is interpreted, it could create a major loophole allowing data collectors to avoid seeking consent. One safeguard is that the EU member states will still need to apply and enforce the regulation in a way that ensures respect for people’s human rights found in the Charter of Fundamental Rights of the European Union.

  1.  What problems will the GDPR not be able to solve?

The EU regulation will not curtail large-scale government surveillance, as it allows for government surveillance under broad exemptions. Government agencies can process personal data without consent if there is a “national security,” “defense,” or “public security” concern, terms the regulation does not define. As the EU’s Court of Justice has established, however, such terms do not provide carte blanche for countries to do whatever they like. International and regional human rights laws (and any national regulations that do not conflict with the EU regulation) still apply to limit the surveillance and data processing activities of intelligence and law enforcement agencies.

However, many European states have expanded their surveillance laws in recent years, undermining protections for privacy and other human rights. In the coming years, the EU Court of Justice is likely to be called on to delineate the regulation’s state interest exceptions in the context of EU, European, and international human rights law.

The strengthened data protections under the EU regulation also highlight how much weaker US data protection regulations are in comparison. It also exacerbates concerns about transfers of EU data to the US under the Privacy Shield agreement. Under EU law, US companies can’t transfer EU personal data to the US unless they show it will be protected in ways “essentially equivalent” to protections in Europe. In a 2015 case against Facebook brought by a privacy advocate, Max Schrems, the EU’s top court invalidated an agreement allowing such transfers, citing concerns that US intelligence agencies could access European data indiscriminately, without meaningful redress if agencies violated rights.

Under pressure to restore cross-Atlantic data flows, in July 2016, the US Commerce Department and the European Commission reached a new deal, the Privacy Shield, with promises of stronger data protection. The deal relies on written assurances by the US director of national intelligence that European data won’t be subject to “indiscriminate mass surveillance.”

However, this deal was flawed from the start since Privacy Shield doesn’t prevent dragnet surveillance of European data. As a result, Human Rights Watch contends that US surveillance laws and practices make the Privacy Shield invalid.

  1. What happens if companies and other institutions don’t comply with the GDPR?

The EU regulation imposes stiff penalties on public and private sector organizations that violate its terms. For example, regulators can fine companies up to €20 million or 4 percent of annual global turnover (revenue) for non-compliance, whichever is larger.   

  1. What effect will the GDPR have outside the EU?

The EU regulation is likely to become a de facto global standard, much as the previous European Data Protection Directive did, because it will apply to any organization that collects or processes the data of EU citizens, regardless of where the organization is based or where the EU data is processed. It is also possible that non-European countries will copy some or many of its protections as they modernize or establish data protection laws.

The GDPR may become the standard many organizations follow by default everywhere, or at least elements of it. Some multinational companies may choose to apply the EU regulation to everyone worldwide, while others may attempt to identify and apply a separate set of rules for people in the EU. For example, Microsoft, Apple, and Twitter announced that they would extend at least some of the regulation’s protections to their customers worldwide, with varying degrees of detail about which provisions would be applied. Facebook has also said it will extend the GDPR’s protections “in spirit” to users located outside the EU, but has stopped short of a commitment to apply the regulation globally. At the same time, the firm took steps to ensure that Facebook users in Africa, Asia, Australia, and Latin America may not fall under the regulation’s ambit.

Still other businesses may exit the EU market altogether or temporarily block people in the EU while they work to come into compliance. In other cases, systems developed in response to the EU regulation, like data portability, could be easily offered for users outside Europe once they are in place.

All countries should adopt comprehensive data protection laws that place individuals’ human rights at their center. The GDPR is not perfect, but it is one of the strongest data protection regime in force anywhere in the world. Governments should regulate the private sector’s treatment of personal data with clear laws, and limit companies’ collection and use of people’s data to safeguard rights.

  1. What happens next with the GDPR?

In recent weeks, many companies and other institutions have sent out a flurry of notices about changes to their terms of service and privacy policies in preparation for the EU regulation’s deadline. Yet some of corporate notices have raised questions about whether companies are already circumventing the spirit of the regulations. For example, the EU regulation requires companies to get informed consent from users before collecting or using their data. But journalists previewing Facebook’s privacy policy consent notices criticized them for being designed to encourage unthinking (rather than informed and meaningful) consent and for failing to provide users adequately detailed controls over their data.

On April 30, the EU’s top data protection official, European data protection supervisor Giovanni Buttarrelli, warned regulators to be “vigilant about attempts to game the system,” pointing to the stream of privacy policy updates that appeared to press users to consent to broad digital tracking as a “take-it-or-leave-it proposition.” This warning underscores the difficulty of ensuring meaningful, informed consent, even with enhanced transparency.

The GDPR will most likely lead to a flood of court cases and enforcement actions as data protection authorities and companies contest the contours of the new rules and the meaning of ambiguous terms. On May 25, privacy advocate Max Schrems had already filed the first complaints against Google and Facebook in France, Belgium, Germany, and Austria alleging failure to give European users specific control over their data. Schrems contends that the companies’ all-or-nothing approach to their terms of service is a form of “forced consent.” If successful, the complaints could result in up to €7.6 billion (around US$8.8 billion) in fines.

Effective implementation, monitoring, and enforcement are now needed to ensure that the GDPR truly protects the personal information that people share with Internet and technology companies, governments, and others.

  1. What impact will the GDPR have on freedom of expression? 

The regulations provide for a right to erasure [Art. 17]. This provision expands what had become known as the “right to be forgotten” that the EU Court of Justice had established in 2014 in a case against Google Spain. Under the GDPR, individuals can ask companies to erase personal data in specific circumstances: for example, if the data is no longer necessary for the purposes for which it was collected; if the individual withdraws consent or objects and there is no overriding justification for keeping it; or if the data was otherwise unlawfully processed in breach of the GDPR. This right also applies if the personal data has been made public, raising considerable implementation difficulties given the ease with which online information can be copied and shared across multiple websites in various jurisdictions.

The rules provide exceptions, including if the data processing is necessary for the exercise of freedom of expression and information or for archival or research purposes. However, these exceptions are not well defined in the GDPR, and are left for national legislation to elaborate. Because private platforms risk penalty for non-compliance, the provision may tend to encourage unnecessary or excessive take-downs of content, infringing freedom of expression. In addition, leaving determinations about when processing is necessary for freedom of expression (and other public interest grounds) to the discretion of companies, rather than impartial tribunals, means there is little procedural recourse for those who wish to continue to have access to information that is removed.

The “right to be forgotten” developed in EU Court of Justice rulings has been criticized for enabling people to suppress truthful, non-defamatory information that simply may be unflattering. For example, people in positions of public trust (such as elected officials, priests, and financial professionals) have attempted to use the right to be forgotten to remove news articles discussing their previous criminal convictions from Google search results.

The contours between data protection and freedom of expression will continue to be contested as individuals invoke the GDPR’s right to erasure.

Finally, the EU regulation is not designed to address the spread of disinformation, hate speech, or other illegal content online.

  1. What else needs to be done to protect data and the right to privacy?

The GDPR is a vital step toward stronger privacy protections. However, it will not be effective without interpretation, implementation, and enforcement.

National data protection authorities will need to rigorously respond to complaints, promptly investigate breaches, and actively pursue investigations to enforce the provisions. Many data protection authorities are poorly resourced, particularly in comparison to large companies, and lack the capacity to play a comprehensive enforcement role. Member states should allocate appropriate financial and human resources to data protection authorities.

Even with strong enforcement, there are still many structural challenges to achieving the GDPR’s vision of data privacy and control. For one, while the regulation requires consent before companies can collect or process data, meaningful informed consent is difficult to achieve without choice. Many large online services have few real competitors, so users are faced with either consenting to a social network’s terms or missing out on a central component of modern social or professional life. Though the Schrems case may force some positive changes, the GDPR doesn’t fully address the effects of this kind of monopoly power.

In addition, informed consent will only become more elusive over time as advertising ecosystems become more complex. The EU regulation doesn’t directly challenge ad-driven business models that invite users to trade their personal data for free online services like email, social networking, or search engines – all while using that data to create detailed profiles to sell to advertising networks. The average user may consent to data processing without a true understanding of the complexities of how their data will be used, despite the regulation’s requirement of clear privacy notices. The GDPR’s approach to consent may make it more difficult for future Cambridge Analyticas to gain unsanctioned access to data, but it is far from clear whether the regulation can fully prevent unexpected or abusive use of personal data, such as for “psychometric” election advertising. Human rights are a minimum standard that cannot be waived by consent, even if all potential uses of data could be foreseen. Ultimately, the digital society may require many more substantive protections than a consent-based model can provide.

Posted: January 1, 1970, 12:00 am

After nearly 16 months behind bars, trade union leaders Nurbek Kushakbaev and Amin Eleusinov are finally back home with their families in western Kazakhstan.

Nurbek Kushakbaev handcuffed in an Astana court. Astana, April 7, 2017.

© 2017 Timur Aitmukhanbetov (RFE/RL)

Kushakbaev and Eleusinov were arrested on January 20 last year after participating in a peaceful workers’ protest against the unjustified forced closure of the country’s main independent union group, the Confederation of Independent Trade Unions of Kazakhstan (KNPRK). Early last month, courts granted Kushakbaev and Eleusinov parole, and they were released from prison two weeks later.

Kazakhstan has long violated workers’ rights, but the government is gaining a reputation at the international level for cracking down on freedom of association in the workplace and the right to organize – rights enshrined in key conventions of the International Labour Organization (ILO), to which Kazakhstan is party.

Amin Yeleusinov.

© 2017 Sania Toiken (RFE/RL)

The trade unionists’ release on parole coincided with a high-level mission to Kazakhstan by the ILO, which in 2017 criticized the country’s “persistent lack of progress” in addressing worker abuses and demanded the Kazakh government take steps to improve, including amending the country’s restrictive 2014 trade union law and letting the KNPRK go about its work in peace. But so far Kazakhstan has taken no meaningful steps to address these, or other, violations noted by the ILO.

And the ILO is not the only body that’s voiced its concerns. Last December, the European Parliament condemned the forced closure of KNPRK and urged Kazakhstan to revise its problematic trade union and labor laws. The United States Trade Representative is set to review Kazakhstan’s labor rights record later this month too.

If the US trade representative finds that Kazakhstan is violating internationally protected workers’ rights (which it should, given Kazakhstan’s track record), Kazakhstan could lose more than just its reputation. Such a decision would have significant financial consequences for Kazakhstan, as the outcome could affect duty-free trade Kazakhstan currently enjoys with the US.

The Kazakh authorities should now have Kushakbaev’s and Eleusinov’s convictions quashed and lift the ongoing restrictions on their engagement in trade union activism – as well as those imposed on KNPRK President Larisa Kharkova. It should also reform its deeply flawed trade union law, as the ILO has been demanding for four years.

This would help the country shed its terrible reputation for labor rights, but also be the right thing to do for workers across Kazakhstan.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

(Washington, DC, June 4, 2018) – The Justice Department’s inspector general should investigate the Federal Bureau of Investigation’s exaggerated and flawed claims about the challenges strong encryption poses to investigations, Human Rights Watch said today. On May 22, 2018, the Washington Post reported that the FBI repeatedly cited inflated statistics about the number of cellphones whose data it could not access because of encryption.

“The FBI has been pressuring Congress and tech companies to undermine everyone’s cybersecurity based on faulty facts and bad math,” said Cynthia Wong, senior internet researcher at Human Rights Watch. “The report shows that law enforcement claims of ‘going dark’ should be met with a healthy dose of skepticism.”

In a joint letter released on June 4, 21 human rights and civil liberties organizations including Human Rights Watch urged the Justice Department’s inspector general to investigate how these inaccurate representations came about, along with officials’ use of the flawed numbers even after the FBI discovered the miscalculation.

In the last year, top officials at the Justice Department and the FBI have claimed in congressional testimony and public statements that the FBI was unable to access data stored on 7,775 locked and encrypted devices. Mobile phone makers employ encryption as a security measure to protect data stored on the device from cybercriminals and other threats.

The FBI has now disclosed that the number of inaccessible phones is closer to 1,200, though that estimate is still expected to change as the agency reviews its methodology. It has blamed “programming errors” that “resulted in significant over-counting of mobile devices reported.” Though the problem was discovered in April, Attorney General Jeff Sessions continued to cite the flawed figure in a May 7 speech.

FBI Director Christopher Wray and other officials repeatedly used the inaccurate statistic as evidence that investigations are “going dark” – the idea that strong encryption prevents law enforcement from accessing digital data. To address the problem, officials have pressed policymakers to force companies to build “back doors” – deliberate weaknesses – into encrypted devices or services, or for companies to do so voluntarily.

Yet such an approach would undermine human rights and the security of digital devices used every day by hundreds of millions of people, the vast majority of whom will never be suspected of wrongdoing, because cyberthieves, malicious hackers, abusive governments, and others could exploit those same back doors. As cybersecurity experts and former intelligence and homeland security heads have pointed out, encryption back doors would undermine security, not promote it. Most recently, even the nominee for National Counterintelligence and Security Center director, William Evanina, recommended during his confirmation hearing that policymakers encrypt unclassified phone communications for security purposes.

This is not the first time the FBI’s arguments against encryption have been called into question. In February 2016, authorities sought a court order to force Apple to build a back door into an iPhone that was used by one of those involved in a 2015 shooting in San Bernardino. Apple challenged the order, and authorities eventually withdrew it because they were able to access the phone’s data without Apple’s help through a third-party contractor.

In court filings, the FBI claimed it was necessary to compel the company’s assistance because the officials were technically unable to access the San Bernardino phone. However, a Justice Department inspector general inquiry found that the FBI had not exhausted all possible avenues to unlock the phone before pursuing the extraordinary court order.

A March 2018 inspector general report suggests that the FBI’s lead investigator chose not to consult with colleagues or seek help from external FBI vendors. The report stated that FBI officials in charge of the case expressed “frustration” that other officials found an outside vendor that could access the data on the iPhone, since this meant the case against Apple could not proceed – disrupting the agency’s “‘poster child’ case for the Going Dark challenge.”

Still other recent media reports should cast more doubt on FBI claims of technical infeasibility in accessing encrypted data on devices. The Israeli company Cellebrite now claims it can unlock likely any iPhone available on the market, as well as other devices running Apple operating systems, without the phone owner’s assistance. Cellebrite is a vendor that sells to the US government and, media reports say, has contracts with the FBI, Immigration and Customs Enforcement, and Customs and Border Protection, as well as state law enforcement agencies.

Another vendor, Grayshift, has, media reports say, provided solutions to unlock an unlimited number of encrypted iPhones to state and local police departments for as little as US$30,000. The FBI is purportedly seeking to acquire Grayshift’s GrayKey systems.

The availability of these tools raises separate and significant questions about whether adequate safeguards are in place to ensure their lawful use and protections for rights. It also illustrates the cybersecurity challenges and the cat-and-mouse game between security engineers who want to protect users and criminals who seek to profit from user data or stolen phones. The security weaknesses Cellebrite and Grayshift exploit to unlock phones can also be used by bad actors if they are not disclosed to Apple so the company can fix them.

Cell phone makers will never be able to secure their phones 100 percent, but the US government shouldn’t be in the business of hamstringing efforts to protect users from cybercriminals by demanding encryption backdoors, Human Rights Watch said. 

“The stakes are high for the hundreds of millions of people who rely on encryption to protect them from wrongdoers every day,” Wong said. “The FBI needs to remember that what it does to break encryption will be copied by countless others who have nefarious intent. Unfounded scare tactics have no place in this debate and the roots of the FBI’s flawed claims should be scrutinized.”

Posted: January 1, 1970, 12:00 am

Dear Inspector General Horowitz,

The undersigned civil society organizations dedicated to protecting civil liberties, human rights, government accountability, and innovation and security online, write to urge you to investigate the failures that led to the Federal Bureau of Investigation (FBI) and Justice Department’s inaccurate representations of the number of devices that the FBI could not unlock due to encryption, as recently reported in the Washington Post.[1] We also ask that you investigate Justice Department officials’ repeated use of those flawed statistics after the FBI discovered the miscalculation.

In sworn testimony before Congress and in public remarks, top-ranking officials from the Justice Department and the FBI claimed that in 2017, the FBI was unable to gain access to content stored on 7,775 encrypted devices. However, the Washington Post article revealed that, due to what the FBI described as a “programming error,” the number is closer to 1,200 devices.  

For years, the FBI has claimed that it is “going dark,” because the increased use of encryption to protect devices places the contents of communications beyond its reach and severely impedes its investigations.  During this time, some FBI officials have advocated for a technical mechanism that would guarantee law enforcement exceptional access[2] to encrypted data – what civil society and security experts refer to as an “encryption backdoor.” Domestic and international civil society organizations, security researchers, and academics,[3] as well as some high ranking U.S. national security officials,[4] have all voiced strong opposition to encryption backdoors. They have noted that any exceptional access mechanism could also be used by malicious hackers, foreign adversaries or other bad actors, and that such a mandate would pose serious threats to cybersecurity, privacy, human rights, and the U.S. economy.

The Justice Department and the FBI acknowledge the grave security implications of their requests, but they have nonetheless suggested that it is imperative that law enforcement officials be able to access encrypted communications and information stored on devices to protect public safety.[5] While Justice Department and FBI officials did not demand a legislative solution during the Obama Administration, Deputy Attorney General Rosenstein and FBI Director Wray have pushed for a policy change to mandate exceptional access to data stored on devices.[6] To prove the extent of the “going dark” problem and substantiate demands for an encryption backdoor, the Justice Department and the FBI relied heavily on their account that the FBI was locked out of almost 7,800 phones. Given the severe negative effects of an encryption backdoor mandate, the FBI’s miscalculation is particularly concerning.

We are also troubled by how the Justice Department responded when it learned of the FBI’s error. The Washington Post story states that the FBI became aware of the miscalculation approximately a month before the story was published, on May 22. Despite the FBI learning in April that the number of devices it claimed it could not unlock had been grossly inflated, Attorney General Jeff Sessions continued using that flawed statistic in public remarks before the Association of State Criminal Investigative Agencies on May 7.[7] The following day, a Justice Department official repeated the inflated number to a Bloomberg Law reporter.[8] It is very problematic that, weeks after learning of the error, the flawed statistics would still be used.

Given the serious concerns raised by the FBI’s miscalculation and the Justice Department’s conduct after learning of the miscalculation, we urge you to investigate:

  1. The causes that led the FBI to make such a significant error, how it was identified, and why it took so long to identify; 
  2. Why Justice Department officials, including the Attorney General, used the data point when it was known to be false, and whether, after learning of the error, the Attorney General, other Justice Department, or FBI officials continued improperly using it in public remarks, conversations, or meetings (internal and external); and
  3. What measures the Justice Department and the FBI have taken to ensure that they inform lawmakers and the public of this significant miscalculation, both prior and subsequent to the publication of the Washington Post story, and whether those steps were sufficient.

This investigation would be an appropriate follow-up to your recent report regarding the FBI’s conduct in connection with the encrypted phone in the San Bernardino shooting investigation. In that report, your office has already found that some in the FBI did not appear to be  interested in vigorously pursuing investigative leads that might undermine its campaign against the “going dark” problem, and the report raises questions about the FBI’s credibility in the encryption debate. Specifically, your report concluded that the FBI chose “not [to] pursue all possible avenues in the search for a solution” when trying to unlock the San Bernardino shooter’s iPhone. It stated that the Chief of the Cryptographic and Electronic Analysis Unit became “frustrated” and “definitely not happy” when he learned that the Remote Operations Unit had engaged a trusted vendor and identified a solution because it interfered with the FBI’s litigation strategy.[9] This context shows how important it is to conduct an investigation into the FBI’s miscalculation and obtain answers to the above questions.

If you have any questions, please contact Robyn Greene, Policy Counsel and Government Affairs Lead at New America’s Open Technology Institute, at greene@opentechinstitute.org.

 

Sincerely,

Access Now

American Civil Liberties Union

Center for Democracy & Technology

Council on American-Islamic Relations (CAIR)

Defending Rights & Dissent

Demand Progress Action

Electronic Frontier Foundation

Electronic Privacy Information Center (EPIC)

Engine

Freedom of the Press Foundation

FreedomWorks

Free Press

Government Accountability Project

Government Information Watch

Human Rights Watch

Liberty Coalition

National Association of Criminal Defense Lawyers

New America’s Open Technology Institute

Restore the Fourth

R Street Institute

TechFreedom

 


[2] Similar to other publications, including the 1996 National Academies CRISIS report and “Keys Under Doormats: Mandating Insecurity by Requiring Government Access to All Data and Communications,” we use the term “exceptional access” to “stress that the situation is not one that was included within the intended bounds of the original transaction.” K. W. Dam et al., Cryptography’s Role in Securing the Information Society, 80 (1996); Harold Abelson et al., Keys Under Doormats: Mandating Insecurity by Requiring Government Access to All Data and Communications, 1 J. Cybersecurity, no. 1, at 69 (2015).

[3] Letter from Civil Society Organizations, Companies and Trade Associations, Security and Policy Experts to President Barack Obama (May 19, 2015) (available at https://static.newamerica.org/attachments/3138--113/Encryption_Letter_to_Obama_final_051915.pdf; https://securetheinternet.org/).

[4] See Top Counter Intelligence Official Recommends Govt. Officials Encrypt Classified Calls, C-SPAN (May 15, 2018), https://www.c-span.org/video/?c4729458/top-counter-intelligence-official-recommends-gov-officials-encrypt-unclassified-calls; Jenna McLaughlin, NSA Chief Stakes Out Pro-Encryption Position, In Contrast to FBI, The Intercept (Jan. 21, 2016), https://theintercept.com/2016/01/21/nsa-chief-stakes-out-pro-encryption-position-in-contrast-to-fbi/; Ash Carter, Sec. of Defense, Remarks with Ted Schlein in San Francisco, Calif. (Mar. 2, 2016), available at https://www.defense.gov/News/Transcripts/Transcript-View/Article/684858/remarks-by-secretary-carter-in-a-fireside-chat-with-ted-schlein-in-san-francisc/; Mike McConnell et al., Op-Ed., Why the Fear Over Ubiquitous Data Encryption is Overblown, Wash. Post (Jul 28, 2015), https://www.washingtonpost.com/opinions/the-need-for-ubiquitous-data-encryption/2015/07/28/3d145952-324e-11e5-8353-1215475949f4_story.html?utm_term=.831178a04269; Tom DiChristopher, U.S. Safer with Fully Encrypted Phones: Former NSA/CIA. Chief, CNBC (Feb. 23, 2016), https://www.cnbc.com/2016/02/23/us-safer-with-fully-encrypted-phones-former-nsa-cia-chief-michael-hayden.html.

[5] In an October 2017 speech on encryption, Deputy Attorney General Rosenstein said, “Encryption is a foundational element of data security and authentication. It is essential to the growth and flourishing of the digital economy, and we in law enforcement have no desire to undermine it.” Rod Rosenstein, Deputy Attorney General, Remarks at the U.S. Naval Academy in Annapolis, Md. (Oct. 10, 2017), available at https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-remarks-encryption-united-states-naval.

[6] See Joe Mullin, FBI Chief Comey: “We Have Never Had Absolute Privacy”, Ars Technica (Aug. 9, 2016), https://arstechnica.com/tech-policy/2016/08/fbi-chiefs-complaints-about-going-dark-arent-going-away-will-be-revived-next-year/; Natasha Lomas, FBI Director Comey Backs New Feinstein Push for Decrypt Bill, TechCrunch (May 3, 2017), https://techcrunch.com/2017/05/03/fbi-director-comey-backs-new-feinstein-push-for-decrypt-bill/; Christopher Wray, Director, FBI, Remarks to FBI Int’l Conf. on Cyber Security at Fordham Univ., N.Y. (Jan. 9, 2018), available at https://www.fbi.gov/news/speeches/raising-our-game-cyber-security-in-an-....

[7] After those remarks were delivered, the Justice Department edited the published text of the Attorney General’s speech to reflect the error. Jeff Sessions, Attorney General, Remarks to the Ass’n of State Crim. Investigative Agencies in Scottsdale, Ariz. (May 7, 2018), available at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-association-state-criminal-investigative; Archived version of those remarks on Archive.org, available at https://web.archive.org/web/20180507183119/https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-association-state-criminal-investigative.

[8] Daniel R. Stoller, FBI Encryption Snafu Highlights Need for Compromise with Tech, Bloomberg Law (May 24, 2018), https://biglawbusiness.com/fbi-encryption-snafu-highlights-need-for-compromise-with-tech/?utm_source=bloomberg-menu.

[9] Office of the Inspector General, U.S. Dept. of Justice, A Special Inquiry Regarding the Accuracy of FBI Statements Concerning its Capabilities During the San Bernardino Terror Attack Investigation (2018), available at https://oig.justice.gov/reports/2018/o1803.pdf.

Posted: January 1, 1970, 12:00 am

A workers unloads a truckload of logs in Howe Sound near Squamish, British Columbia, Canada April 25, 2017.

© 2017 Reuters
Today, a US federal court heard arguments in a lawsuit against Greenpeace that raises serious concerns about freedom of expression.

In May 2016, Resolute Forest Products, a Canada-based logging company, filed a CAD$300 million lawsuit against Greenpeace and Stand.earth, as well as five staff members, under a US racketeering law enacted in 1970 and used to prosecute the mafia. This legal strategy has lead nongovernmental organizations and others to accuse Resolute of trying to silence environmental activists.

The lawsuit was apparently filed in response to one of its campaigns aimed at stopping what it considers is unsustainable logging in the Boreal forest, one of the world’s largest forests and carbon sinks. Resolute alleges not only that it has suffered immense financial harm as a result of Greenpeace’s campaigning, but that Greenpeace itself is a “global fraud” focused wholly on raising money for itself through fraudulent and deceitful campaigns.

Why should we pay attention to this lawsuit?

Because a number of environmental and human rights groups claim that it is emblematic of an abusive legal strategy to muzzle activists that speak against destructive corporate practices, known as “strategic lawsuits against public participation,” or SLAPPs. Greenpeace sees the suit as a brazen attempt to either bully it into silence or secure its financial ruin.

Greenpeace US and others were also sued over their activism surrounding the Dakota Access Pipeline. Other environmental activists in Canada, Ecuador, South Africa, and elsewhere are saying that SLAPPs are being used to undermine their work.

SLAPPs are meant to drain activists’ resources and intimidate them into silence. When saddled with a multimillion-dollar lawsuit, organizations are forced to divert their attention away from their environmental work and to use scarce resources to defend themselves in court. SLAPPs can also take an emotional toll on the activists named in lawsuits.

In a 2017 report on SLAPPs, the former United Nations expert on freedom of assembly wrote that SLAPPs pose significant threats to the rights of activists to freedom of expression, of assembly, and of association. The UN expert raised particular concerns about the potential use of the US racketeering law at issue in the Resolute case, the Racketeer Influenced and Corrupt Organizations Act (RICO), as a vehicle for abusive SLAPP suits. This is because RICO allows corporations to label advocacy groups as “criminal enterprises” and claim enormous amounts in damages.

Freedom of expression is a pillar of democracy. Countries should examine their laws and ensure that they do not facilitate the abuse and proliferation of SLAPP lawsuits. In the face of serious threats to our environment, such as biodiversity loss, climate change, and chemical pollution, it is critical for environmental activists and groups to be able to organize and freely express themselves without the threat of baseless lawsuits.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Summary

Israel’s largest banks are providing services that help support, maintain, and expand unlawful settlements by financing their construction in the occupied West Bank, including partnering with developers to build homes on land unlawfully seized from Palestinians. The banks’ involvement is direct and substantial: they acquire a property interest in the development projects and shepherd them through to completion. The transfer by the occupier of members of its civilian population into the occupied territory, and the deportation or transfer of members of the population of the territory, are war crimes. The activities of banks finance a critical step in this transfer.

The activities of these banks also raise concerns about pillage, due to land seizure policies by the Israeli military that make it difficult to ascertain whether the landowners have freely given their consent.

In addition to construction projects, banks provide loans to settlement councils (local authorities) and mortgage loans to home-buyers in settlements and operate ATMs and bank branches there. Israeli banks generally do not offer these services to Palestinians, because Palestinian residents of the West Bank are forbidden by military order to enter settlements, except as laborers bearing special permits. Palestinian and foreign banks provide services to Palestinian customers outside the settlements.

Most of Israel’s largest banks are providing services that help support, maintain, and expand unlawful settlements by financing their construction in the occupied West Bank. 

Settlements are unlawful under international humanitarian law. They contribute to a discriminatory regime in which Israeli authorities restrict and stunt Palestinian economic development, while subsidizing and supporting Israeli settlements built on land unlawfully seized from Palestinians. International humanitarian law forbids an occupying power from using land except for military purposes or for the benefit of the local population living under occupation.

Most Israeli banks finance or “accompany” construction projects in the settlements by becoming partners in settlement expansion, supervising each stage of construction, holding the buyers’ money in escrow, and taking ownership of the project in case of default by the construction company. Most of that construction takes place on “state land,” which can include land unlawfully seized from Palestinians and which Israel uses in a discriminatory fashion, allocating one third of state land in the West Bank, not including East Jerusalem, to the World Zionist Organization and just 1 percent for use by Palestinians.

Settlements inherently contribute to serious violations of international human rights and humanitarian law.  Companies, including banks, that conduct business in or with settlements cannot mitigate or avoid contributing to these abuses, because the activities they conduct take place on unlawfully seized land, under conditions of discrimination, and through a serious violation of Israel’s obligations as an occupying power.

Human Rights Watch therefore believes that, in order to comply with their human rights responsibilities, banks, like other businesses, should cease doing businesses in or with Israeli settlements. This means they should stop locating or carrying out activities inside settlements, financing, administering, or otherwise supporting settlements or settlement-related activities and infrastructure, and contracting to purchase settlement-produced goods, because, in Human Rights Watch's view, these activities inherently contribute to serious abuses.

 

Recommendations

To Israeli Banks

  • Stop providing services in or to settlements, including financing construction projects, providing mortgage loans and loans to local authorities, and operating bank branches and ATMs in settlements. Refrain from opening new branches in settlements and take the necessary steps to close existing branches.

To the Government of Israel

  • Dismantle all Israeli civilian settlements in the West Bank.
  • Until that occurs, dismantle the two-tiered system that discriminates against and otherwise systematically violates the rights of Palestinians in the West Bank.

To the United Nations Office of the High Commissioner for Human Rights

  • Scrutinize the conduct of Israeli banks to determine their inclusion in the database it is preparing on companies doing business with Israel’s illegal settlements.

To the Bank of Israel

  • Take all measures within its authority to limit the scope of any bank servicing Israeli settlements in the West Bank.[1] That includes refusing requests to open additional service points (bank branches or ATMs) in Israeli settlements, approving any requests to close settlement service points, and approving policies proposed by banks that would limit or eliminate services provided in or on behalf of settlements.

Methodology

Human Rights Watch has reviewed minutes of meetings of settlement local and regional authorities, reports from construction companies, company profiles of Israeli banks, promotional materials advertising settlement homes, and information published by the Bank of Israel about banking service points in settlements.  Human Rights Watch interviewed by telephone an expert in Israeli property law and an Israeli real estate agent with knowledge of land deals in settlements.

Human Rights Watch wrote to Bank Hapoalim, Bank Leumi, Bank Discount, Mizrahi Tefahot, the First International Bank of Israel (FIBI), Igud Bank, and Bank of Jerusalem, the seven largest Israeli banks, which are mentioned in this publication, requesting details of banking activities in the settlements and information about their understanding of their human rights responsibilities.[2] Bank Leumi referred Human Rights Watch to the Association of Banks in Israel, a trade association that declined to comment. None of the other banks responded. Human Rights Watch wrote to the Israeli Civil Administration, the branch of the military in charge of civilian issues in the West Bank, to request information about the status of land on which new settlement houses are being constructed, and received explanations, which are included in the annex to this report. It also wrote to three Israeli construction companies building new housing projects in the settlements of Alfei Menashe and Elkana.[3] None of the construction companies provided a substantive response.

Human Rights Watch also visited bank branches in Israeli settlements, the sites of five of the construction projects, and three adjacent Palestinian villages. Human Rights Watch interviewed Palestinian local officials and reviewed Palestinian and Israeli maps of construction projects as well as Palestinian and Israeli land registration documents, tax registration documents, and permits issued by the Israeli military. It obtained maps, aerial photos, and explanations of the status of the land from the Israeli nongovernmental organization (NGO) Kerem Navot,[4] which researches land use in the West Bank, including by obtaining and analyzing official Israeli maps and aerial photos.

Human Rights Watch also examined information on banking activities in Israeli settlements published by the Israeli NGO Who Profits,[5] the Danish media and research group Danwatch,[6] and a coalition of French NGOs.[7]

All interviewees freely consented to be interviewed. Human Rights Watch explained to them the purpose of the interview and how the information gathered would be used and did not offer any remuneration.

 

I. Why Banking in Israeli Settlements
Violates International Law

Human Rights Watch has previously documented how businesses in Israeli settlements in the West Bank contribute to and benefit from serious violations of international human rights and humanitarian law: settlements are located on land that has been unlawfully taken from Palestinians, exploit natural resources that belong to the Palestinian population of the territory but are allocated in a manner that discriminates in favor of Israelis, and are part of a discriminatory regime that privileges Israeli businesses while stymying the development of Palestinian businesses and social and cultural institutions and infrastructure.[8]  Transferring an occupying power’s civilian population into occupied territory is a war crime, as is the deportation or transfer of any part of the population of the territory within or outside the territory. Settlements, which are created by these unlawful population transfers, are inextricably tied to restrictions on Palestinian freedom of movement, unlawful seizure of Palestinian land, and home demolition and displacement.

Settlement businesses depend on and benefit from Israel’s unlawful confiscation of Palestinian land and other resources and contribute to the well-being and growth of settlements.[9] Settlement-related activities also directly benefit from Israel’s discriminatory policies in planning and zoning,[10] the allocation of land and natural resources,[11] financial incentives, and access to utilities and infrastructure. These policies result in the forced displacement of Palestinians[12] and place Palestinians at an enormous disadvantage in comparison with settlers. The World Bank estimates that restrictions on Palestinian economic development and construction in Area C alone, where most settlements are located, cost the Palestinian economy US$3.4 billion annually, a third of Palestinian gross domestic product (GDP). [13]

 

II. The Human Rights Responsibilities of Banks

Following international standards articulated in the United Nations Guiding Principles on Business and Human Rights (UNGPs), businesses are expected to undertake human rights due diligence to identify and mitigate contributions to human rights violations of not only their own activities but also activities to which they are directly linked by their business relationships. They are also expected to respect international humanitarian law standards. Businesses are expected to take effective steps to avoid or mitigate potential human rights harm and to consider ending business activity where severe negative human rights consequences cannot be avoided or mitigated.

Based on extensive prior research,[14] it is Human Rights Watch's view that adequate due diligence would show that business activities in or in contract with Israeli settlements or with settlement businesses contribute to rights abuses[15] and that businesses cannot mitigate or avoid contributing to these abuses so long as they engage in such activities, as they contribute to the operation and expansion of settlements that violate international law. In the view of Human Rights Watch, the context of human rights abuses to which settlement business activity contributes is so pervasive and severe that businesses should cease carrying out activities inside or for the benefit of settlements, including financing, providing services to, or otherwise supporting settlements or settlement-related activities and infrastructure.

Human Rights Watch wrote to seven Israeli banks about their human rights policies and procedures and contacted them about their operations in relation to the settlements.  None of the seven Israeli banks contacted responded to questions regarding any steps they have taken to implement the UNGPs.  Human Rights Watch did not find publicly available documents relating to such implementation. Bank Hapoalim, Bank Leumi, Bank Discount, and Mizrahi Tefahot are members of the UN Global Compact, which includes a commitment to respect and support “internationally proclaimed human rights” and to avoid complicity in human rights abuses. Each bank publishes an annual corporate social responsibility report.[16]  None of the 2016 editions of these reports, the most recent, specifically addresses activities in Israeli settlements.

 

III. Israeli Banking Activities Enable
and Facilitate Settlements

Israeli banks provide a variety of services in settlements in the West Bank, mostly concentrated in the largest settlements. They do not operate directly in Palestinian towns in the West Bank, where Palestinian and foreign banks provide services.[17]

Partnering in New Settlement Construction

International humanitarian law allows an occupying power to use land in the occupied territory for two purposes only: the military needs of the occupying power or the benefit of the local population living under occupation.[18] Any other use of the land is a violation of the obligations of the occupying power, which is forbidden to exploit the territory for economic or civilian use.[19] In addition, transferring the occupying power’s civilians into the occupied territory is a war crime.[20] For these reasons, it is unlawful for the occupying power to allow or assist the building of homes or any other structures in the West Bank for the use of Israeli civilians, regardless of the designation of particular tracts of land. In addition, as Human Rights Watch has documented, the mechanism that the Israeli military uses to designate land for settlement construction not only discriminates against Palestinians, but in many cases also allows for the expropriation of private Palestinian property for exclusive Israeli use.[21]

New neighborhood in the Israeli settlement of Etz Efraim, near the Palestinian village of Mas-ha.

© 2017 Human Rights Watch

Israeli banks often become active and direct partners in the projects themselves, rather than passive lenders, because of an Israeli law that limits the ability of developers to collect advance payments from buyers unless those developers obtain financial guarantees, in a framework known as “accompanying agreements,” as described below.[22] In other words, the involvement of banks in new construction projects in settlements is direct and substantial.

Like most Israeli legislation, the law requiring guarantees as a condition of receiving certain advance payments for new construction projects is territorial and therefore does not apply in the West Bank.[23] However, some Israeli developers specify in their contracts that the Israeli law regarding bank accompaniment of a project will apply to sale of properties in West Bank settlements, meaning they assume an obligation to obtain financial guarantees that can reassure buyers of the project’s financial soundness.[24]

Banks considering financing a new housing project will scrutinize its land registration, building permits, infrastructure, business plan, and expected profits. Under the terms of these “accompanying agreements,” a bank that chooses to partner in a construction project generally requires the developer to give the bank, as collateral, its rights in the property, and will then open a special account for the project and collect the buyers’ moneys directly into that account. The bank then authorizes the release of the buyers’ funds to the developer after verifying, via engineers and other professionals, that the construction has progressed sufficiently, and that such funds are properly allocated to project costs. In the event of bankruptcy or default by the project developer, the bank takes ownership of the property and usually seeks another developer to complete it. [25]

Numerous construction projects in Israeli settlements, especially apartment complexes in the larger settlements, are financed by Israeli banks. The text box below provides 16 examples of projects in which six of the seven largest Israeli banks are partners. The Israeli nongovernmental organization (NGO) Who Profits documented seven of these projects in a recent report.[26] These examples are far from exhaustive, and they do not imply that the named bank is more or less involved than other Israeli banks in expanding settlements. They are simply current projects for which Human Rights Watch was able to obtain information about the financing. The projects also appear in an interactive map prepared by Human Rights Watch.

Partnering in Construction Projects through Accompaniment Agreements

Name of Bank

Settlement

Construction Project

Description

Source of information about bank involvement

Bank Hapoalim

Efrat

“Ganei Tamar”[27]

50-unit housing project

August 24, 2017 phone conversation with construction company representative

Bank Hapoalim

Efrat

“Efrat Haptuha”[28]

24-unit housing project

August 14, 2017 phone conversation with construction company representative and Who Profits report[29]

Bank Hapoalim

Beitar Illit

“Mishkanot Traklin”[30]

40-unit housing project on Hill “B”

August 15, 2017 phone conversation with construction company representative

Bank of Jerusalem

Efrat

“Barkan Batamar”[31]

28-unit housing project in Givat Hatamar

August 24, 2017 phone conversation with construction company representative and Who Profits report

Bank Leumi

Alfei Menashe

“Amirei Nof”[32]

130-unit housing project in Givat Tal[33]

May 21, 2017 informational session at project office, Who Profits report, the construction company’s September 30, 2015 financial report[34] and a letter it wrote to the Israeli stock exchange[35]. Credit framework is 184,500,000 NIS.

FIBI

Beitar Ilit

“Ginot Minrav”[36]

90-unit housing project on Hill C

August 14, 2017 phone conversation with construction company representative and Who Profits report

Igud Bank

Elkana

“Tzamerot Elkana”[37]

50-unit housing project in northern neighborhood

August 10, 2017 phone conversation with construction company representative

Mizrahi Tefahot

Ariel

“Green Ariel”

96-unit project marketed as environmentally conscious housing

Brochure by the developer[38], 2015 site visit by Human Rights Watch and Who Profits report

Mizrahi Tefahot

Ariel

“Green in Ariel” [39]

36-unit project

Web site of Israeli company providing advice and services to the project[40]

Mizrahi Tefahot

Efrat

“Bustan Hadagan”

43-unit housing project

August 24, 2017 conversation with representative of construction company, web site of Israeli company providing advice and services to the project,[41] web site of construction company (noting bank accompaniment without naming bank) [42]

Mizrahi Tefahot

Efrat

In Givat Hatamar[43]

16-unit housing project

Web site of Israeli company providing advice and services to the project[44]

Mizrahi Tefahot

Elkana

“Ahdut Elkana”[45]

145-unit housing project[46]

August 14, 2017 phone conversation with marketing representative and web site of construction company.[47]

Mizrahi Tefahot

Elkana

“Mishkanot Elkana”[48]

106-unit housing project[49]

August 14, 2017 phone conversation with construction company representative

Mizrahi Tefahot

Kiryat Arba

“Nofei Kramim”[50]

98-unit housing project

August 24, 2017 phone conversation with construction company representative

Mizrahi Tefahot

Ma’aleh Adumim

“Ma’aleh Hadar”

155-unit housing project

2014 annual report by the developer[51] and Who Profits report. 40 million NIS credit framework. The bank holds as collateral development rights in project.

Mizrahi Tefahot

Ma’aleh Adumim

“Tzemah Hatzalaf”[52]

48-unit housing project

Web site of Israeli company providing advice and services to the project[53] and Who Profits report

Two Case Studies

Azzun and Alfei Menashe

Bank Leumi is “accompanying” or partnering with the Israeli company Zemach Hammerman, Ltd to build a new phase of a construction project, “Amirei Nof” (Treetop View), in the Israeli settlement of Alfei Menashe. According to the construction company’s report to the Tel Aviv stock exchange, the new phase will include 130 housing units in a five-building project in the “Givat Tal” neighborhood, southeast of the main built-up part of Alfei Menashe.[54] A promotional video by Zemach Hammerman advertises luxury apartments and penthouses in a “charming town in the center of Israel … with a breathtaking, pastoral view, among olive trees and blooming squills.”[55] Because the project is located inside a settlement, its housing units are off-limits to West Bank Palestinians, who are forbidden to enter settlements except as laborers bearing special permits.

Construction of the Amirei Nof housing project in the Israeli settlement of Alfei Menashe.

© 2017 Human Rights Watch

The bank signed an agreement with Zemach Hammerman Ltd. on June 17, 2015 to finance the project.[56] The company publicly lists a “banking corporation” as its partner in the project, and a sales representative confirmed to Human Rights Watch in a small group informational session on the housing project, that the partner is Bank Leumi.[57] The bank is supplying credit in the amount of 184.5 million NIS (US$53 million).[58] As part of that agreement, home-buyers make payments to Bank Leumi, and the bank conditions the extension of credit to the company on progress in getting building permits, completing various phases of construction, and marketing the apartments. The agreement grants Bank Leumi fees in the amount of 0.75 percent annually on the credit used, in addition to interest on that sum at the rate of prime plus 0.85 percent. It is also to receive an additional 0.2 percent annually on any unused portion of the credit extended.[59]

Alfei Menashe is separated from most of the rest of the West Bank by the separation barrier that Israel built, meaning that vehicles driven by Israeli drivers can access it from Israel without crossing a checkpoint, but vehicles driven by West Bank Palestinians cannot access it. The roads from Israel to Alfei Menashe contain no visible marker of crossing into the West Bank. At a small group informational meeting describing the Amirei Nof project, attended by a representative from Human Rights Watch, a prospective buyer insisted that Alfei Menashe was on the Israeli side of the so-called Green Line, Israel’s internationally recognized border. He had grown up in Alfei Menashe, he said, and was now interested in returning to live there as an adult but did not realize that it was located in the West Bank.

Alfei Menashe was constructed on lands that formed part of the Palestinian village of Azzun, primarily through a process in which the Israeli authorities seized land, declared it “state land,” and then built settlements on it. “State land” is a broad designation that also includes privately owned land whose ownership status Israel reclassified, mostly in the 1980s.[60] Israel has declared more than 750,000 dunams (75,000 hectares), or about 13 percent of the West Bank, excluding East Jerusalem, to be state land. International humanitarian law forbids an occupying power from using land – public or private – except for its security needs or the benefit of the local population. Yet according to the Israeli military, the Israeli authorities have allocated a third of the West Bank’s total state land to the World Zionist Organization, primarily for use by settlements, and less than 1 percent of state land for Palestinian use.[61]

According to maps maintained by the Israeli military authorities and given to the Israeli NGO Kerem Navot, Palestinian land records, and a letter from the Israeli military authorities, the Amirei Nof project is partially located on land that Israel declared “state land” in 1980 and partially located on land that had been state land under the Jordanian authorities prior to the Israeli occupation. Authorities appear to have rescinded the state land declaration for the eastern part of the site in 2014 as part of the work of the official “Blue Line Team” tasked with confirming or correcting previous designations,[62] perhaps because they determined that the land had already been designated state land under the Jordanian authorities, as Palestinian authorities in the Azzun village council told Human Rights Watch. In response to a query from Human Rights Watch, the Israeli Civil Administration, the branch of the military responsible for civilian matters in the West Bank, wrote that the eastern part of the site on which the project is being built is administered by the Supervisor of Government and Abandoned Property, a designation consistent with the land being state land prior to 1967. The Israeli Civil Administration said that construction on that land is permitted, insofar as it complies with a building plan approved in 1997.

View of the separation barrier and the Israeli settlement of Alfei Menashe from the Palestinian village of Azzun. 

© 2017 Human Rights Watch

The housing project is adjacent to and interspersed with plots that are still listed in the Israeli records as being privately owned by Palestinians. The Israeli authorities partially or entirely restrict access to those plots, which are blocked off from the owners’ homes by the separation barrier.

It should be noted that the classifications that the Israeli military assigns to the land do not change its status as occupied territory, to which international humanitarian law forbids the transfer of the occupying power’s civilian population, irrespective of whether or not the land is privately owned and irrespective of whether the owner has given consent. The Israeli military authorities may only use land in occupied territory – whether publicly or privately owned – for their military needs or for the benefit of the people living under occupation.

Murshed Abd al-Rahman Suleiman, a resident of Azzun, inherited, together with his siblings, about 90 dunams (nine hectares) of land on which his father used to grow wheat, barley, and lentils. Registration documents provided by the Palestinian Land Authority and maps provided by the Palestinian Ministry of Local Government show that the land is registered to the family. In the 1980s, the Israeli military authorities seized about seven to eight dunams (three-fourths of a hectare) of that land, he told Human Rights Watch, apparently through a restrictive and anachronistic interpretation of Ottoman land registration laws that requires evidence of substantial cultivation as proof of ownership. Maps provided by the Israeli authorities to the Israeli NGO Kerem Navot, cross-referenced with maps provided to Human Rights Watch by the Palestinian Ministry of Local Government, indicate that in 1980 the Israeli authorities declared about seven dunams (three-fourths of a hectare) of a plot registered to Suleiman’s family to be state land and permitted the construction on it of a number of homes for Alfei Menashe.

Palestinian farmer Anwar Abu Khalil, who can only access part of his land with great difficulty due to the separation barrier around the settlement of Alfei Menashe.

© 2017 Human Rights Watch

Human Rights Watch wrote to the Israeli military authorities requesting explanations regarding the construction of homes on part of the land belonging to Suleiman, and the Israeli Civil Administration requested additional information in order to respond. As of the time of publication, a supplementary response had not been received.

Until 2005, Suleiman was able to access part of his remaining land by walking for 10 minutes along a dirt road. But the separation barrier, which veers more than five kilometers into the West Bank to incorporate Alfei Menashe on the “Israeli” side, cut off Suleiman’s family from its land. Suleiman, four of his nine siblings, and some of their children obtained permits to access the land via an agricultural gate that opens for 15 minutes in the morning and 15 minutes in the afternoon and that requires walking or riding an animal cart for a detour of four to six kilometers. A permit is required to drive a motorized car, other than farm equipment, through the gate. They cannot hire farm workers, because of the requirement of obtaining permits, and additional family members did not receive permits. They have now switched to growing olives, almonds, cactus, and grapes – crops that require less care.

Mas-ha and Elkana

Bank Mizrahi Tefahot is “accompanying” two new construction projects, “Ahdut Elkana” (Unity of Elkana), undertaken by the Israeli construction company Mishab, and “Mishkanot Elkana” (Elkana Dwellings), undertaken by the Israeli construction company Shoham, just across from the Palestinian village of Mas-ha.[63] The projects expand the built-up part of Elkana up to the separation barrier.  They are being built on land that the Israeli military authorities declared to be state land, otherwise surrounded by privately owned Palestinian land, according to maps given to Kerem Navot by the Israeli military authorities and maps maintained by the Palestinian local authorities. According to the response that the Israeli Civil Administration sent to Human Rights Watch, the Israeli military authorities declared at least part of the area state land in 2005. The nearest houses in Mas-ha are located a half kilometer from the projects. Mas-ha residents owning land in the area beyond the separation barrier must apply for permits from the Israeli military authorities, which allow them to access their land at two fixed times during the day, via an “agricultural gate” that is a 13-kilometer drive from the village. 

Bulldozers clear land for construction of the Ahdut Elkana project in the Israeli settlement of Elkana.

© 2018 Human Rights Watch

Because the project is located inside a settlement, its housing units are off-limits to West Bank Palestinians, who are forbidden to enter settlements except as laborers bearing special permits. Similar to the case of Alfei Menashe, the separation barrier in the Elkana area extends six kilometers into the West Bank at its deepest point, incorporating the nearby Israeli settlements on the “Israeli” side. Travel from Israel to Elkana is seamless, with no checkpoints or markers indicating crossing into the West Bank. Israel’s Transportation Minister recently approved extending a light rail line from Israel to the Israeli settlement of Ariel, passing through the area of Elkana and possibly including a passenger station inside the settlement.[64]

The Aamer family of Mas-ha owns about 400-500 dunams (40-50 hectares) of land beyond the separation barrier, in parcels interspersed with the settlement construction, according to family members. A brother in the family, who declined to be identified by his first name for fear of retaliation, obtained a permit from the Israeli military to access his land but rarely uses it. Human Rights Watch reviewed the permit, which is given by the Israeli authorities to those they recognize as owning land beyond the separation barrier. Although the land is located just a half kilometer from the nearest house in Mas-ha and just two kilometers from his house, in order to access it he needs to make a two-hour, 20-kilometer detour, including walking along dirt paths, passing through the separation barrier in a designated agricultural gate that opens twice a day, for 15-30 minutes each time. He can only enter or leave during those designated times. He said that his family used to cultivate wheat, lentils, barley, almonds, and olives on the land, but now they cultivate 200 olive trees only, after the Israeli authorities uprooted 300 other olive trees and built roads and other structures on some of the land. They could no longer access the land sufficiently to tend to the other, more labor-intensive crops, he explained. Another brother in the family spoke with fondness of the time he spent on the land as a child, before the separation barrier was built, when he and his siblings planted olive trees and drank rainwater from a seasonal pool that formed in the bed of a natural rock formation.

Agricultural gate in Mas-ha for Palestinian farmers bearing permits to access their land on the other side of the separation barrier at designated times. 

© 2017 Human Rights Watch

The brothers say some of their land was taken over for use by the settlement, including road and home construction, apparently including an area that the Israeli authorities declared to be state land. Maps maintained by the Israeli military and provided to Kerem Navot indicate that part of the land that the brothers say belongs to them was declared state land in the 1980s and approved for the building of settlement homes and roads. Other plots of land remain presumptively registered to them in the Israeli records but are now interspersed with the settlement houses. The brothers recognized their land, they said, in a promotional video advertising the Mishkanot Elkana housing project. They have engaged a lawyer, they said, to try to stop the construction on at least part of their land.

The fact that some family members obtain permits from the Israeli authorities to access the land, as well as tax registration documents issued by the Israeli authorities and viewed by Human Rights Watch, mean that the Israeli authorities recognize that the Aamer family owns at least part of the land on the “Israeli” side of the barrier. Yet except for during the ploughing and harvest season, the brothers said that they no longer go there, because the trip is too burdensome and the opening times for the gate are too restrictive. 

New construction project in the Israeli settlement of Elkana, on land that members of the Aamer family of Mas-ha say belongs to them.

© 2017 Human Rights Watch

The route of the separation barrier was fixed to incorporate Israeli settlements on the “Israeli” side, including the built-up part of the settlements at the time the route was determined (beginning in 2002) as well as lands within the municipal boundaries of the settlements where future construction was to be authorized, such as the areas on which “Amirei Nof” in Alfei Menashe and “Ahdut Elkana” and “Mishkanot Elkana” in Elkana are being built.[65] In a landmark Israeli Supreme Court case challenging the construction of the barrier inside the West Bank (as opposed to the parts of it built on the Green Line, the border between Israel and the West Bank), the Israeli government said that the barrier route was dictated by security concerns, including the desire to protect Israeli settlers in the West Bank. Representatives of Palestinian landowners and human rights organizations disputed this claim, arguing that the barrier cut into the West Bank in order to facilitate the de facto annexation of Israeli settlements.[66]

Providing Mortgages to Home Buyers

Israeli banks also provide mortgage loans to home buyers in Israeli settlements. These buyers do not include Palestinian residents of the West Bank, who are not permitted to enter settlements except as laborers bearing special permits. For new construction projects, banks sometimes “pre-approve” a project, meaning they scrutinize the land registration and infrastructure development plans and then agree, in principle, to grant mortgage loans for buyers of that property, subject to approval of the loan application. Real estate agents told Human Rights Watch that the practice of banks “pre-approving” projects is more common when the infrastructure for a project has not yet been built, and so the bank will obtain assurances from the developer that the infrastructure needed to support the value of the home will be built.  Under the terms of mortgage loans, the bank acquires an ownership interest in the settlement property and takes over the property in case of default on the loan, usually in order to sell it.

The seven Israeli banks that Human Rights Watch contacted did not respond to requests to provide information about the scope of mortgage loans they provide for settlement homes. However, Human Rights Watch obtained information about three projects that Mizrahi Tefahot “pre-approved” from conversations with the sales representatives marketing those projects. They appear in the text box below and in the interactive map.

Project Approval for Individual Mortgages

Name of Bank

Settlement

Construction Project

Description

Source of information about bank involvement

Mizrahi Tefahot

Dolev

“Pisgat Dolev”[67]

26-unit housing project

July 20, 2017 phone conversation with construction company representative. Bank has evaluated the project and approved it for individual mortgages, subject to approval of individual borrowers.

Mizrahi Tefahot

Avnei Hefetz

“Kedem”[68]

870-unit housing project marketed as a new settlement[69]

August 7, 2017 phone conversation with construction company representative. Bank has evaluated project and approved it for individual mortgages, subject to approval of individual borrowers.

Mizrahi Tefahot

Leshem

Kedma Bileshem[70]

42-unit housing project

August 9, 2017 phone conversation with marketing representative.

Bank Branches

According to information published by the Bank of Israel and the websites of the relevant banks, there are at least 16 branches of Israeli banks in six settlements in Area C, the area of the West Bank where most Israeli settlements are located, as the text box below and the interactive map show.[71] This list includes all bank branches and one bank-run ATM but doesn’t include ATMs maintained by operators other than banks.

Service Points

Name of Bank

Settlement

Type of Service Point

Source of Information

Bank Discount

Beitar Illit

Bank Branch (through its subsidiary, Bank Mercantile Discount

Bank of Israel database[72], Mercantile Discount web site, and Who Profits report

Bank Discount

Ma’aleh Adumim

 

Bank of Israel database, Bank Discount web site, and Who Profits report

Bank Hapoalim

Ariel

Bank Branch

Bank of Israel database, Bank Hapoalim web site, and Who Profits report

Bank Hapoalim

Beitar Illit

Bank Branch

Bank of Israel database, Bank Hapoalim web site, and Who Profits report

Bank Hapoalim

Ma’aleh Adumim

Bank Branch

Bank of Israel database, Bank Hapoalim web site, and Who Profits report

Bank Leumi

Kiryat Arba

Bank Branch

Bank of Israel database, Bank Leumi web site, and Who Profits report

Bank Leumi

Ma’aleh Adumim

Bank Branch

Bank of Israel database, Bank Leumi web site, and Who Profits report

Bank Leumi

Modi’in Illit

Bank Branch

Bank of Israel database, Bank Leumi web site, and Who Profits report

Bank of Jerusalem

Beitar Illit

Bank Branch

Bank of Israel database, Bank of Jerusalem web site, and Who Profits report

Bank of Jerusalem

Modi’in Illit

Bank Branch

Bank of Israel database, Bank of Jerusalem web site, and Who Profits report

Bank of Jerusalem

Ma’aleh Adumim

ATM

Bank of Israel database and Bank of Jerusalem web site

FIBI

Ariel

Bank Branch (through its subsidiary, Bank Otsar Hahayal)

Bank of Israel database, FIBI web site, and Who Profits report

FIBI

Beitar Illit

Bank Branch (through its subsidiary, PAGI)

 Bank of Israel database, FIBI web site, and Who Profits report

FIBI

Modi’in Illit

Bank Branch (through its subsidiary, PAGI)

Bank of Israel database, FIBI web site, and Who Profits report

Mizrahi Tefahot

Alon Shvut

Bank Branch

Bank of Israel database, Mizrahi Tefahot web site, and Who Profits report

Mizrahi Tefahot

 Karnei Shomron

Bank Branch

Bank of Israel database, Mizrahi Tefahot web site, and Who Profits report

Mizrahi Tefahot

Ma’aleh Adumim

Bank Branch (through its subsidiary, Yahav Bank)

Bank of Israel database, Yahav Bank web site, and Who Profits report

 

Providing Loans to Settlement Regional and Local Councils

Settlement local and regional councils provide services to settlers that sustain settlements and encourage new residents to move in. These range from basic services like sanitation and education to more advanced services like recreation, tourism, arts, and culture in the larger settlements. West Bank Palestinians cannot access these services.

Bank loans are an important source of income for these municipalities and local and regional councils. In some cases, the Israeli Ministry of Interior provides guarantees for the loans, reducing costs to the borrower by reducing risks to the lender.[73] Local authorities can also partially offset the cost of the loans with additional governmental subsidies, because the Ministry of Interior calculates the “balance grants” it pays to local authorities based in part on the local authority’s budget deficit, which increases due to the borrowing costs. During a meeting on budgeting, a member of the Gush Etzion regional council, in the southern West Bank, described bank loans as “the only way to develop the council.”[74] Bank loans are commonly used to finance “irregular budgets,” budgets used for developing and expanding settlement infrastructure and facilities, as indicated from the minutes of meetings of settlement regional and local councils.  These minutes refer to competitive bidding processes through which local authorities obtain financing.

A recent report by Who Profits[75] provided examples of loans and loan guarantees obtained by settlements, as the text box below and interactive map detail.

Loans to Settlement Authorities

Bank Name

Settlement Authority

Credit offered

Dates and Details

Source of information

Bank Discount

Gush Etzion Regional Council

Unspecified loan amount

In or after May 2016

Who Profits report and minutes of regional council meeting[76]

Bank Discount

Gush Etzion Regional Council

6 million NIS ($1.6 million) loan

In or after July 2014

Who Profits report and minutes of regional council meeting [77]

Bank Discount

Gush Etzion Regional Council

Apparently a 5 million NIS ($1.4 million) loan

In or after June 2015

Who Profits report and minutes of regional council meeting [78]

Bank Discount

Hebron Hills Regional Council

4.8 million NIS ($1.3 million) loan and a 605,000 NIS ($178,000) loan

In or after March 2016, via its subsidiary, Mercantile Discount Bank

Who Profits report and minutes of regional council meeting[79]

Bank Hapoalim

Megilot Dead Sea Regional Council

1.5 million NIS ($410,000) loan

In or after July 2014

Who Profits report and minutes of regional council meeting[80]

Bank Hapoalim

Megilot Dead Sea Regional Council

2 million NIS ($550,000) loan for development

In or after June 2016

Who Profits report and minutes of regional council meeting [81]

Bank Leumi

Binyamin Regional Council

10.9 million NIS ($3 million) loan for sewage project

In or after February 2015

Who Profits report and minutes of regional council meeting[82]

Bank Leumi

Gush Etzion Regional Council

5 million NIS ($1.4 million)

In or after May 2016

Who Profits report and minutes of regional council meeting[83]

Bank Leumi

Hebron Hills Regional Council

2.5 million NIS ($685,000) loan for sewage project

In or after June 2015

Who Profits report and minutes of regional council meeting [84]

Igud Bank

Kedumim Local Council

970,000 NIS ($277,000) in loan guarantees

In or after November 2012

Who Profits report and minutes of local council meeting[85]

Mizrahi Tefahot

Alfei Menashe Local Council

1.5 million NIS ($410,000) loan

In or after June 2014

Who Profits report and minutes of local council meeting from June 29, 2014[86]

Mizrahi Tefahot

Hebron Hills Regional Council

4.865 million NIS ($1.3 million), including 4.8 million NIS lent at an unspecified date and 65,000 NIS approved by the Council in June 2015, for sewage project

Additional funds lent in or after June 2015

Who Profits report and minutes of regional council meeting[87]

Mizrahi Tefahot

Kedumim Local Council

250,000 NIS ($68,000) in loan guarantees

In or after November 2012

Who Profits report and minutes of local council meeting[88]

FIBI

Alfei Menashe Local Council

670,000 NIS loan ($190,000)

In or after September 2014 (through its subsidiary, Bank Otsar Hahayal)

Who Profits report and minutes of local council meeting from September 16, 2014[89]

FIBI

Kedumim Local Council

100,000 NIS ($27,000) in loan guarantees

In or after November 2012

Who Profits report and minutes of local council meeting [90]

 

IV. Businesses’ International Human Rights Responsibilities

The United Nations Guiding Principles on Business and Human Rights require businesses to conduct due diligence, to determine whether their activities contribute to or benefit from serious human rights abuses or violations of international humanitarian law standards. It is Human Rights Watch's view that such diligence would show that banking activities in or with settlements contribute to serious abuses in many ways: for example, they contribute to building, buying, and selling homes on unlawfully seized land; they provide support to local councils that provide services to Israelis but not to West Bank Palestinians in settlements whose existence is a justification for severe restrictions on Palestinian freedom of movement; and they establish service points on Palestinian land that is off-limits to Palestinians. By facilitating expansion of settlements, these banking activities facilitate unlawful population transfers.

Of particular concern is the acquisition of property by banks, including the housing projects and individual homes in which they acquire an ownership interest as part of “accompanying agreements” with developers and individual mortgage loans. Businesses have a responsibility to respect not just human rights but also the principles of international humanitarian law, which, among other things, protect the property rights of those living under occupation.[91] The International Committee of the Red Cross (ICRC) has expressed concern about the possibility that, in situations of conflict, businesses would acquire property without the consent of its owners. According to its guidance to businesses operating in conflict zones: 

Business enterprises which operate in conflict zones must apply heightened managerial care to ensure that they are not acquiring resources and property without the freely given consent of the owner. They may otherwise be accused of taking part in pillage.[92]

The ICRC guidance notes that the prohibition against pillage applies not just to acquisition by force but also to acquisition obtained due to an imbalance of power stemming from the surrounding armed conflict.[93] Israel has designated huge swaths of land, including private property, as “state land” in the West Bank. The laws of belligerent occupation allow an occupying power to act as custodian of public lands during the occupation and to use them only for the benefit of the local population or for its military needs. Even genuine “state” land cannot be used for the benefit of Israeli civilians, and ownership of it reverts back to the Palestinian inhabitants of the territory at the conclusion of the occupation.

Human Rights Watch has analyzed Israeli domestic law and found that, contrary to claims by Israeli banks, it does not require banks to provide most of the services they provide in settlements.[94] The very partial mapping of these activities provided here – partial, because the banks have declined to disclose publicly the scope and extent of their settlement-related activities – suggests that services are offered commensurate with business considerations. For example, banks choose to establish bank branches in larger settlements that serve as regional hubs, where they are most accessible to potential customers. They compete to provide loans to local authorities. They determine which construction projects they choose to accompany. The banks appear to be making business decisions, but it is Human Rights Watch’s view that these decisions are contrary to their human rights responsibilities.

 

 

[1] The Bank of Israel regulates the activities of Israeli banks, including their activities in and with settlements, and has the authority to authorize the opening and closing of bank branches and the adoption of policies on service provision. See Human Rights Watch, Israeli Law and Banking in West Bank Settlements, September 12, 2017, https://www.hrw.org/news/2017/09/12/israeli-law-and-banking-west-bank-se....

[2] English translations of the letters Human Rights Watch sent to the seven banks are available at https://www.hrw.org/sites/default/files/supporting_resources/hrw_letters....

[3] English translations of the letters Human Rights Watch sent to the three companies are available at https://www.hrw.org/sites/default/files/supporting_resources/hrw_letters....

[4]  Kerem Navot, www.keremnavot.org, accessed April 24, 2018.

[5] Who Profits, “Financing Land Grab: The Direct Involvement of Israeli Banks in the Israeli Settlement Enterprise,” February 2017,  https://whoprofits.org/content/financing-land-grab-direct-involvement-is... (accessed March 3, 2018).

[6] Danwatch, Business on Occupied Territory, January 31, 2017,  https://old.danwatch.dk/en/undersogelse/businessonoccupiedterritory/ (accessed March 3, 2018).

[7]  Association France Palestine Solidarité et al, French Banks’ Dangerous Liaisons with Israeli Settlement Enterprise, March 2017, https://www.banktrack.org/news/report_reveals_links_between_five_french_... (accessed March 3, 2018).

[8] Human Rights Watch, Occupation, Inc.: How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights, January 19, 2016, https://www.hrw.org/report/2016/01/19/occupation-inc/how-settlement-busi....

[9] Human Rights Watch, Separate and Unequal: Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories, December 2010, pp. 35-40, https://www.hrw.org/news/2010/12/19/israel/west-bank-separate-and-unequal; Kerem Navot, “Ali Baba: The Declaration of Government Property around the Settlement of ‘Eli’ on 3/30/2017,” January 2018,  http://www.keremnavot.org/enalibaba (accessed March 10, 2018); B’Tselem, “Land Grab: Israel’s Settlement Policy in the West Bank,” May 2002,  https://www.btselem.org/download/200205_land_grab_eng.pdf (accessed March 10, 2018); B’Tselem, “By Hook and by Crook: Israeli Settlement Policy in the West Bank,” July 2010, https://www.btselem.org/download/201007_by_hook_and_by_crook_eng.pdf (accessed March 10, 2018).

[10] Bimkom, “The Prohibited Zone: Israel’s Planning Process in Palestinian Villages in Area C,” June 2008, http://bimkom.org/eng/wp-content/uploads/ProhibitedZone.pdf (accessed March 10, 2018).

[11] B'Tselem, “Thirsty for a Solution − Resolving the Water Crisis in the West Bank in the Occupied Territories and its Resolution in the Final-Status Agreement,” July 2000, https://www.btselem.org/Download/200007_Thirsty_for_a_Solution_Eng.doc (accessed March 10, 2018); Kerem Navot, “Israeli Settlers’ Agriculture as a Means of Land Takeover in the West Bank,” August 2013, http://www.keremnavot.org/naboths-vineyard (accessed March 10, 2018).

[12] B’Tselem, “Arrested Development: The Long Term Impact of Israel’s Separation Barrier in the West Bank,” October 2012, https://www.btselem.org/sites/default/files/sites/default/files2/201210_... (accessed March 10, 2018).

[13] World Bank, Report No. AUS2922, West Bank and Gaza, Area C and the Future of the Palestinian Economy, October 2, 2013, http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2... (accessed March 14, 2018).

[14] See footnote 10.

[15] Human Rights Watch, Separate and Unequal: Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories, December 2010, https://www.hrw.org/news/2010/12/19/israel/west-bank-separate-and-unequal; Human Rights Watch, Occupation, Inc.: How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights, January 19, 2016, https://www.hrw.org/report/2016/01/19/occupation-inc/how-settlement-busi....

[16] Bank Hapoalim, Sustainability Report 2016: Economic, Social and Environmental Responsibilityhttp://www.bankhapoalim.com/wps/wcm/connect/17d3ab0041ff1ecfb2f3b23541ca... (accessed March 10, 2018);  The Leumi Group, Corporate Social Responsibility 2016, https://plus.leumi.co.il/wp-content/PLUS_REPORTS/CSR_report_2016_Engish.... (accessed March 10, 2018); Israel Discount Bank, Corporate Responsibility Report 2016, https://www.discountbank.co.il/DB/sites/marketing.discountbank.co.il/fil... (accessed March 10, 2018); Mizrahi Tefahot, Corporate Social Responsibility Report 2016https://www.mizrahi-tefahot.co.il/Lists/BankMizrahiSiteAssets/PDF-Englis... (accessed March 10, 2018).

[17] While in theory, Palestinians could open accounts in Israeli banks, they are not able to do so in practice, because of a regulatory requirement that new customers open accounts in person, presenting themselves at the bank branch. Palestinians cannot ordinarily enter either settlements or Israel, where the banks have branches.

[18] Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Annexed Regulations Concerning the Laws and Customs of War on Land of 18 October 1907 (Hague Regulations), 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S. 227, entered into force January 26, 1910, art. 43.

[19] Ibid, art. 55.

[20] Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950,arts. 49.6, 146-147; Rome Statute of the International Criminal Court, A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 8(2)(b)(vii).

[21] Human Rights Watch, Occupation, Inc.:How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights, January 19, 2016, https://www.hrw.org/report/2016/01/19/occupation-inc/how-settlement-busi....

 

[22] Sale Law (Apartments) (Guaranteeing Investments of Home Buyers), 1974.         

[23] C.A. 5893/91 Tefahot Mortgage Bank of Israel v. Sabah, 38(2) P.D. 573, 580 (1994). The law does apply in East Jerusalem, however, because of Israel’s unilateral annexation of East Jerusalem in 1967. This annexation is not recognized internationally, and East Jerusalem remains occupied territory. Other Israeli laws apply to settlers in the West Bank but not to Palestinians through a variety of legal provisions that apply Israeli law to the settlers on a personal basis.

[24] Eliezer Wolf, Havtahat Hashkaot shel Rochashei Dirot (Guaranteeing Investments of Home Buyers) in “Nihul Nadlan” 651 (1997) (Hebrew), p. 661, http://landtax.co.il/books/nihul-nadlan/16.pdf (accessed March 10, 2018).

[25] Wolf, Havtahat Hashkaot, pp. 656-657 and according to telephone interviews that Human Rights Watch conducted with an Israeli real estate agent and an Israeli expert in property law in the West Bank.

[26] Who Profits, “Financing Land Grab: The Direct Involvement of Israeli Banks in the Israeli Settlement Enterprise,” February 2017,  https://whoprofits.org/content/financing-land-grab-direct-involvement-is... (accessed March 3, 2018). The Who Profits report documents additional construction projects, including those undertaken by a seventh bank, Bank Discount, via its subsidiary, Mercantile Discount. Human Rights Watch requested confirmation from Bank Discount about those additional projects but did not receive a response. Human Rights Watch was not able to document those additional projects independently and therefore did not include them in this publication.

[27] Details on marketing web site by Eluel Company: http://www.ganeitamar.co.il/ (accessed March 21, 2018).

[28] Details on marketing web site by Mishkan Elyahu company: http://www.mishkan1.co.il/document/52,67,6.aspx (accessed March 21, 2018).

[29] Who Profits, Financing Land Grab: The Direct Involvement of Israeli Banks in the Israeli Settlement Enterprise, February 2017,  https://whoprofits.org/content/financing-land-grab-direct-involvement-is... (accessed March 3, 2018).

[30] Details on marketing web site by Traklin company: http://www.traklin-group.com/he/bldProjct_details.asp?pid=19 (accessed March 21, 2018).

[31] Description on web site advertising settlement real estate: http://www.goyosh.co.il/%D7%A4%D7%A8%D7%95%D7%99%D7%A7%D7%98%D7%99%D7%9D... (accessed March 21, 2018).

[32] Description on marketing web site by Zemach Hammerman company: http://zhg.co.il/projects/amirey-nof/about (accessed March 21, 2018).

[33] Additional description on web site advertising settlement real estate: http://www.goyosh.co.il/%D7%A4%D7%A8%D7%95%D7%99%D7%A7%D7%98%D7%99%D7%9D... (accessed March 21, 2018).

[34] Zemach Hammerman Ltd., Directorate’s Report on the Status of the Company’s Matters as of September 30, 2015, pp. 4-5, http://maya.tase.co.il/reports/details/1003882 (accessed March 10, 2018).

[35] June 18, 2015 letter from Zemach Hammerman to the Israeli Securities Authority and the Tel Aviv Stock Exchange, http://ir.zhg.co.il/immediate_reports/%D7%94%D7%AA%D7%A7%D7%A9%D7%A8%D7%... (accessed March 10, 2018).

[36] Description on company web site: http://www.minrav.co.il/Project-73.html (accessed March 22, 2018).

[37] Description on web site marketing real estate: http://www.my-community.co.il/project/contractor/738 (accessed March 22, 2018).

[38] Available online: http://www.ad.co.il/project/64 (accessed March 22, 2018).

[39] Description on web site marketing settlement real estate: http://www.bemuna.co.il/product/%D7%A4%D7%A8%D7%95%D7%99%D7%A7%D7%98-%D7... (accessed March 22, 2018).

[40] Ayalon Project Supervision and Consulting Ltd., http://www.ayalonim.co.il/119500/%D7%A4%D7%A8%D7%95%D7%99%D7%99%D7%A7%D7... (accessed March 22, 2018).

[42] Description on company web site: http://ykenig.co.il/#section1 (accessed March 22, 2018).

[43] Description on web site marketing real estate: http://kanbonim.mako.co.il/%D7%97%D7%A4%D7%A9-%D7%93%D7%99%D7%A8%D7%94-%... (accessed March 22, 2018).

[45] Description on Shoam company web site: http://www.shoam.co.il/doc/%D7%90%D7%97%D7%93%D7%95%D7%AA-%D7%90%D7%9C%D... (accessed March 22, 2018).

[46] Additional description on web site marketing settlement real estate: http://www.goyosh.co.il/%D7%A4%D7%A8%D7%95%D7%99%D7%A7%D7%98%D7%99%D7%9D... (accessed March 22, 2018).

[47] Shoam company web site: http://www.shoam.co.il/doc/%D7%90%D7%97%D7%93%D7%95%D7%AA-%D7%90%D7%9C%D... (accessed March 22, 2018).

[48] Description on Mishab company web site: http://www.mishab.co.il/%D7%A4%D7%A8%D7%95%D7%A7%D7%98%D7%99%D7%9D-%D7%9... (accessed March 22, 2018).

[49] Additional description on web site advertising real estate: http://www.my-community.co.il/project/473?source=2 (accessed March 22, 2018).

[50] Description on company web site: https://www.zfbuilding.co.il/project/%D7%A0%D7%95%D7%A4%D7%99-%D7%9B%D7%... (accessed March 22, 2018).

[51] Amos Hadar Assets and Investments, Ltd., Periodic Report for the Year 2014, pp. 73-A-74-A, http://www.a-hadar.co.il/Assets/financialyear2014_isa.pdf (accessed March 22, 2018).

[52] Description on web site marketing real estate: https://yad1.yad2.co.il/Project.php?ProjectID=2192 (accessed March 22, 2018).

[54] Zemach Hammerman Ltd., Directorate’s Report on the Status of the Company’s Matters as of September 30, 2015, pp. 4-5, http://maya.tase.co.il/reports/details/1003882 (accessed March 10, 2018).

[55] The Hebrew-language video is available at https://www.youtube.com/watch?v=48BYkhsi_Ko (accessed April 24, 2018).

[56] Who Profits, “Financing Land Grab,” p.24; Zemach Hammerman Ltd., Directorate’s Report of September 30. 2015; June 18, 2015 letter from Zemach Hammerman to the Israeli Securities Authority and the Tel Aviv Stock Exchange, http://ir.zhg.co.il/immediate_reports/%D7%94%D7%AA%D7%A7%D7%A9%D7%A8%D7%... (accessed March 10, 2018).

[57] A Human Rights Watch researcher visited the housing project’s office to request brochures about the project. An informational seminar was about to begin, and the sales representative invited the researcher to sit in. In the course of the session, the sales representative confirmed that Bank Leumi was accompanying the project. Human Rights Watch subsequently sent letters requesting copies of the agreement from both Zemach Hammerman Ltd. and Bank Leumi, but neither the bank nor the construction company responded. The Israeli NGO Who Profits also lists Bank Leumi as the accompanying bank in its report, “Financing Land Grab.”

[58] Zemach Hammerman Ltd., Directorate’s Report of September 30, 2015.

[59] Ibid.

[60] Human Rights Watch, Occupation, Inc., p. 71; B’Tselem, “By Hook and by Crook: Israeli Settlement Policy in the West Bank,” July 2010, p. 25. https://www.btselem.org/download/201007_by_hook_and_by_crook_eng.pdf (accessed March 10, 2018).

[61] Chaim Levinson, “Just 0.7% of land in the West Bank has been allocated to Palestinians, Israel admits,” Haaretz, March 28, 2013.

[62] Kerem Navot, “Blue and White Make Black: The Blue Line Team in the West Bank”, December 2016, http://www.keremnavot.org/blueandwhitemakeblack (accessed March 12, 2018).

[63] A Human Rights Watch researcher called representatives of the construction companies marketing the projects, who relayed by telephone which banks were accompanying them. Human Rights Watch wrote to Mishhab, Shoham, and Mizrahi Tefahot to request copies of the agreements relevant to the projects but did not receive responses.

[64] Sonia Gorodeisky, “Yisrael Katz Approves Light Rail to Ariel,” Globes, March 15, 2018, http://www.globes.co.il/en/article-katz-approves-light-rail-to-ariel-100... (accessed April 17, 2018).

[65] See H.C.  7957/04 Ma’arabe v. Prime Minister of Israel, 60(2) 477, para.19; B’tselem, “Under the Guise of Security – Routing the Security Barrier to Enable Israeli Settlement Expansion in the West Bank,” December 2005, pp. 19-76, https://www.btselem.org/download/200512_under_the_guise_of_security_eng.pdf (accessed April 18, 2018).

[66] H.C. 2056/04 Beit Sourik Village Council v. Government of Israel, P.D. 58(5) 807, June 30, 2004, para. 12.

[67] Description on web site of company: http://www.h-shomron.com/projects/pisgat-dolev-dolev/ (accessed March 22, 2018).

[68] Description on company web site: http://yishuv.hzahav.co.il/ (accessed March 22, 2018).

[69] Additional description on web site marketing settlement real estate: http://www.goyosh.co.il/%D7%A4%D7%A8%D7%95%D7%99%D7%A7%D7%98%D7%99%D7%9D... (accessed March 22, 2018).

[70] Description on web site advertising real estate: http://www.my-community.co.il/project/572 (accessed March 22, 2018).

[71]Supervisor of Banks, Finding a Bank Branch” (Hebrew), Bank of Israel, accessed March 12, 2018, http://www.boi.org.il/he/BankingSupervision/BanksAndBranchLocations/Page....

[72] Bank of Israel, Supervisor of Banks, Finding a Bank Branch (Hebrew), http://www.boi.org.il/he/BankingSupervision/BanksAndBranchLocations/Page... (accessed March 12, 2018).

[73] See for example General Accounting Department, Israeli Ministry of Finance, “Giving Banking and Budgetary Credit to Local Authorities Undergoing Rehabilitation Plans” (Hebrew), http://mof.gov.il/AG/FinancingAndCredit/Pages/CreditlocalAuthorities.aspx (accessed March 12, 2018).

[74] Gush Etzion Regional Council, “Protocol of Ordinary Meeting No. 4 of the Gush Etzion Regional Council Plenary of 2014,” April 28, 2014, p. 7 (Hebrew), https://www.baitisraeli.co.il/uploads/n/1490103947.7817.pdf (accessed March 12, 2018). 

[75] Who Profits, “Financing Land Grab.”

[76] Gush Etzion Regional Council, Minutes of Ordinary Meeting No. 4 of the Gush Etzion Regional Council Plenary of 2016, May 1, 2016, p. 7 (Hebrew), https://www.baitisraeli.co.il/uploads/n/1490170165.5761.pdf (accessed March 22, 2018). 

[77] Gush Etzion Regional Council, Minutes of Ordinary Meeting No. 4 of the Gush Etzion Regional Council Plenary of 2014, April 28, 2014, pp. 6-7 (Hebrew), https://www.baitisraeli.co.il/uploads/n/1490103950.8061.pdf (accessed March 22, 2018); Gush Etzion Regional Council, Minutes of Ordinary Meeting No. 6 of the Gush Etzion Regional Council Plenary of 2014, July 6, 2017, p. 6 (Hebrew). 

[78] Gush Etzion Regional Council, Minutes of Ordinary Meeting No. 6 of the Gush Etzion Regional Council Plenary of 2015, June 28, 2015, pp. 10-15 (Hebrew), https://www.baitisraeli.co.il/uploads/n/1490168088.5762.pdf (accessed March 22, 2018).

[79] Hebron Hills Regional Council, Minutes of Assembly Meeting 1/16, March 1, 2016, sec. 5 (Hebrew), http://www.hrhevron.co.il/uploads/n/1459930514.6815.pdf (accessed March 22, 2018).

[80] Megilot Dead Sea Regional Council, Minutes of Regional Council Meeting 7/2014, July 3, 2014, p.2 (Hebrew), http://www.dead-sea.org.il/dead-sea.org.il/originals/%D7%A4%D7%A8%D7%95%... (accessed March 22, 2018).

[81] Megilot Dead Sea Regional Council, Minutes of Regional Council Meeting 5/2016, June 2, 2016, sec. 4(e) (Hebrew), http://www.dead-sea.org.il/dead-sea.org.il/originals/%D7%A4%D7%A8%D7%95%... (accessed March 22, 2018).

[82] Binyamin Regional Council, Summary of Assembly Decisions No. 1, February 25, 2015 (Hebrew), http://www.binyamin.org.il/uploads/n/1488113472.2180.pdf (accessed March 22, 2018).

[83] Gush Etzion Regional Council, Minutes of Ordinary Meeting No. 4 of the Gush Etzion Regional Council Plenary of 2016, May 1, 2016, p. 7 (Hebrew), https://www.baitisraeli.co.il/uploads/n/1490170165.5761.pdf (accessed March 22, 2018). 

[84] Hebron Hills Regional Council, Minutes of Assembly Meeting 5/15, June 30, 2015, p.5 (Hebrew),   http://www.hrhevron.co.il/uploads/n/1459930512.8889.pdf (accessed March 22, 2018). 

[85] Kedumim Local Council, Minutes of Assembly Meeting, No. 8/12, November 15, 2012, p. 1 (Hebrew), http://www.kedumim.org.il/_Uploads/dbsAttachedFiles/2608.pdf (accessed March 25, 2018).

[86] Alfei Menashe Local Council, Minutes of Extraordinary Meeting No. 16, June 29, 2014, Pp. 2-4 (Hebrew) (on file with Human Rights Watch).

[87] Hebron Hills Regional Council, Minutes of Assembly Meeting 5/15, June 30, 2015, p.5 (Hebrew),   http://www.hrhevron.co.il/uploads/n/1459930512.8889.pdf (accessed March 22, 2018).

[88] Kedumim Local Council, Minutes of Assembly Meeting, No. 8/12, November 15, 2012, p. 1 (Hebrew), http://www.kedumim.org.il/_Uploads/dbsAttachedFiles/2608.pdf (accessed March 25, 2018).

[89] Alfei Menashe Local Council, Minutes of Extraordinary Meeting No. 20, September 16, 2014, pp. 1-5 (Hebrew), https://www.alfe-menashe.muni.il/uploads/n/1481456583.8108.pdf (accessed April 2, 2018).

[90] Kedumim Local Council, Minutes of Assembly Meeting, No. 8/12, November 15, 2012, p. 1 (Hebrew), http://www.kedumim.org.il/_Uploads/dbsAttachedFiles/2608.pdf (accessed March 25, 2018).

[91] United Nations Guiding Principles on Business and Human Rights, adopted March 21, 2011, UN Doc. A/HRC/17/31, Commentary to Principle 12.

[92] International Committee of the Red Cross, Business and International Humanitarian Law: An Introduction to the Rights and Obligations of Business Enterprises under International Humanitarian Law, p. 22, https://shop.icrc.org/les-entreprises-et-le-droit-international-humanita... (accessed March 12, 2018).

[93] For example, the value of privately owned land to its Palestinian owners plummets when the Israeli authorities impose travel restrictions or erect physical barriers that render such land partially or entirely off limits to its owners. Thus, concerns about pillage could arise even in cases in which Palestinian owners signed contracts selling their land for settlement use.

[94] Human Rights Watch, Israeli Law and Banking in West Bank Settlements, September 12, 2017, https://www.hrw.org/news/2017/09/12/israeli-law-and-banking-west-bank-se....

Posted: January 1, 1970, 12:00 am