By Eugene Kontorovich, Volokh Conspiracy
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.
steven l Said:
If it, the language of the Conventikon being directed at state action, is a holding, it would be very favorable as Professor Kontorovic points out. If it is merely obiter dicta as Alan Baker seems to say in the Israel Times, it would be slightly favorable. I cannot tell which it is without access to a translation of the full text of the decision of the French court.
@ Black Sheep:
This becomes a precedent favorable to IL.
When I commented on report of the case in the Israel Times as follows below, I did not have the full text of the decision before me. I had only the report in the Times with Alan Baker’s description of the “holding” of the court. http://www.timesofisrael.com/french-ruling-on-jerusalems-light-rail-adds-nothing-new-scholars-say/ He is an able jurist and I accepted his report of the holding of the case as correct. Professor Kontorovic may be commenting on “dicta”.
DICTA
The part of a judicial opinion which is merely a judge’s editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.
Dicta are judicial opinions expressed by the judges on points that do not necessarily arise in the case.
Dicta are regarded as of little authority, on account of the manner in which they are delivered; it frequently happening that they are given without much reflection, at the bar, without previous examination.
As one judge said, ‘If general dicta in cases turning on special circumstances are to be considered as establishing the law, nothing is yet settled, or can be long settled. What I have said or written, out of the case trying, or shall say or write, under such circumstances, maybe taken as my opinion at the time, without argument or full consideration; but I will never consider myself bound by it when the point is fairly trying and fully argued and considered. And I protest against any person considering such obiter dicta as my deliberate opinion.’ And another said it is ‘great misfortune that dicta are taken down from judges, perhaps incorrectly, and then cited as absolute propositions.’
I still haven’t found an English translation of the full text of the opinion. In my comment on the Israel Times report I did note that “The Arabs are taking a statute directed at the unlawful exercise of state power and trying to apply it to the actions of individuals by interpreting it as requiring Israel to prohibit its citizens from moving. In some cases those who moved were returning to places from which they had been expelled by Jordan during its illegal occupation. Such a prohibition would require Israel to violate the UN Declaration of Human Rights, articles 13 and 15 and engage in perpetuating ethnic cleansing making these areas “judenrein” as the Nazis referred to it.” I was not aware that the full text of the decision incorporated the basis that the fourth Geneva Convention was directed only at state action for upholding the right of the light rail company. Therefore I agree with Professor Kontorovic that the decision tends to support the Levy Report view and my own view of the legality of settlements but if it the language in the decision is only dicta, it helps only a little. Please note that Alan Baker was one of the authors of the Levy Report.
My comment to the Israel Times story:
“This case does not support the proposition that the Jewish occupation of the so called “{West Bank” is legal. It supports the light rail on the basis that the Israelis are complying with Article 43 of the 4th Hague Convention of 1907. The Levy Report says the Convention doesn’t apply because Jordan was not a legitimate sovereign of the West Bank. It invaded the former British Mandate just as the Jews proclaimed their independent rule over it. Jordan’s Arab Legion, then supplied and led by the British, was the most successful of the Arab armies of adjacent states who invaded Israel in 1948. Under International Law an invader in an aggressive war does not gain sovereignty over the acquired territory. In the whole world only Britain and Pakistan recognized Jordan’s sovereignty over the area. When the Jews recaptured the area in 1967 they liberated it from illegal Jordanian occupation. The roots of the Jewish claim to the area is the 1920 ruling of the Principal War Powers in WWI on the competing claims of the Jews and Arabs submitted in the Paris Peace Talks. This ruling was not made in Paris in the Versailles treaty but was postponed to April 25th, 1920 when the Principal War Powers were reconvened at San Remo and awarded recognition of the political rights to Palestine to the Jews, adopting the British Balfour policy. It was spelled out first in the San Remo resolution and in more detail in the British Mandate for Paris in 1920 and in a later draft following the Cairo Conference of March 21, 1921 that truncated Jewish rights purporting to leave the Jews only lands West of the Jordan River. The League of Nations and the US confirmed that recognition in 1922, a total of 52 states recognizing the rights of World Jewry based on their historic association with Palestine. Under that policy there was to be a two step process. First the Jews were to be given a beneficial interest only as they were then a small minority of the total population in Palestine. Second, they needed time to become capable of exercising sovereignty. When they met both those standards, the legal interest in the political rights to Palestine would vest in the Jews. Until then, the British would have legal dominion over the political rights and would have the right to legislate and administer the law in Palestine. See the legal opinion of British barrister Duncan Campbell Lee in a lecture to University College, London University in May, 1921. The Mandate for Mesopotamia and the Principle of Trusteeship in English Law. http://archive.org/stream/cu31924052878265#page/n3/mode/2up focusing on the meaning of “mandate”.
The UN General Assembly found in 1947 that the Jews had the capability of exercising sovereignty over Palestine otherwise when the British announced its withdrawal as trustee they could have simply appointed another trustee. The Jews attained a population majority in 1950 within the Armistice lines. By now they have an 80% majority within the Green Line Armistice lines. Annexation the West Bank would reduce that only to 66%.
The second legal issue resolved by the Levy Report is that the 4th Geneva Convention is inapplicable to the settlements in Judea, Samaria and Jerusalem for several reasons. 1. The so called “Palestinians” are not a signatory to the convention. 2. Jordan has relinquished its claim. 3. The law of belligerent occupation is inapplicable because Jordan was not a legitimate sovereign in the West Bank. 4. Even if it were applicable, there would have to be a showing that the Israelis had deported or transferred their citizens to a place outside the Green Line Armistice boundary. But the settlers were not coerced to relocate to places in the so called “West Bank”. The decision to move were individual decisions made for economic or religious reasons. The Arabs are taking a statute directed at the unlawful exercise of state power and trying to apply it to the actions of individuals by interpreting it as requiring Israel to prohibit its citizens from moving. In some cases those who moved were returning to places from which they had been expelled by Jordan during its illegal occupation. Such a prohibition would require Israel to violate the UN Declaration of Human Rights, articles 13 and 15 and engage in perpetuating ethnic cleansing making these areas “judenrein” as the Nazis referred to it.”
Based on consideration of what Alan Baker says is the holding, the decision is consistent with but does not advance the view in the legal report and my own view that the Geneva Convention is a prohibition only of state action. However I do concur wholly with Professor Kontorovic’s excellent discussion of the San Remo Agreement that can be found in a video at “The Torah Cafe” on line and particularly on his view of what can be considered to be “International Law”.
when will we Jews learn that we have another set of laws in place which govern our potential rights to Eretz Yisrael?
Do you really believe that a ruling by some court in France is going to save the day?
Schlufing Jews!
Since the Court was interpreting the FGC, it must have held that the FGC applies even though it is no the land of a High Contracting Party.
The French are such total hypocrites. As long as it’s a FRENCH company building a railroad, why, that’s perfectly okay, but when the Jews are doing something, anything, oh no, that’s bad.