Sunday, October 11, 2009

Lawfare in Quebec

In September, a judge of the Quebec Superior Court dismissed a motion by a Palestinian village Bil'in to find that two Quebec companies: Green Park International Inc. and Green Mount International Inc. had acted illegally and in violation of Quebec and international law for having built condominiums in a settlement in the West Bank and therefore for having been agents of the Israeli government. An article written about the case before it went to trial is here.

The case (Bil'In (Village Council) c. Ahmed Issa Yassin, 2009 QCCS 4151) is based on the idea that international law prohibits settlements because of the prohibition of transferring civilians into occupied territory. Therefore, Israel should be considered in violation of International law and the commission of a war crime and that the defendants (the companies) should be considered as agents of the Israeli government for having built settlements on their behalf.

The Quebec Superior Court Judge the Honorable Louis-Paul Cullen examines the Plaintiff's claims that the Israeli High Court of Justice which had heard similar claims from the same Plaintiffs had not fully resolved the matter, the Quebec court agreed.

The Defendants argued that the object of the Plaintiff's case was Res Judicata, something that has already been the subject of a judgement, because the same parties had been impleaded by the Israeli courts. In response to the Plaintiff's counter argument that the parties in the Israeli court's decision were not the same as those impleaded in the Quebec Superior Court, the judge referred to this claim as "disingenuous."

The judge also questioned the jurisdiction of the Quebec Superior Court over the matter and applied the criteria for jurisdiction which includes and examination of whether it would be better for another court in another jurisdiction to examine the case. The judge also pointed out that the Plaintiffs did not challenge the competency or authority of the Israeli courts and pointed out that they implicitly recognized its jurisdiction and reliability by applying to it in the first place. The Quebec court also wrote at para 325 that "having closely examined all of the HCJ judgements filed in the record, this Court is convinced that an informed person, viewing the matter realistically and practically would not perceive the situation otherwise." In other words, Israeli courts are fair and impartial in their judgements.

The Quebec Superior Court concluded that the case brought by the Plaintiffs, which in part demanded the removal of the construction of the Defendants, was a violation of principles of natural justice as it did not implead the people actually living in the homes constructed and that since the solution sought would see their homes removed, it would be unfair to issue any such order in their absence.

The court also noted that states have immunity before the courts and that the Superior Court of Quebec would not be able to judge Israel as a state. It noted that even though the state of Israel was not impleaded as a party, "...the Plaintiffs indirectly seek the essential finding that it is committing a war crime, thereby effectively by-passing Israel's absolute immunity to any judicial proceedings." (Para 317).

The Judge also criticizes the Plaintiff's for 'jurisdiction shopping' and for choosing Quebec as a jurisdiction to which their claims have only the slightest connection.

The decision is a bit of a long read, but is clearly written and accessible to anyone interested. It is also a case of lawfare. As the judge pointed out, the Plaintiffs in this case were jurisdiction shopping, had recognized the jurisdiction of Israeli courts and picked a place with dubious connection to the case to seek judgement. It was an attempt to have a Quebec court decide a principle of international law and do indirectly what was not allowed directly.

Justice should not be denied, but seeking judgements in the courts of foreign jurisdictions for actions having no relation to the country where the court sits certainly gives the appearance of a political stunt to use the justice system to accomplish what other courts have not allowed.

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