In March, the Versailles Court of Appeals dismissed an appeal in a long-standing dispute between the Association France-Palestine Solidarite (france-palestine.org) and the Palestine Liberation Organization (PLO) against the French corporations Alstom Transport, Alstom and Veolia Transport.
The ruling was disappointing in many ways, primarily for refusing to decide the key legal issue as to the companies’ involvement in illegal activities in the occupied West Bank. It is also highly problematic in its interpretation of international legal obligations.
However, the court did confirm some important points, most importantly that the PLO can legitimately bring legal actions against companies that violate international humanitarian law, setting a crucial precedent for future actions.
The court also confirmed that corporations are valid targets for civil litigation and that the Geneva Conventions and Hague Conventions governing the conduct of war are enforceable in a third-party country’s national court. These points should not be missed by lawyers and the many activists who participate in the global campaign to hold Veolia and Alstom accountable for their roles in a light rail project in occupied East Jerusalem, and other activities that help to embed illegal Israeli settlements on occupied Palestinian land.
However, the Israeli newspaper Haaretz failed to report these points in an ill-informed and selective article published on 28 April (“French court: Jerusalem rail does not violate international law”). The newspaper erroneously claimed that the French court had ruled that the Jerusalem light rail does not violate international law.
The misleading report was based on one paragraph of the court’s 32-page ruling, and was taken entirely out of context (read an unofficial translation of the ruling). In fact, the court did not rule on the illegality of the light rail.
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.
Astonishingly, in support of these statements, the judges even referred to “the construction of an underground railway in occupied Italy” during the Second World War. These statements ultimately have little bearing on the remainder of the court’s judgment. Further, in as far as the court describes the overall duty of an occupier to maintain normal public life, the points made are uncontroversial. But the court failed to address whether the Jerusalem light rail does comply with the scope of such legal responsibilities on occupying powers.
The court did not address the strong legal argument that the Jerusalem light rail violates international law, having been designed by the Israeli authorities to serve the illegal settlements in and around occupied East Jerusalem, rather than to maintain normal public life or the infrastructure of the civilians living under Israeli occupation.
Normalization of Israel’s crimes
It is disturbing that all the French judges who have adjudicated on this case during its various stages have failed to address the illegality of the Jerusalem light rail. There can be no doubt about the light rail’s role in Israel’s annexation of East Jerusalem.
Already in 1980, the Israeli parliament (the Knesset) declared by way of a special law that “Jerusalem, complete and united, is the capital of Israel.” Further, on the occasion of the official Jerusalem light rail contract-signing ceremony on 17 July 2005, then Prime Minister Ariel Sharon stated that the light rail would “sustain Jerusalem for eternity as the capital of the Jewish people, the united capital of the State of Israel.”
However, under international law East Jerusalem is not part of Israel; it was forcibly occupied by Israel in 1967, and remains occupied territory to this day. The status of East Jerusalem as occupied territory has been repeatedly affirmed by the United Nations, the International Committee of the Red Cross and the International Court of Justice in its 2004 Advisory Opinion on Israel’s wall in the West Bank before construction on the light rail had started. UN bodies, UN officials and the EU have on numerous occasions called on Israel to end the occupation and to immediately halt its settlement expansion.
In a report published last year Professor Richard Falk, UN Special Rapporteur for the occupied Palestinian territories, mentions Veolia Environnement as one of the companies involved in serious violations, including Veolia’s involvement in the light rail system (“Situation of human rights in the Palestinian territories occupied since 1967”).
Despite the clear legal stance of the international community, French courts have consistently refused to apply the law in this case. The French judiciary failed to seriously address the violations raised by the Association France-Palestine Solidarite and the PLO, and implied that the Jerusalem light rail might lawfully fulfill Israel’s obligation to restore normal public activity in occupied Palestinian territory. This contributes to a sense of impunity for those who are complicit in Israeli violations of international law, in turn normalizing Israel’s crimes.
The judges failed to explicitly indicate that the matter could only be assessed by looking at the whole picture, which is that the light rail facilitates Israel’s settlement expansion and strengthens its illegal annexation of East Jerusalem — acts that have clearly and repeatedly been declared illegal by the unanimous consensus of the international community.
France now stands accused of complicity in these serious violations of international humanitarian law, having failed to abide by the obligations set out in the 2004 Advisory Opinion of the International Court of Justice on Israel’s wall and settlements, which called upon all states not to contribute to the illegal situation.
Victory for PLO
The PLO, as the legitimate representative of the Palestinian people, joined Association France-Palestine Solidarite in the legal action against Veolia and Alstom in 2007.
Overturning the decisions of the lower courts, the Versailles court ruled that the PLO does have legal standing to bring such a case, despite the claim by Alstom that “it is difficult to establish who actually represents the Palestinians in the PLO and the Palestinian Authority.”
The court furthermore recognized that corporations Alstom Transport and Veolia Transport were “real and serious respondents.” In other words, the court confirmed that legal actions can be brought against corporations where their activities are alleged to be “unlawful and to have damaged its [the PLO’s] interests.”
The acknowledgment of the PLO as a party in the legal proceedings in France has set an important precedent for legitimately bringing legal actions against corporations in France and in other countries.
The Versailles court affirmed that, under French law, only states which signed the 1949 Geneva Conventions and 1907 Hague Regulations can be regarded as being bound to the treaty provisions. It took a highly conservative position that, under French law, the provisions contained in international humanitarian law have no direct effect on private individuals and companies who are not a party to the conflict.
National courts in other countries have made different findings, declaring non-state actors, including companies, liable for violations of the Geneva Conventions.
Principles but no obligations
The court ruling accepted the pleas of Veolia and Alstom that they were not bound by their own codes of ethics or the UN Global Compact, a strategic policy initiative for businesses that are committed to operating in an ecologically and socially responsible manner.
The compact’s first two principles state that businesses should support and respect the protection of international human rights within their spheres of influence, and make sure they are not complicit in human rights abuses. The importance of the Global Compact was explicitly affirmed by UN Special Rapporteur Falk in his 2012 report on the activities of corporations in the occupied Palestinian territories.
But the Versailles court classed these principles as mere aspirations whose “implementation depends solely on corporations’ goodwill.” The Global Compact and the codes of ethics serve as frames of reference, stated the court, and “they merely contain recommendations and rules of conduct and do not create obligations or commitments to third parties who can demand compliance.”
The result of this conservative position is that the Global Compact is not a measure for assessing companies’ compliance with global standards, but becomes a shameful excuse for getting around them.
The PLO can appeal the Versailles judgment to the French supreme court (Cour de Cassation), but regardless of any appeal, no one should think for a moment that the boycott, divestment and sanctions (BDS) movement is discouraged by the March ruling.
While not overlooking the many shortcomings of the judgment, it does at least make legal history by confirming that the PLO can bring civil claims against companies allegedly complicit in Israeli violations of international humanitarian law and human rights.
Furthermore, the BDS movement will bring the world’s attention to the fact that the court never actually adjudicated on the question of corporate complicity with Israeli violations.
Guided by all of this — as well as the 2004 International Court of Justice’s advisory opinion, reports by the UN Special Rapporteur, the analysis of human rights organizations and international legal scholars, all of which the Versailles court largely ignored — the BDS movement will continue to hold governments, companies and other complicit parties to account for aiding and abetting Israel’s violations of the rights of the Palestinian people.
Adri Nieuwhof, human rights advocate based in Switzerland.
Jeff Handmaker, senior lecturer in law, human rights and development at the International Institute of Social Studies (ISS) of Erasmus University in The Netherlands.
Daniel Machover, attorney and co-founder of Lawyers for Palestinian Human Rights based in Great Britain.