Disappointing French ruling on Veolia still paves way for suing occupation profiteers Adri Nieuwhof, Jeff Handmaker and Daniel Machover The Electronic Intifada 7 May 2013 Israel’s light rail project violates international law because it is designed to serve illegal settlements. (Issam Rimawi / APA images ) 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.

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. Misleading report 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. French law 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. Not discouraged 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.