In early March, two Palestinian villages and two Palestinian-Americans filed an unusual legal claim in a federal court in Delaware. It represented the first attempt by Palestinians to challenge the Israeli settlement enterprise in the United States.
The challenge took the form of an intervention in a lawsuit that had been filed earlier by a group of Israeli-Americans, with homes in settlements, against the online hospitality giant Airbnb. That lawsuit charged the company with discrimination after it announced it would no longer list properties in the occupied West Bank. In intervening in the suit, the Palestinians flipped the script: They argued that it is the settlers’ conduct, and not Airbnb’s attempt to reconcile its business practices with basic human-rights law, that discriminates against Palestinians. They further charged the settlers with discrimination on the basis of religion and national origin, trespassing, and unjust enrichment and international war crimes.
Now, one month later, Airbnb has settled with their pro-settlement critics—but the Palestinian intervenors are continuing to pursue their claim.
On April 9, Airbnb announced that it will not be removing its listings in Israeli settlements in the occupied West Bank, as it had said it would back in November 2018; instead, it will continue to allow listings throughout the West Bank, but will donate its profits to “non-profit organizations dedicated to humanitarian aid that serve people in different parts of the world.” Two days later, on April 11, attorneys for the Center for Constitutional Rights, which represents the two Palestinian villages and two Palestinian Americans, urged a federal judge to permit their claims against Americans with properties in Israeli settlements to proceed.
“Our clients, Palestinians directly affected by these Airbnb postings, intervened in the lawsuit precisely because they have significant interests at stake, and to prevent an outcome that utterly ignored those interests,” said Center for Constitutional Rights Staff Attorney Diala Shamas in a statement. “To dismiss this lawsuit without even considering the intervenors’ claims would be yet another affront to the rights of people who have had their land stolen and who have been discriminated against on the basis of their religion and national origin.”
News of Airbnb’s settlement sparked dismay and outrage from a range of human rights groups, among them Human Rights Watch, which, along with several other organizations, had urged Airbnb to remove the settlement listings. “Airbnb cannot wash its hands by donating profits from unlawful settlement listings. So long as they continue to broker rentals on land stolen from Palestinians who themselves are barred from staying there, they remain complicit in the abuses settlements trigger,” Omar Shakir, the Israel and Palestine director of Human Rights Watch, told The Nation. He added: “They’ve just been bullied into not taking the actions that flow from their own findings and their international human rights obligations.
Meanwhile, Shurat HaDin, a pro-settlement law office based in Israel which represented the group of American Jews in the lawsuit against Airbnb, hailed the settlement as a victory. Conflating Airbnb’s decision to delist rentals in the occupied West Bank with the Boycott, Divestment, Sanctions (BDS) movement, it called the company’s about-face “a powerful defeat for the anti-Israel boycott movement” in a statement.
“The policy Airbnb announced last November was abject discrimination against Jewish users of the website,” Nitsana Darshan-Leitner, one of the lawyers in the US case, said. “We commend Airbnb for recognizing that it had landed on the wrong side of this issue and changing the policy.”
But Airbnb’s announcement did not indicate it has had a change of heart but rather that it has buckled under pressure, specifically to the potential consequences of anti-BDS legislation sweeping the United States in recent years. Airbnb has made a forceful point of opposing BDS throughout this process—and in its four-paragraph statement announcing the settlement, the company dedicated a full paragraph to emphasizing that “Airbnb has never boycotted Israel, Israeli businesses, or the more than 20,000 Israeli hosts who are active on the Airbnb platform.”
As of April 2019, 27 states have passed anti-boycott legislation prohibiting state entities from contracting with companies or individuals that have or will boycott Israel (some do not distinguish between settlement boycotts and BDS).
And, in early March of this year, pursuant to a 2017 law passed in Texas, the the state’s comptroller, Glenn Hegar, officially added the online hospitality giant to a blacklist, giving Airbnb 90 days to prove to the comptroller that it doesn’t boycott Israel.
According to a report in the Texas Observer last month, the Comptroller’s Office notified the state pension funds that they are required to divest from Airbnb. Employees Retirement System of Texas, the state’s second-largest pension fund, has an indirect investment of $460,000 in Airbnb, according to that report, and state pension funds make up a huge chunk of the money flowing into the investment market. If the 26 other states with anti-BDS laws decided to follow suit and label Airbnb as a company non grata, this could have been a serious economic blow.
Several e-mails exchanged between University of Texas in Austin administrators and faculty in March following the Texas comptroller’s decision suggest how serious the precedent set by the Texas comptroller could be for Airbnb. One e-mail sent by the university’s procurement office to staff and obtained by The Nation, read: “UT will no longer reimburse Airbnb lodging to comply with current government regulations.” In another e-mail, the university wrote: “please be advised that AirBnB is off limits.” A third e-mail explicitly informed staff: “Texas Gov’t Code Chapter 2270 Prohibition on Contracts with Companies Boycotting Israel applies to us.”
Airbnb did not respond to requests for comment. Nonetheless, between the settler lawsuits, Israeli government pressure, and increasing threats of anti-BDS legislation in the United States on both the state and federal levels, Airbnb has apparently weighed the costs and come to the conclusion it has much more to lose by pulling out of the occupied West Bank than by staying in.
For Randa Wahbe, one of the Palestinian intervenors in the lawsuit, the news has been distressing, but she still has hope the US courts will consider her claim. “Although I am disappointed by Airbnb’s about-face, we have always known that the road to justice would be a long one,” said Wahbe in a statement. “We laid out the settlements’ discriminatory realities for the court and how they impact our daily lives. I hope the court will allow us to proceed with our claims.”