Orna Ben Naftali is a Professor of Law at the School of Law, the College of Management.
http://www.alhaq.org/pdfs/expert%20opinion.pdf
CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL
No: 500-17-044030-081
SUPERIOR COURT
BIL'IN (VILLAGE COUNCIL)
-and-
AHMED ISSA ABDALLAH YASSIN
Plaintiffs/Respondents
-v.-
GREEN PARK INTERNATIONAL INC
-and-
GREEN MOUNTINTERNATIONAL INC.
-and-
ANNETTE LAROCHE
Defendants/Petitioners
NOTICE OF COMMUNICATION OF AN EXPERTS REPORT
(Article 402.1 C.C.P)
To: Me. Ronald H. Levy
De Grandpre Chait
Avocats - Lawyers
1000 Rue De La Gauchetiere Quest, Suite 2900
Montreal, Quebec, H3B 4W5
BE ADVISED that during the hearing of the Exception to Dismiss Action and,De Bene
Esse, to Recognize Judgments, and the Application to Decline Jurisdiction - Forum Non-
Conveniens the Plaintiffs/Respondents will rely upon the Expert Report and Opinion of
Orna Ben-Naftali, Ph.D, LL.B. M.A., with respect to the matters raised in her attached
affidavit sworn February 18, 2009.
A copy of Professor Ben-Naftali's affidavit/report is annexed to the present notice.
VERN YOURSELVES ACCORDINGLY
lark H. Arnold
Gardiner Miller Arnold LLP
Lawyers for the Plaintiffs
CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL
No: 500-17-044030-081
SUPERIOR COURT
BIL'IN (VILLAGE COUNCIL)
-and-
AHMED ISSA ABDALLAH YASSIN
Plaintiffs/Respondents
-v.-
GREEN PARK INTERNATIONAL INC
-and-
GREEN MOUNTINTERNATIONAL INC.
-and-
ANNETTE LAROCHE
Defendants/Petitioners
ATTESTATION OF AUTHENTICITY
(Section 82.1 C.C.P.)
I, the undersigned, Mark H. Arnold, Barrister and Solicitor, practicing law with
the law firm Gardiner Miller Arnold LLP, at Suite 1202 , 390 Bay St, Toronto,
Ontario, M5H 2Y2 attest as follows:
1. On February 19, 2009, I received by e-mail from the Office of Attorney
Michael Sfard of Tel Aviv, Israel, the duly signed affidavit subscribed by Orna
Ben-Naftali dated February 18,2009, in respect of the above captioned matter.
2. Mr. Sfard transitted to me the said affidavit from email address
emilv@jurists.co.il ,a copy of which is attached hereto.
2. A copy of the said affidavit of Oma Ben-Naftali attaching two Schedules is
attached to this attestation and is true to the e-mail received from Mr. Sfard.
Signed at Toronto, Ontario, this 19th day
bruary 2009
MARK H. ARNOLD,
BARRISTER AND SOLICITOR
From: Emily Schaeffer [mailto:emily@jurists.co.il]
Sent: February 19, 2009 6:53 AM
To: Mark Arnold
Ce: 'Michael Sfarci'; emilywintzer@gmail.com
Subject: Orna Affidavit, Expert Opinion, and CV
Mark,
Please find attached 3 separate documents with the final versions of Orna's affidavit
(ornaafqf.doc), her expert opinion (OrnaBenNaftali_Final.doc) and her CV (OBN CV ENG JAN
09.rtf).
Best,
Emily and Michael
This email is confidential and attorney-client privilege may apply to it and its contents.
***************************************
Emily Schaeffer, Law Clerk
Licensed Attorney in the State of California, US
Michael Sfard, Law Office
49AhadHa'am St., Tel Aviv-Jaffa 65206, Israel
Tel: 972-3-6206947
Fax: 972-3-6206950
Mobile: 972-52-6763384
¡^j Please consider the environment before printing this email
CANADA SUPERIOR COURT
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL
No: 500-17-044030-081
BIL'IN (VILLAGE COUNCIL
and
AHMED ISSA ABDALLAH YASSIN
Plaintiffs/Respondents
-v.-
GREEN PARK INTERNATIONAL INC
GREEN MOUNT INTERNATIONAL INC.
and
ANNETTE LAROCHE
Defendants/Petitioners
AFFIDAVIT OF PROF. ORNA BEN-NAFTALI
I, Orna Ben-Naftali, Professor of Law, residing in Tel-Aviv-Jaffa, Israel, DO
SOLEMNLY AFFIRM AS FOLLOWS:
1. I am a Professor of Law at the School of Law, the College of Management
Academic Studies. I attach as Schedule 1 a true copy of my Curriculum
Vitae.
2. I attach as Schedule 2, a letter dated February 18, 2009 which provides
my legal opinion relating to the non-justiciability of the question of the
legality of settlements before the Israeli High Court of Justice, one of the
central issues raised in the motions submitted to the Quebec Superior
Court by the defendants with respect to the Exception to Dismiss Action
and Incidental Recognition of Judgments and the Application to Decline
Jurisdiction - Forum Non- Conveniens.
I — t
I hereby state that my name is Orna Ben-Naftali, that ail of the statements
made in Schedules 1 and 2 herein are true to the best of my knowledge,
information and belief, that the signature below is my signature and that
the contents of this affidavit are true.
hLtc-
Date: 18 Feb. 2009 Orna Ben-Naftali
Attorney Certification:
I, the undersigned attorney, Mh.kceJ Cfct^. No. 2 5S to hereby
certify that on 18 February 2009 there appeared before me Orna Ben-
Naftali, Israeli ID No.54082946, whose identity has been verified to me,
and after I warned her that she must state the truth, and that she will be
liable to the penalties prescribed by the laws of the State of Israel if she
does not do so, she signed this affidavit before me.
I certified as this affidavit is made In accordance with the demands of
Israeli Law.
7
********
Professor Orna Ben-Naftali - Curriculum Vitae
Personal Details
Academic Degree: Ph.D.
Home Address: 9 Pierre Mendes France Street, Jaffa
Phone Number at:
Home: 03-6822851 Cell: 0546-555-414
E-mail ornai27@netvision.net.il: obennaft@colman.ac.il
School: The Law School; The College of Management, Academic Studies
Academic Education
1977-1981
Tel Aviv university, The Faculty of Law, Israel
LL.B
Honors and Awards
• Dean's list during the 3rd and 4th years.
• Completed last year of studies as First in a class of 90 students.
1982-1986
The Fletcher School of Law and Diplomacy, Tufts University, Medford, MA., USA
M.A.L.D. (M.A. in Law and Diplomacy) (Fields of Concentration: International Law and
Organizations; Comparative Political Analysis; Civilization and Foreign Affairs; Intercultural
Communication)
Honors and Awards
•William Randolph Hearst Fellow for Excellence in Civilization and Foreign
Affairs
•Passed the Ph.D. qualification examinations with Distinction and, in the field of
Civilization and Foreign Affairs, with High Distinction.
1986-1987
Harvard University, History Department, Cambridge, MA., USA
AM. (History of International Relations)
Honors and Awards
•Full scholarship awarded
1987-1990
The Fletcher School of Law and Diplomacy, Tufts University, Medford, MA.
Ph. D. (Dissertation title: A Court of Lost Appeal: The United States and the Idea and
Institution of a World Court)
Honors and Awards
• A United States Institute of Peace Scholar
• Joseph Harrison-Francis H. Russell Fellow for Promoting the Role of
International Law
• Dwight D. Eisenhower World Affairs Institute Fellow
Further Studies
April 2003
ICRC - UNIVERSITY OF GENEVA - UNIVERSITY CENTER FOR INTERNATIONAL HUMANITARIAN
LAW TRAINING, Seminar on International Humanitarian Law For University Professors
Academic and Professional Experiences
Academic Appointments
1984-1989
Brandeis University, Legal Studies Program, Waltham, MA.
Visiting Lecturer, International Law, Organizations and Conflict Resolution
1989-1990
The Fletcher School of Law and Diplomacy, Medford, MA.
Visiting Assistant Professor, Civilization and Foreign Affairs
1996-1999
The Law School, The College of Management, Academic Studies, Israel
Lecturer (main fields and core-courses: International Law and Jurisprudence/ Law and
Culture
1999-2007
The Law School, The College of Management, Academic Studies, Israel
Senior Lecturer (main fields and core-courses: International Law and Jurisprudence/Law and
Culture)
2007-2008
The Law School, The College of Management, Academic Studies, Israel
Professor (International Law and Jurisprudence)
2008 fJunel
The European Academy, The European University Institute, Florence, Italy
Visiting Professor, a specialized course on Human Rights Law and Humanitarian Law (the
summer session on Human Rights Law)
Academic Roles ■ Administrative - at the Law School
Member of the LL.B. Curriculum Committee (since 1996)
Head of the Law and Culture Division (since its inception, 1999 - 2008)
Head of the International Law Division (since its inception, 1999)
Chair of the Best Seminar Paper Competition (since its inception, 2000 - 2008)
Member of the Appointments Committee
Member of the Curriculum Committee and Head of International Law Program, LL.M
Program (since its inception, 2003)
Deputy Dean (2004-2005; Responsible for Quality Management)
Member of the College's High Academic Council (since 2006)
Member of the College's Board of Trustees (since 2003)
Member of the College's Board of Directors (since October 2008)
Dean of the Law School (since October 2008)
Professional experience (non-academici
1990-1993
The College of Management, Academic Studies, Israel
Deputy Director - General for Academic Affairs
1993-1996
The United Nations, New York
Chief, Policy Planning and Review Unit, Personnel Management and Support
Services/Department of Peacekeeping Operations
Membership in Professional Societies and Editorial Boards
• THE EUROPEAN SOCIETY OF INTERNATIONAL LAW
• THE CONCORD RESEARCH CENTER FOR THE INTERPLAY BETWEEN INTERNATIONAL NORMS
AND ISRAELI LAW (Founding Member of the Executive Board)
• THE ISRAELI PUBLIC LAW ASSOCIATION
• THE EUROPEAN JOURNAL OF INTERNATIONAL LAW (Member of the Scientific Advisory
Board since 2007; Member of the Board of Editors since January 2008)
Public activities
• B'TSELEM - THE ISRAEL INFRMATION CENTER FOR HUMAN RIGHTS IN THE OCCUPIED
TERRITORIES (Member of the Executive Board, since July 2006)
Professional Counseling
2000(Jun.-Aug.,>
The United Nations, New York
Consultant, Office of the Director/ Office of Human Resources Management
2005-2006 (Dec. -Mar.i
The World Health Organization, Geneva
Consultant, Department of Human Resources (Rules and Regulations Reform)
2001-2007 (Jul. - Aup.1
The United Nations, New York
Consultant, Office of the Under-Secretary-General/Department of Management (Senior Legal
Officer, Administration of Justice)
Academic fellowships
2007 f Sen JOcO
MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW,
Heidelberg, Germany, research fellowship
2008 (Aueusl/Sepi
MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW,
Heidelberg, Germany, research fellowship
Publications
Books
1. Orna Ben-Naftali & Yuval Shany, International Law Between War and Peace
(Tel Aviv: Ramot Pub. Tel-Aviv Univ., 2006; (Hebrew) (488 pp)
Articles.
1. Orna Ben-Naftali & Antigoni Axenidou, 'Accredito Ergo Sum ': Reflections On the
Question of Representation in the Wake of the Cambodian Representation Problem in
the Fifty-Second Session of the General Assembly, 27(1) Denver Journal of
International Law 151-203 (1998)
2. Orna Ben-Naftali & Sean Gleichgevitsch, Missing in Legal Action: Lebanese Hostages
in Israel, 41 (1) Harvard Journal of International Law 185-252 (Winter 2000)
3. Orna Ben-Naftali & Sean Gleichgevitsch, The Legislative Proposal on the Detention of
Enemy Personnel Who Do not Enjoy the Status of Prisoners of War - A Critical Review,
7 Hamishpat 435-451 (2002) (Hebrew)
4. Orna Ben-Naftali, Assaf Bram & Hila Tirosh, Legal Stories: A Comparison of
Narratives in the Judgments rendered in the Deri Affair and in the Ulmert Case, 8
Hamishpat 65-103 (2003) (Hebrew)
5. Orna Ben-Naftali & Keren Michaeli, Justice-Ability: A Critique of the Non-Justiciability
of The Israeli Policy of Targeted Killing, 1(2) Journal of International Criminal
Justice 368-405 (2003)
6. Orna Ben-Naftali & Keren Michaeli, The Call of Abraham - Between Deportation and
Assigned Residence: A Critique of the Ajouri Case 9 Hamishpat (2004) 107-140
(Hebrew)
7. Oma Ben-Naftali & Keren Michaeli, Universal Jurisdiction and Its Impact on Domestic
Courts 9 Hamishpat 141-159 (2004) (Hebrew)
8. Orna Ben-Naftali & Keren Michaeli, 'Do Not Make a Scarecrow of the Law ': A Legal
Analysis of the Israeli Policy of Targeted Killings 36(2) Cornell Journal of
International Law 234-292 (2004)
9. Oma Ben-Naftali & Yuval Shany, Living in Denial: The Co-application of
Humanitarian Law and Human Rights Law to the Occupied Territories 37 Israel Law
Review 17-118 (2004)
10. Orna Ben-Naftali, %A La Recherche du Temps Perdu': Rethinking Article 6 of the
Fourth Geneva Convention in the Light of the Construction of the Wall Advisory
Opinion, 38(1-2), Israel Law Review 211-229(2005)
11. Orna Ben-Naftali, Aeyal Gross & Keren Michaeli, Illegal Occupation: The Framing of
the Occupied Palestinian Territory 23(3) Berkeley Int'l. Law Journal 551-614 (2005)
12. Orna Ben-Naftali & Yogev Tuval, Punishing International Crimes Committed by the
Persecuted: the Kapo Trials in Israel 4(1) Journal of Int'l Criminal Justice 128-178
(2006)
13. Orna Ben-Naftali, A Judgment in the Shadow of International Criminal Law: the
Decision of the Israeli High Court of Justice on the Legality of Targeted Killings, 5(2)
Journal of Int'l Criminal Justice, 322 (June 2007) (editorial comment)
14. Oma Ben-Naftali and Keren Michaeli, The Public Committee against Torture in Israel
v. The Government of Israel 101(2) American Journal Int'l Law, (August 2007), 459
(case note)
15. Orna Ben-Naftali and Miri Sharon, What the International Court of Justice did not say
about the duty to punish Genocide in the Bosnia and Herzegovina v. Serbia Case: The
Missing Pieces in a Puzzle 5(4) Journal of Int'l Criminal Justice (Sep. 2007)
16. Orna Ben-Naftali and Iris Canor, Evans v. The United Kingdom: The Europan Court of
Huamn Rights, 102(1) American Journal Int'l Law, 128 (January 2008) (case-note).
17. Orna Ben-Naftalu and Noam Zamir: Whose Conduct Unbecoming? The Shooting of a
Handcuffed, Blindfolded Palestinian 7(1) Journal of International Criminal Justice
(Forthcoming, March 2009).
Chanters in Books
1. Oma Ben-Naftali, Art and Law: The Place of Righteousness, Art LINKS, 204 (Alma-
Yedioth Aharonot 1998) (Hebrew)
2. Oma Ben-Naftali, Aeyal Gross and Keren Micaheli, Illegal Occupation in the
PALESTINE QUESTION IN INTERNAIONAL LAW (V. Kattan ed., The British Institute for
International and Comparative Law (2008) (Rep).
3. Orna Ben-Naftali, The Duty to Prevent and the Duty to Punish Genocide in GENOCIDE
in the XXI Century - A Commentary to the Genocide Convention (P. Gaeta,
ed., Oxford University Press, forthcoming in 2009)
4. Orna Ben-Naftali, Towards a New Discourse for the 5th Decade of the Israeli
Occupation of the OPT, in COLLECTED COURSES OF THE ACEDEMY OF EUROPEAN
Law (Oxford University Press, forthcoming in 2009).
5. Oma Ben-Naftali, The Epistemology of the International Law Closet and the Spirit of
Law, in DOES Law Matter? (N. Ziv & D. Hecker eds., a book in a series on Law,
Society and Culture, Tel-Aviv University Law School, Ramot Pub., forthcoming in
2009) (Hebrew)
Editing
1. Orna Ben-Naftali, Guest Editor, of Hamishpat (The Legal Periodical of the Law
School, The College of Management Academic Studies), Special issue on Law in the
Domains of Culture (Feb. 2002) (Hebrew) (& writing the introduction)
2. Oma Ben-Naftali, Guest Editor, of Hamishpat (The Legal Periodical of the Law
School, The College of Management Academic Studies), Special issue on
International Criminal Law - Israeli Perspectives (Feb. 2003) (Hebrew) (& writing
the introduction)
3. Oma Ben-Naftali & Hannah Naveh (eds.) Trials of Love (a book in a series on Law,
Society and Culture, Tel-Aviv University Law School, Ramot Pub.. 2005) (Hebrew) (&
co-writing the introduction)
4. Oma Ben-Naftali (ed.), INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS
law: collected courses OF THE ACEDEMY OF EUROPEAN law (Oxford University
Press, forthcoming in 2009).
Papers (select) presented at international academic conferences/ meetings in Israel an
abroad
1. THE HEBREW UNIVERSITY OF JERSUALM, THE MINERVA CENTER FOR HUMAN RIGHTS
(Conference on The International Criminal Law and Advent of International Criminal
Justice, presented a paper on "Competing Narratives, International Norms and Domestic
Judicial Decisions: the Case of Targeted Killings" (Jerusalem, Dec. 2003)
2. ESIL (European Society of International Law) - presented a paper in the inaugural
conference of ESIL) on "Illegal Occupation: The Framing of the Occupied Palestinian
Territory" (Florence, May 2004)
3. THE HEINRICH BOLL FOUNDATION - presented a paper in the plenary meeting of the 5th
Annual Foreign Policy Conference on "The Role of International Law and the United
Nations in a Globalizing World " (Berlin, June 2004)
4. THE ISRAEL LAW review, the HEBREW UNIV. LAW faculty - presented a paper on
"Timing the Normative Regime of Occupation" (Jerusalem, Jan. 2005) (English)
5. THE UNIVERSITY OF HAIFA FACULTY OF LAW, - presented a paper in a Conference on
World War II and Its Impact on the Law - 60 Years After on "The Kapo Trials in Israel:
Prosecuting the Persecuted" (Haifa, May 2005)
6. TEL AVIV UNIVERSITY, THE MINERVA CENTER FOR HUMAN RIGHTS - Humanitarian
Action in States of Occupation: The Occupied Palestinian Territories in a Global
Perspective, Commentator (on a lecture by Dr. Rony Brauman, Institut d'Etude Politique
(Paris) and Médecins Sans Fontieres Foundation) (Nov. 2005)
7. THE AMERICAN SOCIETY OF INTERNATIONAL LAW, 100™ ANNUAL MEETING: A JUST
WORLD UNDER LAW - presented a paper in a panel on "The Extra-territorial Application
of Human Rights" (Washington, D.C., March 2006)
8. THE MINERVA CENTER FOR HUMAN RIGHTS, TEL-AVIV UNIVERSITY AND THE HEBREW
UNIVERSITY - An internaional conference on "Forty Years after 1967: Reappraising the
Role and Limits of the Legal Discourse on Occupation in the Palestinian Israeli Context"
- a paper on "overlapping legal regimes: humanitarian law and international criminal
law" (June 2007)
9. THE MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL
LAW-presented a paper on the Maintenance of the Israeli Occupation (Heidelberg, Oct.
2007)
10. THE LAW SCHOOL, THE COLLEGE OF MANAGEMENT ACADEMIC STUDIES (The
International Law Division, The Concord Center for the Integration of International Law
into Israeli Law & The Israeli Public Law Association) - Initiated, hosted and delivered
the opening address in each session of the international lecture series "Landmark Cases
in International Law" (invitees: Professor Antonio Cassese (former President of the
ICTY); Professor Joseph Weiler; Professor Erika de Wet; Professor Armin von
Bogdandy; Professor Judge Bruno Simma and Professor Aharon Barak (former Chief
Justice of the Israeli Supreme Court) (2007-2008)
11. TEL - AVIV university LAW faculty - presented a paper entitled "Thou Art The
Man" - Law, Literature and the Veil of Ignorance (in an evening celebrating the
publication of Prof. Mautner's book "Law and Culture"., Nov. 2008)
12. the HEBREW university OF JERUSAEM - presented a paper entitled: "Global, All Too
Global" in a Panel on International Law in the Middle East Conflict, Israeli Law and
Society Association, Dec. 2008)
Research reports and other (invited) publications
1. Ruth Lapidoth, Oma Ben-Naftali & Yuval Shany, The Incorporation of International
Human Rights Treaties Into Israeli Law (Concord, Position Paper, 2004) (Hebrew)
2. Oma Ben-Naftali, The Extra-Territorial Application of International Human Rights
100 ASIL (American Society of International Law) Proceedings, 90 (2006)
3. Orna Ben-Naftali & Aeyal Gross, The Second Intifada in Crimes OF WAR (2nd rev ed
2008)
4. Orna Ben-Naftali, 10 Entries concerning Holocaust Trials in Israel, THE Oxford
Compendium of International Criminal Justice (A. Cassese, ed., Oxford
Univ. Press, forthcoming in 2009)
Referring books and articles
A regular referee for legal periodicals in Israel (e.g., Israel L. Rev.) and abroad (e.g., J. of Inri
Criminal Justice; European J. Infi L.) as well as an assessor of applications for research grants
(e.g., the Israeli National Science Foundation).
Professor Orna Ben-Nafiali
9 Pierre Mendes France Street, Tel-Aviv-Jaffa 68042;
Tel: (9723) 682281; obennafttëlcolman.ac.H; omal27tëtaetvisiQn.nelil
February 18,2009
Gardiner Miller Arnold LLP
Barristers and Solicitors
Suite 1202-390 Bay Street
Toronto, Ontario, Canada
M5H 2Y2
Dear Mr. Arnold,
Re: BiVin v. Green Park International Ine, et. al. Quebec Superior Court File No. 500-17-
044030-081. OPINION
My name is Orna Ben-Naftali. I am a Professor of Law and serve, inter-aliat as Head of
the International Law Division at the School of Law, The College of Management Academic
Studies, in Israel. I hold an LL.B from Tel-Aviv University Law Faculty; an AM degree
(History) from Harvard University, MA, USA; an M.A.L.D. (Master in Law and Diplomacy);
and a Ph.D. from The Fletcher School of Law and Diplomacy, MA, USA. My research and
publications focus on international humanitarian law in general, and on the Israeli Occupation in
particular. For further relevant information, including a list of publications, please refer to the
attached curriculum vitae. This memorandum is written pursuant to a request for an expert
opinion and relates to the question detailed below.
Question Posed and Material Presented
I have been advised that in the case of Bil'in v. Green Park International Ine, et. al, the
defendants have filed two motions with the Quebec Superior Court on issues oí res judicata,
justiciability and forum non conveniens. I have been asked to provide an opinion on the issue of
justiciability and to answer the following question:
Is the issue alleged by the plaintiffs of violation of International
Humanitarian Law and Canadian Domestic Law justiciable before the
Israeli Courts, and are those Courts willing to adjudicate on the
question of the legality of settlements in the Occupied Palestinian
Territories in this case?
In my opinion, the answer is negative: the core question of the legality of the
establishment of settlements is non-justiciable before Israeli Courts. In the following, I shall (a)
detail the document reviewed and briefly summarize the core question raised in the petition; (b)
offer a review and analysis of the jurisprudence of the Israeli High Court of Justice on the matter;
and (c) offer my conclusion based on the review and analysis of said jurisprudence.
(a) Documents reviewed and core question raised
(i) Documents reviewed
I have been provided with and have read the following documents in pursuance to the
request for this Opinion:
1. Further Amended and Particularized Motion Introducing a Suit dated January 23,
2009, filed by the plaintiffs with the Quebec Superior Court (hereafter "the
pleading").
2. Exception to Dismiss Action and, De Bene Esse, To Recognize Judgments,
together with the supporting affidavit and schedules of Renato Jarach sworn
February 1,2009 filed by the defendants.
3. Application to Decline Jurisdiction - Forum Non Conveniens and supporting
affidavit and schedules of Gideon Badt sworn January 29, 2009, filed by the
defendants.
I am advised that the Green Park Companies have not delivered a defence.
• •
(ii) The core questíon raised in the present case
The plaintiffs (hereafter "Bil'in") have brought suit against the corporate
defendants and their registered director (hereafter "the Green Park Companies") under the
provisions of the Geneva Conventions Act, R.S. 1985, c. G-3 and the Crimes against
Humanity and War Crimes Act S.C. 2000, c. 24. Pursuant to the advice given by Mark H.
Arnold, Canadian counsel to the plaintiffs, I understand that those statutes have been
incorporated into Canadian Domestic Law, and that they incorporate principles of
International Humanitarian Law as found at Article 49(6) of the Fourth Geneva
Convention dated August 12, 1949 and Articles 8(2)(b(viii) and 25(c) of the Rome
Statute of the International Criminal Court dated July 17,1998. The law is clearly set out
at paragraphs 15 to 20 of the pleading.
The claim alleges that the Canadian Green Park Companies have acted
unlawfully, inter alia, by developing, marketing and constructing a residential settlement
(hereafter "settlement") for the population of the State of Israel on the Municipal Lands
of Bil'in, which are located on the West Bank of the Jordan River in the Occupied
Palestinian Territory, thereby violating International Humanitarian and Canadian
Domestic Law. That legal regime prohibits the transfer, directly or indirectly, of the
civilian population of an occupying power into the occupied territory.1 The claim further
alleges that in so doing, the Canadian Green Park Companies have aided, abetted and
assisted the State of Israel in carrying out an illegal purpose.
(b) A review and analysis of the jurisprudence of the Israeli High Court of
Justice regarding the legality of settlements
The wording in the Geneva Convention IV, Art. 49(6) makes no reference to either "direct" or "indirect"
transfer. However, in the almost 50 years between the drafting of the Geneva Convention (1949) and the
Rome Statute of the International Criminal Court (1998), a wide interpretation of Article 49(6) has
chrystalized and resulted in the wording of the Rome Statute's parallel clause within Article 8 (War Crimes)
as: "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population
into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory."
The Israeli Supreme Court, operating in its capacity as a High Court of Justice,2
has accepted the Hague Regulations of 1907 as customary international law.3 In addition,
Israel ratified the Fourth Geneva Convention "Relative to the Protection of Civilian
Persons in Time of War" in 1951.4 These two bodies of law contain the main provisions
comprising "Occupation Law" also known as "The International Laws of Belligerent
Occupation" that forms part of International Humanitarian Law.3
As a result of a war that took place in June 1967, between Israel and Jordan,
among other neighboring countries, the Israeli militarily occupied, inter alia, the West
Bank of the Jordan River. Israel never asserted sovereignty over those lands which
remain occupied as a result of war. Those lands are now commonly known and referred
to as 'Occupied Palestinian Territory' (hereafter OPT).6
The Israeli Supreme Court, sitting as the High Court of Justice, has legal
jurisdiction in Israel over matters brought against the State, its military and their
agencies.7 On a number of occasions, the legality of the establishment and construction of
Israeli settlements in the OPT under the provisions of International Humanitarian Law,
has been challenged by petitioning the High Court of Justice. The pronouncements of the
High Court of Justice on this issue are detailed below.
2 Article 15(c) of the Basic Law: Judicature, 1984,38 L.S.1.101,104 (1983-84) provides that the Supreme
Court of Israel may also sit as a High Court of Justice, and 'when so sitting, it shall hear matters in which it
deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another
court*.
3 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning
the Laws and Customs of War on Land. The Hague, 18 October 1907. On the HCPs acceptance of the
Hague Regulations as customary international law see, e.g. Eyal Benvenisti, THE International Law of
Occupation at 109.
4 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
The Fourth Geneva Convention is also recognized as customary international law and its "humanitarian
provisions" have been routinely applied by the Israeli High Court of Justice. E.g. HCJ 7015/02 Ajuri v. IDF
Commander PD 56 (6) 352; HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, PD 58
(5) 807.
* See, e.g. Eyal Benvenisti, The International Law of Occupation.
6 See, e.g. United Nations Office of the High Commissioner for Human Rights site on the Occupied
Palestinian Territories: http://www.ohchr.org/EN/countries/MENARegion/Pages/PSIndex.aspx
7 Israel Basic Law: The Judiciary (1984). English full text of the law:
http://www.knessetgov.il/laws/special/eng/basic8_eng.htm
The first decision of the Israeli High Court that responded to a challenge to the
legality of the establishment and construction of Israeli settlements in the OPT is a 1972
case, Khelou v Government of Israel, known locally as the "Rafiah Approach case".8 The
case involved a petition by a population of Bedouin People residing on land occupied by
Israel in the then Occupied Sinai Peninsula.9 The case considered the legality of an Israeli
Military Order to evict the people from their land for military purposes. The Israeli Army
argued that the establishment of an Israeli Civilian Settlement on Bedouin Land was
necessary for security purposes. The Israeli Army persuaded the Court that it had acted in
good faith based on military needs and that those needs outweighed the claims of the
Bedouin People. The Court held that seizure of land could be justified for military needs
and denied the petition, permitting the Israeli settlement to remain. The Court was, at this
stage, willing to judicially review the discretion used by the army under the "military
necessity" argument, a willingness that, as will be shown below, was short-lived.
However, the Court held that it was not in a position to question the military needs and
considerations involved in the Israeli Army's decision. More significantly, the Court did
not examine the core issue and substantive question whether a settlement of civilians
from the occupying power may lawfully be established in an occupied territory.10
The second case in which the Israeli High Court of Justice was asked to address
the issue is Ayyub v Minister of Defence (1978), known locally as the "Beth El" case11.
The petitioners challenged the establishment of an Israeli Settlement in the OPT. In that
case, the Israeli Military seized lands privately owned by Palestinians in the West Bank,
in order to build a new settlement, "Beth El". The Israeli Army alleged that the settlement
was part of a broader "Regional Defense Plan," The Court upheld the claim by the Israeli
Military that settlements are lawful when they fulfill legitimate military needs. The Court
went on to rule with respect to a challenge to the legality of settlements under Article
8 Khelou v. Government of Israel (1973) 27 (2) PD 169; for English summary: 5 Isr YHR (1975) 384.
9 The Sinai Peninsula was occupied by Israel from June of 1967 through the Peace treaty signed
between the State of Israel and the Arab Republic of Egypt, known as the Camp David Accords of
September 1978.
10 For more, see David Kretzmer, THE OCCUPATION OF JUSTICE: THE SUPREME COURT OF ISRAEL AND
the Occupied Territories (2002) at 81.
11 Ayyub v. Minister of Defense (1978) 33 (2) PD 113; for English summary: 9 Isr YHR (1979) 337.
V
49(6) of the Fourth Geneva Convention (relied on in the Bil'in claim herein) and held
that:
this court must refrain from considering this problem of civilian settlement in
an area occupied from the viewpoint of international law ... it is best that
matters that naturally belong in the sphere of international policy are considered
only in that sphere. In other words, although I agree that the petitioners' complaint
is generally justiciable, since it involves property rights of the individual, this
special aspect of the matter [international law] should be deemed non-
justiciable, when brought by an individual to this Court (J. Landau) [emphasis and
term in brackets added].12
In a 1979 the Israeli High Court of Justice was asked to determine the issue yet
again in Dweikat v Government of Israel, known locally as the "Eton Moreh" case. In this
instance, the Israeli Army seized private land near the West Bank City of Nablus for the
establishment of an Israeli settlement.13 The State then claimed that the land was seized
for military purposes and that judicial precedent prevented the Israeli Court from hearing a
petition demanding that the court prohibit or restrict the State's Settlement Policy. The
Court dismissed the state's non-justiciability argument and ruled in favor of the petitioners
on the grounds that the government-directed army's act of seizure had not been motivated
by true military needs, but rather by ideological and political motivations. This was the
first and only case in which the Israeli High Court of Justice judicially reviewed the
legality of settlement establishment and construction in the Occupied Palestinian
Territories. Emphasizing the controversial decision of the Court to rule on the matter of
the legality of settlements, Chief Justice Landau stated:
...There is great concern that the Court will appear to have abandoned its
appropriate place and will have entered the arena of the public debate, and its
decision will be accepted by part of the public with applause, while it will be
completely and adamantly rejected by another part. In this sense I see myself as
one whose duty is to rule according to the law on every matter properly brought
before the Court, a duty that is indeed forced upon me, with full advance
knowledge that the wider public will not pay attention to the legal reasoning but
rather only to the final conclusion, and the Court's status as an institution is likely
to be injured, beyond the divisive public debates. But this is what we will do, and it
is our job and our duty as judges.
12 Id. at 128-29.
13 Dweikat v. Government of Israel (1979) 34 (1) PD l; for English summary: 9 Isr YHR (1979) 345.
14 Dweikat, (1979) 34 (1) PD 1 at 4-5, non-official translation.
As stated above, this was the only time the Court had addressed the substantive
issue of the legality of settlements. To the extent that the Court examined the legality of
the construction of settlements until this point, it did so only through the prism of
Property and Land laws. In none of the cases referred to above, was the Court willing to
review the legality of the settlements under the international laws of belligerent
occupation.
Indeed, when the matter was raised again just over a decade later, in Bargil v
Government of Israel, the Court declined jurisdiction. In this case, the Petitioner
challenged the legality of the settlement policy of the State of Israel for the Occupied
Palestinian Territories under International Humanitarian Law. The Petitioner alleged that
State policy for settlements in the Occupied Palestinian Territories was without military
necessity and for the sole purpose of creating permanent settlements.15 In its decision, the
Court reaffirmed its reasoning in the Beth El case, and stated that the matter was non-
justiciable:
...not because we lack the legal tools to give judgment, but because a judicial
determination, which does not concern individual rights, should defer to a
political process of great importance and great significance.16
The Court has upheld the same position since Bargil: in the case, Iyad v
Commander of IDF Forces", commonly known as the "Ma'ale Adumim" case, the Court
held that a plan to expand an Israeli settlement located on the OPT could not be
challenged by neighboring Palestinian villages. The Court based its decision on the
Bargil precedent and the Court's unwillingness to adjudicate on matters that are
politically controversial. Relying on the decision in Bargil, the Court stated that the
petition at hand was non-justiciable because it
relates to questions of policy within the jurisdiction of other branches of a
democratic Government, and it raises an issue whose political elements are
dominant and clearly overshadow all its legal fragments.18
Bargil v. Government of Israel (1991) 47 (4) PD 210; English translation available at
http://elyonl .court.gov.il/files eng/91/810/044/Z01/910448 lO.zOl .htm
Id. at 220, official translation.
" Iyad vs. Commander of IDF Forces, (1998) Law 55 (1) PD 913.
Id. J. Metzah at 916, and J. Strasbourg-Cohen at 917, quoting Be
Bargil at 215.
8
In 2005, in the case Maraabe et el v Israeli Prime Minister et al, commonly
known as the "Alfe Menashe" case, the Petitioner challenged the route of the "Separation
Barrier", which is a set of walls, fences and other barriers constructed by the State of
Israel on lands located in the OPT built ostensibly for the purpose of separating Israelis
from Palestinians. In this case, it was intended and planned that the separation barrier
would encircle the settlement of Alfe Menashe, creating an enclave which would capture
five Palestinian villages and part of their lands, thereby allowing territorial contiguity of
the enclave and its settlement with the State of Israel.19 In its decision, the Court agreed
that the effect of the route of the Separation Barrier on the villagers' rights was
disproportionate to the military advantage gained by the State of Israel. The Court
ordered the Separation Barrier to be rerouted. Nevertheless, the Court rejected and
refused to consider arguments based on article 49(6) of the Fourth Geneva Convention
and examine the legality of the settlement. Instead, the Court reiterated its reasoning that
a challenge to the legality of the settlement and its expansion under the provisions of
International Humanitarian Law was a non-justiciable issue and further held that:
It is not at all relevant to examine whether this settlement activity is according to
international law or contradicts it as stated in the ICJ advisory opinion. For this
reason, we will not take any stand on this question.20
Although there have been few other attempts by petitioners to claim the illegality
of settlements as a policy or as a violation of international legal standards since the Bargil
decision, whenever the argument has been raised, the Court has reaffirmed its position in
Bargil that the policy of settlement in the Occupied Palestinian Territories is non-
justiciable and has declined jurisdiction to review the claim.21
m Ha 7957/04 Maraabe et. al v. Israel Prime Minister et. al (2005) Takdin-Alyon (3) 3333.
Id. at para. 19. Official translation. Note that the International Court of Justice (ICJ), in its Advisory
Opinion on the Construction of a Wall, noting that "since 1977, Israel has conducted a policy and
developed practices involving the establishment of settlements in the Occupied Palestinian Territory,
contrary to the terms of Article 49 paragraph 6", concluded on the basis of Security Council Resolution
446, that "the Israeli settlements in the Occupied Palestinian Territory (including east Jerusalem) have been
established in breach of international law". See Legai Consequences of a Wall in the Occupied Palestinian
Territory, 20041.C.J (Advisory Opinion) Ü 120
For another example see, HCJ 10024/04 "Nirit" Village Community Settlement v Minister of Defense,
(2005) Takdin-Alyon (1)2122.
The Bargil doctrine remains undisputed. As early as the late 1970s "Elon Moren"
decision, the Court expressed grave concern that any ruling on the legality of settlements
- even when based on Property Law, rather than International Law, as was the case in
"Eton Moreh" - would be viewed by the Israeli public as "political" ("There is great
concern that the Court will appear to have abandoned its appropriate place and will have
entered the arena of the public debate"22). Since that time, the number of settlements in
the OPT has more than doubled, and the number of Israeli civilian settlers who reside in
them has more than tripled. It is therefore extremely unlikely that the Court will overturn
Bargil in the foreseeable future.
(c) Conclusion
The essential facts in BiVin v. Green Park International Ine, et.al% seem
significantly similar to the relevant facts in the line of cases reviewed above: the case
concerns the planning, development and construction of a settlement neighborhood,
Mattityahu East, of the settlement bloc, ModVin Illitt on a portion of the 408 hectares
located within the Village of Bil'in's municipal jurisdiction, in the West Bank, OPT.
The petitioners in the Bil'in case plead that the settlement policies and practices of
the State of Israel, as implemented on their municipal lands, carried out by private actors,
among others, Green Park International Inc., and Green Mount International Inc., are
illegal under International Humanitarian Law.
The above review and analysis of the jurisprudence of the Israeli High Court of
Justice with respect to Israeli settlements in the OPT generate the conclusion that while
the Court may examine each specific case and set of facts pursuant to the relevant
Property and Land Laws balanced by Military Necessity, a challenge to the legality of the
policy and practice of establishing settlements in the OPT in general, and their legality
under international humanitarian law specifically, would not be met: it would be deemed
as a non-justiciable issue before the Israeli Courts.
22 Dweikat, supra note 14.
10
It thus follows that the claim by Bil'in is non-justiciable before the Israeli Courts:
the petitioners challenge the legality of seulement policy and practice of the State of
Israel as carried out by the defendants. While ihe Israeli Court is likely to rule on such
petitions insofar as they are grounded in claims based on the relevant property laws, it
would not hear Bil'in's claims as pleaded based on International Humanitarian Law or
review the legality of stale policy with respect to the establishment and construction of
the settlement of Modi'in Illit in the OPT in light of relevant international humanitarian
legal norms. This issue has been determined as non-justiciable in Israeli Courts. Indeed,
despite several court petitions Filed by Bil'in, the Court has never adjudicated or ruled
upon the legality of Mattityahu East as an Israeli settlement or on the conduct of the
defendant companies in the Occupied Palestinian Territories under International
Humanitarian Law.23 Such an attempt would be futile.
Given that Israeli courts are unwilling to address the core question of the legality
of settlements in the OPT as a policy and practice under International Humanitarian Law,
and have declared the question of whether settlements are legal to be non-justiciable,
there appears to be no legal redress before Israeli Courts to the claims made by Bil'in in
its Quebec proceeding.
Prof. Orna Ben-Naftaii
0 HCl 8414/05, Yassin v Slate of Israel; HCJ 143/06, "Peace Now" Movement, et. al. v Minister of
Defense, et. Al,; HCJ 3998/06 Yassin v. Military Commander of the West Bank. Takdin-Elyon 2006 (4)
1383.
N° : 500-17-044030-081
CANADA SUPERIOR COURT
Province of QUÉBEC
District of MONTRÉAL
BIL'IN (VILLAGE COUNCIL) AND AHMED ISSA ABDALLAH YASSIN
Plaintiffs/Respondents
-v.-
GREEN PARK INTERNATIONAL INC. and GREEN MOUNT INTERNATIONAL
INC. and ANNETTE LAROCHE,
Defendants/Petitioners
NOTICE OF COMMUNICATION OF AN EXPERTS REPORT,
ATTESTATIONOF AUTHENTICITY AND DETAILED AFFIDAVIT
OF ORNA BEN-NAFTALI
ORIGINAL
Me Mark H. Arnold Elected domicile in Montréal :
GARDINER MILLER ARNOLD LLP Me Pierre-Yves Trudel,
390, Bay Street, Suite 1202 archambault tatner adel trudel,
Toronto, Ontario, M5H 2Y2 ^ Sherbrooke Street West, #1400
T. : (416) 363-2614 Montréal, Québec, H3GÎJI
F. : (416) 363-8451 T#. (514) 286-5000, ext 224
E. : mark.arnold@gmalaw.ca f. : (514) 286-5002
pytrudel@atat.ca
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