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In July 2008, the village council of Bil’in, located in the West Bank, and the head of the village council filed a lawsuit in Montreal against two Canadian companies, Green Park International and Green Mount International. They claimed that Green Park and Green Mount constructed buildings in Bil’in as part of an illegal Israeli settlement that violates the Geneva Conventions. The lawsuit alleged that Green Park and Green Mount were liable for conspiring with and aiding and abetting Israel in committing war crimes. Article 49 of the Fourth Geneva Convention prohibits an occupying power from “transfer[ing] parts of its own civilian population into the territory it occupies.”
On September 18, 2009, Justice Louis-Paul Cullen dismissed the lawsuit under the doctrine of forum non conveniens. Although the judge found that a defendant’s participation in war crimes could potentially lead to civil liability in a Quebec court, he ruled that Israel was a more proper forum for the lawsuit. Bil’in had argued that the Israeli courts would not consider a case about the legality of settlements in the West Bank (i.e. the courts would rule the case “non-justiciable”) and so they were forced to pursue the lawsuit in Canada. Justice Cullen, however, looked at various Israeli cases submitted to him and found that those judgments did not completely close the Israeli courts to Bil’in. He ruled, rather, that the Israeli courts might consider Bil’in’s claim that the construction of the specific settlement violates the Geneva Conventions, and because the case has a much closer connection to Israel than Canada, Justice Cullen dismissed the lawsuit.
Importantly, Justice Cullen ruled that a war crime could be the subject of a civil lawsuit in Quebec: “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 [in Quebec]… In theory, a person would therefore commit a civil fault [in Quebec] 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.”
Among the issues of interest to CCIJ was the defendants’ assertion that they are immune from suit under the State Immunity Act. Justice Cullen refused to grant them immunity, ruling that they were alleged to be acting in their own capacity and not as agents of Israel.
On August 11, 2010, the Quebec Court of Appeal upheld Justice Cullen’s dismissal of the case on forum non conveniens grounds. The Supreme Court denied leave to appeal, so the case in Canada has come to an end.