Quebec Courts Open a New Chapter on Corporate Civil Liability: Paying for War Crimes?

The Palestinian village of Bil’in is headed to the Quebec Cour d’appel, in an attempt to hold two Montreal corporations civilly liable for their actions in the occupied Palestinian territories. Justice Louis-Paul Cullen of the Superior Court ruled against the villagers in a decision handed down on September 18, 2009.

Bil’in is a tiny agricultural community of 1,800 residents located 12 kilometres west of Ramallah, well within to the 1967 Armistice line dividing Israel and the West Bank. Though it is firmly rooted in the Occupied Palestinian Territories, the village has been bisected by the Israeli “Security Barrier”. The route of the barrier was deemed to be illegal, and in breach of international law by the International Court of Justice in 2004. In 2007, the High Court of Justice in Israel ordered the wall re-routed, confirming they saw no security or military reasons to maintain the current path of the wall, deeming it “highly prejudicial” to the villagers of Bil’in. Still, the wall remains in place, prompting Bil’in and its allies to seek new forums for judicial redress.

Their attorney, Israeli human rights lawyer Michael Sfard, decided a new approach was needed and began to target the corporations that he claims are complicit in the loss of Bil’in’s land. On the other side of the Israeli barrier, the settlement bloc of Modi’in Ilit has been constructed. And the development companies building these rapidly growing settlements are Green Park and Green Mount, both based in Montreal.

Sfard and his legal team, including Toronto attorney Mark Arnold, crafted an interesting legal argument, suggesting that by building settlements in Occupied Territory – a violation of the Fourth Geneva Convention – the defendant corporations were not only breaching international law, but Canadian law as well. Canada’s Crimes Against Humanity and War Crimes Act imported international law into domestic law. Yet in what was perhaps the most interesting element of Bil’in’s case, the plaintiffs sought to hold these development corporations civilly liable under Quebec’s regime of extracontractual obligations, for breach of the Crimes Against Humanity and War Crimes Act.

Using a statutory breach as a vehicle to create civil liability for aiding and abetting in a war crime was not only an extremely novel  legal tactic, but a model for how corporations could be deterred from engaging in breaches of international law, and human rights. Although Justice Cullen’s decision relied on the theory of forum non conveniens to dismiss the claim, suggesting the Israeli High Court of Justice ought to hear it, he did rule that “A war crime is an indictable offence. As such, it is an imperative rule of conduct that implicitly circumscribes an elementary norm of prudence, the violation of which constitutes a civil fault pursuant to art. 1457 C.C.Q.” Justice  Cullen thus created a groundbreaking precedent, suggesting civil liability in Quebec could easily accrue to any person who committed a war crime, such as breaching the Geneva Conventions by “knowingly participating in a foreign country in the unlawful transfer by an occupying power of a portion of its own civilian population into the territory it occupies.”

The potential ramifications of this decision are immense. Traditionally, only individuals and states have been held liable for breaches of international laws of war. The prospect of putting corporate actors on trial for breaching the laws of war opens up new dimensions of liability, and hopefully acts as a deterrent to those involved in gross violations.

Critics of the Bil’in trial, such as lawyer Ronald Levy of de Grandpré Chait, who represented the defendants, argued that the claim was a publicity stunt. Suing the defendant corporations was certainly a political act. The lawsuit was accompanied by protests from assorted Palestine solidarity groups in Montreal, and was profiled as a new branch of Palestinian civil struggle on Al-Jazeera, known as the “Courtroom Intifada.” Yet international law remains inherently political, and it could be argued that the act of building homes on disputed territory should not be available risk free to all those companies seeking a profit.

Attorney Michael Sfard seems confident about the village’s appeal. He told Radio-Canada, “The litigation is between a Palestinian village and a Canadian company. Why would an Israeli court be a better place to adjudicate the matter than a Canadian court?”

The villagers in Bil’in are also hopeful the appeal will prevail. They have responded with weekly non-violent protests that have become the subject of international attention. Friday afternoons in Bil’in begin with the midday prayers, followed by teams of Palestinians, left-wing Israelis and international activists marching to the fence to confront the Israeli Army stationed there; cadres of reporters from Reuters, BBC, Al-Jazeera and other networks are always close in tow. The village has become known for these protests, and are uploaded each week to Youtube.

The Canadian court system has the opportunity here to set a global precedent and raise the bar for the conduct of corporations operating not only in the Occupied Territories, but in every conflict zone. As Sfard told the Jerusalem Post, it is “important to take action against private individuals and companies that help the state in its actions that violate international humanitarian law.”

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