Israel v. Palestine: Coming soon to a courtroom near you

Shortly after September 11, 2001, former US general Charles Dunlap wrote an essay warning of the risk that “lawfare” – the application of international law to inflict strategic damage on an opponent with the aim of achieving military objectives – could be used against the US in its emerging War on Terror.[1] In a subsequent article, he elaborated on two mechanisms by which lawfare could be employed as an unconventional means of confronting democratic states off the battlefield: first, by exposing real or alleged violations of international law on the part of an opponent to weaken domestic public support, destabilize the government, and penalize decision-makers; second, by promoting an understanding of international law that results in the formulation of operational policy that is unnecessarily constrained and detrimental to the opponent’s military capabilities. The harm that results from both, he concludes, is ultimately self-inflicted and could be avoided by strict adherence to the rule of law.[2]

The consequences envisioned by Dunlap constitute only part of lawfare’s potential impact. With increasing frequency over the last decade, litigation as a means of pursuing strategic military or political objectives has been employed in the Middle East conflict against state, non-state, and private actors alike.

The most common tactic involves attempts to indict Israel’s leadership in foreign or international forums for alleged breaches of international humanitarian law. One of the most high-profile cases…

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Bil’in (Village Council) c. Green Park International Inc: an Overeaching Assertion of Jurisdiction?

In his detailed analysis of Bil’in (Village Council) c. Green Park International Inc, James Yap argues that the plaintiffs will have a great chance of overturning Cullen J.’s decision to decline jurisdiction. Since our own Alexandra Dodger introduces this intricate case very well, I direct those who are unfamiliar with it to her entry. While I welcome the decision for its potential to end the impunity with which Canadian corporations operate overseas, I believe that the Court of Appeal would not overturn Cullen J.’s decision if it did hear the matter. I agree with the outcome because the connection between the dispute and Québec is far too superficial for a Québec court to legitimately claim jurisdiction over the action. However, the issues raised by the application of forum non conveniens to this case should make us think twice before dismissing the plaintiffs’ action as an abusive or exaggerated assertion of jurisdiction.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later…

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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…

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