Corrie et al. v Caterpillar: Litigating Corporate Complicity in Israeli Violations of International...

8/2/2019 Corrie et al. v Caterpillar: Litigating Corporate Complicity in Israeli Violations of International Law in the U.S. Courts

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Corrie et al v. Caterpillar:Litigating Corporate Complicity in

Israeli Violations of International Law

in the U.S. CourtsGrietje Baars*

1 INTRODUCTION1

In 2005 an attempt was made at enforcing international law against anAmerican corporation said to be complicit in war crimes, extrajudicial killingand cruel, inhumane and degrading treatment committed by the Israelimilitary. The civil suit, brought in a U.S. court, was dismissed without a hearing,in a brief statement mainly citing reasons of political expedience. The claimants

in Corrie et al v. Caterpillar2 include relatives of several Palestinians, and Americanpeace activist Rachel Corrie, who were killed or injured in the process of housedemolitions carried out using Caterpillars D9 and D10 bulldozers. Theybrought a civil suit in a U.S. court under the Alien Tort Claims Act,3 for breachesof international law, seeking compensatory damages and an order to enjoinCaterpillars sale of bulldozers to Israel until its military stops its practice ofhouse demolitions. An appeal is pending and will be decided on in the latterhalf of 2006.

* PhD Candidate, University College London and Coordinator, International Criminal Law atthe Institute of Law, Birzeit University.

1 The author thanks Victor Kattan, Jason Beckett, Jrg Kammerhofer, Akbar Rasulov, Andr deHoogh, Anne Massagee, Reem Al-Botmeh and Munir Nuseibah for their helpful commentsand suggestions, and Maria LaHood of the Center for Constitutional Rights in New York forproviding the documentation. Any mistakes are the authors own. This article is an elaborationof a paper presented at the conference, The Question of Palestine in International Law atthe School of Oriental and African Studies in London, on 23-24 November 2005.

2 Cynthia Corrie and Craig Corrie, et al v. Caterpillar, Inc., a Foreign Corporation(Caterpillar) CaseNo. CV-05192-FDB. Documents on file with the author, and available from: http://www.ccr-ny.org/v2/legal/corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546

3 28 U.S.C. 1350.


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2 THE CATERPILLAR CASE IN ITS CONTEXT

The idea of a number of Palestinian and American families taking themanufacturer of the machines, that were used in the killing or injury of theirrelatives by the Israeli military, to court in the United States, may seem farfetched in more than one way. Why sue a foreign supplier to the Israeli army,in a foreign court? What did the U.S. company have to do with deaths andinjuries that occurred half-way around the world? This introductory sectionshows how such actions are feasible, and plausible. I will discuss the context inwhich the facts complained of occurred, and the legal and political reasons(such as the Intifada Law4) why a Palestinian claimant may resort to a foreigncourt.

Caterpillarcommenced in March 2005. The plaintiffs are represented by the

Center for Constitutional Rights in New York, and the Seattle University RonaldA. Peterson Law Clinic. On 29 November 2005 the District Court for theWestern District of Washington, Tacoma Division, dismissed the case.5 Theplaintiffs filed a Notice of Appeal on 20 December 2005 and on 20 March2006 filed their Appellants Opening Brief with the United States Court ofAppeal for the Ninth Circuit.6 The defendant company, Caterpillar, is due tofile its response in June 2006 but has been granted an extension. The Caterpillarlitigation takes place in the context of house demolitions and civilian deathsand injuries caused by the Israeli military in the Occupied PalestinianTerritories (OPT).7 In particular, the complaints that form the basis of thelitigation arose during the April 2002 Israeli incursions into the West Bankpopulation centres of Nablus and Jenin Refugee Camp, and two major

operations in Gaza, in Rafah in March 2004, and Khan Yunis Refugee Campin July 2004.

The plaintiffs in the Caterpillarcase are four Palestinian families and theparents of Rachel Corrie, the American peace activist who was killed in Rafahin March 2003. Rachel Corries death has been much publicised and has evenformed the subject of a play, My Name is Rachel Corrie, that was directed byAlan Rickman, a famous U.K. actor, and has toured theatres around the world,although it was recently barred from appearing in New York City.8 Rachel wasone of a number of Western volunteers who use the privilege of their

4 The popular nickname of the Civil Wrongs (State Responsibility) (Amendment No. 7) 2005,

5712-1952, Available in English from Adalah, The Legal Centre for Arab Minority Rights inIsrael, at http://www.adalah.org/eng/complaw.php .

5 Order granting defendant Caterpillars motion to dismiss, USDC Western District ofWashington at Tacoma, filed 11/22//2005 (Order).

6 Appellants Opening Brief, United States Court of Appeals for the Ninth Circuit (AB):available from the Center for Constitutional Rights: http://www.ccr-ny.org/v2/legal/corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546.

7 For a detailed description of the Israeli militarys activities in the Occupied PalestinianTerritories, see, for example, the daily, weekly, and annual reports of the Palestinian Centrefor Human Rights in Gaza, available at http://www.pchrgaza.org, and the PalestinianMonitoring Group: http://www.nad-plo.org/main.php?view=pmg_pmg.

8 A Message Crushed Again Three years after American activist Rachel Corrie died under anIsraeli bulldozer in Gaza, her words are being censored for political reasons. LA Times, byKatharine Viner, 1 March 2006.

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nationality for the benefit of the victims of this conflict who would otherwiselargely escape mainstream media attention.9 Rachels death has helped bring

out the stories of other, far more common, occurrences in the OPT.

2.1 The complaints

The facts alleged in the case against Caterpillar are set out in the PlaintiffsComplaint in some detail. They start with the demolition of the home of theNablus Plaintiffs in April 2002, as part of a large scale incursion into theWest Bank:

the home of Plaintiff Mahmoud Al Shobi who lived in Nablus in the OPT (WestBank) was demolished by upon information and belief, by a Caterpillar bulldozer.Mahmouds 85 year old father Umar, 2 sisters Fatima and Abir ages 57 and 38

respectively, brother Samir, age 48, his pregnant sister-in-law Nabila, age 40, alongwith Samir and Nabilas three children Anas, Azzam, and Abdallah ages 4, 7, and 9respectively, were killed by a Caterpillar bulldozer when the family home wasdemolished and they were not given sufficient time to leave. After the Al Shobifamily home was demolished, the IDF kept the area under strict curfew for days,denying access to rescue workers, and it was not until a week later that the familiesbodies were found under the rubble of the house by relatives and neighbors.10

As part of the Jenin Refugee Camp incursion in 2002, Jamal Fayed was killed:

Before the home was bulldozed, Jamals mother and sister informed the IDF thatJamal was in the house, was paralyzed, and needed assistance to leave. Jamals motherand sister and other women were permitted to enter the home to remove Jamal.The bulldozer then started demolishing the house while they were inside. The

women ran outside and yelled at the driver of the bulldozer to stop. The Caterpillarbulldozer continued moving forward, demolished the home, and killed Jamal.11

In Rafah, in September 2002,

[t]he destruction began without warning at approximately 5:00 in the morning.The falling ceiling and walls injured members of their family. After being warned ofthose inside, IDF soldiers operating and/or assisting the bulldozer halted activedemolition, but fired on neighbours or relatives trying to evacuate those whoremained in the demolished house. Eventually, the entire Abu Hussein family was

9 See, e.g. Pollock, M.: Using and Disputing Privilege: U.S. Youth and Palestinians Wielding

International Privilege To End the Israeli-Palestinian Conflict Nonviolently; this articleappeared in the 2005 issue of Working Papers, Centre for Public Leadership, John F. KennedySchool of Government, Harvard University.

10 Plaintiffs First Amended Complaint (FAC), para. 57. This event and the Jenin event belowtook place between 29 March-21 April, as part of the IDFs Operation Defensive Shield, anincursion into major West Bank urban centres following an increase in violence from bothsides. Nearly 500 civilians are reported to have died in the time surrounding this operation.See, e.g. the Jenin Inquiry Report (available from http://www.jenininquiry.org/); HumanRights Watch: Jenin: IDF Military Operations, May 2002, Vol. 14, No. 3, available from http://hrw.org/reports/2002/israel3/ ) and see also HRW press release of 2 August 2002, TheUN Report is seriously flawed at http://hrw.org/english/docs/2002/08/02/isrlpa4185.htm;the Report of the Secretary General prepared pursuant General Assembly Resolution ES 10/10, A/ES-10/186.

11 FAC at para. 59.

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rescued from the building and transported to receive medical treatment for theirinjuries. Six members of the family suffered physical injuries: Majeda Radwan Abu

Hussein, Bahjat Fayez Abu Hussein, then age 20, Ahmed Fayez Abu Hussein, thenage 17, Nour Fayez Abu Hussein, then age 11, Hanan Fayez Abu Hussein, then age3, and Manal Fayez Abu Hussein, then age 2.12

Mr. Khalafallah, killed during a large scale incursion into the Khan YunisRefugee Camp in July 2004, was elderly and disabled and, according to thetestimony given by his relatives, suffered a similar fate to that of Jamal Fayed.13

Finally, Rachel Corrie was killed while attempting to protect the home ofPalestinian residents of Rafah, in an action the Israeli military described as asearch for weapons and weapon smuggling tunnels.14

These acts were all carried out by the Israeli military using the well-knownCaterpillar D9 and D10 bulldozers. Caterpillar had sold these specially designed,armoured, bulldozers to the Israeli military, provided it with training on howto use them, and after-sales care, in the knowledge15 that they were beingused to commit international crimes.

2.2 The context

The plaintiffs complaints arose in the context of the Israeli occupation of theWest Bank and Gaza. House demolitions, the deliberate injuring and killingof civilians, and the failure by the Israeli authorities to investigate and remedywrongdoing by its military, are some of the most acute manifestations of theIsraeli occupation.

2.2.1 House demolitions in the Occupied Palestinian Territories

The plaintiffs complaint sums up the broader issue as follows:The IDF has destroyed at least 10,000 Palestinian homes since 1967 leaving

approximately 50,000 men, women, and children homeless. Over the last fouryears, the IDF has destroyed at least 4,100 homes.

As a result of these demolitions, Palestinian civilians, including Plaintiffs, havebeen killed, injured, displaced, and/or made homeless. Home demolitions oftentake place without adequate warning and in violation of due process rights, such asthe right to a fair hearing. The IDF rarely offers compensation and redress to the

12 FAC at paras. 60-1. This event was part of large-scale house demolitions in the Gaza Strip, see(on earlier instances), e.g. BTselem, Policy of Destruction: House Demolitions andDestruction of Agricultural Land in the Gaza Strip, February 2002, available from http://

www.btselem.org/Download/200202_Policy_of_Destruction_Eng.doc; and Human RightsWatch: Razing Rafah: Mass Home Demolitions in the Gaza Strip, October 2004, availablefrom www.hrw.org/reports/2004/rafah1004/.

13 FAC at paras. 77-80. On the Khan Yunis incursion, see Violating international laws:Disproportionate re-incursion of Palestinian communities in Gaza Strip, 15 July 2004, the

Applied Research Institute, Jerusalem, at http://www.poica.org/editor/case_studies/view.php?recordID=415, and the Palestine Monitoring Group Monthly Report for July 2004,at http://www.nad-plo.org/pmg/pmg-month/july.pdf.

14 FAC at paras. 65-76. See BTselem: Foreign Citizens killed by the Israeli Security Forces, athttp://www.btselem.org/English/Statistics/Casualties_Data.asp?Category=11.

15 See below at section 4.

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victims. The IDF has also destroyed civilian roads, agricultural land, and other publicand private property.16

House demolitions by an occupying power in the occupied territory may violateinternational law in several ways. For one, they may violate the prohibition ondestruction of property contained in Article 53 of the Fourth GenevaConvention17 and Article 23(g) of the 1907 Hague Regulations.18 Israel, as theOccupying Power, is forbidden from destroying the property of Palestiniansin the West Bank and Gaza Strip, unless it is militarily necessary to do so. According to Article 147 of the Fourth Geneva Convention, extensivedestruction and appropriation of property, not justified by military necessityand carried out unlawfully and wantonly is a grave breach of the Convention,and thus a war crime. Interpreting military necessity broadly wouldundermine the very purposes for which international humanitarian law was

brought into existence.International NGOs such as Amnesty International,19 Human Rights Watch,as well as local organisations such as Al-Haq, the Palestinian Centre for HumanRights, HaMoked, BTselem, the Israeli Committee Against House Demolitionsand the Association for Civil Rights in Israel, have documented, condemned,and litigated the practice of house demolitions, arguing that these moreoften than not do not occur on the grounds of true military necessity.20

International organisations have likewise condemned the practice.21

Aside from house demolitions in the circumstances described above, theIsraeli military also carries out house demolitions against the property of (the

16 FAC at para. 8.

17 Convention Relative to the Protection of Civilian Persons in Time of War (Fourth GenevaConvention) 12 August 1949, 75 U.N.T.S. 287.

18 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulationsconcerning the Laws and Customs of War on Land, The Hague, 18 October 1907, 36 Stat.2277, T.S. No. 539 (1907 Hague Regulations). Israel is not a party to the 1907 HagueConvention and the annexed Hague Regulations, but the norms contained in them aredeclaratory of the laws and customs of war (Judgment of the International Military tribunalof Nuremberg, 30 September and 1 October 1946, p. 65) and as such binding on all states.

19 Amnesty International: Israel and the Occupied Territories: Under the Rubble: Housedemolition and destruction of land and property. AI Index: MDE 15/040/2004, 18 May 2004available at: http://web.amnesty.org/library/Index/ENGMDE150402004.

20 See, for example, http://www.icahd.org/eng/; http://www.hamoked.org/next_en.asp?cat_id=3&sub_cat_id=7

21 Including also the United Nations, see, e.g. S.C. Res. 1544, para. 1, U.N. Doc. S/RES/1544

(May 19, 2004); Peter Hansen, Commissioner-General of UNRWA, Statement to the SpecialPolitical and Decolonization Committee 4-5 (Nov. 1, 2004) (transcript available at http://

www.un.org/unrwa/news/statements/01nov04.pdf); Commission on Human Rights: Fifty-ninth session, Item 10 of the provisional agenda: Economic, Social, and Cultural Rights, Reportof the Special Rapporteur on adequate housing as a component of the right to an adequatestandard of living, Mr. Miloon Kothari, Doc E/CN.4/2003/5 Add.1, 12 June 2002, availableat: http://documents-dds-ny.un.org/doc/UNDOC/GEN/G02/145/06/pdf/G0214506.pdf?OpenElement Specifically, the U.N. Committee Against Torture has found that the Israeligovernments house demolition policy may, in certain instances, amount to cruel, inhumanor degrading treatment or punishment in violation of the U.N. Convention against Tortureand Other Cruel, Inhuman or Degrading Treatment or Punishment: Conclusions andrecommendations: Israel. 25/09/2002. A/57/44, paras. 47-53. (Concluding Observations/Comments), available from http://www.unhchr.ch/tbs/doc.nsf/0/7b8b70bcc17daf8cc1256efb004e005a?Opendocument.



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family and sometimes the neighbours of) individuals thought to be membersof certain designated terrorist organisations and/or those suspected of

carrying out various activities.22 In international law, these types of housedemolitions, where they affect third party property, amount to collectivepunishment in violation of Article 50 of the 1907 Hague Regulations, and Article 33 of the Fourth Geneva Convention. The latter stipulates: Noprotected person may be punished for an offence he or she has not personallycommitted. Collective penalties and likewise all measures of intimidation orof terrorism are prohibited.

Finally, under Oslo II,23 the State of Israel maintains authority over planningand zoning decisions in much of the Occupied Palestinian Territories, andhouse demolitions frequently occur for alleged violations of planning andbuilding laws.24 These latter cases often raise allegations of improper motiveson the part of the Israeli authorities, and might as such be discriminatoryagainst Palestinians and, more generally, violate their right to housing.25

22 See, e.g. Palestinian Centre for Human Rights: Demolition of Palestinian Houses by theIsraeli Occupying Forces as a Means of Punishment and Determent: A Report on Demolitionof Houses of Families of Palestinians Who Carried out, Planned or Facilitated Armed Attacksagainst Israeli Targets, available at http://www.pchrgaza.org/files/Reports/English/pdf_spec/demolishion%20house-2.pdf. See, e.g., Al-Haq 2005 at The Israeli Military designatesa very wide range of organisations and individuals as terrorists see section 91 of the IsraeliPenal Law, 5737-1977: Terrorist Organization: an organization that has goals or takes actionsaimed at the destruction of the state, or at hurting the security of the state, or the security ofits residents or of the Jews in other countries. See also, e.g.: PCHR 2 May 2006: As a Form ofCollective Punishment, IOF Continued to Arrest and Harass Mothers of Allegedly Wanted

Palestinians, Palestinian Centre for Human Rights: http://pchrgaza.org/files/PressR/English/2006/46-2006.htm. And see, eg: http://www.btselem.org/english/Punitive_Demolitions/Legal_Basis.asp. This type of demolition was implicitly approved of bythe Israeli High Court of Justice in HCJ 6696/02, Yousef Hamid Mustafa Zurob v. MilitaryCommander of the Gaza Strip, issued 6 August 2002.

23 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II) Washington, D.C., 28 September 1995, available from: http://www.knesset.gov.il/process/docs/heskemb_eng.htm.

24 See, e.g., Amnesty: Under the Rubble (supra, footnote 19), at 8: Palestinians in the WestBank and Gaza Strip are barred from leasing or building on land which has been declaredstate land because state land is not for leasing or building on by alien persons, and theentire Palestinian population of the Occupied Territories are defined as aliens by Israeli law.

After it occupied the West Bank and Gaza Strip, Israel froze planning in Palestinian townsand villages. Planning schemes dating back several decades and no longer suitable to cater

for the needs of a growing population were used as the basis for refusing building permits toPalestinians. At the same time, however, Israel developed comprehensive planning schemesfor more than 150 Jewish settlements it established throughout the Occupied Territories in

violation of international law.25 Shany, Y.: Expert Opinion, Caterpillarlitigation (Shany). Document 36 Filed 08/15/2005,

at p. 28. Document on file with the author. Also [b]ecause of the very restrictive planningpolicy the Israeli authorities apply to the Occupied Territories, Palestinian often have nochoice but to build without permission to house their families. These properties are then

vulnerable to demolition. BTselem: see http://www.btselem.org/english/Planning_and_Building/Index.asp; and Shadow Report submitted by ACRI to the UNCommittee on the Elimination of All Forms of Racial Discrimination (CERD) regarding Israelsconsolidated tenth, eleventh, twelfth, and thirteenth periodic report: Part I - HouseDemolitions and Discriminatory Planning and Enforcement Policies in the West Bank, January2006, available at: http://www.acri.org.il/english-acri/engine/story.asp?id=296.

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The Jenin Refugee Camp, Nablus and Khan Yunis Refugee Camp housedemolitions which are the subject of this litigation, took place as part of well-

documented large scale military incursions, which would most probably beclassified by the Israeli authorities as forming part of combat operations.26

In Jenin Refugee Camp, during the period described, at least 140 buildings,most of them family dwellings, were completely destroyed, and severe damagewas caused to more than 200 others, rendering them uninhabitable or unsafeAn estimated 4,000 people, more than a quarter of the camp, were renderedhomeless.27 Amnesty International reports that the Israeli explanation forthe destruction was to clear paths for the IDFs tanks and other heavyweaponry.28 In an interview in Israeli daily newspaper Yehidot Ahronotshortlyafter the incursion, Israeli soldier Moshe Nissim describes his role as follows:For three days, I just destroyed and destroyed. I didnt give a damn about thePalestinians but I didnt just ruin with no reason. It was all under orders. Manypeople were inside houses we started to demolish I am sure people diedinside these houses I found joy with every house that came down because Iknew that they didnt mind dying29

During the Khan Yunis Refugee Camp incursion, Israeli tanks and helicoptergunships intensely shelled the camp and destroyed 74 houses in less than fivedays.30 The Corrie and Abu Hussein complaints would most probably beclassified as non-combat related operations carried out for military necessity.31

Most of the demolitions in Gaza are aimed at depopulating Palestinian areasnear Israeli settlements, bypass roads, military bases, as well as the border.32

In Rafah, a town in Gaza close to the Egyptian border, the Israeli military hasused various pretexts to destroy swathes of housing to create a buffer zone

along the border33

As noted above, the absolute necessity of these demolitions has often beencalled into question. For the actions to be lawful under internationalhumanitarian law (IHL) moreover, the actions need to be proportionate(e.g. would a less intrusive measure serve the purpose of the action, such astemporary evacuation of the property?). Also, is demolition at night withoutnotice the least harmful measure conceivable? Further, for the purposes ofIHL the measure must be taken with proper consideration for the protectionof the civilian population.

2.2.2 Civilian deaths in the Occupied Palestinian Territories

For the period of the current Intifada,34 BTselem records 3551 Palestinians,including 723 children, killed by Israeli forces, while the Palestine Red Crescent

26 Shany at p. 30.27 FAC at para. 8.28 Amnesty Under the Rubble, supra, footnote 19.29 Yediot Ahronot, 31 May 2002, available from http://www.gush-shalom.org/archives/

kurdi_eng.html.30 FAC at para. 19.31 Shany at para. 38.32 FAC at para. 7.33 FAC at para. 8.34 The current, second Intifada commenced in 2000.



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Society reports 30,603 injured in the same period.35 The combat operationsto which three of the Caterpillarcomplaints relate, were particularly violent.

The Jenin Inquiry Report, whose authors were the first on the ground afterthe invasion, notes how difficult it was for investigators to estimate the numberof deceased in the operation, with many bodies being torn apart and dispersedby the bulldozers.36 The U.N. team, moreover, had to compile its report onOperation Defensive Shield in Jenin and Nablus Spring 2002 without beingallowed access to the Occupied Palestinian Territories by the Israeligovernment.37 The death and destruction in Gaza are reported in the UNRWAField Assessment of the Israeli militarys so-called Operation Days ofPenitance Northern Gaza.38

Civilian deaths occur in the Occupied Palestinian Territories as a result ofthe deliberate targeting of civilians; excessive use of force, indiscriminate firing,extrajudicial killings, targeted assassinations.39 Particularly, the immediate resortto the use of live ammunition to disperse demonstrators shows a disregard forcivilian life.40 Although a High Court of Justice (HCJ) decision in 2005 (inresponse to a petition brought by seven human rights organisations) declaredthe use of human shields by the military illegal,41 human shields were used,for example, in Gaza summer 2006.42 Aside from a violation of IHL, civiliandeaths may be the result of a violation of the right not to be arbitrarily deprivedof ones life in international human rights law.43

The complaints that form the subject of the Caterpillarpetition combinethe two elements, house demolitions and civilian deaths (and injuries).44 Allof the plaintiffs killed or injured in the events complained of, were unarmedcivilians.45

35 BTselem figures for the period 29/09/00 to 15/07/06, at http://www.btselem.org/english/statistics/Casualties.asp; and Palestinian Red Crescent Society, at http://www.palestinercs.org/crisistables/table_of_figures.htm. The PRCS figure is for the period 29 October 2000 to 31

July 2006, which includes the start of latest Israeli military assault on Gaza which commencedon 25 June 2006.

36 Jenin Inquiry Report, supra, footnote 10 at 4.37 Report of the SG prepared pursuant to GA Resolution ES 10/10A/ES-10/186, para. 43.38 United Nations Relief and Works Agency, published 20 October 2004, available from

www.un.org/unrwa/news/incursion_oct04.pdf.39 Petition pending. See also the assassination of Salah Shehadeh by a one-tonne bomb in Gaza

City see below at 2.5.

40 Al-Haq at 53.41 HCJ 3799/02 Adalah et al v. the IDF Commander et al, available from: elyon1.court.gov.il/

Files_ENG/02/990/037/a32/02037990.a32.pdf .42 See e.g.: 20 July 2006: Israeli Soldiers Used Palestinians as Human Shields in Gaza: BTselem

investigation: IDF used civilians, including minors, as human shields during gun-battle inBeit Hanun, see http://www.btselem.org/english/Press_Releases/20060720.asp.

43 See for a discussion of the parallel application of international human rights and humanitarianlaw, the ICJ Wall Advisory Opinion at p. 101.

44 In the latest Gaza offensive again house demolitions without adequate notice are an issue,see, eg: Palestinian Centre for Human Rights in Gaza, Demanding Offering PalestinianFamilies Enough Time to Vacate Their Houses and Appeal against Their Destruction, PCHR

Addresses the Israeli Attorney General Office Concerning the Policy of Informing PalestiniansShortly before Destroying Their Houses, Ref: 79/2006, Date: 31 July 2006.

45 AB at p. 7.

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2.2.3 Failure to investigate

Palestinian civilian deaths are not normally investigated.46

In fact, at theoutbreak of the current Intifada the Israeli authorities announced that theywould no longer carry out investigations into the deaths of Palestinian civilians,except in exceptional circumstances.47 According to Al-Haq, of the 3,044Palestinian deaths in the period from 28 September 2000 until 24 November2004, 89 have been the subject of military police investigations, leading toonly one conviction.48

2.3 Remedies available at home?

In the previous section it was noted that civilian deaths are not normallyinvestigated, and house demolitions (particularly of the type complained of

here) are not normally subject to conditions such as the right to a prior hearing,

46 Al-Haq at p. 52, June 2005; BTselem: Background Whitewash and Failure to Investigatethe Killing of Civilians in the Occupied Territories, 27 June 2005. Human Rights Watch:Promoting Impunity: The Israeli Militarys Failure to Investigate Wrongdoing, June 2005.Specifically on the 2002 incursions, see: Amnesty Internationals reportIsrael and the OccupiedTerritories: Shielded from scrutiny: IDF violations in Jenin and Nablus, 4 November 2002 (AI Index:MDE 15/143/2002).

47 Al-Haq at p. 75.48 Al-Haq, at pp. 75-76 and BTselem, Rules of Engagement and Lack of Accountability Result

in Culture of Impunity for Palestinian Civilian Deaths, Press Release, 24 November 2004.Rachel Corries death was investigated. The Guardiansaw the (otherwise unpublished) report.The report is said to absolve the military personnel involved, and is quoted as saying that

Corrie had been: struck as she stood behind a mound of earth that was created by anengineering vehicle operating in the area and she was hidden from the view of the vehiclesoperator who continued with his work. Corrie was struck by dirt and a slab of concrete resultingin her death ... The finding of the operational investigations shows that Rachel Corrie was notrun over by an engineering vehicle but rather was struck by a hard object, most probably aslab of concrete which was moved or slid down while the mound of earth which she wasstanding behind was moved. (The Guardian, 14 April 2003). Instances where Westernersare killed by the Israeli military are more often investigated, partly because the military andthe government are highly sensitive to the media impact of such killings. Here, too, however,delays and a lack of transparency result in the investigations amounting to far less than aneffective remedy. HRW Promoting Impunity, supra, footnote 46, at 72. In Israel, a soldier hasbeen convicted of the manslaughter of British citizen Tom Hurndall. According to HRW,during the trial, the soldier admitted he had lied when he had previously said Hurndall hadbeen carrying a gun, but said he had been under orders to open fire even on unarmed

people, HRW Promoting Impunity, at 77. In April 2006 a U.K. coroner found that JamesMiller (another U.K. citizen) and Tom Hurndall, had been unlawfully killed (Calls for UK toact over Britons shot dead in Gaza, Vikram Dodd, Tuesday, 11 April 2006, The Guardian, athttp://www.guardian.co.uk/frontpage/story/0,,1751369,00.html). The family have requestedaccess to the investigative report in order to see whether he should be charged with murderand whether the soldiers superior(s) may be charged with command responsibility. TheU.K. Attorney-General is considering a request for extradition for murder and/or war crimes.Despite 40 interventions with the Israeli government, the death of U.K. citizen James Millerhas thus far not been satisfactorily investigated. See, e.g. Hansard, House of Commons, 4 May2006: http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060504/text/60504w23.htm. On 7 April 2006 a U.K. coroner found that James Miller had been murderedby the Israeli Army, see, e.g.: Briton shot by Israelis was murdered, says inquest jury TheGuardian, 7 April 2006. For an article on the U,K, Attorney Generals fact-finding mission toUK downplays Gaza damages bid,Jerusalem Post, 27 May 2006.



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and compensation. This section investigates the likelihood of a successful claimin the domestic Israeli and Palestinian courts in some more depth.

2.3.1 Jurisdiction under Oslo II

The Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip49

imposes extensive jurisdictional limitations on the Palestinian courts. ArticleIII of Annex IV of the Agreement deals with civil jurisdiction: The jurisdictionof the Palestinian courts and judicial authorities does not cover actions againstthe State of Israel including its statutory entities, organs and agents. Thismeans that a Palestinian claimant wishing to commence an action forcompensation for losses caused by the Israeli military, would have to do so inthe Israeli courts in the first instance.

2.3.2 Claims against the Israeli military

Most of the litigation which takes place in Israel concerning events occurringin the Occupied Palestinian Territories is addressed within an administrativelaw paradigm, viewing the Israeli military as an administrative agency.50

In those very few administrative law cases where injunctions against housedemolitions were granted, it was by reason of the non-fulfilment of one of theconditions (such as a right of prior hearing), that may be attached to housedemolitions. The High Court of Justice has decided that the right of priorhearing does not apply in combat-related demolitions.51 In cases of non-combat related demolitions in situations of military necessity the Israeli

military may offer some financial compensation.52 The right to prior hearing,however, has gradually eroded.53 Moreover, almost all administrative lawpetitions against non-combat house demolition operations undertaken forsecurity needs were dismissed to date.54

Civil claims in tort are no more likely to succeed: No tort claim brought inIsrael on the basis of a house demolition operation which took place in theOccupied Palestinian Territories has ever been successful.55 Claims in tortwhich raise specific allegations of negligence might be feasible, although these(as other tort cases) would be covered by the Intifada Law (see below under[]). The Corrie family commenced a civil action against the State of Israel

49 Supra, footnote 23.50 Shany at p. 34.51 See, e.g.: HCJ 453/04 Al-Besioni v. IDF Commander, 2004(2) Tak-Supreme 1288. Moreover, the

specific house demolitions in Jenin to which the Caterpillar complaint relates, were approvedof in an obiterstatement in HCJ 313/03 Bakri v. The Film Review Board, 2003(3) Tak-Supreme353, 365.

52 Shany at p.35.53 Shany at p.36.54 Shany at p.38.55 Shany at p.26.

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and the Ministry of Defence in March 2005. They have yet to receive an answeron whether the Intifada Law applies to claims by non-Palestinians.56

In support of the Caterpillarplaintiffs claim that local remedies had beenexhausted, and/or that no adequate remedy exists in Israel, expert witnessYuval Shany summarised the situation as follows:

There have been no successful tort claims brought before Israeli Courts for damagesassociated with home demolitions. Moreover, the Israeli Supreme Court continuallyrejects administrative law cases challenging the home demolitions similar to thosein this lawsuit those for accommodation of military needs, and those it deemscombat operations, such as those intentional demolitions against non-combatcivilian homes occurring during incursions into refugee camps. Applications tostop the demolitions are almost always rejected, often accompanied by either explicitor implicit approval of house demolitions.57

In addition to local laws, a plaintiff could attempt to rely on breaches ofinternational law giving rise to a claim in the domestic (Israeli) courts. However,plaintiffs expert opines that not only is there no known precedent for bringinga tort claim in Israel directly on the basis of international norms, it is highlyunlikely that a tort claim alleging violation of international law, such asextrajudicial killing, could be sought in Israel. There is no domestic law orenabling legislation that provides that a person can bring a claim forextrajudicial killing (or torture) in violation of international law similar toTVPA,58 in fact, the Israeli Parliament has failed to incorporate into domesticlaw and/or provide causes of action for almost all human rights andhumanitarian law treaties to which Israel is a party. Moreover, it also does notincorporate customary international law into domestic tort law in any way

including by any sort of jurisdictional statute similar to the ATS.59 ([U]nlike[the U.S. ATCA], Israeli law does not permit reliance on common law orinternational law standards, which were not codified in legislation, as the legalbasis for a tort claim). Indeed, it would be difficult, if not outright impossibleto read customary law into pre-existing domestic tort law.

Israel has long disputed the applicabilityde jureof the Hague Regulationsand the Fourth Geneva Convention in the Occupied Palestinian Territories,60

although it has stated that it generally, in fact, applies the humanitarianprovisions of the Convention.61 The International Court of Justice in itsAdvisory Opinion on the Wall confirmed the views of the U.N. Security Council,

56 The estate of Rachel Aileen Corrie, et al, v The State of Israel and the Ministry of Defence, filed in theDistrict Court of Haifa, 15 March 2005 (available from the Center for Constitutional Rights,at http://www.ccr-ny.org/v2/legal/corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546 ). This is a civil claim for bodily damage.

57 Shany at pp. 48-9.58 Torture Victims Protection Act, see below under 4.3.3.59 Alien Tort Statute, another name for the Alien Tort Claims Act.60 It argues that the Palestinian Territory was not sovereign prior to its annexation by Jordan

and Egypt, and that it was/is thus not a territory of a High Contracting Party for the purposesof the Convention.

61 H.C.J. 7957/04 Maraabe et al v. The Prime Minister of Israel, June 21, 2005 (Judgment on theWall surrounding Alfei Menashe), at 14. Available from http://www.mfa.gov.il/NR/rdonlyres/11824B1A-BA6E-4B2A-8005-D091F5C0E60E/0/AlfeiMenasheruling15905.doc.



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General Assembly, the Conference of the Geneva Convention High ContractingParties, and I.C.R.C. that the Convention does apply.62

Israel has also consistently denied its obligation to apply the human rightscovenants which it has ratified in the OPT, arguing that where the relevantregime is international humanitarian law, international human rights law doesnot apply. On this, the ICJ held that the protection offered by human rightsconventions does not cease in times of armed conflict, save through the effectof provisions for derogation of the kind to be founding Article 4 of theICCPR.63 The ICJ also held that Israel is bound to apply the ICESCR and theConvention on the Rights of the Child in the Occupied Palestinian Territories.64

In a number of recent administrative decisions, the High Court of Justicehas held that humanitarian law applies in the OPT.65 However, the courtsdeference to the military decision-makers still make that High Court Decisionshave merely become strong legal precedents legitimising the illegal practicesof the Occupying Power.66

2.3.3 Pursuing complicit actors in Israeli Courts

Having as good as eliminated the possibility of bringing a case in Israel or theOccupied Palestinian Territories against the Israeli military or civil authorities,it is worth considering other potential defendants. However, there is noprecedent in Israeli law for claims against corporations said to be complicit inthe Israeli militarys violations.67 Also, any complicit actors would benefit fromimmunity from suit under the Intifada Law.

2.3.4 The Intifada LawIn July 2005, the Israeli Parliament enacted a law that makes it possible torelieve the State of Israel from tort liability in cases where plaintiffs were injuredby actions committed by the Israeli security forces in the Occupied Palestinian

62 Paragraphs 89-101 of the International Court of Justices Advisory Opinion of 9 July 2004 onthe Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory(ICJ Wall AO), available from: http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm.

63 Article 4 of the ICCPR holds that certain of the Convenants provisions may be derogatedfrom in time of national emergency. (The right to life is non-derogable IHL forms lex specialishere and determines the test of what is an arbitrary deprivation of life.) See ICJ Wall AO,

supra, at pp. 102-111.64 ICJ Wall AO, pp. 112 and 113.65 HCJ 4764/04, Physicians for Human Rights et al. v. Commander of the IDF Forces in Gaza, Pisque

Din 58(5) 385, available from http://elyon1.court.gov.il/files_eng/04/640/047/a03/04047640.a03.pdf; HCJ 2056/04, Beit Sourik Village Council et al. v. The Government of Israel et al,Taqdin Elyon 2004 (2) 3035, para. 23, available from: http://domino.un.org/UNISPAL.NSF/85255e950050831085255e95004fa9c3/380fd102b1711ea48525705a00524cf6!OpenDocument.

66 Nizar Ayoub, Al-Haq 2004: The Israeli High Court of Justice and the Palestinian Intifada: AStamp of Approval for Israeli Violations in the Occupied Palestinian Territories, at p. 113.See also: Shamir, R.: Landmark Cases and the Reproduction of Legitimacy: the Case ofIsraels High Court of Justice, 19 International Journal of the Sociology of Law, pp. 45-65(1990).

67 Shany at pp. 23, 49 and 58.

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Territories. The Law of Civil Wrongs (Liability of the State) (Amendment No.7) 2005, which is an amendment to, and widening of, the eponymous law of

1952. The existing law provides, in Article 5, that the State [of Israel] is notliable for an act done in the course of a war operation of the Israeli DefenseForces. War operation is broadly defined as includ[ing] any action combatingterror, hostile acts, or insurrection, and also an action intended to preventterror, hostile acts, or insurrection that is taken in a situation endangering lifeor limb (section 1). Amendment No. 7 adds to this, in section 5B, that theState shall not be subject to liability under the law of torts for damage sustainedby any person [who is] A citizen of an Enemy State , an activist ormember of a Terrorist Organisation, or anyone who incurred damage whileacting as an agent for or on behalf of a citizen of an Enemy State, or an activistor member of a Terrorist Organisation. Aside from the designation TerroristOrganisation (defined in Israeli Penal Law68) it is clear that activist, or member(given the generally loosely organised nature of the groups aimed at) or anyoneacting on behalf of such persons, can be very broadly interpreted.

In addition to section 5B, section 5C provides that the State shall not besubject to liability under the law of torts for damage sustained in a ConflictZone due to an act performed by a member of the security forces. A ConflictZone is a zone outside the territory of the State of Israel,69 which the Ministerof Defence has declared as [such], in which the security forces acted70 orwere present in the zone within the context of a conflict(section 5C(e)). TheMinister of Defence is able to declare any zone a Conflict Zone,retrospectively, within 90 days of receipt of a claim. Also, within the first sixmonths from the publication of the law, the Minister was able to declare any

area a zone of conflict regardless of a claim being received. Both sections 5Band 5C do not apply to, inter alia, damage as a result of traffic accidents, crimesof which is convicted, or damages sustained while the victim is detained orimprisoned by the State, unless in the latter case this person after her/hisdetention again becomes an activist or a member of a Terrorist Organisationor acts on behalf of such an organisation (Annexes 1 and 2). The State includesany authority, entity or person acting on its behalf.

The Amendment applies retrospectively with respect to causes of actionthat arose on or after 29 September 2000 (i.e. the start of the second Intifada hence this law is dubbed the Intifada law), unless an action with respect tosuch a cause of action has been initiated and has reached the stage of trialitself. Any claims obviated by section 5C(a) may be assuaged by an ex gratiapayment (s. 5C(b)(1)) approved by a committee to be set up by the Ministerof Defence. As of May 2006 no such committee had yet been set up.71 Moreover,it was recently reported that the manner in which (now former) DefenceMinister Mofaz has retroactively designated zones of conflict serves to all

68 Section 91 of the Israeli Penal Law, supra, footnote 22.69 Interestingly, this is intended to include, what, for the purposes of section 5A is called the

region, namely Judea, Samaria, and the Gaza Strip (section 5A(1)).70 A question might be whether this would include action from the air.71 Yuval Yoaz: Intifada Law has barred compensation to Palestinian victims almost entirely,

Haaretz, 4 May 2006 - http://www.haaretz.com/hasen/spages/712153.html.



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but exclude the right to compensation for Palestinians.72 Israeli newspaperHaaretzreported that Justice Ministry officials had not foreseen quite how

extensively the Minister would use his power, with the number of declarationsissued, in some areas, amounting to a designation of the entire area as a conflictzone for the period 2001-2006.

A number of human rights organisations have petitioned the Israeli HighCourt of Justice to annul the law, arguing it violates the basic rights in domesticas well as international law.73 Hearings on the petition are scheduled for July2006. According to the petitioners, the law, aside from violating the IsraeliBasic Law on Human Dignity and Liberty, the principles relating to retroactiveapplication, the separation of powers, judicial independence and the stabilityof the law, the law constitutes the denial of relief for infringement of afundamental right, which amounts to the denial of the right itself.74 Specifically,the law violates the obligation to pay compensation for violations ofinternational humanitarian law (such as the failure to protect civilians asrequired by Articles 43 and 46 of the Hague Regulations of 1907, and in Article27 of the Fourth Geneva Convention) enshrined in Article 3 of the HagueRegulations,75 Article 29 of the Fourth Geneva Convention76 and Article 91 ofthe First Additional Protocol to the Geneva Conventions.77 Also, the Intifadalaw violates international human rights law, in particular, Article 2(3) of theInternational Covenant on Civil and Political Rights, which obliges the stateto compensate for breach of protected rights.78

In short, according to the petitioners, the law conveys a grave and extrememessage, to the effect that the lives and rights of these injured persons arewithout value, that the court will not grant them relief, and that the perpetrator

will be freed of all liability. Moreover, the Amending Law does not recognise the right in tort of those Palestinians whohave sustained injury, and denies this right because of their national identity, itnegates the rationale of tort laws and impairs deterrence of acts that injure

72 Ibid.73 The petition was submitted by HaMoked, Adalah, ACRI, Al-Haq, The Palestinian Centre for

Human Rights, BTselem, Physicians for Human Rights, The Public Committee Against Torturein Israel, Rabbis for Human Rights; see ACRI press release 01/09/05, at http://www.acri.org.il/english-acri/engine/story.asp?id=223 . The petition is available from Adalah, at http://

www.adalah.org/eng/complaw.php.74 Adalah et al v. Minister of Defence et al, Petition, supra, at paras. 6, 7, 89.

75 A belligerent party which violates the provisions of the said Regulations shall, if the casedemands, be liable to pay compensation. It shall be responsible for all acts committed bypersons forming part of its armed forces.

76 The Party to the conflict in whose hands protected persons may be is responsible for thetreatment accorded to them by its agents

77 A Party to the conflict which violates the provisions of the Conventions or of this Protocolshall, if the case demands, be liable to pay compensation. It shall be responsible for all actscommitted by persons forming part of its armed forces.

78 Each State Party to the present Covenant undertakes: (a) to ensure that any person whoserights or freedoms as herein recognised are violated shall have an effective remedy,notwithstanding that the violation has been committed by persons acting in an official capacity.See also: Human Rights Commission: General Comment 31 on the Nature of the GeneralLegal Obligations on States Parties to the Covenant CCPR/C/21/Rev.1/Add.13, 26 May2004, para. 15, available from http://www1.umn.edu/humanrts/gencomm/hrcom31.html.

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Palestinians. In doing so, the Amending Law provides that, in the kinds of injuryand damages to which it applies in the Occupied Territories, there is neither law

nor judges.79

2.4 Palestinian jurisdiction the unexplored option?

Under Oslo II, Annex IV Article I on criminal jurisdiction, the Palestiniancourts retain jurisdiction for all criminal cases exceptthose relating to crimescommitted by Israeli citizens, tourists, or crimes committed in settlementsor military zones.80 Although it is not possible for the Palestinian courts tocommence criminal proceedings against (members of) the Israeli armed forces,it may be worth considering an action against a non-Israeli who is complicit inthe action carried out by the military. Also, the Oslo II Agreement does notexclude the Palestinian courts jurisdiction over criminal matters relating to

foreign corporations and, indeed, Palestinian criminal law recognises criminalliability of legal persons.81 Thus, prosecuting corporations in the Palestiniancourts may be an option meriting further investigation, although here, too,political considerations would likely play an inhibiting role.82

2.5 Domestic enforcement: conclusion

In conclusion, it would seem that the Israeli militarys actions, at least actionsof the type referred to in the Caterpillarcomplaint, are largely able to escape

judicial scrutiny, at least on the domestic level. The next logical step for thePalestinians is thus a move further afield, basing their claim on a breach ofinternational law or domestic law actionable abroad.83

79 Adalah et al v. Minister of Defence et al., Petition, supra, at paras. 2 and 3.80 Interim Agreement on the West Bank and Gaza, (supra, footnote 23), Annex IV Protocol

concerning Legal Matters. Article I Criminal Jurisdiction.81 The Jordanian Criminal Law Number 16, 1960, The General Part (5), Article 74: Legal

persons have legal liability resulting from actions committed by their directors, board members,representatives, or employees when they conduct these actions in the name of the legal person,or via one of its subsidiary legal persons, as a legal person. Available (in Arabic) from BirzeitUniversitys Institute of Law Palestinian Law Database Al Muqtafi, at http://213.244.124.245/en/index.asp . I am grateful to Dr. Nabih Saleh, Professor of Criminal Law at Al Quds University,

Abu Dis, Palestine, for confirming this point, and to Munir Nuseibah for research assistanceand translation.

82 In defence against a civil claim for compensation in a Palestinian court, the corporation

might argue it is to be considered an agent of the Israeli military, thus allowing it to benefitfrom the exception from Palestinian civil jurisdiction mentioned above. This may, however,mean the corporation admits to a relationship with the military that is too close for legalcomfort, one which would carry commensurate responsibilities. Ultimately, on the Israelilevel, the corporation would benefit from the immunity afforded by the Intifada Law.Moreover, any crime committed by the corporation will likely have been committed in amilitary zone, or in the context of a military operation, in which case the Israeli courts have

jurisdiction.83 In the absence of local remedies, the only legal recourse for Palestinians is to seek remedies

in other states courts, Al-Haq: Rights Without Remedies: The Israeli Compensation Law,Occasional Paper, October 2005. Of course there are huge material obstacles to be overcomebefore a claim can be brought elsewhere, including finding lawyers to represent the victims(occasionally the lawyers will find the victims), arranging financing, collecting evidence, etc.Thus the ability to bring a case abroad should not be overestimated.



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The doctrine of sovereign immunity precludes the courts of one statereviewing another states actions. Its corollary, the principle of non-

intervention, prevents one state from interfering in another states affairs.Despite the promise of international human rights law, and internationalhumanitarian law, individual victims of violations perpetrated by their ownstate, or the occupying state, depend on that state to become a party to therelevant instruments, for the domestic courts to recognise and apply the norms,and for the state to allow the international mechanisms for enforcement to beavailable to individuals. The Palestinians, without a state, do not have theoption to ratify the various instruments and join the international system onan equal footing. Palestinians living under Israeli occupation do not have accessto international procedures or fora that their occupier does not make availableto them.84 They are dependent on courts that subject their rights and intereststo considerations of national (i.e. Israeli) security, and legislatures that theyhad not elected writing off their rights in a manner that they are unable tocounter.

Usefully for the Palestinians, existing in this lawless place, there is theplaceless law of universal jurisdiction.85 Universal jurisdiction allows (orobliges) every court in every state to consider cases of crimes (or arguably alsocivil disputes86) that are so serious as to offend mankind as a whole. Theinitiative on bringing a universal jurisdiction case abroad would come fromvictims represented by individual cause lawyers or non-governmentalorganisations making this a form of privatised humanitarian interventionby law. In recent years, a number of Israeli individuals have been the subjectof assertions of universal jurisdiction. High profile examples include the

attempt to try Ariel Sharon in Belgium for his role in the Sabra and Shatillamassacre, the attempted arrest in London of General Doron Almog, and the

84 Israel has not ratified the Rome Statute of the International Criminal Court, nor the additionalprotocol to the ICCPR allowing for individual complaints to be made (Optional Protocol tothe International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, entered into force23 March 1976, available at http://www.unhchr.ch/html/menu2/8/oppro.htm).Hypothetically, it could be possible for a (any) state to challenge Israeli violations of ergaomnesobligations in the International Court of Justice, as Israel attracts state responsibility forits breach of an erga omnes obligation, which gives every other state the right to demandcessation of the wrongful state of affairs: Article 48 of the Draft articles on Responsibility ofStates for internationally wrongful acts adopted by the International Law Commission at its

Fifty-third session (2001) (extract from the Report of the International Law Commission onthe work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session,Supplement No. 10 (A/56/10), chp.IV.E.1). However, Israel would still have to (voluntarily)subject itself to the ICJs jurisdiction.

85 I owe this apt phrase to Laurie King-Irani, who coins it in, Of Placeless Laws and LawlessPlaces: Does International Justice have a Local Address? The Electronic Intifada, 16 September2003, available from: http://www.ccmep.org/091703_21_septembers_ago_laurie_king.htm. In the U.S., the Alien Tort Claims Statute is a type of universal jurisdiction statute, though itprovides only for a civil claim to be made. Other domestic jurisdictions have similar enablingstatutes, though arguably none are needed for the domestic enforcement of internationalcriminal law (Ferdinandusse, W.: The Direct Application of International Criminal Law in NationalCourts, C.U.P., 2006).

86 See, e.g. Chatham House International Law Discussion Group, Meeting Summary on UniversalCivil Jurisdiction: www.chathamhouse.org.uk/pdf/research/il/IL200606.pdf.

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class action instituted against former Shin Bet director Avi Dichter for his rolein the death of several Gaza City residents after a one tonne bomb was

allegedly used for a targeted assassination in 2002.87 Another option, in addition to pursuing individuals within the state or

military apparatus, is to hold to account those actors without whose support,supply or cooperation the oppressive state could not or would not exist.Companies and governments often have highly symbiotic relationships,including at a time of war or occupation. In the post-World War II Nurembergtrials, it was recognised that without the support and cooperation of industry,the Hitler War Machine would not have been able to do what it did, and theTribunal translated this political and economic support into legal liability.88

Subsequently, in light of this, billions of dollars were paid out by a number ofcompanies to holocaust survivors in compensation for their losses. 89

In the context of the Israeli occupation.90 one company that caught thepublic eye and imagination, was Caterpillar. Caterpillar, Inc. is one of the mostvisible, and most obviously branded, suppliers of materiel to the Israeli armed

87 A number of attempts have been made at prosecuting individuals accused of atrocities vis visthe Palestinians. On the criminal prosecution commenced (but abandoned for reasons ofimmunity) against Ariel Sharon for his role in the Sabra and Shatila massacres see Belgium,Tribunal of First Instance Brussels (Kamer van Inbeschuldigingstelling), In re Sharon andYaron, 26 June 2002, and the special dossier included in Volume XII ofThe Palestine Yearbook ofInternational Law(2002/2003). For details on the attempted arrest of General Doron Almogin London, see: Daniel Machover and Kate Maynard: The UKs duty to universal jurisdiction,The Times, 4 October 2005. Also, in December 2005 Avraham Dichter, the former director ofthe Israel Security Agency (formerly known as the General Security Service, also known as

Shin Bet), was served in New York with a class action commenced by several Gaza City families,represented by the Center for Constitutional Rights. Dichter is accused of participating inthe decision to drop a one-tonne bomb on an apartment block in a residential area of GazaCity in 2002, and having command responsibility for the action, which is said to have killed 15people, including eight children, and injured 150. United States District Court Southern Districtof New York, Civ No. 05 CV 10270, Complaint Filed under Seal, Class Action: Raed MohamadIbrahim Matar and others v. Avraham Dichter, 7 December 2005. Document available at: http://

www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID=ccDzL2NjXs&Content=678;Belhas and others v. Yaalon, USDC District of Columbia. Case No. 1:05CV02167. Class actionagainst Lt. Gen. (ret.) Moshe Yaalon, former Head of the Intelligence Branch and formerChief of Staff of the IDF, for war crimes and other human rights violations, served on 15December 2005. The class action lawsuit is in connection with the hundreds of civilian deathsand injuries resulting from the 1996 shelling of the United Nations compound in Qana,Lebanon: see http://www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID=

eqVBNxvlcx&Content=682.88 See, egThe United States of America v. Carl Krauch, et. al., (IG Farben Case) Trials of War Criminals,

Vol VIII, p1081.89 See Ramasastry, A.: Corporate Complicity from Nuremberg to Rangoon; An examination of

Forced Labor Cases and their Impact on the Liability of Multinational Corporations, 20Berkeley J. Intnl L. 91 (2002), Stephens, B.: The Amorality of Profit: TransnationalCorporations and Human Rights, 20 Berkeley J. Intnl L. 45 (2002). Similarly, in ApartheidSouth Africa the government was propped up by several large financial institutions andcompanies, without whose support the countrys economy, and its regime, would havecollapsed. For the fate of this litigation, see below at [] and generally, Swart, M.: BeyondRepair: Accomplice Liability under International Law and the Apartheid Litigation Cases,unpublished draft paper, 2005. Document on file with the author.

90 For the economic significance of the occupation on the Israeli economy, see, e.g. Nitzan, J.and Bichler, S.: The Global Political Economy of Israel, Pluto Press, 2002, at p. 120.



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forces. Its enormous, armoured, D9 and D10 bulldozers with their strikingCAT logos were easily identified as a symbol of the destruction caused by the

Israeli occupation.91

3 THE CASE IN INTERNATIONAL LAW

3.1 War crimes of the Nazi-era companies

Corporate liability for war crimes was first recognised at the post-World War IINuremberg trials. There, the motivation was to leave no stone unturned inbringing perpetrators of the atrocities to justice, and several directors, managersand sales representatives of some of Germanys best-known corporations werehanged for their contribution to the war effort. One rationale for trying theindustrialists at the Nuremberg tribunals was the perceived collective nature

of the Nazi crimes. The holocaust and other crimes occurred pursuant to apolicy designed by the Nazi leadership and implemented by the military, thebureaucratic apparatus and industry. The Allies had spent years deciding whoto try and on what basis. In the end a number of representative figures wereselected, and indicted on the charge of being part of a criminal conspiracyto wage a war of aggression and commit other crimes. In addition, a numberof organisations were declared criminal organisations which mademembership of those organisations an offence punishable by death. This, itwas hoped, would speed up the prosecution of the thousands that were notindividually charged. A number of industrialists were also individually charged.The wording used by the tribunals who, in their judgment, frequently spoke

of crimes committed by the company, shows that the individuals (usuallydirectors) were seen as a pars pro toto for the company.92

In the trial of the industrialists on the conspiracy charge, the tribunalestablished that they were involved in a common plan. The levels of involvement

91 The company was sent letters by individual human rights groups from 2001, and it becamethe subject of a campaign organised by a coalition of human rights organisations in 2002, seethe campaign by, among others, Jewish Voice for Peace: http://www.catdestroyshomes.org/ .

92 Clapham, commenting specifically on the Krupptrial, notes: The language and reasoning ofthe tribunal indicates that it was the Krupp firm that was essentially at the heart of this set ofconvictions. A careful examination of the judgment reveals an acceptance of the notion thatin some cases the corporation itself committed the war crime and its directors were beingconvicted for belonging to the organization that had committed a criminal act. (Clapham,

A.: The complexity of international criminal law: Looking beyond individual responsibilityto the responsibility of organizations, corporations and states, in Thakur, R. and Malcontent,P. (eds):From Sovereign Impunity to International Accountability: The Search for Justice in a World ofStates, UNU Press (2004), at p. 238). Indeed, it is argued that the selection of representativeindividuals for prosecution, and the attempted substitution of the Krupp director by his son,suggests that it was the organisations, rather than the individuals, that were the real target ofthe allies (Overy, R: The Nuremberg trials: international law in the making, in Sands, P. andBooth, C. (eds.):From Nuremberg to The Hague: The Future of International Criminal Justice, C.U.P.,2001, at pp. 109-156).

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sufficient for a conviction ranged from very actively involved,93 to must havebeen informed of the criminal nature of the Nazi system.94 The tribunal, on

the charge of membership of a criminal organisation, convicted oneindividual for having remained in the S.S. voluntarily throughout the war,with actual knowledge of the fact that that organization was being used for thecommission of acts declared criminal by [the Allies].95

The prosecutors deliberately targeted firms to highlight the role thatorganisations had played during the war and the symbiotic relationship theyhad had with the Hitler regime.96 The trials of the industrialists (Flick,97IGFarben and Krupp98) indicate that the corporate organisations and theindividuals acting in them were perceived to be part of this war machine, oreven, the real villains, the Nazis paymasters.99

In IG Farben the USMT VI found that the company had committed warcrimes (pillage/spoliation, use of forced labour, participation in a war ofaggression) and tried its directors both individually and collectively. The 24directors were convicted of one or more of the following charges: war crimesand crimes against humanity through the plundering and spoliation ofoccupied territories, and the seizure of plants both in Austria, Czechoslovakia,Poland, Norway, France, and Russia, war crimes and crimes against humanitythrough participation in the enslavement and deportation to slave labour ona gigantic scale of concentration camp inmates and civilians in occupiedcountries, and of prisoners of war, and the mistreatment, terrorisation, tortureand murder of enslaved persons, and membership in a criminal organisation,

93 Judgment(Goering):International Military Tribunal, Trial of the Major War Criminals Beforethe International Military Tribunal, Nuremberg, Germany, 14 November 1945, 1 October1946, 29 (1947).

94 Judgment (Hess), ibid.95 United States of America v. Karl Brandt et al. (Medical Case) NMT 1947.96 Clapham, A.: The complexity of international criminal law: Looking beyond individual

responsibility to the responsibility of organizations, corporations and states, in Thakur, R.and Malcontent, P. (eds):From Sovereign Impunity to International Accountability: The Search for

Justice in a World of States, UNU Press (2004), at p. 233. Apparently Clement Attlee (the then

U.K. Prime Minister) argued forcefully that business leaders should be dragged into thenet. He called for a cull of German businessmen as an example to the others. Overy, R:supra. footnote 92 at 10.

97 The United States of America v. Friedrich Flick, et al. (Flick) Flick, owner of the Flick KG group ofcompanies, was found guilty of war crimes and crimes against humanity by participating inthe deportation and enslavement of the civilian populations of countries and territories underthe belligerent occupation of or otherwise controlled by Germany, and of concentrationcamp inmates, for use in slave labour in Flick mines and factories, crimes and crimes againsthumanity through the plundering and spoliation of occupied territories, and the seizure ofplants both in the west (France) and the east (Poland, Russia), and membership in the NSDAPand the Circle of Friends of Himmler. Nuremberg Military Trials, Reports available fromthe Mazal Library: http://www.mazal.org/archive/nmt/08/NMT08-T1309.htm .

98 Trials of War Criminals, Vol. VIII, p1081.99 Overy, supra, footnote 92 at p. 9.



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the SS.100 The IG Farbendefendants were found not guilty on the charge ofconspiracy.101

In IG Farbenthe tribunal emphasised the profit motive as being part of themens reaof the property crimes contained in the indictment.102 These wereconstituted by breaches of the 1907 Hague Regulations, about which theTribunal said the following:

the Hague Regulations are broadly aimed at preserving the inviolability of propertyrights to both public and private property during military occupancy. They admitof exceptions of expropriation, use, and requisition, all of which are subject to well-defined limitations set forth in the Articles. Where private individuals, including

juristic persons, proceed to exploit the military occupancy by acquiring privateproperty against the will and consent of the former owner, such action, not beingexpressly justified by any applicable provision of the Hague Regulations, is in violationof international law. The payment of a price or other adequate consideration does

not, under such circumstances, relieve the act of its unlawful character. Similarlywhere a private individual or a juristic personbecomes a party to unlawful confiscationof public or private property by planning and executing a well-defined design toacquire such property permanently, acquisition under such circumstancessubsequent to the confiscation constitutes conduct in violation of the HagueRegulations.103

The idea of the corporation as an instrumentality in the hands of criminalindividuals was also offered in IGFarben: one may not utilise the corporatestructure to achieve an immunity from criminal responsibility for illegal actswhich he directs, counsels, aids, orders or abets with the knowledge of theessential elements of the crime.104 This precedent avoids the requirement of

intent towards the criminal act in itself.The U.K. Military Court in The Zyklon B. Case105 also found the concept ofaccomplice liabilityby a corporationfor international crimes. As a result of theirconviction, a number of the companys officers were executed, for having

100 IG Farbenat p. 10.101 See Clapham supra, footnote 92 at p. 167. Judge Herbert filed a dissenting opinion, in

which he argued that all defendants should have been found guilty on count 3 (Conspiracy)of the indictment. He stated that ...the record shows that Farben willingly cooperated andgladly utilized each new source of manpower as it developed. Disregard of basic humanrights did not deter these defendants. And Willing cooperation with the slave laborutilization of the Third Reich was a matter of corporate policy that permeated the wholeFarben organization... For this reason, criminal responsibility goes beyond the actual

immediate participants at Auschwitz. It includes other Farben Vorstand plant-managers andembraces all who knowingly participated in the shaping of the corporate policy. NurembergMilitary Trials, Reports available from the Mazal Library: http://www.mazal.org/archive/nmt/08/NMT08-T1309.htm.

102 Clapham (2004) at p. 169. Profit is the objective of pillage, plunder and spoliation.103 Mazal Library. (emphasis added). Clearly this statement by the Tribunal has relevance to

corporations operating in occupied territories today.104 IG Farbenat p. 1153. For a related line of reasoning, see also Koh, H.: Separating Myth from

Reality About Corporate Responsibility Litigation, Journal of International Economic Law7(2) (2004), 263 at p. 265: The commonsense fact remains that if states and individuals canbe held liable under international law, then so too should corporations, for the simplereason that both states and individuals act throughcorporations.

105 Trial of Bruno Tesch and Two Others (The Zyklon B Case). Brit. Mil. Ct. Hamburg 1946, inUnited Nations War Crimes Commission, 1 Law Reports of Trials of War Criminals 93 (1947).

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supplied the gas that was used in the gas chambers of the Nazi concentrationcamps. The prosecution was based on Article 46 of the 1907 Hague Regulations,

which provides that: Family honour and rights, individual life and privateproperty, as well as religious convictions and worship must be respected. TheArticle, which falls under the section, Military Authority over the Territory of theHostile State, was intended to refer to acts committed by the occupyingauthorities in occupied territory. Importantly, in the Zyklon B. Case, the articlewas interpreted so as to apply to the supply of goods by the defendants companyto be used to kill prisoners. Here, also, the officers were held to be liable foracts said to have been committed by the company.106 The mental element ofthe crime consisted merely of the officers knowing the gas (which also hadhygiene-related uses) would be used in the murders which knowledge was infactinferredin the case of the defendant Weinbacher. The inference was basedon the argument that a competent business person in a leadership positionwill necessarily know what his main business operations are.107 The officerswere not shown (or required to have had) intentvis vis the murders; itsufficed that they had simply intended to make a profit from the trade.108

The Nuremberg and subsequent trials show that holding a company, even asupplier, to account for its commercial dealings with a regime committing warcrimes and human rights abuses, is not so far-fetched, after all.

4 THE ALIEN TORT CLAIMS ACT:A PORTAL TO JUSTICE?

Having identified a potential defendant, the search continues for a court thatwill hear the case. No international tribunal is currently available for this kindof action.109 Universal jurisdiction can be employed. In the United States themechanism of the Alien Tort Claims Act (ATCA), a 200-year-old statute,provides as follows:

106 Clapham, A.: The Question of Jurisdiction Under International Criminal Law Over LegalPersons: Lessons from the Rome Conference on an International Criminal Court, inKamminga, M., and Zia-Zarifi, S. (eds.), Liability of Multinational Corporations under InternationalLaw, Kluwer law International, 2000, at p. 140.

107 See also the Mauthausen Concentration Camp Case, where the USMT found that every official,governmental, military and civil, every employee, whether a member of the Waffen S.S.,

Allgemeine S.S., a guard, or civilian, was criminally liable as an accomplice, as it wasimpossible for the accused not to have acquired a definite knowledge of the criminalpractices and activities taking place in the camp. See http://www.yale.edu/lawweb/avalon/imt/imt.htm#proc .

108 For an insightful discussion of the profit motive, see Stephens, B.: The Amorality of Profit:Transnational Corporations and Human Rights, 20 Berkeley J Intnl L. 45.

109 The International Criminal Court has explicit jurisdiction over natural persons. This isnormally understood to exclude jurisdiction over legal persons. However, the ICC statutedoes not exclude jurisdiction over legal persons: its Article 25(1) reads: The Court shallhave jurisdiction over natural persons pursuant to this Statute. The court does explicitlyassert its jurisdiction over individuals as members of a group: Article 25 (3)(d) states thatindividual criminal responsibility is incurred where the individual contributes to thecommission of a crime within the jurisdiction of the court committed by a group of personsacting with a common purpose.



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Section 1350. Aliens action for tortThe district courts shall have original jurisdiction of any civil action by an alien for a tort

only, committed in violation of the law of nations or a treaty of the United States.110

This Act thus converts a breach (including a breach amounting to aninternational crime) of the law of nations or a treaty of the U.S. into a tortactionable by alien plaintiffs in the U.S. federal courts. The ATCA was revivedby the Center for Constitutional Rights in the 1980s in the landmark case ofFilrtiga v. Pea-Irala.111 This was a case brought by the father of a Paraguayancitizen who had been tortured to death, against the police officer thoughtresponsible. It related entirely to events occurring outside the U.S. and involvingnon-U.S. citizens. Importantly, the court construe[d] the ATS,112 not asgranting new rights to aliens, but simply as opening federal courts foradjudication of the rights already recognised by international law.113Filrtiga,

considered a landmark decision for its commitment to giving effect to thepurpose of international law, spawned a wave of (often human rights related)cases brought by non-U.S. citizens.114 Of interest in the context of the Israeli/Palestinian context is Tel-Oren v. Libyan Arab Republic,115 filed shortly afterFilrtiga. In this case the survivors and legal representatives of persons killedon a civilian bus in Israel sued the republic of Libya and the Palestine LiberationOrganisation. The case was dismissed for lack of subject matter jurisdiction, with each of the three judges offering a different explanation for theirdecision.116

The question of whether the U.S. Supreme Court would endorse the use of ATCA in human rights cases was answered in June 2004 in Sosa v. Alvarez-Machain.117 In Sosa, the Supreme Court affirmed theFilrtigaline of cases, to

the extent that ATCA claims must rest on a norm of international characteraccepted by the civilized world and defined with the specificity comparable tothe features of the 18th Century paradigms we have recognised.118 The Court

110 USC Title 28.111 Filrtiga v. Pea-Irala630 F.2d 876 (2d Cir. 1980).112 Alien Tort Statute, another name for the ATCA.113 Filrtiga, at p. 20.114 For example, against the Argentine General Suarez-Mason: Quiros de Rapaport v. Suarez Mason,

No. C87-2266 (N.D. Cal. 11 April 1989), Martinez-Baca v. Suarez-Mason, No 87-2057 (N.D.Cal. 22 April 1988); Forti v. Suarez-Mason, No. C-87-2058 (N.D. Cal. 20 April 1990) (final

judgment), against former Philippine dictator Ferdinand Marcos and his daughter (e.g. InRe Estate of Marcos Litigation, D.C. No. 95-15779 9th Cir., 5 May 1995) and against formerHaitian dictator Prosper Avril (Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) (final judgment).For an overview, see Stephens, B. and Ratner, M.: International Human Rights Litigation inU.S. Courts, Transnational Publishers, Inc. 1996.

115 726 F2d. 774 (D.C. Cir. 1984).116 See Born, G.: International Civil Litigation in US Courts: Commentary and Materials, Kluwer

Law International (2000) at p. 36; Stephens and Ratner (1996) (supra, footnote 114) at pp.20-21. The latter state (at p. 20) that this case had limited impact because of its split opinionand unusual fact pattern.

117 Sosa v. Alvarez-Machain, 124 S Ct. 2739 (2004); see also Center for Constitutional Rights Sosadocket http://www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID=M8JpE6un9x&Content=396.

118 Sosaat p. 749.

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approved119 cases which permitted ATCA claims for violations of internationalnorms that are specific, universal and obligatory.120

SinceFilrtiga, the ATCA jurisdiction has developed in a trend towards the widening of the scope both regarding the circle of defendants and theapplicable human rights norms. Kadic v Karadzic121 (Kadic), for example,expanded the scope of ATCA litigation by confirming that certain norms ofinternational law, including genocide and war crimes, summary execution,rape and other forms of torture committed in pursuit of these crimes, applyto private actors and could thus form the basis of an ATCA claim. 122 Thewidening of the scope of actors is supported by the philosophy that, in orderto serve the purposes of the law, i.e. protection of the rights of the individualcitizens, it is imperative to regulate all those actors that are potentially capableof affecting those rights.123 Also, it echoes the origins of the ATCA, which wasenacted to provide a forum for (amongst others) victims of piracy perhapsthe ultimate private, international actors.

4.1 Corporations as subjects of international law under ATCA

The first set of cases against corporations under ATCA wereDoe v. UnocalandRoe v. Unocal, commenced in 1996.124 The facts of the Unocalcases are typicalof this generation of ATCA cases, in which the corporation enters into a businessarrangement with a repressive regime or its instrumentalities to facilitatenatural resource extraction.125 Unocal was accused of using slave labour in itsplants in Burma, in collusion with the Burmese dictatorship. Following thiscase, in the late 1990s, a number of cases were brought against the other

major oil and mining companies.126 Subsequently, cases were also broughtagainst financiers of, and suppliers to, oppressive regimes,127 such as the SouthAfrican Apartheid government. A major series of cases that is still ongoing is

119 In a move contrary to the goodwill shown by the Judiciary inFilrtiga, the U.S. Departmentsof Justice and State filed a brief in support of the defendantSosa, seeking to eliminate theuse of this statute by survivors of human rights violations.

120 Sosaat p. 748, and see Coliver, S., Green, J., Hoffman, P.: Holding Human Rights ViolatersAccountable by using International law in US Courts: Advocacy Efforts and ComplementaryStrategies, 19Emory Intl L Rev169 Spring, 2005.

121 Kadic v. Karadzic70 F. 3d. 232 (1995).

122 Like many ATCA cases, this case did not proceed to trial on the merits. Most precedents setby ATCA cases are in fact based on court decisions in the preliminary stages of litigation, forexample where a petition to strike out a case is dismissed and the court decides that the caseis allowed to proceed. Most ATCA cases have been dismissed on jurisdictional grounds, orhave been settled.

123 For a similar argument, see, Schabas, W.: Relevant Lessons form the Ad Hoc Tribunals,PYBIL,Vol. XII (2002/2003) at p. 5.

124 Doe v. Unocal Corp., 963 F.Supp. 880 (C.D. Cal.1997); Roe v. Unocal Corp., 70 F. Supp. 2d 1073(C.D. Cal 1999).

125 Coliver et al. (2005) at 209.126 E.g. Shell: Wiwa v. Royal Dutch Petroleum Co., F.3d, (2d Cir. 2000). (Wiwa), Chevron: Bowoto,

et. al. v. Chevron, et. al. Case No. C99-2506 (N.D. Cal. 2000) (Bowoto), Freeport McMoran(Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 373, 382- 84 (E.D. La. 1997).

127 Barclays and Citigroup, amongst others, in the Apartheid Litigation Cases.



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the Holocaust Litigationcases.128 In the ATCA cases involving corporations, theU.S. courts make use of the precedents set by the Nuremberg trials of the

industrialists, and use the concepts and doctrines contained in the statutes,and developed through the case law, of international courts and tribunalssuch as the International Criminal Tribunal for the Former Yugoslavia (ICTY)and the International Criminal Tribunal for Rwanda (ICTR).

The ATCA line of cases also connects with the concept of the legal personin international law more generally. Legal person liability (including criminalliability) exists in international instruments regulating labour conditions,nuclear treaties, oil spill treaties, hazardous waste conventions and anti-briberyconventions. A recent addition to this is the legal regime surrounding the waron terrorism. International conventions and Security Council resolutions129

contain both legal person liability, and liability for aiding and abetting, eventhrough such un-proximate activities as financing. Similarities clearly exist withnationally and internationally existing regimes on money laundering anddealing in unlawfully acquired goods.130

4.2 Corporate complicity in ATCA litigation

The Nuremberg and subsequent trials show a development of the concept ofconspiracy, the requirements for a conviction in terms of participation andintent, and the nascent concept of legal person liability for internationalcrimes.131 The ICTY and ICTR, starting from the liability provisions in theirrespective charters, built on these concepts to come to comprehensive theoriesof responsibility which in turn are used by domestic courts including the U.S.

128 See, e.g., In re. Assicurazioni Generali SpA. Holocaust Insurance Litigation, MDL 1374, M21-89(MBM) Opinion and Order, 25 September 2002.

129 For example, UNSC Resolution 1373, asserts that all states shall criminalise the wilfulprovision or collection of fundsin the knowledge that they are to be used, in order tocarry out terrorist attacks. 28 September 2001, and see, UNSC Resolution 1368 which stressesthat those responsible for aiding, supporting or harbouring perpetrators of the 11 Septemberattacks will be held accountable [sic].

130 The criminal liability of legal persons specificallyis provided for in, for example, the OECDConvention on Combating Bribery of Foreign Public Officials in International BusinessTransactions, (17 December 1997, reprinted in 37 I.L.M. 1 (1998)), and the Basel Conventiono

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