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Orna Ben Naftali's expert report for a Palestinian NGO in Canadian court, on the illegality of settlements in the Occupied Palestinian Territories

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


Page 1

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


Page 2

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


Page 3

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


Page 4

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.


Page 5

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

********


Page 6

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


Page 7

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)


Page 8

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


Page 9

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


Page 10

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).


Page 11

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)


Page 12

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)


Page 13

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).


Page 14

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


Page 15

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.


Page 16

• •

(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."


Page 17

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


Page 18

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.


Page 19

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.


Page 20

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.


Page 21

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.


Page 22

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.


Page 23

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.


Page 24

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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