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Investigative or Political Barriers? Dutch Prosecutor Dismisses Criminal Complicity Case Against Riwal

Cross-posted from Rights as Usual.


On 14 May 2013, the Dutch public prosecutor issued a decision to dismiss the case against Lima Holdings (the Dutch parent) for Riwal’s role in Israel’s construction of the Separation Wall in occupied Palestinian territory. Al-Haq, a Palestinian human rights organisation, with the help of advocate Liesbeth Zegveld, submitted the complaint to the prosecutor in March 2010, based on the Dutch International Crimes Act (Wet Internationale Misdrijven). This is the first instance of a European company being criminally prosecuted for aiding and abetting Israel’s international law violations.

The complaint described the company’s complicity on a number of counts related to the Separation Wall (which the International Court of Justice 2004 Advisory Opinion held to be unlawful), including the war crime resulting from the extensive and wanton appropriation and destruction of property, without military necessity; the war crime of indirect forcible transfer of Palestinians; and the crimes against humanity of apartheid and of persecution resulting from the discriminatory regime ensuing from the Wall. This regime consists in access restrictions on Palestinians to the territory de factoannexed by the Wall, including in the so-called “Seam Zone” (the Israeli military name for most of the Palestinian territory located between the Wall and the 1949 Armistice line/the “Green Line”). Documentation compiled by Al-Haq presented prima facie evidence of the company’s involvement in six specific instances of the Wall’s construction.

The Dutch prosecutor dismissed the case without providing any information concerning the content of documents obtained by the Dutch police in the raid of the company’s headquarters and the company executives’ homes in the Netherlands, in October 2010; and without initiating any further investigative actions through the Israel authorities. An industry news outlet reported, “In a statement, Lima said the prosecution service decided against bringing charges because it had reduced its activities in Israel and the occupied territories and because its involvement had been limited. Cranes and aerial platforms were rented for a few days and sometimes to third parties.”

The case was dismissed on three main grounds. First, as noted in the prosecutor’s letter, the prosecutor decided that the company’s involvement was minor “taking into account the worldwide company activities”, as opposed to the other foreign companies involved in the Wall construction, whereas Dutch war crimes legislation requires a “substantial” contribution by an accomplice to such acts. The additional Dutch legal requirement of evidence of the company’s knowledge and proximity to the acts was arguably met through the company’s engagement by Dutch state officials, including the Minister of Foreign and Economic Affairs.

Second, the prosecutor mentions the restructuring of the company’s Israeli branch following the incidents in the complaint, as if such measures amount to either a remedy for victims or a manner for the company to correct its previous conduct. The prosecutor noted that “the danger of repetition (within the Dutch jurisdiction) seems to be minor”.

Finally, the prosecutor states that since the question of the company’s responsibility is “complex” it requires further investigation, which would “consume a significant amount of resources”, while consisting of protracted proceedings. Also, “lack of cooperation from the Israeli authorities” would hinder efforts to obtain further evidence.

The prosecutor’s light-handed decision to dismiss the case flies in the face of the international legal norms that require states to take effective measures to ensure that their corporate nationals are not involved in international law violations abroad. The Netherlands and other states have war crimes legislation that incorporates these norms into domestic law and makes them applicable to corporations and corporate officials. However, the attempt to activate domestic war crimes legislation, particularly in the Israel-Palestine context, is often trumped by foreign policy considerations and political interests. This was the case when the Canadian courts dismissed a corporate liability suit against a Canadian company involved in settlement construction, and more recently when the French courts rejected the case against Veolia, a French company involved in the construction of settlement infrastructure (previously discussed on this blog). The Riwal case is yet another instance where a judicial authority is reluctant to make a politically-charged decision to initiate an investigation of facts committed under Israel’s de facto authority.

Although the application of war crimes legislation is frequently subjected to political discretion, other national laws – including laws on consumer protection, proceeds of crimes, and public procurement – could be invoked to bring corporate nationals to comply with human rights and international law. Under this paradigm, Dutch national regulatory authorities could be required to undertake risk assessments of their corporate nationals’ commercial activities abroad and these companies’ ability to respect Dutch law and public policy. In making such assessments, Dutch authorities would require Israel’s routine cooperation in providing information that enables them to make such assessments correctly in accordance with Dutch law. Such an exigent need to correctly implement Dutch legal obligations would constrain Dutch authorities’ political discretion in enforcing compliance with international law and human rights upon their corporate nationals in their activities abroad.

Meanwhile, it is hoped that developments in EU company law and the EU’s policy on corporate social responsibility will provide a protective framework to prevent involvement by EU-domiciled corporations in international law and human rights violations abroad. Such binding legislation would be wholly in line with the EU’s existing obligation and public policy commitments to respect and promote compliance with human rights and international humanitarian law.