Israel’s Right to Build in Judea & Samaria upheld by French Court?

INTRODUCTION: According to a blog article published on January 13 2017 that has been getting circulated widely on social media, the High Court of Versailles has ruled that Israel has the right to ensure order and public life in “the West Bank”, which includes building infrastructure such as the light rail system and dwellings. This article examines the court records and exactly what the French Court ruled.

Claims According to a Blog Writer

According to a blog article published on January 13 2017, the Palestine Liberation Organization (PLO) denounced the deportation of the Palestinian population and the destruction of properties in order to build the light rail system, in violation of international regulations and filed a case in French court, relying on both the Geneva Convention and Hague Convention.

According to the article, the PLO claimed that;

“the State of Israel was illegally occupying Palestinian territory and was pursuing illegal Jewish colonization”.

According to this blog, the Palestinians claimed that ‘the construction of the light rail itself was illegal as it resulted in the destruction of Palestinian buildings and houses, the almost-complete destruction of Highway 60 which they asserted was vital for the Palestinian population as well as for transport of their goods’ and has resulted in many “illegal dispossessions”.

The article states that the PLO’s case rested on several clauses of the annexed Regulations to the October 18, 1907 Fourth Hague Convention and alleged that Israel violated the provisions relating to the ‘protection of cultural property’ provided for in Article 4 of the Hague Convention of May 14, 1954, Article 27 of the Hague Convention of 1907, Article 5 of the Hague Convention of 1907, and Article 53 of Additional Protocol No. 1 to the Geneva Convention of 1949.

It maintains that according to the High Court, Israel is entitled to ensure order and public life in the West Bank including building a light rail system,  infrastructure and dwellings in accordance with Article 43 of the Fourth Hague Convention of 1907 which states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety.

Furthermore, the article states that the court ruled that the Palestinian Authority “misinterpreted the text” of the Hague and Geneva Conventions:

“The Palestinian Authority misread the documents, they do not apply to the occupation”

…and that the High Court of Versailles ruled that:

1. all the International Documents on which the PLO and the PA cases rested are acts signed between “States” i.e. Hague Convention of 1907 (Article 5, Article 27), Hague Convention of May 14, 1954 (Article 4), Geneva Convention (Article 53 of Additional Protocol No. 1).

…and the obligations or prohibitions contained in those International Documents are relevant only to “States” and since neither the PLO nor the Palestinian Authority are “States”, the Hague Convention of 1907, Hague Convention of 1954 and Geneva Convention (1949) do not apply.


2. the Hague Convention of 1907, Hague Convention of 1954 and Geneva Convention (1949) are binding only on those who signed them – namely the “contracting parties” and since neither the PLO nor the Palestinian Authority ever signed these texts, the Hague Convention of 1907 & 1954 and Geneva Convention of 1949 do not apply to them.

The French Case

The original lawsuit was brought against the French companies, Veolia Transport, Alstom and Alstom Transport that built Jerusalem’s light rail system and was filed by the Palestine Liberation Organization (PLO) and the Association France Palestine Solidarité (AFPS) claimed that since the trains crossed into East Jerusalem which Israel ‘captured in 1967′  and ‘annexed in 1980′, the French firms were complicit in Israeli violations of international law.

On April 15, 2009, the Tribunal de Grande Instance Court ruled that the the PLO’s petition was inadmissible on the grounds that it had not been submitted that the PLO was competent to act in the case, and the action brought by AFPS was a wrongful third-party action brought on grounds of an improper clause in the contract, but ruled that the AFPS was admissible in terms of its capacity and interest in bringing proceedings. In other words, the case was dismissed on technicality. The court rejected the petition to compel the presentation of additional exhibits, referred investigation of the matter to the presiding magistrate’s preliminary hearing and deferred its ruling on all other petitions, including the counter-claims against the PLO. The parties could re-file.

In Appeal, the Versailles Court of Appeal upheld the April 15, 2009 ruling on December 17, 2009 on the basis that the Nanterre Tribunal de Grande Instance was competent to rule in the dispute.

On March 10, 2010, AFPS lodged a petition before the Paris Administrative Tribunal, claiming liability on the part of the French State due to its support for the French firms taking part in the construction and operation of the Jerusalem tramway, and was dismissed October 28, 2011. They appealed to the Cour de Cassation, the matter was heard in a public hearing on September 12, 2012 before the 2nd and 7th sub-sections of the Council of State and in a ruling handed down on October 3, 2012, they rejected the appeal.

In a ruling handed down on May 30, 2011, the Nanterre Tribunal de Grande Instance, the Court declared the PLO’s intervention dated March 1, 2010 inadmissible and rejected the petitions and counter-claims, declaring there were no grounds for provisional execution, nor for the application of the provisions of Article 700 of the French Code of Civil Procedure and ordered AFPS and the PLO jointly to pay costs. That is, the French Court could not rule on the basis of the PLO’s case as the Hague Conventions and Geneva Conventions, the basis for its case, did not fall under French Law.

The Court ruled that;

  1. the legislation invoked in article 49 (6) and 53 of the Fourth 1949 Geneva Convention, the Regulations of the 1907 Fourth Hague Convention, article 4 of the Hague Convention of 1954 and article 53 of Additional Protocol 1 to the Geneva Conventions of 1949, did not establish direct obligations on private-sector companiesIn other words, these International Documents had no bearing on the obligations of private-sector companies, such as those that built the light rail train system in Jerusalem.

  2. even if it were assumed that conclusion by Israel of the disputed concession contract constituted a breach of its international commitments in the light of said conventions, it had not been proven that this breach had deprived this contract of purpose, the latter being subject to Israeli law and not the French Civil Code (more specifically articles 6, 1131 and 1133). That is, even if were assumed that the contract broke International Law, the case would be subject to Israeli law, not French Civil law.

  3. Construction of the tramway had not been proven to constitute a breach of human rights or humanitarian law in the broadest sense of the term. This was good news in that the court did not find that the building of the light rail system constituted a breach of Palestinian human rights or “humanitarian law”.

The magistrates did not find AFPS responsible for any wrongdoing and dismissed calls for compensation payment.

The AFPS and the PLO formally appealed this ruling on July 7, 2011, asking the Court of Appeal to overturn the decision and declare that the basis of the PLO’s case (Hague Convention and Geneva Convention) was admissible in French Court.

A third Appeal was brought and was filed in the Versailles Court of Appeal by the Association France Palestine Solidarité (AFPS) and the Palestine Liberation Organization (PLO) represented by Mr Mahmoud Abbas*, President of the Executive Committee, and represented by Mr Hael Al Fahoum, Head of the Palestinian Mission to France and of the PLO.

[*Mahmoud Abbas is head of the Palestinian Authority.]

Court of Appeal’s Ruling on Third Appeal – on March 22, 2013

The Court of Appeal in Versailles ruled that;

The evidence presented does not prove that the transport companies breached International Law;

“In the final analysis, the evidence heard does not prove that by taking part in construction of the tramway across the city of Jerusalem, the defending companies have breached international law“:

The transport companies that bid on the contract were not signatories to the concession contract and therefore cannot answer for it;

“The transport companies (Alstom, Alstom Transport and Veolia Transport) were not signatories to the concession contract signed on September 22, 2004 and cannot answer for its legitimacy in place of the State of Israel, which initiated and established this contract.”

The international humanitarian norms that the PLO and AFPS claimed were breached are not binding on the transport companies;

“The international humanitarian norms that it is claimed have been breached by the shareholder pact signed with CityPass by Alstom Transport and Veolia Transport, and the engineering, supply and construction contract signed with CityPass by Alstom Transport, are not binding on the companies on conventional or customary grounds, or in any capacity of international public order.”

The PLO nor the AFPS have not proven that the transport companies breached international law;

“It has not been proven that the companies have breached international law in the light of their commitments arising from their agreement to the Global Compact (2000) and the contents of their codes of ethics.”

The Appeal Court of Versailles rule that “there are no grounds to rule on the other aspects of liability”; the ruling of the initial magistrates who dismissed the petitions established against these companies is therefore upheld.

The case was dismissed and both the AFPS and the PLO were required to bear both the costs of the appeal and to pay the costs of the original case. 

On 22 March 2013, judges Maître Emmanuel Jullien, Maître Fabrice Hongre-Boyeldieu, Maître Anne-Laure Dumea of the Court of Appeal, threw out the case and according to a 2013 Times of Israel article, ordered the two Palestinian groups to pay a total of 90,000 Euros to the French firms.

A Difference in Facts or Interpretation?

The Versailles Court of Appeal judge’s decisions centered around whether the transport companies were signatories on the concession contract to build the light rail system in Jerusalem and not on whether the PLO or the Palestinian Authority (PA) were “States” or “contracting parties” on the Hague Conventions (1907 and 1954) or the Geneva Convention (1949).

As well, a reading of the Versailles Court of Appeal transcript does not indicate that the court made any ruling with respect to whether Israel has the right to ensure order and public life in the West Bank including building a light rail system and other infrastructure and dwellings in the occupied territories of the West Bank.

The blog writer concludes that this case is the first in which a non-Israeli court has ruled on Israel’s right under the Hague and Geneva Conventions to build infrastructure and dwellings in East Jerusalem and “the West Bank”.

A review of the court transcripts does not indicate that any such ruling took place.

Final thoughts…

Checking facts and tracing references back to their original source is the only way to remain credible in writing articles or in sharing posts on social media.

If is sounds too good to be true, it probably is.

It is each person’s responsibility to find out.

 


Sources

Times of Israel, Raphael Ahren, April 29, 2013, http://www.timesofisrael.com/french-ruling-on-jerusalems-light-rail-adds-nothing-new-scholars-say/

Blog of January 13 2017 http://www.dreuz.info/2017/01/13/israel-is-the-legal-occupant-of-the-west-bank-says-the-court-of-appeal-of-versailles-france/

The transcript of the Court Documents (Versailles Court of Appeals, ruling in English): http://www.intjewishlawyers.org/main/files/Versailles%20Court%20of%20Appeals%20ruling%20doc%20English%20.pdf

Ultimatum in Amona – rejected by residents

featured photo from Israel National News (Arutz Sheva) - by Tomer Neuberg/flash 90

The 42 families of Amona faced an excruciating decision  yesterday (Israel time); to accept the “offer” agreed upon by Prime Minister Benjamin Netanyahu (Likud), Naftali Bennett and Ayelet Shaked (Jewish Home) and Attorney General Avichai Mandelblit or face evacuation and the destruction of their homes and livelihoods within 2 weeks. According to Israel National News (Arutz Sheva), they’ve made their decision.

They rejected the “offer”.

This is the what the government coalition proposed:

(1) to begin work on setting up trailers (what Israelis call “caravans”) for 12 of the 42 families on Lot 38 (seen circled in red, map below), which has an area of six dunams (6,000 sq. meters / 7176 sq. yards).

and

(2) for the residents to accept to have the other 30 families relocate one kilometer to the west, to the town of Ofra to wait for the Israeli government to build four portable buildings in the lots adjacent to Amona (see circled in blue), giving them permits to live there for only two years.  During this period, the government said it was their intention to petition the courts to remove owners’ names from the property in question under Amona, as they have not been present and have not paid taxes on the land for decades.

The residents of Amona were to accept the offer — with no guarantees.

ultimatum-map2-amona
screen capture of relocation map (photo by Ari Fuld)

For the last 19 years, the Arabs who held deed to the this land have been absent —expressing no interest in the land, while these Jewish families have tilled it and caused it to become productive.  According to Israeli National News (Arutz Sheva), the court case objecting to the presence of the Jewish residents of Amona was launched by a left wing organization, and not by the Arabs who hold deed to the land. In fact, only one of the absentee landlords was located and none of the “deed-holders” were named in the case.  The case was a political move to further the purposes of the political organization whose end-result was that the High Court of Israel ruled that because there is a “deed” for only four of the plots of land under which the entire community is built, the entire community must either be relocated or destroyed.

Israel National News (Arutz Sheva) reported (Uzi Baruch, 15/12/16 00:40) that residents explained in a statement on Wednesday night, why they chose to reject the offer;

“We were willing to accept the destruction of our private homes, and a move from place to place, if only a Jewish community would remain on the hill. But the proposed arrangement does not provide any guarantee or commitment that we will indeed receive an alternative home. In light of this and in view of the uncertainty in the proposal, the residents of Amona decided tonight, after ten hours of debate, to reject the proposed layout.”

The residents of Amona will be evacuated — their homes and businesses demolished and their lives left in shambles — for what?

Residents of Amona — not squatters

The residents of Amona are not “squatters” living in tents — they live in furnished homes equipped with all the amenities; running water, heat, electricity, fridges, stoves, etc.

Below are some screenshots of one home in Amona, taken from a video shot by Ari Fuld, earlier today:

inside-of-house-in-amona
Inside of a home in Amona

Here are a few more screen captures of a home located on one of the wineries of Amona:

more-insides-of-homes-in-amona
home of a winery of Amona – photo by Ari Fuld

Amona has a school, playgroundroads, vineyards and as posted in the previous article about Amona, sheep and lamb barns (see Brian John Thomas’ video, below.)

Here are some photos of Amona, from the Wine4Amona website hosted by דפיכתוֹם, courtesy of Avi Abelow:

slide1

slide2

slide3

Amona is a productive community that is known for producing award-winning wine

award-winning-wine
2009 & 2011 awards for Amona wine (photos by Ari Fuld)

Amona also raises sheep and lamb

Sheep and lamb farm in Amona (photo by Brian John Thomas)
Sheep and lamb farm in Amona (photo by Brian John Thomas)

The residents of Amona are ordinary people, with ordinary lives who work and raise their families on the land given to the tribe of Benjamin — land which that was set aside for the Jewish homeland since 1917* and which has been part of Israel since its modern foundation on May 14, 1948.

*see Struggle for Amona - Struggle for National Sovereignty for a brief history http://www.morehasbara.com/2016/12/13/struggle-amona-struggle-national-sovereignty/] 

and 

Judea and Samaria - the West Bank of the Jordan http://www.morehasbara.com/2016/12/13/judea-samaria-west-bank-jordan/ for a brief history.

The land on which Amona is built was gifted by King Hussein of Jordan to a close associate during the period in which Jordan illegally occupied Judea and Samaria (1948-1967)

This land was not the King of Jordan’s to give.

It was seized by military force when Egypt, Syria and Jordan invaded the newly-created state of Israel, just one day after it was created.

[see Struggle for Amona – Struggle for National Sovereignty, link above].

The Jordanian king having given a parcel of land to colleagues during a time that Jordan illegally occupied and annexed the land from Israel does not make that land the possession of 
(1) those families 
(2) their descendants nor 
(3) anyone that may have subsequently purchased it from them.

This land has always been Israel.

To “give’ the residents of Amona such a “choice” for nothing more than the political gain of an organization is obscene. 

A court’s role is to uphold the law as it is written, which is the High Court of Israel’s justification for having ruled in a case brought by others on behalf of an unnamed, absentee “deed holder”, who never took the case to court and was not present for the proceedings.

Such a case should not have been heard until the courts ruled on the issue as to whether a deed issued for land illegally seized from Israel is legally binding.

Until that is resolved, the residents of Amona must be allowed to stay.

 


For those wishing to help the people of Amona and get some of their award-winning wine at the same time, here is a link: http://www.dkatom.co.il/wine4amona


Here is a link to the video from Ari Fuld from which some of the above photos and information was taken:

Here is the link a video of Brian John Thomas’ visit to Amona, just prior to the residents’s decision.

Judea and Samaria — the West Bank of the Jordan

INTRODUCTION: To understand the present issues with regards to Jewish inhabitants in outpost towns in Judea and Samaria*, in the so-called “disputed territories”, requires some knowledge of the modern history of region.  This article provides that brief history.

*Judea and Samaria is know as "the West Bank" as it is on the west bank of the Jordan River.

The ancient and biblical history of Jews in the land is beyond the scope of this article — suffice to say that the very term “Jew” is derived from the region from which they originated, Judea.

In terms of timeline, this article begins towards the end of World War I (WWI) with British involvement in the geographic area known as Palestine.

[For information regarding where the term "Palestine" came from, please see Where is Ancient Palestine and Who are the Palestinians: http://www.morehasbara.com/2015/10/11/where-is-ancient-palestine-who-are-the-palestinians/]

Balfour Declaration and the Mandate System

Towards the end of WWI, in November 1917, the British government issued the Balfour Declaration in which it announced its intention to facilitate the “establishment in Palestine of a national home for the Jewish people”.  The was the beginning of concrete plans for a modern state of Israel.

In 1920, the Mandate system was instituted by the League of Nations (forerunner of the United Nations) in order to administer non-self-governing territories. A nation granted mandatory powers by the League of Nations was to consider the mandated territory a temporary trust and to see to the well-being and advancement of its population.

In 1922, following the defeat of the Ottoman Empire in WWI, the British were granted mandatory powers by the League of Nations to administer the geographic region of Palestine.  The British Mandate for Palestine included provisions calling for the establishment of a Jewish homeland, facilitating Jewish immigration and encouraging Jewish settlement on the land all of which built on the foundation of the Balfour Declaration.

However just a few months later, the League of Nations and Britain arrived at the decision that the provisions for setting up a Jewish national home would not apply to the area east of the Jordan River.

In 1923, under Article 25 of the British Mandate for PalestineBritish Mandate - Israel and TransJordan the first Arab-Palestinian state of Transjordan (later renamed Jordan) was created by the British, which allocated 78% of the land that had been set aside to be part of the reconstituted homeland for the Jewish people under the Balfour Declaration to an Arab state  and the British excluded it from Jewish settlement.

This left only 22% of the land for a Jewish state.

Judea and Samaria was included in this small piece of land destined for the Jewish State.

After the partition, Transjordan remained part of the British Mandate for Palestine, and Britain continued to be responsible for administering the land on both sides of the Jordan River.

The Arabs that remained living on the small piece of land earmarked for the Jewish state after the creation of the Arab-Palestinian state of Transjordan, attacked and killed Jews living there in an effort to drive them out and claim all of British Mandate of Palestine as Arab land. The Hebron Massacres of 1929 and the 1936-39 Arab Revolt are the most notable of these attacks.

In 1936, the British appointed the Peel Commission to find a solution to the violence, the outcome of which was a recommendation to partition the land under the British Mandate for Palestine, between Arabs and Jews.

In 1939, WWII began and shortly afterwards, the British issued a White Paper restricting Jewish immigration to British Mandated Palestine   just as thousands of Jews wanted to flee the escalating Nazi violence in Europe.  The British set a limit that a maximum of 75,000 immigration certificates would be authorized by the mandatory power to incoming Jews. The British hoped to appease the local Arab population by limiting the number of Jews coming into the region and with the US having also limited immigration of Jews, those being hunted by the Nazis had no place of escape.

The role of Haj Amin al-Husseini, the Grand Mufti of Jerusalem and his 1941 meeting with Adolph Hitler certainly factors into the “big picture” as does al-Husseini’s role in the Middle East after WWII and leading up to the Six Day War, including President Abdel Nasser of Egypt’s intent to “destroy Israel”.

For more information, please see;

The Mufti and the Fuhrer (http://www.morehasbara.com/2015/10/22/the-mufti-and-the-fuhrer-background-to-nazi-influence-in-the-middle-east/) 

and 

Nazi Influence in the Middle East (http://www.morehasbara.com/2015/10/24/nazi-influence-in-the-middle-east-haj-amin-al-husseini/) for more information]

Under the British Mandate for Palestine, the Jewish community that was already in the land, formed political, social and economic institutions that governed daily life and served as a infrastructure for the community. David Ben-Gurion served as its head.

In 1946, Britain unilaterally granted Transjordan independencecreating an independent Palestine-Arab state. This was the first “two-state solution“. In doing so, however, Britain failed to live up to its responsibility under the Mandate system to see the well-being and advancement of all of its population, Jews included.

Shortly afterwards, the British government, unable to manage Arab tensions and ongoing violent attacks against the Jews in the land, handed control over to the United Nations.

Partition-Plan-1947-235x300After much debate and discussion, in November 1947, the United Nations General Assembly voted on Resolution 181, which allocated half of the land that the British had set aside for the Jewish homeland under the Balfour Declaration for creation of a second Arab state — with the remaining half (mostly of which was in the barren Negev desert) for a the Jewish state.

This became known as the “Partition Plan“.

The Jews accepted the Partition Plan that would have given the Arabs all of Gaza and all of Judea and Samaria  — in exchange for peace with a Jewish state, but the Arabs rejected it. As little as 1/4 of the original land allocated to a Jewish state was still considered too much

Birth of the State of Israel

At 4:00 PM on May 14, 1948, just 8 hours before the British Mandate for Palestine officially terminated, David Ben-Gurion proclaimed the creation of the State of Israel and became its first prime minister.

The very next day the armies of all of the neighboring Arab states of Lebanon, Syria, Iraq, Trans-Jordan (now Jordan) and Egypt attacked the newly-created State of Israel, in an attempt to destroy it. This became known as the “War of Independence“.

By March 1949, at the end of the 10-month long War of Independence, Gaza was occupied by Egypt, and Judea and Samaria and East Jerusalem  were occupied by Jordan

On April 24, 1950, Jordan annexed both East Jerusalem and Judea and Samaria — areas it had seized from Israel by military force in 1948. The annexation of East Jerusalem and Judea and Samaria was viewed as illegal by most of the international community, including all of the Arab states.

In May of 1967, Gamal Abdel Nasser, President of Egypt announced his plans “to destroy Israel”. Given his documented, past affiliation with the Nazis during WWII, this should come as no surprise [see Nazi Influence in the Middle East, link above].

Nasser placed Egypt’s troops on Israel’s border, and after signing a treaty with Syria, placed the Syrian military under an Egyptian general. The armies of Egypt and Syria were mobilized to attack Israel.

Israel preemptively attacked Egypt and Syria but did not attack Jordan — asking instead for King Hussein of Jordan not to join the war. King Hussein did not have a good relationship with Egypt’s President Nasser (Nasser’s intelligence service had tried to assassinate the King multiple times), but when the rest of the Arab world lined up behind Nasser’s promise to destroy Israel, King Hussein of Jordan joined the attack.

Jordan’s decision to join this Arab allegiance to destroy Israel, despite a request from Israel that they do not, ended by Israel taking control of its own land that Jordan had occupied in 1948 and illegally annexed in 1950— specifically East Jerusalem and the land on the “west bank” of the Jordan River; Judea and Samaria

It was after the Six-Day War in 1967, when Israel reclaimed land that Jordan had seized from Israel, that East Jerusalem and Judea and Samaria (since dubbed “the West Bank”) became so-called “disputed territory” in the eyes for the International community, and Israel came to be called ‘occupiers’ and ‘settlers’ of their own land.

It should be noted that at no point from 1948 until 1967 did the international community ever view Jordan as "occupiers" of Judea and Samaria. 

The double standard is striking.

Israel is accused by the international community of not adhering to the Fourth Geneva Convention of 1949 with respect to Judea and Samaria — a statute which outlines the obligations of an “occupying power” in times of war.  The Fourth Geneva Convention cannot be applied to Israel, as it cannot be an occupying powerin its own land — land it reclaimed from illegal annexation by Jordan.

The only “occupying power” in violation of the Fourth Geneva Convention in Judea and Samaria was Jordan, from the years 1948 – 1967.

Final Thoughts…

Most obvious, Jewish inhabitants of outpost towns in Judea and Samaria cannot be “settlers” or “occupiers“. Judea and Samaria has always been part of Israel, both in ancient times (beyond the scope of this article) and in modern times.  The Arabs rejected the Partition Plan which would have given them all of Gaza and all of Judea and Samaria, in exchange for peace and rejected a similar offer in 2000. It seems apparent that any amount of land for a Jewish state is too much.

The Jews of Judea and Samaria have always been willing to live in peace with its non-Jewish inhabitants.

All the Arab inhabitants have ever needed to do is;

(1) recognize Israel as a Jewish state

and

(2) promise to live in peace with it.

It seems apparent from modern history that the Arabs do not want a Jewish state of any size that they need to recognize.