Guest Post: Landmark French Ruling on West Bank Construction and International Law

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law and blogs at the Volokh Conspiracy, where this contribution is cross-posted.]

In an important but largely ignored case, a French Court of Appeals in Versailles ruled last month that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments long made against the blanket application of the relevant provisions of the Geneva Conventions to Israeli settlements. National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says.

In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would be grateful for corrections on matters of language that I have misapprehended. I venture forward because it is an important decision that deserves attention, yet has been met by complete silence by international legal scholars.

The Jerusalem Light Rail, which began running last year after a long period of construction, links the Western part of the city with the parts occupied by Jordan prior to and annexed by Israel after the 1967 War. The project was widely criticized by pro-Palestinian groups, as was the participation of French rail companies in the project. Along with a variety of political pressure and boycott activities, a Palestinian group sued the French-based multinational conglomerate Alstom Transport for its role in in the project. The case was dismissed below in 2011, and the Court of Appeals upheld the decision last week.

Crucially, the Court held that only the Government of Israel, and not private parties, can violate the relevant provisions of the Geneva Conventions.  The arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that “The Occupying Power shall not deport or transfer its civilian population into the territory it occupies.” The provision was also relied on heavily in the lawsuit. The Court ruled that 49(6) only speaks to and applies to action by the Israeli government (“the Occupying power”), and does not regulate Alton’s activities in the occupied territory.

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

This conventional reading of 49(6) as generally banning Jewish settlements is disconnected from the text, which only speaks of “transfers” carried out by the Government. Some scholars, including myself, have long maintained that private movement of persons is in no way covered by 49(6), and the Court apparently adopts this position (though I am unclear how much of a role domestic legal principles played). Now one might say the government is always “involved” – roads, security, zoning, etc., but ubiquitous “background” roles do not trigger the state action doctrine in U.S. constitutional law, and it is not clear why they would under international law. (On the other hand, if one gets a package bus/light rail ticket, it would be an unusual literal case of “transfer” into occupied territory.)

Indeed, the French case would be a strong one for inferring governmental role, since the defendant worked under contract with Israeli governmental entities. My understanding of the Court’s opinion is a little fuzzy here, but it seems they say contractual privity is not enough to trigger 49(6) either. This would certainly make it inapplicable to the vast majority of Israeli settlers (not all, necessarily, since 49(6) is ultimately a case-by-by-case factual question.

The Court goes on the reject the notion that the relevant norms have become customary or jus cogens and apply without the particular textual restrictions of 49(6).

Israel’s critics often  claim that “everyone agrees” that international law bans all “settlement activity” as it is broadly called, and that only Israeli apologists could believe the arguments to the contrary. (In the Human Rights Council’s recent report on Israel’s settlements, light rail is itself called a settlement.) I assume the Versailles Court of Appeals won’t be accused of being unduly sympathetic to the Jewish State.

Indeed, many might share my surprise on such a decision coming from a European court, especially given the supposed uniformity of views on the underlying legal issues. Perhaps two factors may explain the surprising decision: this is not an international court, but an ordinary municipal one, and it was an important French industrial concern, rather than Israel, in the dock. International lawyers may what could positively be described as professional or scientific knowledge of the matter, or more cynically as guild orthodoxy. Judges unversed in these verities might see things differently. And of course, here international law is being used against important and powerful domestic interests.

The plaintiffs could still appeal to the Cour de Cassation, which however is not obligated to hear the appeal.

http://opiniojuris.org/2013/05/01/guest-post-landmark-french-ruling-on-west-bank-construction-and-international-law/

20 Responses

  1. I have to say that I find the discussion of Article 49 in this context to be a bit off the mark. The Article doesn’t set out to regulate building infrastructure, as such, in occupied territories. On the contrary, according to Hague regulation 43, building infrastructure could even be part of the occupier’s obligations – and is therefore permitted as long as the infrastructure is built for the benefit of the local population. The discussion should thus revolve around the question whether the Jlem Light Rail system is indeed built for that purpose, and here I’m afraid there is no clear answer. East Jerusalem Palestinians ride it freely (and they make much use of it), but since Israel annexed East Jerusalem and separated it almost completely from the West Bank, it doesn’t service Palestinians at large. If there was freedom of movement from the West Bank to Jerusalem, I guess Israel would have a strong case. 

  2. Accepting this decision, I presume the war crime over which the ICC has jurisdiction could only be committed by government officials in pursuance of an official policy? Obviously the Occupying Power itself cannot be subject to the jurisdiction of the ICC…

  3. Further on my previous post (it’s frustrating that you can no longer edit posts after submission), I presume that primarily liability could be placed only on government officials in accordance with the decision, whereas secondary liability could fall upon anyone. You mention that the decision seems to reject this possibility, and I wonder why. Does anyone know about how secondary liability for torture (defined as an official act) works in this regard?

  4. I personally think the debate over settlements has been largely about Israeli responsibility rather than war crimes committed by settlers or other private parties.
    Given “deport” in 49(6) clearly means forcible transfer, what does this author think transfer” means?

  5. The meaning of “transfer” is unclear because it has never been applied to other comprable contexts, but I would say it means actually organizing and moving population en masse (compare to individual transfers in 49.1). That fits the model of German colonization of Poland and Ukraine, where Germans weren’t merely encouraged, but rounded up, trained in the relevant agriculture, screened, and taken there. Contemporary examples might include Indonesia’s Balinization program in East Timor.
    This has the advantage of being consistent with other uses of transfer in the Convention, which clear does not contemplate separate private action. 
    Any other reading of transfer would make it equivalent to “allow or make possible to go” which seems quite different.
    Settlers’ responsibility is relevant to whether the presumptive remedy for governmental violations is expulsion. Otherwise, I would say if the governmental violation were, say, a 10K tax credit, the remedy would be a 10K tax fine.

  6. Eugene,
    With respect, I really can’t see what so extraordinary about this judgment. I’ve now read it (admittedly very quickly), and it says (over and over) is that neither the Geneva Conventions, including Art 49(6) GC IV, nor the relevant customary IHL, are directly addressed to the companies in question. This is international law orthodoxy a la Oppenheim – ‘states only and exclusively are subjects of international law.’ This is of course a view that is in many ways outdated and old-fashioned, but not necessarily wrong in the context of this particular case.
    But this has no bearing on whether Art 49(6) GC IV prohibits indirect transfers, which is what the mainstream view that you point to is, including e.g. that of the ICJ. This only says that it is the state of Israel that owes obligations under GC IV and is responsible for violating them, e.g. by adopting policies that enable what would otherwise be purely private relocations into the occupied territory. In other words, the French court is saying that even if Israel has violated Art 49(6) GC IV by approving the construction of the Jerusalem light rail, this has no bearing on the validity of contracts and civil liability of private companies under French law.
    So, in short, there is nothing really surprising here – there is nothing contradictory in believing on the one hand that Art 49(6) obliges Israel not to enable indirect transfers (the mainstream IHL view), but also that private companies and individuals are not so obliged (which would probably be the mainstream PIL view).

  7. Having read the decision, it is pretty clear to me that the only interesting issues here are “Kiobel issues”. In the case, various French and Israeli companies formed an Israeli corporation, which won a bid to build the light rail. There were thus two layers of contracts: the concession contract between the State of Israel and the Israeli corporation (Citypass), and the agreements that existed between the Israeli corporation and the Israeli and French companies as shareholders in Citypass. The action in this case was brought against the French corporate shareholders. Very importantly, this was NOT a case of damages alleging the French shareholders’ secondary liability for acts undertaken by Israel. Rather, this was a case to annul the contracts. Under French law, a contract can be annulled if its “cause” is illicit.

    According to the French court, the primary prohibition of non-transfer applies to the occupying power. Thus, even assuming that the cause was illicit, it could only annul the concession contract between the State of Israel and the Israeli corporation. The Court refused to pierce the corporate veil and rule that that the shareholders agreements were invalid by “contamination”.

    Thus, this case is interesting for its refusal to pierce the corporate veil. It does not, however, have any relevance to the issue of whether natural or legal persons can be secondarily liable for acts of occupation. Given that the claim concerned the annulment of contract, the issue of secondary liability simply wasn’t before the Court.

    I’ve translated the key paragraphs on p. 21 as follows:

    “In French law, the legality of the cause [of a contract] cannot be based solely on a third-party’s appreciation of a political or social situation. In an objective sense, each party’s cause is the execution of the other party’s contractual obligations. In a subjective sense (which is more useful when considering whether the cause conforms to the public order) the cause is the essential motive for which the party entered the contact. In this case, the political motive that is attributed to the State of Israel by the appellant as the cause of its engagement [i.e,. the concession contract], cannot be applied to the cause of the contracts adopted by the [defendant] corporations [i.e., the shareholders agreements] by a ‘contamination’ effect.

    “Alstom, Altsom Transport and Veolia Transport [i.e., the French corporations] are third-parties to the concession contract signed by the State of Israel and cannot respond to the violation of international norms that are mentioned as obligations binding only upon the occupying power. Their responsibility can be invoked only in respect to contract that they signed with Citypass [i.e., the Israeli corporation]. Alstom SA, whose guarantee has not been proved, can respond to the claimed illegality of concession contract even less than Alstom Transport and Veolia Transport. As the State of Israel is not present in the debates, ruling can only issue as regards the cause of the contracts signed by the [French] corporations.”

  8. Further thoughts on the significance, in light of Marko and Daniel’s comments. Yes, it does not deal with the liability of the Gov’t – but discussions of settlements usually lay the blame much winder: 
    1) It clearly says private action is not governed by 49(6). 
    2) It suggests it is wrong to speak of settlements as “illegal.” Settlements are a mix of private and public action, with the amount of public action most would require being quite thin, and certainly not necessary 
    3) Compare this the Human Rights Council report, which called all activities whatsoever in the WB “settlements” that are “illegal.” That got report got more play than this decision.
    4) Under the Court’s ruling, cases where i)Israelis buy preexisting Arab houses, usually in Jerusalem or Hebron, and without the government knowing; 2) build additional structures on their houses; 3) are born in WB; 4) make “illegal” settlements, ie not recognized by gov’t — would all be clearly legal. There would be nothing to protest about these actions – one could still protest some background government role, if one thinks it is significant enough, but one can’t say these actions themselves are illegal. That itself would be a big change.
    4) Yes, much of the issue would still remain – how much state action is required. I would not that “indirect” transfers are not governed by the 49(6), but rather added in the ICC treaty, which to me suggests they weren’t required in 49(6). In any case, the reading that 49(6) requires the OP to not “enable” people moving to the WB means the provision actually means “shall not deport, and shall prevent individuals from moving,” which is rather different language from the chosen. 

  9. Very briefly, I would like to second Daniel and Marko’s remarks. The case was based primarily on French civil law (or attempted to be) and therefore the Israeli authorities’ violations of international law by constructing, facilitating development and expansion and providing services to illegal Israeli settlements in the occupied territory. If anything, the French court appears to assume that the Israeli government is prima facie involved in the internationally unlawful settlement enterprise, but the problem it sees is with the causal link and proximity between the companies and the government’s actions, which are those that violate the international law provisions invoked by the claimants to annul the company’s contract.  
    In any case, the question whether the transfer was ‘forcible’, as Eugene discusses (was not discussed by the French court), is a mute point with regards to the Israeli settlements, as far as international organisations  experts, and states are concerned. All of Israel’s government have supported the settlement enterprise, and lent a hand in its development to one extent or another. This point is now beyond reproach – and has been for many since the Theodor Meron legal opinion in 1967 – just as the view that the territory of the West Bank that Israel considered to be ‘disputed’ and treats as part of its own, is Palestinian territory (i.e. the ‘missing reversioner’ argument is non-admissible).  
    Although the Court does not deem to have enough information to uphold the company’s complicity under a civil law complicity standard, it had enough to conclude that the companies were in breach of their own voluntary codes and the Global Compact, which require only evidence of ‘involvement in violations’, with a much looser and more remote link to the perpetrator or unlawful act. On this basis, a potentially even more promising case, that the claimants could have made (but did not), would have been one that relies on French consumer protection law (and in particular the commercial deceptive practices provisions) to claim that the company’s breach of its own voluntary code is a deceptive advertisement of its corporate practices and governance standard. But, admittedly, I have not had a chance to examine French law and the jurisprudential practice of French courts in this regard.
    I cover some of these issues in the following post on ‘Rights as Usual': http://rightsasusual.com/2013/05/backtracking-on-responsibility-french-court-absolves-veolia-for-unlawful-railway-construction-in-occupied-territory/

  10. One thing people keep forgetting is that 49(6) settlements in disputed territories were never supposed to be included in this.
    Transferring populations to occupied territories I think clearly refers to the Nazi German practice of deporting Jews to Ghettos in Poland.
    Some people argue that because it says “deport” and “transfer” that the two must be meaning different things. That is an erroneus legal argument. Anybody with a real law degree knows that pairing such words together actually means the opposite. The two are intented to have very similar meanings under law. 
    State practice (Indian settlements in Kashmir, Taiwan settlements in Taiwan, even Palestinian settlements in the West Bank) shows that 49(6) does not apply to the case where citizens are assisted by the state to build in disputed territories.
    Considering the purpose of international law should make this clear. International law is aimed at criminalising the senseless death and destruction in war. Collective punishment (gassing of the Kurds), genocide, deliberately targetting civilians (Colonel Gaddaffi’s brutal surpression of peacefull protestors using airplanes) etc are good examples of this. If 49(6) was talking about Ghettos where some parts of a country’s population transferred to die, this correlates perfectly with the purpose. However, even in the case that the border is clearly defined (which it is not), buidling an extention to a garden over that border is clearly NOT in the same catagory of senseless civilian death and destruction that the writers of the Geneva Conventions were trying to criminalise.

  11. Velentina
    I note your “interesting” arguments regarding international law. I clicked on the link you provided and noticed
    Valentina heads and lectures on the Human Rights & International Law program at Al-Quds Bard College, Al-Quds University, Palestine.”
    The phrase “you would say that, wouldn’t you” comes to mind. Hardly a reliable informed and IMPARTIALLY INTERPRETTED view of international law.
    I also observe your degree is in “Human Rights and Business”, which is not actually a law degree as far as I’m aware.
     

  12. Sebbysteiny,
     
    As somebody who has a ‘real law degree’, may I just observe that it is the very height of impoliteness – even pure, unadulterated chutzpah – for somebody hiding behind a pseudonim to make such ad hominem remarks about Valentina as you just did (not that she doesn’t have law degrees or needs anyone to defend her). You do realize that your reasoning would exclude from the conversation anyone who works for a Palestinian or an Israeli university, or is of Jewish or Palestinian ancestry? Partisans hacks of course exist everywhere, but hackery is to be proven rather than presumed. In that regard, I hope that you are very content with your many real law degrees and many, many published articles that enable you to so easily pass judgment on others.
    As for whether anyone with a real law degree would interpret Art 49(6) GC IV as prohibiting measures taken by the occupying power with the purpose of encouraging movement of its own population to the occupied territory, I’d encourage you to read the Wall Advisory Opinion of the International Court of Justice, whose judges tend to have quite a few of those. The experience may prove to be enlightening.

  13. Unlike other accademic disciplines, in law, the Ad Homenim is not a logical fallacy. It’s a statement of fact that somebody with genuine expertise who is clearly impartially using that expertise to interpret the law has a much more valid opinion than somebody who has no genuine expertise and no intention to give a politically impartial prospective.
    Personally, I think the level of debate on this issue shames the law and undermines the rule of law because 90%-95% of people opening their mouths in this space do so only to push one political side of the debate’s side or the other.
    Compare this to the way legal accademics discuss things like fixed and floating charges over book debts or lease vs licence discussions.
    It really comes down to this. 1) Do they have enough knowledge of the legal methodology to work out the answer? 2) Will they use that knowledge impartially or disregard their knowledge for their own political agenda.
    You talk of the Wall Advisory Opinion. Do you yourself know anything about it? I have read it. And I’ve read the opinion of the descenting judge, which was one of the most shocking descenting judgements I’ve ever read.
    If you’ve read both those opinions and are familiar with the issues, I’m happy to start a conversation as long as you are motivated by truth rather than a hidden political agenda.

  14. Sebastian,
    The question here is not one of logical fallacy, but of a bare minimum of politeness and respect towards one’s interlocutors in an online forum, which you have manifestly failed to accord to Valentina. The one thing I would agree with you is that people should not express opinions on matters of which they know nothing about – and in that respect you would do well if you followed your own advice. Inter alia, the dissent of Judge Buergenthal, which is I think what you are referring to, explicitly endorses the Court’s reasoning on Israeli settlements and Art 49(6) GC IV.

  15. It’s profoundly dangerous to the rule of law for fake lawyers to be pushing clearly political opinions.
    Fake lawyers fit two types. 1) People who don’t have the expertise about which they speak but pretend they do to push their political agendas; 2) People who may have that expertise but deliberately choose NOT to use it in favour of pushing their own political agendas.
    I suspect Valentina falls into both catagories.
    My view is as long as you are prepared to genuinely try to reach the objective conclusion (in the same way lawyers do in every other field of law), I’m happy to engage.
    Three questions, which I hope you will answer impartially.
    1) What was the rational by the court for assuming the barrier was built on occupied rather than disputed territories and is that reasing legally valid?
    2) The ICJ said the following.
     “Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State.”
    How is it possible the court made such an absurd statement?
    3) Can you construct a primi facie case suggesting that all land East of the Green line is occupied Palestinian territories?

  16. Sebastian,
    If you did your research properly you would have found that Valentina has an LLB from Uni of Westminster – ‘real degree’ enough? This point is not even a moot point (as completely irrelevant) as since when one’s ‘expertise’ is only built on one’s (first) degree certificate? But more importantly, if you believe that ‘real lawyers’ are impartial only because they have the command of the subject matter then…oh dear…you know very little about how law ‘really’ functions. As other members of this forum have already pointed out, by making such remarks you only discredit your own ‘expertise’ as you do exactly what you claim others shouldn’t – you discriminate on some vague grounds without being able to rebut the argument itself(poor scholarship even for a ‘real lawyer’).   

  17. NS
    I never said lawers with command of the subject matter are therefore impartial. I said real lawyers need to do both. Having read Valentina’s blog and comments, it seems obvious to me that Valentina has made no effort at all to see the legal merits of all sides and seems instead to be acting as a Palestinian advocate.
    This is in my view unprofessional.  It doesn’t happen with lawyers in real life (except the very bad ones). Nor does it happen with legal accademics in any other accademic topic. Even accademics in international law are usually very good at respecting this crucial boundary between law maker and their role as law interpretter.
    But to be fair to Valentina, I don’t think Valentina is alone. the level of political corruption in accademics studying international law relating to Israel-Palestine is far greater than anything I have seen in any other field of law by a country mile and I think this is profoundly dangerous and undermines international law.
    I know this not just from my private studies of international law where I often come accross clearly two sided cases and continuously found many accademics forming from this hopelessly one sided “opinions” / advocacy positions (and where, after looking them up, have sometimes discovered they are involved in anti-Israel political activies as well). But also from having met and discussed the issues with a number of people who work in this space and discovered that 90% of the ones I have met are highly radicalised individuals with strong allegences to extreme anti-Israel political organisations and that furthering their radical causes appeared to be their primary motivation for choosing to go into international law with respect to Israel/Palestine.
    Re degree, you may be right. I didn’t know about Valentina’s first degree (because instead her blog spoke only of her HR and business studies qualification and I have spoken to people doing a similarly named course and found very little substantive legal content in it). But if her first degree does include sufficient content in international law, then she is somebody who knows how to interpret law correctly and impartially, but chooses not to do so to push her political idiological positions.
    I read her post here and her blog (albeit breifly) and couldn’t find a single statement that lead me to believe she considers the legal strengths and weaknesses of both sides with equal weight before typing out opinions.
    Though I am happy to concede the way I replied to Marko should have have been more in tune of his obviously superior expertise in the area. Sadly, I only discovered that considerable expertise after submitting the post.
    And I will also be happy to appologise re Valentina if you can find just one example on her entire blog where after considering the legal case of both sides, she then concludes in favour of Israel for just one point. Hopefully this should bring the chat back to the legal issues vis the case rather than attacks against me for accusing somebody of having political motivations rather than impartial legal analysis behind claimed legal viewpoints.

  18. Perhaps start by apologosing for your poor spelling…

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