Contribution of the JURDI association to the report presented at the 58th session of the Human Rights Council the United Nations official by the Rapporteur special report on the human rights situation in the Palestinian Territory occupied since 1967
To the attention of the United Nations Special Rapporteur on the situation of human rights in the Occupied Palestinian Territory, By this letter, the Association of Jurists for the Respect of International Law transmits to you its contribution to your upcoming thematic report on the practices, policies and relations of private companies in the Occupied Palestinian Territory.
The Association of Jurists for Respect for International Law, or "JURDI", is a French association created at the initiative of lawyers, judges, academics and other legal experts in France with the objective of contributing to the promotion, respect and effective implementation of the rules of international law, in the context of the Israeli-Palestinian conflict, by the French State, the European Union and all of its member states as well as by private individuals.
JURDI begins by stating that the political and legal commitment of the French State and the European Union to corporate conduct respectful of international law in the context of the Israeli-Palestinian conflict appears to be woefully inadequate. The following three examples illustrate this lack of commitment.
A. French and European companies involved in violations of international law
In June 2014, after years of mobilization by civil society, the French Ministry of Foreign Affairs finally stated publicly on its website that: «The West Bank, including East Jerusalem, Gaza, and the Golan Heights, has been occupied by Israel since 1967. The settlements are illegal under international law. Consequently, there are risks associated with economic and financial activities in Israeli settlements. Financial transactions, investments, purchases, supplies, and other economic activities in or benefiting from the settlements entail legal and economic risks related to the fact that Israeli settlements, according to international law, are built on occupied land and are not recognized as part of the territory of Israel. This is likely to lead to disputes related to land, water, mineral resources, and other natural resources that could be the subject of purchase or investment, as well as reputational risks.».
Page 1/20 Apart from this public notice which was not published in the Official Journal, the French authorities have not taken any concrete measures to prohibit French companies from carrying out economic and financial activities in or for the benefit of Israeli settlements, or at the very least to strongly discourage them from doing so.
Furthermore, no measures have been taken to prohibit or limit economic and financial activities that may be linked to the perpetuation of the illegal occupation of the Occupied Palestinian Territory and to the commission of systemic violations of international humanitarian law and international human rights law that accompany it and to which French companies may contribute.
The same applies to the European Union with regard to companies under the jurisdiction of Member States.
B. Products from Israeli settlements
With regard to products from Israeli settlements imported and sold in France and Europe, both French and European authorities have been content to impose specific labeling: the European Commission adopted on 12 November 2015 an "Interpretive Communication" inviting EU Member States to provide in their legislation for specific labeling for products from Israeli settlements sold on the European market and France took an Opinion to economic operators relating to the indication of the origin of goods from the territories occupied by Israel since 1967.
However, on the one hand, this legislation results in very few controls on goods both in Israel and on European soil, and the Israeli authorities show little respect for the specific labeling of settlement products, the legitimacy of which they claim to reject. On the other hand, this legislation falls far short of what international law requires, which, given the obligation not to aid or abet an illegal situation under international law, mandates a ban on the importation of these products into France and the European Union.
Called for by civil society for years, both French and European authorities refuse to adopt this practical and common-sense measure which would prevent economic actors (importers, intermediaries, transporters) and European consumers from contributing to the maintenance and development of Israeli settlements.
C. Israeli companies in France and Europe
Israeli companies involved in violations of international law, and in particular those listed on the Database of all commercial enterprises participating in the activities described in paragraph 96 of the International Mission report independent fact-finding body tasked with investigating the impact of the colonies Israeli settlements on the civil, political, economic, social and cultural rights of Palestinian people throughout the occupied Palestinian territory, including East Jerusalem ("the Database"), may freely conduct economic and financial activities on French and European soil. Both French and European authorities have always refused to take sanctions against them and at the very least, to prohibit or limit their access to the national or European market (sale of products and services, activities, access to public markets).
In this general context of "laissez-faire" which has not changed during the year 2024 (despite the important decisions rendered by the International Court of Justice and the International Criminal Court), it is therefore not surprising that French private companies have felt authorized to develop economic and financial activities in the context of the Israeli-Palestinian conflict, without taking into account the legal obligations which are imposed on both state authorities and themselves.
JURDI therefore reminds us that it is up to the French and European authorities to act in order to respect and enforce international law by companies under their jurisdiction.
Having reiterated this, the present contribution aims firstly to identify the main French private companies that are or have been involved, directly or indirectly, in the violation of obligations arising from international law in the occupied Palestinian Territory (IThe legal framework that applies to these companies will then be outlined (II).
I. Companies involved in violations of international law A. Crossroads Presentation
The Carrefour Group is a world leader in food retail, operating nearly 14,000 stores in more than 40 countries and entering into franchise agreements allowing the use of its brand, trademarks and business processes by legally independent entities, in return for the payment of a royalty.
In total, "more than 500,000 people work under the Carrefour banner worldwide.".
Carrefour claims to conduct its business in compliance with ethical principles and international standards, and establishes a vigilance plan for these purposes.
With regard to its franchisees, Carrefour specifies: «Internationally, Carrefour requires its franchisees to respect human rights by systematically attaching its Charter for the Protection of Human Rights to their contracts. This charter commits them to respecting international standards on labor rights, the Universal Declaration of Human Rights as well as several ILO conventions, including conventions on child labor, forced labor, and freedom of association.».
Context
In March 2022, the Carrefour group announced the conclusion of a franchise agreement by its Carrefour Partenariat International entity with two Israeli companies, Electra Consumerxi Products and Yenot Bitan (owned at nearly 40% by the former).
The contract provides for the arrival of Carrefour stores in Israel "before the end of 2022" and access to Carrefour brand products "before the summer" in more than 150 Yenot Bitan stores.
The official website of the France-Israel Chamber of Commerce states that "the first branches will open by the end of 2022, and within 3 years, more than 150 Mega branches will be converted into 13 Carrefour stores, in parallel with the opening of new supermarkets."«
According to a report published in November 2022 by civil society organizations, "even before the rebranding of the stores, Carrefour products were already available on the etxiv website in Yenot Bitan stores.".
Yenot Bitan has branches in the Israeli settlements of Ariel, Alfei Menashe, and Ma'ale Adumim in the Occupied Palestinian Territory. Specifically, the company operates a "Mega" branch in the settlement of Ariel, as well as a shopping center in the settlement of Modi'in-Maccabim-Re'ut. The company also operates "Mehadrin Market" branches in the settlements of Beit El, Kokhav Ya'akov, and Modi'in Illit, and a branch in the settlement of Neve Ya'akov in East Jerusalem.
At the Annual General Meeting of Shareholders on May 26, 2023, Laurent Vallée, Secretary General of the Carrefour Group, nevertheless declared, in response to a question from a shareholder: "No Carrefour store will be present in the occupied territories. There is no complicity. We will ensure on this point that we prevent any risk.".
News
In an Instagram post dated October 10, 2023, Carrefour Israel wrote: «The Carrefour chain has donated thousands of personal deliveries to soldiers, and this is just the beginning… Proud to participate in the national effort alongside Carrefour employees and good citizens who are volunteering to prepare personal packages for IDF soldiers.» This post was later edited, identifying the Carrefour chain as «Network» and replacing the mention of soldiers with that of «people of Israel.».
On September 3, 2024, civil society organizations reported that many Carrefour brand products had indeed been removed from franchised stores located in Israeli settlements. However, some products remained available for sale, and settlement customers could still have Carrefour products delivered to their homes or at the stores by ordering through the websites of Electra Consumer Products and Yenot Bitan.
Finally, the Carrefour Group's 2023 annual financial report states: "In Israel, Carrefour also opened 50 stores with the Electra Consumer Products Group. This franchise partner, which signed a contract prohibiting it from developing Carrefour-branded stores in the Palestinian territories, sparked controversy when photographs circulated on social media showing employees donating food parcels to soldiers. These individual initiatives did not commit the Group, and the photographs were immediately removed. Carrefour maintains its strict political neutrality and is in no way involved in the Israeli-Palestinian conflict" (emphasis added).
In any event, the franchise agreements remain in force, as stated in the financial report.
In January 2024, Carrefour Israel published a job offer on Page 4/20 featuring the Carrefour logo and reading: "Residents of Maale Adumim and surrounding areas, Carrefour is looking for you!".
The existence of this job posting confirms the existence of economic activity generated by the sale of Carrefour products in Israeli settlements. Despite requests to that effect, Carrefour provides no evidence to establish that its franchise agreements contain a clause prohibiting the sale of its products in Israeli settlements, and that it complies with these clauses and ensures their compliance by its partners.
B. BNP Paribas Presentation
BNP Paribas («BNP») is the leading European bank, offering banking and investment services to individuals and businesses.
It has a presence in 63 countries and 22 territories and employs nearly 183,000 people worldwide.
BNP demonstrates its commitment to respecting human rights within its sphere of influence and adopts a xxiii vigilance plan.
BNP Paribas SA adopted a Declaration on Human Rights in 2012, reaffirmed in 2016 and summarized in the document "BNP Paribas and Human Rights" of July 2024.
According to BNP Paribas, the human rights standards it is committed to respecting are: the International Bill of Human Rights (which includes the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and its two Optional Protocols), the fundamental conventions established by the International Labour Organization (ILO), the Ten Principles of the United Nations Global Compact, the United Nations Sustainable Development Goals, the United Nations Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises.
In addition to these public commitments, BNP Paribas indicates that it has internal policies and environmental and social risk management systems in place, which help address numerous environmental, social, and governance (ESG) issues. These include: the BNP Paribas Group Code of Conduct; the BNP Paribas Human Rights Statement; BNP Paribas Environmental Commitments; the development of financing and investment application guidelines, which include policies and criteria for sectors with significant ESG issues; and adherence to Equator Principles XXVI for major industrial and infrastructure projects.
The BNP Paribas Group Code of Conduct of December 17, 2021, states in particular that "The BNP Paribas Group is committed to promoting respect for human rights within its sphere of influence, i.e. among employees, suppliers, customers and the communities in which the Group operates. The Group does not wish to participate in any violation of human rights through its investment and financing activities.".
It states that "BNP Paribas Group employees must promote respect for human rights Page 5/20 and in particular: – Always take into consideration the direct and indirect impacts of activities on human rights; – When the Group carries out activities in sectors covered by a CSR financing and investment policy, verify that the criteria of the policy relating to human rights are respected.".
In its "Financing and Investment Policies" document, BNP Paribas states that "in line with the United Nations Guiding Principles on Business and Human Rights, BNP Paribas has developed a specific financing and investment policy designed to govern transactions in the Defense and Security sectors. While recognizing the right of States to defend themselves and protect their national security, this policy takes into account the risks specific to this sector.".
BNP Paribas has adopted a sector-specific "Defense and Security" policy. It states that "as part of its CSR initiatives and its support for the United Nations Guiding Principles on Business and Human Rights, BNP Paribas has developed a policy to govern all of its activities related to the defense and security industry" and that « The possibility that the end use of military, security, or police equipment may be irresponsible is a key issue for this sector.
The scope of this policy concerns the financial products and services involved, asset management, and securities custody. It states that the bank has established internal risk assessment and monitoring mechanisms to comply with the 2013 Arms Trade Treaty and to avoid contributing to human rights violations. It specifies that the bank "has established a list of sensitive countries for which transactions are subject to enhanced due diligence." This list is based, in particular, on the following criteria: (...)
- countries in which serious human rights violations have been observed; – countries in whose territories a conflict is active, as defined by the criteria of recognized university research centers on armed conflicts.
Furthermore, it is stated that ’as a signatory to the United Nations Global Compact, the BNP Group has committed to not being complicit in violations of fundamental rights. To uphold these commitments, within the framework of its CSR policy, BNP has decided not to engage in financing, investments, or operations that present the highest risks of impact on the health and safety of populations, on protected species, or on the environment in general.« In its Universal Registration Declaration for 2023, BNP Paribas states that »respect for human rights is one of the pillars on which BNP Paribas« CSR strategy is based.» The Group is committed to respecting a number of principles and standards that form the basis of its activities, including the ten principles of the United Nations Global Compact, the United Nations Guiding Principles on Business and Human Rights, and internationally accepted human rights standards (as defined in the International Bill of Human Rights) (...).
Context
According to a report published in November 2024 by the coalition of civil society organizations "Don't Buy Into Occupation" ("DBIO"), between January 2020 and August 2024, BNP Paribas contracted the most loans and subscriptions with companies implicated in violations of international law in the Occupied Palestinian Territory. In fact, BNP granted a total of $28.086 billion in loans and subscriptions to the identified companies.
More specifically, BNP Paribas granted loans totaling $14.987 billion and made subscriptions amounting to $13.099 billion. BNP Paribas also invested $4.644 billion in such companies through equity and bond acquisitions.
It holds $462 million in bonds and $4.182 billion in shares.
The report clarifies that it «does not claim that all of this capital goes exclusively to the settlement enterprise. However, investments in a business generally support that business as a whole, thus linking the investor to the overall activities of the business and, consequently, to all the negative impacts associated with those activities. Regardless of the size of the investment or the proportion of capital that goes directly to the settlement industry, financial institutions clearly have a responsibility to use their influence to sway actors involved in violations xxxv in order to prevent, mitigate, and address this type of harm.».
The 58 companies identified are «all involved in one or more of the listed activities that raise particular human rights concerns,« which form the basis for inclusion in the UN database of commercial enterprises involved in Israeli settlements, which was published in February 2020 and updated in June 2023. The [OHCHR] is currently preparing a further update, which is expected to be published in early 2025.».
As an example, BNP Paribas has taken stakes in or granted loans to CISCO xxxvii ISRAEL and DELEK ISRAEL.
The Israeli subsidiary of the American group, CISCO ISRAEL, cooperates extensively with the Israeli army. A company specializing in the installation and maintenance of software, networks, and information systems, it also collaborates with the Israeli government to establish technology hubs, including three opened in October 2022 and located in 38 Israeli settlements in East Jerusalem and the West Bank.
New hubs are still planned in Israeli settlements. Delek Israel is the leading Israeli oil and gas company and is involved in gas extraction in disputed maritime areas that may fall under Palestinian jurisdiction. Delek Israel provides services and equipment necessary for the maintenance of settlements in Israeli settlements in East Jerusalem and the West Bank. It also operates several gas stations in and around Israeli settlements.
Similarly, BNP Paribas has acquired stakes in or granted loans to the Israeli banks Bank HaPoalim, Bank Leumi, and Mizrahi Tehafot Bank. These Israeli banks have branches, offices, and ATMs in the Israeli settlements of East Jerusalem and the West Bank. They also conduct commercial and financial activities in the Israeli settlements. These banks are known for their involvement in financing construction projects in the Israeli settlements of East Jerusalem and the West Bank, as well as providing funding to local communities and businesses located in these settlements.
Page 7/20 Regarding BNP Paribas' support for arms companies, a report by another coalition of NGOs revealed the loans and subscriptions granted by BNP Paribas to 6 companies that supplied weapons to Israel during the period from January 2021 to August 2023. BNP Paribas thus granted loans amounting to 4.709 billion euros and subscriptions amounting to 1.011 billion euros during this period.
It is worth noting the special situation of the bank's relationship with ELBIT SYSTEMS, which is the leading arms company in Israel, the main supplier of weapons to the Israeli Ministry of Defense, and which has almost organic links with the Israeli army and the Israeli Ministry of Defense (reservists, research programs, weapons implementation, etc.). It produces and supplies weapons and ammunition of all types to the Israeli Ministry of Defense: armored personnel carriers, D9 armored bulldozers, PULS missile launchers, ATMOS 2000 155mm self-propelled howitzers, artillery and tank shells, MPR500 bombs, 120mm guided mortar ammunition, M339 tank shells, laser-guided bombs, Skylark, Hermes 450 and Hermes 900 drones equipped with advanced payloads, thermal camera and optical sight for infantrymen, surveillance systems and cameras, electronic warfare systems, artificial intelligence target designation programs).
Since the 2018 acquisition of the Israeli arms company IMI (Israeli Military Industries), its links with the Israeli army have been further strengthened and the company produces equipment intended for the infantry: submachine guns and semi-automatic pistols, XLIII assault rifles, machine guns, etc.
The weapons and ammunition produced by ELBIT SYSTEMS are used for the commission of international crimes: for example, the MPR 500 bomb was used on March 27, 2024 during a strike against an emergency and rescue center in xliv Habariyeh, a strike which killed seven rescuers; ;
The Hermes 450 drone was used during the attack on the World Central Kitchen humanitarian aid convoy on April 1, 2024, which resulted in the deaths of seven aid workers; ;
Surveillance systems and cameras and electronic warfare systems are used for the implementation of the occupation, separation wall and colonization of East Jerusalem and the West Bank.
However, BNP Paribas granted loans to the Israeli company ELBIT SYSTEMS (US$83 million between 2018 and 2021) and acquired a stake in the company's capital.
According to the latest figures from September 2024, the DBIO coalition still has a loan of 90.83 million dollars.
News
In March 2024, BNP Paribas provided a guarantee to the State of Israel for a US$2 billion Eurobond issuance by the State of Israel. This transaction involved the support of four institutions equally responsible for managing the bond issuance (the investment banks Goldman Sachs and Bank of America Securities, the German bank Deutsche Bank, and the French bank BNP Paribas) for a total of US$8 billion. BNP Paribas committed US$2 billion to purchase bonds maturing in 2029 (US$500 million), 2034 (US$750 million), and 2054 (US$750 million).
Page 8/20 In this transaction, BNP Paribas acted both as advisor to the State of Israel for the placement of its bonds and as guarantor of the successful completion of the transaction (commitment to subscribe to the portion not subscribed through the public offering). This guarantee was provided on March 5, 2024, following the first order of the International Court of Justice of January 26, 2024, indicating the existence of a plausible, real, and imminent risk of irreparable harm to the rights of Palestinians in the Gaza Strip to be protected against acts of genocide and prohibited acts covered by the aforementioned convention resulting from military operations conducted by Israel in the Gaza Strip.
C. AMUNDI (Crédit Agricole), Société Générale, Banque Populaire – Savings Bank (BPCE)
According to the DBIO report, between January 2020 and August 2024, Société Générale, Crédit Agricole, the Banque Populaire – Caisse d'Épargne group («BPCE»), Crédit Mutuel and La Banque Postale also entered into loan and subscription contracts with companies involved in violating international law in the occupied Palestinian territory.
During the same period, Crédit Agricole, the BPCE group, AXA, La Banque Postale, Bpifrance, Crédit Mutuel and Rothschild Group contracted equity and bond stakes with such companies.
Thus, BANK HAPOALIM, BANK LEUMI and MIRZAHI TEHAFOT BANK have benefited from investments from Crédit Agricole, the BPCE group and AXA.
Regarding the financial support offered to arms companies, the report written by PAX highlights the commitment of loans and subscriptions from Crédit Agricole (amounting to 4.973 billion euros), Société Générale (amounting to 2.175 billion euros) and the BPCE group (amounting to 306 million euros).
In addition, AMUNDI has stakes in the company ELBIT SYSTEMS.
D. AXA Presentation
AXA is a French insurance company for individuals and professionals that operates in 51 countries and employs 147,000 people.
AXA "is committed to respecting the internationally recognized human rights principles as defined by the United Nations Universal Declaration of Human Rights" and has put in place a vigilance plan for this purpose.
Context and current events
Identified by the DBIO coalition report as holding $1.316 billion in shares and $132 million in bonds in lvii companies involved in Israeli settlement activities, AXA has since spring 2024 sold more than $20 million in shares in Israeli banks listed in the lviii database of the OHCHR (Bank Leumi, Bank Hapoalim and Israel Discount Bank).
Page 9/20 AXA had also divested from Bank Mizrahi-Tefahot and First International Bank of Israellix since December 31, 2022.
At AXA's shareholders' meeting in April 2024, the CEO announced that AXA had no direct or indirect investments in Israeli banks.
Since a mobilization campaign directed against AXA, the company and its subsidiaries have held more shares or obligations in respect of Elbit Systems since December 2018. However, a report dated October 17, 2024 states that according to its latest financial statements, AXA has invested $150.43 million in arms companies, including General Dynamics and Boeing, which have supplied weapons to the Israeli state.
E. Alstom Presentation
Alstom is a transport company, particularly in the rail sector, involved in the construction of the Jerusalem Light Rail (JLR) which connects the settlements of East Jerusalem to West Jerusalem. The group operates in 64 countries and has more than 84,700 employees.
Alstom is implementing a vigilance plan.
Context
In 2019, Alstom withdrew from a tender after strong pressure from civil society.
However, in July 2021, Alstom was one of the shortlisted consortia to respond to a call for tenders concerning the blue and purple lines of the Jerusalem light rail, lxvi which would connect the settlements located in the north and south of the city of Jerusalem.
In addition, in January 2021, Alstom acquired Bombardier Transportation, a Canadian company also linked to Israeli railways and in particular to the 167th rail link between Tel Aviv and Jerusalem which encroaches on the occupied Palestinian territory.
News
On June 30, 2023, the Office of the High Commissioner for Human Rights (OHCHR) published an update to its database of companies involved in certain settlement-related activities in the Occupied Palestinian Territory. This document identifies the French company Alstom SA as the parent company of Bombardier Transportation Israel Ltd. Egis Rail, also involved in the construction of the Jerusalem light rail system, is also identified in the OHCHR database as a provider of services and utilities that support the maintenance and operation of settlements, including transportation.
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II. Applicable Law
The Palestinian territory occupied by Israel since 1967 consists of East Jerusalem, the West Bank and the Gaza Strip.
Because of this situation of military occupation, the legal norms that are applicable in the Occupied Palestinian Territory consist in particular of the rules of international law, international humanitarian law and international human rights law.
A. General framework
The International Court of Justice, in its advisory opinion of 9 July 2004, established the illegality of the construction of the so-called Separation Wall and the presence of Israeli settlements in the Occupied Palestinian Territory. The advisory calls upon Israel to end this unlawful situation and requests the United Nations and third States to exert pressure on Israel to do so.
The United Nations General Assembly resolution of 20 July 2004 implements the lxxii terms of the opinion of 9 July 2004.
The policy of colonizing the occupied Palestinian territory constitutes a violation of international law, condemned by multiple UN resolutions since 1967, including Security Council resolution LXXIII 2334 of December 23, 2016.
Indeed, international humanitarian law («IHL») prohibits the transfer of protected persons out of occupied territory, as well as that of part of the civilian population of the occupying power into the occupied territory.
This practice, in addition to being elevated to the level of a serious violation of international humanitarian law (lxxv), also constitutes a war crime.
In an advisory opinion dated July 19, 2024, the International Court of Justice recalled that "the Israeli settlements in the West Bank and East Jerusalem, and the regime associated with them, were established and are maintained in violation of international law.".
It further noted the systematic violations of international humanitarian law and international human rights law committed by Israel in the Occupied Palestinian Territory. The opinion calls on Israel to end these unlawful situations and requests the United Nations and third States to exert pressure on Israel to do so.
The United Nations General Assembly resolution of 18 September 2024 implements lxxviii the terms of the opinion of 19 July 2024.
By the orders indicating precautionary measures of January 26, March 28 and May 24, 2024 concerning the Application of the Convention on the Prevention and Punishment of Crime of genocide in the Gaza Strip (South Africa v. Israel), The International Court of Justice established (i) the existence of a plausible, real and imminent risk of irreparable harm to the rights of Palestinians in the Gaza Strip to be protected against acts of genocide and prohibited acts covered by said convention arising out of military operations carried out by Israel in the Gaza Strip, (ii) the obligation under international law to prevent the commission of acts of genocide in the context of the Israeli-Palestinian conflict, (iii) the prohibition of any form of complicity in the commission of these acts as well as the human rights violations of the Palestinian civilian population caused by Israeli activities in the Gaza Strip.
The existence of a plausible, real and imminent risk of the commission of a crime of genocide is supported by various reports: as early as November 16, 2023, a group of experts from the UN Human Rights Council warned of the risk of genocide in the Gaza Strip; on March 25, 2024, the report "Anatomy of a Genocide" by Francesca Albanese, United Nations Special Rapporteur on the situation of human rights in the Palestinian territories, warned that there are now "reasonable grounds to believe that the threshold of genocide by Israel has been reached"; ;
On November 14, 2024, the United Nations Special Committee to investigate Israeli practices affecting the human rights of the Palestinian people and other Arabs in the occupied territories concluded that, in view of the very large number of civilian casualties, the methods of warfare employed by Israel in Gaza, including the use of starvation as a weapon of war, "are consistent with the crime of 182 genocide.".
B. International Criminal Law
The Rome Statute provides for the jurisdiction of the International Criminal Court in matters of crimes 183 of genocide, crimes against humanity, war crimes and the crime of aggression.
The transfer, "direct or indirect, by an occupying power of a part of its civilian population, into the territory it occupies" is a war crime according to the Rome Statute.
On May 20, 2024, the Office of the Prosecutor of the International Criminal Court requested the Pre-Trial Chamber to issue arrest warrants against two senior Israeli leaders suspected of having committed crimes against humanity and war crimes by the Israeli army against Palestinians in the Gaza Strip, effective October 8, 2023.
On November 21, 2024, the Pre-Trial Chamber of the International Criminal Court issued arrest warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for these acts of crimes against humanity and crimes of the 136th war.
The existence of crimes against humanity and war crimes committed by the Israeli authorities in the Gaza Strip is supported by the reports of the Independent International Commission to Investigate the Occupied Palestinian Territory, including East Jerusalem and Israel, and the Human Rights Watch report of November 14, 2024.
Although the criminal liability of legal persons is not provided for by the Rome Statute, Article 121-2 of the French Penal Code allows the criminal liability of a private legal person to be engaged before the French criminal courts in the event of offences committed on its behalf by its organs or representatives, without excluding the liability of the 38 natural persons who are perpetrators or accomplices of the same acts.
Legal persons may therefore be held criminally liable in the event of participation in the commission of the crime of genocide or other crimes against humanity, but also war crimes, in particular lxxxix that of the prohibited transfer of population provided for in article 461-26 of the Penal Code.
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C. Law applicable to businesses
The framework applicable to businesses in matters of international law is based on the Guiding Principles on Business and Human Rights, which are inspired by international law applicable to States. These Principles cannot be interpreted as establishing new obligations under international law, but only "in terms of their objective, which is to improve standards and practices concerning business and human rights in order to achieve tangible results for the individuals and communities concerned.".
Under Principles 11 to 13, all businesses must respect human rights and this responsibility requires "that they avoid having or contributing to adverse human rights impacts through their own activities, and that they remedy such impacts when they occur" and "that they strive to prevent or mitigate adverse human rights impacts that are directly related to their business activities, products or services through their business relationships, even if they have not contributed to such impacts".
In order to fulfill their responsibility, companies must in particular put in place a due diligence procedure, according to a globally established process, "to identify their impacts on human rights, prevent these impacts and mitigate their effects, and report on how they address them".
For companies of a certain size whose head office is located in France, the obligation of due diligence is found in the law of March 27, 2017 relating to the duty of vigilance xciii of parent companies and contracting companies.
In his first report on the establishment of the database of companies involved in the activities of Israeli settlements, the United Nations High Commissioner for Human Rights («OHCHR») notes «that in view of the extent of the international legal consensus concerning the illegal nature of the settlements themselves, and the systemic and widespread nature of their impact on human rights, it is difficult to imagine that a company could take part in the activities listed while respecting the Principles» (emphasis added).
The OHCHR adds: «According to the Guiding Principles, the obligation of businesses to respect human rights includes their business relationships. Guiding Principle 13 establishes that businesses have a duty to prevent or mitigate adverse human rights impacts that are directly linked to their activities, products, or services through their business relationships, even if they did not contribute to those impacts; this includes impacts arising from both actions and omissions. The responsibility to exercise due diligence—and in the occupied territory, this includes enhanced due diligence—entails actively taking steps to identify and assess all actual or potential adverse human rights impacts arising from their business relationships.».
The United Nations High Commissioner for Human Rights finally clarified in his update report concerning the database of companies involved in the activities of Israeli settlements: "[The] importance [of the aforementioned Guiding Principles] as Page 13/20 as a reference framework for the development of legal standards for due diligence in the field of human rights confirms their status as commonly accepted and authoritative standards at the global level regarding what States and companies must do to protect and respect the full range of human rights in all contexts related to business activities" (emphasis added).
The OECD Guidelines for Multinational Enterprises on Responsible Business Conduct reiterate similar obligations. Since an update dated June 8, 2023, this document now advocates for "enhanced" due diligence in specific contexts, such as conflict-affected areas: "In situations of armed conflict, companies should comply with the standards of international humanitarian law. In a context of armed conflict or an increased risk of serious abuses, companies should exercise enhanced due diligence with regard to adverse impacts, and in particular to any violation of international humanitarian law.".
Indeed, respect for IHL is owed by States but also by private individuals. The 1949 Geneva Conventions therefore require States to ensure respect for the rules of IHL by establishing and implementing appropriate sanctions and prosecuting those who commit serious violations of IHL.
Companies, as legal entities, are therefore obligated to comply with the rules of international humanitarian law (IHL), failing which the competent state has the right to sanction them. The criminal penalties provided for in the French Penal Code must therefore be applied for this purpose.
D. Summary
The various violations of international law, international humanitarian law and international human rights law, noted by decisions emanating from international judicial bodies and various reports from international or non-governmental organizations, constitute serious and massive violations of the human rights and fundamental freedoms of the Palestinian civilian population, of the health and safety of Palestinians and of the environment of the Occupied Palestinian Territory.
The rights violated include the following: right to life, right to physical integrity, right to liberty, freedom of movement, right to security, right to work, right to health, right to education, right to an adequate standard of living, right to housing, right to a normal family life, right to religious practice, right not to be discriminated against, right to self-determination, right to a healthy environment.
The report of September 20, 2024, by the UN Special Committee on Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs in the Occupied Territories shows how Israel’s extensive bombing campaign in the Gaza Strip has decimated essential services and triggered an environmental catastrophe with lasting health consequences. By the beginning of 2024, more than 25,000 tons of explosives—the equivalent of two nuclear bombs—had been dropped on Gaza, causing widespread destruction and the collapse of water and sanitation systems, the destruction of agricultural infrastructure, and toxic pollution. The report states that by destroying vital water, sanitation, and food systems, and by contaminating the environment, Israel has created a deadly combination of crises that will inflict severe harm on future generations.
These various decisions emanating from international judicial bodies must be interpreted in light of the principles of international law, and in particular:
— the obligation under international law to prevent the commission of a violation of international law, the crime of genocide, crimes against humanity, war crimes and violations of international human rights law, — the obligation under international law not to provide any aid or assistance to the commission of a violation of international law, the crime of genocide, crimes against humanity, war crimes and violations of international human rights law, — the prohibition of any form of complicity in the commission of the crime of genocide, crimes against humanity, war crimes, and violations of international human rights law.
However, most of these obligations, particularly those concerning the crime of genocide and crimes against humanity, constitute peremptory norms (juice cogens) of universal scope and having effects erga omnes, applying to both States and private legal entities (companies).
Indeed, in its resolution 32/161, the United Nations General Assembly called upon "all States and all international organizations, specialized agencies, investment companies and other institutions not to give recognition, support or assistance to any measures taken by Israel to exploit the resources of the occupied territories or to alter in any way the demographic composition, geographical character or institutional structure of these territories" (emphasis added).
In the same vein, the ICJ recently held that States must "take measures to prevent trade or investment which helps to maintain the unlawful situation created by Israel in the Occupied Palestinian Territory" (emphasis added).
Therefore, the legal entities identified in this submission, which have provided financial assistance to the State of Israel or to companies involved in its armament since January 26, 2024, could not have been unaware that their aid contributed to increasing the plausible risk of genocide rather than preventing it. They are thus complicit in the crime of genocide. Regarding the financing or operation of activities, including commercial activities, in Israeli settlements located in the Occupied Palestinian Territory, the illegality of establishing and maintaining these settlements, repeatedly established, makes these companies complicit in serious violations of international humanitarian law and the war crime of forced population transfer.
It is ultimately incumbent upon States to fulfill their obligations, namely to effectively prevent trade and investment that contributes to maintaining the unlawful situation created by Israel in the Occupied Palestinian Territory and to sanction companies involved in violating international law. Done in Paris on November 29, 2024. Mr. Patrick Zahnd, President of the JURDI Association. Email: zahnd.patrick@yahoo.com Telephone: +33789702103 Page 16/20
Endnotes
National Assembly, «Answer to written question no. 77819 from Ms. Laurence Abeille,» July 14, 2015. See also France Diplomacy, Ministry for Europe and Foreign Affairs, «Israel/Palestinian Territories,» updated October 3, 2024.
European Commission, «Interpretive Communication on the indication of origin of goods originating in territories occupied by Israel since June 1967» (Official Journal of the European Union) 2015/C 375/05, 12 November 2015.iii
Ministry of the Economy and Finance, «Notice to economic operators concerning the indication of the origin of goods from territories occupied by Israel since June 1967», JORF No. 0273, 24 November 2016.iv
Ghislain Poissonnier, «Labeling of products from Israeli settlements: a cost that is more political than economic» (The Conversation) November 19, 2019.
Office of the United Nations High Commissioner for Human Rights, «Update of the Database of all companies involved in the activities described in paragraph 96 of the report of the independent international fact-finding mission to study the effects of Israeli settlements», June 30, 2023.vi
Carrefour, "Getting to know the Carrefour Group better".vii
Carrefour, "Franchising at Carrefour".
viii See Note vi, «Getting to know the Carrefour group better». ix
Carrefour, «Ethics and Responsible Business Conduct»; Carrefour, «Respect for Human Rights»; Carrefour, «Universal Registration Document including the 2023 Annual Financial Report», March 28, 2024, p. 122.x
See Note ix, Carrefour, «Universal Registration Document including the 2023 Annual Financial Report», March 28, 2024, p. 122.xi
Carrefour, «Carrefour, in partnership with Electra Consumer Products and its subsidiary Yenot Bitan, opens franchised stores in Israel», March 8, 2022. See also WhoProfits,xii See note xi, «Carrefour, in partnership with Electra Consumer Products and its subsidiary Yenot Bitan, opens franchised stores in Israel», March 8, 2022.
xiii Israelvalley Desk, «Excellent news! Carrefour will open branches in Israel in 2022,» March 6, 2022. xiv
France Palestine Solidarity Association, Al-Haq, CGT, Human Rights League, Platform of French NGOs for Palestine, Solidaires, «The Dangerous Liaisons of the Carrefour Group with Israeli Colonization,» November 2022, p. 6.xv
France Palestine Solidarity Association, Al-Haq, CGT, Human Rights League, Platform of French NGOs for Palestine, Solidaires, «Current Events Note: Carrefour intensifies its ties with the illegal colonization of Palestine,» October 6, 2023; WhoProfits, «Yenot Bitan (Carrefour Israel).» xvi Ibid.
xvii Elsa de la Roche Saint-André, «CheckNews. Hamas-Israel War: Why is the Carrefour group targeted by calls for a boycott?» (Libération), October 30, 2023.
xviii Carrefour, «Universal Registration Document including the 2023 Annual Financial Report», March 28, 2024, p. 40.xix
Human Rights League, «Carrefour is withdrawing its products from Israeli settlements but it is not closing its stores in these settlements and remains closely linked to colonization,» September 3, 2024. See Note xv, «Current Events Note: Carrefour intensifies its ties with the illegal colonization of Palestine.» xxi
BNP Paribas, "Getting to know us".
xxii BNP Paribas, «Integrated Report 2023», p. 6.
xxiii BNP Paribas, «BNP Paribas Group Code of Conduct», 2022, p. 30; BNP Paribas, «Universal Registration Document and 2023 Annual Financial Report», March 15, 2024, p. 704.
xxiv BNP Paribas, «BNP Paribas reaffirms its commitment to Human Rights», December 13, 2016; BNP Paribas, «BNP Paribas and Human Rights», July 2024. xxv
BNP Paribas, «BNP Paribas Charter of Responsible Commercial Relations»; BNP Paribas, «BNP Paribas and Human Rights», July 2024, p. 3.
xxvi BNP Paribas, «Charter of Responsible Commercial Relations of BNP Paribas».
xxvii BNP Paribas, «BNP Paribas Group Code of Conduct», December 17, 2021, p. 30.
Page 17/20 xxviii BNP Paribas, «Financing and Investment Policies».
xxix BNP Paribas, «Sectoral Policy – Defense and Security», p. 3.xxx
Ibid, p. 8.
xxxi BNP Paribas, «SOCIAL AND ENVIRONMENTAL RESPONSIBILITY. List of exclusions of certain goods: Public declaration», December 31, 2011.
xxxii BNP Paribas, «Universal Registration Document and 2023 Annual Financial Report», March 15, 2024, p. 705.
xxxiii Don't Buy Into Occupation, «Don't Buy into Occupation IV report», November 2024, p. 4.
xxxiv Ibid, p. 6.
xxxv Ibid, p. 3.
xxxvi Ibid.
xxxvii Don't Buy Into Occupation, «European Financial Institutions' Continued Complicity in the Illegal Israeli Settlement Enterprise,’ December 11, 2023, pp. 28-29; DBIO, Data 2024.
xxxviii Don't Buy Into Occupation, «Exposing the financial flows into illegal Israeli settlements,» December 5, 2022, p. 37.
xxxix Don't Buy Into Occupation, «European Financial Institutions' Continued Complicity in the Illegal Israeli Settlement Enterprise,’ December 11, 2023, p. 29; »Exposing the financial flows into illegal Israeli settlements«, December 5, 2022, p. 39.xl
Don't Buy Into Occupation, «European Financial Institutions' Continued Complicity in the Illegal Israeli Settlement Enterprise,’ December 11, 2023, pp. 22-23, p. 40; »Exposing the financial flows into illegal Israeli settlements«, December 5, 2022, pp. 25-26, pp. 53-54.xli
PAX, Profundo and. al, «The companies arming Israel and their Financiers», June 2024, pp. 13-14. xlii Who Profits, “Company Database: Elbit Systems”.
xliii Don't Buy Into Occupation, «European Financial Institutions' Continued Complicity in the Illegal Israeli Settlement Enterprise,’ December 11, 2023, p. 31; Don't Buy Into Occupation, »Exposing the financial flows into illegal Israeli settlements,« December 5, 2022, p. 41; Who Profits, »Company Database: Elbit Systems“.
Human Rights Watch, «Israel: US-launched strike in Lebanon killed rescue workers,» May 7, 2024.
Archie Mitchell, Kim Sengupta, Bel Trew, “Israeli drone used in Gaza aid strike powered by British-made engine, activists claim” (The Independent) April 3, 2024.
xlvi Julien Bouissou, «BNP Paribas finances the Israeli defense giant Elbit» (Le Monde) August 9, 2024. xlvii DBIO, Data 2024.
xlviii Luis Reygada, «Gaza: how BNP Paribas financed Israel’s war to the tune of 2 billion dollars» (L’Humanité) June 23, 2024.
International Federation for Human Rights, «BNP Paribas finances the Israeli state in the midst of a war against the civilian population of Gaza and in the context of a «national priority» settlement in the occupied West Bank,» August 30, 2024.
Don't Buy Into Occupation, «Don't Buy into Occupation IV report», November 2024, pp. 4-5.li
Ibid.lii
DBIO, Data 2024.
liii PAX, Profundo et. al, «The companies arming Israel and their Financiers», June 2024, pp. 13-14.liv Fintel.io, “Elbit Systems Ltd. Institutional Ownership”.lv
AXA, https://www.axa.com/.lvi
AXA, Human Rights Protection and Vigilance Plan.
lvii Don't Buy Into Occupation, «European Financial Institutions' Continued Complicity in the Illegal Israeli Settlement Enterprise,’ December 11, 2023, p. 18.
lviii RFI, «Insurer AXA divests from several Israeli banks,» August 22, 2024; Ekō, «French insurance giant AXA quickly divests $20 million from Israeli banks under public pressure,» August 21, 2024.lix
Ekō, «AXA: Investments in Israeli Banks Financing War Crimes», August 21, 2024.lx
Ekō, «French insurance giant AXA rapidly divests $20 million from Israeli banks under citizen pressure,» August 21, 2024.lxi
Middle East Monitor, «France investment firm AXA IM divests from Israeli arms manufacturer», April 18, 2019.
lxii Ekō, «AXA: Profiting off Genocide», October 17, 2024, p. 23.
lxiii Alstom, «Key figures 2023-24».
Page 18/20 lxiv Alstom, «Universal Registration Document 2023/24 including the annual financial report», May 15, 2024, p. 375.lxv
Guilhem Delteil, «Alstom gives up on participating in the extension of the Jerusalem tramway» (RFI) May 15, 2019.
lxvi Ministry of Finance of Israel, «The tenders for the construction, financing, operation and maintenance of the blue and purple rail lines in Jerusalem have been published,» August 3, 2021.
lxvii Yann Duvert, «The acquisition of Bombardier Transport by Alstom in figures» (Les Echos) January 29, 2021; Don't Buy Into Occupation, «European Financial Institutions' Continued Complicity in the Illegal Israeli Settlement Enterprise’, December 11, 2023, pp. 20-21.
lxviii Who Profits, «Egis Rail».
lxix Office of the United Nations High Commissioner for Human Rights, «Database Update…», June 30, 2023.lxx
International Court of Justice, Advisory Opinion, Legal consequences arising from policies and Israeli practices in the occupied Palestinian territory, including East Jerusalem, July 19, 2024, paragraph 78.
lxxi International Court of Justice, Advisory Opinion, Legal consequences of building a wall in the occupied Palestinian territory, July 9, 2004, paragraphs 150, 160-162.
lxxii United Nations General Assembly, Draft revised resolution: Advisory opinion of the International Court of Justice on the legal consequences of the construction of a wall in the occupied Palestinian territory, including in and around East Jerusalem, A/ES-10/L.18/Rev.1, 20 July 2004.
lxxiii United Nations Security Council, Resolution 2334, S/RES/2334, 23 December 2016.
lxxiv Article 49 of the Fourth Geneva Convention, 1949.
lxxv Article 8, paragraph 2, subparagraph b) viii) of the Statute of the ICC, 1998.
lxxvi International Court of Justice, Advisory Opinion, Legal consequences arising from policies and Israeli practices in the occupied Palestinian territory, including East Jerusalem, July 19, 2024, paragraph 155, accessible from: https://www.icj-cij.org/fr/affaire/186/avis-consultatifs.
lxxvii International Court of Justice, Advisory Opinion, Legal consequences arising from policies and Israeli practices in the occupied Palestinian territory, including East Jerusalem, July 19, 2024, paragraphs 223, 267-268, 279.
lxxviii United Nations General Assembly, Draft revised resolution: Advisory opinion of the International Court of Justice on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, and of the unlawfulness of Israel's presence in the Occupied Palestinian Territory, A/ES-10/L.31/Rev.1, 13 September 2024.
lxxix International Court of Justice, Implementation of the Convention for the Prevention and Suppression of Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order of January 26, 2024; Order of March 28, 2024; Order of May 24, 2024.
lxxx OHCHR, «Gaza: UN experts call on international community to prevent genocide against the Palestinian people», November 16, 2023.
lxxxi Francesca Albanese, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, «Anatomy of a Genocide», A/HRC/55/73, 25 March 2024.
lxxxii HCDH, «A UN Special Committee finds that the methods of warfare used by Israel in Gaza constitute genocide, including the use of starvation as a weapon of war», November 14, 2024.
lxxxiii Article 5 of the ICC Statute, 1998.
lxxxiv Article 8, paragraph 2, subparagraph (b)(viii) of the ICC Statute, 1998.
lxxxv International Criminal Court, «Statement by ICC Prosecutor Karim AA Khan KC: Filing of requests for the issuance of arrest warrants concerning the situation in the State of Palestine», 20 May 2024.
lxxxvi International Criminal Court, «Situation in the State of Palestine: Pre-Trial Chamber I of the ICC rejects objections to jurisdiction raised by the State of Israel and issues arrest warrants against Mr. Benjamin Netanyahu and Mr. Yoav Gallant», 21 November 2024.
lxxxvii United Nations General Assembly, «Report of the Independent International Commission to Investigate the Occupied Palestinian Territory, including East Jerusalem, and Israel», September 11, 2024; Human Rights Watch, «'Desperate, Starving and Besieged': The Forced Displacement of Palestinians in Gaza‘, November 14, 2024.
lxxxviii Article 121-2, paragraphs 1 and 3 of the Penal Code.
Page 19/20 lxxxix Articles 211-1 to 213-4-1 and articles 461-1 to 462-11 of the French Penal Code.xc
United Nations High Commissioner for Human Rights, «Guiding Principles on Business and Human Rights», HR/PUB/11/4, 2011, p. 1.xci
Ibid, pp. 15-17.
xcii Ibid, pp. 18-28.
xciii Article L. 225-102-4 of the Commercial Code.
xciv United Nations General Assembly, «Report of the United Nations High Commissioner for Human Rights», A/HRC/37/39, 1 February 2018, paragraph 41.xcv
Ibid, paragraph 59.
xcvi United Nations General Assembly, «Report of the United Nations High Commissioner for Human Rights», A/HRC/57/21, 2 August 2024, paragraph 13.
xcvii OECD, «OECD Guidelines for Multinational Enterprises on Responsible Business Conduct», 8 June 2023, paragraph 45.
xcviii Article 146 of the Fourth Geneva Convention, 1949.
xcix OHCHR, «A UN Special Committee finds that Israel’s methods of warfare in Gaza constitute genocide, including the use of starvation as a weapon of war,» November 14, 2024.c
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, 26 February 2007, paragraph 161; see also Armed activities on the territory of the Congo, Democratic Republic of the Congo v. Rwanda, February 3, 2006, paragraph 64.ci
United Nations General Assembly, Resolution 32/161 «Permanent sovereignty over national resources in the occupied Arab territories», A/RES/32/161, 19 December 1977.cii
International Court of Justice, Advisory Opinion, Legal consequences arising from policies and Israeli practices in the occupied Palestinian territory, including East Jerusalem, July 19, 2024.
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