by Omar Barghouti
Jerusalem Quarterly – Issue 38, Summer 2009
“I believe that this [Jerusalem Light Rail] should be done, and in any event, anything that can be done to strengthen Jerusalem, construct it, expand it and sustain it for eternity as the capital of the Jewish people and the united capital of the State of Israel, should be done.” Ariel Sharon, August 2005
“Swimming against the tide” is regarded by many cultures, including Arab culture, as unwise, if not altogether irrational and desperately futile; swimming against the tide and hoping to reach your desired destination would, then, defy common sense and call into question one”s sanity. Taking this defiance to a new level, the Palestinian civil society campaign for Boycott, Divestment and Sanctions (BDS) and its international supporters in the solidarity movement have been contributing to resisting Israel”s multi-faceted oppression against the indigenous people of Palestine by mobilizing international civil society to apply effective, nonviolent and sustained pressure against it until it fully complies with its obligations under international law and respects Palestinian rights.
The campaign against the “Jerusalem Light Rail” is a case in point, that tellingly illustrates the potency and potential of such a struggle as well as the challenges stacked up against it.
Realizing Herzl”s Vision
According to its official brochure,2 the Jerusalem Light Rail, JLR, is intended to fulfill Theodore Herzl”s vision of Jerusalem: “modern neighborhoods with electric lines, tree-lined boulevards… a metropolis of the 20th century.” The other crucial element of Herzl”s Eurocentric vision for the entire land of Palestine as a Jewish state was even more faithfully adhered to by the project planners.
Thus, while the professed goals of the JLR cite typical urban planning priorities, such as relieving traffic congestion and renewal of the city center, the actual map of the JLR”s planned route and stations reveal the unspoken underlying objective of the project: to irreversibly entrench the “Judaization” of Jerusalem3 and perpetuate its current reality as a unified city with a predominantly Jewish population under Israeli control. By connecting its most significant colonies, or “settlement blocs,” illegally built on the occupied Palestinian territory (OPT) including East Jerusalem,4 in contravention of international law,5 Israel hopes to use the JLR – as part of a comprehensive, long-term strategy that includes the Wall and other repressive measures6 – to cement the integration of those blocs into an ever sprawling “Greater Jerusalem,” thereby creating the third most important fact on the ground, after the 1948 nakba7 with the mass forcible displacement of hundreds of thousands of Palestinians that accompanied it and the 1967 military occupation of the West Bank and Gaza.
The political and legal implications of the JLR cannot be fully appreciated unless seen within the context of Israel”s strategic plans for Jerusalem, particularly the “secret plan”8 sponsored by the Israeli Prime Minister”s Office and Mayor of Jerusalem to “strengthen Jerusalem as the capital of the State of Israel.” This plan, exposed recently in Haaretz, aims at creating Israeli “hegemony” over the area around the Old City, “inspired by extreme right-wing ideology.” A recent Palestinian position paper9 on the JLR states that, “The overarching policy framework for Jerusalem is illustrated most fully by the Master Plan 2020 document (2004), which outlines measures to prevent the growth of Palestinian communities and encourage the growth of Jewish settlements, with the goal of creating a 70:30 ratio of Jews to Palestinians, as stipulated by government decisions. Doing this involves ethnically cleansing Palestinian communities from Jerusalem through a variety of mechanisms, including the Wall and the revocation of identity papers.”
The JLR is the brainchild of the Jerusalem Transportation Master Plan, jointly administered by the Ministry of Transport and the Jerusalem Municipality. Its strategic role in Israel”s colonial plans for Jerusalem stems from the fact that it purports to treat the burgeoning inadequacy of the existing Israeli road and mass transit system in accommodating the fast rising needs associated with the uncontrolled growth of Israel”s illegal colonies in the occupied territory, especially since the signature of the Oslo peace accords between Israel and the Palestine Liberation Organization in 1993, a period that has witnessed almost a doubling of the population of Jewish settlers in the OPT. As the official route of the JLR reveals,10 the tram”s various routes will predominantly intended to serve Israel”s illegal colonies in or surrounding occupied East Jerusalem, such as: Atarot Airport, Neve Ya”kov, Pisgat Ze”ev, Ramot, Har Ha-Tzofim Campus of the Hebrew University and Gilo, among others.
Perpetuating Injustice: The Legal Case against the JLR
Based on the Fourth Geneva Convention, numerous UN resolutions have condemned as illegal Israel”s colonies (settlements) that are built on what is internationally recognized to be occupied Palestinian land. The most recent reaffirmation of this verdict of international law came from the International Court of Justice, which on 9th July 2004 issued its advisory opinion against Israel”s Wall and colonies built in the OPT,11 a ruling that is widely recognized as nothing less than a legal and political watershed in the Palestinian struggle against Israel”s occupation. Infrastructure and other projects that serve these colonies or act in any way to perpetuate their existence are, by extension, illegal. Not only does the JLR significantly contribute to Israeli designs to make its illegal annexation of occupied Palestinian territory irreversible; it also provides the colonies with a crucial service, connecting them to Israel. Accordingly, the JLR is considered an integral part of Israel”s illegal colonial regime and, therefore, a violation of international law that may amount to a war crime. Companies that participate in building and running the JLR or in constructing, maintaining and servicing Israeli colonies,12 more generally, can therefore be regarded as “aiding and abetting” these crimes.
Furthermore, citing the Hague Convention IV on Respecting the Laws and Customs of War on Land, 18 October 1907, the PLO”s Negotiation Support Unit argues:13
“As an occupant, Israel has no sovereign rights or title to the OPT, including East Jerusalem. Consequently, it may only undertake changes in East
Jerusalem and the rest of the OPT for the benefit of the occupied Palestinian population or for military necessity. As the Light Rail neither caters to the needs of Palestinian civilians nor serves any genuine military purpose, the Light Rail constitutes an illegal change to East Jerusalem and neighbouring West Bank areas.”
The above furnished the legal basis of a lawsuit in France against Veolia and Alstom, two of the constituent companies involved in the consortium that signed the contract with the State of Israel to build and manage the JLR project. Both companies are French conglomerates involved in vast projects in dozens of countries around the world, mostly focusing on, inter alia, transportation, water and sanitation. The unprecedented case, presented before the court of Nanterre by the Palestine Liberation Organization (PLO) and the Association France-Palestine Solidarité (AFPS) in 2007,14 while still being deliberated, has made enough progress to inspire similar action elsewhere against companies implicated in the JLR project. In April of this year, already, the High Court of Nanterre, France (Tribunal de Grande Instance de Nanterre), according to an AFPS press statement,15 has thwarted relentless efforts by Veolia and Alstom to have the case dismissed by declaring that it has jurisdiction to hear the legal claim brought by AFPS against the companies regarding the construction and operation of a light railway in East Jerusalem. Moreover, in response to a claim by Veolia and Alstom that the French court lacks jurisdiction in this case, based on the fact that the state of Israel enjoys sovereign immunity from being sued in foreign courts, the Nanterre court ruled that:
“[A]part from the fact that the State of Israel is not party to this action, this state could not seriously have standing in relation to disputed contracts in the guise of a sovereign state since this state is in fact an occupying power of the area in the West Bank where the light rail system is being built and where its exploitation is contentious, an area recognized by the international community and the International Court of Justice as being part of the Palestinian territory.”
In the United Kingdom, for instance, Daniel Machover, a prominent attorney and cofounder of Lawyers for Palestinian Human Rights, has adopted an innovative legal approach to challenge Veolia and other companies in its category. Machover invoked the UK 2006 Public Procurement Regulations, which is the British implementing measure of EU Directive 2004/18/EC16 to argue that a local authority may be subjected to legal challenge if it does not agree to exclude Veolia as an economic operator from a public bid. Specifically, he bases his case on Article 45 of the EU Directive, which includes the provision that any economic operator “may be excluded from participation in a contract” if it “has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate,” among others clauses.
Machover argues that this type of discretionary decision by a public body in the UK can be subjected to a legal challenge in the High Court. It is expected that, presented with hard evidence of Veolia”s “grave professional misconduct,” coupled with substantial public pressure, and a credible threat of High Court involvement, local authorities may opt to exclude Veolia to avoid the trouble. If this approach yields positive results, it is likely to be emulated across EU states, where the same laws apply.
Palestinian Civil Society Fights Back
Despite the ICJ”s unambiguous ruling on the Wall and settlements, no serious efforts were exerted by the Palestinian leadership, the Arab League, the UN, the EU or any other international power to implement the far-reaching recommendations in the advisory opinion, effectively allowing Israel to continue its voracious colonization project in the occupied West Bank. This astounding failure by the so-called international community to hold Israel accountable to international law, or at least to end its unchallenged impunity, precipitated enough frustration and anger among Palestinians everywhere to trigger new thinking on how to most effectively attain justice and comprehensive peace that is based on it.
On the 9th July 2005, on the first anniversary of the ICJ”s ruling against the Wall, more than 170 Palestinian political parties, unions, organizations and networks, representing a substantive majority of Palestinian civil society, issued a historic Call for Boycott, Divestment and Sanctions, or BDS,17 against Israel until it fulfills its obligations under international law and ends its three basic forms of injustice – occupation and colonization, institutionalized racial discrimination, and denial of UN-sanctioned refugee rights. The appeal said:
We, representatives of Palestinian civil society, call upon international civil society organizations and people of conscience all over the world to impose broad boycotts and implement divestment initiatives against Israel similar to those applied to South Africa in the apartheid era. We appeal to you to pressure your respective states to impose embargoes and sanctions against Israel. We also invite conscientious Israelis to support this Call, for the sake of justice and genuine peace.
Coming a year after the Palestinian call for an academic and cultural boycott against Israel18 and inspired by the century-old Palestinian civil resistance to the Zionist conquest in its various manifestations and, more recently, by the struggle against apartheid in South Africa, the BDS Call expanded the scope of the earlier appeal to include all domains: economic, financial and sports, among others. While BDS was at first received with mixed reactions by international civil society and vigorously opposed by Israel, its lobby groups and support networks in the West, it succeeded in a fairly short period of time in putting the Israel boycott on the agenda of international solidarity groups and some trade unions and faith-based organizations. With its distinctly rights-based, approach, the BDS Call appealed to wide sectors in international civil society, inspiring and mobilizing them into launching effective, context-sensitive and sustainable campaigns against Israel and institutions – Israeli and international – that are complicit in its occupation and other forms of oppression.
Support for BDS grew steadily and sometimes impressively19 ever since the Call was launched. Palpable gains were made after the Palestinian leadership of the movement, the BDS National Committee, or BNC,20was announced in May 2008 and after that leadership succeeded, in partnership with Mewando, the leading Basque solidarity network, in organizing the first international BDS conference, the Bilbao Initiative,21 as well as in issuing a ground breaking, in-depth analysis of Israel”s regime over the Palestinian people.22 The illegal and patently immoral Israeli siege of the occupied Gaza Strip, with its direct and well-documented human impact, which includes a sharp rise in poverty, disease and mortality rates, and that culminated in the recent war of aggression. These factors played an undeniable role in turning BDS into a truly global movement, winning the crucial endorsement of a number of key intellectual and cultural figures as well as an increasing number of major trade unions and other civil society associations. As a result, there was a surge in creative and institutionally sustainable BDS measures adopted by individuals and groups across the world, indicated beyond doubt that a new, unprecedented era of Palestine solidarity has arrived, evoking memories of the fight against South African apartheid.23
In this context, the ground was prepared for Palestinian and international civil society to take concrete action against the light rail project in Jerusalem. In fact, the BNC has directly appealed to and worked with solidarity movements in several countries to launch or expand and co-ordinate campaigns against companies involved in the JLR project as the most effective means of resisting the project.
Derailing Veolia and Alstom
One of the earlier BNC efforts to counter JLR-implicated corporations was the appeal24 sent to the Kingdom of Saudi Arabia by the Palestinian Grassroots Anti-Apartheid Wall Campaign and the Civic Coalition for Defending the Palestinians” Rights in Jerusalem, urging the Saudi government not to award Alstom a $2.5 billion contract to build a power plant. On top of presenting the legal, political and moral arguments against Alstom, the document detailed the historic commitment of Saudi Arabia to the Palestinian cause in general and the question of occupied Jerusalem in particular, concluding that awarding this lucrative contract to a company that is colluding in Israel”s declared intent to further colonize and “Judaize” the Holy City would, for all intents and purposes, undermine these unique commitments, not to mention obligations under international law. Needless to say, the Saudi government has yet to respond to the appeal, let alone heed it. In fact, according to a recent report in the Dubai-based Gulf News,25 “Alstom is part of a consortium awarded a $1.8 billion (Dh6.6 billion) civil works contract in March for the Makkah-Madinah railway, the Haramain Express.” It is a bitter irony that Saudi Arabia is allowing the same company that is unapologetically complicit in colonizing Jerusalem that is regarded in Islam as a holy city, to build a railway connecting Islam”s two holiest cities, Mecca and Medina. This has prompted even the normally complacent Palestinian Authority to register an official complaint with the Saudis and try to convince them to scrap Alstom”s involvement in the Haramain Express.26
In Europe, however, the scene was friendlier for the campaign against the JLR partner companies. At the aforementioned Bilbao Initiative, human rights lawyers, activists and trade unionists, in full coordination with the BDS National Committee, launched several focused BDS campaigns, targeting corporations and institutions that are unmistakably and quite manifestly complicit in aspects of Israel”s multifaceted system of oppression against the Palestinians. Thus the “Derail Veolia” campaign was born, aiming to coordinate already existing efforts in several countries and/or launching new ones to pressure Veolia, as well as Alstom, to withdraw from the illegal project by threatening them with public boycott campaigns if they failed to do so.
The examples below are from the most significant local campaigns against the two French companies involved in the JLR project shed some light on the innovative and principled tactics used and the impressive achievements reached to date.
After a long pressure campaign initiated by one determined and resourceful human rights activist and eventually endorsed by influential civil society groups in the Netherlands, Dutch bank ASN, which identifies itself as an “ethical bank” that upholds international law and human rights, decided in November 2006 to divest from Veolia Transport and other companies that benefit from Israel”s occupation of Palestinian territory.27 The decision followed months of meticulous research, networking and employing public awareness initiatives undertaken by the campaign organizers. United Civilians for Peace, a coalition of Dutch organizations advocating peace, human rights and development produced a well-researched document detailing the links between Dutch companies and the Israeli occupation of Palestinian territory. The Palestinian Grassroots Anti-Apartheid Wall Campaign was also involved in the campaign at various stages, providing empirical data and advice. Simultaneously, questions were raised in the Dutch parliament about a specific Dutch company involved in the construction of the illegal Wall. Veolia”s initial claims that it was not aware that its involvement in the JLR was illegal rang hollow given the fact that Amnesty International in France had issued a clearly worded document28 stating just that, months earlier, and had warned Veolia”s management not to get involved in this project.
Together, these developments led to xtensive media coverage of the whole issue of complicity as well as legal and ethical responsibility of companies, which in turn raised the level of pressure on ASN Bank significantly, convincing it to start a process of investigation of Veolia”s involvement in the objectionable project and, eventually, to end its investments in it.
A Swedish coalition of faith-based groups, led by Diakonia, was quick to follow suit. During Israel”s atrocious war on Gaza, the Stockholm community council announced29 that Veolia, which had been the operator of the Stockholm County metro for the past ten years, lost the contract for the coming eight years. The contract, worth 3.5 billion euros (approximately $4.5 billion), is considered the largest ongoing public contract procurement process in Europe. And although the Council stated that their decision was based solely on commercial considerations, the massive public campaign waged by Swedish groups against Veolia in the months leading to the decision could not but have been a decisive factor for any politician hoping to get re-elected.
Adri Nieuwhof, a human rights advocate that has played a leading role in exposing European corporate complicity in Israel”s occupation, had this to say about the impressive Swedish public campaign against Veolia:
Swedish activists informed the public about the role of companies in benefiting from the occupation through several actions. The Swedish non-governmental organization Diakonia”s research on [the] Mul-T-Lock factory in the Barkan Industrial Park in a West Bank settlement led to the October 2008 decision of [factory] owner Assa Abloy to divest from the company. At that time Veolia was bidding for an eight-year, $4.5 billion contract to run the subway in Stockholm County. Swedish journalists questioned politicians about Veolia”s role in an Israeli tramway project that links Israeli settlements and normalizes the illegal situation of the settlements. At the Give Veolia the Red Card event on 15th November 2008, passengers on the Stockholm subway were asked to attach a red card to their clothes to protest Veolia”s involvement in the Jerusalem tramway on occupied Palestinian territory. 30
Weeks after this meaningful defeat for Veolia in Sweden, its partner in the JLR project suffered as momentous a setback when the Swedish national pension fund, AP7, decided to exclude Alstom from its investment portfolio.31 Considering the size of the Swedish fund, $15 billion, this decision was bound to have serious consequences for Alstom and other companies in a similar situation. This time, however, the decision was explicitly justified on the grounds of Alstom”s involvement in the illegal JLR project, reflecting on the one hand the intensifying discontent among the Swedish public, especially after Gaza, with companies that profit from unethical and illegal Israeli projects and, on the other hand, their determination to make them – literally – pay for it.
Towards the end of March, Palestine Solidarity Campaign (PSC) in the West Midlands, United Kingdom, celebrated another significant victory in the campaign against the JLR. The Sandwell Metropolitan Borough Council decided not to consider further Veolia”s bid for the “Waste Improvement Plan” contract, which is worth about $1.5 billion over 20 years.32 Again, the Council insists that the decision was commercial, not political. And, again, the public pressure that was brought to bear before the decision looked too sweeping to ignore.
Elsewhere in the UK, several local campaigns are sprouting to derail Veolia from a number of large public works contracts. From Hampshire County to Liverpool to Camden to South Yorkshire, local authorities are facing mounting political, and sometimes legal pressure from Palestine solidarity groups, mainly associated with PSC, to exclude Veolia from bidding for public projects.
Most recently, Veolia started feeling the heat at home. The Greater Bordeaux local government announced that it was awarding – on commercial grounds, of course – a $1 billion contract for the biggest urban network in France to Veolia”s competitor, despite intense lobbying by Veolia. La plateforme BDS Bordeaux marked this achievement saying, “In fact, Veolia”s involvement in the situation of [Israeli] apartheid has already led to its loss of several contracts, and this is just the beginning.”33
In Australia, the campaign against Veolia”s subsidiary, Connex, took on an entirely new shape. Award winning visual artist, Van Thanh Rudd, created a stir in Melbourne, Australia with his installation “Economy of Movement – A Piece of Palestine.”34 Rudd”s installation, which looks like a museum display, shows a stone sitting upon a glass base. A panel hanging behind it reads: “The stone exhibited is from East Jerusalem (occupied Palestinian territory). It was thrown at an Israeli Defense Force (IDF) tank by a Palestinian youth.” Another panel to the right reads: “IDF tanks are protecting French companies Veolia (Connex) and Alstom as they conduct illegal operations on occupied Palestinian territory.” Rudd explained his motives saying, “I thought it would be a great opportunity to make artwork that would clearly outline Veolia”s illegal operations on occupied Palestinian territory.”
Taste of Victory
In an unexpected turn of events, and after months of intensive lobbying and awareness-raising by the Derail Veolia and Alstom campaign, Haaretz reported35 that Veolia was “abandoning” the JLR and was even “trying to sell its 5% stake in Citypass, the light rail consortium.” According to the report, “The organization based itself on an article in French law that allows the court to void business agreements, signed by French companies, that violate international law.” However, it cites “political pressure” and the loss f “major projects in Europe because of its involvement in the Jerusalem job” were the “real reason” for Veolia”s withdrawal from the JLR, according to unnamed observers.
Another victory came from a more expected quarter. The London-based Islamic Human Rights Commission recently reported36 that “Tehran”s mayor scrapped plans for Veolia to have a key role in the city”s urban transport system.” The BNC had sent a letter to the Iranian leadership last May through European NGOs in Geneva, during the UN Durban Review conference, reminding Tehran of its commitments and obligations to contribute to the defense of Jerusalem against Israel”s colonial designs and urging it to exclude Veolia and Alstom from all Iranian public works contracts due to the companies” involvement in the illegal JLR project.
Despite Veolia”s reported announcement that it was withdrawing from the JLR, the Derail Veolia and Alstom Campaign “plans to keep the pressure on Veolia and Alstom until the companies end their services to Israel”s activities and projects that are in violation of international law,” as stated by Adri Nieuwhof.37 Specifically, Veolia is still involved in providing bus services that link Jerusalem with illegal colonies and in the dumping of waste from Israel and its settlements in the Tovlan landfill in the occupied Jordan Valley.38
From Melbourne to Stockholm to Bordeaux to the West Midlands, companies implicated in the JLR project are not just facing symbolic protests by marginalized demonstrators; they are experiencing real, deep losses that many indicators show are directly connected with their JLR involvement. What initially seemed like a desperate swim against the tide to reach the shores of justice is increasingly looking like a great wind that may well cause the tide itself to be reversed.
Omar Barghouti is an independent analyst, human rights advocate and a founding member of the Palestinian civil society campaign for Boycott, Divestment and Sanctions (BDS) against Israel (www.BDSmovement.net).
1 The BDS Call, issued on 9 July 2005, was endorsed by over 170 Palestinian political parties, unions, organizations and networks, representing Palestinians under occupation, in Israel, and in exile. The Call and list of endorsers are at: http://www.bdsmovement.net/?q=node/52
3 In August 2007, then UN special reporter for human rights in the occupied Palestinian territory, Prof. John Dugard, described the Wall to the UN General Assembly in saying, “The 75-km wall being built in East Jerusalem is now almost complete …. This wall, which is built through Palestinian neighbourhoods and separates Palestinians from
Palestinians, is an exercise in social engineering, designed to achieve the Judaization of Jerusalem by reducing the number of Palestinians in the city. It cannot conceivably be justified on security grounds.” http://domino.un.org/UNISPAL.NSF/0080ef30 efce525585256c38006eacae/07fc06140216684 18525736b005c8a82!OpenDocument
4 While East Jerusalem is recognized by the United Nations as part of the Palestinian territory occupied by Israel in 1967, the rest of the city, now called “West Jerusalem,” was also occupied militarily by Zionist forces in 1948, in violation of the partition plan that envisioned placing the entire city under international jurisdiction.
5 Article 49 of the Fourth Geneva Convention specifically prohibits the occupying power from transferring parts of its own civilian population into the territory it occupies. When extensive appropriation of property is involved, without military necessity, the infringement may amount to a war crime: http://www.unhchr.ch/html/menu3/b/92.htm
6 In his March 2009 report to the United Nations Human Rights Council, Prof. Richard Falk, the current UN special reporter for human rights in the OPT, states that, “there are a variety of concerns about the Palestinian future in East Jerusalem, and allegations that Israel is engaged in a subtle, but cumulatively very efficient, process of “ethnic cleansing” to ensure Jewish demographic dominance of the whole of Jerusalem. A variety of practices have elicited Palestinian complaints, and seem validated by independent observers … .” http://www.transnational.org/Area_MiddleEast/2009/ Falk_OralStatement_Gaza.html
7 For more on this see: Ilan Pappe, The Ethnic Cleansing of Palestine. (Oxford: One World Publications, 2007)
9 The Grassroots Palestinian Anti-Apartheid Wall Campaign and the Civic Coalition for Defending the Palestinians” Rights in Jerusalem, A call to the Kingdom of Saudi Arabia not to contract Alstom Ltd. its new power plant in Shoaiba: http://www.stopthewall.org/downloads/pdf/briefing%20Alstom.pdf
10 See the map in the brochure at: http://www.rakevetkala-jerusalem.org.il/images/Eng_brochure.pdf
11 In its Advisory Opinion titled Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ stated, “The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law. http://www.icj-cij.org/docket/ files/131/1677.pdf
12 The Israeli Coalition of Women for Peace keeps an up-to-date list of Israeli and international companies implicated in violations of international law in the OPT: http://www. whoprofits.org/
13 Negotiation Support Unit. Jerusalem Light Rail Fact Sheet. March 2007.
19 For a partial list of international organizational endorsers of BDS see: http://www.bdsmovement. net/?q=node/139
20 For more on the BNC”s make up and activities see: http://www.bdsmovement.net/?q=node/126
23 For more on this see: Omar Barghouti, Our South Africa Moment Has Arrived. http://www. palestinechronicle.com/view_article_details.php?id=14921
32 http://www.palestinecampaign.org/index7b. asp?m_id=1&l1_id=4&l2_id=25&Content_ ID=546
33 This is based on a rough English translation of the original French original statement at: http://