Date filed
10 December 2019
Keywords
Countries of harm
Current status
No resolution
Sectors
NCP

Allegations

On 10 December 2019, the UK legal charity Lawyers for Palestinian Human Rights (LPHR) filed a specific instance against J.C.Bamford Excavators Ltd (JCB) at the UK NCP. The complaint concerns activities of JCB in the occupied West Bank, including East Jerusalem. Specifically, the complaint relates to the material and prolific use of JCB’s heavy machinery products by Israel’s military authorities and private contractors in demolitions and settlement-related construction that violate the human rights of Palestinians. The complainant submits that JCB is failing to take the actions needed to identify, prevent, mitigate, and address the use of its heavy machinery products in demolitions and settlement construction. The complainant submits that JCB is therefore in breach of five human rights responsibilities under the OECD Guidelines: a breach of the general obligation under Chapter 4, paragraph 1 of the OECD Guidelines to respect human rights, which results from a breach of specific human rights obligations at paragraphs 2-5 of Chapter 4 of the OECD Guidelines (‘contribution’, ‘direct link’, ‘human rights due diligence’, and ‘human rights policy’).

The complainant is seeking support of the UK NCP to help ensure that JCB:

1. Immediately suspends supply to Comasco (an Israeli company which is the exclusive dealer of JCB products in Israel) of products that could be part of the supply chain that results in demolitions or settlement-related construction, and to permanently cease supply to Comasco should it not be able to provide credible and verifiable guarantees that such products will not be involved in the violation of Palestinian human rights;

2. Develops and publishes on its website a human rights policy that specifically sets out the due diligence methodology it applies to ensure that its products are not at risk of contributing to and/or being directly linked to a business relationship that violates human rights; and

3. Agrees to participate with LPHR and other appropriate stakeholders in establishing an effective grievance mechanism to enable remediation. Such a mechanism would be administered in accordance with the core criteria for a remediation process as specified in the OECD Guidelines, and incorporate appropriate financial and/or non-financial remedies for individuals in respect of damages suffered through the known uses of JCB products in the demolition of their homes and property, including those identified in this complaint.

Relevant OECD Guidelines

Outcome

On 12 October 2020, the UK NCP issued an initial assessment accepting the complaint for further consideration. The NCP offered mediation to the parties, which JCB refused. The NCP then proceeded to investigate the matter itself.

On 12 November 2021, the UK NCP issued a final statement with three determinations.

The NCP found that JCB had breached principles 4 and 5 of the Human Rights chapter, which require, respectively, enterprises to have policy commitment to respect human rights and to carry out human rights due diligence:

  • The NCP determined that JCB “has not supplied any evidence of its policies enshrining human rights protection other than that it has a Supplier’s Code, Dealer’s Charter and Statement on Modern Slavery,” which the NCP found “not sufficient to meet [JCB’s] obligations under the Guidelines.”
  • The NCP determined that JCB had done no human rights due diligence, apparently based on the incorrect belief that adverse human rights impacts caused by users of its products cannot be attributed to the company, and thus that no human rights due diligence steps are necessary. The NCP stated “It is unfortunate that JCB, which is a leading British manufacturer of world-class products, did not take any steps to conduct human rights due diligence of any kind despite being aware of alleged adverse human rights impacts and that its products are potentially contributing to those impacts.”

Unfortunately, the NCP’s final statement determined incorrectly, in the view of OECD Watch, that JCB had not breached the Guidelines as regards principle 3 of the Human Rights chapter, which requires that enterprises seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship:

  • The NCP determined that although “there is a clear business relationship between JCB and Comasco,” the UK NCP could trace no direct link between Comasco and the machines subsequently photographed by complainants undertaking demolition work for illegal Israeli settlements. The NCP determined that because the machines could have “come from multiple sources” instead of directly from Comasco, such as “third parties, individuals, small dealers, construction companies, or the Israeli Government (or its public authorities)” as well as the “second-hand market,” and “may be owned by those who have commissioned the demolition, be on hire, or be equipment owned by contractors employed to do the work,” all this “creates a complex web of supply chain which goes beyond the business relationship between JCB and Comasco.”
  • Based on this analysis, the UK NCP also found that “The complex web of supply chain, and the nature of the business relationship between JCB and Comasco, as indicated above, means that JCB does not have any leverage over suppliers and customers beyond the first tier of its business relationship with Comasco.”

These findings represent a fundamental misinterpretation of the meaning of business relationship and what ‘directly links’ a company to an impact under the OECD Guidelines and UN Guiding Principles. Responsibility and linkage go both upstream and downstream in a value chain (as confirmed by multiple NCPs (see, e.g. the Dutch NCP’s final statement in the Mylan complaint) and the OECD (see, e.g. the OECD Due Diligence Guidance for Responsible Business Conduct). While companies generally only have a contractual relationship with the company at the next stage in the value chain, upstream or down, linkage happens not just through direct contracts but also the series of business relationships, as in a supply chain. If the UK NCP’s logic were applied “up” the supply chain, it would mean that each company would only be linked to abuses committed by its first-tier suppliers, and no earlier tiers – clearly a wrong interpretation considering the staged production of most modern products. By correct interpretation of the Guidelines, looking “down” the chain, JCB is directly linked to any impact that is caused using its products, even if its product is sold (or leased, or loaned) 10 times before it causes the harm. JCB does have a responsibility to seek to address those impacts, and it should use all the leverage it has and can create through contractual provisions and due diligence operations to seek to ensure its products are not used to violate human rights. This responsibility places the burden on JCB (not the victims) to prove that the machines photographed while engaged in settlement-related demolition work​ are not their products (i.e. are counterfeits), or at least show what research and steps JCB has taken to ensure that its products are not so used.

Even if the complainants did not have photos showing plainly that JCB machines are used to cause human rights abuse, the complainants’ claim of direct linkage would still be plausible and critical for investigation under the OECD Guidelines.

On 18 November 2021, Amnesty International launched a report on JCB entitled “JCB Off Track: Evading responsibility for human rights violations committed with JCB machines in the Occupied Palestinian Territories.” Amnesty also produced a video explainer and interactive map highlighting the many incidents where JCB’s machines have been used to destroy Palestinian homes, property, water pipes, olive trees and agricultural structures.

More details

Defendant
Complainants
Affected people
Date rejected / concluded
12 November 2021

Documents