The Legal Clumsiness of Orange (I24News, 10 June 2015)

The contradictory statements of Orange’s CEO Stéphane Richard about his company’s business in Israel are certainly confusing. Richard’s latest version is that his announced intention to pull out from Israel was not politically motivated. Haim Saban, the owner of “Partner” (the Israeli company that uses Orange’s brand), called Richard’s claim a “blatant lie.” Facts do make Richard’s claim hard to believe.
Richard explained in Cairo that his company wants to “be one of the trustful partners of all Arab countries.” His declarations came shortly after an aggressive campaign orchestrated by French and Palestinian NGOs. In May 2015, a 51-page report entitled “Orange’s Dangerous Liaisons in the Occupied Palestinian Territories” was collectively published by “Association France-Palestine Solidarité,” by “Ligue des Droits de l’Homme (LDH),” by “Confédération générale des Travailleurs (CGT),” by “Union syndicale Solidaires,” by “CCFD-Terre solidaire,” by “Fédération internationale des Ligues des Droits de l’Homme (FIDH)” and by “Al-Haq.”
On May 26, 2015, the above organizations met with Orange’s shareholders and “asked Orange to publicly and explicitly state its decision to disengage and to denounce the human rights violations that Partner is involved in Israeli settlements in the OPT [Occupied Palestinian Territories]” (as reported by FIDH’s website). Those organizations called upon Orange to recognize “that having business relations with Partner poses risks to the company’s reputation” and they also asked the French government to “respect its international human rights obligations and demand that Partner put an end to its activities in the settlements,” adding that “if Partner does not do so, Orange should terminate its business relationship with Partner.”
While the French government officially condemned any attempt to boycott Israeli companies, France’s Ambassador to the United States, Gérard Araud, implicitly condoned Orange’s CEO with the following tweet: “4th Geneva convention : settlement policy in occupied territories is illegal. It is illegal to contribute to it in any way.” Araud was taken to task by Northwestern University law professor Eugene Kontorowich who pointed out that French companies are active in many occupied and disputed territories around the world. Araud blocked Kontorowich from his twitter account instead of answering his questions.
Yet, as Kontorowich argued, French companies that subscribe to the claim that conducting business in the West Bank is illegal expose themselves, and other French companies, to lawsuits for their activities in occupied/disputed territories around the world. The list includes Total’s oil license in occupied Western Sahara (renewed in February 2014 despite protests by the Sahrawi Arab Democratic Republic), and Michelin’s factory in occupied northern Cyprus. And the list includes Orange itself.
Orange provides cell phone services in Nagorno-Karabakh, an area of Azerbaijan occupied by Armenia since 1992 (and considered an occupied territory by the United Nations and by France). In the West Bank, Orange’s services are operated by Partner; but in Nagorno-Karabach, they are operated directly by Orange itself.
If Gérard Araud is right, then it is illegal for Total, for Michelin and for Orange to operate in Western Sahara, in Northern Cyprus, and in Nagorno-Karabakh. Fortunately for these companies, however, Araud is wrong.
As Prof. Kontorowich explains in a new academic article published by the Columbia Journal of Transnational Law, recent court decisions in Europe clearly rule that business activity in disputed and occupied territories is not illegal per se. In 2013, a French court (“Cour d’Appel de Versailles”), ruled that it is lawful for Alstom and Veolia to build a tramway in eastern Jerusalem because the Geneva Conventions do not apply to private companies. In 2014, the Supreme Court of the United Kingdom ruled that the Israeli company Dead Sea Products’ activity in the West Bank does not amount to a transfer of population and, therefore, does not constitute a violation of the War Crimes Act and of the Rome Statute. Similarly, and also in 2014, the Paris “Tribunal de grande instance” rejected a petition calling for the boycott of Israeli company SodaStream because of its presence in the West Bank.
Orange, of course, is entitled to operate and not to operate wherever it wants. But if it decides to end its contract with Partner because of the claim (rejected by European courts) that Partner’s activity in the West Bank is illegal, than Orange will implicitly endorse the claim that its activity in Nagorno-Karabakh is illegal as well.
Either way, Orange, and other French companies, would be well-advised to think twice before buying into the phony claims of political NGOs and of uninformed ambassadors. As Stéphane Richard realizes at this point, Israel intends to fight back. And as he may soon find out, the counter-attack will not only be economic but also legal.

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