The Claim

The corporate defendant, Green Park International Ltd., is a Quebec-registered corporation that has been involved in constructing and developing settlements for Israelis on occupied land in the West Bank. The land in question falls within the territory of the village of Bil’in. The plaintiffs are the Village Council of Bil’in, as well as Ahmed Yassin, now deceased, who claimed to own part of the land in dispute.

The structure of the claim is somewhat intricate. The plaintiffs allege that the corporate defendants are engaged in constructing residential buildings intended for Israeli civilians on village land, in furtherance of an Israeli state policy of inducing its civilian population to settle occupied territory with the ultimate objective of facilitating the eventual assimilation of these lands into its own territory.

The West Bank is not part of Israel but has been under Israeli military occupation since 1967. Thus, it falls squarely within the purview of the Geneva Conventions, which set out much of the international law with respect to military occupation. Under Article 49(6) of the Fourth Geneva Convention, it is illegal for an occupying state to “transfer parts of its own civilian population onto the territory it occupies” (the same prohibition is also set out in Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court). The plaintiffs allege that Israel is in breach of this law, and that the defendants are assisting in this breach.

Under international law, it so happens that a breach of Article 49(6) of the Fourth Geneva Convention is classified as a war crime. The term “war crime” has no clear, universally accepted definition, but essentially war crimes are those violations of the laws of war so grave that they have been specially designated by the international community as an extraordinary class of offence whose reprehensible nature would “shock the conscience of all right-thinking people” (to use the words of Cory J. in R. v. Finta, [1994] 1 S.C.R. 701). Laws against war crimes are generally aimed at atrocities against civilians, prisoners of war, and other non-combatants.

A war crime, to put it succinctly, is a very serious matter. Further, it is easy to see why the offence in question falls into this special category. Article 49(6) is essentially a law to prevent colonialism. One need look no further than the current condition of the indigenous peoples whose domain once spanned the entire expansive breadth of this continent to appreciate the gravity of the consequences territorial dispossession can inflict upon a population. Most war crimes deal with offences against individuals or groups of individuals, but the offence in Article 49(6) is one that threatens the integrity of an entire people. It clearly qualifies as an exceptional offence of higher order that is of grave concern to the global community as a whole.

The plaintiffs’ allegation that the defendants are participating in war crimes is not only very serious but highly politically charged. Thus, although the Geneva Conventions Act, R.S.C. 1985, c. G-3, and the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, confers on Canadian courts criminal jurisdiction over war crimes committed anywhere in the world, a prosecution of the Bil’in defendants would never proceed in Canada. Under the Canadian legislation, it would require the personal consent of the Attorney General or Deputy Attorney General, which, due to such political considerations, would be next to impossible to obtain. However, the plaintiffs have framed participating in war crimes as a civil wrong, invoking the standards of conduct articulated in the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act to argue that the defendants are liable in tort under Article 1457 of the Civil Code of Quebec, R.S.Q., c. C-25, which sets out the basic principle of extra-contractual civil liability under Quebec civil law:

1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

In bringing this claim, the plaintiffs have become the first in Canada to institute a civil claim for war crimes since a failed attempt by the family of Shidane Arone to bring a civil claim in Ontario courts for Arone’s torture-death at the hands of Canadian peacekeeping soldiers in Somalia (which was dismissed in an unreported judgment).

The defendants, not to be outmatched in creativity, filed in response a series of motions to dismiss, pleading no cause of action, state immunity, lack of standing, forum non conveniens, and even res judicata.

The Judgment

Cullen J. dismissed most of these motions either in whole or in part. Notably, he also accepted, for the first time in Canada, that the commission of a war crime constitutes a civil wrong:

[175] A war crime is an indictable offence. As such, it is an imperative rule of conduct that implicitly circumscribes an elementary norm of prudence, the violation of which constitutes a civil fault pursuant to art. 1457 C.C.Q.

He further accepted that a person may also commit a civil wrong by knowingly participating in a war crime:

[176] In theory, a person would therefore commit a civil fault pursuant to art. 1457 C.C.Q. by knowingly participating in a foreign country in the unlawful transfer by an occupying power of a portion of its own civilian population into the territory it occupies, in violation of an international instrument which the occupying power has ratified. Such a person would thus be knowingly assisting the occupying power in the violation of the latter’s obligations and would also become a party to a war crime, thereby violating an elementary norm of prudence.

However, the good news for the plaintiffs ends there. Despite delivering the not altogether stunning ruling that the commission of a war crime does, indeed, constitute a civil wrong in Canada, Cullen J. nevertheless exercised his discretion under CCQ Article 3135 to decline jurisdiction on the grounds of forum non conveniens.

In some ways this result is unsurprising. The doctrine of forum non conveniens has long been a staunch ally to Canadian corporations beset by human rights claims launched from abroad. However, the plaintiffs here put up a vigorous legal resistance which was innovative and not without appeal.

One of the relevant factors in the forum non conveniens analysis in Quebec, as in common law Canada, is the law governing the dispute. In Quebec, as in the rest of Canada, the law to be applied in a tort action is the lex loci delicti – the law of the place where the tortious act occurred. However, CCQ Article 3081 provides that “[t]he provisions of the law of a foreign country do not apply if their application would be manifestly inconsistent with public order as understood in international relations” (this is roughly analogous to the public policy exception in common law conflict of laws). The plaintiffs argued that the legality of settlements with respect to the Geneva Conventions is not justiciable in Israeli courts. The law as applied by Israeli courts would fail to take account of the Geneva Conventions and, insofar as it would condone the commission of a war crime recognized under both domestic and international law, would be “manifestly inconsistent with public order as understood in international relations.” Accordingly, sending the claim for disposition to Israel would lead to a result that would offend this notion of “public order.”

Furthermore, it is questionable whether Israel can even be considered an available forum, let alone an appropriate one. Insofar as the Israeli courts are effectively unable to hear the action framed as it is in terms of war crimes, it could be said that this claim is not one that is even capable of being tried in Israel. Declining jurisdiction in favour of the Israeli courts would leave the plaintiffs with no viable alternative forum in which to pursue their claim, which would plainly not be in the interests of justice.

Either analysis presents a compelling argument. It would plainly be unjust to send a civil suit for war crimes to the forum whose state is allegedly responsible for those war crimes, particularly where the legality of state action with respect to war crimes is not a justiciable issue. To support their position, the plaintiffs filed the affidavit of Orna Ben-Naftali, a professor of international law whose expertise lies chiefly in the field of international humanitarian law. Prof. Ben-Naftali explained how it is the judicial policy of Israeli courts to decline to review the legality of settlements with respect to international humanitarian law. The defendants, for their part, filed the affidavit of Israeli attorney Renato Jarach, which was substantially in agreement on the fact that Israeli courts would not review the legality of settlements with respect to war crimes, but pointed out that it was not for lack of legal tools to give judgment, but rather because a judicial determination with such broad political aspects should defer to the political process. At trial, counsel for the defendants pleaded respect for the principle of judicial deference to executive action in areas of government policy.

Cullen J. rejected the plaintiff’s argument by rejecting the evidence of Prof. Ben-Naftali – although, as we shall see, not in a way that entirely prefers Mr. Jarach’s evidence either. Embarking on his own interpretations of the Israeli case law, he concluded that it is not for political reasons that Israeli courts refrain from applying international humanitarian law to disputes respecting individual rights, but because the 1949 Geneva Conventions do not form part of domestic statute law in Israel. Furthermore, when the Israeli High Court of Justice was ruling on this question in the 1970s, it did not consider the 1949 Geneva Conventions to be rules of customary international law (which are automatically incorporated into the domestic law of all developed nations). In other words, Israeli courts do not apply the Geneva Conventions simply because they are not incorporated into Israeli law. Noting that “[a] similar requirement exists in Canada, where international instruments require legislative action to form part of Canadian domestic law,” he concluded that this requirement was not “manifestly inconsistent with public order as understood in international relations” within the meaning of CCQ Article 3081. Accordingly, the juridical advantage that the plaintiffs sought is not the advantage of being able to plead the Geneva Conventions, but rather the merely procedural advantage of not having to argue to an Israeli court that the Geneva Conventions have, since the 1970s, become part of customary international law (and therefore part of Israeli law). This minor juridical advantage, he found, is not enough to justify asserting jurisdiction, in light of the other connecting factors which, he concluded, pointed to Israel as the more appropriate forum.

Analysis

With respect, I am unable to agree with the reasoning of Cullen J. For the present purpose, I assert no position as to the legality of Israeli settlements under international law, or the commission of war crimes by Israel, or the state of Israeli law. However, I do agree with the basic reasoning that war crimes, by virtue of their nature, are a special category of higher-order wrongful conduct that would “shock the conscience of all right-thinking people,” and are consequently of deep concern to the global community as a whole. Given the grave and universally condemned nature of the acts alleged—acts which undoubtedly offend “public order as understood in international relations”—I feel that Cullen J.’s reasoning fails to disclose an adequate basis for declining jurisdiction—jurisdiction which the Quebec court, by virtue of the defendants’ domicile, is legally entitled to assert. I call attention, on this point, to the SCC’s citation in Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205, 2002 SCC 78 of the principle of forum non conveniens that in Quebec, “the plaintiff’s choice of forum should only be declined exceptionally, when the defendant would be exposed to great injustice as a result.”

I have some reservations, first of all, with the manner in which Cullen J. arrives at his determinations on Israeli law. The content of foreign law is not a question of law but a question of fact, which must be proven by expert evidence. A judge cannot simply disregard the pleadings of the parties and interpret the foreign law as he or she sees fit, as would be the case with domestic law (for example, SCC jurisprudence). Yet there is a strong argument to be made that this is exactly what Cullen J. did. The defence expert, Mr. Jarach, did not argue the point that Cullen J. ultimately relied on—namely, that the Geneva Conventions are non-justiciable merely because they are not considered customary international law. By embarking on his own analysis of Israeli case law and substituting his own legal interpretations of the judgments, and thereby arriving at factual conclusions that were not advanced in the testimony of any of the relevant experts, Cullen J. seems to skirt dangerously close to the limits of his judicial authority.

That said, I profess to having no expertise as to the proper interpretation of Israeli law and would not presume to challenge such a conclusion. Assuming, therefore, that Cullen J. properly came to the correct factual determination, and that the Geneva Conventions are indeed non-justiciable in Israel merely because they are not considered customary international law, I still fail to perceive the deductive progression between such a factual determination and the legal conclusions reached by Cullen J.

The plaintiffs’ argument, as I understand it, is that the failure of Israeli courts to apply the Geneva Conventions would in and of itself lead to a result “manifestly inconsistent with public order as understood in international relations,” insofar as it would condone the commission of a war crime. The reason behind the failure to apply such law—be it legal or political—is irrelevant. Rather, the relevant question is whether war crimes—prohibited as they are under international humanitarian and international criminal law and as indictable criminal offences under our own domestic penal law—are themselves acts that are “manifestly inconsistent with public order as understood in international relations.” If the answer is in the affirmative, then sending the claim to an Israeli court would lead to the application of a law that is “manifestly inconsistent with public order as understood in international relations,” regardless of the reasoning behind this law.

For this reason, I believe Cullen J. misses the point entirely by characterizing the question of whether the Fourth Geneva Convention is customary international law as “central to the dispute.” Although I happen to believe there is a very strong case to be made that, notwithstanding the Israel High Court of Justice’s opinion, the relevant norms of the Fourth Geneva Convention are indeed part of customary international law, I am of the opinion that this question is not central, but is, at best, peripherally relevant to the dispute.

I am further unconvinced by Cullen J.’s argument that, since 30 years have passed since the Israeli High Court of Justice pronounced in 1979 that the 1949 Geneva Conventions had not yet become part of customary international law, it is now open for the plaintiffs to argue before an Israeli court that since that time, the Geneva Conventions have indeed crystallized into customary international law. It seems only logical that a domestic plaintiff pleading that the application of a foreign law would lead to an unjust result ought to be entitled to presume that the foreign court will apply the law as it currently stands. It seems unreasonable to require the plaintiff to ask the foreign court to change the law on the strength of abstract speculation, wholly unsupported by evidence, that the foreign court may be receptive to such a change now that the current state of the law is 30 years old.

International Humanitarian Law

There is a further passage in the judgment where Cullen J. issues some remarks on the topic of international humanitarian law that raise interesting questions. After qualifying Prof. Ben-Naftali as an expert in “International Humanitarian Law,” Cullen J. offers the following commentary on her area of expertise:

[248] Professor Ben-Naftali refers to “International Humanitarian Law”. According to Sir Ian Bownlie [sic] the similar expression of “International Human Rights Law” is a convenient but perhaps confusing category of reference devoid of intrinsic substance:

Many lawyers in academic life refer to an entity described as “International Human Rights Law” which is assumed to be a separate body of norms. While this is a convenient category of reference, it is also a source of confusion. Human rights problems occur in specific legal contexts. The issues may arise in domestic law, or within the framework of a standard-setting convention, or within general international law. There is thus the law of a particular State, or the principles of the European Convention on Human Rights, or the relevant principles of general international law. In the real world of practice and procedure, there is no such entity as “International Human Rights Law”.

There is a key difference, however, between “international human rights law” and Prof. Ben-Naftali’s actual words, “international humanitarian law.” International humanitarian law is, of course, the field of law governing the rules of armed conflict between nations. Otherwise known as the laws of war or the law of armed conflict, it is the specific field of law that governs, inter alia, the commission of war crimes. The term “international human rights law” may very well be a “confusing category of reference devoid of intrinsic substance” (more on this contentious point below). International humanitarian law, however, is undoubtedly a well-defined and highly specialized field of law, and moreover the precise field of law that is implicated in this dispute.

It is puzzling why Cullen J. would conflate two decidedly distinct entities in such a manner. With the greatest respect to Cullen J., who for the most part delivered a thoughtful and well-reasoned opinion on a highly complex matter, the most likely reason seems to be that the judge, a specialist in civil and commercial litigation, simply failed to apprehend the distinction between international humanitarian law and international human rights law.

A careful examination of the rest of the decision seems to bear this explanation out. Other public international law concepts discussed in the judgment, such as customary international law, are duly defined and explained, but mysteriously there is no explanation of international humanitarian law anywhere in the judgment, outside of the confusing comparison with international human rights law. In fact, the term first appears placed inside quotation marks, as if the judge questions its universality or value. Nowhere is there any evidence to positively establish an affirmative awareness of the specialized meaning of the term.

Upon consideration, it is not inconceivable how a civil and commercial litigation specialist could develop such an impression. The precise meaning of the term “international humanitarian law” is not evident on the face of the words themselves, and the name does bear a potentially confusing similarity to the term “international human rights law.”

On its face, then, erroneously equating international humanitarian law with international human rights law appears to be merely a minor flaw in the judgment that does not affect the integrity of the decision as a whole. While it must no doubt be of no small consternation to the plaintiffs for the judge to be unaware of the name of the very field of law centrally implicated in this dispute, the judge in ruling on this motion made very little in the way of legal determinations concretely engaging international humanitarian law.

On closer consideration, however, this seemingly benign mistake does raise concerns that are serious enough to compromise the broader integrity of the decision. It raises an apprehension that every time the phrase arose in oral argument, in written submissions, or in relevant treatises that were consulted during the course of deliberations, there is a chance that the precise message may have been lost on the judge.

More significant, however, are this error’s implications on the judge’s assessment of the credibility of Prof. Ben-Naftali. An examination of the context of the passage quoted above makes it clear that Cullen J.’s purpose is to weaken Prof. Ben-Naftali’s credibility as a reliable expert and the weight of her evidence by erroneously finding that her testimony is plagued with terms that are “confusing” and “devoid of intrinsic substance.”

Further, as mentioned above, Cullen J. explicitly qualified Prof. Ben-Naftali as an expert in international humanitarian law. Accordingly, he deemed her to be an expert in a “confusing category of reference devoid of intrinsic substance,” of which “there is no such entity”—essentially, not much of a real expert in anything at all. Under this mistaken impression, he would then have assigned to her evidence a corresponding degree of weight.

It is unclear what conclusion Cullen J. may have reached with respect to the expert evidence before him had he been properly cognizant of the fact that, actually, Prof. Ben-Naftali was an expert in precisely the highly specialized and concretely defined field of international law that is squarely implicated in the dispute. Had he not mischaracterized her expertise, he may not have been so quick to substitute his own interpretation of Israeli law for hers. Whatever the case, it is clear that Cullen J.’s accidental conflation of international humanitarian law and international human rights law may have given rise to broader misconceptions that could have affected the final outcome.

International Law in Domestic Courts

The passage quoted above is not the only place where Cullen J.’s relative inexperience with respect to public international law is exposed. Later in the judgment, Cullen J. makes reference to “Israel’s absolute immunity to any judicial proceedings [in Canada]” [Emphasis added].

The term “absolute immunity” ordinarily refers to the conception of state immunity that confers on a state complete and total immunity, with no exception, from the jurisdiction of the domestic courts of another state. The doctrine of absolute immunity has been essentially defunct, at least in Canada, since at least 1982 when the federal government enacted the State Immunity Act, R.S.C. 1985, c. S-18, which codified the developing common law theory of restrictive immunity. In contrast to absolute immunity, the latter theory allows a number of exceptions to state immunity; for example, exceptions relating to commercial or criminal activity.

It is thus incorrect, and has been for some time now, to speak of Israel or any foreign state as enjoying “absolute immunity” in Canada. One expects that a judge with a stronger background in public international law would have avoided such wording, conflicting as it does with an established term of art—although given the many exceptions contained in the State Immunity Act, it is difficult to see how it could be said that Israel enjoys “absolute immunity” in either the doctrinal or the literal sense.

Further, Cullen J.’s dismissal of the term “international human rights law,” and his assumption that a sub-field of international law characterized by common subject-matter is “devoid of intrinsic substance” simply because it admits of many different sources, fundamentally misapprehends what is almost by necessary implication an intrinsic characteristic of many fields of international law. On this reasoning, there cannot be any sub-field of international law, whether “international human rights law,” “international environmental law,” “private international law,” “international trade law,” and so on.

If I were an international lawyer, I might point to these mistakes as a reflection of the generally ambivalent attitude towards public international law within the Canadian legal profession. To be sure, Canadian courts have also come out with some expertly written decisions on both state immunity and international humanitarian law. However, there are also many decisions such as Cullen J.’s where it is apparent that the judge is grappling with new and unfamiliar issues, often with unfortunate results. These kinds of issues will only arise more frequently in the future, as increasing international economic integration continues to produce more transnational litigation.

Conclusion

The plaintiffs have not yet filed an appeal, although one is expected. If Bil’in does find its way before the Court of Appeal, however, the plaintiffs certainly have a strong case to have the trial judge’s decision overturned. For the reasons outlined above, I am not convinced that Cullen J. properly identified and assessed the relevant considerations in his forum non conveniens analysis. He failed to properly assess the plaintiffs’ argument with respect to the non-justiciability of the legality of settlements under international humanitarian law in Israeli courts, and anchored his finding in an irrelevant consideration, i.e. the question of whether the reasoning behind this policy is legal or political. Further, he seriously mischaracterized Prof. Ben-Naftali’s expert evidence and qualifications and called her credibility into question on a faulty basis.

Ultimately, however, perhaps my strongest objection to this decision is what can only be characterized as its fundamental failure to give due consideration to the gravity of that special class of human rights abuses known as war crimes. Sending a civil claim for war crimes, over which the domestic courts lawfully have jurisdiction, to the courts of the same country alleged to have committed them is a proposition that ought to be suspect on its face, and to which domestic courts ought to accede only with extreme caution. Under no circumstances, in particular, should such jurisdiction be declined where, as the trial judge admitted here, war crimes are not justiciable in the courts of that country. This would lead to the grossly unjust result of leaving the plaintiff absolutely no forum in which to pursue the claim. Cullen J.’s claim that the refusal to adjudicate the commission of war crimes due not to their politically sensitive nature but because they are not customary international law essentially reduces international prohibitions against war crimes to the same status as any common treaty between nations: of no legal force in domestic courts until it is incorporated into domestic law by legislative enactment. It is a finding inconsistent with an awareness that war crimes are grave offences, not simply by virtue of their status as international law, but because they are in and of themselves serious and universally condemned violations of human rights, elevated to such exceptional status by broad international consensus—a consensus endorsed in Canada through such legislative enactments as the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act.

Cullen J. does not so much as acknowledge the difficulty this fact poses for his ultimate finding in his discussion of the “interests of justice” factor in forum non conveniens. Instead, he demurs to such factors as the plaintiffs’ failure to join any current owners or occupiers of the settlements (as if the issue concerned a mundane property dispute and not a war crime) and, incredibly enough, the need to conserve judicial resources. The non-justiciability of war crimes in Israel, meanwhile, is dismissed as akin to any mere difference between the laws of Israel and the laws of Quebec. Throughout the discussion, he seems blithely unaware of any reason why one might consider the non-justiciability of war crimes normatively problematic beyond the mere fact of simple divergence with the law of Quebec. Even on its most generous interpretation, such reasoning demonstrates nothing short of a complete failure to apprehend the exceptional character of the matters at stake in this litigation.

Such a ruling ought to trouble any observer, regardless of where on the spectrum he or she may fall with respect to the broader political context of this dispute. The issue at stake here is whether a civil claim for war crimes against a Canadian corporation can be heard in Canada, and not (at this stage) whether such war crimes were actually committed. The narrow and restrictive approach that Cullen J. took to the plaintiff’s arguments on justiciability and the failure to give effect to the exceptional level of censure that the international community has chosen to attach to war crimes could set a dangerous precedent that any observer measurably disturbed by the commission of war crimes in any form would be quick to condemn.

As authorities such as Binnie J. have noted, “[t]he enforcement mechanisms for human rights have lagged… [Y]ou cannot have a functioning global economy with a dysfunctional global legal system: there has to be somewhere, somehow, that people who feel that their rights have been trampled on can attempt redress.” In order to facilitate the introduction of such enforcement mechanisms, Canadian courts must act to significantly curb their current proclivity towards the liberal application of the forum non conveniens doctrine in such cases. Especially since the 1999 forum non conveniens stay in the Cambior case in Quebec (alongside a costs order against a Quebec NGO bringing a claim on behalf of Guyanese citizens that alleged health and other harms from a cyanide spill by a subsidiary of a Canadian gold mining company), Canadian courts have attracted—and often affirmed—a reputation as weak and ineffective when it comes to transnational corporate accountability. For example, when Sudanese citizens sought to sue Canadian company Talisman Energy, they went to US courts, arguing that the receptivity of Canadian courts to allowing a claim against a Canadian company was at best unclear, notwithstanding the fact that it was palpably clear Sudanese courts offered no viable alternative.

As it stands, the Bil’in judgment is a setback in the fight against war crimes, crimes against humanity, and human rights violations everywhere. If the reasoning stands, Canadian corporations will continue to successfully take shelter behind forum non conveniens regardless of the gravity of the allegations against them or the capacity of the foreign court to adjudicate the claim.

The author attended the hearing of Bil’in (Village Council) v. Green Park International Ltd. in Montreal in June with the assistance of the Nathanson Centre on Transnational Human Rights, Crime and Security. He has also provided legal research support and feedback to counsel for the plaintiffs.

Since independence in 1948 the Supreme Court has played a major role in establishing a jurisprudence of human rights and rule of law. Despite the lack of a formal constitution or bill of rights the Court held that as a democratic state fundamental human rights are part of Israel’s legal order. Legislation must be interpreted in order to give effect to such rights, administrative authorities may not restrict them without clear statutory power and in wielding discretion they must give them adequate weight.

While being protective of individual rights, until the late seventies the Court adopted a fairly narrow view of its role. By adopting fairly stringent demands for standing of petitioners, and stressing that its function was to decide concrete disputes rather than to ensure legality of all government action, the Court generally steered clear of controversial political issues.

In the late seventies the Court began relaxing the demands of standing, ruling eventually that in cases concerning matters of constitutional importance, if no specific individual had standing, anyone had standing. It also qualified the notion that certain essentially political issues are non-justiciable. Most significantly, it held that all use of governmental powers is subject to judicial review on the grounds of unreasonableness. The most extreme example of the Court’s new approach was a 1993 judgment in which it held that the prime minister was bound to fire a cabinet minister who was to be charged with corruption as failure to do so was unreasonable.

Furthermore, after passage of two basic laws on human rights in 1992, the Court ruled that it had the power to review the constitutionality of parliamentary legislation, even though this power was not expressly recognized in those basic laws.

Possibly the most controversial part of the Court’s jurisprudence relates to actions of the military in the Occupied Territories. And here there are two opposing conceptions of the Court’s role. Right wing politicians, West Bank settlers and some security personnel claim that the Court has gone too far in protecting Palestinians against decisions of the military. Some academics and lawyers of human rights NGOs who litigate cases relating to the Occupied Territories regard the Court as an institution whose main function is to provide legitimization for governmental action. They criticize the infrequency of the Court’s willingness to interfere in actions that are incompatible with international law, especially the Court’s persistent refusal to examine the legality of Israeli settlements, policies and actions, such as expropriation of land, that support the settlement project.

Alongside the Supreme Court, the state prosecution, at the head of which stands the Attorney General, a non-political and independent appointee, has been under constant attack following investigations and prosecution of leading politicians for crimes of corruption, and in some cases, sexual harassment. In two cases incumbent Ministers of Justice had to stand down after the Attorney General decided to prosecute them. The latest case involved the Minister of Justice in Prime Minister Olmert’s cabinet, who was forced to resign after he was indicted and subsequently convicted on a charge of an indecent act (giving a “French kiss” to a young woman soldier while waiting for a cabinet meeting to discuss crucial issues during the 2006 war in Lebanon).

Following resignation of the said Minister of Justice, the Prime Minister made a surprise appointment: Daniel Friedmann, a leading Israeli legal academic whose specialty is private law. Friedmann had never taken an active part in politics but had been writing articles in Israel’s most popular daily, Yediot, in which he had been attacking the Supreme Court. His most vicious attacks followed the refusal of judges on the Court to support the appointment to the Court of Friedmann’s closest academic associate, a woman with whom he had written a leading textbook on contracts. A few days before his appointment was announced, Friedmann had also published a scathing attack on the magistrate court’s conviction of the outgoing Minister of Justice.

Once in office, Friedmann embarked on what can only be described as a crusade against the Supreme Court and its president, Justice Dorit Beinisch, who had been the main opponent to the appointment of his associate to the Court. Plugging in to the resentment towards the Court in right wing and religious political circles, Friedmann stated he would support legislation to change the composition of the committee for the appointment of judges, so as to give more weight to politicians, restrict the power of the court to interfere in security matters, and undo some of the decisions of the Court on constitutional issues. In a short time, he managed to exacerbate the hostile attitude toward the Court that existed amongst some elements of the Israeli population.

It must be admitted that not all of Friedmann’s criticisms of the Court are without foundation. However, even many of those (the present writer included) who agree with some of his criticisms, are convinced that in his present crusade, Friedmann is causing untold damage to the institution in Israel that has contributed more than any other to upholding the rule of law and promoting protection of individual rights.

Furthermore, in some of his substantive proposals, Friedmann has placed himself clearly in the chauvinistic camp, exhibiting a contempt for international law and liberal legal values. While Israeli law grants immunity from liability in tort to damage caused during a ‘war act’, the Knesset enacted legislation widening this immunity so as to deny damages for death or wounding by Israel’s Defence Forces of any Palestinian resident of the West Bank or Gaza since the second Intifada began in 2000. Three years ago, a unanimous bench of nine Supreme Court judges held that this legislation was unconstitutional. However, Friedmann has initiated legislation that would effectively undo the Court’s ruling. As a lawyer who claims to be committed to rule of law and human rights, he apparently regards it as perfectly acceptable that Israeli forces can have control over the lives of Palestinians, but no responsibility for actions of negligence or worse. If Friedmann is successful in having the legislation enacted ( it has already passed first reading), Israel will probably find itself being sued in foreign courts.

Friedmann’s crusade has alarmed many of Israel’s retired justices. Foremost amongst these is Aharon Barak, Israel’s most prominent jurist, who retired as president of the Supreme Court of Israel in September 2006. In a series of interviews Barak stated that Friedmann is endangering rule of law and the commitment to democracy in Israel.

The battle continues. With the days of Olmert’s government numbered many hope that Friedmann will soon have to return to his academic pursuits.

The Israeli Supreme Court on November 21, 2006 accepted the petitions of five same-sex Israeli couples who married in Toronto, Canada and requested to be registered in the Israeli population registry as married. (HCJ 3045/05 Ben-Ari v. The Director of the Population Administration in the Ministry of the Interior).

The majority opinion

The 8-1 decision, one of the last to be written by the Court’s President (retired) Aharon Barak, did not address the question of the validity of the marriage, but rather whether the registration clerk, acting under the Population Registry Law, acted lawfully when he refused to register the marriage.

It should be noted that under Article 3 of the Population Registry Law a few items registered in the population registry constitute prima facie evidence to the truth of these items. The personal status clause is not one of them.

The leading precedent ruling the case was HCJ 143/62 Funk-Schlesinger v. Minister of Interior. The case involved a Christian woman and Jewish man who married in Cyprus, and asked to be registered as married in Israel. (Consider that in Israel marriage is conducted only under one’s personal religious law by state recognized religious officials). In that case the Court held that the couple should be registered as married, based on the fact that the population registry does not consist evidence to a status but is rather a statistical database. Thus the Court held that in accordance with the law, the clerk should register such changes in the status section of the population registry based on the person’s notification, accompanied by a public record. The validity of the marriage, held the Court, is not within the scope of issues to be considered by the population registry clerk. In Funk-Schlesinger the Court held that its decision does not address at all the question of the validity of the marriage. The Court added that the clerk can refuse to write the facts that are being asked to be registered, only when they are manifestly wrong. The example brought by the Court and cited by in its current decision, is of a person who looks as an adult but asks to be registered as a five year old child.

The Court discussed in detail the history of Funk-Schlesinger and its expansion beyond marriage to other matters within the Population Registry Law, including its decision in HCJ 1770/99 Berner-Kadish v. Minister of the Interior that mandated the registration of two mothers to a child who was adopted by his mother’s same-sex partner in California. (Later the Court held in C.A. 10280/01 Jaros-Hakak v. Attorney General that second-parent adoption is possible under Israeli law. However, the Berner-Kadish decision itself is still pending a further hearing which the Court agreed to conduct on the matter before an expanded panel).

The Court also mentioned the criticisms of Funk-Schlesinger in both academic writings and dissenting judicial opinions, which pointed to the fact that the approach of “statistical registry only” ignores the reality where the registration has broader implications. But in the current case, the Court was not asked to review Funk-Schelsinger, which, as it stated, was relied upon by all parties. The State, however, argued that same-sex marriage is a legal formation not recognized in Israel and thus Funk-Schlesinger should not apply to this case. “Marriage” within the population registry, argued the State, means marriage within the basic “legal formation” in Israeli law, which is marriage between a man and a woman. The Court rejected this argument, and determined that its implications are that the decision made by the population registry, and judicial review of such decisions, will consider the existence or lack thereof of “legal formats”. This, held the Court, stands contrary to current doctrine, and the registration sphere should not be the area where legal struggle about personal status is conducted.

The State further argued that the life together of “homosexual couples” is a “social format with certain legal ramifications”, and that “the state of Israel recognizes same-sex couples, in many contexts”. This recognition, said the State, is given in social-economic aspects and in the matter of residing legally in Israel. The Court agreed and cited what it called a “partial list” of such rights recognized by courts, including inheritance rights and other social rights. But it noted that the state’s argument about a non-recognized “legal format” is actually an attempt to address the question of personal status. The implications, held the Court, would be that the registration clerk would examine the question of status, and this stands in stark contradiction to Funk-Schlesinger. The Court noted that the State did not make a public policy exception argument before it, and its attorneys even said explicitly in reply to a question during oral argument that it was not making such an argument.

The Court rejected the State’s argument that the registration of “homosexual couples” as married can be denied as it seems “manifestly wrong”, saying that the “manifest wrongfulness” that Funk-Schlesinger addressed is a factual one, whereas in this case the state argued a legal wrongfulness, and also adding that the question is nor whether same-sex couples can marry in Israel, neither whether Israeli law will recognize same-sex marriage conducted in a place where they are valid. The latter question, said the Court, is a complex one, and in any case the decision concerning it should not be made as part of the registration and judicial review thereof.

The Court further addressed the State’s argument that the question of recognition of same-sex marriage is one on which there is no social agreement in Israel and is a question of values best left to the legislature. The Court agreed but recalled that the question before it is not whether same-marriage can be conducted in Israel.

The Court thus held that as part of the statistical registration capacity of the population registry, the registration clerk must register in the population registry that the couples are married, in accordance with the public record presented to him. The Court held that it does not hold that same sex marriage are recognized in Israel, it does not recognize a new status of such marriage, and does not take a position about the recognition in Israel of same-sex marriage. The answer to these questions, held the Court, is a complex one, and it should be hoped that the Knesset [Israel's Parliament] would address them.

The Court’s new President, Ms. Dorit Beinish, added a short concurring opinion, where she noted that the fact that the registration and the declaration it entails is meaningful to the petitioners, does not detract from the legal separation between the question of registry and the question of personal status.

The dissent

A dissenting opinion was written by Judge Elyakim Rubinstein. Judge Rubinstein wrote that we are no longer talking about a mere statistical tool, but of a social-public symbol, which is what the petitioners seek – rather than certain social or “practical” issues. Same-sex marriage, held Rubinstein, is a new issue and is within the domain of the legislature and not the Court. Moreover, the average person does not distinguish between the registration and the recognition of status. Thus, the Court should have left the matter to the legislature. When a couple presents an Israeli ID card in which it is registered as married, the average person does not know to distinguish between registration and recognition of status. Thus the registration has practical and social implications in front of the public, the authorities and the legislature. Rubinstein said that one should distinguish civil marriage which is recognized in most countries, and thus should be registered in Israel, and same sex marriage, which is recognized in only about 3% of the world’s countries.

The petitioners, said Rubinstein, are worthy of human dignity, and indeed social, economic and human rights of same sex couples were recognized in Israel. But this petition is not about those issues and not about the maintenance of the petitioners’ rights as citizens and human beings entitled to dignity and equality. This is a question of recognition of a symbol and not of practical effects. Rights depend on status which is in any case not addressed here, and not on registration, which is not even prima facie evidence of its content. Rubinstein also noted that the Court should be careful of entering issues of public controversy, especially when human rights are not really violated – and in this case, there is no violation other than a symbolic one. Rubinstein cited to the Hennefeld decision where the New Jersey Court rejected a petition to recognize same-sex marriage held in Canada, even though New Jersey does not have a Defense of Marriage Act. He noted that although the case pertained to recognition (not registration) it is of relevance. He also mentioned the recent Lewis v. Harris decision from New Jersey, which left the question of how to call the format for recognition of same sex partnerships to the legislature – even if they must be accorded equal rights. The Court’s decision, said Rubinstein, is about giving a public state stamp of approval to a new form of family, recognized only in a small minority of the countries on earth.

The implications

In order to understand the implication of the decision, one should consider that at least tens of thousands of opposite-sex Israeli couples married abroad (mostly in Cyprus) and registered as married in Israel, because they did not want or could not marry under Israel’s religious marriage system. In reality, in daily life, these couples are treated as marriage for all practical purposes. It should be expected that the same will be true to same-sex couples who marry in Canada or in other jurisdictions that allow such marriage. There is a risk that certain government agencies and third parties will invoke the fact that their marriage is only registered, not recognized in Israel. But in such cases such couples may argue that they are discriminated against vis-à-vis opposite-sex couples who married abroad. It should be noted also that today same-sex couples enjoy, as both Barak and Rubinstein noted (and this is a positive element in both the majority and dissenting opinions), many if not most of the social-economic rights enjoyed by married couples, as reported by this author previously. However, today the burden is usually upon same-sex couples to prove their relationship by means such as an affidavit. A registration as married in the ID card my take this burden off them – for those who can and wish to take the burden and expenses entailed in marrying abroad. From this perspective the decision may widen a gap between same sex couples who can afford such expenses and those who could not. Notably all five couples who petitioned the Court were male couples, maybe not a surprising fact given that women on average earn less than men.

The statutes governing adoption and surrogacy in Israel state that only a married husband and wife can adopt a child (other than in special circumstances to which the second parent adoption falls) or enter a contract with a surrogate mother. The implications of the current decision on the interpretation of these statutes is unclear but most probably it will not have any affect per se on issues of parenthood.

A question remains about how and where Israeli couples married in Canada can divorce. In a separate decision given on the same day as Ben-Ari, the Israeli Supreme Court held that the Rabbinical Court can end the marriage of an opposite-sex Jewish couple who married in Cyprus. That decision implied that the marriage is also recognized, not only registered, in Israel. In Ben-Ari the Court did not address these issues.

The distinction between registration and recognition should be understood as a mechanism that allowed Israel to de-facto recognized civil marriage, while formally not doing so. From this perspective the established existence of this distinction, opened the door to same-sex couples. The question remains as to whether this status-quo will be maintained once this door was opened.

Some lawmakers already announced their intention to initiate legislation that will overturn the Court’s decision. The chances for the passing of such legislation are still unclear, and it could also face possible challenge as unconstitutional under Israel’s Basic Laws. Given that the decision was given in an expanded panel of seven judges, a further hearing by the Court is not an option in this case.

Aeyal Gross (www.aeyalgross.com) teaches constitutional and international law at Tel-Aviv University. He is a member of the board of the Association for Civil Rights in Israel, which was one of the petitioners in this case. Nevertheless, the opinions expressed in the article are his own and should not be attributed to the Association for Civil Rights in Israel.