Transportation is legal, but what about the settlements?

French court’s light rail ruling breaks no legal ground, scholars say

While the Palestinian case against Israeli transport system in East Jerusalem was thrown out, any celebration was premature

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

A Palestinian woman and her children wait for the light rail, in the Arab neighborhood of Shuafat in north Jerusalem. (photo credit: Sliman Khader/Flash90)
A Palestinian woman and her children wait for the light rail, in the Arab neighborhood of Shuafat in north Jerusalem. (photo credit: Sliman Khader/Flash90)

A French court recently ruled that the Jerusalem light rail, which serves both the western and eastern parts of city, does not violate international law. Palestinian plaintiffs had sued three French companies who built the train line, arguing that Israel’s occupation of East Jerusalem was illegal.

Pro-Israel advocates hailed the decision, handed down by the Versailles Court of Appeals, as a major victory because they said it proved that Israel’s occupation of East Jerusalem did not violate international law. However, legal scholars said the ruling doesn’t actually say anything new and that the key focus of accusations of illegality in Israel’s policy vis-à-vis the Palestinians remains the settlements, which the courts did not address.

The court’s March 22 decision [French] upheld a 2007 ruling in a suit the Palestine Liberation Organization and the Association France Palestine Solidarité had filed against Veolia Transport, Alstom and Alstom Transport. Quoting international treaties about the laws of occupation, the Palestinians argued that because the trains servicing the Israeli capital also crossed into East Jerusalem, which Israel captured in 1967, the French firms were complicit in Israeli violations of international law. Israel officially annexed East Jerusalem in 1980, but the international community never recognized the move.

The French judges again threw out the case last month, ordering the Palestinian groups to pay a total of €90,000 (about NIS 425,000) to the French firms.

“News is breaking of a huge win in France,” blogger “Brian of London” wrote in a post about the case entitled “A Massive Legal Win In France Against BDS,” referring to the Boycott, Divest and Sanction movement. “The court has basically said Israeli ‘occupation’ is not illegal and orders PLO/PA to pay court costs to [Alstom], Veolia, & another firm.”

The pro-Israel website likewise hailed the court ruling [French] as being of “particular importance,” saying that friends of the Jewish state “must preserve it carefully in their archives” as it proved that “France is not neutral in the conflict.”

The court’s decision showed that “the occupation is completely legal, that there is no violation of international law in the fact that Israel is occupying territory,” Alan Baker, a former legal adviser to Israel’s Foreign Ministry, asserted to The Times of Israel.

“The whole purpose of that court decision was to accuse the French companies of violating international law by taking part in something that’s illegal. The court threw this out and said you can’t claim that the occupation of territory is illegal,” Baker declared. “According to the Hague Conventions it is the duty of the occupiers, once they have control, to govern the territory. And that’s exactly what the Israelis are doing.”

Linking the city's disparate parts, for the first time: Passing the Ottoman walls of the Old City on the light rail (Photo credit: Miriam Alster / Flash90
Linking the city’s disparate parts, for the first time: Passing the Ottoman walls of the Old City on the light rail (Photo credit: Miriam Alster/Flash90)

Yet according to Baker, and other Israeli experts on international law, the court case says nothing fundamentally new about the legality of Israel’s occupation nor does it address the settlements, which according to much of the international community are the key offense Israel commits in terms of international law.

“I don’t know if you can call it a big victory or a small victory or a victory at all: it’s just confirmation of what Israel has been saying all the time, that there’s nothing inherently illegal about the fact that it’s administering the territory,” Baker told The Times of Israel. “This in itself is something that goes against a lot of the statements coming out of the Palestinians, who say that the occupation itself is an illegal occupation.”

A former Israeli ambassador to Canada, Baker is the co-author of the controversial Levy report, which asserts that the settlements are legal under international law and that Israel’s actions in the West Bank should thus not be considered an occupation.

“Why should I be surprised?” he asked, referring to the Versailles ruling. “I wouldn’t have expected anything else from a French court or any other court.”

Legal expert Frances Raday, the president of the Concord Research Center for Integration of International Law in Israel, likewise said the court decision is only marginally significant for a debate about the legality of Israel’s actions in the West Bank and East Jerusalem.

“It’s only talking about transport infrastructure,” she said. “I don’t think they actually say anything new, except that an occupying power is not prohibited from putting in place transport infrastructure.”

In the court case, the Palestinian groups had asked for one million euros from each of the three French companies, arguing that the light rail violates international law by enabling Israeli “settlers” to get access to occupied territory, which has negative consequences for the Palestinian population.

The plaintiffs relied heavily on Article 49 of the Fourth Geneva Conventions, which state that “Individual or mass forcible transfers… are prohibited, regardless of their motive… The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

They also quoted Article 53 of that treaty, which forbids an occupying nation to destroy “personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations,” the Palestinians argued. The groups also cited the Fourth Hague Conventions from 1907, which states, in Article 46, that “private property… must be respected” and “cannot be confiscated.”

But the judges ruled that these statutes do not apply to Israel’s operation of a train network in Jerusalem. In their decision in favor of the French firms, they quoted Article 43 of Fourth Hague Conventions, which states that once an occupier takes control over the occupied territory, he “shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

According to Raday, who is also a mandate holder at the United Nations Human Rights Council, this ruling only affirms that Israel’s construction of a light rail on occupied territory does not violate international law — but nothing else. “I just don’t think it says anything more than that [East Jerusalem] is an occupied area and the occupying power is allowed to administer it in a way that’s for the good of all the population that’s living there.”

A policewoman stands by the light rail where the stabbing took place on March 15 (photo credit: Uri Lenz/Flash90)
A policewoman stands by the light rail, March 15, 2013 (photo credit: Uri Lenz/Flash90)

However, the court ruling does not answer the question whether the occupation in itself is legal, and more importantly, it doesn’t define the legal status of settlements in East Jerusalem and the West Bank, which much of the world considers a clear violation of international law, she said. Some legal scholars think that, initially, the occupation might have been legal if it the territory were conquered in self-defense. However, she added, some experts believed that since it has been ongoing for a long time — over 45 years — it has long become illegal in the eyes of international law.

Regardless of the legal status of the occupation itself, the United Nations, the European Union and other international bodies and states consider Israel’s settlement activity in the territories illegal under international law. As a reason for this assessment the Geneva Conventions’ prohibition of “forcible transfers” of people from the occupying power to the occupied territory is often quoted.

In other words: While international law does not prohibit a country’s occupation of foreign territory per se, resettling population from the homeland to the occupied areas is considered illegal.

Defenders of Israel’s settlement policy in East Jerusalem and the West Bank argue that the Geneva Conventions, which were ratified in 1949, do not apply to the Israeli-Palestinian situation. Article 49 sought to prevent mass forced transfer of populations into occupied territory that are aimed at displacing the local population, something very different from what Israel is doing, they argue.

“This is what was done by the Nazis in Poland, Hungary, Czechoslovakia,” said Baker, the former legal adviser of the Foreign Ministry, adding that all authoritative commentaries to the Fourth Geneva Conventions explain that article 49 refers to only to cases that cannot be compared to Israeli settlements. “It has absolutely nothing to do with movement of people voluntarily into the territory onto land that isn’t part of their own, which is perfectly permissible according to international law,” Baker said.

The international community is “completely and utterly wrong” to compare Israel’s settlement activity with the policies of the Nazis in Eastern Europe, he added.

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