May 3, 2013 - NEW YORK - In a major legal decision that the media has studiously ignored, a French Court of Appeals ruled last week that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments Israel has long made in defense of the legality of settlements. Indeed, the decision is a major refutation of the common refrain that "everyone agrees" that construction in the West Bank violates international law.
Lawfare Project Fellow Eugene Kontorovich, a professor at Northwestern University School of Law, explained the significance of the decision:
The Court held that only the Government of Israel, and not private parties, can violate the relevant provisions of the Geneva Conventions. The arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." The provision was also relied on heavily by the Palestinian plaintiffs in in the lawsuit. The Court ruled that the Geneva Conventions only speaks to and applies to action by the Israeli government ("the Occupying power"), and does not regulate private parties activities in the occupied territory.
This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus, when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime. Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.
One clear consequence of the French ruling is that newspapers can no longer say with any pretense of honesty that apart from Israel, "everyone agrees" that settlement construction violates international law.
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Prof. Eugene Kontorovich