The international community has repeatedly affirmed its commitment to Palestinian self-determination. In general terms, its normative obligations to the Palestinian people can be divided into three categories. First, there is a moral duty, arising both from humanitarian interest and from the international community’s exceptionally pronounced role in the protracted conflict between Israelis and Palestinians, to advance peace and reconciliation between the two parties. Second, there is a general legal duty, stemming from the preambles of the UN Charter and the International Covenant on Civil and Political Rights to promote respect for the Palestinians’ human rights, which have been recognized as including the collective right to self-determination.[1] Third, there is a specific legal duty, rooted in the Geneva Conventions, to protect the rights of Palestinians living under Israeli occupation by ensuring Israeli compliance with international humanitarian law (IHL).

Effects of UN recognition on the parties’ compliance with international law

Israeli settlements in the West Bank, often built on stolen private land,[2] have for 44 years increasingly curtailed non-Jewish residents’ access to justice, civil rights, and public resources, creating a situation that several Israeli leaders, including former prime ministers Barak and Olmert, have compared to apartheid. At a time when peoples across the Middle East are rising up en masse against oppressive regimes, it is clearer than ever that the status quo in Palestine is both morally intolerable and logistically untenable.

Common article 1 of the Geneva Conventions obligates all states to “ensure respect for the present Convention in all circumstances.” According to the authoritative commentary of Jean Pictet of the International Committee of the Red Cross, it follows from this that states should endeavour to bring Contracting Parties who violate their obligations “back to an attitude of respect for the Convention.” This “attitude of respect” contrasts starkly with the cavalier indifference consistently demonstrated by Israel with regard to the settlements, which is perhaps best characterized by the 1967 remark of Defense Minister Moshe Dayan: “Settling Israelis in occupied territory contravenes, as is known, international conventions… but there is nothing essentially new in that.”[3]

There is little international contention that Israel’s settlement project violates art. 49(6) of the Fourth Geneva Convention. This the legal position of every country in the world aside from Israel — even the Harper government in Canada, which Israeli foreign minister Avigdor Lieberman has referred to as Israel’s best friend in the world, has affirmed (albeit after much hemming and hawing) Canada’s longstanding position that “Israeli settlements in the occupied territories [the Golan Heights, the West Bank, East Jerusalem, and the Gaza Strip] are a violation of the Fourth Geneva Convention.” This was the unanimous legal finding of the International Court of Justice across its majority and dissenting opinions in the 2003 Wall reference. It was even the legal position of the Israeli govenment’s own legal advisor and justice minister at the time that settlement construction began in 1967.

Far from fulfilling its legal obligation to bring Israel back from its attitude of blatant disregard to one of “respect” for the Geneva Conventions, much of the world, including Canada, has adopted policies which signal implicit acquiescence to Israeli violations of IHL. For example, while the European Union excludes products manufactured in Israeli settlements from preferential import tariffs under its separate trade agreements with Israel and the Palestinian Authority, the Canada-Israel Free Trade Agreement continues to accord preferential treatment to such products. The Canadian government also gives tax credits for donations that help settlement construction.

Palestinian UN membership would do much to encourage Israeli compliance with IHL, especially by granting Palestine access to the International Criminal Court. Should Palestine choose to accede to the Rome Statute (with the caveat that this would necessitate Palestinian compliance with IHL as well, and potentially expose many Palestinian actors to war crimes charges themselves), and should the ICC accept jurisdiction over settlement crimes (as it likely would, non-retroactively, on the basis of complementary territorial jurisdiction given that Israeli courts have deemed the overarching legal question non-justiciable), Israeli officials involved in settlement construction, up to and including the prime minister, could conceivably face prosecution for war crimes in the Hague. Pursuing war crimes charges against Israeli officials would surely prompt retaliatory measures from Israel, but the looming threat — even if not acted upon — would exert massive pressure on Israel to discontinue settlement construction (as it committed to doing in 2003) and stand a good chance of succeeding where 18 years of negotiations have failed. Given other countries’ failure to pressure Israel to halt its settlement activity, enabling the Palestinians themselves to do so through international legal forums would satisfy the art. 1 obligation to promote compliance with the Geneva Conventions, and is therefore a good legal reason to support the UN bid.

Effects of UN recognition on the legal status of Palestine

Contrary to popular belief, statehood is not an attribute bestowed upon entities at the leisure of the UN. The most widely-accepted legal definition of statehood, stemming from the Montevideo Convention of 1933, requires states to have (in order of importance from least to greatest) a permanent population, defined territory, effective government, and the capacity to enter into international agreements. Of importance to note with regard to the second point is that border disputes do not disqualify an entity from statehood. According to the constitutive theory of statehood, statehood arises vis-à-vis other state actors when satisfaction of the aforementioned criteria is recognized at a bilateral level — that is, if Venezuela or the Arab League recognize Palestinian fulfillment of the Montevideo criteria (i.e. the existence of a Palestinian people, territory, and government) and establish international relations with it, than Palestine legally becomes a state vis-à-vis Venezuela or the Arab League.

According to self-determination theorists (a subset of the constitutive school) it is also important to consider just what type of state Palestine would be. Would it be democratic? Tolerant of minorities? Self-determination theorists argue that if the answer to these questions is negative, recognition should not be extended to it even if it meets the Montevideo criteria — a view which is gaining prominence in international legal thought. For example, in 1992 the Badinter Commission initially declined to recognize the newly-formed state of Croatia, citing constitutional shortcomings regarding the protection of minorities. This trend in international law signals a far greater concern for states’ domestic affairs than that exhibited by the drafters of the Montevideo Convention, and could pose problems for Palestine’s bid for recognition. Among other concerns in this regard (mirrored as they may be in Israel) are the Palestinian government’s denial of Jews’ historic connection to Judea, laws categorically banning the sale of land to Jews, and the Palestinian ambassador to the UN’s recent comment to the effect that he sees no room in a Palestinian state for Jewish citizens (currently 510,000 Jews live in the West Bank and East Jerusalem). The UN might — and should — seek to clarify Palestine’s stance on minority rights and democratic accountability before extending it recognition as a state.

If an entity acquires statehood status vis-à-vis the UN it gains access to a wide range of international institutions such as the ICC and the ICJ. There are two ways for an entity to acquire statehood status vis-à-vis the UN: one is through full membership — which is the most robust form of international recognition — and the other through a declaratory resolution of the General Assembly. Acquiring membership requires a super-majority of nine votes at the Security Council, no veto by any of the five permanent members, and a two-thirds majority of 129 votes at the GA; it is also conditional upon acceptance of the UN Charter. If Palestine’s bid for UN membership fails, as it is believed that it will, the PLO will likely seek a special GA resolution, passed by a simple majority, declaring Palestine to be a state and granting it access to a range of international forums.

Even this would be a diplomatic victory for the PLO, by modifying the conceptual framework through which its conflict with Israel is viewed. Instead of treating Palestinians’ exercise of their right to self-determination as a concession to be granted by Israel, it would reframe the negotiations as a dialogue between sovereigns over borders and security. Simply legitimating use of the word Palestine in popular discourse has already been an incalculable moral victory.

Effects of UN recognition on the legal rights of Palestinians

Oxford law professor Guy Goodwin-Gill argues that it is legally problematic for the PLO to seek to replace itself as the “sole legitimate representative of the Palestinian people” with a Palestinian state, as the Palestinian people represented by the PLO comprises a large and scattered diaspora. By redefining the Palestinian people as territorially limited to the West Bank and Gaza Strip, the PLO would be leaving the majority of its constituents bereft of international representation without their consent — arguably violating a fiduciary duty to represent their unresolved legal claims against Israel.

I find this reasoning uncompelling. There is no conceptual problem with the state of Palestine granting citizenship to and/or acting on behalf of all Palestinians who are currently represented by the PLO, much as the state of Israel often claims to represent all Jews. While the PLO’s efforts to seek recognition of a Palestinian state east of the 1949 armistice lines do indeed limit its ability to seek the repatriation of Palestinian refugees west of the Green Line, the PLO is entitled to set its own priorities. Invoking the Universal Declaration of Human Rights, Goodwin-Gill argues that the PLO has no legal authority to effectively waive the rights of its constituents without their approval; however, democratic legitimacy has never been an accepted prerequisite for UN representation.

Effects of UN recognition on the legal status of the Israeli occupation

A common misconception is that international affirmation of Palestine’s statehood would render the Israeli occupation illegal; in fact, it would have no bearing on its legal status whatsoever.

Occupation, under IHL, is not a crime. Proponents of the view that the Israeli occupation is illegal base their arguments in jus ad bellum, arguing that Israel’s possession of the occupied territories resulted from a crime of aggression. I disagree with this assessment; in my view, an analysis of the events leading up to the war which begat Israel’s conquests — in particular Egypt’s threats against Israel, its deployment of troops, and its expulsion of UN peacekeeping forces days before the war broke out — tends to support Israel’s contention that its attack against Egypt on June 5, 1967 and its ensuing war with Jordan and Syria were legitimate acts of self-defense.

Accordingly, Israel’s initial occupation of the West Bank and Gaza was legal, and it remains legal until the Palestinian people have reasonably reassured Israel that its withdrawal would not jeopardize its security (regrettably, Israel has never indicated the circumstances under which it would consider this criterion satisfied). This is not to deny that grave violations of IHL and international human rights law have been and continue to be perpetrated by the military regime, but the illegality of such acts should not be confused with that of the occupation itself.

Barring the unlikely prospect of military intervention, there is nothing the UN or anyone else can do that would obviate the need for Palestinians to negotiate a withdrawal with Israel by addressing its security concerns.

Effects of UN recognition on Palestine’s bilateral negotiations with Israel

The main criticism of the Palestinians’ UN move is that it will accomplish nothing, as at the end of the day the Palestinians need to achieve independence from Israel, not from the UN. Critics claim that the PLO is not trying to build a state, but merely weaken and sideline Israel, and that UN recognition would reinforce Palestinian rejectionism by creating the semblance of an alternative to direct negotiations.

There is little doubt that the UN initiative will increase international pressure on Israel and improve the Palestinians’ bargaining position. However, this in turn may actually help move the peace process forward, in much the same way as the domestic and international consequences of the limited-aims war waged by Syria and Egypt against Israel in October 1973 generated sufficient pressure on Israel for it to make the concessions necessary for peace with Egypt — concessions it had been unwilling to make beforehand. As things stand now, Israel holds virtually all the power in its relationship with Palestine, and there is a general consensus among its allies as well as its enemies that Israel simply lacks incentive to move forward with talks. Personalities ranging from former US president Bill Clinton and European heads of state to Netanyahu’s own father have publicly intimated that the Israeli prime minister is more interested in obstructing negotiations than advancing them. Under the patronage of Netanyahu and his political allies, the Israeli settler population has nearly tripled in the last 18 years alone and continues to grow, and there is unanimous international consensus that the creation of such “facts on the ground” is anathema to peace talks. Israel’s international isolation, which is at a more pronounced level than it has been since the 1970s, makes it particularly susceptible to outside pressure to make the concessions deemed necessary for talks to move forward.

Other arguments have been made against the Palestinian initiative. Some suggest it might lead to violence, others that there is nothing inherently desirable about creating a Palestinian state that will likely be poor, undemocratic, intolerant of minorities, lacking in civil liberties, and embroiled in internal and external conflict. Israelis have very legitimate fears that Palestinian statehood will threaten their security, and Palestinians have very legitimate fears that it will prejudice refugees’ rights. Nevertheless, in light of the impasse that has brought negotiations to a standstill, the massive power imbalance between the parties, the parties’ declared preference for a two-state framework for resolving the conflict, and the near-certainty that a continued deadlock would result in renewed violence, I would view UN recognition of Palestinian statehood as a decidedly positive development from the perspective of advancing the peace process.

Israel, the PLO, and the UN having all accepted the two-state framework, the Palestinians are now urging the international community to stand by it in deed as well as in word by according Palestine the same recognition as any other nation. As the UN bid appears to be the most viable option for advancing negotiations, ensuring respect for the Palestinians’ individual and collective human rights, and promoting compliance with international humanitarian law, it can easily be argued that countries have both a moral and legal duty to support it. On the other hand, it leaves all of the core issues unresolved, and current trends in international law suggest that new states should be obliged to meet minimum thresholds for democratic legitimacy and the protection of human rights which it is not clear that Palestine has yet achieved. At the end of the day, to be sure, countries’ decisions on whether or not to recognize Palestinian statehood will be based overwhelmingly on political factors; yet one might hope that legal considerations such as those I have sought to address here will also play a role in the debate.

[2] According to a report compiled by the Israeli NGO B’tselem, 21% of the built-up area of Israeli settlements is on land that the Israeli govenment recognizes as privately-owned by Palestinians, in contravention of Israeli law and court rulings. See By Hook and Crook: Israeli Settlement Policy in the West Bank (2010).

[3] Cited in Gorenberg, G. The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (Times Books, 2006).

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 of this sort involved Israeli general Doron Almog, who fled prosecution for war crimes in the UK after learning upon his arrival there that an arrest warrant had been issued against him for his alleged role in demolishing houses in Gaza in violation of art. 53 of the Fourth Geneva Convention. This incident and similar warrants issued against other Israeli officials in several European countries – including current opposition leader Tzipi Livni in the aftermath of Operation Cast Lead – have prompted Israel to take action, increasing its reliance on legal advisors during military operations and urging its allies to impose legislative limits on the doctrine of universal jurisdiction.[3] Legally-dubious practices applied by Israel in the past, such as punitive house demolitions, use of incendiary munitions in populated areas, and targeted assassinations, have been halted or curtailed.[4]

Another common use of litigation to achieve strategic political objectives with regard to the Middle East conflict involves the application of anti-terrorism legislation to target Palestinian actors. For example, the right-wing Israeli organization Shurat HaDin has been involved in litigating over a dozen cases, mostly in the US and Israel, against banks, Palestinian charities, and Muslim leaders around the world for their alleged support of terrorism. Many of these suits have been manifestly frivolous, such as a 2008 lawsuit against the government of Egypt, filed in an Israeli court, for not doing enough to prevent Hamas rocket fire from Gaza.[5] Others have been less so; on the basis of expansive anti-terrorism legislation, US courts have ordered the North Korean government to pay $378 million to victims of a joint Japanese Red Army-Popular Front for the Liberation of Palestine massacre at an Israeli airport in 1972,[6] the Iranian government to pay $183 million to the victims of a Hamas bus bombing in Jerusalem,[7] and the Palestinian Authority to pay $116 million to the Israeli victim of a West Bank shooting carried out by Hamas members wearing PA uniforms.[8]

The obvious downside of such judgments is that they are generally impossible to collect. Moreover, such thinly-veiled judicial forays into the realms of foreign affairs and international diplomacy threaten the constitutional separation of powers and risk harming the US’s national interests; in the case of the PA, the judgment resulted in $30 million of the Palestinian national bank’s assets in the US being frozen while at the same time the US government was continuing to pour money into PA accounts abroad in compliance with its international commitments. The freeze order was eventually overturned, but there is no question that it embarassed the government diplomatically and set back the US interest in developing the Palestinian economy. However, it apparently suited the political aims of Shurat HaDin; the organization seems to boast on its website that its actions have contributed to the closure of all banks in Gaza,[9] and its director has meanwhile petitioned the US government to break off the peace process on the basis of PA president Mahmoud Abbas’ alleged ties to terrorism.[10]

The third type of litigation relevant to the Middle East conflict comprises claims in tort against parties indirectly connected to the conflict. Such cases are liable to arise in regard to either Israeli or Palestinian actions.

In 2003, US activist Rachel Corrie was crushed to death by an Israeli bulldozer while protesting house demolitions in Gaza. In 2005, her parents and four Palestinian families who had lost relatives in a similar manner initiated legal proceedings against Caterpillar (the manufacturer of the bulldozers) in the US. The bulldozers were paid for by the Pentagon, which supplied them to Israel as part of a US military aid package. The plaintiffs argued that Caterpillar ought to have known that the bulldozers would be used in breach of international law. The suit was dismissed on the grounds that hearing the case would necessarily involve challenging US foreign policy toward Israel, and would therefore overstep the limits of judicial authority.[11]

In 2009, in a saga known as the “courtroom intifada,” the Palestinian village of Bil’in filed suit in Quebec Superior Court against Montreal-based companies Green Park and Green Mount.[12] The two companies were allegedly involved in developing Israeli-occupied land belonging to Bil’in’s residents for use by Israeli settlers, in contravention of the Fourth Geneva Convention. The plaintiffs argued that, in addition to international law, the defendant companies’ actions violated Canada’s Crimes Against Humanity and War Crimes Act, giving rise to civil liability under Quebec’s regime of extra-contractual obligations. The court dismissed the suit on the basis of the doctrine of forum non conveniens, holding that the matter was best heard by an Israeli court.[13]

Most recently, in July of this year, Shurat HaDin filed a lawsuit against the news network Al-Jazeera in the US on behalf of 91 Israelis wounded by Hezbollah rocket fire, alleging that Al-Jazeera’s reports from within Israel during the 2006 Israel-Lebanon war assisted Hezbollah in aiming its rockets.[14] The plaintiffs are seeking $1.2 billion in damages. Unsurprisingly, I do not have high expectations that this suit will succeed, not least of all because it would seem altogether impossible for the plaintiffs to establish causality.

Lawfare, it would seem from the above examples, can be a wildly asymmetrical – if often effective – means of waging conflict. While litigation based on international humanitarian law seems to fundamentally disadvantage Israel, suits based in private law actions seem to be (at least in many western countries) skewed in its favour.

As far as international humanitarian law goes, many commentators have noted the disadvantages faced by Israel, as a democratic member of the community of nations, in contrast with its non-state opponents. A prime example of this is the Goldstone Report, which brought allegations of war crimes against both Israel and Hamas. However, only Israel was subjected to massive internal and external pressure to investigate these findings, hold decision-makers responsible, and alter its actions in the future. Israel is bound by constraints which its opponents are relatively free to ignore. Nonetheless, I would argue that this is as it should be; it in no way strikes me as illogical for a UN member state to be held to different expectations than a designated terrorist organization. The right-wing Israeli organization NGO Monitor apparently disagrees, accusing humanitarian NGOs of hypocrisy in its reports on anti-Israel “lawfare,” which it describes as harassment and exploitation. It is worth noting that NGO Monitor uses the term lawfare in a slightly different manner than Dunlap does. While the latter considers it to be a form of ultimately self-inflicted damage best prevented by promoting adherence to international law, the former considers it to be merely an illegitimate external attack best prevented by suppressing accountability mechanisms. Moreover, NGO Monitor only objects to lawfare that is directed against Israel, opening itself up to the same sorts of accusations of hypocrisy and ideological agendas that it levels against others.

As for private law, its slanted application in Middle East lawfare is apparent when contrasting the case of Corrie v. Caterpillar with Ungar v. Palestinian Authority et al.  Why is it that US courts are more reluctant to step on the toes of the executive branch when foreign relations with Israel are concerned than they are when the interests at stake are foreign relations with the PA, Iran, or North Korea? I think the answer is likely at least somewhat political. It is true that the latter cases involve specific anti-terrorism statutes, but it seems to me there are other statutes - such as the Alien Tort Claims Act - that might similarly apply to the former. Moreover, in Ungar the court showed a willingness to hold the PA responsible for virtually any act of Palestinian terrorism taking place on its watch, a stringency I doubt it would have applied to Israel.

If courts are going to decide on politically-motivated questions, as inevitably they must, they should do so keeping in mind the following two principles which underlie the Supreme Court of Canada’s decision in Khadr II:[15]

1) Willingness to review the legal implications of foreign policy choices (Did Israel’s use of bulldozers contravene international law? Was the PA a supporter of terrorism as defined by domestic statute?); and

2) Due deference to the executive branch when ordering a remedy likely to impact foreign affairs.

Embracing these principles, rather than seeking to curtail judicial intervention in questions pertaining to foreign conflicts, will promote the rule of law and increase compliance with international norms. Moreover, the increasing use of litigation to wage international conflict emphasizes the importance of incorporating diplomatic considerations into national legal frameworks in a uniform and consistent manner, for example through international agreements on the applicability of the universal jurisdiction doctrine.

To be sure, there is considerable room for the involvement of the law in the Middle East conflict beyond the ways discussed here. Most importantly, the Israeli judiciary serves an invaluable, if imperfect, supervisory role over state action and is frequently called on to balance the competing interests of the state with its citizens’ and subjects’. Finally, international forums, like the International Court of Justice, can provide impartial guidance, advising the international community as well as the actors themselves as to their rights and obligations in striving to resolve or manage the conflict through political means.

[1] Dunlap, Charles J. “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts.” Harvard Carr Center (Nov. 29, 2001). Cited at http://www.washingtontimes.com/news/2007/aug/03/lawfare-amid-warfare/.

[2] Ibid.

[3] http://news.bbc.co.uk/2/hi/middle_east/8415161.stm.

[4] http://www.jpost.com/Israel/Article.aspx?ID=182088.

[5] http://imra.org.il/story.php3?id=37522.

[6] http://www.wdbj7.com/la-fg-north-korea-lawsuits-20101003,0,3145600.story.

[7] http://www.jewishreview.org/node/8584.

[8] Ungar v. Palestinian Authority et al. http://www.boston.com/news/world/middleeast/articles/2005/08/30/palestinian_authoritys_us_assets_are_frozen/.

[9] http://www.israellawcenter.org/Last-Bank-in-Gaza-Closes-Out-of-Fear-of-Victim-s-Civil-Suits.html.

[10] http://www.landofisrael.info/News/2003/4/29/abu_mazen_munich.html.

[11] http://ccrjustice.org/ourcases/current-cases/corrie-et-al.-v.-caterpillar.

[12] Bil’in (Village Council) v. Green Park International Ltd., 2009 QCCS 4151.

[13] http://www.legalfrontiers.ca/2009/10/quebec-courts-open-a-new-chapter-on-corporate-civil-liability-paying-for-war-crimes/.

[14] http://www.usatoday.com/news/world/2010-07-13-israelis-sue-al-jazeera_N.htm.

[15] Canada (Prime Minister) v. Khadr, 2010 SCC 3 (Khadr II).

The success or failure of such a move largely hinges on the international community’s (and in particular, a few key players’) willingness to recognize Palestinian sovereignty against Israel’s wishes. To gain recognition as a member of the United Nations, it would require the support of at least 96 countries including all permanent members of the UN Security Council (UNSC).

A number of analysts have already noted similarities between the case of Palestine and that of Kosovo, which unilaterally declared its independence from Serbia two years ago next week. Though remaining nominally under UN administration under the terms of UNSC Resolution 1244, to date Kosovo’s independence has been recognized by 63 countries, including the United States and many European countries. Its status remains uncertain however, and due to opposition from Russia and China it has little hope of becoming a UN member-state.

In response to Kosovo’s declaration of independence, Serbia has called on the International Court of Justice (ICJ) to rule on the legality of this move. The effects of the ICJ’s advisory opinion, which is expected later this year, are not likely to change things on the ground; where it may have an effect is to influence the international community’s willingness to accept Kosovo’s sovereignty, potentially leading to greater legitimacy and UN membership.

Recognizing the implications of the decision, both sides have vested themselves seriously in the proceedings. Serbia has argued that Kosovo’s independence violates Serbia’s territorial integrity and the terms of Resolution 1244. Kosovo has argued, inter alia, that Resolution 1244 never envisioned a return to full Serbian sovereignty and that the history of violent persecution of Albanians by Serbs, which came to a horrific peak under Slobodan Milosevic, justifies its claim to self-determination on the grounds of protecting the human rights and civil rights of a minority group. This argument is somewhat tenuous, as it could potentially open the door to dozens of other separatist groups seeking independence and implicitly offer legal recognition to those who would seek to achieve nationalist goals by fostering ethnic violence. I would not venture to speculate yet as to the decision of the court, but as the first case of secession to be decided by the ICJ it is sure to have implications for other separatist groups, including the Palestinians.

If the ICJ determines Kosovo’s secession to be legal, it seems likely that a Palestinian declaration of independence will closely follow suit. The two cases bear many similarities: both have been marked by decades of ethnic conflict and persecution, both saw a disenfranchised ethnic group pushing for autonomy in a territory that historically was shared but where it currently constitutes a majority, both are areas of particular concern for the international community, both Serbia and Israel have symbolic nationalist reasons for wanting to hold onto their breakaway territories, and both conflicts have so far proven irresolvable without an imposed or unilateral solution.

Moreover, thanks to Fayyad and those who came before him, the Palestinians already have the benefit of numerous state or quasi-state institutions, and far broader international support than Kosovo does. When the PLO previously declared Palestinian statehood in 1988, the state of Palestine was recognized by close to 100 countries. Today, the number would be much higher, particularly as many European countries have recently expressed a readiness to accept a unilateral Palestinian declaration of independence. Moreover, unlike in 1988, today all major powers – including the United States – have expressed their commitment in principle to a Palestinian state.

Such a state is most probably going to emerge, one way or another. Regardless of the ICJ’s decision on Kosovo, it is unlikely that the Palestinians will wait forever for a peace agreement with Israel. Palestinian President Mahmoud Abbas and others have long been seeking a more prominent role for international institutions, and particularly the ICJ, in their standoff with Israel, and a favourable ruling in this case will certainly bolster their position.

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.”