In what is sure to be a landmark case for both Canadian and international law, the Palestinian village of Bil’in, located approximately ten miles northwest of Ramallah and a scant two miles from the Green Line, is suing two Quebec-based companies for constructing condos in an Israeli settlement in the West Bank.
"I was approached a year ago about the Bil’in situation," said Mark Arnold, the lawyer representing the village of Bil’in in Quebec. While noting that cases such as this, in his experience, often turn out to be ill-conceived actions with no legal legs to stand on, he contends that the Bil’in case is different: "When I was convinced they [the people of Bil'in and their advocates in Israel and Palestine] were serious about this case, well, off we went to Israel and to Bil’in."
In Bil’in, Arnold saw first-hand the dire situation of the Palestinians and the inefficacy of even Israeli court rulings to halt the continually expanding construction—illegal under international law—of the expansive ultra-orthodox settlement of Modi’in Illit, now with a population of over 40,000—the largest Israeli settlement in the West Bank. In contrast there are 1,700 villagers in Bil’in.
Article 49(6) of the Fourth Geneva Convention from 1949 states that, with respect to territories acquired by war, "the occupying power shall not deport or transfer parts of its own civilian population into the territories it occupies." The Canadian Geneva Conventions Act of 1985 in principle makes the protocols of the Fourth Geneva Convention Canadian Law, meaning that Canada would hold its own citizens accountable for violations of international law.
Bil’in and various human rights groups in Israel and Palestine have been fighting the subtle expansion of Modi’in Illit since 1991, when the first 780 dunams (approximately 185 acres) of Bil’in land were requisitioned by the Land Redemption Fund—a project of billionaire diamond magnate Lev Leviev to buy or seize Palestinian land for Israeli settlements. Largely because of Israel’s murky land registration laws, the Fund was able to seize the land and start construction without obtaining proper registry in Israel. The Israeli Housing Ministry has since approved all construction in the settlement without identifying illegally seized land.
At least as far back as 2004, Green Park International, Inc. and Green Mount International, Inc., two corporations registered to the same address in Montreal, have been under contract to build at least 3,000 housing units in Modi’in Illit. "When we knew about these companies," said Dr. Abdullah Aburahma, a representative from the Bil’in Popular Committee, "we followed things to the Israeli courts. We found no justice and so we decided to go even further to the Canadian court and [its] following of the [4th] Geneva Convention."
Arnold, having plainly drawn the lines connecting two Canadian companies involved in a business activity that violated Canadian law, filed the lawsuit in the Quebec Superior Court in July. "I didn’t know if it would get anywhere," said Arnold, noting the shadowy existence of the two companies, which may have no assets and no employees in Canada. "Then I got a call from a lawyer in Montreal who said, ‘I’m defending them [Green Park and Green Mount].’ We had a friendly chat about it. That was the last friendly chat we had."
The sole name listed on the registries of these two companies is Annette Laroche, who apparently retained defense counsel, but has declined to speak to the media. On behalf of the village council of Bil’in, Arnold is also seeking $2 million in punitive damages from Green Park/Green Mount and a further $25,000 from Laroche—not recompense for lost land, he says, but punishment for illegal activity and a warning to others. The trial is set to begin in early 2009 and a lengthy court battle and appeals process is expected.
Arnold seems amply qualified for this ground-breaking case. In 2004 he co-represented Houshang Bouzari, the Iranian-born Canadian who sued the government of Iran for torture. Bouzari accused the Iranian regime of kidnapping and torturing him ten years earlier while he still lived in Tehran. The Ontario Superior Court and ultimately the Ontario Court of Appeal rejected the case on the basis of the 1982 State Immunity Act, which prevents a citizen of Canada from suing a sovereign state for alleged crimes committed outside of Canada.
While unsuccessful, the case of Bouzari v. Iran highlighted the fact that the Canadian State Immunity Act, in preventing prosecution of crimes against international law such as torture, clashed with other Canadian laws, including the 2000 Crimes Against Humanity and War Crimes Act, the 1985 Geneva Conventions Act, and even the Charter of Rights and Freedoms—Canada’s de facto constitution.
The Bil’in case may have a few similarities to Bouzari’s. Arnold’s motion to the Quebec court alleges that the two companies "on their own behalf and as de facto agents of Israel, are, and have been illegally constructing residential and other buildings and marketing and selling condominium units…thereby creating a new dense settlement on the lands of the village of Bil’in. In so doing, the defendants are aiding, abetting, assisting and conspiring with the State of Israel in carrying out an illegal purpose."
So, in essence, because Arnold and Bil’in are suing a contracted agent of a sovereign state, the defense is almost certain to invoke the immunity law and request the case be thrown out. Nevertheless Arnold is optimistic that the case will hold up. "The law is clear. The facts are clear. Why are we going to lose?"
Michael Mandel, a law professor at York University and expert in international criminal law and constitutional law, is pessimistic. "You can’t get a fair trial in a political case in Canada," he said. "Canadian courts aren’t democratic. The judges are appointed by Liberal or Conservative [political parties]. They are chicken-hearted. That’s why we’re going to lose this case."
Adam Hanieh, a Toronto-based academic and former head of the Defense for Children International (DCI) Palestine, approached the analysis of the case via the long view. "Court cases like this play an important educative role in our society," he said. "The impact of this case is the awareness of Canadian complicity in the occupation [of Palestine]. We need pressure from the streets…pressure on these institutions in the model of [resistance to] South African Apartheid."
Bouzari might agree with this approach. After he lost his case against Iran, he started a grassroots initiative, the International Campaign Against Torture (InCAT), specifically to lobby the Canadian government to repeal the parts of the State Immunity Act that exempt violators of international law from prosecution.
Arnold demurred at the suggestion that a court defeat is a fait accompli. While affirming the importance of educating the public, he preferred to trust that the laws of Canada will prevail over the delicate politics involved in a case such as this. International law considers the Israeli settlements to be a war crime. Section 6(1)(c) of Canada’s Crimes Against Humanity and War Crimes Act, to name one example of a relevant law in the Bil’in case, states that "every person who…commits outside of Canada a war crime is guilty of an indictable offence and may be prosecuted for that offence."
His best-case scenario: "We’d get a Cease and Desist order [on Green Park and Green Mount]. Then we’d take it back to Israel and tell them, ‘Enforce the judgment of the Canadian court against these two companies.’ Nothing will give me greater pleasure than taking this to my Israeli counterparts. But that will be the bigger roadblock."
Indeed, stopping the construction of settlements on Bil’in and other Palestinian land may be too much to hope for in this case. Nevertheless, for Arnold and his clients, setting a firm precedent in Canada that collaboration with crimes against international law will not be tolerated would be no small victory after so many years of hopelessness in the battle against Israeli settlements.
Richard A. Johnson is a writer and editor who splits his time between Toronto, Texas, and the Middle East. His writing has appeared in the Walrus, This Magazine, the Globe and Mail, the San Antonio Express-News, and other places.