MONTREAL — A Quebec court won’t hear a civil suit that a West Bank Palestinian village tried to have adjudicated here against Israeli Jewish settlements.
Bil’in and 11 of its residents want a halt to the construction of housing for Israeli citizens only by two Quebec-registered companies within what may or may not be the town’s borders.
In a 67-page decision in which he delves extensively into international law and Israeli case history, Quebec Superior Court judge Louis-Paul Cullen maintained the defendants’ motion asking that the court exempt itself from the case.
The judgment also maintains – in part – a second defence motion to dismiss the action and to recognize decisions by Israeli courts related to this dispute.
Cullen said that, although the Superior Court has jurisdiction over this action, Israel’s High Court of Justice (HCJ) is “clearly the logical forum and the authority in a better position” to decide it.
A civil action stemming from a wrong suffered in a foreign country could be heard here, because the defendants are domiciled in Quebec, but the local connection in this instance is “merely superficial,” he wrote.
He cites an affidavit entered by the defendants from Israeli businessman Gideon Badt, who states that the two businesses “act as alter egos for, and on behalf of, a corporation that is not a resident of Canada and that does not have any assets in Canada,” and that Green Park International and Green Mount International have no assets in Quebec or elsewhere in Canada.
They were incorporated in 2004 upon Badt’s instructions for Israeli tax reasons only.
Badt also swore that Annette Laroche, Green Park’s and Green Mount’s sole registered director and officer, didn’t participate in any way in the Bil’in development project.
“This judgment does not determine whether Israel or the defendants have perpetrated an illegality,” Cullen writes. “It only decides whether the Superior Court will recognize judgments rendered in Israel and, at a later date, hear the merits of the plaintiffs’ civil action, where issues of public international law, private international law and domestic law intersect.”
The suit was filed in July 2008 by the Village Council of Bil’in along with its former head, Ahmed Issa Abdallah Yassin, who died in January, and 11 of his heirs against Green Park and Green Mount, which are registered at a Montreal area address, and Laroche, who lives in Quebec.
The two companies have been constructing and selling condominiums since 2005 on land that Israel declared state property in 1991 and gave municipal jurisdiction over to the council of Modi’in Illit. Bil’in claims it has jurisdiction over the land and that two parcels of it were owned by the late Yassin.
Cullen concludes that the Bil’in council, although it’s the official, elected municipal authority, couldn’t under Quebec law represent the village’s residents in this action, even if its claim of jurisdiction over the land is true.
“The council does not have the sufficiently personal and direct interest in the conclusions of the action that Quebec law generally requires from a litigant,” he writes.
He notes that Canadian law prohibits criminal prosecution without the Attorney General’s authorization. “Although this action is civil, it is predicated on the finding that Israel is committing a war crime in violation of public international law”
He also notes that the late Yassin’s claim of ownership of lots on the land has never been finally determined by Israeli courts.
The plaintiffs, whose lead Canadian lawyer was Mark Arnold of Toronto, argued that Green Park and Green Mount are acting not only for their own profit but as “agents of the State of Israel… conspiring” in a policy of transferring its civilian population into an area under military occupation, pushing out Arab residents.
They alleged that this is illegal and, in effect, a “war crime” under international law, specifically the Fourth Geneva Convention, the Rome Statute of the International Criminal Court, as well as the Crimes Against Humanity and War Crimes Act adopted by Canada in 2000. They say it also violates Quebec’s Charter of Human Rights and Freedoms and Civil Code.
They sought a declaration by the Quebec court on the alleged illegality, an immediate injunction against any further construction and demolition of the existing residential units and restoration of the property to the way it was before. They also asked for $2 million in punitive damages from the company and $25,000 from Laroche.
Cullen absolved Laroche from any liability largely on the basis of Badt’s affidavit and a letter from the plaintiffs’ counsel affirming that she has no personal involvement in the construction of the housing.
Defence lawyer Ronald Levy’s motions to quash the suit were heard in June over three days. He asked the court to recognize judgments related to this case already made in Israel, specifically three by the HCJ a couple of years ago.
A key reason given by the Bil’in petitioners that they must seek justice in a Quebec is that Israeli courts are unwilling to touch cases that contend that Jewish settlement policy is illegal. Cullen found that the evidence does not support this assertion.
In any event, Cullen observes that hearing the action in Canada would be impractical because, except for Laroche, all the plaintiffs and witnesses, including the occupants of the condominiums, live in Israel or the West Bank, which is the location of the material evidence as well.
Cullen observes that the HCJ hasn’t ruled on whether the defendants were wrongfully assisting Israel in an illegal population transfer, and that the three judgments “did not completely settle all of the issues that are raised in the action.”
However, he points to the Israeli court’s 1993 judgment in the Bargil case against the government of Israel, in which the petitioners challenged the legality of Israeli settlements under the Fourth Geneva Convention. Although a HCJ majority decided the case was “unjusticiable,” Cullen states: “On the face of it, the Bargil case plainly does not support the view that the HCJ would refuse to hear the action on the basis that the alleged violation of Article 49(6) of the Fourth Geneva Convention is non-justiciable. It merely expresses the well-established principle whereby a court may abstain from considering a question in the abstract.”
He said his research shows that the HJC, Israel’s supreme court, doesn’t shy from politically controversial matters.
“On the whole, the evidence shows that the HCJ has not applied Article 49(6) of the Fourth Geneva Convention, not because of its unwillingness to adjudicate on its alleged violation by reason of the political significance of the matter, but either because it was unnecessary to do so or because the HCJ considered that it was not customary international law…and that it had not been incorporated into the domestic law of Israel through appropriate legislation.”
Unlike Canada, Israel has not approved the Fourth Geneva Convention by statute.
Cullen writes that neither the United Nations Security Council nor the International Court of Justice has declared that article 49(6) was part of customary international law, or that a state that had not incorporated this provision into its domestic law was “acting in a manner that is manifestly consistent with public order as understood in international relations,” as the Bil’in plaintiffs allege.
