Australia/Israel & Jewish Affairs Council

French decision sheds light on legality of West Bank settlements

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Daniel Meyerowitz-Katz

On 23 March this year, the Versaille Court of Appeal in France delivered a very significant judgment in a case brought by the Association France-Palestine Solidarité (France-Palestine Solidarity Association, or 'AFPS') and joined by the Palestine Liberation Organisation ('PLO'), against French companies Societé Alstom and Veolia Transport. The ruling sparked some debate within the Jewish media and -- more recently -- the international law blogosphere, but seemed to pass by the rest of the world largely unnoticed. Yet it was the first significant decision in a domestic court on many issues of international law that have been hotly debated for years, and the results may be important in the development of international law.

The case concerned the construction of the light rail system in Jerusalem, which crosses over the 1949 armistice line between Israel and Jordan (the 'Green Line') into parts of Jerusalem captured by Israel in the 1967 conflict. The two French companies had formed a joint venture known as Citypass Ltd, in conjunction with Israeli companies Polar and Ashtrom, in order to bid for the Israeli government's tender. Citypass won the contract, and the rail has been operating since 2011. [See HERE for an interesting article on the light rail from a tourist's perspective.]

The AFPS and the PLO contend that all of Jerusalem past the Green Line is "illegally occupied", but Israel purports to have officially annexed the areas in question. The applicants claimed that the construction of the railway was against international legal norms that had been incorporated into French law. Their main argument was that the railway promoted Israeli settlements in the West Bank by facilitating transport to and from Jerusalem, and that its construction amounted to de facto annexation of what they believed to be 'Palestinian land'. They alleged that Israeli construction over the Green line was in violation of the laws of belligerent occupation -- principally, the prohibition in Article 49 of the Fourth Geneva Convention ('GCIV') of an Occupying Power "deport[ing] or transfer[ring] parts of its own civilian population into the territory it occupies"; and the prohibitions in Article 53 of the GCIV and Articles 23, 27, and 46 of the regulations annexed to the 1907 Hague Convention ('Hague Regulations') on the seizure or destruction of enemy property unless "rendered absolutely necessary by military operations".

The Court ruled that AFPS did not have a sufficient interest in the dispute in order to bring the proceedings. The Association had claimed to be acting "in defence of the collective interest of its members", however these members were held not to be affected by the contract between Citypass and the Israeli government. On the other hand, the PLO was granted standing as the PLO itself was found to besufficiently affected by the contract in dispute, despite being a third party to that contract and notwithstanding its disputed status as the 'legitimate' representative of the Palestinian people.

Some fuss was made in anti-Israel fora about the Court's brief discussion of the legal basis for constructing the light rail and the relevance of the law of occupation in general. In the words of the Electronic Intifada website's Adri Nieuwhof, Jeff Handmaker, and Daniel Machover:

The judges did confirm that international treaties such as the Fourth Geneva Convention and the Hague Regulations of 1907 apply to Israel's occupation of the West Bank and Gaza Strip, including East Jerusalem. However, in a series of confusing, ambiguous and legally questionable statements, the judges "considered" that the occupying power should restore normal public activity in the occupied country, "recognizing" that "the introduction of a public means of transport" could be conducted by an occupying power.

Actually, the judges did nothing of the sort. The confusion arises from the amateur English translation of the judgment released by Eugene Kontorovich from the Volokh Conspiracy blog, from which most commentators seem to have been working. Referring to Article 43 of the Hague Regulations, which allows for an Occupying Power to "ensure ... public order and safety", the translation provides that "[o]n the basis of this article, it was considered that the occupying power could and in fact should restore normal public activity in the occupied country". However, the original French for "it was considered" ("il a été considéré") is more accurately translated as "it has been considered". These comments were merely made in passing, they had no direct bearing on the judgment.

In fact, the Court made no particular finding regarding the Israeli government or the applicability of the laws of occupation to the Palestinian territories. What the Court did find was that the GCIV and the Hague Regulations did not apply to the French companies. As the Court noted, these conventions are "inter-state treaties. The obligations or prohibitions they contain are addressed to states." Accordingly, the Court found that the French companies could not be in breach of obligations held by the State of Israel.

The Court also held that as the obligations applied only between states, there was no right created under them that individuals could directly invoke. As the PLO was not a state, therefore, it could not claim to have been affected by a breach of these provisions. Similarly, the Conventions were held to create no specific obligations on non-State entities such as the French companies. Finally, the Court found that the French companies were not legally bound by their internal codes of ethics or by a UN compact that they had signed onto, both of which could arguably have incorporated some of the international laws in the claim.

It seems to have been Kontorovich who first picked-up the true significance of the case. In a post published on both Volokh Conspiracy and the Opinio Juris blog, Kontorovich noted that:

This is an extraordinarily important holding in light of the decades old-debate about the meaning of [GCIV Article] 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.

Essentially, while the Court remained quiet on the matter of whether or not Israel's activities in the West Bank contravene international humanitarian law, the Court made it clear that whatever Israel might do, no party other than Israel's national goverment would be responsible.

This is highly significant, especially in light of the fact that Israel's approach to the West Bank can scarcely be described as a coherent "policy". As detailed in last year's 'Levy Commission Report', the settlements have generally sprung-up in an ad hoc fashion -- through private Israeli citizens moving to the West Bank, and the Israeli government then providing them with varying levels of support and protection from time to time. Under the French ruling, none of the private individuals are liable under the laws of occupation, and it is highly debateable what, if any, liability the government of Israel would have for individual settlements. Certainly, many settlements that have been repeatedly referred to as "illegal" in UN report after UN report would not be considered illegal under the French Court's interpretation of international law.

That finding, however, may not have been the most important aspect of the French ruling. Rather, it may be the finding that the PLO had no right to claim a breach under the GCIV and the Hague Regulations, because those treaties only apply between states.

This has long been the Israeli position, one which has been widely rejected by the UN's various organs (including the International Court of Justice) and scores of scholars of international law -- a field in which some scholars appear to possess a bizarre, almost pathological, antipathy towards Israel. The Israelis argue that the West Bank cannot be considered "occupied" in the conventional sense, as no sovereign state has a claim to the territory there, and the laws of occupation only apply where one state occupies the territory of another state. The UN counters with the argument that the GCIV was intended to apply to any situation in which a state exercises military rule over a population outside its borders.

International law, however, cannot be interpreted according to no more than statements made by state officials. The system of international law relies on states bindingthemselves to act in certain ways - whether by signing a treaty, or by overwhelming customary adherence to an identifiable legal norm.  As one of the most powerful states in the EU and as a permanent member of the UN Security Council, France has repeatedly stated that it considers Israeli settlements over the Green Line to be illegal. As Kontorovich astutely observed:

...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.

It follows that while France is perfectly happy to send its diplomatic representatives to international summits in order to rail against settlement activity, when France's actual interests are concerned, they sing a markedly different tune.

Customary international laws develop when states overwhelmingly follow a particular norm by which they evidently consider themselves to be bound. No matter how many statements and resolutions may be issued on a subject, when push comes to shove, it is the actions of states with respect to the subject that shapes the law.

For all the statements about the supposed illegality of Israel's presence in the West Bank, the only states actually affected  by the situation -- Israel and Jordan -- have both recognised Israel's presence there as legitimate since at least 1994. While this ruling could be subject to an appeal, France, through its municipal legal system, seems to have added itself to that small list for the time being.