Corporate capture, ‘the means by which an economic elite undermine the realization of human rights and the environment by exerting undue influence over domestic and international decision-makers and public institutions,’ is a concept developed by ESCR-Net to understand the extent and mechanisms of corporate influence being exerted over State and international bodies in the modern neoliberal age. Intuitively, the manifestations identified by ESCR-Net are more applicable to non-conflict settings, wherein it is not clear that State policy would be as it is without corporate involvement. Immediately, the American lobbying industry comes to mind, wherein powerful special interest groups dominate the healthcare debate, partisan research centers produce favorable research for oil tycoons, and so on.

Nonetheless it is difficult to say that the United States’ approach to healthcare and climate change would not be different if not for such corporate involvement; however, this does not appear to be the case in conflict situations, such as that of Israel’s occupation of the occupied Palestinian territory (oPt), which is grounded first and foremost on pre-existent strategic and ideological considerations. It is these latter situations in which the standard conception of corporate capture does not provide an entirely satisfactory lens with which to analyze the dynamics at play. Thus, some adjustments must be made to account for the central role the States’ security and political apparatus plays in conflict and occupation settings such as that of the oPt.

The relationship between Israel, as Occupying Power, and the corporate entities operating in illegal settlements in the oPt is a symbiotic one: their presence benefits Israel in perpetuating the occupation, providing legitimacy by allowing it to create misleading narratives, and similarly benefits corporations through profitability and the provision of extensive financial benefits provided by Israel through such mechanisms as the National Priority Area scheme.

Corporations and the State therefore act as a single unit based on mutual solidarity and interest, imitating the tactics used by corporate actors in more conventional corporate capture settings. In practice this may be observed by looking at HeidelbergCement, a German multinational which operates a number of aggregate quarries and concrete plants in the occupied West Bank, most notably illegally mining in Nahal Raba quarry. It should be immediately stressed that, as opposed to traditional capture, Heidelberg need not concern itself with justifying or misrepresenting its presence to the local population as beneficial; it is necessarily operating in opposition to the Palestinian right of self-determination and permanent sovereignty over natural resources, a campaign of rights violations it conducts under the approval of the Israeli Occupying Forces. Instead, Heidelberg and similar actors must justify their operations to foreign markets which they rely upon to buy their products.

While the majority of cement originating from Nahal Raba is sold in Israel and Israeli settlements[1], Heidelberg must still whitewash its problematic solidarity with Israel so as to mitigate any negative impacts on its international corporate image and trade. These two concerns are addressed by Heidelberg and Israel in tandem. Heidelberg frames its presence in the oPt as being beneficial to Palestinians, painting itself as a transformative force for peace and equity[2] in an otherwise fatally divided environment. In surrounding its involvement in the OPT in this narrative of intercultural exchange and understanding, Heidelberg misdirects from the realities of the occupation, including discriminatory labour practices within settlements such as those it operates within. This is similar to the capture tactics of ‘Shaping Narratives’ and ‘Community Manipulation’ identified by ESCR-Net, however the distinction being that instead of targeting the Palestinian communities and population whose rights it infringes, its deception is instead directed towards a removed and oft-times unaware populace in largely Western markets. In doing so it not only mounts a defence for its own bottom line but skews the international perception of life under the occupation generally.

These efforts are bolstered by complimentary capture tactics deployed by Israel, the Occupying Power. Chief among these is the effort to prevent States and bodies such as the European Union from introducing legislation and other legal mechanisms which would restrict or prohibit the importation of settlement-produced goods. This is pursued indirectly, through the support of ideologically-aligned groups in capitals such as Washington D.C. and Brussels, and directly, through diplomatic channels and campaigns to delegitimise and reduce support for concerned civil society and human rights organizations, both in Palestine and abroad. These measures have largely proved effective, with such States as Germany, and many jurisdictions in the United States, and potentially soon the UK, either condemning the Boycott, Divest, Sanction (BDS) movement or imposing anti-BDS laws. Similarly, Morocco has previously instituted counter-boycotts against Swedish companies in reaction to a Swedish boycott of companies operating in the Moroccan-occupied Western Sahara.

Perhaps most interesting is the State’s use of capture tactics against corporations, representing a total reversal of the dynamic identified by ESCR-Net. In response to Airbnb’s decision to remove its listings in illegal settlements in November 2018, the State initiated an extensive campaign of economic diplomacy; as part of this campaign, Israel’s Minister for Strategic Affairs contacted American governors to request they condemn the company’s decision, as well as constructing a narrative whereby Airbnb’s decision was not based on the illegality of the settlements but on an invented discriminatory intent to ‘not list for Jews in the West Bank.’  Under the pressure of such capture tactics, as well as lawsuits in America and Jerusalem, Airbnb reversed its decision without explanation in April 2019, pledging to donate all profits derived from the West Bank to charity.

At the time of writing, States are involved in the negotiation and drafting of a binding treaty on business and human rights. The current draft of this treaty makes some mention of conflict situations, however is sorely lacking in recognition of the issue of corporate capture and methods by which it may be combatted. Civil society has been correct in criticising the draft for these shortcomings, however it must be stressed that focusing on these two issues in isolation will not provide the treaty with a much-needed holistic perspective on corporate capture and solidarity in the largely idiosyncratic situations of conflict and occupation.

[1] Profundo and 11.11.11, Doing Business with the Occupation: Economic and Financial Relationships of Foreign Companies with Israel’s Settlement Enterprise (2018) 23; Norwegian People’s Aid, Dangerous Liaisons: Norwegian Ties to the Israeli Occupation (2012) 25; Dangerous Liaisons II: Norwegian Ties to the Israeli Occupations (2016) 25

[2] See Heidelberg Cement, Sustainability Report 2018 62

Pearce Clancy is a Legal Researcher with Al-Haq, a Palestinian human rights organisation based in the occupied Palestinian territory which works on issues involving business and human rights, and holds an LL.M in international law from the Irish Centre for Human Rights.