Palestinians ask Canadian Court to stop settlement construction
Bil'in seeks 2 million dollars in punitive damages for companies building apartments in Modi'in Illit.
By TOVAH LAZAROFFmodiin ilit 224 88(photo credit: Tovah Lazaroff)
The Palestinian village of Bil'in turned to a Canadian court last week for help in its fight against settlement construction.
It filed suit for damages in Quebec Superior Court in Montreal against Green Park International and Green Mount International, two sister companies registered in Montreal that are building and selling apartments in Modi'in Illit's new Matityahu East neighborhood.
The move comes 10 months after Bil'in, which claims that the 900 dunams, or 90 hectares, of land on which Matityahu East is being built belongs to their village, had a petition against the project rejected by the High Court of Justice in Jerusalem.
On Wednesday, Canadian attorney Mark Arnold asked the Quebec Superior Court to order the two companies to pay Bil'in C$2 million in damages and demolish the apartments.
He also asked the court to issue an order to stop the project in hopes that this injunction would then be recognized by Israel's High Court.
Attorney Michael Sfard, who represents Bil'in in Israel, said the suit was valid because settlement activity was illegal under international law, including article 49 of the Fourth Geneva Convention, which prohibits civilians from an occupying power from living in the occupied territory, and the July 9, 2004, ruling of the International Court of Justice at The Hague holding that the establishment of settlements in the West Bank was illegal.
According to the legal brief filed in Quebec, the Geneva Convention applies because by building in the settlements the defendants acted as "de facto agents of Israel" in carrying out an "illegal purpose."
The lawsuit claims the defendants are also liable because according to Canadian law, private citizens can be prosecuted for failure to comply with the Rome Statue of the International Criminal Court (1988), according to which it is a war crime to transfer civilians of an occupying power into the occupied territory.
Any time a foreign corporation is involved in settlement construction there was the possibility of bringing them before a foreign court, Sfard said.
According to Arnold, a Canadian ruling could be used to get Israeli courts to stop the construction on behalf of Canada.
Moshe Glick, an Israeli attorney connected with Green Park International, said the company's construction project has been authorized by the Israeli courts and that he did not believe the Quebec court has jurisdiction in the matter. He said the company was registered in Canada but operated solely in Israel.
Ed Morgan, a University of Toronto professor of international law, said there were obstacles inherent in the case that could prevent it from succeeding.
The Geneva Convention, for example, was meant to apply to countries and not to individuals or companies, said Morgan, who is past president of the Canadian Jewish Congress.
To apply the convention against the companies, the suit makes the claim that they were acting as de facto agents of the State of Israel in their construction of apartments in the settlement, Morgan said.
But if that were true, he said, then the Quebec court could reject the suit because "agents of a sovereign state cannot be sued in the domestic court of another state."
But there were other claims that had not been tested, such as whether there was a private right of action in Canada for damages based on the Rome Statute's war crimes provision, he said.
Jurisdiction could also be an issue because the plaintiffs would have to prove a substantive tie to Canada beyond a legal address, Morgan said. "There is a constitutional requirement that the defendants actions have a real and substantial link to Canada."
Still, he said, bringing international issues into domestic courts remained uncharted territory. He himself turned to the Quebec Superior Court his week against the Lebanese Canadian Bank, which allegedly provided financial services to Hizbullah terrorists prior to and during the Second Lebanon War. He did so on behalf of Canadian citizens who were wounded by Hizbullah rockets during that war.
Morgan said he believed he was on firmer ground in the Hizbullah suit because the bank was active in Canada.
Still, "These cases have not been heavily litigated in Canada," Morgan said.
