In a historical trial carefully « forgotten » by the media, the 3rd Chamber of the Court of Appeal of Versailles declares that Israel is the legal occupant of the West Bank*.
When I first learned that the Court of Appeal of Versailles ruled that West bank settlements and occupation of Judea Samaria by Israel is unequivocally legal under international law, in a suit brought by the Palestinian Authority against Jerusalem’s light rail built by French companies Alstom and Veolia, that received no media coverage, I decided to put to work my years of Law Studies in France, and I meticulously analyzed the Court ruling.
To my astonishment, pro-Israeli media did not cover it either. The few who mentioned the case did not have any legal background in French law to understand the mega-importance of the ruling, and, as a few lefty English speaking Israeli websites reported it, they thought that it was a decision strictly pertinent to the Jerusalem light rail. It’s not.
To make sure I did not overestimate my legal abilities and that I wasn’t over optimistic – as usual-, I submitted my analysis and the Court papers to one of the most prominent French lawyer, Gilles-William Goldnadel, President of Lawyers without borders, to receive his legal opinion. He indeed validated my finding. Then I decided to translate it to English, and it will soon be submitted to Benjamin Netanyahu thru a mutual friend.
First and foremost, the Versailles Court of Appeals had to determine the legal rights of Palestinians and Israelis in West Bank. Their conclusion: Palestinians have no right – in the international legal sense – to the region, unlike Israel, who is legitimately entitled to occupy all land beyond the 67 line.
The context :
In the 90s, Israel bid for the construction of the Jerusalem light rail. The tender was won by French companies Veolia and Alstom. The light rail was completed in 2011, and it cross Jerusalem all the way to the east side and the « occupied territories » (more about this term later).
Following this, the PLO filed a complaint with the High Court (Tribunal de Grande Instance) of Versailles France, against Alstom and Veolia, because according to PLO, « the construction of the tram is illegal since the UN, the EU, many NGOs and governments consider that « Israel illegally occupy Palestinian territories ».
The quest for the International Legislation to establish the rights of each party.
In order to rule whether the light rail construction was legal or not, the court had to seek the texts of international law, to examine international treaties, in order to establish the respective rights of the Palestinians and the Israelis.
And to my knowledge, this is the first time that a non-Israeli court has been led to rule on the status of the West Bank.
Why is this an historical ruling: it is the first international case since the declaration of the State of Israel in 1948
It is the first time since the establishment of the State of Israel in 1948 that an independent, non-Israeli court has been called upon to examine the legal status of West bank territories under international law, beyond the political claims of the parties.
Keep in mind though, that the Court’s findings have no effect in international law. What they do, and it’s of the utmost importance, is to clarify the legal reality.
The Versailles Court of Appeal conclusions are as resounding as the silence in which they were received in the media: Israel has real rights in the territories, its decision to build a light rail in the West Bank or anything else in the area is legal, and the judges have rejected all the arguments presented by the Palestinians.
The Palestinian arguments
The PLO denounces the deportation of the Palestinian population, and the destruction of properties in violation of international regulations. Relying on the Geneva and Hague Conventions and the UN resolutions, it considers that the State of Israel is illegally occupying Palestinian territory and is pursuing illegal Jewish colonization. Thus, construction of the light rail is itself illegal (1).
The PLO adds that the light rail construction has resulted in the destruction of Palestinian buildings and houses, the almost total destruction of Highway 60, which is vital for Palestinians and their goods, and has conducted many illegal dispossessions. Therefore, several clauses from the annexed Regulations to the October 18, 1907 Fourth Hague Convention were violated (2).
Finally, the PLO alleges that Israel violates the provisions relating to the « protection of cultural property » provided for in Article 4 of the Hague Convention of May 14, 1954, Article 27 of the Hague Regulations of 1907, Article 5 of the Hague Convention IX of 1907, and Article 53 of Additional Protocol No. 1 to the Geneva Conventions.
The Court of Appeal does not deny the occupation, but it destroys one after another all the Palestinian arguments
Referring to the texts on which the PLO claim is based, the Court of Appeal considers that Israel is entitled to ensure order and public life in the West Bank, therefore Israel has the right to build a light rail, infrastructure and dwellings.
Article 43 of the Fourth Hague Convention of 1907 stipulates that « The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety ».
Israeli occupation does not violate any international law
« The Palestinian Authority misread the documents, they do not apply to the occupation »
The Court explains that the Palestinian Authority misinterprets the texts and they do not apply to the occupation:
First of all, all the international instruments put forward by the PLO are acts signed between States, and the obligations or prohibitions contained therein are relevant to States. Neither the Palestinian Authority nor the PLO are States, therefore, none of these legal documents apply.
Secondly, said the Court, these texts are binding only on those who signed them, namely the « contracting parties ». But neither the PLO nor the Palestinian Authority have ever signed these texts.
Propaganda is not international law
The Court, quite irritated by the presented arguments, boldly asserted that the law « cannot be based solely on the PLO’s assessment of a political or social situation.«
Humanitarian law was not violated
The PLO mistakenly refers to the wrong legal document because the Hague Convention applies in case of bombing.And … « Jerusalem is not bombed. »
The PLO invokes the violation of humanitarian law contained in the Geneva and Hague Conventions.
But on the one hand, says the judges of the Court of Appeal, international conventions apply between States and the PLO is not a State: « the International Court of Justice has indicated that [the Conventions] only contain obligations for the States, and that individual have no rights to claim the benefit of those obligation for themselves ».
Then the Court says that only the contracting parties are bound by international conventions, and neither the PLO nor the Palestinian Authority have ever signed any of them.
The Court draw the conclusion that the PLO is mistakenly referring to the wrong legal document because the Hague Convention applies in case of bombing. And … « Jerusalem is not bombed.«
The PLO and the Palestinians were dismissed
The PLO cannot invoke any of these international conventions, said the Court.
« These international norms and treaties » does not give the « Palestinian people that the PLO says he represents, the right to invoke them before a court.«
The Court of Appeal therefore sentenced the PLO (and Association France Palestine Solidarité AFPS who was co-appellant) to pay 30,000 euros ($32,000) to Alstom, 30,000 euros to Alstom Transport and 30,000 euros to Veolia Transport.
Neither the PLO nor the Palestinian Authority nor the AFPS appealed to the Supreme Court, therefore the judgment has become final.
This is the first time that a Court has legally destroyed all Palestinian legal claim that Israel’s occupation is illegal.
(1) The PLO relies on article 49 of the Fourth Geneva Convention of August 12, 1949, which states that « the occupant power may not deport or transfer part of its own civilian population in the Territory he occupies », and article 53, which states that « the occupant Power is prohibited from destroying movable or immovable properties belonging individually or collectively to private people, to the State or to public authorities or social or cooperative organizations, except in cases where such destruction is rendered absolutely necessary for military operations ».
(2) The PLO refers to the Fourth Geneva Convention of August 12, 1949:
Article 23 (g), which prohibits « the destruction or seizure of enemy properties except in cases where such destruction or seizure are imperatively ordered for the necessities of war. »
Article 27 according to which « in the sieges and bombardments, all necessary measures must be taken to spare as much as possible the buildings devoted to worship, the arts, sciences, charitable institutions, historical monuments, and hospitals … »
Article 46 which states that « private property can not be confiscated ».
News is breaking of a huge win in France. It’s a technical case but essentially a court has confirmed what most of us know to be true. It concerns the building of the light rail project in Jerusalem by Alsthom, Veolia and another firm.
The PLO/PA sued these firms in France indicating that they should not have taken the project.
The court has basically said Israeli “occupation” is not illegal and orders PLO/PA to pay court costs to Alsthom, Veolia, & another firm. The court costs add up to 90,000 euros.
The Court of Appeal of Versailles (PLO c / Alstom and Veolia) concludes that the Israeli occupation is not illegal
Here is a study that friends of Israel must be preserved carefully in their archives. France is not neutral in the conflict, and the judgment of the Court is of particular importance.
Veolia and Alstom built, following a call for tenders, the Jerusalem tramway through the city to the east, into the territories claimed by the PLO and the Palestinian Authority.
The PLO considers that the State of Israel is illegally occupying Palestinian land and continues an illegal Jewish settlement in the construction of the tram and is itself unlawful.
The legal arguments of the PLO removed one after another
Organization for the Liberation of Palestine has therefore embarked on a lengthy trial that just ended before the Court of Appeal of Versailles, March 13, 2013, by an overwhelming so inconvenient conclusions were spent hammering totally under silenced by the mainstream media to inform you loaded independently.
The occupation of Palestinian territory is not illegal
The PLO is based on international law and considers that Israel illegally occupies Palestinian territory and is pursuing an illegal Jewish settlement. The construction of the tram and itself illegal. In support, the PLO alleges infringement of several texts:
Article 49 of the Fourth Geneva Convention of 12 August 1949 which states that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Article 53, which states that “it is forbidden for an occupying power to destroy the real or personal property belonging individually or collectively to private persons, the State or public authorities and social or cooperative organizations except where such destruction is rendered absolutely necessary by military operations. “
The PLO added that the construction has caused destruction, virtually removing the 60 vital road for Palestinians and their goods, removal of tracks and paths, and expropriations. There had therefore been a violation of several articles from the Regulations annexed to the Fourth Hague Convention of 18 October 1907:
Article 23 (g) which prohibits “destroy or seize the enemy’s property except where such destruction or seizure be imperatively demanded by the necessities of war”
Article 27 that “in sieges and bombardments all necessary steps must be taken to spare as far as possible buildings dedicated to religion, art, science or charitable purposes, historic monuments, hospitals …”
and Article 46, which states that “private property can not be confiscated.”
Finally, the PLO says Israel violates the provisions relating to “the protection of cultural property” under Article 4 of the Hague Convention of 14 May 1954, Article 27 of the Hague Regulations of 1907, the Article 5 of the Hague Convention IX of 1907 and Article 53 of Additional Protocol 1 to the Geneva Conventions.
Niet! meets the Court of Appeal, without denying the occupation, said Israel was within its rightsbecause “… the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country “(Article 43 of the 4th Convention The Hague 1907).
The occupation does not violate any international law
And the Court did not stop there … It explains why the occupation of the West Bank by Israel does not violate any international law.
The PLO, explaining that the occupation is illegal, says Israel is violating:
Articles 49-6 and 53 of the Geneva Convention,
Articles 23, 27 and 46 of the Regulations annexed to the Fourth Hague Convention of 1907,
Article 4 of the Hague Convention of 14 May 1954
Article 27 of the Hague Regulations of 1907,
Article 5 of the Convention IX of the 1907 Hague
and Article 53 of Additional Protocol 1 to the Geneva Conventions.
Not at all! meets the Court of Appeal of Versailles , which states that:
First, all of these texts are international acts signed between states and the obligations or prohibitions they contain are addressed to States. Neither the Palestinian Authority nor the PLO are States, none of these texts do not apply to them .
Second, the Court still remember, these texts are addressed to “the Contracting Parties”, ie both parties have signed – and again, neither the PLO nor the AP never signed these documents .
Propaganda does not replace the law
An irritated anything, the Court also added that the French law … “can not be based solely on the discretion [the PLO] a political or social situation.”
Humanitarian law is not violated either
The PLO, which then tries to hide the humanitarian standards, is once again sent into the ropes by the court, who said that while the Geneva Conventions and the Hague Convention are applicable in French law .
But “the International Court of Justice stated that they (the agreements) contain only obligations on states, and that the right of individuals to rely on was not mentioned” , only the parties contractors are bound by those conventions, and the Hague Convention of 1907 are not applicable because … Jerusalem is not bombed!
The PLO and the Palestinians can not rely on any international texts
Finally, the Court said, “the conventional international standards” do not give the “Palestinian people shows that the PLO represent the right to plead before a court. ”
PLO condemned AFD
The Court of Appeal sentenced the AFPS (Association France Palestine Solidarity) and the PLO to pay 30,000 euros to Alstom, 30,000 euros from Alstom Transport, and 30 000 Veolia Transport.
Landmark French Ruling on West Bank Construction and International Law
In an important but largely ignored case, a French Court of Appeals in Versailles ruled last week 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 have long claimed that “everyone agrees” that all “settlements” (a term referring to all Israeli activity in the West Bank, at least that benefits Jews) clearly violates international law, and that only Israeli apologists could believe the arguments to the contrary. 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 Casssation, which however is not obligated to hear the appeal.
As to one point mentioned in the Times of Israel: the ruling says nothing much on the legality of settlements in the territory liberated from illegal Jordanian occupation. That is correct: so many of the so called settlers were just returning to areas they’d been thrown out of when Jordan invaded as Yisrael Medad says in a comment on the Times piece:
As regards Jewish communities, the whole point left-wingers and Arabs ignore, from a legal perspective, is that historically “settlements” already existed before 1967, well, prior to 1948, at which time it was the Arabs who commited crimes of ethnic cleansing and expelling Jews from Gaza, Shchem(Nablus), Jenin, Hebron, Gush Etzion, Neveh Yaakov, Bet HaAravah, Atarot and Jerusalem’s Old City and environs like Shimon HaTzadik neighborhood. Jews have not been “transferred in”; they were expelled and are returning to their former resisdential locations as part of the indigenous Jewish population over the past centuries.
So there. And for another opinion here is Eliyahu m’Tsiyon of Emet m’Tsiyon:
The author of the article, Raphael Ahren, fails to bring out that the Levy Report which Alan Baker was coauthor of states that Judea and Samaria are not occupied.
Frances Raday misses that point too and then speaks foolishly about the length of time of time of an occupation rendering it “illegal.” Actually, if it weren’t Israel involved, your “int’l legal experts” would argue that the length of time that Israel has held Judea-Samaria dissolve the “occupation.”
That is, that the longer time passes, the less the area can be called occupied. Ahren is also rather thick on Geneva IV:49. As an article or report, Ahren’s work is poor, leaving out significant facts as well as the actual positions of those whom he interviewed.
And if you’re in the mood for 45 mins of legal explanation, here are a few truths about the legalities of Israel and the liberated territories that many could do with listening to and internalising.
As to one point mentioned in the Times of Israel: the ruling says nothing much on the legality of settlements in the territory liberated from illegal Jordanian occupation. That is correct: so many of the so called settlers were just returning to areas they’d been thrown out of when Jordan invaded as Yisrael Medad says in a comment on the Times piece:
ReplyDeleteAs regards Jewish communities, the whole point left-wingers and Arabs ignore, from a legal perspective, is that historically “settlements” already existed before 1967, well, prior to 1948, at which time it was the Arabs who commited crimes of ethnic cleansing and expelling Jews from Gaza, Shchem(Nablus), Jenin, Hebron, Gush Etzion, Neveh Yaakov, Bet HaAravah, Atarot and Jerusalem’s Old City and environs like Shimon HaTzadik neighborhood. Jews have not been “transferred in”; they were expelled and are returning to their former resisdential locations as part of the indigenous Jewish population over the past centuries.
So there. And for another opinion here is Eliyahu m’Tsiyon of Emet m’Tsiyon:
The author of the article, Raphael Ahren, fails to bring out that the Levy Report which Alan Baker was coauthor of states that Judea and Samaria are not occupied.
Frances Raday misses that point too and then speaks foolishly about the length of time of time of an occupation rendering it “illegal.” Actually, if it weren’t Israel involved, your “int’l legal experts” would argue that the length of time that Israel has held Judea-Samaria dissolve the “occupation.”
That is, that the longer time passes, the less the area can be called occupied. Ahren is also rather thick on Geneva IV:49. As an article or report, Ahren’s work is poor, leaving out significant facts as well as the actual positions of those whom he interviewed.
And if you’re in the mood for 45 mins of legal explanation, here are a few truths about the legalities of Israel and the liberated territories that many could do with listening to and internalising.