London Session of the Russell Tribunal on Palestine 20Th to 22Nd November 2010 Expert's Presentations – INDEX
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London session of the Russell Tribunal on Palestine 20th to 22nd November 2010 Expert's presentations – INDEX Day One - Saturday 20th of November The Legal Framework relevant to corporate conduct Richard Hermer QC Yasmine Gado Dr William Bourdon Implications of corporate activities in and around settlements Dr Dalit Baum Hugh Lanning Wael Natheef Adri Nieuwhof Ghaleb Mashni John Dorman Trade and labelling of settlement goods Salma Karmy Christophe Perrin Nancy Kricorian and Rae Abileah Phon Van Den Biesen Genevieve Coudrais Day two - Sunday 21st of November Financial services sector Merav Amir Mario Franssen Saskia Muller The security industry and the war industry John Hilary Maria Lahood Josh Ruebner Merav Amir / Dr Dalit Baum Shir Hever and Jamal Juma'a Paul Troop Chris Osmond Ben Hayes 1 REDRESS FOR PALESTINIAN VICTIMS OF HUMAN RIGHTS ABUSES IN THE COURTS OF ENGLAND & WALES1 Richard Hermer QC - Doughty Street Chambers, London This paper would not have been possible without the input of Andrew Sanger of the University of Cambridge who provided the Tribunal with the first draft of this document based upon his careful and erudite researches. Although all errors are mine, he should be considered as co-author. 1. INTRODUCTION The Tribunal have asked me to consider whether, and if so how, English law could provide remedies to victims of human rights abuses by reference to a number of specific examples. Whilst I remain happy to talk to these examples at the hearing, I hope I can be forgiven for thinking that it is likely to be of greater assistance to the Tribunal if I provide an overview of the basic components of English law in so far as they relate to redress and accountability for victims of human rights abuses. This paper considers civil law remedies.2 As I will explain in detail below, there are two broad categories of English civil law that could be utilised to assist victims, namely public law and private law. Public law regulates the behaviour of the State and other public bodies and permits judicial review of the legality of their actions. It is confined solely to the actions of UK public bodies; there would be no possibility of bringing a claim directly against the State of Israel or any Israeli public bodies (such as the IDF), because they enjoy immunity from suit before the English Courts.3 Similarly no action could lie against Israeli diplomats based in London because they enjoy diplomatic immunity. A public law challenge would therefore focus upon the legality of the acts and omissions of UK public bodies in so far as they have impacted upon Palestinian victims. As we explain below, some attempts to utilise public law in the context of Israel/Palestine have not been successful but there still remains the possibility of successful challenges if formulated on an appropriate basis. In contrast to public law, private law regulates the relationship between private entities, be they individuals or large corporations. The bedrock of English private law is tort law, premised upon the recognition in law 1 Scotland and Northern Ireland have separate legal systems. 2 Considerations of criminal liability are excluded from this paper; see Daniel Machover and Paul Troop etc. 3 The case of Jones v UK and Mitchell & Ors v UK (Application Numbers: 34356/06 and 40528/06) is currently pending before the European Court of Human Rights. This is a challenge to the principle of State Immunity in the context of allegations of torture. If that claim is successful then there may be the possibility of English Courts entertaining private law claims against Israeli officials accused of torture, albeit under carefully prescribed circumstances. 2 of a ‘civil wrong’ committed by one private entity on another and giving the victim the right to redress. In this paper we consider how tort law might be utilised to permit redress for victims of human rights abuses in circumstances in which it is alleged a multinational corporation (MNC) has been involved. One other basic tenant of English law is worth highlighting at the outset, namely the status of international law. England and Wales are dualist legal systems, by which we mean domestic law has primacy over international law – the latter is only of direct effect in circumstances in which Parliament has expressly incorporated it into domestic law. Thus, whilst the United Kingdom has ratified a very large number of international conventions, which bind this country on the international stage, relatively few of them have been incorporated into domestic law. Thus, the status of unincorporated international law treaties in both public and private law claims is relatively limited – they cannot be relied upon directly by a claimant but rather they are of persuasive impact, not least because domestic law will often be interpreted on the basis that it is deemed to be consistent with international law. 2. PUBLIC LAW As stated above, public law claims, brought by way of an application for judicial review, are challenges to the legality of the acts and omissions of public bodies. The law adopts a liberal definition of who amounts to a public body; for example, the following would all be amenable to judicial review: Government bodies – e.g. government ministers, departments and agencies, local authorities, health authorities, the police, prisons, schools, courts, tribunals and regulatory and supervisory bodies. Private bodies that are authorised by Parliament and/or that carry out a ‘public function’. The grounds for challenging decisions by way of judicial review are where it can be shown that a decision was: Without legal authority/outside the power of the public body In pursuance of an improper purpose In violation of the proper exercise of discretionary powers (e.g. fettering of discretion, use of discretion for a purpose for which it was not intended and/or taking irrelevant factors into consideration or failing to take into consideration all relevant factors) Irrational or contrary to the rules of natural justice – i.e. fairness In violation of the Human Rights Act 1998 o The HRA requires public bodies to act in a way that is compatible with the European Convention on Human Rights; a failure to do so creates a freestanding statutory ground of challenge. The Act also requires all domestic legislation to be interpreted in a way that is compatible with Convention rights; thus the Act potentially affects all of the legal bases underpinning the public body’s powers and duties. In violation of European Community Law/European Convention on Human Rights We now examine how public law has, or can be used, in relevant cases and the issues that arise. We do so by assessing firstly what we term ‘direct challenges’ to government policy in respect of Israel/Palestine and secondly by more ‘indirect challenges’ a term we explain below. A. Direct Challenges There have been two judicial reviews brought before the English Courts that have sought to directly challenge the United Kingdom’s governments policy in respect of Israel/Palestine. 3 The first in time was R (Saleh Hasan) v Secretary of State for Trade and Industry4, which was a request to scrutinise the Secretary of State’s decision to grant export licences for weapons used by Israel in violation of international humanitarian and human rights law. The second case was R (on the application of Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs5, which was a claim against the UK Government claiming it had failed to adhere to its international law obligations vis-à-vis Israel. Both cases failed and although in each case the facts are relatively specific, the general thrust of the Courts approach was a reluctance to interfere with the Governments handling of foreign affairs. This judicial reticence was clothed in the legal terminology of justiciability. The Courts held: It is beyond the competence of Courts to evaluate the conduct of a state in relation to its foreign affairs except in exceptional circumstances; a court will also not evaluate the conduct of a foreign state.6 Here the Courts repeated their refrain from earlier cases: they would not interfere with foreign policy decisions unless the rights of individuals were crucial to the decision – see for example CND v Prime Minister, a case seeking a declaration that a second UN Security Council authorisation was required before war with Iraq could be lawful and Abbassi v Secretary of State of Foreign Affairs, a case seeking to compel the UK to seek the release of a national held in Guantanamo Bay. In Al-Haq the Court noted three exceptions: (1) where the breach of international law is “plain and acknowledged” (Kuwait Airways7) or “clear to the court”8 (Abbasi9);10 (2) there is legislative authorisation (Gentle11);12 or (3) the issue arises in the context of ensuring a fair trial in England & Wales.13 A further difficulty facing those who wish to challenge UK policy in respect of foreign affairs is demonstrating that they have sufficient ‘standing’ to mount a challenge. In Al Haq the Court cast doubt on whether a non-UK NGO had a sufficient standing to bring a claim before the English Court in respect of domestic foreign policy. 4 R (Saleh Hasan) v SS for Trade and Industry [2008] EWCA 1311 (hereafter “Hasan”). Saleh Hasan, a Palestinian living in the West Bank and operating in conjunction with Al-Haq, filed a claim requesting he UK government to clarify its position on its arms-related licensing agreements with Israel. In particular, the claim sought to require the UK government to reveal how it satisfies its own criteria that material sold under these agreements is not used in the commission of human rights abuses in the occupied Palestinian territories.