European companies should be concerned by the BDS campaign
A few days ago, on February 5th, the Supreme Court of the United Kingdom rejected a third and final appeal by BDS (Boycott, Divestment, Sanctions) activists who were convicted of criminal trespass for chaining themselves to a concrete block outside the London shop of Ahava, an Israeli cosmetics company. The activists claimed that Ahava is guilty of “war crimes” because it has a factory beyond the 1949 Armistice Line. The Court ruled that Ahava should not be penalized for Israel’s alleged illegal occupation of the West Bank.
This is not the first time that BDS activists are dismissed by a European Court. On March 22, 2013 a French Court (the Appellate court of Versailles) rejected a lawsuit filed by the Palestine Liberation Organization (PLO) and a pro-Palestinian NGO against Alstom, a French energy and transportation conglomerate that built a tramway in Jerusalem. The petitioners claimed that, since parts of the tramway's tracks, built by Alstom, run beyond the 1949 Armistice Line, Alstom violated, inter alia, the 1949 Geneva Convention and the Hague Conventions of 1907 and 1954.
The Versailles Court ruled that, even if were to be determined that the State of Israel had breached the above conventions by signing a contract with a private company for the construction of a tramway beyond the 1949 Armistice Line, the aforesaid company should not be penalized for undertaking a project for which it was hired by the Israeli Government. No less significantly, the court ruled that the State of Israel did not breach international law by signing a contract with Alstom, because the 1907 Hague Convention allows the occupying power to build infrastructures (including tramways) that enable the proper administration of the occupied territory.
According to these two court decisions, there is no legal ground for penalizing Israeli companies that operate beyond the 1949 Armistice Line – even though those decisions do assume that the State of Israel’s partial control or sovereignty beyond that line is illegal, and that the 1949 Geneva Convention applies to the West Bank. This assumption, however, is disputable.
The so-called “Occupied Palestinian Territories” are neither Palestinian nor occupied. When the United Kingdom unilaterally withdrew from its Mandate in May 1948, it left a legal void that was filled by the newly declared (and borderless) State of Israel. There was no Arab declaration of Independence on the territory that had been allocated to an Arab state by the UN partition plan of November 1947. That plan, in any case, was a non-binding recommendation (like all General Assembly resolutions) and it became moot the moment it was rejected by the Arabs. The British Mandate, by contrast, had been allocated to the Jewish people for self-determination by the 1920 Treaty of Sèvres and by the 1922 League of Nations Mandate.
When Transjordan conquered the West Bank in 1948 and annexed it in 1950, it did so on a territory that had been allocated to Jewish self-determination by post-World War I international treaties. Hence Jordan’s sovereignty over the West Bank was never recognized by the international community (with the exception of Britain and Pakistan). When Israel conquered the West Bank in June 1967, it did so in a legitimate act of self-defense (as opposed to Jordan’s military aggression in 1948). Israel did not cross an international border, but a temporary armistice line. It did not conquer a recognized sovereign territory, but one that had been allocated to the Jewish People by the League of Nations and that had been unlawfully controlled by Jordan for 19 years.
Therefore, many international lawyers dispute the assertion that the West Bank is an occupied territory and that the 1949 Geneva Convention applies to it. Article 49 of the convention, which prohibits the mass transfer of populations into occupied territories, was meant to prevent what was a common German practice during WWII, not the voluntary settlement of Jews in a land that was allocated to them for that very purpose by the League of Nations.
The actions brought against Israeli companies that operate beyond the 1949 Armistice Line are therefore legally groundless, even according to the disputable opinion that Israel’s presence beyond that line is illegal. However, were other European courts to vindicate anti-Israeli boycotters in the future, then hundreds of European companies would be exposed to lawsuits because of their activities and investments in countries that occupy territories or that control disputed ones. The list includes, among others, China (over Tibet), Russia (over Abkhazia), Turkey (over Cyprus), and Morocco (over Western Sahara).
Although BDS activists do not have a case, they are potentially exposing hundreds of European companies operating in the above countries to liability. I say bring it on and give Europe a taste of its own medicine.
Dr. Emmanuel Navon heads the Political Science and Communication Department at the Jerusalem Orthodox College and teaches International Relations at Tel-Aviv University and the Herzliya Interdisciplinary Center. He is a Senior Fellow at the Kohelet Policy Forum.