Backtracking on Responsibility: French Court Absolves Veolia for Unlawful Railway Construction in Occupied Territory
This short case note was originally published on Rights as Usual, a business and human rights blog run by Dr. Nadia Bernaz, who head the MA in Human Rights & Business at Middlesex University, London, UK.
On 22 March 2013 (a decision that became public more recently), the Versailles Court of Appeal dismissed the case against two French companies, Alstom and Veolia, for their involvement in a contract for the construction of a light railway between illegal Israeli settlements located in East Jerusalem, inside the Palestinian territory of the West Bank, and West Jerusalem, territory located inside Israel’s internationally-recognised borders.
The case was first submitted by the France Palestine Solidarity Association (AFPS) and the Palestine Liberation Organization (PLO) in February 2007 to the Nanterre Court of First Instance requesting the annulment of the contract concluded between the Israeli authorities and the French companies, due to the contract’s unlawful purpose of facilitating the establishment of Israel’s illegal settlements in occupied territory and the movement of Israeli Jewish settlers between Israel and their residences in occupied territory.
In May 2011, following several hearings, the Nanterre Court of ‘Grande Instance’ held that the conventional and customary international law invoked by the claimants – including provisions of the Geneva Conventions and Additional Protocol I thereto, including peremptory norms of international law (jus cogens) – did not create obligations that are “directly applicable” to private companies. It added that the violations in question were those of the Israeli state; international law violations did not invalidate the contract between the companies, which was governed by Israeli, and not French civil law. The Court also concluded that the claimants failed to demonstrate the proximity and causal link of the company’s actions to the Israeli authorities’ internationally unlawful conduct.
The recent March 2013 decision on appeal confirms and builds on this position, absolving the companies of any responsibility for their involvement in internationally unlawful acts, and maintaining the contracts’ validity under French law. Probably the most damning conclusion of the recent judgment on appeal is that the international law provisions relied on “do not create direct obligations that may be placed upon private companies.” The decision holds that private companies are not subjects of international law and do not have international legal personality – beyond the realm of economic and commercial acts governed by certain international instruments. As such, the international legal obligations relied on by the claimants were neither directly applicable to private companies, nor did they give rise to rights that can be claimed by individuals.
The Court then proceeded to dismiss the legal character and relevance of the companies’ obligations under their own voluntary codes, as well as the UN Global Compact. In so doing, the Court adopts a position that strikingly backtracks on the important international developments concerning the responsibility of multinational companies under international law, including to ‘protect, respect and remedy’ human rights. It also undoes what has come to be a commonly accepted position of international lawyers, as well as political and economic experts concerning multinational companies’ advanced international legal personality, which is oftentimes much more developed than other non-state subjects of international law, also due to the growing influence of companies over political and social realities worldwide.
Finally, although the Court ruled that the “occupying power can and should re-establish a normal public activity within the occupied country through administrative measures in the usual areas addressed by State services” and that as such “the building of a tramway by Israel is not prohibited”, it did not mention or discuss the fact that the railway was built for the purpose of linking illegal Israeli settlements in the occupied Palestinian territory of East Jerusalem with West Jerusalem, a service that neither benefits the Palestinian population, nor purports to do so. Since the Israeli government was not present in the proceedings, the Court stated that it cannot accept the petitioners’ claim that the contract between the French and the Israeli company constructing the railway had been concluded to further an ‘illicit’ purpose (that of Israel’s settlement project in occupied territory).
The Veolia case is also an interesting case study for the variety of means and methods used to promote and bring about respect for human rights and international law by corporations – including campaigning, advocacy and litigation. Many of these measures bore fruit, with early on in 2011 being an important turning-point, when, following overwhelming pressure, Veolia withdrew from the railway project. More recently, in February 2013, a top Norwegian financial adviser noted in a presentation to the largest pension fund in the UK, Hermes Investment Management, that Veolia is an outstanding example of a company that has suffered “expensive damage”, including loss of large contracts and reputational costs, due to its involvement in internationally unlawful acts in the occupied Palestinian territory. In 2012, Veolia was excluded from public contracts with UK local councils, under UK and EU procurement law, due to its involvement in the international law violations. Despite these successes, Veolia continues to provide services to the Israeli authorities involved in international law violations. It is servicing a landfill in the Jordan Valley area of the occupied West Bank, near the illegal Israeli settlement of Masua, and it continues to provide Veoliabuses to transport settlers from illegal settlements in occupied territory to Israel.
The recent Versailles Court’s decision unsettles, if not significantly undermines, the position of a group of French parliamentarians and a report commissioned by the French National Assembly’s Foreign Affairs Commission, condemning Israel’s creation of a spatial and racial “apartheid” in the Palestinian territory of the West Bank. It also puts the French government in an uncompromisingly awkward position vis-à-vis its, and the EU institutions’, existing foreign policy and legal commitments, including that of ensuring respect for “human rights and fundamental freedoms” and the “rule of law” (Article 6 of the EU Treaty), also set out in the ‘EU guidelines on the promotion of compliance with international humanitarian law’ in third countries. In this sense, the Court’s conclusions create both a legal and political dissonance for their apparent incompatibility with the stern condemnations made by French and EU institutions of Israeli settlements in occupied territory and their institutionalpractice vis-à-vis settlements in terms of EU-Israel relations.
Who, if not the EU, and its Member States, will ensure that the international legal order is not rendered into disrepute and that private actors operating from within the jurisdiction of the EU are not involved or contributing in any way to violations of international law by foreign authorities? It is undoubtedly in the interests of both France and the EU to ensure that their multinational companies do not undermine, or act in blatant contradiction of, the EU’s commitment to its proclaimed foreign policy and to the rule of law, international and internal.
The original article was published on openDemocracy.
The recent Israeli offensive in Gaza, which media channels reported as a ‘war’, was in fact another episode in Israel’s enforcement of its ‘effective control’ over the Gaza Strip, as a long-standing Occupying Power of the territory – a position firmly maintained by the international community. In time of belligerent occupation, such attacks have the purpose of enforcing its control and restoring order. Even when directed against organised acts of resistance mounted by the occupied population, the occupier must account for its inherent control over the territory by using the least harmful means to achieve a military advantage.
If Israel’s position vis-à-vis the Gaza Strip is assumed – namely, that it is no longer an Occupying Power in the Gaza Strip since its ‘disengagement’ in 2005 – each and every instance of an Israeli land incursion into Gaza (such as the killing of the 13-year-old boy on the 8 November 2012 that triggered the recent escalation) and any single attack on the territory should be examined under the definition of an act of aggression (elaborated in the General Assembly Resolution 3314); surely an undesirable outcome for Israel.
Shifting Legal Narratives on Gaza
A group of international figures recently held that Israel’s official justification for the use of disproportionate force under the ‘right to self-defence’ during its recent operation is unlawful, as states cannot invoke self-defence for acts that defend an unlawful situation, which they are responsible for creating in the first place. Israel cannot invoke this right – an international norm normally applicable in time of peace – in the on-going international armed conflict with the Gaza district of Palestine, continuing its belligerent occupation while systematically violating international humanitarian law and imposing an unlawful siege on Palestine’s Gaza district, which amounts to collective punishment. Having created a situation that only instigates violence through its own defaults as an occupier, and which has resulted in the emergence of resistance, Israel is prevented from invoking the right to violently repress it, as opposed to reasserting control of the territory and undertaking other means to quell resistance that are less harmful to the civilian population.
The same statement also calls on states to impose an arms embargo on Israel, in order to fulfil their obligations not to recognize or assist in violations of international law. Public Interest Lawyers and Al-Haq brought a suit on these grounds in the UK courts for judicial review of the UK’s arms sales to Israel after ‘Operation Cast Lead’, which was denied in 2010 on grounds of judicial deference to UK foreign policy. While the EU and its member states have long asserted a foreign policy interest and a legal obligation to ensure compliance with international humanitarian law and respect human rights – enshrined in EU law through the Treaty of Lisbon – the EU and its member states are only just beginning to review all areas of EU-Israel engagement in line with these obligations.
Film Screening: ‘The Law in These Parts’ (2011) — A Must-See Film on Israel’s Military Law in the Palestinian Territory
The film, The Law in These Parts, will be screened at the College on Sunday, 14 October 2012, at 11AM, in Room 106, AQB Building.
A trailer and the following summary are available from the film’s website:
Can a modern democracy impose a prolonged military occupation on another people while retaining its core democratic values?
Since Israel conquered the territories of the West Bank and Gaza Strip in the 1967 war, the military has imposed thousands of orders and laws, established military courts, sentenced hundreds of thousands of Palestinians, enabled half a million Israeli “settlers” to move to the Occupied Territories and developed a system of long-term jurisdiction by an occupying army that is unique in the entire world.
The men entrusted with creating this new legal framework were the members of Israel’s military legal corps. Responding to a constantly changing reality, these legal professionals have faced (and continue to face) complex judicial and moral dilemmas in order to develop and uphold a system of long-term military “rule by law” of an occupied population, all under the supervision of Israel’s Supreme Court, and, according to Israel, in complete accordance with international law.
The Law In These Parts explores this unprecedented and little-known story through testimonies of the military legal professionals who were the architects of the system and helped run it in its formative years. The film attempts to ask some crucial questions that are often skirted or avoided: Can such an occupation be achieved within a legal framework that includes genuine adherence to the principles of rule-of-law? Should it? What are the costs that a society engaged in such a long term exercise must bear? And what are the implications of the very effort to make a documentary film about such a system?
Bill van Esveld, Senior Researcher on Palestine/Israel, Human Rights Watch (HRW)
Sunday, 14 October 2012, 8AM in Room 107, AQB Building (hosted by Prof Emilio Dabed’s class, ‘Human Rights in the Arab World and Islam’)
The talk will discuss the recently released HRW report titled ‘Abusive System: Failures of Criminal Justice in Gaza‘. This 43-page report documents extensive violations by Hamas security services, including warrantless arrests, failure to inform families promptly of detainees’ whereabouts, and subjecting detainees to torture. It also documents violations of detainees’ rights by prosecutors and courts. Military courts frequently try civilians, in violation of international law. Prosecutors often deny detainees access to a lawyer, and courts have failed to uphold detainees’ due process rights in cases of warrantless arrest and abusive interrogations, Human Rights Watch found.
See also, the following report by the BBC for further background and for Hamas’ response: http://www.bbc.co.uk/news/world-middle-east-19803902.
See original piece on Opinio Juris.
by Chantal Meloni
The question that many scholars are dealing with in the past months, following the 3 April 2012update by the Office of the Prosecutor (OTP), is whether the Palestine-ICC chapter should be regarded as closed. In this short analysis I intend to delineate why, in my opinion, the Palestine-ICC chapter is far from over.
The issue is of particular relevance in these very days for two reasons: as further explained below, over the next weeks both the UN General Assembly and the ICC Assembly of States Parties will have to deal (much depending on the choices of the Palestinian Authority) with the question of Palestine, which will ultimately have an impact on the possible opening of the investigation before the ICC.
The starting point is that the 3 April 2012 update/memorandum/statement (as it has been variously called) by the OTP on the situation in Palestine is in fact a decision. This means that the preliminary examination on the situation is closed, as are the preliminary examinations of the situations of Iraq and Venezuela, which are indeed listed on the same ICC web page under the link “decision not to proceed” (which, by the way, is not the appropriate expression, since the decision not to proceed only comes at the end of the investigation stage, thus these cases should correctly be defined “decisions not to investigate”).
According to internal OTP sources, the ambiguity contained in the “update”’s two pages and its deceptive title, was apparent to its authors. The final document – which was apparently issued in a rush notwithstanding 39 months of preliminary examination – was the result of diverging and irreconcilable positions inside the OTP, which allegedly led to the deletion of several arguments and the associated reasoning. I will refrain from criticizing again the poor content of these two pages, since other scholars have already well done it: see, among the others, the comments by Michael Kearney, and William Schabas.
Irrespective of its merits, pursuant to article 15(6) of the Rome Statute, relevant actors, such asinter alia the victims’ representatives, who delivered information to the OTP and communicated with the office during the preliminary examination, should have been notified of the decision. The OTP alleges to have done so, and that more than 300 notifications were sent out, but apparently organizations like the PCHR, which represents hundreds of Gaza victims and provided information and documentation to the OTP, have not received any notification.
Apart from these preliminary observations, some more substantial questions arise from the procedure which was adopted by the then Prosecutor – Luis Moreno Ocampo – to deal with the Palestine situation. These are more serious questions that go beyond the case at hand and touch upon the extent of the discretional powers of the Prosecutor and the judicial remedies provided before the ICC. Some of these questions are outlined below.
The first question that arose in the wake of the 3 April decision was whether there was any judicial remedy against the Prosecutor’s decision not to open an investigation. It soon became apparent that no judicial remedy was at hand; in fact, pursuant to article 53(1)(c) ICC Statute, judicial review is only possible if a decision not to open an investigation (or not to proceed) is based solely on the “interests of justice”. It is noted, however, that this limitation does not seem to fit well with article 15(6) ICC Statute, pursuant to which the OTP shall notify any decision not to investigate to “those who provided the information” (normally victims’ representatives and other stakeholders). Thus the question remains whether in this regard we are not facing a possible gap in the Rome Statute?
It can be further asked which category the 3 April decision falls in, i.e. on which basis did the Prosecutor actually decide not to open the investigation? Article 53(1) ICC Statute outlines three elements for the Prosecutor to consider in order to decide whether to open the investigation: a) the information available, which must provide a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed; b) the complementarity principle, i.e. that the case is or would be admissible pursuant to article 17 of the Statute; and c) the interests of justice. Certainly in the Palestine situation the OTP never affirmed that there was no reasonable basis for the investigation. The Prosecutor never alleged that the available information did not provide a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed in Gaza/Palestine (as he did, on the contrary, in both the situations in Iraq and in Venezuela). Nor does it appear that the decision was based on the (lack of) gravity of the crimes. Rather, the decision was presented as a problem of “preconditions” to the exercise of the jurisdiction, and in this sense as a mere procedural issue. However the procedural problem was based on a substantive issue, i.e. the interpretation of the term “State” for the purposes of the ICC jurisdiction, and in particular according to article 12(3) ICC Statute. As noted by Kevin Jon Heller in this regard “although the OTP is responsible for deciding whether to investigate a particular situation, that does not necessarily mean the OTP has the authority to decide whether an entity referring a situation qualifies as a state”.
Thus, more generally, the question is: if it was not for the Prosecutor to interpret the term “State” for the purposes of the Statute, and therefore to decide on the admissibility of the declaration lodged by the Palestinians – a contentious conclusion – who should be the competent organ in this regard? It is suggested that the judicial organ, i.e. Chambers (in particular Pre-Trial and Appeals Chamber) would be the most suitable and appropriate organ to provide for an interpretation of such a substantive issue, a view which has been shared by several scholars and NGOs: Amnesty International was particularly vocal in this regard. Indeed, it is clear that delegating the decision to political bodies undermines the independence of the Court and that a judicial determination of the issue by the ICC judges would have been the best option. One further indication supporting an argument in favor of a decision by Chambers can be inferred, in my view, from the receipt of the Palestiniandeclaration which was signed by the Registrar of the Court, Silvana Arbia, on 23 January 2009. The Registrar’s receipt refers to a “judicial determination” on the applicability of article 12(3) to the Palestinian declaration. The same concept is contained in the Q&A drafted by the Registry on the issue:
On 22 January 2009 Dr. Ali Khashan, Minister of the Palestinian National Authority (PNA) submitted a declaration to the Registrar of the Court, Ms. Silvana Arbia, referring to article 12(3) of the Rome Statute which allows States not Party to the Rome Statute to accept the jurisdiction of the Court. The Palestinian National Authority referred to acts committed on the territory of Palestine since 1 July 2002. The Court has not made any determination on the applicability of article 12(3) to this particular communication. A conclusive determination on its applicability would have to be made by the judges at an appropriate moment.
Thus, even accepting the Prosecutor’s argument that he did not have the authority to interpret the term “State” for the purposes of the Statute, could and should he have invested the judges, and in particular the Pre-Trial Chamber (PTC), with the issue? The OTP contended that there is no mechanism inside the ICC Statute by which to refer a question to the judges during the preliminary phase, that is, when the investigation is not yet open and there is therefore no Chamber assigned to the situation. However article 19(3) of the Rome Statute states: “[t]he Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility”, a process that can only be commenced by the Prosecutor. Surely in the economy of the Rome Statute the investigation phase is placed under the control of the Prosecutor who enjoys almost full discretion; however, it seems that – given the features that the current preliminary examinations assumed over the years (and some of then have been open for years now!) with much involvement by stakeholders and victims representatives – it is not consistent to only assign a judge to the situation once the investigation is actually open: judicial control over the operate of the accusation shall be possible also in the phase of the preliminary examination.
According to the Prosecutor it is not for his office to decide whether Palestine’s declaration could be accepted by the ICC, but neither is it for the judges to decide. In the 3 April decision it is alleged that it must be either for the UN Secretary General (SG) or the Assembly of the States Parties (ASP) to decide. As for the first option, the Prosecutor’s underlying and implicit reasoning behind the reference to the UN SG is that the term “State” of article 12(3) should be interpreted in the light of article 12(1) ICC Statute. As already explained by Dapo Akande, this implies that only a “State” that is entitled in principle to ratify the Statute would enjoy the faculty of lodging a declaration accepting the jurisdiction of the Court on an ad hoc basis. In this sense the UN SG, as the depositary of the Rome Statute, would have the power to determine who can be considered a legitimate State for the purposes of the accession to the Statute, or by analogy, for the acceptance of the Court jurisdiction on an ad hoc basis pursuant to article 12(3) ICC Statute.
Although Palestine has been recognised by 130 States, the status of Palestine at the UN is still to be determined. As acknowledged by the Prosecutor in his 3 April 2012 decision, in case of doubt the UN SG will defer to the guidance of the General Assembly (GA). It has been largely announced that the PA will again go to New York this September, this time to address its request not to the Security Council (which, as largely expected, did not answer positively to last year’s Palestinian initiative) but to the General Assembly, in order to get Palestine’s status enhanced to “observer-State” (the so called “Vatican option”). However, regardless of how the Palestinian bid to the GA will end, it is surprising that the Prosecutor did not take into serious consideration the fact that Palestine has been already admitted by a UN agency, notably the UNESCO. To look at whether the entity was admitted to a UN agency is indeed one of the guidance criteria used by the UN SG, in his role as the depositary of international treaties (upon which the Prosecutor relies), in managing the problem of the indeterminacy of the question of statehood status. As explained here by Schabas, the UNESCO acceptance would have been enough for the Prosecutor to accept Palestine’s article 12 ICC Statute declaration.
The Prosecutor’s second option as per the 3 April 2012 decision was the ASP, which “could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute”. An academic initiative led by professors John Dugard and William Schabas is pursuing precisely this option; in a letter addressed to the President of the ASP of the ICC – Ambassador Tiina Intelmann – the signatories (all international law and international criminal law scholars) are asking the Bureau of the ASP to place the Palestine issue on the ASP agenda for its November 2012 session in The Hague.
In conclusion, notwithstanding the 3 April decision, the situation of Palestine before the ICC is far from closed. Therefore the Prosecutor was wrong to remove the situation in Palestine from his case docket. As noted by Valentina Azarov, the fact that the Prosecutor did not have a procedure or practice on the determination of statehood status does not mean that the OTP had nowhere to turn for seeking assistance in order to resolve the issue.
See the original article in The Jurist.
JURIST Guest Columnist Valentina Azarov of the Al-Quds Bards College, Al-Quds University says that Israel’s actions in the Palestinian territories violate international law, specifically in regards to the illegal construction of settlements. She also argues that third-party states should seek to enforce international norms in their legal relationships with Israel…
In January 2012, in the midst of proceedings in the Israeli Supreme Court concerning the construction of settlements in the occupied Palestinian territory, Israeli Prime Minister Benjamin Netanyahu established the Committee to Examine the State of Building in Judea and Samaria. On July 9, 2012, the Committee, headed by retired Supreme Court of Israel Justice Edmund Levy, published its report. The Levy report concludes that Israel is not an occupying power, but the sole sovereign over the Palestinian territory. The report reflects long-term Israeli policies and practices, but also contests them with numerous, far-reaching recommendations. Most importantly, the report’s rationale calls upon states to evaluate their understanding of Israel’s legal status in the Palestinian territory.
Territorial Status in the Levy Report
The Levy report, which purports to conduct a legal analysis of the issues at hand, concludes in favor of the legality of Israel’s settlement project under both domestic and international law. Among its recommendations, it calls on the Israeli government to retroactively approve all settlement construction, including plans that were deemed illegal under Israeli domestic law in August 2011.
In providing their views to the Committee, Israeli human rights groups have affirmed the position of the international community that Israel’s legal status in the Palestinian territory is that of an occupying power, and that Article 49 of the Fourth Geneva Convention, which prohibits all transfers of its population to the occupied territory, entails the immediate removal of all Israeli settlements. Ultimately, the Committee adopted the position that Israel is not an occupying power since the West Bank was never under the sovereignty of any other state. The Levy report adds that “occupation” is understood to be a temporary situation while in the case of Israel’s control over the West Bank, referred to as Judea and Samaria, “no one can predict its termination, if at all.”
To bolster this rationale, the Committee adduces the British government’s 1917 Balfour Declaration, which, it claims, recognized the “civil and religious” rights of the residents of Palestine with no particular reference to the national rights of the Arab nation. The Committee’s historical narrative seems to preclude any claim by the Palestinian people to sovereignty or self-determination in the form of statehood by discarding the relevance of the 1947 UN Partition Plan, which sought to create two states for two nations in the territory of Mandatory Palestine.
Notably, the Committee also disregards key developments in international law that supersede the Balfour Declaration, namely the rejection of the right to conquest and the prohibition of the use of force in acquiring territory, in affirmation of the right to self-determination. Instead, the Committee states that Israel “did not see itself as an occupying power in the classical meaning of the term, and therefore never committed to fulfilling the Fourth Geneva Convention,” and that it maintains “the right to claim full sovereignty over this territory.” Furthermore, Israeli state authorities have consistently supported the settlement project. This support for settlement construction, including nominally “illegal” construction, has created legitimate expectations among settlers. On this basis, the Committee argues that the government is obligated to regularize all “illegal” construction retroactively.
A Mantle of Occupation
Several commentators have pointed out that the Levy report’s assertion that the West Bank is not an occupied territory has far-reaching consequences that seem to have escaped the Committee, most notably that Israel would be claiming the rights of a legitimate military administrator in the territory. More fundamentally, in some respects the report appears both to adopt and upset the understanding of Israel’s obligations reflected by government policy, military practice and Israeli Supreme Court jurisprudence. Like the report, Israel’s practice and policy have long represented the view that the occupied Palestinian territory is neither occupied nor Palestinian. The legal position held by the branches of Israel’s government is that the Palestinian territory is “disputed,” which only acknowledges the non-acceptance by other states of Israel’s claim to sovereignty over the territory.
In that regard, Israel has painstakingly woven a mantle of international legal legitimacy for its practices in the Palestinian territory. Israel nominally applies customary Hague rules of occupation in the West Bank, but not the Geneva Conventions because they are not incorporated into Israeli law. Aeyal Gross recalls that after 1967 Israel took the official position that the Palestinian territory is not occupied in the sense of international humanitarian law, but nevertheless proceeded to take on different aspects of a military administrator — including some of the duties and powers of an occupying power. Israel’s dualist legal system gives precedence to domestic law in all cases of conflict with international law obligations, including the status of those territories and their relationship to the State of Israel as defined by Israel’s national law.
Although the Israeli High Court of Justice applies the international law of belligerent occupation to Israel’s acts in the territory of the West Bank, this application is often confused and misunderstood. The Court has applied specific provisions enshrined in the Geneva Conventions, Hague regulations and even instruments of international human rights law, but it has done so selectively and without adhering to a coherent, en blocapplication of the international law of belligerent occupation. For instance, the Supreme Court’s June 2005judgment on Israel’s “disengagement” from the Gaza Strip — which purported to unilaterally terminate Israel’s occupation of the Gaza Strip — stated that the Palestinian territory is “held by Israel by way of belligerent occupation,” and “[t]he legal regime that applies there is determined by the rules of public international law and especially the rules relating to belligerent occupation.” The court has never upheld the application of Article 49 of the Geneva Conventions, instead consistently refusing to make any determination concerning the status of the Palestinian territory by deferring the question of the legality of settlements to the political arena.
In short, the court has not contradicted the Israeli government’s interpretation of Israel’s responsibilities as an occupying power. It has tailored its judicial practice to exist within the Israeli political context by giving effect to Israel’s sole sovereign competence to administer any part of the territory of Mandatory Palestine. For instance, a group of prominent Israeli jurists criticized the court for a January 2012 ruling that sought to legitimize Israel’s exploitation of Palestinian natural resources in West Bank quarries for the primary benefit of Israel’s private market in violation of the “usufruct” rule. Commentators have critiqued many of the Court’s judgments, like the Levy report, for appearing to apply international humanitarian law while undermining its essential tenets.
If Israeli jurisprudence has legitimated Israel’s practices in the Palestinian territory through the application of some international humanitarian law rules and the scrupulous avoidance of proclaiming on the question of Palestinian sovereignty and self-determination, the Levy report takes a more disclosing tack by arguing that Israel’s status in the Palestinian territory is that of the sole legitimate sovereign. The report’s call on the government to retroactively approve all settlement construction frames Israel’s treatment of the West Bank as part of its territory that it had placed under a military administration, thereby applying some customary principles of the law of occupation which make up the law of military administration.
The Levy report instructs third-party states to re-examine their understanding of Israel’s relation to the West Bank, and the effects of Israel’s institutional practice on their legal obligations under their national law. Many have sought to resolve the issue by restating Israel’s obligations under international humanitarian law and the High Contracting Parties obligation ‘to ensure respect’ for the Conventions. Evidently, Israel’s institutional practice proves the very limits and deficiencies of this framework. Most actors have yet to appreciate the relevance of other applicable principles of public international law, such as the prohibition on the acquisition of territory through the use of force, the principle of territorial integrity and the principle of the equal sovereignty of all states.
A recent expert opinion prepared by Professor James Crawford of the University of Cambridge and published by the Trade Union Congress indicates a shift in conventional wisdom about the way third-party states should address Israel’s relation to the Palestinian territory. Crawford’s opinion condemns Israel’s de facto annexation of Palestinian territory and upholds that Israel’s transfer of its population to settlements most probably amounts to a war crime. The opinion considers the rights of governments to take measures, beyond verbal condemnation, to put an end to and reverse all settlement construction. It demonstrates that neither European Union (EU) nor World Trade Organization (WTO) law prevents the United Kingdom or the EU from instituting a ban on trade in settlement products and concludes that third-party states’ engagements with Israel sometimes constitutes support to Israel’s violations of international law, referring to the “Namibia principle,” elaborated in the International Court of Justice (ICJ) Advisory Opinion on Namibia [PDF].
Meanwhile, Israel announced its refusal to cooperate with the UN Human Rights Council (UNHRC) fact-finding mission established specifically to examine settlement construction in occupied Palestinian territory, which is expected to restate the view that Israel’s unlawful practices as an occupying power consist of an intention to annex parts of the Palestinian territory. Thereby reinforcing the said predicament: Israel applies customary rules of military administration enshrined in the law of occupation in the course of its military administration of West Bank territory, that it in fact considers part of its own territory; meanwhile, the international community relentlessly continues to apply the law of occupation en bloc and demand Israel’s conformity.
As affirmed by the ICJ’s 2004 Advisory Opinion on the construction of a wall in the Palestinian territory, these violations invoke erga omnes obligations for third-party states — particularly states engaged in relations with Israel. Specifically, they entail the duties of non-recognition, of abstaining from rendering aid or assistance and of ensuring that any impediment to the respect of international law and the exercise of rights, including the Palestinian people’s right to self-determination, is brought to an end. As for private actors, states are under a duty of due diligence to ensure that such actors are not complicit in violations, as part of the obligation to ensure respect for international humanitarian law under Common Article 1 of the Geneva Conventions.
Crawford’s approach, it should be noted, does not primarily seek to engage the political will of states to bring inter-state action against Israeli violations. Instead, it recalls the examples of the UK’s engagements with Israel — such as the joint convention on double taxation [PDF] — to determine whether they lend recognition to Israel’s violations of international law. He concludes that if Israel were applying either instrument to the occupied Palestinian territory, the UK would be under an obligation to regard it as ineffective and demand assurances from Israel that for the purpose of the latter’s engagements with the UK, the area of operation of its authorities does not extend beyond Israel’s internationally-recognized borders.
Read in conjunction, the Levy report and Crawford’s opinion indicate Israel’s growing resentment towards international law and its institutions. Operationally, they highlight the urgency of galvanizing the international community to reassess the legal consequences of Israel’s acts as an administrator of the Palestinian territory. Their capacity to bring Israel to desist from its unlawful acts may have been undermined by their failure to ensure that their engagements with Israel take proper account of its institutional practice, particularly that which regards the Palestinian territory as part of its territory. Failure to take account of this practice by third-party states engaged with Israel could result in their inability to respect their own policies and laws, while lending recognition to Israel’s unlawful acts.
Valentina Azarov is a lecturer in Human Rights and International Law and the Chair of the Human Rights Program at the Al-Quds Bard College, Al-Quds University. She previously worked as a legal researcher with Al-Haq, a Palestinian human rights organisation, with consultative UN ECOSOC status, and the HaMoked-Centre for the Defense of the Individual, a legal aid human rights group that submits petitions before the Israeli High Court on violations of Palestinian rights in the occupied Palestinian territory. She is also a writer for the International Law Observer.
Suggested citation: Valentina Azarov, Shifting Paradigms: Israel, Palestinian Territory and International Law, JURIST – Forum, July 25, 2012, http://jurist.org/forum/2012/07/valentina-azarov-israel-occupation.php.